Delhi High Court
Ashok Kumar vs Union Of India & Ors. on 27 October, 2009
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 20th October, 2009
Judgment Delivered on: 27th October, 2009
+ WP(C) No.21900/2005
ASHOK KUMAR ...........Petitioner
Through: Ms.Rekha Palli, Ms.Poonam Singh,
& Ms.Amrita Prakash, Advocates.
Versus
UNION OF INDIA & ORS. ...........Respondents
Through: Mr.A.K.Bhardwaj, Advocate for
R-1 to 4.
WP(C) No.21902/2005
RAJESH KUMAR ...........Petitioner
Through: Ms.Rekha Palli, Ms.Poonam Singh,
& Ms.Amrita Prakash, Advocates.
Versus
UNION OF INDIA & ORS. ...........Respondents
Through: Mr.A.K.Bhardwaj, Advocate for
R-1 to 4.
WP(C) No.21904/2005
VIRENDER SINGH GEHLOT ...........Petitioner
Through: Ms.Rekha Palli, Ms.Poonam Singh,
& Ms.Amrita Prakash, Advocates.
Versus
UNION OF INDIA & ORS. ...........Respondents
Through: Mr.A.K.Bhardwaj, Advocate for
R-1 to 4.
WP(C) 22026/05 Page 1 of 30
WP(C) No.22026/2005
ASHOK KUMAR ...........Petitioner
Through: Ms.Rekha Palli, Ms.Poonam Singh,
& Ms.Amrita Prakash, Advocates.
Versus
UNION OF INDIA & ORS. ...........Respondents
Through: Mr.A.K.Bhardwaj, Advocate for
R-1 to 4.
WP(C) No.9568/2006
MAHABIR PRASAD ...........Petitioner
Through: Ms.Rekha Palli, Ms.Poonam Singh,
& Ms.Amrita Prakash, Advocates.
Versus
UNION OF INDIA & ORS. ...........Respondents
Through: Mr.A.K.Bhardwaj, Advocate for
R-1 to 4.
WP(C) No.15083/2006
KULDEEP SINGH ...........Petitioner
Through: Ms.Rekha Palli, Ms.Poonam Singh,
& Ms.Amrita Prakash, Advocates.
Versus
UNION OF INDIA & ORS. ...........Respondents
Through: Mr.A.K.Bhardwaj, Advocate for
R-1 to 4.
WP(C) No.1761/2007
RAM MEHAR SINGH DHAKA ...........Petitioner
Through: Ms.Rekha Palli, Ms.Poonam Singh,
& Ms.Amrita Prakash, Advocates.
WP(C) 22026/05 Page 2 of 30
Versus
UNION OF INDIA & ORS. ...........Respondents
Through: Mr.A.K.Bhardwaj, Advocate for R-1.
WP(C) No.6978/2007
SI/GD. SHYAM BIHARI ...........Petitioner
Through: Ms.Jyoti Singh, Advocate.
Versus
UNION OF INDIA & ORS. ...........Respondents
Through: Dr.Ashwani Bhardwaj, Advocate.
WP(C) No.7893/2007
M.J.ANSARI ...........Petitioner
Through: Ms.Jyoti Singh, Advocate.
Versus
UNION OF INDIA & ORS. ...........Respondents
Through: Dr.Ashwani Bhardwaj, Advocate.
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? Yes.
3. Whether the judgment should be reported in the
Digest? Yes.
PRADEEP NANDRAJOG, J.
1. Petitioners Ashok Kumar, Rajesh Kumar, Virender Singh
Gehlot, Ashok Kumar, Mahabir Prasad and Kuldeep Singh have
filed writ petitions; being WP(C) Nos.21900/2005, 21902/2005,
21904/2005, 22026/2005, 9568/2006 and 15083/2006
respectively, praying for the issue of a writ of Mandamus
against the respondents directing them to promote the
petitioners from the rank of Deputy Commandant to the rank
of Second-in-Command (2 IC) in Border Security Force (BSF)
with retrospective effect from the date on which the
immediate juniors of the petitioners were promoted to the rank
of Second-in-Command.
