Allahabad High Court
Force No. 937040966 Ram Charan Singh vs Union Of India And 6 Others on 8 January, 2019
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 3 Case :- WRIT - A No. - 31182 of 2014 Petitioner :- Force No. 937040966 Ram Charan Singh Respondent :- Union Of India And 6 Others Counsel for Petitioner :- Dinesh Kumar Maurya,Dharmendra Kumar Singh Counsel for Respondent :- A.S.G.I.,S.C.,Sandeep Saxena,Santosh Kumar Shukla Hon'ble Ajay Bhanot,J.
Heard Sri Dinesh Kumar Maurya, learned counsel assisted by Sri Dharmendra Kumar Singh, learned counsel for the petitioner and Dr. Santosh Kumar Shukla, learned counsel for the respondents No.1 to 7.
By the order dated 19.07.2012 passed by the respondent No.4, the claim of the petitioner for seniority benefits, promotion to the post of Inspector GD from the date his immediate junior was promoted and grant of backwages/salary of the promotional post in the relevant period has been rejected. The same reasons for invalidating the claim of the seniority and promotion made by the petitioner have been reiterated in the order dated 28.07.2012.
The petitioner thus aggrieved, has assailed the order dated 19.07.2012 passed by the respondent No.4 and the consequential order dated 28.07.2012 passed by the respondent No.6 declining the prayer of the petitioner for the benefits of the seniority, promotion from the date of his immediate junior was promoted to the post of Inspector GD and grant of backwages/salary for the promotional post in the relevant period in this writ petition.
The petitioner has sought further relief for grant of promotion to the post of Inspector GD with effect from 04.07.2008, i.e., the date when his immediate junior in the seniority list was promoted to the post of Inspector in the respondent-Indo-Tibetan Border Police (ITBP). The prayer for all consequential service benefits including back-wages/salary for the post of Inspector GD for the period such salary was denied is also made in the instant writ petition.
Learned counsel for the petitioner contends that the impugned orders have been passed in the teeth of the standing order no.1/92 dated 22.7.1992. The petitioner has been arbitrarily denied promotion and seniority to the post of Inspector GD & the backwages/salary for the promotional post in the relevant period. It is also submitted that the Standing Order No.01/92 dated 22.07.1992, insofar as it denies back-wages/salary of the promotional post is bad in law and cannot apply to the case of the petitioner.
Sri Santosh Kumar Shukla, learned counsel for the respondents submits that the orders assailed in the writ petition have been passed in the light of the standing order no.1/92.
Heard learned counsel for the parties.
The petitioner was appointed as a Head Constable GD in the respondent-ITBP on 16.08.1993. In due course he was promoted to the rank of Sub-Inspector GD.
The petitioner was nominated for foreign posting and directed to proceed for deployment as part of the ITBP contingent in the BRO project Zaranj, Afghanistan in December, 2007. The petitioner upon receipt of movement orders was relieved by his parent Battalion and directed to proceed to the transiting camp for onward movement to Afghanistan.
The petitioner in obedience of the command of his superiors reported to Delhi for pre-formalities and training on 12.01.2008. The petitioner attended at the ITBP, Tigri Camp, New Delhi on 14.01.2008 for deployment in Zaranj, Afghanistan. The name of the petitioner figured in the list of ITBP personnel being deployed at BRO project Zaranj, Afghanistan.
While the procedures and formalities for actual physical deployment in Afghanistan were being done at New Delhi, the name of the petitioner was short listed for the 52nd Battalion SO TAC course.
The SO TAC course is a promotional course for promotion of Sub-Inspectors to the rank of Inspectors GD.
The petitioner was asked his willingness to attend the course by message no.7378 dated 29.01.2008. The petitioner had already been made part of the contingent which was being deployed in Afghanistan. Consequently he gave his unwillingness to attend the course.
Clearly, unwillingness of the petitioner to attend the SO TAC course resulted from compulsion of service conditions and commitment to another assignment in the line of duty. The unwillingness was not on account of any other consideration or with a view to shirk responsibility. The unwillingness was not a voluntary option, but in the facts almost a fait accompli, created by the orders of superior authorities which the petitioner was bound to obey.
