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CASE NO.: Appeal (civil)  5024-5025 of 1998

PETITIONER: Puran Das                                                                

RESPONDENT: Union of India & Ors.                                            

DATE OF JUDGMENT: 23/02/2006

BENCH: ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       These appeals are interlinked and are disposed of by this common  judgment.  

       Appellant challenges the judgments of a Division Bench of the  Himachal Pradesh High Court at Shimla holding that the appellant was  not entitled to the benefit of promotion from the date his juniors were  granted promotion.  The appellant’s case was that he was deprived of the  opportunity of acquiring the requisite qualification for promotion as he  was initially placed under suspension and subsequently removed from  service.  After reinstatement he qualified at the requisite tests and on the  basis of such qualification he shall be deemed to have acquired the right  to be considered along with his juniors when the consideration was  made.   

       The factual background is as follows:-

       Appellant joined the Indo-Tibetan Border Police Force as a  Constable on 7.1.1967.  In 1969 he was promoted as Head Constable.   On 11.9.1973 he was suspended from service as a criminal case was  registered against him.  He was subsequently acquitted in that criminal  case.  During the period of suspension, appellant was directed to stay at  Taradevi and not to leave the Headquarters.  On 25.10.1974 his  application for station leave was rejected and he was directed to stay at  Taradevi. Notice was given to him for proposing disciplinary action for  not reporting at Taradevi.  After enquiry the appellant was held guilty of  charge of deserting the services during the period of suspension. On  14.2.1976  show-cause notice was issued to the appellant to show-cause  as to why the punishment of removal from service shall not be imposed  upon him.  By order dated 1.3.1976, the appellant was ordered to be  removed from service.  By order dated 24.4.1976 the appeal was rejected  by the appellate authority.  The appellant filed Civil Writ Petition  No.324/1976 in the High Court praying for the quashing of the aforesaid  order of removal from service.  As noted above, appellant was acquitted  in the criminal case by judgment dated 31.5.1979.  The High Court  allowed the writ petition by order dated 4.1.1983 and directed that all  consequential reliefs be given to the appellant.  On 8.2.1983, an order  was passed to reinstate the appellant in service with all consequential  reliefs with arrears of salary.  In March, 1984 the appellant qualified  Radio Operator Grade II test and in June 1986 he qualified in the Grade I  test. He became eligible for departmental promotion test i.e. ’D’ test  subsequently. Representation was made by the appellant to the  concerned authorities for granting relief in terms of the High Court’s

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orders.  The same was not accepted by the concerned authorities.  The  appellant again filed the C.W.P. No.16/1987 in the High Court for grant  of consequential reliefs.  On 18.9.1987 during the pendency of the writ  petition respondents 5 to 9 were promoted.  According to the appellant  they were junior in service to the appellant. Civil Writ Petition No.562/87  was filed by the appellant challenging promotion given to respondents 5  to 9.  The High Court partly allowed CWP No.562/87, declining the claim  of promotion from the date his junior were promoted on the basis that  under the relevant rules the appellant had qualified at the test in 1986  only. Appellant had highlighted that some of the persons who were  granted promotion had not qualified in all the tests and the appellant  was prevented from qualifying at the test because he was placed under  suspension and/or dismissed. The High Court held that since the  appellant did not possess requisite qualification for promotion at the time  of consideration for promotion,  his claim for promotion from the date his  juniors were granted promotion cannot be accepted. In CWP. No.16 of  1987, the High Court granted reliefs with which the present appeals have  no direct nexus. But the prayer for promotion from earlier point of time  was rejected. In CWP No.562 of 1987 that was the essential prayer, as  the relief sought for was promotion from the date his juniors were given  promotion.                  

       In support of the appeals, learned counsel for the appellant  submitted that the approach of the High Court is clearly erroneous.   Strong reliance was placed on a decision of this Court in C.O. Arumugam  and Ors. v. State of Tamil Nadu and Ors. (1991 Supp. 2 SCC 199) more  particularly para 5 thereof.  It was submitted that by the acts of the  respondent the appellant was deprived of the opportunity to appear at  the concerned test.  The order of removal has been set aside by the High  Court and consequential benefits were directed to be given.  The right to  be considered for promotion was one of the consequential benefits which  flows from the order of the High Court.  The appellant could not appear  in the test as he was under suspension, and  that cannot be a ground to  deny him promotion.

       In response, learned counsel for the respondent submitted that at  the time of consideration for promotion, the appellant did not possess the  requisite qualification and, therefore, the High Court was right in  justifying in revising the benefits claimed.   

       Strong reliance was placed as noted supra by learned counsel for  the appellant on para 5 of Arumugam’s case (supra). It reads as follows:

"5. As to the merits of the matter, it is necessary to  state that every civil servant has a right to have his  case considered for promotion according to his turn  and it is a guarantee flowing from Articles 14 and 16(1)  of the Constitution. The consideration of promotion  could be postponed only on reasonable grounds. To  avoid arbitrariness, it would be better to follow certain  uniform principles. The promotion of persons against  whom charge has been framed in the disciplinary  proceedings or charge-sheet has been filed in criminal  case may be deferred till the proceedings are  concluded. They must, however, be considered for  promotion if they are exonerated or acquitted from the  charges. If found suitable, they shall then be given the  promotion with retrospective effect from the date on  which their juniors were promoted."

       The aforesaid decision has no relevance so far as the present case  is concerned.  Undisputedly, at the point of time when the consideration  was made the appellant was not qualified.  The written and the practical  tests were held by the concerned authorities in July and August, 1975

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for the promotion of Head Constables (W/T) to the rank of JIO (W/T)  vacancies.  Under the promotion order 33 persons were promoted on ad  hoc basis and were brought on approved list ’D’ with stipulation that  they would clear the practical test.  The persons whose promotion was  cited as illustration by the appellant stood at a different footing. Head  Constable Ved Prakash was promoted on regular basis and Raghubir  Singh and V.P. Nautiyal were promoted on ad hoc basis against the  unqualified cadre and they were directed to clear the practical test within  12 months failing which they were liable to be reversed.  The appellant  could not be considered for promotion as he did not have the basic  qualification under the India-Tibetan Border Police (Non-Gazetted  Telecommunication Cadre) Rules, 1983 (in short the ’Rules’).  The  appellant had qualified Grade II test and Grade I test in March 1984 and  June 1986 respectively.  He became eligible for promotion test i.e. "D" list  test and became qualified subsequently.  The question of giving any  retrospective effect to his qualification is clearly impermissible.  In C.O.  Arumugam’s case (supra)  the factual position was different.  The  persons whose cases were not considered, had already qualified and in  that background this Court held that they were entitled to be considered  from an anterior point of time.  That logic is not applicable in the present  case, as admittedly the appellant did not possess the requisite  qualification on the date of consideration.   

       Above being the position the appeals are clearly devoid of merit,  deserve dismissal which we direct.  No costs.