2. Petitioner Ram Mehar Singh has filed WP(C)
No.1761/2007 praying for the issue of a writ of mandamus
directing the respondents to promote the petitioner from the
rank of Sub-Inspector to the rank of Inspector in BSF with
effect from the date on which the immediate junior of the
petitioner was promoted to the rank of Inspector.
3. Petitioners SI/GD Shyam Bihari and SI M.J.Ansari have
filed WP(C) Nos.6978/2007 and 7893/2007 respectively,
praying for the issue of a writ of mandamus directing the
respondents to promote the petitioners from the rank of Sub
Inspector to the rank of Inspector in CRPF with effect from the
date on which the immediate juniors of the petitioners were
promoted to the rank of Inspector.
4. A brief resume of the service profile of the petitioners
may be noted before delving into the legal issues which were
projected at the hearing of the writ petitions by the learned
counsel for the parties.
5. Ashok Kumar, the Writ petitioner of WP(C)
No.21900/2005, was appointed as an Assistant Commandant
in the Border Security Force (BSF) on 4.2.1991. In October
1997 he was promoted to the rank of Deputy Commandant
and in view of the fact that he had a very high educational
qualification i.e. M.Sc. (Physics) with specialization in
electronics, was posted as Deputy Commandant
(Communications) at FTR HQ TC&M Agartala from 27.10.1997
to 11.7.1999. With effect from 12.7.1999 to 22.7.2003 he was
posted as an Instructor at Signal Training School, New Delhi.
He was posted to the 199 Bn. BSF on 23.7.2003 where he
remained till 12.7.2005. On 6.8.2005 he was deputed to the
46th Bn. BSF. His grievance is of not being promoted to the
rank of Second-in-Command (2 IC) when persons junior to him
were promoted on 25th and 26th August 2004. The reason
being his rendering service in a duty battalion for only five
months. As per the respondents, the service rule applicable
requires at least two years service as a Deputy Commandant
in a duty battalion as an essential condition for being
considered for promotion to the rank of 2 IC.
6. Rajesh Kumar was appointed as an Assistant
Commandant under BSF on 26.12.1990 and was promoted to
the rank of Deputy Commandant in October 1997. From
17.10.1997 to 28.6.1999 he was posted as Deputy
Commandant (Arms Inspection Authority) and in-charge of
Arms Workshop in Frontier Headquarter at Srinagar. From
1.7.1999 to 15.6.2003 he was posted at the Arms Workshop at
CSWT BSF Indore. In July 2003 he was transferred to the 15th
Bn. BSF where he served till January 2004 when he was posted
at UN Mission Duty. His grievance also is the same as that of
Ashok Kumar. The reason being his rendering service in a
duty battalion for only six months and fifteen days.
7. Virender Singh Gehlot was appointed as an Assistant
Commandant under BSF on 26.12.1990 and was promoted as
a Deputy Commandant in October 1997. On promotion he was
deputed to the 15th Bn. BSF where he worked till 11.11.1997
when he was posted to the 181st Bn. where he remained till
27.2.1999. He was thereafter transferred as the Deputy
Commandant (G) at Sector Headquarters Firozepur. On
14.5.2002 he was transferred to the 80th Bn. but before he
could proceed to said battalion, the posting was cancelled and
he remained at Firozepur till October 2003. On 29.4.2003 he
was transferred to the 192nd Bn. but the order was kept in
abeyance in public interest. Only on 31.10.2003 he was
relieved and joined at the 192nd Bn. Even his grievance is the
same as that of the two previous petitioners. The reason
being his rendering service in a duty battalion for only one
year and six months.
