Sumit Joshi & Anr vs Union Of India & Ors.
2012 Latest Caselaw 4126 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Date of decision: 13th July, 2012

+                       W.P.(C) No.821/2011

%     SUMIT JOSHI & ANR                                 ....Petitioners
                   Through:         Col. S.R. Kalkal, Adv.

                                 Versus

      UNION OF INDIA & ORS.                         ..... Respondents
                   Through:         Ms. Sweety Manchanda, CGSC for
                                    UOI.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                              JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. The two Commandants with the Sashastra Seema Bal (SSB) by this

petition impugn the SSB Group „A‟ Combatised (General Duty) Officers

Recruitment Rules, 2004 to the extent that they allow promotion to the

Combatised rank of Deputy Inspector General (DIG), also of the Area

Organizers belonging to the non-combatised cadre of SSB. The challenge is

on the ground that such merger at the post/rank of DIG of separate and

distinct combatised and non-combatised cadres having distinct recruitment

and service rules and having the effect of a non-combatised employee of

SSB, commanding the combatised personnel and also of court-martialling

them without himself being subject thereto, is arbitrary.

2. Notice of the petition was issued. The application of the petitioners

seeking interim stay of promotion of non-combatised personnel to the post

of DIG was disposed of vide order dated 8 th February, 2011 to the effect

that actions taken in pursuance to the Rules under challenge shall be subject

to the result of the writ petition. Counter affidavit has been filed on behalf of

the respondents and to which rejoinder has been filed by the petitioners. The

counsels have been heard.

3. It is the case of the petitioners:-

a. SSB, then known as Special Service Bureau was raised in the

year 1963 in the backdrop of Chinese aggression and since

inception comprises of two types of officers‟ cadre namely

combatised personnel and non-combatised employees;

b. the combatised cadre was earlier governed by the Central

Reserve Police Force Act, 1949 and CRPF Rules 1955 and the

non-combatised cadre was governed by the CCS(CSA) Rules,

1965; employees

c. that there have been different Recruitment Rules for the two

cadres with the combatised officers being governed by the SSB

Group „A‟ Combatised (General Duty) Officers Recruitment

Rules, 2004 (supra) and the non-combatised officers being

governed by the SSB (Senior Executive) Service Rules, 1990

and the Cabinet Secretariat, Special Service Bureau, Sub-Area

Organizer and Circle Organizer Group „B‟ Post Recruitment

Rules, 1996;

d. ultimately the Sashastra Seema Bal Act, 2007 was enacted and

came into force on 1st August, 2009 and Sashastra Seema Bal

Rules 2009 framed thereunder;

e. that while the combatised officers are mostly deployed with the

troops and required to maintain physical and medical fitness

and undergo various courses for enhancement of their

professional knowledge and commanding skills and

superannuate at the age of 57 years, the non-combatised

officers are deployed as staff with the Headquarters with no

exposure of command and control of troops and with no

requirement to maintain physical and medical fitness and

superannuate at the age of 60 years;

f. that while the legal remedy of the combatised officers is with

the respective High Courts, of those of the non-combatised

officers is before Central Administrative Tribunal (CAT);

g. that while combatised officers, for being eligible for the post of

Commandant (for being considered for the post of DIG) are

required to have minimum of 15 years of Group „A‟ service,

non-combatised officers, to be eligible for the post of Area

Organizer (for being considered for the post of DIG) are to

have 16 years of Gazetted service which includes Group „B‟

Gazetted service as well;

h. that the non-combatised cadres are not required to wear the

uniform until posted as DIG;

i. that while a Commandant promoted as DIG has experience of

commanding, the Area Organizers promoted as DIGs have no

such experience;

j. that though the non-combatised cadres are also initially given

some training but the same was held by the CAT in its

judgment dated 2nd May, 2003 in OA No.459/2003 and MA

No.486/2003 to be not enough to place them at par with the

combatised cadre;

k. that the non-combatised/civil cadres of SSB have already vide

letter dated 26th March, 2003 of the Ministry of Home Affairs,

Government of India been declared to be a dying cadre, to be

phased out;

l. that owing to the difference in the superannuation age, Area

Organizers from the non-combatised cadre can be promoted to

the post of DIG even beyond the age of superannuation of 57

years of the combatised cadres;

m. that the merger of the two cadres at the post of DIG is against

the principle of merger and natural justice.

