Decided on October 18,1999

Pushpandadan Naik Respondents


DOBIA, J. - (1.) THE respondent/writ -petitioner was visited with an order of punishment. Severe reprimand was administered to him. An order to this effect was passed on 12 -09 -1995. This punishment was awarded because the respondent/writ -petitioner was found guilty of dis -obeying the command given to him by his Superior Officer on 07 -09 -1995. He was also found using threatening language towards his officer. This incident is said to have taken place on 08 -09 -1995. The further fact is that the petitioner was promoted as Havaldar. This was w.e.f. 01 -09 -1995, HQ Signal No. C -2307 was issued on 24 -08 -1995. However, before a formal order of promotion can be issued the aforementioned punishment was awarded to him. His promotion was with -held.
(2.) THE respondent/writ -petitioner challenged this action of the appellant. The writ petition stands allowed. The Union of India has come in appeal. The writ -petition was allowed inter -alia on the grounds: i) The promotion of the respondent/ writ -petitioner having been cleared by the Departmental Promotion Committee w.e.f. 01 -09 -1995 any disability or disqualification incurred by him can have only prospective effect; ii) If the order of promotion was to be withheld it would virtually amount to reduction in rank. This was to be done then it was incumbent upon the appellant and its officers to hold some inquiry in the matter;
(3.) IN addition to the aforementioned reasoning, while allowing the writ -petition it was also observed that if promotion order was to be withheld then it was incumbent upon the authorities to comply with the procedure indicated in Rule 43 of the Border Security Force Rules. As no inquiry was conducted, the order with -holding the promotion was found to be bad. It is this order which is subject matter of challenge in this appeal. Learned counsel appearing for the Union of India submits that as promotion order was not actually issued and as before the promotion order was conveyed to him the respondent/writ -petitioner was punished, therefore, the Union of India was competent to with -hold the promotion. For this reliance is being placed on a Circular issued by the Ministry of Personnel, public grievances and Pensions Department of Personnel & Training on 14 -09 -1992. In this Circular the scope of the decision given by the Supreme Court in Union of India Vs. K.V. Jankiraman (AIR 1991 SC 2010) was considered. Learned counsel for the Union of India submits that as per the aforementioned circular, the writ petitioner is not entitled to any benefit as this circular is based on the decision of the Supreme Court of India. It would be apt to notice the decision given by the Supreme Court. ;

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