8. Ashok Kumar, the Writ Petitioner of WP(C)
No.22026/2005, was appointed as an Assistant Commandant
under BSF on 15.5.1989 and was promoted as a Deputy
Commandant on 15.6.1995. On promotion he was posted to
the 33rd Bn. where he functioned as a Deputy Commandant till
June 1996. Even he, having technical qualifications, was
posted in June 1996 at Sector Headquarters BSF Kolkata as
Joint Assistant Director (Communication) where he remained
till July 1999. He was posted thereafter as Director Staff
(Instructor) at the BSF Academy Tekanpur where he remained
till June 2003. He was thereafter posted at the 16th Bn. He has
the same grievance as the previous petitioners. He had
rendered service in a duty battalion for one year and six
months.
9. Mahabir Prasad was appointed as an Assistant
Commandant under BSF in the year 1991 and was promoted
as a Deputy Commandant in October 1998 and on promotion
was posted at CSMT BSF Academy Tekanpur where he worked
till on 14.5.2002 he was posted to the 100th Bn. But in public
interest the transfer/posting order was withheld and he
remained at the said academy till 24.5.2003 when he was
transferred to the 100th Bn. Even his grievance is the same as
that of the previous petitioners, he having rendered service in
a Duty Battalion for one year and six months till February
2005, in which month persons junior to him as Deputy
Commandant were promoted.
10. Kuldeep Singh was appointed as an Assistant
Commandant BSF on 26.12.1990 and was promoted as a
Deputy Commandant on 17.10.1997. On promotion he was
posted as Director Staff (Instructor) at the BSF Academy
Tekanpur where he remained posted till July 2002. So that he
could enhance his professional skills and instructional ability,
the employer sent him to the Defence Services Staff College
Wellington where he remained till April 2003 and on
completion of the course was posted at the 44th Bn. BSF where
he remained till January 2004, when he was posted at UN
Mission Kosova where he remained till January 2005. In said
month he was posted back at the 44th Bn. BSF. His grievance
pertains to persons junior to him being promoted as 2 IC in
April 2004. As on 1.1.2004, he had rendered service in a duty
battalion for only seven months.
11. The case of the other petitioners pertain to a claim for
promotion to other ranks.
12. Ram Mehar Singh joined service under BSF as an
Assistant Sub Inspector and in October 2001 was promoted to
the rank of Sub Inspector and was deputed to SHQ BSF
Kupwara where he remained till April 2006 when he was
transferred to the 109th Bn. BSF. His grievance is that at the
DPC held in the month of March 2006, his case was not
considered and persons junior to him were promoted as
Inspector on the ground that by said date he had rendered no
service as an Inspector in a duty battalion.
13. Shyam Bihari and M.J.Ansari are employed under CRPF
and their grievance also relates to not being promoted to the
rank of Inspector and their claims being overlooked in the
DPCs held when persons junior to them were promoted to the
rank of Inspector. Shyam Bihari was employed as a Constable
in CRPF on 20.7.1970 and on 28.3.2003 was promoted to the
rank of Sub Inspector. He remained posted at the BDD Dog
Squad. In the year 2007 persons junior to him were promoted
to the rank of Inspector and his claim was overlooked on the
ground that when the DPC met, he had rendered no service as
a Sub Inspector in a duty battalion.
14. M.J.Ansari was recruited as a Constable under CRPF in
the year 1970 and in the year 1984 was promoted to the rank
of Lance Naik and in March 2003 was promoted to the rank of
Sub Inspector and was posted at 89th Bn. CRPF. On 12.5.2003
he was posted under the Provisioning Directorate. He
remained under the Provisioning Directorate till February 2007
during which period he was sent for SSICC Course to CTC-III.
His grievance pertains to promotions effected to the post of
Inspector in the month of July 2007, when persons junior to
him were promoted and his claim was overlooked on the
ground that he had not completed two years service as a Sub
Inspector in a duty battalion.
