IN THE HIGH COURT OF DELHI + W.P. (C) NO. 2730/2004 Judgment reserved on : September 26,2006 % Judgment delivered on : October 19,2006 # Sh. Ved Prakash ....Petitioner ! through: Mr. Reetesh Singh, Advocate. Versus $ Union of India and Anr. ....Respondents ^ through : Mr. Nitinjya Choudhary, Advocate. CORAM: HON'BLE MR. JUSTICE SWATANTER KUMAR HON'BLE MR. JUSTICE G.S. SISTANI 1. Whether reporters of local paper may be allowed to see the ^ judgment? 2. To be referred to the reporter or not? 1 1 W.P.(C) NO. 2730/2004 Page No. 1 of 16 Digitally Signed By:AMULYA Signing Date:10.08.2023 15:16 Certify the the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified ¥ 3. Whetherthejudgmentshouldbereferredin the Digest? SWATANTER KUMAR, .T. 1. The petitionerwas appointedas a Constablein the CentralIndustrial SecurityForce (for short 'CISF') in the year 1970. The petitionerclaims that he worked honestly and sincerelyto the satisfactionof all concerned I and was promoted to the rank of Inspector in the year 1981. Being a member of the force, the petitioneris governedby the provisions of the CISF Act and the Rules framed thereunder. On 26.1.1989, the petitioner was posted at CISF Unit at DAE, Kalpakkam. On 2/4-12-1989 the respondent no.2 promoted the petitioner to the post of Assistant Commandant in the CISF. It was stated in the said order that the order of, promotionwould be given effect to, subject to the DepartmentalEnquiry' pending against the petitioner. It is further the case of the petitioner that on. t the date of passing of the order of promotion, neither any departmental: enquiry was pending against the petitioner nor any show cause notice was; W.P.(C) NO. 2730/2004 Page No. 2 of 16 f issued to him. However, after passing of the order of promotion on • I • 6.12.1989,the petitionerwas served with a memorandumof charge dated 5.12.1989, to which the petitioner submitted a detailed explanation on 13.12.1989denyingthe articleof charges.Withouttakinginto consideration the case put forward by the petitioner, an order dated 30.12.1989 was I I passed imposing a punishmentupon the petitioner that his promotionbe withheld for a period of one year with effect from 30.12.1989. The petitioner preferred an appeal against the said order to the prescribed authority,which was partially accepted by the authority vide its order dated 5.2.1990 wherein the period in the order of punishment was modified to the extent that the period of 'withholding the promotion' was reduced from one I year to 9 months. 2. Though the punishment awarded to the petitioner was for withholding ^ promotion of the petitioner for a period of 9 months with effect from 30.12.1989, which expired on 30.9.1990, but still the petitioner was not W.P.(C) NO. 2730/2004 Page No. 3 of 16 •7' promotedfor the reasons best known to respondentno.2. Vide an order dated 18.9.1990, it was directed that the petitioner would be considered afresh by the DPC for promotionto the post of Asst. Commandantas and when convened. By another order dated 5.12.1990, the petitioner's promotion was cancelled, though no reasons for cancellation of the promotion of the petitioner was mentioned in the said order. It is submitted; that probably the 'sealed cover procedure' had been followed as per OM' ^ NO. 22011/2/86.Estt.(A)dated 12.1.1988and thoseprincipleswere applied: to the case of the petitioner. Aggrieved from the action of the respondents, the petitioner filed a Civil Writ Petition being CWP No. 18574/1990 in the Madras High Court, which was dismissed by the said Court vide its order, dated 17.11.1994, as having become infructuous. The Special Leave Petitionsfiled against the said order were dismissed by the Supreme Court vide order dated 10.7.2002. It is the case of the petitioner that he is entitled to be promotedto the post of Asst. Commandanton or immediatelyafter W.P.(a NO. 2730/2004 Page No. 4 of 16 f 30.9.1990i.e. after the period of punishmentof withholdingthe promotion of the petitioner, i.e. 9 months, had expired. It is further stated that the Respondent no.2, in an arbitrary and discriminatory manner granted promotion to him to the post of Asst. Commandant only with effect from 17.11.1994 i.e.. after a period of 5 years. Against this action of the respondents, the petitioner made a representation dated 6.2.1995 and hd received a communication on 6.5.1997 that the same was rejected. This resulted in filing of the present writ petition. 