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Delhi High CourtIndian Cases

Col. J.P.S. Mahla vs Union Of India (Uoi) And Ors. on 29 October 2003

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Delhi High Court
Col. J.P.S. Mahla vs Union Of India (Uoi) And Ors. on 29 October, 2003
Equivalent citations: 110(2004)DLT372, 2004(3)SLJ354(DELHI)
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT

Pradeep Nandrajog, J.

1. Aggrieved by the judgment and order dated 17.12.1999 dismissing the writ petition filed by him, appellant has filed the present appeal.

2. In the writ petition, prayer made was that the order dated 1.10.1999 and 8.10.1999 be quashed. The order dated 1.10.1999 directed that the movement order in respect of the appellant as Director Frieswal Project, on permanent posting be cancelled and appellant was required to move to his new post in his present rank. By order dated 8.10.1999 it was directed that the appellant should amend the casualty order and that the appellant should indicate that he has assumed the appointment of Director in the Military Farm Frieswal Project in the rank of Lt. Colonel.

3. In brief, case of the appellant is that on being considered for promotion to the rank of Colonel from the rank of Lt. Colonel, appellant’s promotion was approved and on 12.4.1999 posting/promotion order was issued. The order contained the following direction:-

“IC-39027N Lt. Col. JPS Mahla has been granted acting rank and pay of Col. w.e.f. The date of assumption of new appt. subject to his remaining in med cat SHAPE-I/in acceptable low med cat and no drop in performance.”
4. On 23.4.1999 the following order was conveyed to the appellant:-

“1. I am directed to inform you that you were considered by the above Selection Board for promotion to the rank of Acting Col as a FRESH case of 1980 Batch.
2. You have been approved for promotion to the rank of Acting Col.
3. You will be promoted as per the approved sequence. The promotion will be subject to your continued satisfactory performance and remaining in acceptable medical classification. ‘
5. Before the promotion/movement order cold be issued to the appellant an incident took place at the Military Farm Secunderabad where the appellant was posted, resulting in death due to electrocution, of 17 milking animals. On 4.5.1999 a court of enquiry was ordered. Its report was rejected and on 6.7.1999 a fresh court of enquiry was ordered. This convening order was cancelled and a fresh convening order dated 22.7.1999 was issued. According to the appellant he was retained at Secunderabad because the court of enquiry was pending and his presence was necessary. On completion of the proceedings by the court of enquiry, appellant being no longer required at Secunderabad, a movement order dated 5.10.1999 was issued. The said order contained the following direction:-

“IC-39027N Lt. Col. JPS Mahla, CDA (O) Acct no. XXVI/251/156929N of Mil Farm Secunderabad at with this HQ will proceed on permanent positing as Dir, Frieswal Project Meerut.”
6. Appellant contends that the post of Director Frieswal, Meerut Project is held by an officer of Colonel rank and not Lt. Colonel rank. Accordingly, case of the appellant is that in terms of the order dated 12.4.1999 by which the appellant was granted acting rank and pay of Col. with effect from the date the appellant assumes the new office, the order dated 5.10.1999 came be passed and therefore, the appellant stood promoted to the post of Colonel. On reaching the Frieswal Military Farm at Meerut, the appellant issued the casualy order dated 6.10.1999 under his own signatures affirming that he had assumed the appointment of Director MF and Frieswal Project, Meerut. It was recorded in the casualty order that the rank held by the appellant was that of Colonel. Thus order dated 8.10. 1999 is illegal.

7. Case of the respondent is that appellant could not have issued the casualty order dated 6.10.1999 for the reason that on 1st October, 1999 the following casualty order was issued:-

“Para 2 of the Indarmy letter under ref. in respect of IC-39027N Lt.Col. JPS Mahla, MF, Mil Farm Secunderabad treated as cancelled (.) offer to move to his new appt. oblique unit in his present rank (.).”
8. When the casualty report dated 6.10.1999 issued under the signatures of the appellant was received, it being contrary to the order dated 1.10.1999, the order dated 8.10.1999 was issued directing the appellant to amend the casualty order and issue a fresh order indicating that the appellant has assumed the appointment of Director MF and Frieswal Project in the rank of Lt. Col., only.

9. Basis of issuing the order dated 1.10.1999, as pleaded by the respondent is that as a result of the court of enquiry, substantial material emerged against the appellant, a considered decision was taken on 1.10.1999 to post the appellant to meerut as Director Frieswal Project but in his existing rank of Lt. Colonel and not in the rank of Colonel. and this was duly communicated to the Director Military Farm, Frieswal Project at Meerut on 1.10.1999. The Station Commander at Secunderabad had thereafter issued a letter dated 3.10.1999 recommending disciplinary action against the appellant. It is contended by the respondent that with the passing of the order dated 3.10.1999 the court of enquiry concluded and the next stage of taking disciplinary action as per law got commenced. It was for this reason that in the movement order dated 5.10.1999 it was not mentioned that appellant had to joint as Colonel, it was simply ordered that appellant should move to Meerut.

