ORDER
Mukul Mudgal, J.
1. The petitioner herein at the relevant time was serving as Inspector in the Border Security Force and certain dverse remarks for the year 1982-83 were recorded in his ACR by his Commandant Shri R.S. Jasrotia, respondent No. 3.
2. The petitioner filed a civil suit against the adverse remarks and the suit was decreed in appeal and the Regular Second Appeal against the said judgment of the Additional District Judge dated 3rd May, 1991 decreeing the suit was dismissed by the High Court of Punjab & Haryana. Consequently the adverse remarks against the petitioner stood expunged by the respondents letter dated 12.8.1992.
3. Seven months later in March 1993, the respondents restored the seniority of the petitioner in the rank of Assistant Commandant and he was nationally promoted to the rank of Assistant Commandant with effect from 1st December, 1984, i.e., the date when his juniors were promoted to the said rank.
4. In January 1994, the respondents promoted the petitioner to the rank of Deputy Commandant and restored his seniority in that rank to that effect from 21.9.1989 i.e., the date on which his juniors were promoted to the said rank. However, the petitioner was not allowed the arrears of pay and allowances for the period 21.9.89 to 24.1.94 in the rank of Deputy Commandant despite the fact that the promotional post had been wrongly denied to him due to the adverse remarks which were found to be illegal, null and void by the Additional District Judge and upheld by the High Court of Punjab & Haryana. The petitioner made representations on 4th March, 1994, 22nd September, 1994 and 24th April, 1995 seeking the arrears of pay and allowances on the promotional post of Deputy Commandant with effect from 21st September, 1989 to 24th January, 1994 and on 5th May, 1994; 6th December, 1994 and 28th June, 1995, the rejection of these representations have led to the filing of the present petition.
5. The respondents’ stand in the counter affidavit is as under:
6. The respondents have relied upon the instructions contained in the Department of Personnel & Training O.M. dated 10.4.1989 to contend that a notional promotion does not entitle the petitioner to payment of arrears. It is the plea of the respondents that since the petitioner was not performing the duties in the post of Deputy Commandant for the concerned period 21st September, 1989 to 24th January, 1994, he cannot claim arrears for pay and allowances.
7. Before considering the plea of the respondents, it would be necessary to consider the relevant order of the Additional District Judge which reads as follows:
“Therefore, keeping in view all the facts of the case, the report has neither been initiated by the rightful officer and not by the officer who had actually seen the work of the plaintiff for more than ninety days and Mr.R.S. Jasrotia was having clear cut bias
mind against the plaintiff before recording remarks in question as the plaintiff had been promoted against his recommendations and the plaintiff had pointed out certain defects in the mis-use of fire arms by the controlling officer. That has created further strained relations between the parties. The prejudice mind of R.S. Jasrotia against the plaintiff is clear from the letter dated 17.4.1982 at page No. 111 of the departmental file, the document, which has been produced by the State on the application
of the plaintiff and in this case the immediate superior officer N.K. Rautori had written letter dated 1.4.1982, page No. 109 of the departmental file which has been produced by the State showing that the plaintiff was experience, well-behaved and processionally very sound. All these facts coupled with the illegal rejection of representations of the plaintiff clearly makes but the case of the plaintiff that recording of remarks in dispute is illegal and void and as such, I reverse the findings of the trial court on issue No. 1 and as a result, the appeal of the appellant succeeds and the same is allowed. The suit of the plaintiff for declaration, is decreed, as prayed for, with costs. Decree sheet be prepared. The file be consigned to the record room.”
8. The learned counsel for the petitioner has relied upon as judgment of the Hon’ble Supreme Court reported as Union of India etc. etc. Vs. K.V. Jankiraman etc. etc. wherein Paragraph 26 the Supreme Court observed as follows :
“We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserved any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he s hould be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz., “but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion”, we direct that in place of the said sentence the following sentence be read in the Memorandum :
“However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceedings/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so.”