15. Till Border Security Force (General Duty Officers)
Recruitment Rules 2001 were framed, the Border Security
Force (Seniority, Promotion and Superannuation of Officers)
Rules 1979 and the Border Security Force (Assistant
Commandant) Recruitment Rules 1985 were in force and as
per the said rules eligibility criteria for promotion to the post of
2 IC did not mandate that the Deputy Commandant should
have worked for at least two years in a duty battalion.
Similarly, the eligibility criteria for promotion to the post of
Inspector did not mandate that the Sub Inspector should have
worked for at least two years in a duty battalion. A similar
thing happened under the CRPF. New rules were notified on
12.5.2001 and for the first time a stipulation was added that
only those Sub Inspectors who had rendered a minimum of two
years service in a duty battalion would be eligible for
promotion to the post of Inspector. Similar was the rule for
other officers.
16. In a nutshell, the grievance of all the writ petitioners is
that transfer/posting is not in their hands. It is for the
employer to decide as to where an employee has to be posted.
The petitioners allege that it was not in their hand as to where
they should be posted. Thus, the petitioners claim that the
new service Rule(s) has acted to their detriment. They further
allege that their posting at the various institutes where
training was imparted or critical administrative duties were
performed was on account of the petitioners having a much
better service profile than their counterparts and also on
account of the petitioners having better and superior
educational or technical qualifications. Surely, petitioners
contend, better qualifications cannot become a handicap.
With reference to the pleadings in WP(C) No.21904/2005 and
WP(C) No.9568/2006, the petitioners highlight that when
Virender Singh Gehlot, who was posted at the Sector
Headquarters Firozepur was transferred on 14.5.2002 to a
duty battalion, the transfer order was withdrawn in public
interest and he was retained at the Sector Headquarters till
29.4.2003. The transfer/posting order dated 29.4.2003 was
once again kept in abeyance in public interest and he
remained at the headquarter till he was transferred to a duty
battalion on 31.10.2003. His case highlights the position that
if his posting orders to a duty battalion were not withdrawn in
public interest, when the DPC met in the year 2004, he would
have rendered more than two years service in a service
battalion. Even qua Mahabir Prasad it may be noted that while
posted at the CSMT BSF Academy Tekanpur he was transferred
to a duty battalion on 14.5.2002, but in public interest, the
order was withdrawn and he remained at the institute for one
year. Had his transfer order dated 14.5.2002 been given
effect to, even he would have rendered two years service in a
duty battalion when the DPC met in January 2005.
17. We need not reproduce the averments made by the writ
petitioners in the various writ petitions to highlight the
aforesaid submissions and note the averments in WP(C)
No.15083/2006 and the response thereto. In para 2 of the said
writ petition, the writ petitioner has averred that the
posting/transfer of the employees of BSF is the prerogative of
the Inspector General, BSF. In response to the said paragraph,
in para 2 of the counter affidavit it has been averred as under:-
"In reply to the contents of paragraph 2 of the writ
petition, it is stated that the petitioner is presently
serving in Border Security Force as a Second in
Command and posted to Sector HQ Jaisalmer-II. It is
admitted that the posting/transfer of the officers of
BSF is within the discretion and prerogative of the
Force HQrs of BSF on operational and administrative
requirement basis. It is also mentioned that the
officers posted in Critic Static Appointments could not
be abruptly transferred due to various operational and
administrative commitments."
18. We may note that the averments by some of the writ
petitioners in their writ petitions that their posting orders to
duty battalions were kept in abeyance as they were working in
critical positions in non-duty battalions have not been denied
in the counter affidavit filed. Not only that. The respondents
have justified their action by pleading, as noted in the
preceding para, that since said petitioners were posted at
critical positions, the abrupt transfer/posting orders posting
them to duty battalions could not be implemented. Similarly,
the averments by some of the writ petitioners qua they having
high academic degrees on account whereof they were
specifically selected for duty at Staff Training Institutes has not
been denied. Further, the respondents have admitted that
meritorious persons are deputed at the various academies and
training institutes. We may refer to the pleadings of the
respondents in the counter affidavit filed in WP(C)
No.9568/2006. While replying to ground F urged in the said
writ petition, the respondents have admitted as under:-
"Whereas it is an admitted fact that it is only the
exceptionally qualified personnel who are posted to
training institute and thus they cannot be penalized
for their extraordinary qualifications and skills."
