Kerala High Court
K.Kunjumon vs Union Of India on 25 June, 2025
1
W.P.(C) No.9249 of 2018
2025:KER:46280
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
WEDNESDAY, THE 25TH DAY OF JUNE 2025 / 4TH ASHADHA, 1947
WP(C) NO. 9249 OF 2018
PETITIONER:
K.KUNJUMON
AGED 67 YEARS, S/O.LATE KOCHU KOZHY,
IRLA NO.49045062, DEPUTY COMMANDANT (RETD),
RESIDING AT KUZHITHUNDIL PUTHEN VEEDU, KADAMPANAD
NORTH P.O., PATHANAMTHITTA DISTRICT-691552.
BY ADVS.
SRI.K.RAMAKUMAR (SR.)
SMT.ASHA BABU
SMT.ASWINI SANKAR R.S.
SRI.T.H.ARAVIND
SRI.S.M.PRASANTH
SRI.T.RAMPRASAD UNNI
SRI.G.RENJITH
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF
HOME AFFAIRS, NORTH BLOCK, NEW DELHI-110001.
2 THE DIRECTOR GENERAL
BORDER SECURITY FORCE, BLOCK NO.10,
CGO COMPLEX, LODHI ROAD P.O., NEW DELHI-110003.
3 PAY AND ACCOUNTS DIVISION
BORDER SECURITY FORCE, PUSHPA BHAWAN,
MADANGIR, NEW DELHI-110062.
2
W.P.(C) No.9249 of 2018
2025:KER:46280
BY ADVS.
SRI.SUVIN R.MENON, SENIOR PANEL COUNSEL
ADV.PARSHATHY S.R., CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
25.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
3
W.P.(C) No.9249 of 2018
2025:KER:46280
JUDGMENT
The petitioner, who has retired from the Boarder Security Force as an Assistant Commandant on 31.01.2008, has filed the captioned writ petition, contending that he was falsely implicated in a criminal case way back in the year 1993, and on that basis, he was suspended on 28.05.1993 and later reinstated on 03.09.1997, and in between the period of suspension and the date of superannuation noticed earlier, there were two separate promotion posts - Deputy Commandant and Second-in- Commandant (2IC) - which were denied to him. Therefore, he seeks the following prayers;
" i) To issue a Writ of Mandamus or any other commanding the respondents to promote the petitioner as recommended by the DPC conducted in 1996 and further promotion to the rank of Second in Command (2IC) with consequential his seniority in all such promotional cadre up to the date of his superannuation, at par with his Junior Officer Shri S.G. Goel (IRLA No. 49045086) who was promoted as Deputy Commandant as on 30.11.1996 and the rank of Second in Command as on 29.06.2004.
ii) To call for the records leading upto Exhibit P9 and quash the same by the issuance of a Writ of Certiorari to the extend impugned in the writ petition by directing the 4 W.P.(C) No.9249 of 2018 2025:KER:46280 grant of all rightful promotions to the petitioner irrespective of Exhibit P9.
iii) To issue a Writ of Mandamus or any other order direction commanding the respondents to disburse all arrears on salary, pension, gratuity and all other monetary benefits with @ 12% interest per annum from the due date and direct the respondents to disburse the same within a time frame."
2. I have heard Sri.S.M.Prasanth, the learned counsel for the petitioner as well as Smt.Parshathy S.R., the learned Central Government Counsel, representing Sri.Suvin R.Menon, the learned Senior Panel Counsel.
