Gurnam Singh vs Union Of India & Ors
2014 Latest Caselaw 7034 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Judgment delivered on: December 22, 2014

+       W.P.(C) No.3570/2013

        GURNAM SINGH                                    ..... Petitioner
                    Through:           Mr. Puneet Khurana, Advocate

                           versus

         UNION OF INDIA & ORS                        ..... Respondents
                       Through:        Mr. Saquib, Advocate

        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR
        HON'BLE MR. JUSTICE NAJMI WAZIRI

                               JUDGMENT

KAILASH GAMBHIR, J

1. The present writ petition has been filed under Articles 226 and 227

of the Constitution of India for fixation of his seniority on the post of

Assistant Commandant in SC category from the date of his selection

along with his batchmates of Batch No.26 and not with AC/DE at Sr.

No.29.

2. The case of the petitioner in brief is that he was selected for

appointment to the post of Assistant Commandant (Direct Entry) in BSF

through SSB CPOs AC Examination, 1999 and had successfully

undergone the written examination, physical efficiency test and interview

conducted by the Special Selection Board and was declared successful for

appointment to the said post. After having qualified the said tests, he was

required to qualify the medical test in which he was found to be

medically unfit on 21.12.1999 as he failed to fulfill the chest requirement

criterion. Through a letter dated 19.04.2000, the respondents informed

the petitioner about his results and further intimated him that if he so

desired, he may file an appeal for the review of his medical examination.

The petitioner preferred an appeal against the order of the respondents

declaring him to be medically unfit, supporting his case by the medical

certificate dated 02.05.2000 duly issued by the Government Civil

Surgeon, Yamuna Nagar, Haryana but the respondents failed to take a

decision to constitute a Review Medical Board for his medical re-

examination. Under such circumstances, he filed a Civil Writ Petition

No.12398/2002, titled Gurnam Singh v. Union of India & Ors. before

the Punjab & Haryana High Court and the said writ petition was disposed

off vide order dated 09.08.2002, with the observation that the

respondents were expected to respond to the petitioner's appeal,

accompanied by the certificate (Annexure P-1) within a period of two

months from the date when the certified copy of the order therein was

brought to their notice. The respondents did not comply with the

aforesaid direction given by the Punjab & Haryana High Court in a time

bound manner which led the petitioner to move a Civil Miscellaneous

Application bearing CM APPL. No.3231/2003 in the said Writ Petition

before the High Court but during the pendency of this application, he was

required to appear before the Review Medical Board on 19.02.2003

wherein he was declared to be medically fit. Thereafter, he was issued an

appointment letter dated 29.03.2005 for the post of Assistant

Commandant (Direct Entry) and was directed to report to the BSF

Academy on 31.01.2005 for undertaking the basic training course. The

petitioner underwent training for the AC (DE) course which commenced

w.e.f. 07.02.2005 and thereafter, his seniority was fixed above the

candidates of AC (DE) course at Sr. No.29. The petitioner being

aggrieved claims that his seniority should be fixed along with his

batchmates of AC (DE) course at Sr. No.26 as it was not on account of

his fault that there was a delay in his medical re-examination by the

Review Medical Board.

3. Arguments on behalf of the petitioner were addressed by Mr.

Puneet Khurana, Advocate and in support of his arguments, he placed

reliance on a Division Bench judgment of this Court in W.P. (C) No.

5400/2010 titled as Avinash Singh & Ors. v. Union of India & Ors.,

decided on 26th May 2011. He also submits that a Special Leave Petition

was preferred by the respondents against the said judgment but the same

was dismissed by the Supreme Court vide order dated 12th September

2011. He strongly urged that directions be given to the respondents, to

grant seniority to the petitioner on the post of Assistant Commandant

(Direct Entry) as per his merit in the selection list of Sr. No.26 Batch

alongwith all consequential benefits including his entitlement to be

covered by the old pension scheme under the Central Civil Service

(Pension) Rules, 1972 as they were in force till 31st December, 2003.

