J Durai Murugan vs Union Of India & Ors.
2018 Latest Caselaw 5270 Del

$~

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 390/2017
      J DURAI MURUGAN                              ..... Petitioner
                       Through: Mr.Ankur Chhibber, Adv.
                       versus
      UNION OF INDIA & ORS                         ..... Respondents
                       Through: Mr.Manish Mohan, CGSC for UOI.
      CORAM:
      HON'BLE MS. JUSTICE HIMA KOHLI
      HON'BLE MS. JUSTICE REKHA PALLI
                       ORDER

% 04.09.2018

1. The petitioner, an Inspector in the CRPF has preferred the present writ petition under Article 226 of the Constitution of India seeking a direction to the respondents to conduct a Review DPC for considering his case for promotion to the rank of Assistant Commandant by treating his seniority at ACPC-1 instead of ACPC-2. He further prays that in case he is found fit by the DPC, he be promoted to the rank of Assistant Commandant w.e.f. 26.10.2016, i.e., the date from which his juniors have been promoted as Assistant Commandants, along with all consequential benefits.

2. The brief facts as emerge from the record are that the petitioner, after being enrolled as a Sub Inspector in the CRPF on 03.01.2014, underwent his basic training at CTC-III, Mutkhed and was thereafter posted at the Group Centre, Bhopal. In the year 2007, the petitioner underwent the requisite pre-promotional SSICC course at CTC-II, Coimbatore, whereafter, based on a DPC held in the year 2007, while

his batchmates were promoted to the post of Inspector on 06.09.2007, he was not granted the same promotion on the ground that he did not fulfil the mandatory requirement of two years field service in a duty battalion. Upon learning about his non-promotion to the rank of Inspector at par with his batchmates, the petitioner submitted a representation seeking relaxation of the aforesaid condition of two years service in a duty battalion by pointing out that he was in no way responsible for non-completion of the requisite two years service in a duty battalion and the same was attributable squarely to the respondents themselves, who had failed to post him in a duty battalion during the relevant period. The petitioner's request for grant of relaxation was, however, rejected by the respondents.

3. Aggrieved by the non-grant of relaxation of the eligibility condition for consideration of his case for promotion to the rank of Inspector, the petitioner approached this Court by way of W.P.(C) No.1202/2012, seeking waiver of this mandatory requirement and for a consequential direction to the respondents to consider him for promotion, with effect from the date persons juniors to him had been promoted as Inspectors. Keeping in view the fact that the petitioner had already qualified the pre-promotional SSICC course, after granting him relaxation in respect of Mandatory Field Service, the respondents vide order dated 31.08.2012 brought him on the special approved list for promotion to the rank of Inspector by placing him at serial no.779(A).

4. Consequently, by an order dated 27.09.2012, the petitioner's writ petition, alongwith a batch of connected petitions, was allowed

by directing that he be reconsidered for promotion and in case found fit, be granted all consequential benefits including seniority, pay fixation and arrears of pay from the date on which persons immediately junior to him had been promoted as Inspectors. In compliance with the aforesaid decision of this Court, the petitioner was granted all consequential benefits including restoration of his seniority as an Inspector.

5. Despite restoration of his seniority as an Inspector, when the list of officers to be considered for promotion from the rank of Inspector to Assistant Commandant was circulated on 13.01.2015, the petitioner's name was not included therein and as the position remained the same in the next list circulated on 29.06.2015, the petitioner submitted a representation dated 02.07.2015 to the respondents seeking inclusion of his name in the DPC list. However, no action was taken thereon. Thereafter, vide Signal Order dated 30.05.2016, another fresh list for promotion to the post of Assistant Commandant was circulated, which list also did not include his name, compelling the petitioner to submit yet another representation dated 01.06.2016, seeking consideration of his case for promotion as an Assistant Commandant with effect from the date on which his juniors were promoted.

6. Thus, as on 30.08.2016, while the names of Inspectors (G.D.) placed up to serial no. 791 in the seniority list of Inspectors had been considered for promotion as Assistant Commandants, despite being at serial no.779A, the petitioner was not considered for promotion to the said rank, leading to the filing of the present petition.