3. The facts averred in the writ petition are not really in dispute, but the stand of the respondents in the counter affidavit filed by them is that vide^ order dated 18.9.1990, the authorities had directed the case of the petitioner to be considered by a subsequent DPC as his order of promotion was cancelled vide order dated 5.12.1990. It is stated that the petitioner was g f considered for promotion from the date of expiry of his punishment, but could not be promoted till 1993 due to his low merit position. According to W.P.(C) NO. 2730/2004 Page No. 5 of 16 the respondents,the order of cancellationdated 5.12.1990was considered by the Hon'ble High Court of Judicature at Madras and as such the petitionercannotquestionthe correctnessor validityofthe said orderin the presentwrit petition. Itis admittedthat in the DPC meetingheld underthe aegis of UPSC on 27.7.1989,the petitionerwas empanelledfor promotion to the rank of Asstt. Commandanton regular basis against the vacancies of 1988. The recommendations of the DPC were approved by the competent ^ authorityand transferofthe petitioneron promotionwas issuedvide order dated 4.12.1989. However, before the petitioner could take over the charge of the promoted post, he was served with charge sheet dated 6.12.1989 which resulted in passing of the order of punishment dated 30.12.1989, as modified by the Appellate Authority vide order dated 5.2.1990. Upon serving the order of punishment, the petitioner came under the purview of para 7 of the memorandum dated 12.1.1988. Accordingly, the case of the petitioner was placed in a 'sealed cover' by the DPC and the DIG/DAE vide w W.P.(C) NO. 2730/2004 Page No. 6 of 16 his letter dated 18.9,1990 informed the Commandant of the petitioner's unit I thatthecase of thepetitionerwouldbe consideredafreshby theDPC as and when convenedfor promotion. In light of these circumstancesand while relyingupon the relevantclausesof the OM NO. 22011/2/86.Estt.(A)dated 12.1.1988, the petitioner could not have been promoted earlier than i 15.12.1994. Therefore, according to the respondents, the petitioner's writ; petition is liable to be dismissed. V 4. Before we proceed to examine the merits of the rival contentions raised by the learned counsel appearing for the respective parties before us in the present case, it will be appropriate to refer to an interim order dated 8.11.1991 which was passed by the Madras High Court as well as the.order dated 17.11.1994 which finally dismissed the petition of the petitioner as having become infructuous:- "Order dated 8.11.1991 This petition coming on for hearing upon perusing the petition and the affidavit filed in support of W.P.No. 18574 of 1990 on W.P.(C) NO. 2730/2004 Page No. 7 of 16 i , \ I ,'1" 1 V > the file of the High Court and upon hearing the arguments of Mr. V. Prakash, Advocate, for the petitioner and of Mr. K. Ilias Ali, Additional Central Government Standing Counsel on behalf of the respondents,it is ordered that the operation of the order of the 4th respondent Ref. No.V-15014/Min.25/89- PA/111/5-2-90 in so far as it has confirmed the withholding of the promotionfor a periodif 9 months and the order of the 5th respondentbearing ref.No.V. 15dl4/Min/25/Pa/1062dt. 30- 12-89 and the consequential adverse remark in the office memorandum No. E/15015/2/90 PA 310 dt. 27/ 31-3-90, be and hereby is stayed pending further orders on this petition." "Order dated 17.11.1994 This Writ Petition coming on for hearing on this day, in the presenceof Mr. V. PrakashAdvocatefor petitioner in W.P.No. 18574 of 1990 and W.M.P. No. 3233 of 1993, and of Mr. K. Ilias Ali Additional Central Government Standing Counsel on behalf of the Respondents in W.P.No. 18574 of 1990 and W.M.P. No. 3233 of 1993 the court made the following order: This is a petition to direct the writ petition to be dismissed as infructuous. The Writ Petition is directed against an order of punishment withholding promotion to the petitioner. The argument of the petitioner in this W.M.P. is that the petitioner was considered for promotion and he was found unfit for promotion. On this account the writ petition itself has become infructuous. Accordingly writ petition is dismissed." W.P.