19. Pertaining to the writ petitioners employed under BSF, it
is pointed out, as per pleadings in the writ petitions that in
March 2004 due to expansion i.e. creation of additional
battalions under BSF there was a quantum jump of posts in the
officers‟ category. Pertaining to the post of 2 IC, the quantum
jump was from 161 posts to 227 posts. Said fact has been
admitted in the counter affidavits filed. Similarly, there was a
quantum jump in the posts of Inspectors. The point which has
been pleaded and was highlighted during arguments was that
due to a sudden jump in the number of posts a large number
of persons became eligible for promotion. Notwithstanding the
rules being amended in the year 2001 mandating two years
service in a duty battalion, till the posts were increased in the
year 2004, nobody was much bothered as the officers in non-
duty battalions could reasonably foresee being deputed to
duty battalions and completing two years service in the duty
battalion. But, with the sudden increase in posts, the
equations at the ground level changed and large number of
officers became eligible for promotion. The futuristic
calculations tumbled like nine pins resulting in the officers
posted, for no fault of theirs, in non-duty battalions forfeiting
their claim for promotion. The petitioners point out that to
mitigate such hardships, the BSF Rules promulgated in the
year 2001, vide Rule 13 empower the Central Government to
relax the provisions of the Rules with respect to any class or
category of persons if it is necessary or expedient to do so.
The rule 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 persons."
20. The petitioners under BSF allege that they have been
discriminated for the reason (unexplainable), the Central
Government granted relaxation of two years service in a duty
battalion for promotion from the post of Assistant
Commandant to Deputy Commandant and also from the post
of 2 IC to the post of Commandant i.e. the immediate junior
and the immediate senior post to the post of 2 IC. Petitioners
wonder as to why this was done for other posts and not for
theirs. More so, for the reason the Rule in question i.e. of
rendering two years service in a duty battalion was relaxed for
other posts keeping in view the sudden increase in the cadre
strength spread all throughout each category of post. The
further grievance of all the petitioners is that under CRPF, for
the post of 2 IC, similar relaxation was given. The two writ
petitioners who claim promotion to the post of Inspector under
CRPF were left equally wondering as to why no relaxation was
given for promotion to the post of Inspector but similar
relaxation was given for the post of 2 IC. The two writ
petitioners claiming relief under CRPF allege same facts arising
out of a quantum jump in the cadre strength on account of
creation of additional battalions in CRPF.
21. Learned counsel for the petitioners urge that the action
of the Central Government, to whom, the BSF Authorities and
CRPF Authorities made a request to grant across the board
relaxation on account of sudden increase in cadre strength,
gave selective relaxation to only some category of posts as
afore-noted and denied the same to the others. The
respondents justified their action, to quote from the pleadings
in WP(C) No.9568/2006:-
"E. That in reply to Para-E of WP(C), it is submitted
that there were sufficient Dy. Commandants available
in the zone of consideration for promotion as Second-
in-Command, who fulfills all the mandatory provisions
of the RRs for the vacancy year 2004-05. However,
there was a shortfall of officers in the category of
Second-in-Command and Asstt. Commandant in the
zone of consideration for their empanelment and
promotion to the rank of Commandant and
Dy.Commandant respectively. Relaxation in
mandatory residency period/duty battalion tenure was
necessitated to these categories in order to fill up the
vacancies being raised during the vacancy year 2004-
05. Case of Dy. Commandants for relaxation has not
been taken up with MHA as there were sufficient
Dy.Commandants fulfilling the eligibility conditions
available in the zone of consideration for promotion as
Second-in-Command.