7. Mr.Chhibber, learned counsel for the petitioner submits that based on his seniority position within the consideration zone and the fact that he had fulfilled all eligibility conditions, including qualifying for the ACPC course as prescribed in the Recruitment Rules for promotion to the rank of Assistant Commandant, the petitioner has been wrongly denied promotion at par with his batchmates, even when the DPC was convened on 09.08.2016. He submits that even though the petitioner was entitled to be detailed for the ACPC Sl. No. 01 course, he had been wrongly deprived of the said detailment and was subsequently detailed for the next course, i.e., ACPC Sl. No. 02. He contends that once this Court had vide its decision dated 27.09.2012 directed grant of all consequential benefits including protection of the petitioner's seniority in the rank of Inspector, he was entitled to be considered for promotion to the rank of Assistant Commandant alongwith his batch-mates, regardless of the fact that he had undergone ACPC Sl. No.02, instead of ACPC Sl. No.01, as undergone by his batchmates.

8. Mr.Chibber submits that the respondents cannot deny consequential benefits to the petitioner now, having rectified their mistake of initially overlooking his promotion to the rank of Inspector by issuing an order dated 31.08.2012, specifically protecting his seniority as an Inspector by assigning him serial no. 779 A in the seniority list of Inspector (GD), nor could they have denied him other consequential benefits including consideration for further promotion at par with his batch-mates. He contends that the petitioner's consideration for promotion to the rank of Assistant Commandant

w.e.f. 26.10.2016, i.e., the date when his juniors were promoted to the said rank, was also violative of the specific directions given in W.P.(C) No. 1202/2012, which specifically granted him all consequential benefits including protection of his seniority and pay fixation.

9. On the other hand, learned counsel for the respondents while opposing the writ petition, contends that the petitioner having been detailed in ACPC Sl. No.02 conducted w.e.f. 20.05.2013 to 29.07.2013 at CTC, was rightly not considered for promotion in the DPC held on 09.08.2016 for the year 2016-17, as the said DPC had considered promotions only for those Inspectors who had undergone ACPC Sl. No.1. He submits that none of the Inspectors who had undergone ACPC Sl. No.02, were considered by the said DPC. He further submits that the order dated 10.04.2017 protecting the petitioner's chance for promotion and seniority with respect to the ACPC Sl. No. 01, had been issued much after the DPC for the vacancy year 2016-17 was convened on 09.08.2016. Therefore, the respondents could not be faulted for non-consideration of his case in the DPC for the year 2016-17. He further submits that the petitioner was, thus, eligible for being considered in the next DPC for the year 2017-18, which is likely to be held soon.

10. We have heard the learned counsel for the parties and with their assistance, perused the records. The undisputed position which emerges from the record is that though the petitioner was not detailed for ACPC Sl. No.01 held between 12.07.2012 and 12.09.2012 alongwith his batchmates, upon issuance of order dated 31.08.2017,

he was subsequently detailed for the next ACPC course, i.e., ACPC Sl. No. 02, held between 20.05.2013 and 29.07.2013. The DPC for promotion to the rank of Assistant Commandant for the vacancy year 2016/17 was held on 09.08.2016, by which date the petitioner had passed the ACPC course and was, therefore, fulfilling all the eligibility conditions for consideration for promotion to the rank of Assistant Commandant but was admittedly not considered by the DPC on the ground that he had not undertaken ACPC Sl. No. 01. It also transpires that even though this Court had held in W.P.(C)No. 1202/2012 that the petitioner was entitled to protection of his seniority, the respondents had passed an order protecting his chance and seniority with respect to ACPC Sl. No. 01 only on 10.04.2017.

11. The question, thus, would be as to whether upon protection of his chance and seniority viz-a-viz ACPC Sl.No.01, the petitioner was entitled to be considered for promotion along with those Inspectors who had undergone ACPC Sl.No.01 or whether his consideration has to be with those Inspectors who had undergone ACPC Sl No.02. To determine this issue, it is necessary to refer to the aforesaid order dated 10.04.2017 in extenso:-

"To The Inspector General of Police, Northern Sector, CRPF R.K.Puram, New Delhi

Subject : W.P.(C)No.390/2017 FILED BY NO.047060087 INSP/GD J.DURAI MURUGAN OF 168 BN V/S UOI & ORS BEFORE THE HON'BLE HIGH COURT OF DELHI FOR RELEASE OF HIS PROMOTION ALONGWITH HIS BATCHMATES: PROTECTION OF SENIORITY W.R.T. ACPC

