W.P.(C)/828/2012 of K.ANGAMBOU Vs UOI & ORS.

7*IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 804612011 & CM No. 1010012012

GHAMMAN SINGH ..... PetitionerThrough: Mr. Ankur Chhibber, [Adv.]

VCTSUS

uor AND oRS rhroush: t;: J.:i'if"t'-",?lnu,, oou.

Wtrn

.+ w.P.(c)Lo7l2or2

MAHAVAIR SINGH ..... PetitionerThrough: Mr. Ankur Chhibber, [Adv.]

VCTSUS

UOI AND ORS + W.P.(C) 828120a2

..... ResPondentThrough: Dr. Ashwani Bhardwaj, [Adv.]

AND

K.ANGAMBOU

..... Petitioner

Through: Mr. Ankur Chhibber, [Adv.]

VCTSUS

w.P.(C) Nos.8046/2077, 707, B2B, 7202, 7997, e2-i2C72

pg .I of 72-

UOI & ORS.

..... ResPondent

Through: Dr. Ashwani Bhardwaj, Adv.

w.P.(c) 120212OL2

AND

..... PetitionerJ.DURAI [MURUGAN ]Through: Mr. Ankur Chhibber, Adv.VCTSUSuot AND oRS ..... RespondentThrough: Dr. Ashwani Bhardwaj, Adv.AND+ w.P.(c) L99Ll20t2oKARAM JEET SINGH ..... PetitionerThrough: Mr. Ankur Chhibber, Adv.VCTSUS

'fUOI AND ORS + w.P.(c) B2l20L2

..... RespondentThrough: Ms. Prerna Shah Deo for' Ms. Anjana Gosain, Adv.

AND

RAM NARESH TIWARI ..... PCtitiONCrThrough: Mr. Mr. Ankur Chhibber, Adv.W.P.(C) Nos.8046/2077, 707, 828, 1202, 1997, 82/2072 1202, 1997, 82/2072 1997, 82/2072 82/2072

..... PCtitiONCrThrough: Mr. Mr. Ankur Chhibber, Adv.707, 828, 1202, 1997, 82/2072 1202, 1997, 82/2072 1997, 82/2072 82/2072 pg 2 of 72

VCTSUS

.... ResPondentMr. Sachin Datta,Sachin Datta,Datta,Mr. Ashok Kr. Singh andMr. Dinesh Sharma, Adv. for [R-l]

UOI AND ORS

Through: Mr. Sachin Datta,Sachin Datta,Datta,

CORAM:HON'BLE MS. JUSTICE GITA [MITTAL]HON'BLE MR. JUSTICE J.R. [MIDHA]

ORDERV" 27.O9.2OL2

1. The petitioners by way of [the ][present ][writ ][petitions ][W.P.(C) ][Nos.]BO46I2OI'L, LO7/2OL2;82812012 [and ][720212012 ][have ][assailed ][the ][action]of the respondents in denying [them ][consideration ][for ][promotion from ][the]post of Sub-lnspector to lnspector; in W.P.(C) Nos. [1997120L2 ][from ][the]post of Inspector to Asstt. Comdt. and in W.P.(C) No. [8212012 ][from ][tlre]post of Head Constable to Sub-lnspector in the [Central ][Reserve ][Police]Force [('CRPF'hereafter'). ]The sole [ground ][for ][denying ][promotion ][to ][the]petitioners is that they did not fulfil the mandatory [requirement ][of ][two]years service in duty battalion and have denied [waiver of ][this ][condition.]It is not disputed that the [petitioners ][are ][otherwise ][eligible.]

2. The petitioners seek mandamus [to the ][respondents ][to ][waive ][this]condition and to consider them for such [promotion.]

