Shri Binoy Chettri vs . Union Of India & Ors.
2022 Latest Caselaw 489 Meg

 Serial No. 19
 Regular List
                        HIGH COURT OF MEGHALAYA
                              AT SHILLONG

WP(C) No. 312 of 2020
                                           Date of Decision: 30.08.2022

Shri Binoy Chettri                   Vs.       Union of India & Ors.

Coram:
                 Hon'ble Mr. Justice H. S. Thangkhiew, Judge


Appearance:
For the Petitioner(s)        :    Mr. S.P. Mahanta, Sr. Adv. with
                                  Mr. M. Lyngdoh, Adv.

For the Respondent(s)        :    Dr. N. Mozika, ASG with

Ms. T. Sutnga, Adv.

i)    Whether approved for reporting in                      Yes/No
      Law journals etc:

ii)   Whether approved for publication                       Yes/No
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                     JUDGMENT AND ORDER (ORAL)

1. The brief facts of the case is that the petitioner on the earlier

occasion had approached this Court against the findings of a Court of

Inquiry by which he has been imposed with two penalties namely,

recovery from his pay as the pecuniary loss allegedly caused to the

respondents and penalty of censure for the same offence.

2. This Court by the order dated 14.03.2011 while discussing

the entire matter, set aside the order impugned therein and directed that

the petitioner was entitled to be considered for promotion from the date

at par with his colleagues. The said order dated 14.03.2011 was taken on

appeal by way of WA (SH) No. 29 of 2011, and by the order dated

29.08.2011 the same was dismissed as being devoid of merits.

3. Thereafter, the respondents against the said order, preferred

an SLP before the Hon'ble Supreme Court which by the order dated

11.01.2013, dismissed the SLP, however with liberty granted to the

respondents to file a review petition before the High Court, which was

accordingly done so by a Review Petition being No. 8 of 2014.

4. The Review Petition was then disposed of on 02.12.2014

with the imposition of cost of Rs. 2000/- only. The operative part of the

order at Para-16 is extracted herein below:-

"16. For the foregoing reasons, this Court is of the considered view that the present review petition, which is in disguise of an appeal against the judgment and order of the learned Single Judge dated 14.03.2011 passed in WP(C) No. (SH) 288/2008, for rehearing of the Writ Appeal No. (SH) 29/2011 by reviewing the final judgment and order of the Division Bench dated 29.08.2011 passed in WA No. (SH) 29/2011 is devoid of merit and also that

there is no error apparent on the face of the judgment and order dated 29.08.2011 passed in WA No. (SH) 29/2011. Accordingly, the present review petition is dismissed and a cost of Rs. 2000/- only is imposed to the review petitioners for abusing the process of law. The said cost of Rs. 2000/- only should be deposited in the Registry of this Court within a period of two weeks and the Registry shall deposit the said amount in the fund of the Shillong Bar Association for using the same in extending legal aid to the economically disabled persons of the State of Meghalaya."

5. It appears that thereafter, the respondents still pursued with

the matter by preferring another SLP, which came to be dismissed on

14.12.2015.

6. After this entire odyssey of litigation, finally by order dated

20.10.2017 (Annexue-5 of the writ petition), the seniority of the

petitioner was re-assigned and he was accorded promotion on

22.07.2006, to Assistant Commandant and thereafter to the post of Dy.

Commandant w.e.f. 31.12.2012. It is also noted that the petitioner was

allowed all the financial benefits with the retrospective promotion, which

was in compliance with the order of the Court.

7. By the instant writ petition, however the petitioner is still

aggrieved with the non-release of the entire financial benefits that have

accrued to him, after the order of this Court had wiped the slate clean

with regard to the findings of the Court of Inquiry. It is also contended

that the order dated 14.03.2011 had categorically indicated that in the

consideration of his promotion, the two minor penalties inflicted upon

the petitioner were to be disregarded.

