V.K.JHANJI, J. - (1.)THE present writ petition has been filed for issuance of writ of mandamus commanding respondent No. 4 to relieve the petitioner forthwith so as to enable him to join against the post of Lt. Col. at 21G 527 ASC C/O 56 APO.
(2.)IN brief the facts are that the petitioner came to be Commissioned in the Indian Army in the month of June 1986 and came to be promoted and posted as a Major in 510 ASC Bn. The case of the petitioner is that he performed well in all respects during service career and his superior officers appreciated the dedication and the meritorious services rendered by the petitioner in the Army. Further according to him it is because of hard work, merit and suitability, tile Army Selection Board considered the case of petitioner alongwith other eligible candidates for the post of Lt. Col., and as a result of selection it was conveyed to the petitioner vide Communication No. 03974/ASC/22/MSS dated 11.03.2002 that the Selection Board has considered his case and has promoted him to the rank of acting Lt. Col. as a fresh case of 1987 batch. Pursuant to his selection, another communication No. A/66044/MS -1 4/A dated 21.03.2002, annexed to the petition, was sent informing him that he stands appointed to the post of acting Lt. Col. Vide communication dated 22.3.2002 petitioner was asked to report on 15.4.2002 against the promoted post. The petitioner also received congratulatory letters from his various colleagues. When the petitioner was about to pick up the rank of Lt. Col., he was shocked to find that he was not being relieved by his Commanding Officer namely respondent No. 4. According to the petitioner this was done by respondent No. 4 on account of ulterior motive and malafide consideration and that too on flimsy grounds. The lame excuse put forth by respondent No. 4 was that some criminal proceedings were pending against the petitioner, which appear came to be instituted after the petitioner had been considered and promoted to the rank of acting Lt. Col. The petitioner time and again requested respondent No. 4 to relieve him so as to enable him to pick up the rank of acting Lt. Col., but to the dismay of petitioner, respondent No. 4 took no action in this regard. This is how the petitioner has come to this court seeking a writ in the nature of mandamus directing respondent No. 4 to relieve him so as to enable him to pick up the rank of acting Lt. Col. Further grievance of the petitioner is that he is being denied the pay and allowances of the promoted post with effect from the date he came to be promoted i.e. 15.4.2002.
In response to the notice of writ petition, the respondents have filed the detailed objections. The only objection which merits consideration is that the petitioner is not being relieved because a criminal case against him and some other army personnel was lodged at Police Station Sunderbani vide FIR No. 37/2001 dated 11.10.2001 under Sections 458,452, 427 and 327 RFC by some civilians. According to the respondents the said case is presently tried by the military authorities. Admittedly the criminal case referred to in the objections was lodged after the petitioner had been promoted and pendency of the said case cannot be a ground for with -holding the promotion. Infact keeping the order of promotion in abeyance on account of pending investigation/criminal case would amount to imposing punishment on the petitioner. The case which has been registered against the petitioner and some other army personnel has yet not been concluded nor any finding has been given by any court that the petitioner is guilty of offence for which he is charged. If such a course is allowed to be adopted, it would be complete violation of constitutional rights guaranteed under Article 16 of the Constitution of India. Neither the Army Act nor the rules framed there under or the regulation give any power to the respondents to cancel or keep in abeyance an order of promotion once made and that too on the ground that some criminal case is pending trial before a court. In 'Romesh Chander v. G.O.C. Northern Command and Ors.' 1977(2) Service Law Reporter 864, Dr. A.S. Anand -J (as his Lordship then was) in such like circumstances opined that the executive power cannot be used in arbitrary manner unless backed by some rule of law and the use of executive power without any authority of law is a negation of rule of law, which, in the present legal set up of the country, is a fundamental thing. His Lordship was pleased to observe that the of promotion once passed cannot be cancelled or kept in abeyance simply on the ground of some pending inquiry. The order of promotion granted not only a higher rank to the petitioner but also entitled him to receive higher salary and emoluments attached to the promoted rank and the petitioner cannot be deprived of the said benefits except after following the procedure established by law of the writ petition, learned counsel appearing on behalf of respondents has placed on record copy of order dated 3.1.2003 showing that the criminal case which had been lodged against the petitioner, was transferred to the Military Court and the punishment which has been awarded to the petitioner is 'reprimand'. Learned counsel has not been able to explain how the petitioner can be denied promotion simply because he has been reprimanded and that too much after the petitioner had been promoted. 5. In view of the above, this writ petition is allowed and General Officer Commanding -in -Chief, Northern Command, C/O 56 APO is directed to allow the petitioner to join on the post of acting Lt. Col. at 527 ASC C/O 56 APO forthwith. The respondents are also directed to pay to the petitioner pay and allowances of the rank of acting Lt. Col. w.e.f. 15.4.202 within a period of three months from the date of receipt of certified copy of the order, failing which the petitioner shall be entitled to interest @ 12% on the arrears from the date of expiry of three months till the actual payment is made. Since the petitioner despite having been promoted was forced to approach the court for appropriate relief, he is entitled to the costs of this petition which is assessed at Rs. 5000/ -.