3. This issue has not arisen before [this court for the ][first ][time. ][This]

pg3of72

W.P.(C) Nos.8046/2077, 707, 828, [7202, 7991, 82/2072]

questionWaSagitatedbypersonswhoWeredeniedpromotionstodifferent [posts ][in ][the ][CRPF ][as ][well ][as Border ][Security ][Force ][prior ][hitherto]writ [petitions ][which resulted ][in adjudication ][in ][favour ][of ][the ][writ]by way of petitioners. In this [regard, ][the ][following ][judgments ][have been relied ][upon]before this [court:-]

The [judgment dated ][27th october, ][2oog ][passed ][iri ][w'P,(C)](i)

No.219OO/2OO5 [Ashok ][Kumar ][vs. ][uol ][& ][ors' ][as ][well ][as ][connected]writ petitions. [In ][this ][writ ][petition, ][the ][court ][was concerned ][with ][a prayer]for mandamus [similar ][as ][that ][sought ][by ][the ][petitioners before ][us so ][far]as the Border [security ][Force ][and central ][Reserve ][Police Force ][is]concerned.

ln this [judgment, the court ][had held ][as ][follows ][:-]

"35. We may note that [in ][all the ][cases, ][the ][authorities ][concerned]i.e. B5F and [GRPF ][have ][recommended ][to ][the ][central ][Government]that the rule [requiring ][two ][years" service ][in the ][duty ][battalion ][be]relaxed due to [the fact ][that ][all of ][a sudden ][a ][quantum ][jump ][in ][tlre]cadrestrengthtookplaceintheyear2oo4,which"WaSnotexpected, [and ][if ][the ][rule ][is strictly ][enforced, ][junior ][officers ][would]steal [promotion ][over ][the ][senior ][officers' ][Unfortunately' ][while]the [power, ][the ][central ][Government ][posed ][the ][wrong]exercising questionbyconsideringtheadequacyorinadequacyofthenumberof officers in [the ][feeder ][channel. ][The ][power ][was ][relaxed ][for ][such]posts where officers [in ][the ][feeder channel ][were ][less, ][denying ][similar]benefit in the [other ][posts. ][The ][correct ][question ][which ][need ][to ][be]

pg4of72

W.P.(C) Nos.8046/2077, [707, ][828, ][7202' ][7997' ][82/2072]

noted [by ][us ][in ][para ][30 ][above; ][the ][backdrop ][in ][which]posed was, as

the [questions needed ][to ][be ][answered ][was ][as ][noted ][in ][WP(C)]22026105 Page [27 ][of ][30 ][para 31 ][above. ][The law ][applicable ][is ][the]one as noted [in paras 32 and 33 above']

36. We may [note ][that ][with ][the ][increase ][in ][posts ][in ][the ][year ][2004]

and knowing [fully ][well ][that the ][continued requirement ][of ][two ][years"]service in [dutv ][battalion would hamper ][the ][promotional ][career ][of]the officers, the [respondents have ][themselves, ][put ][on ][track ][mode']the identification [of ][its ][officers ][in ][various non-duty ][posts ][because]th" ,urpondents [know and ][recoonize ][that ][transferlpostino ][is ][nolj-ll]the hands of the [officers ][but ][is ][a prerooative of ][the ][department ][and]the department [has ][to ][ensure ][that it ][affords ][an ][opportunitv ][to ][all ][its]officerstobecomequaIifiedbyServinoindUtVbattalions.Thisalsothe [fact that the ][sudden change ][in ][situation in ][the ][year]highlights

2OO4,beingunexpected,requiredaproperadministrativeredressal'

37. We accordingly [quash ][the ][decision ][of ][the ][central ][Government]declining to relax [the ][eligibility ][condition ][of two ][years" service ][in ][a]duty battalion for [promotion ][to the ][post ][of ][Inspector and ][2 ][lc ][under]BSF as also the [post of lnspector under ][CRPF'"]