Para-F That in reply to Para F of the WP(C), it is
stated that a case was taken up with MHA by BSF to
grant relaxation of mandatory duty battalion tenure,
which has not been agreed to by the MHA. It is,
however, admitted that a general relaxation in duty
battalion and courses has been granted to CRPF upto
the rank of 2 IC and below for the vacancy years 2004-
05 and 2005-06 due to large scale expansion in CRPF
as a one time exemption."
22. To put it in a nut shell, contentions urged by learned
counsel for the petitioners are:-
A. As admitted by the respondents, transfer postings being
the prerogative of the employer, the petitioners had no say in
the matter and as disciplined soldiers of a para military force,
had to join the place in which the petitioners were posted.
Thus, the rule requiring at least two years‟ service in a duty
battalion has to apply keeping in view that for no fault of
theirs, the petitioners were not deputed in the duty battalion
and hence the respondents were obliged to exercise the power
of relaxation to all said class/group of officers who could not
complete two years‟ duty in a duty battalion on account of
administrative exigencies.
B. The respondents have exercised the power of relaxation
in an arbitrary manner, in that, for the post of 2 IC under CRPF
the condition of two years‟ service in a duty battalion has been
relaxed while denying similar benefit under BSF. Further
discrimination being within BSF, i.e. of relaxing said condition
for the post immediately below the post of 2 IC and the post
immediately above the post of 2 IC, i.e. the post of Deputy
Commandant and the post of Commandant.
C. Evidenced by the service profile of petitioner Virender
Singh Gahlot and petitioner Mahavir Singh, notwithstanding
orders being passed posting them to duty battalion, as noted
in paras 7 and 9 above, in public interest, the employer kept in
abeyance the posting orders and thereby preventing them
from having two years‟ in a duty battalion.
D. Having admitted in the pleadings that the petitioners
were posted in the academies, training institutes and
headquarters and not in duty battalion due to the petitioners
having higher order of merit and in some case higher
academic and technical qualifications, the respondents are
bound to exercise the power of relaxation for otherwise, the
service rules would operate arbitrarily against better qualified
candidates.
23. We may note at this stage that though the petitioners
have not expressly challenged the vires of the Rules
promulgated in the year 2001, but copious averments have
been made in the writ petitions urging that the Rule requiring
two years‟ in a duty battalion as an eligibility condition is
arbitrary. For said reason, a Division Bench of this Court which
heard the writ petitions, vide judgment and order dated
3.7.2007, struck down the rule as unconstitutional. The said
decision of the Division Bench was challenged before the
Supreme Court in a batch of petitions seeking Special Leave to
Appeal. Leave to appeal was granted. The appeals being CA
No.2680/2009 to Civil Appeal No.2685/2009 were allowed vide
judgment and order dated 21.4.2009, holding that since the
vires of the Rules in question was not specifically challenged,
in that, there was no prayer in any writ petition to quash the
rule, the Division Bench exceeded its mandate to strike down
the Rule. The writ petitions were restored for fresh
adjudication with a direction that the same be decided in view
of the pleadings of the parties.
24. Accordingly, all the writ petitions were listed before us for
fresh adjudication.
25. Since the vires of the Rule mandating two years‟ service
in a duty battalion for promotion to the rank of Inspector in
BSF as also the rank of Inspector in CRPF as also for promotion
to the rank of 2 IC in BSF has not to be gone into by us and we
are to proceed on the basis that the said rules are
constitutional, the only issue which needs to be decided is;
whether the respondents and in particular the Central
Government is liable to be directed to exercise the power
vested in the Central Government to relax the operation of the
said Rule. Undisputably, said power of relaxing the rules in
favour of a group or class of persons is vested in the Central
Government and in exercise of the said power, the Central
Government has relaxed the requirement of two years‟ service
in a duty battalion for certain category of posts in CRPF as also
the BSF.
26. We note that the justification of the Central Government
in so doing is that due to expansion in the two para military
forces, with creation of additional battalions in the year 2004,
there was a sudden spurt in the number of promotional posts
and wherever the number of eligible candidates was less, the
Rule was relaxed. But, whenever adequate number of
candidates were available, the Rule was not relaxed.
