Delhi High Court
R.N.Bhatnagar vs Uoi & Ors. on 19 November, 2009
Author: Pradeep Nandrajog
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
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
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
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.
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
