O.P. Sharma vs Union Of India & Anr.
2010 Latest Caselaw 3413 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   W.P.(C) No.3752/1993

                                           Date of Decision: 21st July, 2010

        O.P. SHARMA                                          ..... Petitioner
                          Through Mr. Anil Gautam, Adv.

                    versus

        UNION OF INDIA & ANR.                          ..... Respondents

Through Ms Barkha Babbar, Adv.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Yes Digest?

GITA MITTAL, J (Oral)

1. By way of the present writ petition, the petitioner has assailed the

action of the respondents in not considering him for promotion to the post of

Assistant Commandant in the Departmental Promotion Committee (`DPC'

hereafter) which had held proceedings in the years 1986, 1987 & 1988 and

1989.

2. The facts giving rise to the present petition are not disputed. It is an

admitted position that the petitioner had joined the Border Security Force

(`BSF' hereafter) as stenographer (Sub-Inspector) Grade III on the 1st

September, 1966 and was confirmed in this position on 1st January, 1971. On

5th February, 1979, the petitioner was promoted to the post of Subedar

(Inspector)(Steno). It appears that the petitioner was superseded in the

matter of promotion to the next higher post and rank of Subedar Major

(Personal Assistant).

3. The respondents, however, accepted the petitioner's representation and

appeal and an order dated 30th January, 1987 was passed retrospectively

promoting the petitioner as Subedar Major w.e.f. 1st July, 1979 as a result.

4. A decision was taken in the year 1985 by the respondents to reserve

10% of the vacancies in the executive post of Assistant Commandants (Class

I) in the Executive Cadre for appointment by promotion of the members of the

combatised ministerial cadre of the Border Security Force. The remaining

50% vacancies were required to be filled up by direct recruitment. The

amended recruitment rules which were framed in exercise of powers under

Section 141 of the Border Security Force Act, 1968 were notified by the

Ministry of Home Affairs vide notification dated 28th January, 1985.

5. The petitioner has claimed entitlement for promotion to the post of

Assistant Commandant in the 10% vacancies which were so reserved for

promotion of combatised Subedar in the ministerial cadre. In this regard, our

attention is drawn to the Border Security Force (Assistant Commandants)

Recruitment Rules, 1985. These rules provide that promotion to the extent of

10% of the vacant posts shall be from the category of combatised ministerial

staff failing which the entire 50% would be from amongst General Duty Cadre.

The rules also provide that in case of recruitment by promotion from

combatised ministerial subedars in any trade relating to the Border Security

Force was concerned, such an officer should have qualified an Integrated

Combat Course (instead of Basic Training and the Platoon Weapons Course)

and the Company Commander Course.

6. These rules came to be amended by a notification made on 17th March,

1985 and came to be known as the Border Security Force (Assistant

Commandant) Recruitment Rules, 1986. These rules provided that the

departmental candidates approved for promotion to the post of Assistant

Commandant would have to qualify the Platoon Weapons Course and the

Company Commander Course within a period of one year from his

appointment as the Assistant Commandant in addition to the Basic Training

Course.

7. Before us there is no dispute at all to the eligibility of the petitioner for

consideration for promotion to the post of Assistant Commandant in the year

1986. It appears that perhaps on account of the fact that the petitioner was

given the benefit of retrospective appointment to the post of Subedar Major

by the order dated 28th April, 1983, he was overlooked for consideration for

appointment by the Departmental Promotion Committee which made

recommendations in the year 1986. In this background, it is explained by the

respondents that the petitioner's case was considered by a review DPC held

on 30th October, 1986 but he could not be promoted for want of vacancy in

the post of Assistant Commandant against the afore-noticed 10% quota at

that time.

8. The petitioner is aggrieved by the further denial of consideration and

promotion by the DPCs which made recommendations in 1987, 1988 & 1989.

It appears that these DPCs did not recommend the petitioner's name in view

of the unamended rule on the ground that the petitioner had not undertaken

the Platoon Weapon Course prior to the consideration of his candidature for

promotion to the post.