Reliance is placed on:-

                       i.     State of Maharashtra v. Chandrakant Anant

                              Kulkarni (1981) 4 SCC 130;

                       ii.    State of Haryana v. Charanjit Singh (2006) 9

                              SCC 321;

iii. State of West Bengal v. West Bengal Minimum

Wages Inspectors Association (2010) 5 SCC 225.

4. The respondents in their counter affidavit have pleaded:-

A. that a similar challenge was made by the combatised cadres

before the High Court of Guwahati also by way of W.P.(C)

No.3804/2010 which was dismissed on 19th July, 2010 holding

that "how many posts should be kept available for promotion of

combatised or non-combatised personnel is not a matter for

judicial review in the sense that it is entirely for the

respondents to decide whom to promote to the post of DIG and

how many";

B. that in the absence of any plea that the Area Organizers from

the non-combatised cadres are in any way disentitled to hold

the post of DIG, no case of any hostile discrimination is made

out;

C. that the petitioners have concealed the factum of dismissal of

same challenge by the Guwahati High Court;

D. that initially the post of DIG used to be filled by way of

promotion/ deputation/ direct recruitment/ re-employment only

from the non-combatised cadres and the Commandants were

not included in the zone of consideration for promotion to the

rank of DIG in SSB and were so included for consideration and

15% quota reserved for them for the first time in the year 1977;

the quota of Area Organizers in the non-combatised cadre was

60% and remaining 25% posts of DIG were to be filled up by

deputation of State/Central Government officers eligible for

appointment to such grade;

E. subsequently the Rules were amended to provide for 75%

quota in the post of DIG for promotion from Area Organizers

(belonging to the non-combatised cadre) and Commandants

(belonging to the combatised cadre) in equal share and

remaining 25% to be filled up by deputation of State/Central

Government officers - no challenge at any time was made

thereto;

F. that upon the transfer in the year 2004 of the administrative

control of SSB from the Cabinet Secretariat to the Ministry of

Home Affairs, 60% of the posts of DIG were to be filled by

promotion of Departmental Officers and remaining 40% by

deputation of Indian Police Service Officers;

G. As per Recruitment Rules in existence as on date, out of 19

posts of DIG, 07 posts are filled by promotion from the rank of

Commandant and 04 posts by promotion from the rank of Area

Organizers and the remaining 08 posts are to be filled by

deputation of the Indian Police Service Officers;

H. that in view of the raising of additional 09 Sectors and 03

Frontiers in SSB, the Ministry of Home Affairs has already on

18th April, 2011 re-fixed the quota for promotion to the rank of

DIG in respect of Area Organizers and Commandants as 04

posts by promotion of Area Organizers and the remaining posts

by promotion of Commandants and suggested amendment of

Recruitment Rules in terms thereof;

I. that a policy decision in this regard having already been taken,

the petitioners are left with no valid cause of action;

J. that the Area Organizers from the non-combatised cadres

having been a feeder cadre for promotion to the rank of DIG in

SSB since prior to the year 1977, the challenge thereto made in

the year 2011 is highly belated;

K. that officers of non-combatised wing also are deployed in the

field as per the requirement of force and in accordance with the

policy decision of the Government;

L. officers of both combatised and non-combatised wings have to

complete the prescribed residency period for promotion to the

next higher rank;

M. the condition of medical category shape for promotion to the

post of DIG is mandatory in the case of Area Organizers also;

N. that officers of both cadres have to undergo some promotional

courses for promotion to the rank of DIG; non-uniformed

officers were also undergoing training in Weapon & Tactics

Course till the year 2001;