3. The facts are not in dispute. The petitioner, while working as an Assistant Commandant, was implicated in a criminal case essentially on the allegation of amassment of wealth disproportionate to his known source of income. He was suspended on 28.05.1993 and reinstated on 03.09.1997. However, the criminal case was ultimately disposed of pursuant to Ext.P3 judgment dated 30.12.2014 only. Further, even though liberty was granted to file a fresh chargesheet by the trial Court in the trial, pursuant to the second charge chargesheet, the petitioner was admittedly acquitted pursuant to Ext.P3 dated 5 W.P.(C) No.9249 of 2018 2025:KER:46280 30.12.2014, after the retirement of the petitioner. It is positively found by the Criminal Court that even while framing the charge on the basis of the freedom granted by the Court, the factual position as well as the legal aspects have not been noticed, and it was categorically found that even the second charge sheet is not maintainable. The findings of the Criminal Court are as under;
"21. In the present case, the second charge sheet was filed against the accused K. Kunjumon on the same facts and same charges in connection with the same FIR, while the discharge order dated 4/3/1997 was in force and it attained finality as the same was not challenged by CBI to higher Courts. Moreover, the second charge sheet was filed in disregard of the liberty given by the Court in its discharge order dated 4/3/1997. There were neither new circumstances nor discovery of new evidences in the second charge sheet. Unfortunately, these facts were overlooked by my ld. predecessors while framing charges in the second charge sheet. I am of the firm opinion that the second charge sheet is not maintainable as the same was filed on the same facts for which the accused had already been discharged by a competent Court. The accused ought to be acquitted on this point alone.
22. Next, let me consider the question of non-application of mind while granting prosecution sanction dated 4/1/1999. On a bare perusal of the second prosecution sanction, it is clearly seen that it did not discuss about the first prosecution 6 W.P.(C) No.9249 of 2018 2025:KER:46280 sanction dated 23/1/1996 for prosecuting the accused for the offences under Section 13(2) read with Section 13(1)(e) of PC Act. It also did not consider the first charge sheet No. 2/96 in the same FIR No. RC 3(A)93 SLC. It again failed to refer to the order dated 4/3/1997 passed by ld. Special Judge, Manipur West in Spl. Trial No. 2 of 1996 discharging the accused from the charges against him. It also did not comply with the liberty and direction given in the order dated 4/3/1997 which permitted CBI to file fresh charge sheet after considering the left out period of 14 years wef 15/5/1973 to 31/12/1987 in the check period from 1/1/1988 to 10/9/1993. In fact, the second charge sheet bearing No. 1/99 was filed for the same check period of 1/1/1988 to 10/9/1993 in total disregard of the direction in the order dated 4/3/1997 which had already attained finality. In (2006) 13 SCC 305 @ Pr.23, it was held that "... The sanctioning authority, therefore, did not have any occasion to apply their mind to the entire materials on record and that view of the matter, the sanction is, therefore, vitiated in law. ...". It may be noted that CBI did even not exhibit the second prosecution sanction order and the second charge sheet, although the whole case was based on these vital documents. Accordingly, it is held that the present second proceeding is vitiated due while non-application of mind while granting prosecution sanction dated 4/1/1999 and accused ought to be acquitted on this ground alone.
xxxxxxxxxxx
32. If we deduct the amount of over-calculation of Rs.3,19,633/- of assets of the accused [Ref: Table-4] from 7 W.P.(C) No.9249 of 2018 2025:KER:46280 the alleged disproportionate assets of Rs.3,35,152/- [Ref:
Table-3], the amount of disproportionate asset reduces to a sum of Rs.15,519/-. After taking into account of the sum of Rs.96,000/- left out of the total income of the accused [Ref: Table-5], a surplus amount of Rs.80,481/- remains as income of the accused at the end of the check period. Hence, instead of disproportionate asset, a sum of Rs.80,481/- still is left with the accused out of his income after accounting for all expenditures."
4. On the basis of the afore, the Criminal Court has found that, in fact, there was a surplus amount of Rs.80,481/- with the petitioner herein, and hence the charge as levelled against the petitioner in the charge sheet cannot be acted upon.
5. Relying on the findings in Ext.P3, the petitioner submitted a representation at Ext.P4, pointing out that he may be granted promotions which were due to him, as well as the seniority in the post of Deputy Commandant as well as 2IC with reference to the date on which his junior one Sri.S.G.Goel, was promoted to the afore ranks. The Commandant of the BSF disposed of the afore representation, on the basis of the contentions raised, noticing that the petitioner would be entitled for promotion to the post of Deputy Commandant with effect from 07.10.1998 - the date on which, one Sri.S.S.Sahrawat, was promoted to the afore post. It 8 W.P.(C) No.9249 of 2018 2025:KER:46280 is the afore order issued by the Commandant, which compelled the petitioner to file the captioned writ petition.