9. The law laid down above by the Supreme Court is very clear as no reasons have been recorded by the Union of India/respondents for denying the salary to the petitioner. In fact the judgment of the Additional District Judge clearly records reasons which disclose mala fides in the action against the petitioner. The learned counsel for the respondents has relied upon a judgment reported as Telecommunication Engineering Service Association (India) & Anr. Vs. Union of India & Anr. to contend that salary cannot be given for notional promotion. The decision of the aforesaid case was founded on the special circumstances of that case in particular the fact that it dealt with 10000 persons and on the special facts of the case, the Hon’ble Supreme Court upheld the denial of the back wages upon notional promotion. The aforesaid decision therefore does not apply to the facts of the present case and the learned counsel for the petitioner is right in relying upon the judgment of the Hon’ble Supreme Court, i.e., Union of India etc. etc. Vs. K.V. Jankiraman etc. etc. (supra) and the principal laid down in the aforesaid decision.
10. Certain other factual aspects of the matter need to be looked into. The judgment of the District Judge was in the year May, 1991 and it was given effect to in March, 1993. There is no rational explanation available in the pleadings on behalf of the respondents for the delay in implementing the judgment for at least this period. Furthermore the High Court had also dismissed the Regular Second Appeal filed by the respondents in February, 1992 and there is no averment on behalf of the respondents that there were any interim orders passed by the High Court staying the operation of the order of the District Judge dated 3rd May, 1991 during the pendency of the second appeal before the High Court. Thus at least for the aforesaid period there is absolutely no explanation whatsoever given for the delay in giving effect to the judgment of the District Judge.
11. The writ petitioner in the writ petition averred in Para Nos. 18 & 19 that in a case which was similarly situated, another BSF Officer, Shri V.K. Gaur, DIG was allowed arrears of pay and allowances for the promotional post. It is pleaded that the said Officer, Shri Gaur was notionally promoted to the rank of DIG w.e.f. 9.4.1992 vide promotional order dated 10th May, 1993 and was subsequently sanctioned payment of arrears of pay and allowances from the date of notional appointment as DIG. The petitioner had thus alleged in Paragraph 19 of the writ petition that the grant of arrears
of pay and allowances to Mr. V.K. Gaur and denial of the same to the petitioner is clearly discriminatory.
12. The reply to Paragraphs 18 & 19 is as follows :
“With regard to the reply to paras-18 and 19 of the writ petition, it is stated that the judgment passed by the Hon’ble Court was only applicable in the case of Shri V.K. Gaur, DIG which was accordingly complied with. It is further denied that any discrimination has been done with the petitioner. The petitioner is not entitled for arrears as alleged as his case is different from the case mentioned in these paras.”
13. Thus it will be seen that the respondents have not denied the averment of discrimination in favour of Shri V.K., Gaur but there is a bare denial which in the eyes of law does not amount to denial. Nothing has been stated in the counter affidavit to demonstrate how the case of Shri V.K. Gaur is in any manner different from that of the petitioner. Thus it would be seen that the petitioner has wrongly been denied the arrears of pay and allowances which were lawfully due to him. It is significant that there was a finding that there was clear-cut bias by the officer regarding the adverse
entries against the petitioner which findings stood affirmed by the High Court and had become final, the petitioner cannot be denied the arrears of pay and allowances as claimed in the writ petition. Significantly in the present case not only the relevant reasons have not been recorded in the present case for denying the salary to the petitioner, but in fact there is a judgment which has attained finality which found the adverse entries against the petitioner to be actuated by clear-cut bias and findings were recorded that the petitioner was extremely well-behaved and professionally sound. The petitioner’s case is further strengthened by the fact that in a similarly placed case, an officer Shri V.K. Gaur has been granted arrears of pay and allowances and this plea of discrimination has not been met sufficiently in the counter affidavit. The petitioner is entitled to succeed in the writ petition. Accordingly, the writ petition is allowed. The
respondents are directed to make payment of arrears of pay and allowances of the rank of Deputy Commandant to the petitioner w.e.f. 21.9.89 to 24.1.94 within a period of six weeks from today.
14. The Writ Petition is accordingly disposed of.
15. List this matter on 11.2.2000 for reporting compliance.