Delhi High Court
Rakesh Kumar vs Union Of India And Ors. on 18 July, 2024
Author: Rekha Palli
Bench: Rekha Palli
$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 18.07.2024
+ W.P.(C) 5538/2019
RAKESH KUMAR .....Petitioner
Through: Mr. Manoj Joshi with Ms. Richa
Sharma, Advs.
versus
UNION OF INDIA AND ORS. .....Respondents
Through: Mr. K.K. Jha, SPC with Mr. Jitendra
Kumar Tripathi, GP with Mr. Saurabh
Jha, Mr. Avinash Singh with Mr.
Rahul Jha, Advs. for UOI.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
HON'BLE MS. JUSTICE SHALINDER KAUR
JUDGMENT
REKHA PALLI, J (ORAL)
1. The petitioner who is working as a Sub-Inspector (Executive) in the
Central Industrial Security Force [CISF] has approached this Court by way
of present writ petition filed under Article 226 of the Constitution of India
seeking the following relief:-
"i) allow the present Writ Petition;
(ii) issue a writ of certiorari for quashing the impugned promotion order
dated 04-09-2018 passed by the respondent No. 4, whereby junior to the
applicant were promoted and not given the promotion to the applicant;
(iii) A writ of certiorari for quashing the impugned letter dated 24-10-2018
passed by the respondent No.4 and letter dated 27-10-2018 passed by the
respondent No. 5 whereby informed that as per rule petitioner not having
six years experience for promotion of the post of Sub Inspector from the post
of Assistant Sub Inspector;
(iv) A writ of mandamus directing the respondents to count the experience
of Petitioner from the dated junior person was appointed;
(v) A writ of mandamus directing respondents to promote the Petitioner
w.e.f. promotion of just junior to applicant on the post of Sub Inspector;
(vi) A writ of mandamus directing the respondents to all the consequential
benefits alongwith interest of 24% per annum."
2. We may at the outset note that though the petitioner already stands
promoted as Sub Inspector (Executive)/SI during the pendency of the
present petition and has sought a number of reliefs in the present petition,
his primary grievance is that he ought to have been promoted to the said post
w.e.f. 04.09.2018, when persons junior to him in the seniority list of ASI
were promoted as SI (Exe.).
3. As per the factual matrix emerging from the record, we find that upon
an advertisement being issued for recruitment to the post of ASI in the
CAPFs in the year 2011, the petitioner applied and based upon the exam
conducted by the Staff Selection Commission his name was included in the
merit list. Consequently, he was issued an offer of appointment on
21.05.2012 which was on account of his having been earlier involved in a
criminal case withdrawn on 13.08.2012 and thereafter cancelled on
13.03.2013.
4. Since the petitioner had already been acquitted in the criminal case
much before the recruitment process commenced, he approached the Punjab
and Haryana High Court at Chandigarh by way of Civil Writ No.
11422/2013 which was allowed on 13.10.2014 by directing the respondents
to appoint him as an ASI along with all consequential service benefits on
notional basis albeit without any arrears of salary.
5. As a consequence, the petitioner was in compliance with this decision
of the Punjab and Haryana High Court appointed as an ASI (Exe.) on
15.01.2015 and was granted his rightful seniority from the same date when
other candidates selected for the post of ASI were appointed i.e.,
21.05.2012. Resultantly, the petitioner who was entitled to get notional
seniority w.e.f. 21.05.2012 was placed at serial No. 16971-A in the seniority
list of ASIs with ASI Alvina Raleng in the ST category being placed at
serial no. 16974 and ASI Santosh Kumar in the general category being
placed at serial no. 16976. Taking into account that six years service was
required for promotion from the rank of ASI (Exe.) to SI (Exe.), the
respondents on 04.09.2018 issued an order promoting 1269 ASIs (Exe.) to
the rank of SI (Exe.) w.e.f. 11.09.2018. This list, however, did not include
the petitioner's name leading to the filing of the present petition.
6. Learned counsel for the petitioner submits that even though the
respondents had in accordance with the directions issued by the Punjab and
Haryana High Court granted notional seniority to the petitioner as an ASI by
rightly placing him, as per his merit position, above ASI Santosh Kumar.
However, at the time of consideration for promotion to the post of Sub
Inspector the respondents ignored him on the premise that he had not
completed six years of regular service as an Assistant Sub Inspector. Once
the Punjab and Haryana High Court had specifically directed the
respondents to grant notional seniority to the petitioner, its effect thereof
would be that the petitioner had to be treated as an ASI for all the purposes
with effect from the same date i.e., 21.05.2012 the date on which other
candidates selected along with him in the selection process were appointed.
He, therefore, prays that the writ petition be allowed and the respondents be
directed to promote him as SI(Exe.) w.e.f. 11.09.2018 itself.
7. On the other hand, Mr. Jha, learned counsel appearing on behalf of
the respondents seeks to support the impugned promotion order dated
04.09.2018 by urging that since the petitioner had not put in six years of
actual service as an ASI in September, 2018, the respondents were justified
in denying him promotion to the rank of SI when other ASIs placed in the
same seniority list as him were promoted. Further, the petitioner after
completing six years of service with reference to his date of joining i.e,
15.01.2015, already stands promoted as SI during the pendency of the
petition and therefore the writ petition itself is rendered infructuous. After
some arguments, he concedes that the decision of the Punjab and Haryana
High Court specifically directed the respondents to grant the petitioner
notional seniority as an ASI w.e.f. the date, persons selected in the same
selection process were granted seniority. He also does not deny that the said
decision has attained finality.
8. Having considered the submissions of learned counsel for the parties
and perused the record, we are of the view that the petitioner is correct in
urging that once it was directed by the Court that he was entitled to be
granted notional seniority as an ASI w.e.f. the date persons selected with
him were granted seniority. The effect of the directions issued by Punjab &
Haryana High Court on 13.10.2014 therefore would be that the petitioner
will, for all intents and purposes except for back wages, be treated as having
been appointed as an ASI w.e.f. 21.05.2012 itself. Once the respondents
implemented the aforesaid order dated 13.10.2014 by placing the petitioner
at his rightful position in the seniority list of ASIs, they could not take the
plea that since he actually joined service on 15.01.2015, his service for the
purposes of consideration for promotion could be reckoned from the said
date. In our considered opinion, if this plea were to be accepted, it would
amount to negating the very relief of notional seniority as an ASI which the
Punjab & Haryana High Court granted to him.
9. In the light of the aforesaid, once it is the respondents' own case that
the petitioner was on 04.09.2018 fulfilling all other promotional criteria, the
petitioner was undoubtedly entitled to be promoted as SI (Exe.) w.e.f.
11.09.2018. The writ petition is, accordingly, allowed by directing the
respondents to grant notional promotion to the petitioner as an SI (Exe.)
along with pay fixation w.e.f 11.09.2018 when persons similarly situated
including ASI Santosh Kumar who was placed lower in the seniority list of
ASIs, were granted promotion as an SI. We, however, make it clear that
though the petitioner's seniority as an SI will be reckoned w.e.f. 04.09.2018
as against the date on which he was later promoted, he will not be entitled to
any arrears of pay on this ground.
10. The writ petition is, accordingly, disposed of in the aforesaid terms.
(REKHA PALLI)
JUDGE
(SHALINDER KAUR)
JUDGE
JULY 18, 2024
SU