The 52nd Battalion SO TAC course, in the meantime, commenced with effect from 07.04.2008.
However, by order dated 15.04.2008 the physical deployment of ITBP contingent at BRO Project in Zaranj, Afghanistan was cancelled. The personnel who were in the process of being deployed in ITBP contingent at Zaranj, Afghanistan were required to report to their parent formations immediately. The communication dated 15.04.2008 being relevant to the controversy is being extracted in extenso:
"ADIG (OPS & INT) IO:-901 Dated 15.04.2008 IEG replacement of the ITBP contingent deployed at BRO Project Zaranj in Afghanistan in view of BRO Project Zaranj Lilely to be completed by July, 2008. The replacement of contingent at BRO Project Zaranj has been cancelled. Accordingly, all the forty one (41) personnel as per list enclosed at appendix "A" be directed to report to their respective units with immediate effect.
All the personnel be apprised that they will be considered for deployment in foreign mission in the next first available opportunity and the panel in respect of these personnel shall remain valid as they are senior to those personnel who have since been inducted to CONGC/CGI Jalalabad and Kandhar.
This has the approval of DG ITBP.
Official passport of all these personnel be deposited and send to DTE General. Movement order be issued accordingly under intimation to DTE General and concerned units.
Sd/-
15.04.2008 (P.K. Dhasmana) ADIG (OPS & INT)"
After receiving the said orders the petitioner made a representation to the competent authority to permit him to join SO TAC course, which was already underway. The request of the petitioner was not acceded to. Consequently, juniors to the petitioner in the seniority list were promoted over the petitioner. Such juniors permanently stole a march over the petitioner in the year 2008.
Later on, the petitioner was provided an opportunity to attend the SO TAC course in the year 2010-11 which he duly availed. The petitioner was promoted to the rank of Inspector GD in 2011.
However, the loss of seniority and denial service benefits inflicted on him in 2008 is a recurring loss with cascading effects. The petitioner continues to suffer the adverse consequences.
A promotional avenue creates an opportunity of self advancement for an employee. Existence of prospects of promotion creates a quest of excellence and self fulfillment in the employees. This in turn ensures highest levels of efficiency and a better morale of the employees. On the other hand, absence of avenue of promotions creates stagnation. Such stagnation leads to a self reinforcing downward spiral of low morale and decreasing efficiency among the employees. Over the years employers have looked at the promotion policies in the above perspective.
Employers have endeavoured to create opportunities of promotion and avoid possibilities of stagnation, even when promotional posts are not available. The concept of grant of time bound promotional pay scale has been introduced by many employers. Methodology is different but the larger purpose remains the same.
The right of an employee to be promoted has to be considered in the above said perspective by any employer. Service law jurisprudence has also analyzed the concept of promotion and the nature of the right to promotion.
While adverting to the nature and scope of the right to promotion in the case of Union of India Vs. Sangram Keshari Nayak, reported in (2007) 6 SCC 704, the Hon'ble Supreme Court opined that the right to be considered for promotion would be meaningful, if it brings within its purview and effective, purposeful and meaningful consideration. The Hon'ble Supreme Court laid down the law in the case of Sangram Keshari Nayak (supra) in the following terms:
"Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefore. Indisputably, the DPC recommended the case of the respondent for promotion. On the day on which, it is accepted at the bar, the DPC held its meeting, no vigilance enquiry was pending. No decision was also taken by the employer that a departmental proceeding should be initiated against him."
In the light of the law laid down by Hon'ble the Supreme Court, the petitioner clearly has right to be considered for promotion in the correct light of the standing order No.01/92 dated 22.07.1992.
The right to be considered for promotion would have no meaning in case the consideration of the claim for promotion is not made with the correct understanding of the standing order No.01/92. This is of paramount importance.
Considering the strenuous nature of conditions of service in the force, the Director General of ITBP issued a standing order No.01/92 dated 22.7.1992 to protect the seniority and promotional prospects from any adverse consequences due to exigencies of service. This applies to individuals who are unable to attend promotional courses due to such exigencies. The standing order being relevant to the controversy is being extracted hereunder for ease of reference:
सं०1-19014/7/91/स्था-व/ महानिदेशालय भारत-तिब्बत सीमा पुलिस गृह मंत्रालय/ भारत सरकार खण्ड-2, केंद्रीय कर्यालय परिसर लोदी रोड, नई दिल्ली-03 दिनांक 22.07.1992 स्थायी आदेश 01/92 विषयः बल के वर्दीधारी कार्मिको की वरिष्ठता का संरक्षण।
यह देखा गया है कि बल कार्मिकों के नियंत्रण से बाहर परिस्थितियों के परिणामस्वरूप, बल की अपरिहार्य वचनबद्धताओं के कारण, कई बार वे अपनी वरिष्ठता/बारी के अनुसार पदोन्नति कोर्स करने या पदोन्नति परीक्षा में भाग लेने में असमर्थ होते हैं। महानिदेशालय में इसके लिए एकसमान नीति निर्धारित करने का प्रश्न कुछ समय से ध्यान आकर्षित कर रहा है।
2. इस मामले की सावधानीपूर्वक जांच-पड़ताल करने के पश्चात, यह निर्णय लिया गया है कि जो कार्मिक अन्यथा योग्य हैं परंतु बल की निम्नलिखित वचनबद्धताओं में अपरिहार्य शामिल होने के कारण अपेक्षित पदोन्नति कोर्स में नहीं भेजे जा सके या पदोन्नति परीक्षा में भाग नहीं ले सके, उनकी वरिष्ठता संरक्षित की जाएगी बशर्ते वे संबंधित पदोन्नति कोर्स/पदोन्नति परीक्षा में प्रयास में अर्हता प्राप्त कर ले। उन्हें अपनी वरिष्ठता के दावे की अनुमति उस तारिख से दी जाएगी जिससे उनके कनिष्ठ पदोन्नत हुए है। तथापि, उन्हें नए पद का कार्यभार ग्रहण करने की तारीख से ही वित्तीय लाभ प्राप्त होंगे।
(क) बल स्तर/ अंतर्राष्ट्रीय पर्वतारोहरण अभियान जिसमें विदेशी पर्वतारोहण अभियानों के लिए एल०ओ० के रूप में तैनाती शामिल है।
(ख) बल की बड़ी तादाद में अपरिहार्य/अप्रत्याशित/आपरेशनल तैनाती जिसमें आम चुनाव शामिल है।
(ग) पश्चिम जोन पुलिस टूर्नामेंट,अखिल भारतीय पुलिस खेल, अखिल भारतीय पुलिस ड्यूटी मीट, राष्ट्रीय/अंतर्राष्ट्रीय स्पोर्ट्स मीट।
(घ) विदेश में भारतीय मिशन में नियुक्ति तैनाती।
(ड़) कोई अन्य विशेष परिस्थितियां जिसके लिए महानिदेशालय में अलग-अलग मामले के गुण-दोष के आधार पर निर्णय लिया जाएगा।
3. यह सभी संबंधितों द्वारा सुनिश्चित किया जाएगा कि जहां तक संभव हो, वरिष्ठता संरक्षण के ऐसे मामलों को कम से कम किया जाए और योग्य कार्मिकों को अपनी बारी में पदोन्नति कोर्स करवाने के सभी संभव प्रयास किए जाएं। विदेश मंत्रालय में कार्मिकों की प्रतिनियुक्ति के लिए भी, यह प्रयास किया जाए कि एक सीमा तक, जिन कार्मिको को निकट भविष्य में पदोन्नति कोर्स करना अपेक्षित है, उन्हें ऐसे कोर्सों के लिए तैनात न किया जाए।
(आर० के० वढ़ेरा) महानिदेशक, भा०ति०सी० पुलिस The exigency of service delineated in Clause 2(घ) in standing order No.01/92 contemplates grant of protection of benefits of seniority and promotional prospects to personnel who are appointed or deployed in foreign missions.
The interpretation of the aforesaid clause has to be made in the context of the purpose the provision seeks to serve. In case the promotional prospects of personnel made to suffer for honouring commitments in the line of duty or on account of definite exigencies of service or their deployment in difficult areas, it would have a debilitating effect on the morale of the force.
Moreover, even on a plain reading of clause 2(घ), the petitioner is clearly entitled for the protection and the benefits which the standing order seeks to provide to the eligible and category of personnel.
The petitioner was deployed as part of the Indian contingent to Afghanistan. The word 'deployment' or 'appointment' in the standing order No.01/92 dated 22.07.1992 does not mean physical deployment in Afghanistan. The deployment in terms of clause (घ) of standing order No.01/92 is complete when the personnel are ordered to report to the camp for pre-training for the purposes of deployment in a foreign mission. Such personnel who are struck off the strength of their parent unit and are borne on the strength of the contingent which is undergoing training for deployment, come within the ambit of the beneficial provisions of standing order No.01/92 dated 22.07.1992.
In the facts of the case, once the petitioner was struck off the strength of his parent Battalion & he reported to and was borne on the rolls of the Tigri Camp for pre-training for deployment in Afghanistan, his deployment in a foreign mission was complete in terms of the standing order No.01/92 dated 22.07.1992.
The petitioner is held entitled to the benefits of protection seniority and promotional avenues under the standing order No.1/92 dated 22.07.1992.
Judicial approach to interpretation of service regulations of an armed or a paramilitary force has to be nuanced. Peculiar service conditions of the armed forces and paramilitary forces have to be borne in mind. In certain matters a distinction has to be drawn from other departments of the government, and a departure has to be made from the usual rule of interpretation of service regulations.
As distinct from other departments of government, the armed & the paramilitary forces are called upon to execute tasks or assigned to hazardous duties at the peril of their lives, in the service of the nation. While on such hazardous missions or perilous assignments the service prospects of such personnel cannot be made to suffer. Similarly, on such occasions pecuniary benefits which these personnel would have otherwise gained have to be protected. At all times it has to be ensured that service conditions do not operate to the detriment of and adverse service consequences do not visit the personnel when they answer the call of duty by going on such dangerous missions.
The clause for denial of back-wages in the standing order does not subserve the object sought to be achieved by the provision as a whole. The pre-determination made by the offending clause in the standing order No.01/92 dated 22.07.1992 of denial of back-wages, disincentives the personnel who have opted for or sent to a tour of duty at the peril of their own lives. This clause would thus provoke the adverse effects on the morale of the members of the force, which the standing order seeks to prevent.
I am fortified in taking above view by the law laid down by the Hon'ble Supreme Court in case of Major General H.M. Singh, VSM Vs. Union of India and another, reported at (2014) 3 SCC 670. The Hon'ble Court in the case of Major General H.M. Singh, VSM (supra) had the occasion to consider the nature of relief to be granted when promotion has been denied on arbitrary grounds. The Hon'ble Supreme Court in the case of Major General H.M. Singh, VSM (supra) while granting all monitoring benefits to the petitioner which would have been due to him but for the arbitrary denial of such promotion, held thus:
"33. Insofar as the present controversy is concerned, there is no doubt whatsoever, that a clear vacancy against the rank of Lieutenant General became available with effect from 1.1.2007. At that juncture, the Appellant had 14 months of service remaining. It is not as if the vacancy came into existence after the Appellant had reached the age of retirement on superannuation. The present case is therefore, not covered by the technical plea canvassed at the hands of the learned senior Counsel for the Respondents. The denial of promotion to the Appellant mainly for the reason, that the Appellant was on extension in service, to our mind, is unsustainable besides being arbitrary, specially in the light of the fact, that the vacancy for which the Appellant was clamouring consideration, became available, well before the date of his retirement on superannuation. We have, therefore, no hesitation in rejecting the basis on which the claim of the Appellant for onward promotion to the rank of Lieutenant General was declined, by the Appointments Committee of the Cabinet.
34. In view of the fact, that we have found the order of rejection of the Appellant's claim for promotion to the rank of Lieutenant General, on the ground that he was on extended service to be invalid, we hereby set aside the operative part of the order of the Appointments Committee of the Cabinet. It is also apparent, that the Selection Board had recommended the promotion of the Appellant on the basis of his record of service, past performance, qualities of leadership, as well as, vision, out of a panel of four names. In its deliberations the Appointments Committee of the Cabinet, did not record any reason to negate the aforesaid interference, relating to the merit and suitability of the Appellant. We are therefore of the view, that the Appellant deserves promotion to the rank of Lieutenant General, from the date due to him. Ordered accordingly. On account of his promotion to the post of Lieutenant General, the Appellant would also be entitled to continuation in service till the age of retirement on superannuation stipulated for Lieutenant Generals, i.e., till his having attained the age of 60 years. As such, the Appellant shall be deemed to have been in service against the rank of Lieutenant General till 28.2.2009. Needless to mention, that the Appellant would be entitled to all monetary benefits which would have been due to him, on account of his promotion to the rank of Lieutenant General till his retirement on superannuation, as also, to revised retiral benefits which would have accrued to him on account of such promotion. The above monetary benefits shall be released to the Appellant within three months from the date a certified copy of this order becomes available with the Respondents."
This Court takes notice of the fact that the assignment to Afghanistan was fraught with danger.
The petitioner had volunteered to continue with his tour of duty/assignment in Afghanistan, which involved a peril to his life. He opted out of a more secure assignment of attending a promotional course, to face the hazards of a dangerous assignment in the service of the nation. The Court cannot award any medal for such acts of commitment to duty, but can certainly commend such acts which are in plain sight. The petitioner certainly cannot be visited by any adverse consequences financial or otherwise for performing his duties in an exemplary fashion. This more so when the law provides for protection of service benefits of the petitioner in such situations. Contrary provisions denying such benefits in the standing order no.01/1992 are read down to that extent and held not applicable to the cases like that of the petitioner.
The petitioner has clearly made out a claim for back-wages/salary for the post of Inspector GD from the date his immediate junior was so promoted till the petitioner was promoted to the rank of Inspector GD in the year 2011 and the prayer in that regard has to be granted.
In the light of the aforesaid legal narrative and the facts found in the earlier part of the judgement, the impugned order dated 19.07.2012 is evidently in the teeth of the Standing Order No. 1/92 dated 22.07.1992. The denial of seniority and promotional benefits to the petitioner by the order dated 19.07.2012 and the order dated 28.07.2012 is arbitrary and illegal. The impugned orders dated 19.07.2012 and 28.07.2012 cannot stand.
The impugned order dated 19.07.2012 passed by the respondent No.4 and consequential order dated 28.07.2012 passed by the respondent No.6 (Annexure 12 to the writ petition) are quashed.
The matter is remitted back to the respondent No.4-Deputy Inspector of General (Administration), East Frontier I.T.B.P Force.
A writ of mandamus is issued commanding the respondent no.4-Deputy Inspector of General (Administration), East Frontier I.T.B.P Force to reconsider the claim of the petitioner for grant of seniority and promotion and backwages with effect from the date of immediate junior was promoted to the rank of Inspector G.D. consistent with the observations made in this judgment and in the light of the Standing Order No.1/92 dated 22.07.1992.
The petitioner shall be given the promotion, seniority, back-wages, and all consequential benefits for the post of Inspector GD from the date of his immediate junior, who was promoted to the post of Inspector GD, i.e., with effect from 04.07.2008 till the date the petitioner was promoted to the rank of Inspector GD in the year 2011.
The above directions shall be executed within a period of two months from the date of receipt of a certified copy of this order.
The writ petition is allowed.
Order Date :- 8.1.2019 Ashish Tripathi