10. According to the respondent the order dated 1.10.1999 could not be assailed by the appellant in view of “DV Ban” order being NO. A/56728/AG/DV-I (P) dated 24.12.1996.

11. As per the DV Ban order, it’s purpose was to maintain a balance between the rights of an officer empaneled for promotion and importance of military discipline, in that it intended to deal with situations which may arise, in between the empanelment of an officer for promotion and his actual promotion when action incompatible with military discipline was found to be committed by the officer and cognizance thereof taken. Para 3 of the DV Ban order reads as under:-

“3. DV Ban on the benefits and privileges of the officer is imposed only when the competent disciplinary authority takes cognisance of an offence. Cognisance is taken of an offence as soon as the disciplinary authority, competent for the purpose, applies its mind to the offence with the intention of initiating disciplinary or administrative proceedings against the offender in respect of the offence. Imposition of DV Ban therefore has its origin in the decision of the Commander to initiate disciplinary/administrative action. Similarly, the removal of DV Ban is contingent upon finalisation of disciplinary/administrative proceedings against the officer concerned by the Commander.”
12. Further, condition No. 7 of the DV Ban order reads as under:-

“7. DV Ban will be imposed only when a disciplinary authority takes cognisance of an offence. A disciplinary authority takes cognizance of an offence when he decides to proceed (disciplinarily or administratively) against the person who is alleged to have committed the offence. The word “cognisance” is used to indicate the point when a disciplinary authority applies his mind for the purpose of proceeding against the individual (s) either disciplinarily or administratively. At the stage of taking cognisance, the disciplinary authority has to be satisfied that prima facie, the allegation(s) made against the individual makes an adequate case for trial by a GCM or an administrative action resulting in termination of service. This means where a Court of Inquiry has been held, DV ban should only be imposed when directions have been issued thereupon. When an administrative action is contemplated without holding a Court of inquiry, DV Ban is to be imposed from the date of issue of ‘Show Cause Notice’ containing definite allegations against such an officer. Such “Show Cause Notice’ should be based on relevant documents/papers to which the competent authority has applied his mind.”
13. Condition No. 8 of the DV Ban order reads as under:-

“8. A DV Ban will be imposed in the undermentioned specific cases:-
(a) SPE/CBI Cases (Type ‘B’): When a decision to initiate disciplinary action is taken by he competent authority against an officer on the basis of a CBI/SPE Report.
(b) Prosecution by a Criminal Court (Type ‘C’): When cognisance of an offence is taken by a Criminal Court, or the officer’s case is delivered to a Criminal Court by the competent military authority under the provisions of Criminal Courts and Court Martial (Adjustment of Jurisdiction) Rule, 1978, for prosecution in a court of law.
(c) Disciplinary Cases (Type ‘D’): Where, after due investigation, formal cognisance of an offence has been takne, that is, when the competent authority directs disciplinary action against the officer on the basis of Court of Inquiry proceedings.
(d) Administrative Action Cases (Type ‘A’/’T’):
i) When the competent authority directions administrative action by way of award of a censure which may be recordable (Type ‘A’).
ii) Where the competent authority directs administrative action entailing termination of service under AA Sec 19 read with Art. 14 (Type ‘T’).
(e) Suspension (Type-‘S’): Where the suspension if an officer is reported to Army HQ as required vide para 349 of the Regulations for the Army, 1987.”
14. It is further the case of the respondent that the appellant could not have issued the casualty order on 6.10.1999 i.e. the day of joining since army instructions dated 1.5.1974, appendix A to SAI/I/S/74 dealing with the grant of paid acting rank, provides that acting rank will become paid after 21 consecutive days of duties in the appointment. The respondent relied upon the judgment of this court in LPA No. 555/1998 which interpreted the army instructions dated 1.5.1974 to hold that the officer promoted does not acquire any vested right qua the appointment till the casualty order is issued confirming the appointment, which order has to be issued after 21 days of the officer joining the higher post in acting rank. It is further the case of the respondent that the officer commanding, Military Farm Frieswal, Meerut Sh. Gurmeet Singh Budhwal duly communicated the order dated 1.10.1999 to the appellant prior to the appellant taking charge and therefore the appellant over reached the process of law by issuing the order dated 6.10.1999.

