{"id":173507,"date":"1999-12-24T00:00:00","date_gmt":"1999-12-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kalyan-singh-vs-union-of-india-ors-on-24-december-1999"},"modified":"2018-10-27T19:04:56","modified_gmt":"2018-10-27T13:34:56","slug":"kalyan-singh-vs-union-of-india-ors-on-24-december-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kalyan-singh-vs-union-of-india-ors-on-24-december-1999","title":{"rendered":"Kalyan Singh vs Union Of India & Ors. on 24 December, 1999"},"content":{"rendered":"
Delhi High Court<\/div>\n
Kalyan Singh vs Union Of India & Ors. on 24 December, 1999<\/div>\n
Equivalent citations: 2000 IIAD Delhi 745 A<\/div>\n
Author: M Mudgal<\/div>\n
Bench: M Mudgal<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
Mukul Mudgal, J.<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
5.   The respondents’ stand in the counter affidavit is as under:\n<\/p>\n
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.\n<\/p>\n
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:\n<\/p>\n
     “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
\n     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
\n     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.”\n<\/p><\/blockquote>\n
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 :\n<\/p>\n
     “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\thould 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 :\n<\/p>\n
     “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.”\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
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
\nof pay and allowances to Mr. V.K. Gaur and denial of the same to the  petitioner is clearly discriminatory.\n<\/p>\n
12.  The reply to Paragraphs 18 & 19 is as follows :\n<\/p>\n
     “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.”\n<\/p>\n
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
\nentries  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
\nrespondents  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.\n<\/p>\n
14.  The Writ Petition is accordingly disposed of.\n<\/p>\n
15.  List this matter on 11.2.2000 for reporting compliance.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Kalyan Singh vs Union Of India & Ors. on 24 December, 1999 Equivalent citations: 2000 IIAD Delhi 745 A Author: M Mudgal Bench: M Mudgal 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-173507","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nKalyan Singh vs Union Of India & Ors. on 24 December, 1999 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kalyan-singh-vs-union-of-india-ors-on-24-december-1999\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kalyan Singh vs Union Of India & Ors. on 24 December, 1999 - 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