4. The aforesaid contentions raised on behalf of the petitioner have

been refuted by Mr. Saqib, the learned counsel for respondent Nos. 1 and

2 and the stand taken by them in their counter affidavit is that the

petitioner was duly informed about his right to file an appeal for the

review of his medical examination vide letter dated 19th April 2002,

however, he did not take steps to file an appeal alongwith his other batch

mates, who had preferred appeals for review of their medical

examination. He further stated that the entire process, including review of

the medical examination for SSB CPOs (AC) Examination, 1999 was

concluded during August 2000. He also stated that after a gap of about

two years, the petitioner had filed a writ petition vide CWP

No.12398/2002 before the Punjab and Haryana High Court to seek a

direction for his appointment alongwith his batch- mates and for his

training for the post of Assistant Commandant, BSF. The said writ

petition was disposed off by the Punjab and Haryana High Court by

giving a direction to the respondents to respond to the appeal filed by the

petitioner for the review of his medical examination within two months

from the date when the certified copy of the order therein was brought to

their notice. A copy of the said order dated 9 th August, 2002 was received

by the Headquarters of BSF through the petitioner's Advocate and

pursuant to the appeal preferred by the petitioner for review of his

medical examination, he was directed to appear before the Standing

Medical Board, Safdarjung Hospital, New Delhi on 19th February, 2003.

This Review Medical Board declared the petitioner to be medically fit

and this was informed to the petitioner through a letter dated 2nd April,

2003. Since appointment to a Group A post was involved, therefore, it

was necessary to seek prior approval of the Ministry of Home Affairs and

accordingly, the matter was taken up by respondent Nos. 2 to 4 with the

Ministry of Home Affairs vide Office UO Note dated 30th April, 2003.

5. He further contended that vide MHA UO Note dated 31st

December 2003, a decision was taken to appoint the petitioner on the post

of AC (DE) in BSF subject to satisfactory verification of his character

and antecedents. Vide office letter dated 15th January, 2004, D.M.

Yamuna Nagar was requested to verify the character and antecedents of

the petitioner and a verification report was received by respondent Nos. 2

to 4 from S.P. Yamunanagar on 24th February, 2004. Vide letter dated

16th December, 2004, the petitioner was offered the appointment and was

directed to report to the BSF Academy on 31st January, 2005 for

undertaking the basic training course. It is also on contended on behalf of

the respondents that the petitioner underwent basic training for AC (DE)

post Sr.No.29 which commenced with effect from 7th February, 2005 and

his seniority had been accordingly fixed above the candidates of AC(DE)

candidates of Sr.No.29 in accordance with the provisions of Rule 7 of

BSF (General Duty Officer) Recruitment Rules, 2001.

6. He further stated that the seniority of the petitioner has been rightly

fixed alongwith the candidates of batch Sr.No.29, in strict adherence of

the provisions of Rule 7 of BSF (General Duty Officer) Recruitment

Rules, 2001.

7. To support the stand of the respondents, the learned counsel for the

respondents placed reliance on a judgment of the Supreme Court in

Rohtas Kumar and Ors. v. Om Prakash Sharma & Ors., AIR 2013 SC

30. He also argued that the decision of the Division Bench in Avinash

Singh (supra) is based on completely different facts from the facts of the

present case and therefore, the dicta of the said judgment will not apply to

the present case.

8. We have heard the submissions of the learned counsel for the

parties and also perused the judgments relied upon by the parties.

9. The petitioner herein belongs to the Scheduled Caste category and

had participated in the recruitment process to seek appointment to the

post of Assistant Commandant (Direct Entry) in BSF through SSB CPOs

(AC) Examination, 1999 conducted by the Special Selection Board. He

was successful in the written examination, physical efficiency test, and

the interview conducted by the Special Selection Board. He was declared

successful in the merit list at Sr.No.26 with Roll No.10700383. He was

thereafter, detailed for his medical examination. However, after his

medical examination, he was declared to be medically unfit due to

inadequate chest measurement. Through a letter dated 19th April, 2000 he

was informed of having failed to qualify the medical test and also that in

case he was not satisfied with his result, he may prefer an appeal for

review of his medical examination. According to the petitioner, he had

preferred an appeal against the said decision of the respondents and

alongwith his appeal, he had also filed a medical certificate dated 2 nd

May, 2000 issued in his favour by the Government Civil Surgeon,

Yamunananagar, Haryana, but no decision on the said appeal was taken

by the respondents, due to which he filed a Civil Writ petition

No.12398/2002 before the High Court of Punjab and Haryana and the

said writ petition was disposed off on 9th August, 2002 with the following

directions to the respondents:-

"The respondents are expected to respond to the appeal accompanied by certificate annexure P1 within two months from the date a certified copy of this order is brought to their notice.

