K.Angambou v. UOI & Ors

ORDER V"

27.O9.2OL2

¶1The 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.

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

¶3This issue has not arisen before this court for the first time. This W.P.(C) Nos.8046/2077, 707, 828, 7202, 7991, 82/2072 pg3of72 ,'t x t v\ questionWaSagitatedbypersonswhoWeredeniedpromotionsto different posts in the CRPF as well as Border Security Force prior hitherto by way of writ petitions which resulted in adjudication in favour of the writ petitioners. In this regard, the following judgments have been relied upon before this court:-

(i) The judgment dated 27th october, 2oog passed iri w'P,(C) 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 a 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"WaSnot expected, and if the rule is strictly enforced, junior officers would steal promotion over the senior officers' Unfortunately' while exercising the power, the central Government posed the wrong questionbyconsideringtheadequacyorinadequacyofthenumber of 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 W.P.(C) Nos.8046/2077, 707, 828, 7202' 7997' 82/2072 pg4of72 * 'f," posed was, as noted by us in para 30 above; the backdrop in which 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'

¶36We 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 a 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.Thisalso highlights the fact that the sudden change in situation in the year 2OO4,beingunexpected,requiredaproperadministrativeredressal'

¶37We 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. A 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 a reasoned W.P.(C) Nos.8046/2077, 707, 828, 7202, 7997' 82/2072 pg5of72 f j vy decision evidencing the apptication of mind with reference to the questions and the backdrop circumstances. The decision would be taken within a period of B 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 and in said eventuality, the petitioners would be entitled to all consequential benefits such as seniority, pay fixation and arrears of pay."

¶5A detailed reference to the above decision has been made for the 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 a similar prayer against the Central Reserve Police Force. In view of the judgment of 20th October, 2009, the .'g Vinod Kumar-the writ petitioner and re-assigned respondents promoted his seniority. In this matter, all consequential benefits seeking seniority, next rank, pay etc. were granted to the petitioner with effect from 6tn September, 2007 which was 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, 82/2012 pg 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 a mandamus was issued to the Central Government in terms of the judgment dated 2Oth October, 2009. In this case, a mandamus was issued to reconsider the case of the petitioners O after relaxing the eligibility condition of two years service in the duty battalion 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

¶6So 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 ( vb the ground that they have failed to fulfil the eligibility requirement of not having served in a dutY battalion.

¶7tt 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 :- wiit petition-No. wt20n-L20212012 Name of Petitioner K. Angambou lSurai - batJot titing thE writ oetition 8046t20Lr Ghamman ino h 2011 -trrjanuarlt nL Mahavir Singh 82812012 8th February,

201.2 -27"-February', 20]-2 Karam Jeet g-!-si--- Ram Naresh ilwarl

¶9The 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 I I I --l-r,reii p;o-m otion I I-l-to ttrb-post of llnspector I to ttrc post of llnsoector -l ro tn-o pos-tof-- llnsoector ' I to the post of llnspector I r^ fh6 nnci'nf 9b April, 2012 !- promoted on 28th September, 2011 to the post of inspector. The oth'er writ petitions have also been necessitated thereafter.

¶10Mr. 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. A 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.

¶11The 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.

¶12The 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 W.P.(C) Nos.8046/2077, 707, 828, 1202, 7997, 82/2072 pg 9 of 72- ? 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.

¶13We 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 a 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 a 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 a 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 Rajput (supra), we had directed the payment of arrears of the wages as 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, 82/2072 pg 70 of 72 fault attributable to them by the illegal and arbitrary action of tlte respondents alone.

¶15The writ petitioner Karamjeet Singh (petitioner in W'P'(C) No.1991/20l'2) filed the petition on 9th April, 20L2 who has been denied 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'

¶16W.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 eligibility condition of two years service in duty battalion for promotion of ? tf'u petitioners to the post of Sub-lnspector, Inspector and Head Constable respectively under the CRPF shall stand quashed.

(ii) A direction is issued to the Central Government to reconsider the cases of the petitioners, after the aforenoticed relaxation, and to pass appropriate orders, if the decision is taken in their favour, for promotion with effect from the date persons immediately junior to the petitioners W.P.(C) Nos.8046/2077, 707, 828, 7202, 7997,82/2072 pg 77 of 72 were promoted. ln such eventuality, the petitioners would be entitled all consequential benefits including seniority, pay fixation and arrears pay.

(iii) The case of the petitioners shall be forwarded by the'competent authority to the Ministry of Home Affairs positively within a period of four weeks from today. The consideration b)' the Ministry of Home Affairs shall be communicated to the petitioners within eight weeks thereafter.

¶17Inasmuch 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, 2cL2 Kr W.P.(C) Nos.8046/2077, 707, 828, 7202, 1997, 82/2072 pg 12 of .72. to of o

\r $- 7*IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 804612011 & CM No. 1010012012 GHAMMAN SINGH ..... Petitioner Through: Mr. Ankur Chhibber, Adv. VCTSUS a uor AND oRS rhroush: t;: J.:i'if"t'-",?lnu,, oou. Wtrn .+ w.P.(c)Lo7l2or2 i* MAHAVAIR SINGH ..... Petitioner Through: Mr. Ankur Chhibber, Adv. VCTSUS UOI AND ORS ..... ResPondent Through: Dr. Ashwani Bhardwaj, Adv. AND + W.P.(C) 828120a2 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- ; t t? UOI & ORS. ..... ResPondent Through: Dr. Ashwani Bhardwaj, Adv. AND + w.P.(c) 120212OL2 J.DURAI MURUGAN ..... Petitioner Through: Mr. Ankur Chhibber, Adv. VCTSUS T uot AND oRS ..... Respondent Through: Dr. Ashwani Bhardwaj, Adv. AND + w.P.(c) L99Ll20t2 o KARAM JEET SINGH ..... Petitioner Through: Mr. Ankur Chhibber, Adv. VCTSUS 'f UOI AND ORS ..... Respondent Through: Ms. Prerna Shah Deo for ' Ms. Anjana Gosain, Adv. AND + w.P.(c) B2l20L2 RAM NARESH TIWARI ..... PCtitiONCr Through: Mr. Ankur Chhibber, Adv. W.P.(C) Nos.8046/2077, 707, 828, 1202, 1997, 82/2072 pg 2 of 72 , VCTSUS UOI AND ORS .... ResPondent Through: Mr. Sachin Datta, Mr. Ashok Kr. Singh and Mr. Dinesh Sharma, Adv. for R-l CORAM: HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA