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[Cites 1, Cited by 2]

Delhi High Court

Suneel Kumar Khatri vs Union Of India And Ors on 10 January, 2013

Author: Gita Mittal

Bench: Gita Mittal, J.R. Midha

16
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                    +       W.P.(C) 2826/2012

%                            Date of decision:10th January, 2013

      SUNEEL KUMAR KHATRI                           ..... Petitioner
                  Through :            Mr. Ankur Chhibber, Adv.

                   versus

      UNION OF INDIA AND ORS              ..... Respondents
                    Through : Mr. Saqib, Adv. with
                              Mr. Joshi, AR/CRPF.

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

GITA MITTAL, J. (Oral)

1. The petitioner in the instant case has sought quashing of the order dated 10th October, 2011 and 9th December, 2011 whereby his case has been wrongly rejected for fixation of his basic pay as well as appropriate seniority in the rank of Assistant Commandant w.e.f. 2nd August, 2005 which would have been at par with his batch mates. The petitioner has further sought for issuance of a writ of mandamus seeking a direction to the respondents to correct their error and to treat the petitioner as having been promoted to the rank of Assistant Commandant w.e.f. 2nd August, 2005 as well as fixation of his pay and increments according to his batch mates WP(C)No2826/2012 Page 1 of 12 and consequently grant time scale to the petitioner w.e.f. 2 nd August, 2009 as has been given to his batch mates.

2. We have heard learned counsel for the parties and perused the record which has been produced before us.

3. The facts giving rise to the present petition are in a narrow compass and are briefly noticed hereafter. On account of the petitioner's competence, knowledge and expertise with regard to matters relating to IT, the petitioner was posted on 1st August, 2005 with Electronic Data Process (EDP) Cell of the Directorate General of the CRPF at New Delhi. There is no dispute that by a signal dated 2nd August, 2005 the petitioner and 35 other inspectors were promoted to the Bihar sector to the post of Asst. Commandant.

4. The order of promotion dated 2nd August, 2005 contained the following mandatory condition:

"(3) All promotes shall be relieved immediately on receipt of unit allotment and will be directed to join new place latest by 25/08/2005."

5. The IGP, Eastern Sector vide a signal dated 5th August, 2005 posted the petitioner as Asst. Commandant which was then located at Tripura.

6. As the petitioner was not being relieved for joining at his new posting, he submitted representations dated 24th August, 2005 and 24th November, 2005. In the meantime, the batch mates of the petitioner were permitted to pick up their promotions.

WP(C)No2826/2012 Page 2 of 12

7. These representations do not appear to have been considered by the respondents and evoked no response of any kind. As a result, he submitted a request dated 5th December, 2005 (at pg.38) seeking an interview with the Directorate General, CRPF for redressal of his grievance.

8. It is undisputed that the petitioner was granted an interview which resulted in issuance of a signal dated 27th January, 2006 which was to the following effect:

"COMPETENT AUTHORITY HAS ALLOWED INSP. S.K. KHATRI EDP CELL TO TAKE OVER ON PROMOTION AS ASSTT. COMDT. THIS DTE ITSELF IN PUBLIC INTEREST AND XXXXX TO BE RETAINED IN DTE GENL (EDP CELL) XXXXXX A SPL CASE TILL ARRIVAL OF SHRI AJAY DWIVEDI XXXXX COURSE..."

9. Mr. Ankur Chhibber, learned counsel for the petitioner has rightly pointed out that it was the stand of the CRPF that on account of the petitioner's expertise in the requisite specialty, the respondents were not relieving him in public interest. Even as per the signal directing his posting, the respondents have directed that the petitioner would take over on promotion in the directorate itself. It was further directed that he would be retained till his reliever joins the posting.

10. The present writ petition has been necessitated for the reason that though the signal dated 27th January, 2006 finally gave directions for the petitioner picking up his promotion. The respondents gave the petitioner the emoluments as given to his WP(C)No2826/2012 Page 3 of 12 batch mates upon promotions. However, in November, 2008, without any justification or notice to the petitioner, his basic pay was reduced by the respondents from 17,550/- to Rs.16,880/- on the pretext that the petitioner had joined the promoted post after 31st December, 2005.

11. The petitioner's representations in this regard dated 16th March, 2007, 28th January, 2009, 29th December, 2010 and 25th July, 2011 evoked no positive response. Finally, a letter dated 10th October, 2011 was addressed by the respondents purporting to deal with the petitioner's representation (which is also not specified therein). This communication contains an unequivocal admission which deserves to be considered in extenso and reads as follows:

"2 In this connection it is intimated that Inspector Sunil Kumar Khatri of Dte. General was released on promotion as A/C vide Pers Dte. General Signal dated 2.8.2005 and allotted to E/Sector for further posting. The said Inspector was allotted to 66 Bn vide E/S signal dated 5.8.05. E/S vide signals dated 30.8.05, 6.10.05, 21.10.05, 2.11.05 and 10.11.05 had requested DIG (Adm) Dte. General to relieve said Inspector on promotion as A/C to 66 Bn as DIG (Adm) is Cadre Controlling Authority for NGOs of Dte. General. However, the said Inspector was not relieved by EDP to 66 Bn where he was posted on promotion and a case for his retention was forwarded to Pers Dte. Vide note dated 5.9.2005 as services of said officer was very much essential in IT Wing for maintenance /implementation of SELO project. The case was examined in Pers Dte. And same was rejected by competent authority which was WP(C)No2826/2012 Page 4 of 12 conveyed to IT Wing vide ION dated 21.09.2005. Instead of relieving the said Inspector on promotion, an application of said Inspector dated 24.11.2005 was again forwarded to Pers Dte. by IT Wing vide note dated 5.12.2005 after a lapse of three months with the request to permit him to take over the charge of A/C at a place other than declared HQr ie. In Dte. General. Though IG E/Sector is competent to accord such approval after concurrence from Pers Dte., the case was examined and the then IG (Pers) had permitted said Inspector to take over the charge as A/C at Dte. itself as a special case till arrival of Sh. Ajai Dwivedi A/C who was earmarked as his substitute by IT Wing. This was conveyed to IT Wing vide Pers Dte. signal dated 27.1.2006 and Inspector Sunil Kumar Khatri has taken over the charge of A/C on 27.1.2006 at Dte. General (other than declared HQr i.e. 66 Bn).
From the date of taking over charge as A/C to date i.e. 27.1.2006 to 25.7.2011 (5 ½ years), the said officer remained silent. Now, when he was not granted STS being not eligible for the same by virtue of his taking over charge as A/C, he has submitted application for re-fixation of appointment date in the rank of A/C and grant of STS, drawal of arrears etc.
3. After thorough examination of representation of the officer, competent authority remarked that "while the officer is also partially responsible but a greater fault lies with his controlling officer for not releasing him on time or taking up the case on time. Let IG (IT) fix up responsibility for the lapse"
WP(C)No2826/2012 Page 5 of 12

12. The petitioner is aggrieved by the fact that the respondents have found fault with the conduct of the officials of the CRPF who were responsible for not permitting the petitioner to join the post to which he stood promoted and in delaying his release from his posting with the EDP Cell, still they chose to fault the petitioner. The petitioner is also aggrieved by the failure of the respondents to notice that the petitioner had made a representation at the earliest on 24th August, 2005 for being relieved which was not even acknowledged, let alone given favourable consideration from the respondents. It is submitted that no fault can be attributed to the petitioner for the delay in joining the promotion post and the petitioner cannot be penalized for the fault of the respondents who took a considered view that the petitioner could not be relieved from his posting at the EDP Cell at Delhi.

13. In support of his contentions, Mr. Ankur Chhibber, learned counsel for the petitioner has placed reliance on the pronouncement dated 27th October, 2009 in W.P.(C) No.21900/2005, Ashok Kumar vs. UOI and connected writ petitions, this Court is concerned with the eligibility condition of two years' service in a duty battalion for promotion to the post of Inspector and 2 IC under BSF as also the post of Inspector under CRPF. This Court had found that the posting was the responsibility of the respondents and the petitioners could not be faulted on being unable to meet such a requirement for the purposes of promotion. Given the fact, the respondents had power to waive such condition, the Court had found the action of the respondents in refusing to waive this WP(C)No2826/2012 Page 6 of 12 stipulation as arbitrary and unjustified and the writ petitions were allowed.

14. The counter affidavit is blissfully silent on the manner in which the petitioner's representation dated 24th August, 2005 and 24th November, 2005 were dealt with. Given the factual narration noticed above, there appears to be merit in the petitioner's contentions. It has also been brought to the notice of this Court that by the order dated 10th October, 2011, the DIG (Pers.) directed the IG(IT) to fix responsibility for the lapse in not releasing the petitioner and not letting him join his promotion posting. The counter affidavit also does not disclose the steps taken by the IG(IT) to fix up the responsibility in terms of the directions made in the order dated 10th October, 2011. The petitioner unfortunately still continues to draw salary less than the salary which is being drawn by his colleagues, who were also promoted by the order dated 2nd August, 2005.

15. Learned counsel for the respondents has contended that the petitioner was drawing a salary of Rs.16,880/- as on September, 2008 and not Rs.17,500/-. Not much turns on this submission. The fact remains that the respondents unilaterally, arbitrarily and without any justification reduced the salary of the petitioner.

16. We had noted the above facts in our order dated 23rd November, 2012 and granted time to the respondents to place on record the petitioner's representations dated 24th August, 2005, 24th November, 2005 as well as action taken by the IG(IT) pursuant to WP(C)No2826/2012 Page 7 of 12 the order dated 10th October, 2011. The respondents were also directed to produce the relevant record before us.

17. It appears that no action at all was taken by the respondents despite the directions of the senior officers in the respondents organization. Today, Mr. Saqib, learned counsel for the respondents has handed over a copy of the signal dated 9 th January, 2013 whereby a court of enquiry has now been directed to find out the facts/circumstances under which the petitioner had not been relieved from the EDP Cell on his promotion and for fixation of lapse for the same. It appears that it was the scrutiny by this Court which has compelled the respondents even to issue the above signal. Be that as it may, the court of enquiry is of little relief to the petitioner to whom grave injustice has been done as is evident from the above facts.

18. It is established that the respondents have deliberately paid scant heed to the requirement of the signal dated 2nd August, 2005 promoting the petitioner to the post of Assistant Commandant. The petitioners representations dated 24th August, 2005, 24th November, 2005 and 5th December, 2005 requesting the respondents to immediately release him appear to have fallen on deaf ears. The reason for not releasing the petitioner is however evident from the signal dated 27th January, 2006. It is also evident from the facts noted in the letter dated 10th October, 2011. The respondents have unequivocally accepted that even though the petitioner was promoted, the EDP Cell had forwarded a request for his retention as the services of the petitioner were essential in the IT Wing for WP(C)No2826/2012 Page 8 of 12 maintenance/implementation of the SELO Project being undertaken by the EDP Cell. We are informed that, the SELO Project was a prestigious Project being undertaken by the CRPF which was essential for nationwide connectivity of the CRPF installations and the retention of the petitioner was effected by the EDP Cell only because of his expertise in the field. The petitioner was deliberately not relieved for no fault on in his part but in order to complete the Project in the need of the organisation. While the retention may have in public interest, however, certainly the petitioner cannot be prejudiced because of his expertise.

19. It is undisputed that all batch mates of the petitioner were permitted to join the place of posting on the promoted rank in terms of the signal dated 2nd August, 2005 whereas the petitioner was permitted to do so only by signal dated 27th January, 2006 because the respondents deemed it appropriate to relieve him as his services were required at a particular position. We find that the communication dated 10th October, 2011 extracted hereinabove also underscores the above facts. Though a vague reference is made therein that the petitioner is partially responsible for joining the promoted post of the Assistant Commandant, however, we are unable to find any factual or legal basis for such an observation.

20. The petitioner could have joined only if the respondents relieved him. The respondents admit that they did not relieve the petitioner or permit him to join.

21. We accordingly hold that and no fault at all for the delay in joining attributable to the petitioner. The action of the respondents WP(C)No2826/2012 Page 9 of 12 for denying compliance with the signal dated 2nd August, 2005 and the promotion at the appropriate stage and the benefits thereof to the petitioner is arbitrary, unfair and illegal. In the given facts and circumstances, the petitioner is entitled to all benefits which would have been enured to him if he would have permitted to join his promotion post in terms of signal dated 2nd August, 2005 just as his other batch mates.

22. It is noteworthy that the respondents recognized this position and for this reason made payment of the salary to the petitioner on rates admissible in the promotion post after the signal which salary benefit was unfairly withdrawn in November, 2008 on the specious ground that the petitioner had joined the promotion post after 31 st December, 2005. As noted above, it is not the petitioner who had any choice in the matter and had joined the promotion post after 31st December, 2005 because he wished to do so. Such delayed joining was squarely because of the action of the respondents in not permitting him to do so. The petitioner cannot be made to suffer for the acts of the respondents.

23. The petitioner thereafter made repeated representations to the respondents to do the justice and to restore the payments to him and fix his seniority appropriately. The respondents unfortunately rejected the same by the order dated 10th October, 2011 and 9th December, 2011 which orders are unsustainable in law as they are not based on relevant material.

24. The respondents appear to have not even considered the representations of the petitioner and despite receipt has passed no WP(C)No2826/2012 Page 10 of 12 orders thereon. In the aforesaid order, the respondents have wrongly come to a conclusion that the petitioner had kept mum for five years and had made a representation belatedly.

25. All the batch mates of the petitioner having been granted senior time scale w.e.f. 2nd August, 2009 i.e. a period of 4 years after the 2nd August, 2005 when they were promoted. The petitioner was promoted by the same order as his batch mates and given the facts and circumstances of the case would be entitled to all emoluments, grant of senior time scale on the same date as his batch mates.

26. In view of the above, we direct as follows:

(i) The orders dated 10th October, 2011 and 9th December, 2011 are hereby set aside and quashed.
(ii) The respondents are directed to treat the petitioner as having been promoted to the rank of Assistant Commandant w.e.f. 2 nd August, 2005 and his pay be fixed according to his batch mates.

The seniority of the petitioner shall also notionally be fixed accordingly and the petitioner would be entitled to all other benefits including the senior time scale w.e.f. 2nd August, 2009 which has been granted to his batch mates.

27. The respondents shall pass appropriate orders in terms of the above directions within a period of eight weeks and make all payments found due and payable to the petitioner within the same period.

WP(C)No2826/2012 Page 11 of 12

28. The petitioner shall be entitled to costs in the present matter which are quantified at Rs.10,000/- to be paid by the respondents to the petitioner along with his next month's salary.

29. It is directed that this case shall not be treated as a precedent in any other case and is being made only on the facts and circumstances of the present case.

30. This writ petition is allowed in the above terms.

31. Dasti to both the parties.

GITA MITTAL, J J.R. MIDHA, J JANUARY 10, 2013 dk WP(C)No2826/2012 Page 12 of 12