IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI

 

Subject : Promotion in Service

 

CW.2623/2002

 

       Date of Decision :  23.7.2004

 

             

Brijesh Kumar Sharma                                                 ..... Petitioner

                                                                            Through :    in person.

 

                                                  versus

 

The Defence Secy. & Other                                         ..... Respondents,

                                                                         Through :Ms.Rekha Palli, Advocate

 

COURAM:

Hon’ble Mr. Justice B. A. Khan

Hon’ble Mr. Justice B. N. Chaturvedi

 

 

B.N. CHATURVEDI,  J.

 

1.                  The petitioner was enrolled as Naik/Clerk in the Indian Army on 30th of March, 1982.  He was awaiting consideration for grant of commission/departmental promotion to the rank of Havildar/Clerk.   In view of adverse ACR for the year 1988,  he was, however, not approved for promotion to the rank of Havildar with his batchmates.  Adverse remarks in his said ACR later came to be expunged and he was accorded promotion in the paid rank of Havildar with effect from 3rd of November, 1992 with notional seniority,  with effect from 1st of November, 1989 - the date when his batchmates got their promotion.

 

2.                  On 8th of April, 1995, the petitioner made a direct complaint to the Chief of the Army Staff by passing prescribed channel for redressal of grievances  and, consequently, disciplinary action was initiated against him by holding a Court of Inquiry in the Unit whereupon he was punished by awarding `Severe Reprimand' on 27th of January, 1996.

 

3.                  In September, 1996, the petitioner was attached to 6 Field Regiment for disciplinary action against him on five charges, which were, however, eventually dismissed vide 6 Field Regt. letter No.1469417/CF/6/A dated 3.6.1998 and no further action was taken on those charges against him.

 

4.                  The petitioner left the location of 6 Field Regiment on 23rd of January, 1997 without seeking any leave and appeared before the Defence Secretary, respondent No.1, to plead for redressal of his grievances.

 

5.                  The petitioner later filed a writ petition No.2597/97 before this Court with the following prayers:- 

 

"(a)   to consider the promotion to the rank of Naib Subedar on the basis of past records of service irrespective of ACRs criteria and punishment caused due to ACR for the 1988 as your petitioner 3 years ACRs i.e. 1995 to 1997 out of last five mandatory ACRs were not initiated by the respondent.

 

(b)   to consider the grant of commission at per his batchmates of 1989 irrespective of ACRs on the basis of past record of service.

 

(c)   to consider the leave of absence applicable and granted to your petitioner for attending court case in addition to other entitled leaves under the purview of AA Sec. 32 & 33.

 

(d) to stop court martial proceedings for dismissal from service as intended for alleged nature of charges i.e. 5 filmsy nature which were already quashed by the competent authorities

 

(e)  to allow to join the duty by regularising the absent period as your petitioner was not allowed to join the duty and declared illegal deserter from the duty w.e.f. 23 Jan 97 and onward (23 Jan to 19 Oct 97).

 

(f)  cost and cost and other relieves as to this Hon'ble Court deem fit."   

 

6.                  This writ petition was disposed of on 29th of August, 1997.  The order reads thus:-  

 

"Major Vashisht appearing for the respondent states that in this particular case on account of the court's directions action against the petitioner for representation directly to his higher authority thereby bye-passing the channel would not be taken, though in all other cases under the rules such action amounts to indiscipline in the Army.  No officer can bye-pass the channel.  Such an action amounts to offence under the rules.  But since Court has taken the view that in peculiar facts of this case action be not taken for this violation, the department will abide by the order of this Court. So far as the expunging of the remarks of the ACR for the period 1988 is concerned, consequential benefit of three years seniority has been given to the petitioner.  As regards his promotion, that will be done by the competent authority in accordance with rules and on the basis of his ACRs and over all performance.  In this view of the matter, I do'nt think any further directions are required to be passed on this petition.  The petition is accordingly disposed of with the above observations.

 

7.                  The petitioner reported to the Officer-in-charge, Records/Group Commandant, Bengal Engineer Group and Centre Roorkee on 3rd of September, 1997 and 6th of October, 1997 and he was allowed to be retained in Group Headquarters Company Unit Line.  He was, however, not taken on its strength.