O. that the challenge now when the Force has undergone huge

organizational reform, is not tenable;

P. that the matters agitated are policy matters of the Government,

not subject to judicial review;

Q. that the cited judgment of CAT is not relevant;

R. that comparison of the two cadres is not justified;

S. that though the age of superannuation of Commandants is 57

years but those promoted to the post of DIG retire at the age of

60 years and Commandants below the age of 57 years are

eligible as per the established instruction in vogue, to be

promoted to the rank of DIG;

T. that though separate seniority of combatised and non-

combatised cadre is maintained but a common seniority of

DIGs is maintained for further promotion to the rank of IG in

SSB in the quota meant for the Departmental Officers;

U. that the combitisation of the non-combatised cadres is still a

proposal and has not attained finality.

5. The petitioners in their rejoinder plead:-

I. that the proceedings before the Guwahati High Court were

concerned with the fixation of quota for the post of DIG

between the combatised and non-combatised cadres while the

present petition challenges the Recruitment Rules; the order

therein thus has no relevance to the present controversy;

II. It is controverted that the combatised officers were earlier not

eligible for the post s of DIG;

III. that in no other military or para-military organization a civilian

officer is promoted to put on a combatised dress after 20 to 25

years of service or conferred the disciplinary power including

of convening a court-martial when he himself is not a subject

thereto;

IV. that mere delay in raising the issue, if found to be relevant is no

reason to reject such challenge.

6. In Chandrakant Anant Kulkarni (supra) the Apex Court enunciated

the following principles in the matter of equation of posts:-

(i) Where there were regularly constituted similar cadres in the different integrating units the cadres will ordinarily be integrated on that basis.

(ii) Where, however, there were no such similar cadres, the following factors will be taken into consideration in determining the equation of posts:-

      (a).    nature and duties of a post;

      (b).    powers exercised by the officers holding a post, the extent of

territorial or other charge held or responsibilities discharged;

(c). the minimum qualifications, if any, prescribed for recruitment

to the post.

(d). the salary of the post

The aforesaid principles were described as having a statutory force.

Of course, the aforesaid principles were formulated in the context of

integration of cadres while re-organizing the States and not in the context of

promotion as in the present case. Even while doing so it was observed that

the matter of equation of posts is purely an administrative function to be left

entirely to the employer and it is not open to the Court to consider whether

the equation of posts by the employer is right or wrong.

7. The judgment of the Apex Court in Charanjit Singh relied upon by

the petitioners was concerned with the principle of equal pay for equal work

and we are unable to find any applicability thereof to the matter in hand.

The only other judgment cited i.e. of West Bengal Minimum Wages

Inspectors Association supra also was concerned with the same principle

and further laid down that the principle of equal pay for equal work is not a

fundamental right but a constitutional goal and is dependent on various

factors such as educational qualifications, nature of the job, duties to be

performed, responsibilities to be discharged, experience, method of

recruitment etc. and comparison merely based on description of posts is

misconceived.

8. We are unable to agree with the opposition to the maintainability of

the present petition on the ground of delay. Undoubtedly the Area

Organizers from the non-combatised cadres have been eligible for

promotion to the post of DIG and to which a challenge is now being made,

for nearly 30 years prior to the filing of the petition. However that in our

opinion would be irrelevant. The cause of action to the petitioners who are

now in the zone of consideration for promotion to the post of DIG, has

accrued now only. Merely because others similarly placed as the petitioners

did not make any grievance in the past, is no ground for denying a right of

challenge to the petitioners.

9. The counsel for the petitioners also has clarified that the petitioners

are not against giving promotion to the Area Organizers but says that it

should be in a separate cadre not and placing them in a position to command

the combatant officers.

10. The counsel for the respondents has also placed before us a copy of

the letter dated 19th December, 2011 of the Ministry of Home Affairs to the

Director General, SSB in respect of re-constructing of SSB by

combatisation of the non-combatised posts. A perusal of the said letter

shows abolition of the existing vacant non-combatised posts and creation of

combatised posts in lieu thereof, giving of option to the incumbents of the

remaining non-combatised posts to combatise and the future vacancies in

the non-combatised posts to be combatised by way of abolition etc.