9. Learned counsel for the petitioner has drawn our attention to a

judgment dated 7th November, 1995 passed by the High Court of Gauhati at

the Agartala Bench in case being Civil Rule No.26 of 1988 (renumbered as

CC.R. No.476/1995) entitled Shri K.V. Ravindran Vs. Union of India & Ors.

wherein a similar challenge as raised by the petitioner had been raised. The

court had accepted the plea of the petitioner and had directed the

respondents to give him the benefits of promotion to the rank of Assistant

Commandant with effect from the date on which the promotion were made on

the basis of the recommendations of the DPC which was made in the year

1987. The court had accepted the challenge to the decisoin of the Ministry of

Home Affairs not to consider Inspectors (Ministerial Staff) for promotion to the

post of Assistant Commandant until they passed the Company Commander

Course for the reason that the same was contrary to the express provisions of

the recruitment rules as amended by the Amendment Rules of 1986 by which

the said qualification for passing the Company Commander Course was

dispensed with. The court had also noticed that the amended recruitment

rules stipulated that the candidates have to pass the Company Commander

Course within a period of one year from the date of their appointment as

Assistant Commandant. The judgment of the Gauhati High Court has noticed

that the respondents had conducted the Departmental Promotion Committee

on 30th June, 1987 which had made recommendations for promotion of

Inspectors other than from the ministerial cadre in the afore-noticed

circumstances. Para 7 of the judgment to the extent necessary for

adjudication of the present case, reads as follows:-

"7. The first question which has to be determined in the Civil Rule is as to whether the petitioner who is the meanwhile has been promoted to the rank of Asst. Commandant should be allowed the benefits of his promotion with retrospective effect, and if so from which date although the petitioner has claimed that he should be promotion with effect from 1986, in view of the categorical stand taken in the affidavit-in-opposition that the petitioner was not within the zone of consideration in the year 1986, in my opinion, the petitioner cannot be given the benefit of promotion with retrospective effect with effect from October, 1986, Mr. Chakraborty made an effort in connivance the zone of consideration in June, 1986 by pointing out that in Annexure-2 to the writ petition dated 19.09.1986 he was asked to undergo integrated Company Commander Course for the purpose of promotion to the rank of Asst Commandant. But I find that the DPC which considered the promotions in the year 1986 met during 11th to 13th June, 1986 which was prior to the said message dated 19.09.1986 under which

the petitioner claims to have come into the zone of consideration for promotion to the rank of Asst. Commandant. As to whether the petitioner should be given retrospective effect from the year 1987, I find from a reading of the minutes of the DPC held in the year 1990 as well as the affidavit-in-opposition filed on behalf of the respondent No.1 & 2 that during the years 1987, 1988 and 1989 the DPC did not consider the case of any Inspector from the category of combatised ministerial staff for promotion to the rank of Asst. Commandant as required by Column-II of the schedule to the Recruitment Rules. The said Column II requires that promotions to the extent of 10% of the vacant posts in the rank of asst. Commandant are to be made from the said category of combatised ministerial staff to which the petitioner belonged. But unfortunately no one from the combatised ministerial staff was considered during the years 1987, 1988 & 1989 and the copy of the minutes of the DPC dated 27.02.1990 produced by Mr. Bhattacharjee before me indicates that all the vacancies during 1987 to 1989 that fell into the share of combatised ministerial staff on the basis of the said quota of 10 per cent as provided in the rules were filled up on the recommendations of the said DPC held on 27.02.1990. Further, a reading of said DPC held on 27.02.1990 indicates that the petitioner was graded as outstanding and was placed at serial No.1 in the recommendations of the DPC for promotion to the rank of Asst. Commandant. If this be the position, then had a DPC been held and the petitioner been considered in the year 1987 for promotion to the 10 per cent vacant posts of Asst. Commandant as per the quota in the Recruitment Rules, then the petitioner perhaps would have been promoted to the rank of Asst. Commandant with effect from 1987. I am further of the view that the decision of the Ministry of Home Affairs not to consider Inspectors (ministerial staff) for promotion to the rank of Asst. Commandant until they passed the company Commander Course was contrary to the express provisions of the Recruitment Rules as amended by Amendment Rules of 1986 by which the said qualification for passing the Company Commander Course was dispensed with and it was stipulated that candidates have to pass the said Company Commander Course within a period of one year from the date of their appointment as Asst. Commandant. The contention of Mr. Bhattacharjee that any direction given by this Court to promote the petitioner with effect from 1987 would unsettle the settle position, I am of the view that the petitioner has approached this Court as per back as in the year 1988 and there was no delay on his part of file the Writ Petition. Moreover, I am not inclined to quash the promotion of any of the respondents No.3 to 15 to the rank of Asst. Commandant and I am only inclined to