 

8.                  The petitioner filed a CM.No.8059/97 in CWP.2597/97 seeking a direction to the respondents for regularisation of his absence.  On 13th of October, 1997, an order was passed on the aforesaid application for regularising the period of absence and also to allow the petitioner to join the duty.  The order runs as under: 

 

                     "So far as petitioner's joining is concerned, he says , he reported to the Transit Camp Office at Srinagar.  But they did not let him join his duty nor posted him to any Unit.  He accordingly was forced to come to this Court in order to know his joining place.  Since he has been roaming from one  place to other for joining duty but has been deprived of the same for no fault of his, hence this period which he spent seeking joining of duty be regularised and be not treated absent.  In view of the circumstances explained it is ordered that the period after the order dated 29th August, 1997 was passed till next week be not treated as absent.  Counsel for respondent says that let petitioner join at 6 Artillary Regiment at Srinagar where he was attached earlier.  Order accordingly.  Respondent will intimate to the 6 Artillary Regiment to permit the petitioner to join.  Petitioner will join the said Regiment within a week from today failing which he may be treated  as unauthorisedly absent.

 

                     With these observations the application stands disposed.  Dasti."

 

9.                  In October, 1997, the petitioner filed an appeal(LPA.No.237/97) before the Division Bench of this Court against the order passed by learned Single Judge, as, according to him, only partial redressal of his grievances had been granted.

 

10.                According to the petitioner, he was sanctioned 15 days casual leave with effect from 20th of October, 1997 to 3rd of November, 1997 and he re-joined his duty at Srinagar after availing of the leave so sanctioned.  He was, however,  not paid his pay and allowances for the period of sanctioned leave.     He was also denied the pay and allowances  from 29th of August to 19th of October, 1997.  The  petitioner pleads that the period of his absence from 29th August, 1997 to 19th of October, 1997 has not been regularised in spite of order of this Court in that regard.

 

11.                On 12th of February, 1998, GOC, HQ, 15 Corps, after dismissal of charges against him reverted the petitioner to his parent unit, 53 Engineer Regiment at Bhatinda(Punjab) without recommending any disciplinary action for the period when the petitioner was away from Srinagar.

 

12.                On 29th of April, 1998 in LPA.No.237/97, on CM.No.760/98, the Division Bench of this Court passed an order to the following effect:-

 

"Let  reply be filed by the respondents.  It is stated before us by Major A.K.Vashisht that owing to che charges of being away without leave on two occasions, the appellant has been punished and the rules do not permit giving of officer's rank to a person with that kind of blemish on his record.  Relevant rules be also brought to our notice on the next date of hearing."  

 

13.                Again, on 3rd of August, 1998, yet another order on the aforesaid application, came to be passed in the following terms:-  

 

"  We would like the respondents to comply with the order dated 29.4.1998.

 

       During pendency of the case, the appellant be granted leave to attend the Court whenever required.  This will not be deducted from the leave to which the appellant is entitled."

 

 

14.                LPA.237/97 was finally disposed of vide order dated 12.3.1999, which runs as under:

 

"LPA.237/97

 

                     Appellant's writ petition No.2597/97 was disposed of on 29th August, 1997 when virtually all prayers of the appellant were granted and direction was made that promotion will be done by the competent authority in accordance with rules and on the basis of his ACRs and over all performance.

 

                     We have heard the appellant who appears in person. His grievance in appeal is two fold that the order dated 29th August, 1997 has not been complied with in letter and spirit and that he has not been considered for further promotion for which it is claimed that he was recommended by the Service Selection Board. Another  related grievance made by him is that while granting promotion he has not been paid the pay and allowances of the promotion post from the date on which promotion was made.

 

                     All grievances of the appellant for the cause of action had arisen to the appellant on the date of filing of writ petition were considered and reliefs were granted in the decision rendered on 29th August, 1997.  For seeking enforcement of the order dated 29th August, 1997,  the appellant will have to file appropriate application before learned Single Judge, in case the appellant considers that pursuant to the said order all consequential benefits have not been allowed to him.  For the other matters for which cause of action has arisen to the appellant subsequent to the filing of the writ petition, appeal  would not be an appropriate remedy.  The appellant will have to seek recourse to law separately.  Reserving liberty to the appellant to move learned Single Judge for enforcement of the order of learned Single Judge and for other reliefs for which cause of action has arisen subsequently by separate proceedings, this appeal stands disposed of.  DASTI.

