IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. LPA No. 28 of 2003 Date of Decision : June 17, 2008 Gian Singh …Appellant. Versus: Union of India & others …Respondents. Coram: The Hon’ble Mr. Justice R. B. Misra, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. Anand Sharma, Advocate. For respondents No.1 & 2 : Mr. Sandeep Sharma, Asstt. Solicitor General of India For respondents 3 to 5 : None. R. B. Misra, J. (Oral). The appellant has been aggrieved by the order dated 1.8.2003 passed by this Court in Civil Writ Petition No. 744/1998. 2. Vide an order dated 1.8.2003, this Court while dismissing the writ petition No. 744 of 1988 was pleased to decline to interfere the promotional orders made in favour of respondents No. 3 to 5. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 3. It appears the appellant was enrolled as a Sepoy Clerk on 6.3.1969 in the Indian Army and in due course of time, he was promoted to the rank of Record Officer and was superannuated as such on 1.4.1997. The appellant had claimed promotion against the vacancy of Subedar Major falling vacant on 1.1.1997, 1.7.1997 and 1.9.1997 i.e. Subsequent to his retirement. It appears that in order to consider the promotion of perspective candidates, the Departmental Promotion Committee of Army Headquarters met on 26th to 28th December, 1996, which had considered the eligible candidates including the appellant and respondents No. 3 to 5 wherein the respondents No. 3 to 5 had secured the first three positions in the merit list and as such were recommended for promotion by the Departmental Promotion Committee and in such selection, the appellant was at No.7. 4. Being aggrieved against such selection, the appellant preferred a departmental appeal. During the pendency of such appeal, the appellant preferred Civil Writ Petition No.548 of 1997, which was disposed of by this Court on 27.4.1998 with the directions to the authorities to decide the appeal within the stipulated time. However, the appeal of the appellant was rejected on 14.9.1998. 5. Being aggrieved by non-promotion of appellant to the rank of Subedar Major and the rejection of his appeal, the 3 appellant preferred the present Civil Writ Petition No. 744 of 1998 before this Court. 5. Taking a note of the contentions of the appellant and rival contentions of respondents No.1 & 2, learned Single Judge has arrived at finding indicating that the appellant has failed to prove his contentions/ assertions made in paragraphs 15 & 16 regarding allegations of malafide, misuse and abuse of discretionary powers by the Departmental Promotion Committee. On the basis of record, learned Single Judge has arrived at finding that after considering the eligible candidates, the Departmental Promotion Committee has found that the respondents No.3 to 5 have secured more points/ marks during the course of screening and as such are suitable for promotion. 6. We have perused the original records of the selection. We are of the considered view that the conclusion derived by the learned Single Judge therefrom is correct. Since the record speaks that during the course of screening, respondents No. 3 to 5 had secured more points/ marks and were found suitable for promotion on merits, as such, the promotion of respondents No. 3 to 5 cannot be held to be illegal. 7. In respect of the allegations of misuse and abuse of discretionary powers by the Departmental Promotion Committee and allegations of malafide against the Chairman of Selection Committee/DPC, it is necessary to indicate that the Chairman has not been made party in the writ petition and the appellant 4 herein has miserably failed to prove the allegations of malafide against the Chairman. It is well settled that the allegation of malafide has not to be made but has to be proved. 8. The burden of proof lies on the person who alleges malafide. In view of the decisions in Orissa Cement Ltd. v. Workmen (1960(2) LLJ (SC) 91), Pratap Singh v. State of Punjab (AIR 1964 SC 72), E. P. Ragappa v. State of Tamilnadu (AIR 1974 SC 555), Swaran Lata v. Union of India (1979(3) SCC 165), Kedar Nath Bahl v. State of Punjab (1978(4) SCC 336), it is the party which alleges malafide who has to lead reliable evidence to prove it. Mere assertion or making of a vague or bald statement not sufficient but burden to prove malafide is very heavy and lies on the person alleging malafide in view of the decision in Dhampur Sugar (Kashipur) Ltd. v. State of Uttaranchal (2007(8) SCC 418). 9. After hearing learned counsel for the parties, we find that there is no error in the impugned order dated 1.8.2003. Therefore, the appeal being devoid of merits, is dismissed. ( R. B. Misra ), Judge. ( Sanjay Karol ), Judge. June 17, 2008 (rana)