direct the respondents of give him the benefits of his promotion to the rank of Asst. Commandant with effect from the date on which promotions were made on the basis of the date on which promotions were made on the basis of recommendations of the DPC which met on 30.06.1987."

10. The judgment of the Guwahati high Court has noticed that the

respondents had conducted the Departmental Promotion Committee on 30th

June, 1987 which had made recommendations for promotion of inspectors

other than from the ministerial cadre in the afore-noticed circumstances.

11. Mr. Anil Gautam, learned counsel for the petitioner has submitted that

the respondents assailed the judgment of the learned single Judge by way

of Writ Appeal no.68/1995 before the High Court of Gauhati which was also

dismissed by an order dated 18th November, 1999. The Special Leave to

Appeal (Civil) Petition No.8528/2000 entitled Union of India & Anr. Vs. K.V.

Ravindran & Ors. filed by the respondents assailing the said two judgments

was also dismissed by an order passed on 19th July, 2001.

12. Learned counsel for the petitioner has also placed before us a copy of

an order dated 30th May, 2003 passed by the respondents effectuating and

implementing the directions made by the Gauhati High Court in the afore-

noticed judgment.

13. The position which subsists in the instant case is identical with the

factual and legal situation which was before the Gauhati High Court. Before

us also by an administrative instruction, the respondents have attempted to

modify the rule position so far as making of promotion to the post of Assistant

Commandant from the inspectors of the ministerial cadre is concerned. The

respondents were bound by the stipulations contained in the amended rules

of 1986 and could not have denied consideration for promotion to the

petitioner who was Subedar Major from the ministerial cadre on the ground

that he had not completed the Platoon Weapons Course. The petitioner was

entitled to the benefit under the said rule to complete the course within one

year of his appointment to the post of Assistant Commandant.

So far as the rejection of promotion to the petitioner by the DPC of 1986

is concerned, no relief can be given to the petitioner at this stage. We find

that there is no dispute to the eligibility or entitlement of relief to the

petitioner. Therefore, so far as the consideration for the next three years is

concerned, the petitioner is required to be given relief in view of the above

discussion.

14. We are informed by learned counsel for the parties that during the

pendency of the writ petition, the petitioner was promoted as Assistant

Commandant in April, 1990 with the stipulation that he would undergo the

requisite courses within one year of his promotion failing which he would be

reverted. It is an admitted position that the petitioner completed the courses

within the stipulated time. The petitioner is stated to have since

superannuated in the year 2004.

15. In view of the above discussion, we are of the view that the petitioner

would be entitled to the benefits which would accrue to him if he was

promoted to the rank of Assistant Commandant with effect from the date on

which the promotions were made on the basis of the recommendations of the

DPC which had met in the year 1987.

Accordingly, we direct as follows:-

(i) The respondents shall consider the matter and make a direction

granting all benefits of promotion to the petitioner to the rank of Assistant

Commandant as if the same was effected from the date on which promotions

were made on the basis of the recommendations of the DPC which met on

30th June, 1987.

(ii) The orders to this effect shall be passed within a period of three months

from today. The benefits which the petitioner shall be entitled shall be

released positively within a further period of two months thereafter. The

respondents shall forthwith communicate the orders which are passed to the

petitioner.

Rule is made absolute in the above terms.

GITA MITTAL, J

J.R. MIDHA, J JULY 21, 2010 aa