8. The prayer in the present writ petition is to grant the

petitioner the arrears of NFSG (Non Functional Selection Grade) for the

period from 01.01.2014 to 21.05.2017, and NFFU (Non Functional

Financial Upgradation), with retrospective effect as has been done in

case of the petitioner's batch-mates i.e. w.e.f. 01.04.2011, which would

have accrued to him, if he had been brought on the promotion list in the

normal course as he rightfully deserved.

9. Mr. S.P. Mahanta, learned Senior counsel assisted by Mr. M.

Lyngdoh, learned counsel for the petitioner submits that the writ

petitioner is compelled to approach this Court, as though several service

benefits have since been released to the petitioner, what remains as noted

is the NFSG for the period from 01.01.2014 to 21.05.2017, and NFFU

w.e.f. 01.04.2011, for which he had already been given retrospective

promotion as Assistant Commandant and Dy. Commandant.

10. Dr. N. Mozika, learned ASG assisted by Ms. T. Sutnga,

learned counsel for the respondents in reply to the submissions and facts

of the case, has submitted that the non-release of said arrears was due to

the fact that the penalty of censure still stands, as such the petitioner was

not entitled to the arrears under these Heads, coupled with the fact that

he has not served against the posts on the said dates.

11. I have heard the learned counsels for the parties and

examined the materials on records.

12. To cut the entire matter short, it is to be noted that the initial

order dated 14.03.2011 passed in WP(C) No. 288 (SH) of 2008, whereby

the petitioner had been granted full relief was subjected to WA No. 29

(SH) of 2011, 2(two) SLPs and a Review Petition by the respondents

unsuccessfully. This has more than cemented the said order even as on

today, the last leg of litigation. The said order dated 14.03.2011, the

operative part which is reproduced hereinbelow, has wiped the slate

clean, with regard to the Court of Inquiry against the petitioner and

accorded retrospective promotion from the date of similar situated

officers.

"After the first impugned order dated 3.9.2005 (Annexure- 2 to the writ petition), the petitioner could not have been taken up by a departmental proceeding on the same set of charge and thereafter, to be imposed with penalty of censure, on the ground mentioned above. Consequently, the said order dated 7.5.2008 (Annexure-6 to the writ petition), in my considered view, is also not sustainable.

The case of the petitioner for promotion to the rank of Deputy Commandant was kept under sealed cover due to

the aforesaid proceeding under Rule 16 of the CCS (CCA) Rules. It is the contention of the respondents that since the petitioner has been imposed with penalty of censure, the sealed cover procedure adopted in his case has become infructuous as the same could not be acted upon in view of the said penalty. However, the petitioner in his affidavit- in-reply states that two officers similarly circumstanced namely, Shri K.A. Ningam Deputy Commandant and Shri V.K. Rawat, Assistant Commandant, who were also made liable for purported irregularity in the said repairing job and thereafter, imposed with penalty of recovery and were also imposed with penalty of censure like that of the petitioner, have been promoted by opening the sealed cover.

Irrespective of the aforesaid position, the case of the petitioner is now required to be considered in view of the interference with the aforesaid impugned orders applying the same parameters and yardstick that was applied while considering the case of others.

........Whatever may be the due date of promotion, the respondents will now have to consider the case of the petitioner for promotion to the post of Deputy Commandant without taking into account the aforesaid two penalty orders."

13. As such, there being no further cause for deliberation or any

fresh cause of action or circumstances to deny the entitlement of the writ

petitioner to the arrears of NFSG (Non Functional Selection Grade) for

the period from 01.01.2014 to 21.05.2017, and NFFU (Non Functional

Financial Upgradation), with retrospective effect as has been done in

case of the petitioner's batch-mates i.e. w.e.f. 01.04.2011, this writ

petition is allowed and the respondents are directed to expedite and

complete the release of the said amount to the petitioner preferably

within a period of 4(four) months from the date of receipt of a certified

copy of this order.

14. The writ petition is accordingly disposed of.

JUDGE

Meghalaya 30.08.2022 "V. Lyndem-PS"