(C)NO. 2730/2004 Page No. 8 of16 j 6 I A 5. A bare reading of the above order shows that the main relief claimed by the petitioner was with regard to the punishment inflicted upon the petitionervide order dated 30.12.1989,whilein the presentwritpetitionthe petitioner is challenging the correctness of the order dated 5.12.1990 cancellinghis promotionand the arbitraryaction of the respondentsin not j I I giving promotion to the petitionerdespite implementationof the order| ^ dated5.2.1990withholdinghis punishment. In substance,the writpetitioni was decided by the Madras High Court for the reasons that the period' withholding the promotion had expired and the respondents had agreed to ; consider the petitioner for promotion. The learned counsel appearing for; i the petitioner while relying upon the judgment of the Supreme Court in the I cases of State of Puniah vs. Khemi Ram 1969 (3) Supreme Court Cases I H 28 and Union of India and Others V5. K.V. Jankiraman and Others(1991) ; 4 Supreme Court Cases 109 argued that there was no occasion for the ; W.P.(a NO. 2730/2004 Page No. 9 of 16 n respondentsto adopt the 'sealedcover procedure'when the petitionerhad been awarded the punishment. Furthermore,recourse to the 'sealed cover procedure' process can be made only if at the time of promotion, the chargesheet had been served upon the petitioner. It is also argued on the strength of these judgments that the order could become effective only when the same was served upon the petitioner. The learned counsel also relied upon the judgment of the Supreme Court in the case of Union of ^ India and Others v.y. Dr. Sudha Salhan (Smt) (1998)3Supreme Court \ I Cases394in this regard. | I 6. The Counsel for the Petitioner while further relying upon the | I judgment of the Supreme Court in the case of Bank of India and Another \ \ I vs. DeealaSurvanaravana(1999)5 Supreme Court Cases 762 contended| i 1I that at the time of promotion, neither the chargesheet had been served upon 1 i the petitioner nor any proceedings were pending and even subsequenti 1 I I ! thereto, the same could not have been cancelled in view of the order of | W.P.(C) NO. 2730/2004 Page No. 10 of 16 punishment. The cumulativeeffect of these would be that the petitioner could not have been denied the promotion. 7. In the backdropofthese enunciatedprinciplesof law, we must look into the orderofpunishmentwhichwas inflictedupon the petitionerby the respondents. The relevant portion of the order of punishmentdated 30.12.1989 reads as under:- " The other contentions/submissions of the delinquent have no meaning or value or any relevance to the issue in question. I, therefore,in exerciseof powers conferredunder Rule-29-A and 31 of CISF Rules 1969, withheld his Promotionfor a period of year from the date of issue of this order. He is further informed that he may prefer an appeal againstthe above order and any such appeal shouldbe made in wring (sic) to Commandant,CISF Unit, DAE Kalpakkam, within 20 days of the receipt of this order." 8. This order of punishment was modified by the First Appellate 1 Authority which reads as under:- " I have no reasons to interfere with the orders of the W.P.(C) NO. 2730/2004 Page No. 11 of 16 j f Asst. Commandant. However, considering his case sympathetically,I take a lenient view and I tone down the Order of withholding his Promotion for a period of one year wef 30.12.89 as withholding his promotion for a period of nine months from 30.12.89." 