IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7591 of 2004 MADAN LAL, S/O SHRI TULSI RAM, R/O THANA BARGRAN, TEHSIL BAROH DISTT. KANGRA (H.P.)PRESENTLY POSTED AS NIAB SUBEDAR (J.C.O) ATTACHED WITH BIHAR REGIMENTAL CENTRE, DANAPUR CANTT. DISTRICT PATNA.. …………………PETITIONER. Versus 1.THE UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF DEFENCE, NORTH BLOCK, NEW DELHI. 2.DEPUTY DIRECTOR GENERAL, HEAD QUARTER RECRUITING ZONE (BIHAR AND JHARKHAND) DANAPUR CANTT., PATNA. 3.SENIOR RECORD OFFICER, ARTILLERY RECORD, NASIK ROAD CAMP, MAHARASHTRA. 4.RECORD OFFICER, ARTILLERY RECORD, NASIK ROAD CAMP, MAHARASHTRA. ………………………RESPONDENTS. ----------- 07/ 21.04.2011 The prayer of the petitioner in this writ application for which he has moved this court reads as follows:- “That this writ application is for issue of a writ in the nature of writ of certiorari for quashing the letter no. 3092/Est. dated 01.04.2002 (Annexure-3) passed by respondent no. 2 by which, the order of promotion of the petitioner from the post of Niab Subedar to Subedar w.e.f. 01.12.2001 (Annexure-20 has been cancelled; and proceeded for regular enquiry (General court Martial) vide Annexure-6; and further for a direction in the nature of writ of mandamus commanding/directing the respondents to promote the petitioner from the post of Niab Subedar to the post of Subedar w.e.f. 01.12.2001 as it was already granted in favour of the petitioner vide Annexure-2 of this writ application, or, at least from the date the juniors have been promoted. And further for any other relief or reliefs to which the petitioner is entitled in accordance with law and in the interest of justice.” Mr. Tuhin Shankar, learned counsel 2 for the petitioner would submit that the petitioner in view of his unblemished service record, had been empanelled for promotion on the post of Subedar on 25.09.2001, whereafter an order of his substantive promotion on the post of Shubedar was also issued on 29.11.01, which was to come into force w.e.f any date on or after 1.12.2001, he would physically assume the charge on the post of Subedar. It is the case of the petitioner that despite such order of promotion, he was not allowed to assume charge on the post of Subedar and when he filed his representation dated 28.03.2002, he was communicated by the impugned order contained in Annexure-3, that his promotion had been cancelled on account of his involvement in a malpractice in course of recruitment activities relating to the medical examination of the candidates conducted at Danapur Cantonment in the month of October-November 2001. Assailing the aforementioned order Mr. Tuhin Shankar, is of the view that once the promotion of the petitioner was notified, the same could not have been cancelled without giving him a show cause 3 notice and/or opportunity of hearing. He has also submitted that as on the date of issuance of the impugned order dated 01.04.2002, even the Court of Inquiry had not commenced and therefore, when there was nothing for the respondents to deny the petitioner his promotion, the alleged decision taken for cancellation of his promotion without even supplying him a copy of such order was/is wholly illegal and unsustainable. Learned counsel for the petitioner in this regard has also explained even the allegation of malpractice which had been made that the basis of such cancellation of promotion of the petitioner was subsequently found to be wholly without any substance, inasmuch as, in the Court of Inquiry proceedings and the subsequent Court Martial proceedings, the petitioner was completely exonerated by the Court of Inquiry. In this context, he would straightway refer to the findings of the Court of Inquiry dated 09.02.2005 (Annexure-7), wherein the petitioner was declared to be not guilty. Mr. Shankar in fact would also rely on certain observations reasonings given by the 4 Court of Inquiry for driving his point home that the petitioner despite being innocent had been framed in a baseless allegation of demand of money from the candidates in course of recruitment which could not be established and the court of enquiry had gone to exonerate the petitioner. He has also submitted that the aforesaid findings of the Court of Inquiry dated 09.02.2005 on being forwarded for confirmation was reaffirmed by the Court of Enquiry even in course of review by a speaking order dated 09.02.2005, which would be proof of the fact that the petitioner was not involved in the alleged recruitment scam for favouring such candidates. He has accordingly also submitted that since the petitioner on account of the sole allegation of his being involved in the recruitment scam had stood deprived of his promotion on the post of Subedar and had to superannuate on February- 2007, while holding the post of Naib Subedar he on being exonerated by the court of Enquiry was entitled to be given his promotion from the date his batchmates and the juniors were given such promotion w.e.f. 01.12.2001. Thus the learned counsel has 5 submitted that the date of promotion of the petitioner on the post of Subedar should have been notified w.e.f. 1.12.2001 for giving him all consequential benefit till the date of his retirement on 20.02.2007 by way of difference in the salary and emoluments as also consequential increase in his retirement benefits. Summing up his submission he has prayed for a direction to the Respondents to compensate the petitioner at least in monetary terms by giving him his due promotion from the date, the juniors had been given such promotion on the post of Subedar and thereafter up to Honorary Captain. Mr. Singh, learned counsel for the respondents representing the army authorities, submits that as the petitioner’s claim for promotion to the post of Subedar was dependent on his physical assumption of the post of Subedar and before that date when it was found that he along with few others were involved in a malpractice relating to the recruitment activity i.e. medical examination of the candidates held between 16.10.2001 to 23.11.2001, the order of his promotion dated 6 29.11.2001 could not have been acted upon