    

CM.No.127/99

 

                     The application is rendered infuctuous and is disposed of accordingly.

 

CM.No.383/99

 

                     In case the appellant is entitled to grant of leave in accordance with service conditions, it will be open for the appellant to submit an appropriate representation before the competent authority within a period of one month from today, which if made will be duly considered and appropriate orders thereon in accordance with law within a period of one month thereafter.  The application stands disposed of."

 

15.                In view of order dated 12.3.1999, the petitioner filed CM.2745/99 in CWP.2597/97 before the learned Single Judge of this Court, but the same was dismissed on 30th of October, 2000. The petitioner had also filed a CCP.No.20/2000 for violation of court orders dated 29.8.1997 and 13.10.1997 passed by learned Single Judge and order dated 29.4.1998 of the Division Bench in regard to regularisation of absence period from 23rd of January, 1997 to 3rd of November, 1997. This petition was, however, dismissed by an order dated 11.8.2000, which reads thus:

 

" CCP.20/2000

 

                     Petitioner is a Hawaldar in the army. He filed CWP.No.2597/97 complaining about some proposed action against him for communicating with the Chief of Staff direct.  He also challenged his recording of ACR of 1988 and for his non-consideration for promotion to next higher rank. This court passed order dated 29.8.1997 providing that no action be taken against him for by-passing channels of communication and that he be considered for promotion under rules.  He has now filed this contempt petition alleging breach of this  order. He alleges that respondents had taken action against him for by-passing the communication channel as would be evident from order dated 27.1.1996.  He also complained about his posting to SRINAGAR which is not the subject matter of this order.

 

                     Pleas raised by petitioner are meritless. He has been reprimanded by order dated 29.8.87(27.1.96) much before the passing of court order which would operate prospectively only.  As regards his grievance about his posting it falls outside the purview of court order.

 

                     I accordingly find no merit in this petition which stands dismissed.  Proceedings are dropped and rule discharged."

 

16.                The petitioner      complains that he was to be considered for further promotion from Havildar/Clerk to Junior Commission Officer rank on the basis of the last five ACRs, out of which three ACRs were required to be `above average' and two ACRs `high average'.  However, due to non-initiation of  three ACRs for the years 1995, 1996 and 1997 on the ground of his not completing required 90 days physical service under any particular officer, he has been denied such promotion.  Further, his ACR for the year 1999, which was due on 1st of October, 1999, was delayed for about six months and by that time his batchmates were already promoted in the first week of January, 2000.

 

17.                Petitioner's further grievance is that all leaves granted by this Court have been published as AWL(absent without leave) and he has been denied pay and allowances for the period of absence.

 

18.                In terms of the prayer in the writ petition, the petitioner has sought the following reliefs:- 

 

"(a)  a WRIT in the nature of mandamus commanding the respondents:-

 

 (i)                 in terms of High Court order dt. 29 Aug 97 the punishment dt 27 Jan 96 awarded for act of violation of channel of correspondence be set aside;

 

 (ii)                arrears of paid promotion w.e.f 01 Nov 89 to 01 Nov 92 as submitted before the court by the respondents; and

 

(iii)                further promotion from the Havildar/Clerk to Naib Subedar Clerk along with his batch mates with all the financial benefits;

 

 (iv)               Absent period w.e.f. 23 Jan 97 to 03 Nov 97 be ordered to publish in the part II Orders and pay and allowances for this period be given to the petitioner for 23 Jan 97 in place of 3 Nov 97;

 

 (v)                in terms of Division Bench-I of this Hon'ble High Court order dated 03 Aug 97 and Single Bench order dated 24 Mar 1999 leave of absence as mentioned at annexure `R' granted for attending High Court in addition to entitled leave be ordered to publish in the Part II Orders as temp duty and the leave which have already been deducted from the leave quota either be granted in the current year or be ordered for accumulation in leave quota, and also direct to respondents to regularise the debit of Rs.3,00,905/- caused due to wrong publication of PTOs;.

