Arjun Singh vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

The application, seeking condonation of delay of 430 days in preferring this appeal, is not opposed by Mr. K. P. Upadhaya, learned counsel for the respondent nos. 4 & 5, and the delay is, therefore, condoned. Delay Condonation Application No. 10978 of 2019 stands disposed of.

This appeal is preferred against the order passed by the learned Single Judge in WPSS No. 1248 of 2015 dated 03.05.2018. The appellant herein filed WPSS No. 1248 of 2015 seeking a writ of mandamus directing the respondents to promote the petitioner on to the post of Company Commander, (wrongly stated as Platoon Commander in the prayer), from the date of promotion i.e. 28.01.2015, when juniors to the petitioners and other incumbents had been promoted; and they may further be directed to give the salary of the promotion post, to the petitioner, from the date of promotion.

The petitioner has not even challenged the validity of the promotion, of respondent nos. 4 & 5, as Company Commander. He only seeks to be treated at par with his juniors, and to be promoted from 28.01.2015. In the order under appeal, the learned Single Judge has held that, while the petitioner had secured overall 59 marks, respondent nos. 4 & 5 had secured 66 and 70 marks respectively; the case of the petitioner was that he had been given only 04 marks in the interview; the scope of judicial review of this matter was very limited; the Court cannot substitute its wisdom for the wisdom of the Selection Committee, more particularly when no mala fides have been alleged against members of the Departmental Promotion Committee; the contention that 36 posts were to be filled up, but only 33 posts were actually filled up, would not justify the remaining posts being filled up, since the Court cannot, ordinarily, order the respondents to fill up all the posts by way of promotion; and it was a policy matter. The writ petition was, accordingly, dismissed.

Sri Himanshu Pal, learned counsel for the appellant, would submit that the appellant-writ petitioner had specifically raised the contention that respondent nos. 4 & 5 did not fulfil the eligibility criteria of having at least 10 years experience, as a Sub-Inspector/Platoon Commander, to be considered for promotion to the post Company Commander; the action of the respondents in promoting them as Company Commander was illegal; the private respondents were appointed as Sub-Inspector/Platoon Commander only on 30.07.2005; and, if the ten years minimum period of service required to be considered for promotion, is reckoned from that day, they would have completed the minimum required ten years of service only on 30.07.2015; and would not, therefore, have been entitled to be promoted prior thereto on 28.01.2015; and the official respondents had given the benefit of retrospective appointment, as Sub-Inspector/Platoon Commander from 08.11.2002, to the private respondents which was wholly illegal.

On the other hand Mr. K.P. Upadhaya, learned Senior Counsel appearing on behalf of respondent nos. 4 & 5, would submit that the selection process undertaken in the year 2002 was interdicted in the light of a C.B.I. enquiry; on the basis of the report submitted by the C.B.I., it was found that seven ineligible candidates had been appointed as Sub-Inspector/Platoon Commander; except for these seven posts, all the remaining posts of Sub-Inspector/Platoon Commander were filled up on 08.11.2002; pursuant to the report of the C.B.I., the earlier selection of seven Sub-Inspector/Platoon Commanders was set aside, and seven others, included the private respondents, were appointed as Sub-Inspectors/Platoon Commanders in their place vide proceeding dated 30.07.2005; and, since they all form part of the same batch of candidates who were appointed as Sub-Inspector/Platoon Commander on 08.11.2002, the private respondents were given the benefit of having their services, as a Sub-Inspector/Platoon Commander, reckoned from 08.11.2002, vide proceedings dated 23.07.2014.

While Mr. Himanshu Pal, learned counsel for the appellant-writ petitioner, would contend that the proceedings dated 23.07.2014, giving the private respondents the benefit of retrospective appointment from 08.11.2002 instead of 30.07.2005 when then they were actually appointed, is illegal, the fact remains that the proceedings dated 23.07.2014 has not been subject to challenge in this writ petition; and, in the absence of a challenge being put forth thereto, it would be wholly inappropriate for us to consider the validity or otherwise of the proceedings dated 23.07.2014.

Since no other contention has been raised in challenge to the order under the appeal, the Special Appeal fails and, is accordingly, dismissed. No costs.