4.Thecourtfina|lyissuedthefollowingmandamus:-

,,38. mandamus iS iSSUed to the central Government to [re-]consider the [issue ][pertaining ][to ][the ][promotions ][to ][the ][posts ][of 2 ][lc]and Inspector [under ][BSF ][and ][the ][post ][of ][lnspector under ][CRPF; ][the]issue being [exercising ][the ][power ][of ][relaxation ][vested ][under ][the]Rules, to be [exercised ][by ][the ][central ][Government' ][while]reconsidering [the ][matter, the ][questions ][framed by ][us ][would ][be kept]in mind while [deciding ][the ][issue ][and ][the ][backdrop ][circumstances]would be kept [in ][mind ][while ][deciding ][the ][issue' ][Needless ][to ][state]the decision of [the ][central ][Government ][would ][be ][reasoned]pg5of72W.P.(C) Nos.8046/2077, [707, ][828, ][7202, ][7997' ][82/2072]consider the [issue ][pertaining ][to ][the ][promotions ][to ][the ][posts ][of 2 ][lc]and Inspector [under ][BSF ][and ][the ][post ][of ][lnspector under ][CRPF; ][the]issue being [exercising ][the ][power ][of ][relaxation ][vested ][under ][the]Rules, to be [exercised ][by ][the ][central ][Government' ][while]reconsidering [the ][matter, the ][questions ][framed by ][us ][would ][be kept]in mind while [deciding ][the ][issue ][and ][the ][backdrop ][circumstances]would be kept [in ][mind ][while ][deciding ][the ][issue' ][Needless ][to ][state]the decision of [the ][central ][Government ][would ][be ][reasoned]pg5of72W.P.(C) Nos.8046/2077, [707, ][828, ][7202, ][7997' ][82/2072]

decision evidencing the apptication of mind with reference to [the]questions and the backdrop circumstances. The decision would betaken within period of weeks from date of receipt of [this]decision in the Ministry of Home Affairs i.e. the Nodal Ministry [of the]Central Government. We further mandate that if the decisiorr [taken]is in favour of the petitioners, they would be [promoted ][with ][effect]from the date, persons [junior ]to the [petitioners ]were [promoted ]andin said eventuality, the petitioners would be entitled to [all]consequential benefits such as seniority, [pay ]fixation and arrears [of]pay."

5. detailed reference to the above decision has been made for [the]jreason that the respondents were fully aware of the adjudication by [this]court inasmuch as the [judgment ]dated 20'n October, 2009 was [not]assailed and stands implemented.reason that the respondents were fully aware of the adjudication by [this]court inasmuch as the [judgment ]dated 20'n October, 2009 was [not]assailed and stands implemented.

(ii) The issue was again agitated before this court by way of W'P.(C)

No.8974/2OOB Vinod Kumar vs. UOI & Ors. wherein the court [was]concerned with similar [prayer ]against the Central Reserve [Police ][Force.]In view of the [judgment ]of 20th October, 2009, therespondents promoted.'gVinod Kumar-the writ [petitioner ]and re-assignedhis seniority. In thismatter, all consequential benefits seeking seniority, next [rank, ][pay ][etc.]were granted to the petitioner with effect from 6tn September, 2007 whichwas the date on which his [juniors ]were [promotec.]

(iii) We find that two more writ petitions bearing no. W,P'(C)

W,P.(C) Nos.8046/2077, 707, 828, 7202, 7997, 82/2012pg 6 of 72-

No.2724/2OLO Virendra Singh Rajput [v. ]uol [& ][ors. ][and ][2433/201"0]Rajesh Kumar v, llOI & Ors, had sought [a ][similar prayer ][against ][the]CRpF. By the decision dated [25th ]October, [2010, placing ][reliance on the]pronouncement in Ashok Kumar [(supra), ]it was again held [that ][tlte]petitioners could not. be denied promotion for the reason that they [had]not served in a,duty battalion and mandamus [was ][issued ][to ][the ][Central]Government in terms of the [judgment ]dated [2Oth ][October, ][2009. ][In ][this]case, mandamus was issued to [reconsider ][the ][case ][of ][the ][petitioners]O after relaxing the eligibility condition of two years service in the dutybattalion and to [pass ]appropriate orders [with ][regard ][to ][the ][promotion]with effect from the date [persons ]immediately [junior ][to ][the ][petitioner]were promoted. lt was directed that in such [eventuality, ][the ][petitioner]would be entitled to consequential benefits [including seniority, ][pay]fixation and arrears of [pay. ]lt is not disputed [before ][us ][that this ][decision]has also not been assailed by the respondents. [On ][the ][contrary, ][the],{iame stands duly implemented

6. So far as the [petitioners ]in the [present ]writ [petitions ][are ][concerned,]the petitioners are aggrieved by the [fact ][that ][their juniors stand ][promoted]and that the respondents have [wrongfully denied ][them ][the ][benefit ][of]promotion from the post of sub-inspector tb inspectors; from inspectors [to]Asstt. Comdt and from Head Constable [to ][Sub-lnspector respectively ][on]w.P.(C) Nos.8046/2017, 707, 828, J.202, 7997, [82/2072]pg7of72

the ground that they [have ][failed ][to fulfil the eligibility ][requirement ][of ][not]having served in [a ][dutY battalion.]

