Delhi High Court
Neeraj Kumar vs Uoi & Ors. on 23 February, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 23rd February, 2011
+ W.P.(C) No. 7035/2010
NEERAJ KUMAR ..... Petitioner
Through: Ms.Rekha Palli with
Mr.Shailendra Kumar,
Advocates.
versus
UOI & ORS. .... Respondents
Through: Ms.Barkha Babbar with
Mr.Asif Tiwari, 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 Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J. (Oral)
1. Heard learned counsel for the parties.
2. Petitioner prays that communication dated 31.05.2010,
by which his request for promotion with effect from the date
persons junior to him were promoted stand rejected, be
quashed and a mandamus be issued to the respondents to
promote the petitioner as an Inspector with effect from the
date persons junior to him were promoted with all
consequential benefits.
3. It be noted that petitioner stands promoted as an
Inspector and hence the limited claim is for seniority to be
reckoned with effect from a retrospective date plus
consequential benefits.
4. Relevant facts are that on completing the probation of 2
years and held entitled to be confirmed as a Sub-Inspector, on
14.11.2004 the petitioner was confirmed as a Sub-Inspector
under Boarder Security Force. On the next day i.e. 15.11.2004
he was attached to the 106th Bn., where petitioner remained
posted till 15.12.2004. This battalion was treated as a duty
battalion. It is apparent that the petitioner served in a duty
battalion only for 1 month.
5. On 15.12.2004, petitioner was deputed to serve at the
'G. Unit' where he served till 25.01.2006 i.e. for a period of 1
year, 1 month and 9 days.
6. As would be hereinafter noted that the issue between the
parties is: Whether service under 'G. Unit' is to be treated as
duty in a duty battalion or a duty in a non-duty battalion?
7. On 25.01.2006, petitioner was attached to a battalion,
number whereof has not been disclosed by the parties in their
pleadings, but there is no dispute that the said battalion was
treated by the respondents as a duty battalion. Petitioner
worked there for 1 month i.e. till 26.02.2006.
8. As per applicable recruitment rules, for being entitled to
be promoted as an Inspector, every Sub-Inspector had to
undergo a promotion course. From 27.02.2006 till 07.04.2006,
petitioner underwent said course and it is an admitted case of
the parties that said period cannot be treated as serving in a
duty battalion.
9. Thereafter, with effect from 08.04.2006 till 30.06.2007
i.e. for a period of little less than 1 year and 2 months the
petitioner served in a duty battalion. This is the common case
of the parties.
10. It would be apparent that if service in the 'G. Unit' is not
to be treated as service in a duty battalion, during his entire
service as a Sub-Inspector, petitioner would have served in a
duty battalion for a period of 1 year and 4 months. However, if
service under 'G. Unit' is to be treated as service in a duty
battalion, petitioner would have served in a duty battalion for
about 2 years and 6 months.
11. What turns on this dispute, is the requirement of the
service rules that for being eligible to be promoted as an
Inspector, a Sub-Inspector must have served in a duty
battalion for a period of at least 2 years.
12. On 04.06.2007, petitioner was sent on deputation to SPG.
Obviously, this service cannot be counted as service in a duty
battalion.
13. In the year 2007, persons junior to the petitioner were
promoted as Inspectors. Petitioner was not even considered
by the DPC for the reason the department held that service
rendered in a 'G. Unit' cannot be treated as service in a duty
battalion and thus, excluding 1 year, 1 month and 9 days
service rendered by the petitioner in 'G. Unit', respondents
took the view that the petitioner had not rendered 2 years
service in a duty battalion.
14. Petitioner questioned the same. He made a
representation. The representation stands rejected by the
order dated 31.05.2010; by which time the petitioner was
promoted as an Inspector after he returned from deputation
and was made to work in a duty battalion. Hence claim for anti
dating the promotion.
15. The issue has to be resolved on a simple area of dispute.
Whether, service in the 'G. Unit' has to be treated as a service
in a duty battalion and if not, what is the affect of the decision
taken by the respondents to depute the petitioner on
deputation to SPG, in the teeth of a policy taken by the
respondents that only those Sub-Inspectors would be sent on
deputation to SPG who have served for at least 3 years in a
duty battalion.
16. There is no material on basis whereof it can be
objectively determined which duty would be treated as in or
under a duty battalion. If this be so, the question which arises
would be; Why did the respondents send petitioner on
deputation to SPG on 04.06.2007, if it was the case of the
respondents that service rendered by the petitioner in the 'G.
Unit' had not be treated as duty in a duty battalion? As per the
petitioner if service rendered in the 'G. Unit' was not reckoned
as service in a duty battalion, the respondents had no business
to send him on deputation. The reason is obvious. He was
denied the right to serve in a duty battalion. By doing reverse
engineering on the aforesaid arguments, petitioner would
contend that it is obvious that the respondents treated duty in
'G. Unit' as duty in a duty battalion, for the reason, it was a
condition for being sent on deputation that a Sub-Inspector
had worked in a duty battalion for a minimum of 3 years.
17. Learned counsel for the respondents stated that it is
obviously a case of an error committed by the department to
send the petitioner on deputation to SPG, but conceded that
the effect of the mistake of the respondents has resulted in a
valuable right of the petitioner being infringed.
18. If this be so, the answer to the question posed in simple.
19. For the reason, the criteria for deputing persons on
deputation to SPG required the respondents to ensure that
only those persons were sent on deputation who had rendered
3 years service in a duty battalion casts an obligation on the
respondents not to send anybody who has not rendered 3
years service in a duty battalion to the SPG. If the respondents
were to act in contravention of the policy it adversely effected
the entitlement of the person concerned to be promoted, in
that, a BSF Jawan has no option but to serve wherever he is
sent. The Department cannot send him to a place where his
right to be promoted would be obviously effected, in the form
of the person not being able to serve in a duty battalion. It
would be the obligation of the respondents to ensure the
jawans serve in duty battalion for at least 2 years before
sending them on deputation.
20. Thus, we hold that conduct of the respondents entitles
the petitioner to a declaration that the respondents must treat
service rendered by the petitioner in 'G. Unit' as service in a
duty battalion.
21. If this be so, the inevitable conclusion would be that the
petitioner would be entitled to be considered eligible for
promotion in the year 2007, when persons junior to him were
promoted.
22. Noting that these promotions took place in April, 2007;
noting that the petitioner has been found fit to be promoted at
a subsequent DPC; we dispose of the petition quashing the
order dated 31.05.2010 and issue a direction that petitioner be
notionally promoted and seniority of the petitioner be
reckoned with effect from the date persons junior to him were
promoted. Petitioner would be entitled to all consequential
benefits except back wages.
23. No costs.
PRADEEP NANDRAJOG, J
SURESH KAIT, J
FEBRUARY 23, 2011
mr
