i.12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 19th November, 2009
+ W.P.(C) 2704/2008
R.N.BHATNAGAR ..... Petitioner
Through: Ms.Rekha Palli and Ms.Punam
Singh, Advocates
versus
UOI & ORS ..... Respondents
Through: Ms.Rajdipa Behura and
Mr.C.S.Chauhan, Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be reported in the
Digest? No.
PRADEEP NANDRAJOG, J. (Oral)
1. The petitioner was promoted to the post of Second- In-Commandant (2 IC) on 29.3.2004 under BSF and on 26.4.2004 was attached to the 35th Bn. Working in the said battalion he was attached to the 117 th Bn. on 15.2.2006.
2. On 5.4.2006 he proceeded on deputation to the Rajya Sabha. Before proceeding on deputation, the petitioner gave an undertaking as under:-
"It is certified that I, R.N.Bhatnagar, Second In Commandant, serving in 35th Bn. BSF w.e.f. 26.4.2004. It is further certified that I will not claim WP(C) No.2704/2008 Page 1 of 5 any promotion/seniority if selected for deputation to Rajya Sabha Secretariat before completion of mandatory service as 2 IC."
3. Reason why petitioner gave said undertaking is that till the BSF (General Duty Officers) Recruitment Rules 2001 were notified there was no requirement that to be eligible for promotion to the next higher post of Commandant, persons holding the rank of 2 IC have to serve in a duty battalion for at least 2 years.
4. With the promulgation of the 2001 Rules, it was made an eligibility condition that to be eligible for being considered for promotion to the post of a Commandant, the person holding the post of 2 IC should have served in a duty battalion for at least 2 years.
5. Needless to state, when proceeding on deputation to Rajya Sabha on 5.4.2006, the petitioner had 21 days less service in a duty battalion. The undertaking was obtained by the employer lest the petitioner lays a claim that being sent on deputation to the Rajya Sabha he had no role therein and thus lay a claim that he should be given the benefit of 2 years service in a duty battalion.
6. To put it differently, the undertaking evidences a conscious knowledge on the part of the petitioner that his proceeding on deputation would render him ineligible for being considered for promotion to the next post since he had 21 days less service in a duty battalion WP(C) No.2704/2008 Page 2 of 5
7. On being repatriated from the Rajya Sabha on 9.4.2009, petitioner raised the issue of his being promoted to the next post by claiming that he should be given relaxation from the eligibility condition.
8. The petitioner retired on 31.5.2009.
9. It is no doubt true that under the 2001 Rules, vide Rule 13 a power of relaxation is vested, but the same is to be exercised with respect to any class or category of persons and not individuals. Rule 13 reads as under:-
"13. Power to relax. -
Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of perons."
10. While deciding a batch of writ petitions, vide our order dated 27.10.2009, we had granted relief to a group of persons holding the post of 2 IC directing that as a group, power of relaxation under Section 13 be considered for relaxation by the appropriate Government.
11. We did so for the reason we noted that large number of persons holding the post of 2 IC were posted by the employer at non-duty battalions and they had no say in the transfer posting orders. We had further noted the fact that these persons went without demur to join at the place of posting at non-duty battalions post 2001 for the reason their seniority position was fairly low. They had a reasonable WP(C) No.2704/2008 Page 3 of 5 expectation that by the time they would be senior enough to be considered for promotion they would have served in duty battalions. We had further noted that with the expansion of BSF by way of creation of additional battalions in March 2004, there was a quantum jump in the posts which became available under BSF. Thus, previous calculations failed. All of a sudden, large number of officers became eligible for promotion in March 2004.
12. The result was that junior persons were being promoted and claim of seniors was being denied on the ground that the senior persons had not served in duty battalions for 2 years.
13. Under the circumstances mandamus as noted hereinabove was issued in the batch of writ petitions, lead matter being W.P.(C) No.21900/2005 Ashok Kumar Vs. UOI & Ors.
14. Similar benefit cannot be granted to the petitioner for the reason by the time he proceeded on deputation to the Rajya Sabha in the year 2006 he was aware of the quantum jump in the number of posts as also of the fact that he was required to serve in a duty battalion for a period of 2 years as 2 IC.
15. In this context, the undertaking given by the petitioner and as noted above also has to be kept in mind.
16. It is a conscious case of waiving of an entitlement. WP(C) No.2704/2008 Page 4 of 5 The petitioner consciously proceeded on deputation to Rajya Sabha, fully aware that he was having 21 days short service as 2 IC in a duty battalion
17. The only further issue which needs consideration is whether the respondent is at fault in not posting the petitioner in a duty battalion for 21 days after he returned from the Rajya Sabha on being relieved on 9.4.2009.
18. It be noted that the petitioner retired on 31.5.2009. The interregnum period is too short for the respondent to have taken a decision as to where the petitioner should be posted. 19 We conclude by observing that the petitioner took a conscious decision in April 2006 to proceed to Rajya Sabha. The undertaking given by him shows the consciousness of the decision taken by him.
20. Noting that the power of relaxation under Rule 13 is vested, to be exercised, in respect of a class or a category of persons and not individuals, we dismiss the writ petition.
21. No costs.
PRADEEP NANDRAJOG, J.
SURESH KAIT, J.
NOVEMBER 19, 2009 mm WP(C) No.2704/2008 Page 5 of 5