7. tt is also the [grievance ][of ][the ][petitioners ][that ][despite ][the]adjudication by this [court ][as ][back ][as on ][2Oth ][october, 2009 ][and]repeatedly thereafter, the [petitioners have been ][constrained ][to ][approach]this court.

B. For the sake of convenience, [we are hereafter setting out ][the ][writ]petition no., name of the [petitioner, ][date of ][filing the ][writ ][petition ][atrd]date on which [juniors to the ][writ ][petition -stand promoted ][:-]

9. The above tabulation [would ][show ][that ][the ][first writ ][petition out ][of]this batch of six was [filed ][on ][14th ][November,20L! ][after ][the ][respondents]failed to give the benefit [of the ][waiver ][of the ][eligibility ][conditions ][to]Ghamman singh and [clenied ][promotion ][to ][him when ][his ][juniors ][were]w.P.(C) Nos.8046/2077, 707, 828, [7202, ][7gg1, ][82/2b72 ]pg 8 of 72

promoted on 28th September, [2011 ][to ][the ][post ][of ][inspector. ][The ][oth'er]writ petitions have [also been necessitated ][thereafter.]

10. Mr. Datta, learned [Standing ][Counsel ][for ][the ][UOI ][has placed ][reliance]on the [judgment dated ][17th ][Augu st, ][2OI2 ][passed in ][W.P.(C) No.493412012]Shaji. vs. UOI & [Ors. ][to ][strenuously ][urge ][that the ][arrears ][of ][pay ][ought]not to be [granted ]to the [petitioners. ][we ][do ][not ][find ][any principle ][of ][law]laid down in this [judgment. ][The same has ][been ][rendered purely ][in ][the]facts and circumstances [of ][the ][case. ][The ][fact ][that ][this ][writ ][petitioner ][lrad]been [promoted ]to [the ][higher ][post ][was ][the ][circumstance ][which ][had]weighed with the court [in ][denying ][the ][wages. ][lt ][is'not ][so in ][the ][instarrt]CASC.

11. The respondents [have ][not ][only failed ][to ][act in ][accordance ][with ][the]principles laid down by this court [in ][the judgment dated ][27th October,]2009 in Ashok Kumar [(supra) ][and ][the ][specific ][finding ][that,the ][action ][of]the respondents was [unwarranted and ][arbitrary ][but ][the ][respondents ][have]!-also not remedied the [manner ][in ][which ][they ][have acted ][necessitating]filing of these unwarranted [writ ][petitions.]

12. The wastage of [judicial ][time ][which has been ][necessitated ][by ][this]conduct of the respondents [is ][only one aspect of ][the ][matter. ][lt ][cannot ][be]denied that the direct [consequence ][of ][the ][failure ][to ][promote ][tlte]petitioner is that they have not only been [denied ][the ][fruits ][of the]pg 9 of 72-W.P.(C) Nos.8046/2077, [707, ][828, ][1202, ][7997, ][82/2072]

promotion but juniors to them have been [posted ]above them [thereby]resulting in the ignominy to the [petitioners of serving ][under ][their ][juniors.]The same would have certainly caused [much anguish ][to ][the ][petitioners.]There is no defence at all for this action [other ][than ][a ][submission ][that ][the]entire matter is even now [pending ][with ][the ][Ministry of ][Home Affairs.]