27. Prima facie, the reason given by the Central Government
appears to be attractive. But, a deeper look would evidence
that having not posed the right question to itself, the Central
Government may have wrongly answered the question.
28. We may illustrate as to how a question framed differently
can yield diametrically different results.
29. The question whether one can smoke while praying to
God would obviously elicit the answer: „NO‟. But, the question,
can one pray to God while smoking, may elicit the answer:
„YES‟. The reason is obvious. With the change of the subject
and the predicate in the same question, the answer may be
different.
30. The question before the Central Government was in the
backdrop of an unprecedented situation brought about in the
year 2004 with the expansion of the para military forces, as
additional battalions were created. Suddenly, there was a
quantum jump in the number of officers required to man the
units. Though the Rules were enforced in the year 2001 and
the officers were expected to write to their superior officers, if
not posted in duty battalion, to post them in duty battalions so
that they attain the necessary eligibility condition, but the
officers did not do so for they saw no reasonable chance of
becoming eligible for promotion in the near future. Besides,
being selected by the department, due to their merit and
higher qualifications, for serving in prestigious institutions, the
officers served in said institutions for the betterment of the
organization. They did not protest when, in public interest,
their transfer orders posting them in duty battalions were
withdrawn or kept in abeyance. One reason possibly could be
that they foresaw not being superceded, as within the given
cadre strength, no vacancies would have accrued in the near
future. But, with the sudden increase in cadre strength, every
calculation went haywire. Nobody could have foreseen the
increase in the cadre strength and the said increase was
undoubtedly an unexpected event. Thus, the question which
had to be posed and answered by the Central Government
was: Whether officers who were better qualified than their
brethren and had a better merit in service and were posted at
training institutes or headquarters, not because they so
desired, but because the organization thought it prudent to
post them at said institutes, were entitled as a class/group to
be considered for relaxation from the applicability of the Rule
requiring two years' service in a duty battalion because these
officers had worked on posts wherever they were directed to
work? A further question had to be posed: While answering
the previous question, what was the effect of the employer
keeping in abeyance the posting order of some of the officers
to duty battalions and retaining them in non-duty battalion, in
public interest, while considering the issue of relaxation?
31. Needless to state, while answering both the questions,
the Central Government had to apply its mind keeping in view
the fact that transfer/posting is the prerogative of the
employer and that the petitioners were posted at prestigious
institutions on account of they being more meritorious and
some of them having higher qualifications as also the fact that
it is duty of the employer to so deploy its staff that none is
rendered ineligible if there is a requirement of serving in a
particular capacity for being eligible to be considered for
promotion. Thus, the problem arising on account of the
sudden expansion in the cadre strength had to be considered,
not in a narrow perspective by the Government, i.e. whether
there were enough candidates in the feeder cadre or not, but
with a holistic perspective, with reference to the questions
posed by us hereinbefore.
32. Needless to state, as held in the decision reported as
1993 Supp. (3) SCC 575 Syed Khalid Rizvi & Ors. Vs. UOI &
Ors., the intentment of a residuary rule empowering the
employer or the Central Government to exempt the
applicability of a rule is intended to remove hardships i.e.
whenever a situation is shown to exist which is causing undue
hardship to an officer or a group of officers, the power of
relaxation must be exercised to relieve undue hardship caused
due to unforeseen or unmerited circumstances. (See para 33
of the decision)
33. In a reverse situation, where the employer had exercised
the power of relaxation and some officer had challenged the
same, in the decision reported as 1996 (8) SCC 762 SBI & Ors.
