VED PRAKASH Vs. UNION OF INDIA AND ANR.

JUDGEMENT

(1.) The petitioner was appointed as a Constable in the Central Industrial Security Force (for short 'CISF') in the year 1970. The petitioner claims that he worked honestly and sincerely to the satisfaction of all concerned and was promoted to the rank of Inspector in the year 1981. Being a member of the force, the petitioner is governed by the provisions of the CISF Act and the Rules framed thereunder. On 26.1.1989, the petitioner was posted at CISF Unit at DAE, Kalpakkam. On 2/4-12-1989 the respondent no.2 promoted the petitioner to the post of Assistant Commandant in the CISF. It was stated in the said order that the order of promotion would be given effect to, subject to the Departmental Enquiry pending against the petitioner. It is further the case of the petitioner that on the date of passing of the order of promotion, neither any departmental enquiry was pending against the petitioner nor any show cause notice was issued to him. However, after passing of the order of promotion on 6.12.1989, the petitioner was served with a memorandum of charge dated 5.12.1989, to which the petitioner submitted a detailed explanation on 13.12.1989 denying the article of charges. Without taking into consideration the case put forward by the petitioner, an order dated 30.12.1989 was passed imposing a punishment upon the petitioner that his promotion be withheld for a period of one year with effect from 30.12.1989. The petitioner preferred an appeal against the said order to the prescribed authority, which was partially accepted by the authority vide its order dated 5.2.1990 wherein the period in the order of punishment was modified to the extent that the period of 'withholding the promotion' was reduced from one year to 9 months.

(2.) Though the punishment awarded to the petitioner was for withholding promotion of the petitioner for a period of 9 months with effect from 30.12.1989, which expired on 30.9.1990, but still the petitioner was not promoted for the reasons best known to respondent no.2. Vide an order dated 18.9.1990, it was directed that the petitioner would be considered afresh by the DPC for promotion to the post of Asst. Commandant as and when convened. By another order dated 5.12.1990, the petitioner's promotion was cancelled, though no reasons for cancellation of the promotion of the petitioner was mentioned in the said order. It is submitted that probably the 'sealed cover procedure' had been followed as per OM NO. 22011/2/86.Estt.(A) dated 12.1.1988 and those principles were applied to the case of the petitioner. Aggrieved from the action of the respondents, the petitioner filed a Civil Writ Petition being CWP No. 18574/1990 in the Madras High Court, which was dismissed by the said Court vide its order dated 17.11.1994, as having become infructuous. The Special Leave Petitions filed against the said order were dismissed by the Supreme Court vide order dated 10.7.2002. It is the case of the petitioner that he is entitled to be promoted to the post of Asst. Commandant on or immediately after 30.9.1990 i.e. after the period of punishment of withholding the promotion of the petitioner, i.e. 9 months, had expired. It is further stated that the Respondent no.2, in an arbitrary and discriminatory manner granted promotion to him to the post of Asst. Commandant only with effect from 17.11.1994 i.e. after a period of 5 years. Against this action of the respondents, the petitioner made a representation dated 6.2.1995 and he received a communication on 6.5.1997 that the same was rejected. This resulted in filing of the present writ petition.

(3.) The facts averred in the writ petition are not really in dispute, but the stand of the respondents in the counter affidavit filed by them is that vide order dated 18.9.1990, the authorities had directed the case of the petitioner to be considered by a subsequent DPC as his order of promotion was cancelled vide order dated 5.12.1990. It is stated that the petitioner was considered for promotion from the date of expiry of his punishment, but could not be promoted till 1993 due to his low merit position. According to the respondents, the order of cancellation dated 5.12.1990 was considered by the Hon'ble High Court of Judicature at Madras and as such the petitioner cannot question the correctness or validity of the said order in the present writ petition. It is admitted that in the DPC meeting held under the aegis of UPSC on 27.7.1989, the petitioner was empanelled for promotion to the rank of Asstt. Commandant on regular basis against the vacancies of 1988. The recommendations of the DPC were approved by the competent authority and transfer of the petitioner on promotion was issued vide order dated 4.12.1989. However, before the petitioner could take over the charge of the promoted post, he was served with charge sheet dated 6.12.1989 which resulted in passing of the order of punishment dated 30.12.1989, as modified by the Appellate Authority vide order dated 5.2.1990. Upon serving the order of punishment, the petitioner came under the purview of para 7 of the memorandum dated 12.1.1988. Accordingly, the case of the petitioner was placed in a 'sealed cover' by the DPC and the DIG/DAE vide his letter dated 18.9.1990 informed the Commandant of the petitioner's unit that the case of the petitioner would be considered afresh by the DPC as and when convened for promotion. In light of these circumstances and while relying upon the relevant clauses of the OM NO. 22011/2/86.Estt.(A) dated 12.1.1988, the petitioner could not have been promoted earlier than 15.12.1994. Therefore, according to the respondents, the petitioner's writ petition is liable to be dismissed.