9. The disciplinaryauthorityhad imposed a punishmentas a result of the Departmentalproceedings. This punishmentattainedfinality and was not set aside by any Court of competent jurisdiction. The punishment clearlystatesthat the promotion of the petitioneris withheldfor a periodof I one year from the date of issuanceof the order, which period was reduced to 9 months by the Appellate Authority. In unambiguous terms, the punishment was not to cancel the promotion but to withhold the promotion I for the period mentioned in the order. This order of punishment could not, I be extended or interpreted so as to direct a fresh selection of the petitioner.! The petitioner had already been found fit and was empanelled by UPSC for' promotion to the higher rank. This recommendation had been duly I approved by the competent authority and in fact an order dated 2/4-12-1989 W.P.(C) NO. 2730/2004 Page No. 12 of 16 had been issued actuallypromotingthe petitionerto that post. However,; before the petitionercould join his promotionpost, the chargesheetwasj sent to him on 6.12.1989. We are certainly not impressed with the contentionof the petitionerthat the orderof chargesheetwould take effect only when it is servedupon the petitioner. Unlike an order of promotion, nothingis requiredto be done by the petitionerwhere a chargesheethas to be served upon him. The issuance of chargesheet would have been sufficient for the authorities to adopt a 'sealed cover procedure' in the case of the petitioner. But in the facts of the case, where the promotionorder had already been made, the question of adopting or taking recourse to 'sealed cover procedure' would hardly arise. The petitioner would have been entitled to join his promotionpost but for issuance of the charge sheet dated 5.12,1989. To read or convert the said order of punishment as an' order which has the effect of cancelling the promotion of the petitioner or| completely debarring the petitioner from promotion, would be: W.P.(a NO. 2730/2004 Page No. 13ofl6i misconstructionof the order. Once the disciplinaryauthority in its wisdom has imposed a punishment,then another punishmentcannot be inflicted upon the petitionerby the authoritiesby misconstruing the order. While the disciplinary authority has directed withholding of the order of promotion for a period of 9 months, the authorities concerned have construed the same as an order cancelling the promotion in its entirety. Iri I i other words, the benefit which had accrued to the petitionerand had not| y been taken away by the disciplinaryauthorityin exerciseof its discretion has been taken away by the authorities in an arbitrary manner and uponi misconstruction and misunderstanding of the order of punishment. The| order dated 18.9.1990 directing the case of the petitioner to be considered; afresh by the DPC, is again without any substance. Once the order of punishment dated 5.2.1990 had been enforced and executed, the authorities: I could not, by an indirect method, impose another punishment of, cancellation of the promotion of the petitioner. 'Cancellation of promotion' W.P.(C) NO. 2730/2004 Page No. 14 of 16 already granted to a person amounts to taking away a right which has^ accruedin favour of a person, which except for due process of law cannot: be done. Thereis not only a fine, but a substantialdistinctionbetweenthe expression 'withholding'and 'cancellation'. The effect of 'cancellation' wouldbe to divest a person of a vestedbenefitor right while 'withholding' would be deferment of such a benefit or right. The benefit or right that has; i 1 accrued is not taken away in case of 'withholding'. 'Withholding'; I h' presupposesacceptanceof the orderof promotion. Thus, the actionof the! authorities,cancelling the promotion of the petitioner is without any basis, and the petitioner is entitled to get the benefit after a lapse of the period: i I indicated in the order of punishment. i 9. For the reasons afore-stated, we partially allow this writ petition and! quash the order cancelling the promotion of the petitioner which^ i J apparently,is in conflict with the order of the punishing authority dated! 5.2.1990. We further direct the respondents to consider and grant W.P.(C) NO. 2730/2004 Page No. 15 of 16: 7^. \t i' •wf promotionto the petitionerin terms of the orderof promotiondated2/4-12- 1990. 10. Accordingly, the petition stands disposed of, while leaving the parties to bear their own costs. October 19, 2006 sk W.P.(C) NO. 2730/2004 SWATANXSR^UMAR (JUDGE) G.S. SISTANI (JUDGE) Page No. 16 of 16