 

(vi)  to consider the grant of commission to the petitioner along with his batch mates as directed the DB-II of this Hon'ble High Court."

 

19.                The stand of the respondents in their courter-affidavit is that the punishment of severe reprimand awarded to the petitioner on 27th of January, 1996 cannot be set aside as such punishment was inflicted much prior to the order dated 29.8.1997, whereby CWP.No.2597/97 was disposed of.  It is added that no action for by-passing the channel of correspondence has been taken against the petitioner after passing of order dated 29.8.197 in the aforesaid writ petition.  The period of absence with effect from 23rd of January, 1997 to 19th of October, 1997 has already been regularised as EOL(Extra Ordinary Leave) in terms of order dated 29.8.1997 vide Part II Order dated 29.4.2002.  However, no pay and allowances are payable for that period.  It is pleaded that though notional seniority of Havildar has been given to the petitioner with effect from 1st of November, 1989, however as he had worked in that rank with effect from 3rd of November, 1992 only, no pay and allowances are payable to him prior thereto.  This fact, according to the respondents, has already been taken note of by this Court in the order dated 29.8.1997, but no direction has been issued for payment of pay and allowances for the period of notional seniority.  It is added that the leave beyond the entitled leave has already been granted to the petitioner for the days he had attended the court and his pay and allowances have been adjusted accordingly.  It is further stated that the petitioner, who could not earlier make the grade for promotion to the rank of Naik-Subedar, has now been approved for promotion and he has also completed the promotion cadre course with effect from 31st of March, 2003 to 19th of July, 2003 and will be eligible for promotion to the rank of Naik-Subedar, provided that he meets all the promotional criteria at the time of physical sanction of that rank on availability of vacancy on his turn.

 

20.                It is asserted that the petitioner is governed by the promotion policy issued in 1997 and as per para 6 thereof, for promotion to the rank of Naik-Subedar, last five ACRs have to be considered, out of which at least three should be `above average' and the remaining two, not less than `high average'. The petitioner's ACR profile for the relevant years is detailed as under:-

                     1993             Average

                     1994             Above Average

                     1995             Dispensed with (for non-completion of 90                                                                     days.)

                     1996             Average (under observation)

                     1997             Dispensed with (for non-completion of 90                                                                     days.)

                     1998             High Average

                     1999             High Average

 

21.                It is stated that in view of his ACR profile, the petitioner could not be promoted in the year 2000.  However, later, due to his improved ACR profile from 2000 to 2002, he has been approved for promotion in 2003 as he got `above average' during that period.    According to the respondents, the reliefs for which the petitioner was entitled have already been granted to him and beyond that he is not entitled for any other benefit.

 

22.                In terms of order dated 12.3.1999 on CM.No.383/99 by a Division Bench of this Court, the petitioner was granted liberty of making appropriate representation to the competent authority in regard to grant of leave in accordance with his service conditions, in case of his entitlement in that regard, within a period of one month and on such a representation being made, the same was to be duly considered and appropriate orders passed thereon.  However, the petitioner did not approach any authority at whatever level in the chain of command for grant of leave over and above his entitlement. 

 

23.                According to the respondents, the order dated 3.8.1998 stood modified by order dated 12.3.1999 and the respondents acted in accordance therewith.

 

24.                Noticeably, all genuine grievances of the petitioner in his service career run-up, aired in the past, were redressed by this Court, to a great possible extent.  The petitioner was, however, not to be content with and it appears that the indulgence granted by this Court, in an anxiety to secure a just and fair deal to him provided an impetus to him to rush to this court on one count or the other. Unlike a soldier wedded to guard national frontiers, he seems to have developed a relish for fighting a frivilous  and vexatious legal battle.   He is not unnerved in raking up and re-agitating even such issues on which this court has already returned its verdict.  This can be better illustrated by referring to individual reliefs, as sought by the petitioner.