13. We are informed by Mr. Sachin [Datta, ][learned Standing ][Counsel, ][Mr.]Rajinder Nischal as well as Dr. [Bhardwaj, ][learned ][counsel ][for ][tlre]respondents that the respondents [have ][now ][formulated ][a ][policy ][on ][2nu]June, [2OI2 ][whereby ][it ][has ][been ][set out ][that in ][case ][a ][person has ][not]been posted to duty battalion, [he would ][be entitled ][to ][waiver ][of ][the]requirement of such [posting in order ][to ][render ][him ][eligible ][for ][promotion]to the next post. This could [have been ][done ][within ][reasonable ][period]of the [judgment ]against the respondents [so ][the ][precious ][judicial ][tinre]would have saved the agony of the [petitioners.]

L4. lt was on consideration of these [aspects ][that ][while ][allowing ][the]Writ Petition [(C) ]No.24271?-01-0 on [25th ]October, [2010 and while ][allowitrg]the writ petition filed by Vinod Kumar [(supra) ][and ][Virendra ][Singh]we had directed the [payment of arrears ][of ][the ][wages ][as]Rajput (supra), well. We see no reaion as to why the [present petitioners ought ][not ][to ][be]granted the same benefit. The petitioners have been [prevented ][from]working at the higher [post ]even though they [were ][willing ][to ][do ][so ][for ][no]W.P.(C) Nos.8046/2077, 707, 828, 7202, 7997, 82/2072pg 70 of 72

fault attributable to [them ][by ][the ][illegal ][and ][arbitrary ][action ][of ][tlte]respondents alone.

15. The writ [petitioner ][Karamjeet ][Singh ][(petitioner ][in ][W'P'(C)]filed the [petition ][on ][9th ][April, ][20L2 ][who ][has been ][denied]No.1991/20l'2) promotion to the post of Asstt. Comdt. [even ][though ][his ][juniors ][were ][so]promoted with effect from January, [2OL2 ][again ][for ][the ][reason ][that ][he ][did]not satisfy the eligibility [condition ][of ][two ][years ][service ][in ][a ][duty battalion']16. W.p.(C) No.B2l2012 [has been ][filed ][by ][HC ][Ram ][Naresh ][Tiwari on ][liu']January, [2OL2 ][aggrieved ][by ][the fact ][that ][though ][his ][juniors ][stood]promoted to the post of sub-lnspector [in ]July, [2011,'he ][has been ][denied]promotion again on the [ground ][that ][he ][failed ][to ][fulfil the ][eligibility]requirement of two [years service in ][a ][duty battalion']

ln view of the above, [it ][is ][directed ][as ][follows ][:-]

(i) The decision of the Central Government [declining ][to ][relax ][the]condition of [two ][years service ][in ][duty ][battalion ][for ][promotion of]eligibility ? tf'u petitioners to the post of Sub-lnspector, [Inspector and ][Head Constable]respectively under the [CRPF ][shall stand ][quashed.]

direction is issued to the Central [Government ][to ][reconsider the](ii) cases of the [petitioners, ][after ][the ][aforenoticed relaxation, and ][to ][pass]if the [decision ][is ][taken in ][their ][favour, ][for ][promotion]appropriate orders, with effect from the date [persons ][immediately ][junior ][to ][the ][petitioners]pg 77 of 72W.P.(C) Nos.8046/2077, [707, ][828, ][7202, 7997,82/2072]

were promoted. ln such eventuality, the [petitioners would ][be entitled]toall consequential benefits including seniority, [pay ]fixation [and ][arrears]ofpay.

(iii) The case of the petitioners shall be forwarded by the'competentauthority to the Ministry of Home Affairs [positively ][within ][period ][of four]weeks from today. The consideration b)' the [Ministry ][of ][Home ][Affairs]shall be communicated to the [petitioners ][within eight ][weeks thereafter.]17. Inasmuch aS we have directed [payment ][of ][arrears ][of ][pay, ][we ][are]making no orders as to costs even though the [petitioners ][deserve ][to ][be]compensated for the litigation [which ][has ][been ][generdted ][by ][the failure ][of]the respondents to act in accordance [with ][law.]

These writ [petitions ]are allowed in the above [terms.]

sr'prrMBER 27, 2cL2Kr

W.P.(C) Nos.8046/2077, 707, 828, 7202, 1997, [82/2072]

pg 12 of .72.