Prabir Kumar Mazumdar vs Uoi & Ors.
2012 Latest Caselaw 5362 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of Decision : September 07, 2012

+                         WP(C) 5608/2012

       PRABIR KUMAR MAZUMDAR                            ...Petitioner
                   Represented by:           Mr.A.S.Chauhan, Advocate
                                             and Mr.Ashwani Sharma,
                                             Advocates.

                                    versus

       UOI & ORS.                                       ...Respondents
                          Represented by:    Mr.Ravinder Agarwal, and
                                             Mr.Amit Yadav, Advocates.

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J. (Oral)

1. As recent as on July 18, 2012 the writ petitioner had withdrawn W.P.(C) No.3997/2012 wherein he had laid a challenge to the promotion of Inspector G.B.Pathak to the post of Assistant Commandant by conceding that the absolute inchoate and disjunctive pleadings had not even made out a cause of action. While granting liberty to the writ petitioner to withdraw the writ petition it was indicated that the petitioner should make a statutory representation to the authorities bringing out his grievance, for the reason in the said writ petition there were no pleadings, much less supported by documents that the petitioner had questioned G.B.Pathak's induction as an Inspector in the Water Wing of BSF in view of the fact that prior to the year 2005 persons from the General Duty Cadre of BSF, who had the requisite

qualifications prescribed by Administrative Orders were working in the Water Wing of BSF and in the year 2005 the BSF Water Wing Technical Cadre was formally constituted and BSF Water Wing (Group-B Combatised Technical Staff) Recruitment Rules were framed.

2. The petitioner has now filed a representation as recent as July 24, 2012. But has annexed with the writ petition a legal notice sent by the petitioner on March 21, 2012 questioning Inspector G.B.Pathak's induction in the Water Wing Cadre and seniority assigned above the petitioner to which a detailed reply (Annexure P-10) has been sent by the Department on July 18, 2012 bringing out as under:-

"3. That your client, No.871030052 Inspector/Engine Driver P.K.Majumdar was initially enrolled in the rank of Naik/Engine Driver on 01.01.1987. He had undergone Basic Trg. for a duration of 12 week w.e.f. 02.01.1989 to 25.03.1989. In compliance of FHQ BSF L/No. 12/4/88- P/BSF/WC/534-37 dated 21 Jan 1988, the notice was further promoted to the rank of Head Constable against the existing vacancies authorized for Water Wing on 15.02.1988. Further, he was appointed to the rank of Sub Inspector (Engine Driver) on 17.12.1996 against the existing vacancies of Subedar (master) in BSF Water Wing vide Ftr HQ BSF SB Order No.WW/109/Tech-Re-Appt/06/3041-45 dated 18.12.1996 in pursuance of orders of FHQ BSF Prov Dte (WW) order No.12/308/95-P/BSF/WC/21757-89 dated 30 Oct'1996 after his selection to said post by open Recruitment Board in Water Wing. He had qualified the training on repair/maintenance of OBMs and crafts, training on Floating BOP and Fast Patrol Boat (Engine side), Weapons and tactics Course and Marine Trg of BSF (Water Wing) by Coast Guard. He possessed the License Ciertificate issued by the Mercantile Marine Department, Kolkata dated 31.08.2004. He has submitted unwillingness certificate that he is unwilling to undergo mandatory course (i.e. PW and PC (Tac) for promotion in GD Stream from Sub-Inspector to Inspector on 06.04.2005. It is to mention

that since there was no separate Water Wing cadre at that time, the seniority of Water Wing personnel were maintained along with GD personnel and hence they had to complete all mandatory courses prescribed for promotion in GD cadre.

4. He was absorbed in BSF Water Wing Technical Cadre on 03.08.2007 after giving the irrevocable option vide FHQ (Pers Dte) letter No.16668-92 dated 03.08.2007 as per the provisions of BSF Water Wing posts Group-C posts Recruitment Amendment Rules-2007 which was notified on 18.04.2007. He was promoted to the rank of Inspector (Engine Driver) with effect from 10.06.2009 as per Water Wing Group-B posts RR-2005 vide FHQ BSF (Pers Dte) L/No. 17/79/08/Pers-BSF/M/22110-25 dated 10.06.2009 after qualifying of PPC/DPC of W-3 course.