6. This Court notices the fact that the petitioner's claim for promotion to the posts of Deputy Commandant and 2IC was originally not granted on the basis of the criminal case referred to earlier, is admitted by the respondents. In the counter affidavit dated 30.03.2019, reference has been made to the findings by the DPCs as under;
Date of Year of Assessment
Reasons of assessment
DPC DPC of DPC
15.10.96 1996-97 "Unfit i. Doubtful integrity-1992
to Sealed ii. Suspension-1996
05.11.96 Cover" iii. CBI Case 1993 pending
04.09.97 1997-98 "Unfit" i. Doubtful integrity-1992
ii. Suspension-1993
iii. CBI Case 1993 pending
10/11 1998-99 "Good- i. Doubtful integrity-1992
Aug'98 Sealed ii. CBI Case 1993 pending
Cover"
7. A reference to the afore details provided in the counter affidavit shows that as regards the DPC of the years 1996-97, the assessment was "unfit". The reason for the afore assessment is the doubtful integrity recorded in the year 1992 and the 9 W.P.(C) No.9249 of 2018 2025:KER:46280 suspension in 1993 in the criminal case charged on the afore basis, already noticed. As regards the DPC of the year 1997-98 also, the assessment was on the same lines and the reasons for the said assessment were also similar. However, as regards the DPC of the year 1998-99, it is noticed that the assessment was "good", the benefits not being extended on account of the doubtful integrity of the year 1992 and the pending CBI case. In other words, in the year 1998, the fact that the DPC found the petitioner as suitable for promotion on account of the assessment as "good" is not in dispute. This Court, noticing the afore, on 11.12.2024 had directed the ACRs to be produced before this Court as also directed the respondent to come on record as to whether the ACRs and the entries therein have been communicated to the petitioner. On the basis of the afore, an additional affidavit dated 26.02.2025 has been filed by the respondents. In the afore, the minutes of the DPC of the years 1996-97, 1997-98 and 1988-99 have been placed on record in sealed covers. A reference to the ACRs as well as the SCRs would show that till the year 1991, the entries against the petitioner were "very good". Again, in ACRs for 1991-92 and 1993-94 also, the petitioner's integrity is recorded as "beyond 10 W.P.(C) No.9249 of 2018 2025:KER:46280 doubt". It is only on the basis of the criminal case noticed earlier, that the petitioner is seen not considered for promotions. The reasons have also been recorded, as having been attributable to the criminal case.
8. When that be so, when ultimately, it is found by the Criminal Court that even the second charge sheet was without any basis insofar as the petitioner was having excess funds with him as noticed in paragraph 32 of the judgment, I am of the opinion that the petitioner is justified in seeking for the benefits as is prayed for in this writ petition.
9. On the afore basis, I further notice the additional affidavit dated 15.05.2025 filed on behalf of the respondents herein, wherein it has been pointed out by the respondents that it is only when there are "adverse remarks" that have to be communicated to the employee, and therefore, the ACRs were not communicated to the petitioner. In other words, the afore affidavit is a pointer to the effect that the respondents admit that there was no communication of the ACRs insofar as there were no adverse remarks about the petitioner at any point of time.
