Kumar J vs Union Of India
2012 Latest Caselaw 5336 Del

5
*        IN THE HIGH COURT OF DELHI AT NEW DELHI

          +         W.P.(C) 6016/2010 and CM No.11841/2010

%                                 Date of decision: 6th September, 2012

       KUMAR J                                    ..... Petitioner
                               Through :   Mr. S. Gowthaman with
                                           Ms. Tanuja Rawat and
                                           Ms. Paari Vendhan, Advs.
                      versus

       UNION OF INDIA                         ..... Respondent
                     Through :             Ms. Meera Bhatia, Adv.
                                           for R-2.

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

GITA MITTAL, J. (Oral)

W.P.(C) 6016/2010

1. The petitioner, Kumar J. - Constable (Crew) was enrolled with effect from 6th October, 1997 as constable (General Duty) in the Border Security Force and was posted to the different position. Subsequently, by an order dated 1st July, 1998, the petitioner was posted against the vacancy of Lance Naik (Workshop) though he continued to hold the substantive rank of Constable (GD). The petitioner claims that he was permanently absorbed in this position which is disputed by the respondents.

Inasmuch as the issue of absorption in the Water Wing not relevant for the purposes of adjudication of the prayer made in the writ petition, we are not commenting on this issue.

2. While posted with 45 Battalion, Border Security Force on 2nd May, 2005, the petitioner made a representation to the Director General, Border Security Force for promotion to higher rank through proper channel. It is undisputed that by a communication dated 31st May, 2005, the petitioner was duly intimated that there was no provision for selection/permanent absorption in the higher rank. The Border Security Force Headquarters had suggested that the petitioner could appear in the direct recruitment process for the post of Head Constable (Workshop).

3. The petitioner accepted this position and submitted an application in the year 2006 for consideration for such direct recruitment. On scrutiny of the petitioner's application for direct recruitment to the post of Head Constable (Workshop), the same was rejected for the reason that he was not qualified in the required trade from the Industrial Training Institute (ITI).

4. It is pointed out that as per the recruitment rules for the post of Head Constable (Workshop) notified by the respondents in 2005, a person was required to be holding a diploma in Diesel Engine/Machinist/Welder/Machine Shop/Carpentory/Electrician/ Fitter/Turner from the Industrial Training Institute ('ITI' for brevity).

The petitioner places reliance on the National Trade Certificate issued to him not by the ITI but the National Council

for Vocational Training which was for the trade of 'Mechanic Motor Vehicle'. The trade of 'mechanic motor vehicle' is not mentioned in the recruitment rules and therefore, such certificate certainly did not render the petitioner qualified for consideration for appointment to the post of Head Constable (Workshop). In this background, no admit card was issued to the petitioner.

5. The petitioner agitated the denial of consideration for direct recruitment to the post of Head Constable (Workshop) to the respondents which was not accepted. The present writ petition was filed in this background challenging the action of the respondents in denying him the admit card.

6. In the face of the above discussion and the fact that the petitioner was not holding the required trade qualification, the action of the respondents in not issuing the admit card cannot be faulted. The challenge to the action is clearly unwarranted and untenable.

7. Before us, another submission has been made by the petitioner. It is contended that the respondents have failed to provide any channel for promotion to him. In this regard, Ms. Meera Bhatia, learned counsel for the respondents has drawn our attention to the option exercised by the petitioner for permanent absorption in the Border Security Force (Water Wing) as a Constable (Crew). The petitioner exercised such option in writing and under his signature which document has been placed before us. As a result of this option by the petitioner, he was permanently absorbed as Constable (Crew) in the Water Wing of the Border

Security Force.

8. We have been carefully taken through the recruitment rules which were notified in the year 2005 and which admittedly would govern the appointments and promotions in the Border Security Force. We find that the post of Constable (Crew) is the feeder post for promotion to the post of Head Constable (Master) subject to the satisfaction of all other eligibility conditions notified in the recruitment rules. The contention of the petitioner that no avenue of promotion is available to him is therefore, also devoid of legal force.

9. A grievance is lastly made before us that the petitioner has not been considered for promotion and that the persons junior to him or appointed at the same time as him, stand promoted.

10. In view of the above discussion, the prayer made in the writ petition cannot be granted. However, in case the petitioner was required to be considered for promotion, it is directed that his candidature for the same shall be considered as per the prescribed recruitment rules. Needless to say, the respondents shall address the petitioner's grievance that the persons, who were junior to him or were appointed at the same time as him, have been considered for promotion. In case this position is correct, the respondents shall take appropriate steps for granting appropriate relief to the petitioner in terms of his place in seniority and any other consequential relief.

The consideration shall be completed by the respondents within a period of four months from today and the decision taken

shall be communicated to the petitioner.

This writ petition is disposed of in the above terms. CM No.11841/2010 In view of the order passed in the writ petition, this application does not survive for adjudication.

Dasti to parties.

GITA MITTAL, J

J.R. MIDHA, J SEPTEMBER 06, 2012 aj