5. No.870000027 Inspector (Engine Driver) G B Pathak was enrolled in the BSF Water Wing as Naik (Workshop) on 01.01.1987. He had undergone Basic Trg for duration of 12 weeks w.e.f. 22.06.1987 to 12.09.1987 and further appointed as Head Constable (Workshop) on 03.04.1990 vide FHQ (Pers Dte) Letter No.1/17 (II)/89-Rectt/BSF/803- 07 dated 05.03.1990. During his tenure as Naik (Workshop), he had underwent Marine Engine Driver Course conducted by fisheries Training Institution Veraval under Govt. of Gujarat as BSF candidate in 1990. He also obtained 2nd Class Engine Driver Certificate from Inland Water Transport, Guwahati during the year 1995. He was promoted to the rank of Sub-Inspector/GD on 10.01.01 as per his eligibility, after undergoing necessary mandatory courses prescribed for GD Personnel. He had attended Master Navigation and Seaman Ship Course conducted by Coast Guard during the year 2002-03. He obtained 1st Class Engine Driver certificate from Inland Water Transport, Guwahati (Assam) during the year 2005. He was promoted to the rank of Inspector/GD on 27.06.2006 as per his eligibility, seniority and after qualifying mandatory courses (i.e. PW & PC (Tac.)). He was permanently absorbed in the BSF Water Wing vide FHQ (Pers Dte) order No.19/02/2008-Rectt/BSF/14559-70 dated 08.08.2008 in the

rank of Inspr (Engine Driver). In the absorption order it was further provided that upon their permanent absorption in BSF Water Wing they will maintain their inter-se seniority of GD Cadre. He has qualified PPC list W-4 mandatory course as per BSF Water Wing Recruitment Rules 2005 for promotion from Inspector/Engine Driver to Assistant Commandant (Water Wing) w.e.f. 17.10.2011 to 26.11.2011. He was absorbed in WW on the bassi at the irrevocable option submitted by him while he was serving in BSF WW as per provisions of BSF WW (Group-B Comabtised Technical Staff) Recruitment (Amendment) Rules-2006."

3. Regretfully, knowing fully well the reasons given by the respondents to justify their actions, we find not a whisper in the writ petition to lay a challenge to Annexure P-10.

4. Be that as it may we have independently considered the matter with reference to the Recruitment Rules notified in the year 2005 and would bring out that hithertofore persons in the General Duty Cadre, but who had the requisite qualifications in navigation were working in the Water Wing of BSF. After taking options, when the Cadre of Water Wing was separately constituted, these persons were absorbed in the Water Wing Cadre and needless to state till the Cadre was constituted, which had to be after the Recruitment Rules were promulgated and thereafter options were invited by which time the year 2008 reached, the persons earned promotions in the General Duty Cadre and this explains Inspector G.B.Pathak being promoted as an Inspector (GD) on June 26, 2006. It assumes importance that Inspector G.B.Pathak was enrolled as a Naik (Workshop) and was made to work in the Water Wing Department of BSF with effect from January 01, 1987. He underwent training and was promoted as a Head Constable (Workshop) on April 03, 1990. He underwent the Marine Engineering Driver Course. In the

year 1995 he obtained the Engine Driver Certificate Course certification from the Inland Water Transport, Guwahati and was promoted as a Sub-Inspector on January 10, 2001. He attended the Master Navigation and Seamen Ship Course conducted by the Coast Guard. As against that, the petitioner was appointed as a Naik (Engine Driver) on the same day as G.B.Pathak, i.e. January 01, 1987. He was promoted as a Head Constable and then as a Sub- Inspector on December 17, 1996. But in his Cadre could not earn a promotion to the post of Inspector. It may be true that the petitioner joined the same day as G.B.Pathak, but when Cadre integration takes place, these kinds of things do happen. We would have appreciated if the petitioner had kept in view the principles of Cadre Merger and then drafted a proper writ petition if a case could be made out. We simply highlight that as drafted, keeping in view the aforesaid facts, no relief can be granted to the petitioner.

5. At this stage counsel for the petitioner seeks leave to withdraw the writ petition with right reserved to file a fresh writ petition, which we decline for the reason just about a month back we had permitted petitioner to do so and he has returned to us with another ill-drafted writ petition.

6. No costs.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE SEPTEMBER 07, 2012 dk