11W.P.(C) No.9249 of 2018
2025:KER:46280
10. In such circumstances, I am of the opinion that the petitioner ought not have been denied the promotions due to him.
11. At this juncture, I notice the specific contention raised in paragraph 3.5 of the counter affidavit dated 30.03.2019 with reference to the promotion to the post of 2IC. According to the respondents, such promotion requires a Mandatory Field Service for granting of promotion, and the petitioner had not undergone the afore mandatory service. However, I notice that the question of undergoing the afore Mandatory Field Service becomes relevant only when the petitioner was extended the first promotion to the post of Deputy Commandant, and thereafter he was working in the afore post. In the case at hand, even the first promotion to the post of Deputy Commandant was not extended while the petitioner was admittedly in service, and he was extended the same only after the retirement pursuant to Ext.P9 order. When that be so, I am of the opinion that, merely for the reason that the petitioner had not undergone the field service as stated in paragraph 3.5 - which cannot be attributed to the petitioner's fault under any circumstances - the petitioner is not to be denied the promotion to the post of 2IC.
12W.P.(C) No.9249 of 2018
2025:KER:46280 Resultantly, I allow this writ petition by directing the respondents to extend the petitioner promotion to the post of Deputy Commandant with reference to the DPC of the year 1998 as well as to the post of 2IC, with reference to the promotion granted to his junior Sri.S.G.Goel with reference to the dates 30.11.1996 and 29.06.2004, respectively. The respondents to pass appropriate orders implementing the afore directions and extend all monetary benefits, etc. to the petitioner, as expeditiously as possible, at any rate, within a period of five months from the date of receipt of a certified copy of this judgment. Needless to say that the monetary benefits calculated as above are also to be disbursed to the petitioner within the afore time frame.
Sd/-
HARISANKAR V. MENON JUDGE anm 13 W.P.(C) No.9249 of 2018 2025:KER:46280 APPENDIX OF WP(C) 9249/2018 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF ORDER NO.ESTT/163/74 BN/2007/14992-95 DATED 14-12-2007.
EXHIBIT P2 TRUE COPY OF LETTER DATED 19-02-2015 ADDRESSED TO THE 2ND RESPONDENT BY THE PETITIONER.
EXHIBIT P3 TRUE COPY OF JUDGMENT DATED 30-12-2014 IN RC NO.3(A)93 SLC OF THE SPECIAL JUDGE, MANIPUR.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 29-01-2015 SUBMITTED BEFORE THE 2ND RESPONDENT BY THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 23-02-2016 SUBMITTED BEFORE THE 2ND RESPONDENT BY THE PETITIONER.
EXHIBIT P6 TRUE COPY OF LETTER DATED 30-03-2015 OF THE 2ND RESPONDENT RECEIVED BY THE PETITIONER.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 12-04-2017 IN WP(C)NO.465 OF 2017.
EXHIBIT P8 TRUE COPY OF ORDER DATED 16-01-2018 IN CONTEMPT CASE (CIVIL) NO.1534 OF 2017.
EXHIBIT P9 TRUE COPY OF ORDER DATED 08-08-2017 OF THE 2ND RESPONDENT.
EXHIBIT P10 TRUE COPY OF LETTER DATED 05-02-1998 FROM THE DIRECTORATE.
EXHIBIT P11 TRUE COPY OF ORDER NO.C-14011/17/ 1993/CC/PERS/BSF DATED 16.02.2017 ISSUED BY THE DIRECTOR GENERAL, BSF EXHIBIT P12 TRUE COPY OF OM NO. 21011/27/2015- ESTT.(A-II) DATED 14.02.2016 ISSUED BY THE GOVERNMENT OF INDIA 14 W.P.(C) No.9249 of 2018 2025:KER:46280 RESPONDENTS' EXHIBITS EXHIBIT R1(a) A TRUE COPY OF MINUTES OF MEETING OF DPC HELD ON 15.10.1996 AND 05.11.1996 EXHIBIT R1(b) A TRUE COPY OF MINUTES OF DPC HELD ON 04.09.1997 EXHIBIT R1(c) A TRUE COPY OF MINUTES OF MEETING OF DPC HELD ON 10.08.1998 AND 11.08.1998 EXHIBIT R1(d) COPY OF ARCS FROM 1990 TO 1999 EXHIBIT R1(e) A TRUE COPY OF THE RELEVANT PAGES OF THE BOARD SECURITY FORCE (GENERAL DUTY OFFICERS) RECRUITMENT RULES, 2001