15. The learned Single Judge while dismissing the writ petition held that the appellant was conveyed the order dated 1.10.1999 and the stand of the appellant that this order was not conveyed to him cannot be accepted. The learned Single Judge therefore came to the conclusion that the posting of the appellant at Meerut was in the rank of Lt. Colonel and therefore the appellant could not have joined the military Farm Frieswal Meerut in the rank of Colonel and he having issued a casualty order on the very day of joining, indicating that his posting was in the rank of Colonel was rightly required to be corrected and therefore the order dated 8.10.1999 was legal and valid.

16. We have considered the submissions made at the bar by Ms. Rekha Palli learned counsel appearing for the appellant and Sh. Maninder Singh, learned counsel appearing for the respondent. Two issues arise for consideration. Firstly, whether the appellant was in the knowledge of the order dated 1.10.1999 by which para 2 of his previous order stood cancelled and he was directed to join the military Frieswal Project at Meerut in the rank of Lt. Colonel And secondly, whether at all the respondent could deny promotion to the appellant to the post of Colonel on his being selected by a duly constituted selection committee in April, 1999.

17. It is not denied that the order dated 1.10.1999 came into existence. Appellant, however, contends that when he joined at Meerut this order was not available in Meerut and in fact was an anti dated order. The respondents refute the same. In support of their contention that the appellant was communicated the order dated 1.10.1999, the respondent placed on record before the learned Single Judge the affidavit of the Commanding Officer, Military Farm, Meerut, Shri Gurmeet Singh Budhwal who stated in his affidavit that the order dated 1.10.1999 was duly received at the unit and when the appellant joined duties on 6.10.1999 this order was duly brought to his notice prior to the appellant taking charge from him on 6.10.1999. The learned counsel for the respondent contended that there was no reason to disbelieve the affidavit filed by the officer commanding Sh. Gurmeet Singh Budhwal and more particularly in view of the fact that the appellant, before the learned Single Judge did not respond to the said affidavit.

18. There is a presumption that the official acts are done lawfully and we would therefore start with a presumption that the order dated 1.10.1999 was in fact issued and had reached Meerut before the appellant joined, unless the appellant, for cogent reasons, is able to demonstrate that this was not so. Except for a bald assertion by the appellant that this order was not in existence when he joined Meerut on 6.10.1999 and is an anti-dated order, nothing has been brought on record by the appellant to justify the said plea. On the contrary, not only do we have the affidavit of the officer commanding Sh. Gurmeet Singh we also have official record contemporaneous to the events which indicate that the order dated 1.10.1999 existed and was available in Meerut before the appellant joined on 6.10.1999.

19. On 11.10.1999, the army authorities who had received the casualty report and part-II order issued by the appellant on 6.10.1999 wrote to the appellant. Reference was made to the casualty order dated 1.10.1999. It was brought to the notice of the appellant that the appellant had himself signed the casualty promotion order in spite of being appraised by Sh. Gurmeet Singh Budhwal that the casualty order dated 1.10.1999 was in existence. Appellant was called upon to explain as to why he did so. In response, appellant wrote a letter dated 21.10.1999 in which the appellant replied as under:-

“1. Reference your HQ letter No.B/38761/ JPS/Q/MF-1 dated 11 Oct 99 and No. 38761/JPS/Q/MF-I dt. 12 Oct 99.
2. In regard to the matter concerning my promotion to the rank of Col and assumption of appointment of Dir MF & FP I have filed a writ petition before Delhi High Court. The matter is at present subjudiced. In this regard you are requested to refer to my Advocate letter No. Nil dated 15 Oct 99 please.”
20. The appellant, in his reply did not refute the assertion against him that the order dated 1.10.1999 was shown to him when he joined at Meerut. The letter of the appellant’s lawyer to which the appellant made a reference in his reply dated 21.10.1999 reads as under:-

“Dear Sir,
1. On behalf of my above named client, the above mentioned writ petition against orders of cancellation of his promotion has been filed in Hon’ble Delhi High Court. The said writ petition along with Civil Mi. Application for interim orders came up for hearing before the Hon’ble Court on October 15, 1999. The Hon’ble High Court was pleased to issue notice for both of them and the Civil Misc. Application is to come up for hearing on October 23, 1999. Advance copies of writ petition and the application thereto have already been served upon the Standing Counsel for the Union of India.
2. Since, the matter is sub-judice, you are requested to refrain from actions to disturb the position of status-quo which will be in the interest of justice.
3. The orders dated October 15, 1999 passed by the Hon’ble Court has been requested ‘dusty’ which will be dispatched to you immediately on receipt. This is for your information and necessary action please.”
21. It is thus apparent that the appellant did not refute nor did he explain as to how in the teeth of the order dated 1.10.1999 he issued the casualty joining report in para 2 indicating that he was taking over in the rank of Colonel. This shows that the appellant was trying to scuttle the issue and not respond to the same. Secondly it is not disputed by the appellant that in terms of the army Head Quarter instructions dated 1.5.1974 the casualty order could not have been issued prior to 21 days of the appellant joining his duties at Meerut. Obviously, the appellant was in a hurry and the presumption would be that he did so because he was aware of the order dated 1.10.1999. We agree with the findings of he learned Single Judge been so far as the first issues himself.