 

(a)(i) A punishment of severe reprimand was inflicted on the petitioner on 27th of January, 1996 for by-passing the channel of correspondence in view of his making a direct representation to the Chief of Army Staff.  In the year 1997, he filed a CWP.No.2597/97.  He did not seek quashing of the aforesaid punishment and no relief was sought in that regard in that petition.  The punishment of severe reprimand appears to have had no impact on the petitioner in adhearing to service discipline and there was a repeat of a similar act of indiscipline when on 23rd of January, 1997 the petitioner left his unit without seeking any kind of leave and proceeded to seek a personal interview with Defence Secretary  and actually appeared before him to plead for redressal of his grievances. Being an act of indiscipline, the petitioner, obviously, rendered himself liable for appropriate disciplinary action against him. In a bid to pre-empt any disciplinary action, he rushed to file the said writ petition before this Court and on a statement being made on behalf of respondents, in pursuance of some direction by this Court, action in contemplation for aforesaid act of indiscipline was shelved.  Though it was open to the petitioner to have challenged the punishment of severe reprimand inflicted on him on 27th of January, 1996, he omitted to do so in his CWP.2597/97.  As the said punishment of severe reprimand was not the subject matter of that writ petition, the order dated 29.8.1997 incorporating the statement on behalf of the respondents, not to proceed against the petitioner for his aforesaid act of indiscipline, had no bearing on the punishment of  severe reprimand awarded to the petitioner earlier on 27th of January, 1996.  Notably, the petitioner had filed a CCP.No.20/2000 seeking contempt action against the respondents for allegedly defying the order dated 29.8.1997 of this Court, but his plea in this regard was negatived by holding that the order dated 29.8.1997 operated prospectively and not retrospectively and finding no merit, the petition was dismissed on 11th of August, 2000.  The punishment of severe reprimand awarded on 27th of January, 1996 is being assailed by the petitioner on the ground that in spite of a categorical statement before this Court made on behalf of the respondents that no action would be taken for by-passing the channel of correspondence, the punishment of severe reprimand awarded on 27th of January, 1996 was not set aside.  The plea in this regard is totally misconceived. While dismissing the CCP No.20/2000, it was clearly held by this Court that the order dated 29.8.1997 operated only prospectively and not retrospectively and, therefore, that order did not require the respondent to undo the punishment of severe reprimand which had already been awarded before filing of CWP.No.2597/97 by the petitioner, by setting aside the same.  In view of a clear finding by this Court while disposing of CCP No.20/2000 that there was no breach of order dated 29.8.1997 on the part of respondent by omitting to set aside the punishment of severe reprimand awarded on 27th of January, 1996 by raising the same very plea once again in the present writ petition, the petitioner has simply tended to misuse the judicial process and in the  circumstances, the relief being sought  merits  outright rejection.

 

(a)(ii)  The petitioner was promoted in the rank of Havildar with effect from 3rd of November, 1992.  He was, however,  extended benefit of notional seniority with effect from 1st of November, 1989, which was the date when his batchmates had got their promotion.  This fact was taken note of by this Court while passing the order dated 29.8.1997.  However, as no relief of arrears of pay and allowances for the period of notional seniority was sought by the petitioner in his earlier CWP.No.2597/97, there was no occasion to pass any order in that regard.  Admittedly, the petitioner had not physically served in the rank of Havildar during the period 1.11.1989 to 2.11.1992 for which he was given the benefit of notional seniority.  If he was really aggrieved by denial of pay and allowances for that period, he was at liberty to raise that issue in his writ petition No.2597/97.  He, however, omitted to do so.  After a lapse of about ten years, wisdom appears to have dawned upon him to stake a stale claim of pay and allowance for the period of notional seniority.  The Division Bench of this Court was quite categorical in stating in its order dated 12.3.1999 that for the reliefs covered under the order dated 29.8.1997 in CWP.No.2597/97, the petitioner could seek enforcement thereof by making appropriate application to the learned Single Judge and for the cause of action which arose subsequent to passing of the aforesaid order, the petitioner could take to appropriate remedy available under law.  Clearly, the cause of action related to denial of pay and allowances in the rank of Havildar for the period of notional seniority arose prior to the filing of CWP.No.2597/97 but the petitioner opted not to raise that issue therein and no relief in that regard was sought by him in that writ petition. It would be a mockery of judicial process to allow stale claims of this nature to be revived in renewed bouts of litigation, particularly to a person like the petitioner who appears to have developed a fascination for rushing to this Court on the  slightest pretext. The conduct of the petitioner does not commend us to overlook the element of delay and laches in coming up with the present petition for relief in question and, we accordingly,  find that the relief is barred by delay and laches,  hence liable to be declined.