Vs. Kashinath Kher & Ors. the Supreme Court upheld the grant
of relaxation taking note of the fact that the strict
implementation of the Rule was operating harshly and in a
manner unfair to some officers with reference to rendition of
service in rural/semi-urban areas. It was held that the object
of the relaxation being to see that nobody stole a march over
the other; exercise of said power of relaxation was valid. In
the decision reported as 1998 (4) SCC 179 Ashok Kumar Uppal
& Ors. Vs. State of J & K & Ors., it was observed that where
injustice might have been caused or is likely to be caused to
any individual employee or class of employees or where the
working of the rule might become impossible, the power of
relaxation under the rules must be exercised.
34. It is settled law that where a power is vested in an
authority and the situation exists warranting exercising of said
power, non-exercise thereof would warrant the issuance of a
mandamus requiring the power to be exercised. It is equally
settled that while exercising a power where wrong questions
are posed or relevant facts are excluded or irrelevant facts are
included, the decision would be arbitrary and liable to be set
aside and a mandamus would be issued, requiring the power
to be exercised strictly within the confines of the facts within
which the power has to be exercised.
35. We may note that in all the cases, the authorities
concerned i.e. BSF and CRPF have recommended to the
Central Government that the rule requiring two years‟ service
in the duty battalion be relaxed due to the fact that all of a
sudden a quantum jump in the cadre strength took place in
the year 2004, which was not expected, and if the rule is
strictly enforced, junior officers would steal promotion over the
senior officers. Unfortunately, while exercising the power, the
Central Government posed the wrong question by considering
the adequacy or inadequacy of the number of officers in the
feeder channel. The power was relaxed for such posts where
officers in the feeder channel were less, denying similar
benefit in the other posts. The correct question which need to
be posed was, as noted by us in para 30 above; the backdrop
in which the questions needed to be answered was as noted in
para 31 above. The law applicable is the one as noted in paras
32 and 33 above.
36. We may note that with the increase in posts in the year
2004 and knowing fully well that the continued requirement of
two years‟ service in a duty battalion would hamper the
promotional career of the officers, the respondents have
themselves, put on track mode, the identification of its officers
in various non-duty posts because the respondents know and
recognize that transfer/posting is not in the hands of the
officers but is a prerogative of the department and the
department has to ensure that it affords an opportunity to all
its officers to become qualified by serving in duty battalions.
This also highlights the fact that the sudden change in
situation in the year 2004, being unexpected, required a
proper administrative redressal.
37. We accordingly quash the decision of the Central
Government declining to relax the eligibility condition of two
years‟ service in a duty battalion for promotion to the post of
Inspector and 2 IC under BSF as also the post of Inspector
under CRPF.
38. A mandamus is issued to the Central Government to re-
consider the issue pertaining to the promotions to the posts of
2 IC and Inspector under BSF and the post of Inspector under
CRPF; the issue being exercising the power of relaxation
vested under the Rules, to be exercised by the Central
Government. While reconsidering the matter, the questions
framed by us would be kept in mind while deciding the issue
and the backdrop circumstances would be kept in mind while
deciding the issue. Needless to state the decision of the
Central Government would be a reasoned decision evidencing
the application of mind with reference to the questions and the
backdrop circumstances. The decision would be taken within a
period of 8 weeks from date of receipt of this decision in the
Ministry of Home Affairs i.e. the Nodal Ministry of the Central
Government. We further mandate that if the decision taken is
in favour of the petitioners, they would be promoted with
effect from the date, persons junior to the petitioners were
promoted and in said eventuality, the petitioners would be
entitled to all consequential benefits such as seniority, pay
fixation and arrears of pay.
39. Before parting, we may note that some of the petitioners
were subsequently promoted when they acquired two years‟
service condition in a duty battalion and qua some, as per the
averments made in the pleadings, they were being considered
for promotion as they had acquired said eligibility condition. In
case said petitioners have been subsequently promoted, the
case of all, for back dated promotions with consequential
benefits would be at par, should the Central Government
extend the benefit of relaxation as per the present decision.
40. Since the issues raised in the petitions were debatable,
we refrain from imposing any cost.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
OCTOBER 27, 2009
dk/mm