22. This takes us to the second issue. Learned counsel for the appellant contended that the appellant stood empaneled for promotion in terms of he officer order dated 12.4.1999 and 23.4.1999. The appellant became entitled to be granted acting rank and pay of Colonel with effect from the date the appellant assumed his new appointment subject to his remaining in acceptable medical category and there being no drop in performance i.e. the two conditions set out in the order dated 12.4.1999. It was contended that where an officer is empanelled for promotion and the vacancy in the promotional post exists, the officer get a vested right to be promoted subject of course to any rule or law which interdicts the promotion. It was argued that it is not the case of the respondent that there was either a drop in performance or that the appellant did not remain in the acceptable medical category and therefore, in any case, the appellant would be entitled to assume charge in the acting rank of Colonel with full pay.

23. Stand of the respondent, as noted above, is that on 24.12.1996 a DV Ban order was issued and as per para 3 the DV Ban order comes into force the moment a disciplinary authority competent for the purpose applies its mind to the offence and take cognizance of the offence with the intention of initiating disciplinary or administrative proceedings against the offender in respect of the offence.

24. We have noted above paras 3, 7 and 8 of the DV Ban order. Para 3 stipulates that a DV Ban order has to be issued when the competent officer takes cognizance of an offence with the intention of initiating disciplinary or administrative proceedings against an officer. As per para 7 a disciplinary authority takes cognizance of an offence when he decides to proceed against the person who has committed the offence. It is clarified in para 7 that the word “cognizance” is used to indicate the point when the disciplinary authority applies its mind for the purposes of proceeding against the individual. Para 8 categorises the DV Bans and provides for 5 situations where it could be imposed the same being:-

(a) when a decision to initiate disciplinary action is taken on he basis of CBI/Spe report;
(b) when cognizance of an offence is taken of Criminal Court;
(c) where after due investigation formal cognizance of an offence has been taken i.e. the competent authority directs disciplinary action;
(d) Where administrative action by way of censure or termination is directed and
(e) where the officer is suspended.
25. The case of the appellant would therefore fall in category ‘C’ under para 8 of the DV Ban order. It is apparent from a reading of sub para ‘C’ of para 8 of the DV Ban order that it can be imposed where the competent authority after due investigation takes formal cognizance of the offence. This has to be at the conclusion of the court of enquiry where it emerges that some material exists against the officer and the disciplinary authority based on the report of the court of enquiry directs that disciplinary action be taken.

26. The admitted position is that the court of enquiry concluded somewhere in September, 1999 and on 3.10.1999 Brig. (Station Commander) MV Gangadharan recommended disciplinary action against the appellant. Under normal circumstances if that be the position then obviously the order dated 1.10.1999 could not have been issued and to this extent we agree with the submission made by learned counsel for the appellant, but unfortunately for the appellant the matter does not rest here.

27. As held by the Division Bench of this court in its judgment dated 29.9.1999 passed in LPA No. 555/1998, the requirement of instructions dated 1st May, 1974, Appendix A to SAI/1/S/74 which deal with the grant of paid acting rank specify that the grant of acting promotion will be granted on issuance of an order after 21 days of the officer joining and performing the duties to the post to which he is promoted. As per the said judgment it is evidence that the officer acquires a vested right over the appointment after 21 days. Mere approval of the promotion of acting rank does not confer any legal right.

28. In view of the law laid down by the Division Bench of this court in LPA No. 555/1998, the appellant could not have issued the order dated 6.10.1999 showing himself to have assume the charge of a Colonel. The admitted position is that before a vested right could accrue in favor of the appellant, the competent authority accepting the report of the court of enquiry directed disciplinary action to be taken against the appellant and therefore no exception could be taken to the order dated 8.10.1999. In this view of the matter, we find no merit in the appeal and the same is accordingly dismissed. However we take on record the submission made by learned counsel for the respondent that the order dated 1.10.1999 and 8.10.1999 have to be read and understood in the context of DV Ban order. The effect of the two orders mean that the promotion of the appellant would be governed by para 11 of the DV Ban order, in that, it does not amount to denial, debar or non-consideration for posting or promotion and its effect would be that the order of promotion would be deemed to be in a state of suspension, if ultimately the appellant is exonerated in the disciplinary proceedings he would be entitled to his pay in the rank of Colonel with retrospective effect with all consequential benefits.

29. Appeal dismissed. No costs.