 

(a)(iii)   The batchmates of the petitioner appear to have been promoted to the rank of Naib Subedar in the first week of January, 2000.  The order dated 29.8.1997 in CWP.2597/97 provided that his promotion  'will be done by the competent authority in accordance with rules and on the basis of his ACRs and over all performance'. In terms of averments in the petition, for any further promotion, last five ACRs were to be taken into account, out of which three ACRs were required to be 'above average' and two ACRs `high average'.  Admittedly, the ACRs for the year 1995, 1996 and 1997 had to be dispensed with as the petitioner had not completed required 90 days physical service under any particular officer during the said period. According to the petitioner, the initiation of the ACR for the year 1999 was delayed for about six months and by that time his batchmates had already been promoted.  Assuming  that there was some delay in initiating the ACR for the year 1999, as alleged by the petitioner, even if the ACR for the said year would have been recorded on time, it would have made no material difference as far as consideration for further promotion of the petitioner to the next higher rank was concerned, because as against five ACRs, only one ACR for the year 1999 would have been available.

                   It is noticed that the petitioner in his earlier writ petition No.2597/97 had sought a relief for being considered for grant of commission at par with his batchmates of 1989 irrespective of ACRs, but that relief was not granted and it was simply provided that further promotion was to be made in accordance with rules and on the basis of ACRs and over all performance. 

 

On an appeal(LPA.237/97), being preferred by the petitioner, against order dated 29.8.1997 in CWP.2597/97, the order passed by learned Single Judge, declining the relief for further promotion irrespective petitioner's ACRs, simply on the basis of his past service record, was maintained and not interfered with.  In spite of this, the petitioner chooses to re-agitate the same very issue in the present writ petition.  By doing so, the petitioner has once again tended to play with the judicial process, which is liable to be deprecated by declining to entertain the prayer in that regard.

 

(a)(iv)   Admittedly, the petitioner had left his unit in Srinagar, which was engaged in counter-insurgency operation, on 23rd of January, 1997 without seeking any kind of leave from the competent authority and remained absent up to 19th of October, 1997.  In pursuance of order dated 29.8.1997 in CWP.2597/97, his absence from 23rd of January, 1997 to 19th of October, 1997 stands regularised as EOL(extraordinary leave).  Of course, no pay and allowances have been paid for the aforesaid period.  On CM.No.8059/97 in CWP.2597/97, seeking regularisation of the period of his absence, being made by the petitioner, the learned Single Judge passed an order dated 13th of October, 1997 directing that the period after the order dated 29.8.1997 till next week be not treated as period of absence and the petitioner was directed to join 6 Artillery Regiment at Srinagar within a week from the date of that order(13th of October, 1997), failing which he was to be treated as unauthorisedly absent.  In terms of this order,  the petitioner was to report at the aforesaid regiment by 20th of October, 1997.  It appears from the averment in the petition that the petitioner re-joined duty on 19th of October, 1997 and, immediately, thereafter, proceeded on casual leave from 20th of October, 1997 to 3rd of November, 1997. 

 

In paragraph 17 of the counter-affidavit, it is stated that earlier PTO was erroneously published indicating the petitioner as re-joining the duty on 3rd of November, 1997.  The same was, subsequently, rectified showing him as re-joining the duty on 19th of October, 1997 vide PTO No.0/168/2001dated 7.3.2001 of 6 Field Regiment.  In view of such rectification showing the petitioner on duty with effect from 19th of October, 1997, the pay and allowances which were payable to the petitioner from 3rd of November, 1997 onwards become automatically payable with effect from 19th of October, 1997.  

