WP(C) 1402/2008 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. H. Gupta, learned counsel for the petitioner as well as Mr. D. Choudhury, learned counsel appearing for the respondents. The petitioner is aggrieved by Annexure-II letter dated 08.05.2006 by wh ich his earlier posting in Bhutan entitling him Bhutan Compensatory Allowance (B CA) was cancelled. The said earlier order is dated 05.04.2006 (Annexure-I) by wh ich the petitioner allowing with some others had been posted in Bhutan. Be it st ated here that on such posting, the personnel are entitled to BCA which is a su bstantial amount. For this reason the personnel serving in para-military forces desire for posting in Bhutan. According to the petitioner, cancellation of his posting to Bhutan by th e aforesaid impugned Annexure-II order dated 08.05.06 was without any valid reas on, but to accommodate some other. His time to time representations to furnish r easons for cancellation of his posting was not responded to. Finally by Annexure -IX/A order dated 18.08.06, he was furnished with the reason for cancellation wh ich is his purported involvement in a case of malpractice regarding attempt to a rrange his posting in Bhutan through bribe. Be it stated here that no such reaso n was furnished while cancelling his posting to Bhutan in the aforesaid impugned order dated 08.05.06 and he was also not given any opportunity of being heard. In the writ petition the petitioner has alleged illegality in cancelling his posting to Bhutan. In paragraph-25 of the writ petition he has brought alle gation against the respondent No. 7 that he had demanded some amount towards mat erialisation of the petitioner’s BCA posting. In the counter affidavit filed by the respondents they have reiterated t he aforesaid stand in Annexure-9/A letter dated 18.08.2006. However, it has als o been admitted that on enquiry, the allegation against the petitioner was found to be not correct. Accordingly the stand taken is that the case of the petition er will be considered as and when his turn will come. As regards the allegation made against the respondent No. 7, same has been denied by way of a general deni al without highlighting anything to the core issue of demand of money towards ma terialisation of BCA posting. The respondents have filed an additional affidavit on 10.06.08 after fil ing of the first affidavit on 26.05.08 in which they have referred to the purpor ted vigilance case against the petitioner regarding allegation of false statemen t made by the petitioner for demand of money. As per the affidavit, the enquiry has revealed that the allegation made by the petitioner is not correct and that there was no demand of money from the petitioner. Mr. D. Choudhury, learned counsel appearing for the respondents has prod uced the records on perusal of which what is transpired is that the allegation o f seeking money from the petitioner was enquired into and the closure report was furnished on 25.06.06. It was observed that the allegation made by the petition er was not correct. Be it stated here that as on date there is no vigilance enqu iry pending against the petitioner. As stated above, the earlier vigilance enqui ry came to an end with the closure note on 26.05.06. This court while entertaining the writ petition by order dated 09.04.08 dealing with the interim prayer, made the following observations: The challenge in the writ petition is against an order dated 8th of May, 2006 b y which the foreign posting of the petitioner was cancelled. The further claim r aised in the writ petition is that the petitioner is entitled to a foreign posti ng instead of which by the impugned order dated 24th of March, 2008 he has been posted to Nagpur in Maharashtra. Even if the petitioner joins in Nagpur, Maharashtra his right as claimed in the writ petition to a foreign posting will not stand extinguished. Such for eign posting, if the petitioner is found to be entitled, can be ordered to be gi ven to him even after he is posted in Maharashtra. In that view of the matter th e Court does not consider it appropriate to cause any interference with the oper ation of the impugned order dated 24th of March, 2008. The prayer for interim re lief, therefore, is denied. In terms of the aforesaid order passed by this Court and even otherwise also, the case of the petitioner is required to be considered for his BCA posti ng taking into account the fact that earlier he was found eligible and suitable for his BCA posting and in fact he was so posted by Annexure-I order dated 05.0 4.06. Thus on 05.04.06 there was no impediment towards posting of the petitioner in Bhutan entitling him BCA, but within a month thereafter his posting was canc elled by Annexure-II order dated 08.05.06, without, however, assigning any reaso n. It was only after much insistence he was provided with the reason for cancell ation by the aforesaid Annexure-9/A letter dated 18.08.06 in which it was stated that the petitioner wanted to bribe his superior officer for BCA posting. But as reflected in the affidavit in opposition filed by the respondents, such alleg ation against the petitioner on enquiry was not found to be correct. However, in the additional affidavit another allegation has been hurled against the petitio ner stating that his allegation against the superior officer of demanding money was not correct. As noted above, the said enquiry has also come to an end with t he closure report dated 25.06.06. Pursuant to the closure report, no departmenta l proceeding has also been initiated against the petitioner. The impugned order will have to be judged as it stood on the date of pas sing the same, i.e. 08.05.06 and also the reason thereof furnished by the Annexu re-9/A communication dated 18.08.06. The respondents cannot be allowed to develo p their case through affidavits. As has been held by the Apex Court in Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and ors. r eported in (1978) 1 SCC 405, when a statutory functionary makes an order based o n certain grounds, its validity must be judged by the reasons so mentioned and c annot be supplemented by fresh reasons in the shape of affidavit or otherwise. O therwise, an order bad in the beginning may, by the time it comes to Court on ac count of a challenge, get validated by additional grounds later brought out. In the instant case, we are concerned with BCA posting of the petitioner which was cancelled by the impugned order dated 08.05.06 grounds for which was later on furnished by the aforesaid Annexure-9/A letter dated 18.08.06. The grou nd assigned therein has been found to be not correct and now the respondents can not assign another reason to deprive the petitioner from his BCA posting. Thatt apart, the vigilance enquiry has also come to an end with the closure report abo ut which mention has been made. It is not the case of the respondents that any d epartmental proceeding is pending against the petitioner for which the petitione r cannot be given BCA posting. The respondents having deprived the petitioner fr om his BCA posting by the aforesaid letter dated 08.05.06 without assigning any reason and without putting him to any kind of notice, cannot now take a stand th at the petitioner being involved in a vigilance enquiry thereafter cannot be giv en BCA posting, more particularly when the said enquiry has also come to an end and no departmental proceeding followed against the petitioner. In Union of India vs. K.V. Janakiraman reported in AIR 1991 SC 2010, the Apex Court observed that for promotion sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of prelimina ry investigation prior to that stage will not be sufficient to enable the author ities to adopt the sealed cover procedure. Even the vigilance enquiry is not eno ugh to delay promotion unless the employee is charge-sheeted. In the instant case, only a vigilance enquiry was conducted and the peti tioner was absolved. The later vigilance enquiry was not in the picture when the impugned order dated 08.05.06 was passed. There is also nothing to show that on the date of issuing the impugned cancellation order a vigilance enquiry was ini tiated and/or pending. The petitioner being deprived of BCA posting by the afore said impugned order dated 08.05.06 by way of cancelling his posting which was is sued on 05.04.06, his case will have to be considered by the respondents as on t he said date. Above being the position, this writ petition is allowed directing the re spondents to give BCA posting to the petitioner in the next available turn taki ng into account the earlier order dated 05.04.06 by which he was given BCA posti ng. Consequently, the impugned orders including the one dated 08.05.06 stand se t aside and quashed. There shall be no order as to costs.