Recently, in a landmark service law dispute arising from the Indo-Tibetan Border Police Force, the Delhi High Court was called upon to determine whether prior service in an analogous post should count as “regular service in the grade” for deputationists absorbed into a new cadre. At the heart of the case lay the petitioner’s claim to seniority and promotional entitlements in the Judge Advocate General (JAG) branch, raising profound questions on the equivalence of posts, the scope of deputation and absorption, and the jurisprudential limits of service seniority. Read More to uncover the Court's directive for review DPCs to assess retroactive promotions and notional benefits while rejecting claims of mala fides.
Brief facts:
Bhupinder Kumar Malik, an officer of the Indo-Tibetan Border Police Force, challenged the denial of seniority in the JAG cadre. After obtaining a law degree, he was deputed and later absorbed as Judge Attorney/Assistant Commandant, foregoing promotion in his parent cadre. He claimed that his earlier service as Assistant Commandant/General Duty should count towards eligibility, entitling him to promotion as Deputy JAG/Deputy Commandant from an earlier date. Despite repeated representations, his promotion was delayed, and he retired while seeking seniority, higher promotion, and consequential benefits.
Contentions of the Petitioner:
The petitioner argued that Assistant Commandant/General Duty and Judge Attorney/Assistant Commandant, were analogous posts with identical pay, Group ‘A’ status, and duties, and that his service as Assistant Commandant/General Duty should count as “regular service” for promotion, relying on DOPT OMs and several rulings. He alleged mala fides in delaying seniority despite MHA/DOPT clarifications and absence of any caveat in his absorption order. He also claimed entitlement to ante-dated promotion where vacancies and eligibility existed, and sought relaxation of criteria for promotion to Additional JAG/Commandant, consistent with relaxations granted to others.
Contentions of the Respondent:
The respondents maintained that Assistant Commandant/General Duty and Judge Attorney/Assistant Commandant are not analogous, as judicial functions in the JAG cadre are absent in the parent cadre, likening them to cow’s milk and buffalo’s milk despite similarities. They argued that seniority in JAG could accrue only from absorption, since deputation does not constitute regular service and absorption extinguishes prior seniority. They further asserted there is no vested right to promotion or ante-dating, only a right to consideration, denied mala fides, and contended that the petitioner was ineligible for promotion to Additional JAG/Commandant in 2009 for want of requisite service, making relaxation pleas irrelevant.
Observation of the Court:
The Court addressed the central question of what constitutes “regular service in the grade” for deputationists absorbed into a new cadre after serving in an analogous post in their parent cadre. It rejected the claim of an indefeasible right to ante-dated promotion, holding that “an indefeasible right to promotion does not arise merely because a post lies vacant while an eligible candidate exists.”
On the scope of Article 226 of the Constitution, the Court clarified that judicial review extends only to directing consideration through a DPC, not to granting promotion itself. It observed, “the court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility of assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection.”
The Court concluded while relying on the DOP&T OM that the posts of AC/GD and JA/AC were indeed analogous, as they carried identical pay scales, the same Group ‘A’ classification, and comparable responsibilities under the ITBPF Act, 1992, the 1994 Rules, and Rule 7 of the JAG Cadre Recruitment Rules. It further clarified that the expression “regular service in the grade” necessarily includes service rendered in such analogous posts by deputationists, which must be counted upon their absorption.
While referring to the case K. Madhavan v. UOI, the Court reiterated, “It will be against all rules of service jurisprudence, if a government servant holding a particular post is transferred to the same or an equivalent post in another government department, the period of his service in the post before his transfer is not taken into consideration in computing his seniority in the transferred post.”
On the allegation of mala fides, the Court found that the petitioner had failed to discharge the heavy burden of proof. It reiterated that “a plea of mala fides is a heavy burden to discharge, resting on the shoulders of one who raises it”. The Court also referred to the case E.P Royappa v State of T.N and reiterated that “the allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility”.
Clarifying the legal standard, the Court recalled the definition in State of Bihar v. P.P. Sharma, where “mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose.”
The decision of the Court:
In conclusion, the writ petition was partly allowed. The Court directed the convening of a review DPC for the year 2002 to evaluate the petitioner’s eligibility for promotion to Dy. JAG/DC, with the order to stand quashed if he is found suitable. Should he be held suitable, a further review DPC for 2009 shall be convened to consider his promotion to Additional JAG/Commandant, including relaxation of eligibility norms in line with applicable guidelines. The Court clarified that any promotion or consequential benefits granted pursuant to this exercise would be on a notional basis.
Case Title: Bhupinder Kumar Malik Vs. Union of India & Anr
Case No: W.P.(C) 14156/2009
Coram: Justice C. Hari Shankar, Justice Ajay Digpaul
Advocate for Petitioner: Sr. Adv. A.K. Behera, Adv. Amarendra P. Singh
Advocate for Respondent: CGSC Bhagwan Swaroop Shukla, Advs. Sarvan Kumar, Mukesh K. M. Pandey, Satyam Singh
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