as the petitioner was directed to face the Court of Inquiry. Mr. Singh in this regard would further submit that the prima facie involvement of the petitioner in the recruitment scam was clearly established from the self written note of the petitioner dated 25.11.2001 (Annexure-D), wherein he had admitted to have obtained Rs. 40,000/- from four candidates for its being passed on to, two of his senior colleagues namely Major Rajveer and Major Banerjee and also retaining rest of Rs. 16,000/- for himself. He has emphasized that when the Court of Inquiry was looking into such serious allegation, the army authorities in view of the Army Order no. AO1/01 were fully justified in not allowing the petitioner, not to avail the benefit of promotion and to that extent the impugned order contained in Annexure-3 cannot be faulted. Proceeding further, Mr. Singh would submit that he has no instruction as to the aftermath of the Court of Inquiry holding the petitioner not guilty and in fact as the writ petition was filed on 12.07.2004, well before concluding the Court of Inquiry and 7 holding the petitioner not guilty, the subsequent event of the petitioner being exonerated by being held not guilty could be only noticed by the authorities after disposal of this writ application. Having given some serious consideration to the aforementioned submission as also on perusal of the relevant materials on record, this Court is of the considered view that since the promotion of the petitioner was already notified by a specific order dated 29.11.2001, any adverse decision affecting his aforesaid promotion on any ground whatsoever had also to be communicated to the petitioner. Admittedly no such order of cancellation of the order of promotion of the petitioner was ever passed and communicated to him and only when the petitioner had filed his representation on 28.03.2002, an order by the letter dated 01.04.2002 was issued by respondent no. 2, informing that his promotion order has been cancelled. There is infact nothing on record to show that the order of promotion of the petitioner had been cancelled and as such if the petitioner was not allowed to physically 8 assume the charge on the post of Subedar on account of pending Court of Inquiry he could not be denied the benefit of such order of promotion notified on 29.11.2001 as the same was never rescinded and/or cancelled by any specific order. Thus there would be always a presumption of its being continued with the rider that the petitioner could get benefit of such promotion on the post of Subedar after completion of court of enquiry. It is true that the order of promotion in any service including in Armed Forces will depend, not only on the eligibility of the person but also his track record of past service. In a given case like the present one when there was no allegation against the petitioner prior to recruitment scam and the allegations against him had surfaced only after the recruitment process conducted in the month of October-November 2001, the army authorities were justified in issuing order of promotion of the petitioner dated 29.11.2001, because at that point of time, the allegation against the petitioner and others were well in embryo. Judged from this angle, while this Court would not hold the action of not 9 allowing the petitioner to assume charge on the post of Subedar on or before 01.12.2001 to illegal as by that time they had found prima facie material to hold the Court of Inquiry against the petitioner, but as the petitioner had been subsequently exonerated in the Court of Enquiry he had become entitled for reconsideration of his case of promotion from the stage he stood deprived on account of the pendency of enquiry into allegations which was made the subject matter of the Court of Inquiry. Today, the petitioner is a retired man and he cannot get back the rank or prestige that he has lost on account of the continuing Court of Inquiry but at least he can have the satisfaction of getting the salary and the perks to which he was entitled as on 1.12.2001 before being subjected to the aforementioned Court of Inquiry. This Court infact is not aware as to whether the respondents have already considered the case of the petitioner for his promotion on the post of Subedar and also further promotion on higher ranks on which his juniors has earned promotion till the date of retirement of the petitioner. 10 This court would accordingly direct the respondents to now consider restoration of promotion of the petitioner for the post of Subedar w.e.f. 01.12.2001, inasmuch as, such decision of promotion of the petitioner on the post of Subedar had already been notified on 27.11.2001 and was only kept in abeyance on the ground of a pending inquiry and he was also fully exonerated in such enquiry. If as a result of consideration of the case of the petitioner, he would be found entitled for promotion on the post of Subedar w.e.f. 01.12.2001, the authorities will also be required to consider the case of the promotion of the petitioner on the higher post if any junior to him had been given such promotion and if the petitioner was otherwise eligible and his service records were also clean in the intervening period from 01.12.2001 onwards. It goes without saying that as the petitioner promotion was withheld on his being found prima facie involvement in allegation for which he has been exonerated by the Court of Inquiry, he can not be deprived in getting any benefit which his juniors have been given by virtue of their 11 continuing in service and earning promotion on the post of Subedar W.e.f. 01.12.2001. In other words the petitioner shall get all benefits which his juniors in service have been given got till the date the petitioner had continued in service i.e. 28.02.2007. Such consideration of the case of promotion of the petitioner with the resultant financial benefit, if any, in the payment of salary as also pensionary benefit must be decided and paid to him within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observations and directions, this application is disposed of. Ranjan (Mihir Kumar Jha,J)