SL NO.01

1. Kindly refer to your office letter No. J.II.4333/2017-NS-P-I dated 24/03/2017, on the subject cited above.

2. On re-assignment of his seniority in the rank of Insp/GD at G/List No.779 (a) as on 01.02.2011 vide this Directorate letter No.P.VII.10/2012-Estt. Dated 31/08/2012, No.047060087 Insp/GD J.Durai Murugan of 168 Bn became eligible to attend ACPC SL. No.1 conducted w.e.f. 12.07.2012 to 12.09.2012. He was eligible for protection of his chance before re-assignment of his seniority. However, he had undergone ACPC SL. No.2 commenced w.e.f. 20.05.2013 to 29.07.2013 and declared Pass.

Accordingly, his chance & seniority w.r.t. ACPC Sl No.01 is herebv protected on administrative grounds as per para 22 (3)

12. of S.O. 01/2015.

3. This has the approval of IG (Pres) Dte.

-sd-

(V.K.Bisht) (DIG ESTT) DTE.

Dated 10.04.2017."

12. What emerges from the above order is that as a consequence of the directions given by this Court on 27.09.2012, the respondents had not only placed the petitioner at the correct place in the seniority list of Inspectors (GD), but had subsequently, vide order dated 10.04.2017, also protected his chance and seniority with respect to his batch-mates who had been detailed for ACPC Sl. No.01, held between 12.07.2012 to 12.09.2012, even though he had undergone the ACPC Sl.No.02 course only in 2013. There is, therefore, no doubt about the fct that even as per the respondents themselves, upon restoration of his seniority as an Inspector, the petitioner had become eligible to be detailed for ACPC No.01 but was not detailed for the same on account of the fact that the order dated 31.08.2012 restoring

his seniority had been passed only after the commencement of the said course. As a result, he could be detailed only for the next course ACPC Sl.No.02. Upon realising that as a consequence of the restoration of his seniority as an Inspector, the petitioner was also entitled to all other consequential benefits including consideration for further promotion at par with his batch mates, the respondents had on 10.04.2017, also passed an order protecting his chance and seniority with respect to the ACPC Sl. No.01.

13. In these circumstances, we have no hesitation in holding that once the petitioner has been found entitled to protection of his chance for promotion and seniority, it is axiomatic that he would be entitled for consideration for promotion to the rank of Assistant Commandant for the year 2016-17 itself and if found fit, entitled to promotion w.e.f. 26.10.2016, i.e., the date from which his juniors had been promoted. The delay on the part of the respondents in passing the orders dated 31.08.2012 and 10.04.2017 could not be used as a ground to deny the petitioner consideration of his case for promotion to the rank of Assistant Commandant, based on his seniority.

14. Despite directions of this Court issued as early as on 27.09.2012, calling upon the respondents to promote the petitioner as an Inspector with effect from the date on which persons immediately junior to him were promoted, his promotion alongwith all consequential benefits including seniority, was considered only after a period of five years as it took the respondents almost five years to pass an effective order dated 10.04.2017, protecting his seniority. It is thus evident that the respondents have treated the petitioner in a

most unfair manner by not considering him for his next promotion to the rank of Assistant Commandant on 09.08.2016 alongwith his batch-mates, who were already promoted to the said rank in August, 2016 itself, while the petitioner still continues to serve as an Inspector. In these circumstances, we are of the opinion that the petitioner is not only entitled for consideration of his case for promotion to the rank of Assistant Commandant with reference to the vacancy year 2016-17 by a review DPC, but he is also entitled to all the consequential benefits including seniority, arrears and fixation of pay from the same date from which his juniors were promoted, i.e., w.e.f. 26.10.2016.

15. The respondents are directed to convene a Review DPC within six weeks to consider the petitioner for promotion to the rank of Assistant Commandant and in case if he is found fit by the said DPC, promote him to the rank of Assistant Commandant w.e.f. 26.10.2016, along with all consequential benefits including fixation of pay and arrears, which would be released within four weeks thereafter.

16. The writ petition is allowed in the aforesaid terms with costs of Rs.10,000/- imposed on the respondents, payable to the petitioner within four weeks.

(REKHA PALLI) JUDGE

(HIMA KOHLI) JUDGE SEPTEMBER 04, 2018 gm/sr