 

The order dated 13.10.1997 on CM.No.8059/97 in CWP.2597/97 simply provided that the period spent by the petitioner in wandering from one place to another for joining his duty was to be regularised and not treated as period of absence and, accordingly, it was directed that the period after order dated 29.8.1997, by which CWP.No.2597/97 was disposed of, till next week be not treated as period of absence.  The said order, however, does not provide for treating the period of absence from 29th of August, 1997 to 20th of October, 1997 to be treated as spent on duty.  What it appears to provide is for regularisation of that period of absence by not treating him absent and, accordingly, in addition to the period of absence from 23rd of January, 1997 to 28th of August, 1997, the period of absence from 29th of August, 1997 to 19th of October, 1997 has already been regularised by the respondents as EOL(extraordinary leave) without any pay and allowances.  On  11th of May, 1997, the petitioner was declared as deserter and SOS from unit with effect from 23rd of January, 1997 and he  continued to be treated absent until his re-joining the duty on 19th of October, 1997.  Of course, his absence with effect from 23rd of January, 1997 to 18th of October, 1997 was regularised by treating the period of absence as extraordinary leave.  Such regularisation would, however, not make the petitioner entitled to claim pay and allowances for that period.  Thus, no direction is required to be issued for payment of  pay and allowances for he period prior to 19th of October, 1997.

 

(a)(v)            The order dated 3.8.1998 on CM.No.760/98 in LPA.237/97 passed by the Division Bench provided that the petitioner would be granted leave by the respondents to enable him to attend the court whenever required and that the leave so granted would not be deducted from the leave to which the petitioner was entitled.  Similarly, the order dated 24.3.1999 passed by learned Single Judge on CM.No.2745/99 also directed sanction of leave to the petitioner for attending court proceedings.  It appears that the petitioner has been granted leave by the respondents, as indicated in Annexure-`R', in pursuance of the aforesaid orders, but the petitioner is not satisfied with that only and seeks a direction to the respondents to publish the leave so granted in Part II Orders as temporary duty, and further to grant the leave to him, which had been deducted from his leave quota, either in the current year or credited to his leave quota.  He also seeks a direction to respondent No.2 to regularise the debit of Rs.3,00,905/- occasioned due to wrong publication of PTOs.  The petitioner has omitted to furnish the details of leave which, according to him, have been deducted from his leave quota.  In neither of the aforesaid orders of this court, apart from providing that all the leave shall be granted to the petitioner in addition to his leave entitlement to enable him to attend the court proceedings as and when so required, there is any direction that while on leave so granted to attend the court proceedings, the petitioner would be treated as on temporary duty. 

 

Further, no direction in the nature of a writ is required to be issued  for enforcement of the aforesaid orders passed by this court in different proceedings and in the event of either of the said two orders being not complied with by the respondents, the petitioner is at liberty to seek enforcement thereof by making appropriate application in that regard.  In the  absence of requisite details in regard to leave which,  according to the petitioner, stands deducted from his leave quota, no direction, as sought,  can be issued. 

 

On CM.No.383/99 in LPA.237/97,  an order has already been passed by the Division Bench of this Court that the petitioner is entitled to grant of leave in accordance with his service condition and if the same has been denied to him, it was open to him to make appropriate representation to the competent authority in that regard and the competent authority was directed to accord due consideration and pass appropriate orders thereon in accordance with law within a period of one month from the date of filing of representation by the petitioner.  The petitioner was required to file his representation within one month from the date of order dated 12.3.1999.  According to the respondents, the petitioner has, however, failed to make any such representation and, therefore, there was no occasion on the part of the respondents to act in the matter.

 

(a)(vi)            Even in his writ petition No.2597/97 the petitioner had  made a similar prayer for considering him for grant of commission at par with his batchmates of 1989 irrespective of his ACRs, on the basis of his past service record.  However, this prayer was not granted and while disposing of the said writ petition, the learned Single Judge clearly provided that his promotion was to be governed by rules on the basis of his ACRs and over all performance.  The  Division Bench in its order dated 12.3.1999 in LPA.237/97 did not make any order for considering the petitioner for grant of commission along with his batchmates.  In the circumstances, relief sought in this regard appears to be misconceived being not based on any  order of the Division Bench.

 

25.                In the ultimate analysis, we find the petition absolutely bereft of merit, hence dismiss  the same.

 

                                                                                   (B.N.CHATURVEDI)

                                                                                           JUDGE

 

 

                                                                                       (B.A.KHAN)

July  23,  2004                                                                 JUDGE

RS/