11. However the same does not come to the rescue of the petitioners. The

combitisation in future would not give relief to the petitioners who would be

deprived of promotion to the post of DIG for the reason of allocation of

some of the posts of DIG to the non-combatised cadres.

12. As far as the judgment of the Guwahati High Court is concerned, we

are unable to agree with the petitioners that the matter for consideration

therein was any different from that raised before us. The challenge therein

also was to the provision of 04 posts for promotion of Area Organizers on

the ground of the same being unconstitutional and the prayer was that all the

11 posts for promotion of departmental officers should be made available to

the Commandants. The said challenge was negated by the Guwahati High

Court in the words re-produced above. We have also recently in our

judgment dated 25th April, 2012 in W.P.(C) No. 1610/2012 tilted Zakat

Foundation of India v. Union of India, relying on Union of India v. S.L.

Dutta AIR 1991 SC 363 and State of Andhra Pradesh v. V. Sadanandam

AIR 1989 SC 2060 held that the manner in which posts are to be filled up

including the methodology and the modalities thereof is the prerogative of

the employer and that once a policy decision based on expert advice is taken

and all the aspects are thrashed out, it cannot be treated as without

application of mind or arbitrary and such functions are best left to the

Executive and the Courts should not interfere with the same.

13. However neither the judgment of the Guwahati High Court nor the

counter affidavit of the respondents in the present case takes care of the

crucial arguments of :-

 A civilian being suddenly made to command the troops.

 The combat cadres who otherwise have no obligation to salute

the civilian officer, even though senior to them, being suddenly

required to honour such civilian with a salute.

 Whether such a civilian would inspire feelings of bravado in

the troops he is commanding.

14. We have wondered whether such a civilian being suddenly thrust in

the position of commanding the combatants would invite the allegiance of

the soldiers; whether such soldiers, at the mere command of such a civilian

officer who is suddenly made to adorn the uniform, would be willing to lay

down their lives; if the answer is no, whether the same would not interfere

with the discipline of the SSB.

15. We are however not equipped to go into all these questions. The

pleadings also before us are not exhaustive in this regard. Moreover as

aforesaid, it is not our duty to study the said aspects. The function is of the

employer and our jurisdiction is only to see that while taking such decision

all aspects are thrashed out and consequences considered. We may further

notice that there is no challenge to the quota in the post of DIGs to be filled

in from the officers of the Indian Police Force. It also needs to be examined

whether the personnel of the Police Force eligible for the post of DIG in

SSB are equivalent to the Area Organizers whose quota is challenged or

akin to the Commandants. Needless to state that if the said police officials

eligible to be considered for the post of DIG in SSB are akin to the Area

Organizers, then the challenge to the Rule making the Area Organizers

eligible would be misconceived.

16. Need is thus still felt inspite of the letter dated 19 th December, 2011

(supra) for the respondents to have a re-look into the matter in a time bound

manner so that the petitioners, if entitled to the relief, get the same.

17. We therefore dispose of this petition with the following directions:-

(i). The respondents to within three months hereof consider the

representations of the petitioners by taking into account all

aspects including those discussed above and take a reasoned

decision thereon after hearing the representatives of the

combatised as well as non-combatised officers.

(b). If the decision is in favour of the petitioners, the respondents to

further consider whether the same number of posts of DIG as

existing today are to be retained or reduced with alternative

cadre equivalent to DIG being created for the non-combatised

force.

(c). If the number of posts for DIG are to remain the same, the

petitioners to be considered for the same as on the date they

became eligible therefor or on the date of filing of this petition

whichever is later.

(d). Upon the petitioners being selected for the said post, the

petitioners be granted said promotion with all consequential

benefits - all within six months herefrom.

No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

JULY 13 , 2012 „pp ‟