D.S. RATHORE Vs. UNION OF INDIA

JUDGEMENT

(1.) By this writ petition, the petitioner - Dy. Commandant, presently working as Commandant in BSF has prayed that he ought to have been promoted to the Rank of Second-in-Command with effect from 16.1.1995, the date when his junior persons were promoted as such as his service career has been throughout unblemished and appreciated by various higher authorities and adverse entry for the year 1991-92 was since expunged by the competent authorities, therefore, there was no impediment in the way of his promotion to the post of Second-in-Command with effect from the aforesaid date on 16.1.1995. The petitioner was so promoted to the post of Second-in- Command later on by the DPC held on 29.9.1997. Therefore, the question is only whether he ought to have been promoted with effect from the date on 16.1.1995 when his juniors were so promoted.

(2.) Mr. K.K. Shah, learned counsel appearing for the petitioner vehemently submitted that the appreciation certificates given by the higher authorities of BSF in favour of the petitioner, copies of which have been placed on record as Annex.1 to 5 indicate that the petitioner has performed excellently in the BSF and has not only done exceptional hard work and devotion of duty in Gurdaspur (Punjab) at the time of terrorism in Punjab, but has also done excellent performance in an armed encounter with extremists on 23.8.1987 during such extremism and refusal to promote the petitioner to the post of Second-in-Command w.e.f. 16.1.1995 is absolutely wrong. Mr. Shah submitted that following adverse remarks for the year 1991-92 communicated to him vide Annex.9 dated 24.8.1993 was expunged in two phases. The adverse remarks read as under:

(3.) Drawing the attention of the Court towards Annex.11 dated 14.5.1996, he submitted that adverse remarks to the extent of words "... He needs a tough handler" were deleted upon his representation and later on the remaining part of the aforesaid adverse remarks were also expunged vide Annex.15 dated 14.10.1998. Mr. Shah, therefore, urged, relying upon the various decisions of the Honourable Supreme Court in the case of Dev Dutt Vs. Union of India, reported in (2008) (3) SCC (L & S) 771 , Gopi Chand Vs. State of U.P. and anr., reported in (2006) SCC (L & S) 1976 and Indian Institute of Technology and anr. Vs. Paras Nath Tiwari and ors., reported in (2006) SCC (L & S) 1977 and judgment of this Court in the case of Satyamani Tiwari Vs. State of Rajasthan, S.B. Civil Writ Petition No. 2878 of 2003 decided on 11.8.2006 submitted that there was no reason to deny the promotion to the post of Second-in-Command to the petitioner w.e.f. 16.1.1995 when his juniors were so promoted to the said post and with the expunction of the adverse remarks as aforesaid, the petitioner became entitled to the benefit of promotion with retrospective date.