Writ petition stands disposed off accordingly.

August 9, 2002.

Sd/- Swatantar Kumar, Judge

Sd/- S. S. Saron, Judge."

10. Since the aforesaid directions were not complied with by the

respondents, the petitioner moved Civil Miscellaneous Application

No.3231 of 2003 in the aforesaid writ petition and while it was pending

consideration before the High Court, he was required to appear before the

Central Standing Medical Board, Safdarjung Hospital, New Delhi on 19 th

February, 2003 and this led to passing of the following order by the High

Court:-

"It is not necessary to issue notice to the counsel for the non-applicant inasmuch as it is submitted by the learned counsel for the Union of India that the order in furtherance to the direction of the Court as contained in the order dated 09.08.02 has already been passed. Nothing survives. This petition is accordingly disposed off. Delay in complying with the order of this Court is condoned.

CM stands disposed off."

February 21, 2003.

Sd/- Swatantar Kumar, Judge

Sd/- S. S. Saron, Judge."

11. The Medical Board declared the petitioner to be medically fit and

he was directed to report to the office of respondent No. 3 vide letter

dated 2nd April, 2003. The petitioner reported to the concerned office of

respondent No. 3 and also submitted the relevant documents as were

required. Thereafter, vide letter dated 16.12.2004, he was offered

appointment to the post of Assistant Commandant (Direct Entry) Course

at Sr.No.29. The petitioner completed his basic training of 55 weeks from

February, 2005 to February, 2006 and thereafter, was posted to 132

Battalion BSF, however, he was given seniority on his merit alongwith

the Batch of Sr.No.29. On this, the petitioner made representations dated

17.09.2007 and 15.02.2010 to respondent Nos.2 and 3, respectively, for

the review of his seniority and for re-fixation of his seniority from the

date of his selection in AC (DE) at Sr. No. 26. Thereafter, he made

another representation dated 29.12.11 to respondent Nos.2 and 3. On

11.01.2012, he was intimated that his case had been taken up with the

Headquarters and the decision was awaited. However, no steps were

taken thereafter. Consequently, he sent a legal notice dated 30.08.12 to

the respondents seeking redressal of his grievance but that too went

unanswered. Aggrieved by the respondents' inaction, the petitioner filed

the instant writ petition.

12. Thus, there is a factual dispute between the petitioner and

respondents with regard to whether the petitioner had filed an appeal

alongwith his other batch mates at Sr.No.26 before the Review Medical

Board or not. The learned counsel for the respondents took a stand that

the relevant records concerning the selection of the candidates, pursuant

to BSF (General Duty Officer) Recruitment Rules, 2001 were weeded out

as per the applicable instructions on the completion of the recruitment

process and therefore, they were not in a position to apprise the Court as

to whether the petitioner as a matter of fact had preferred any appeal

alongwith the bank draft of Rs.100/- and the necessary medical certificate

when his other batchmates had also sought their medical re-examination.

The petitioner has not placed on record any copy of the bank draft of

Rs.100/- which was alleged to have been annexed by the petitioner

alongwith his appeal seeking medical re-examination, although he has

placed on record a copy of the Medical Certificate as was issued in his

favour by the Civil Surgeon, Yamunanagar dated 2 nd November, 2000

declaring him to be fit with regard to meeting the criteria of chest

measurement.

13. During the course of hearing of the case, the learned counsel for

the petitioner was directed to place on record, a copy of the writ petition

i.e. CWP No.12398/2008 which was filed by the petitioner before the

Punjab and Haryana High Court. On perusal of the averments made in the

writ petition, we found the reference of a bank draft No.454377 dated

3.5.2000 drawn on State Bank of India, Yamunanagar in favor of D.C.

(Administration-III) HQ DG, BSF, New Delhi and also that the petitioner

had annexed the Medical Certificate dated 2.5.2000 as referred to above.

It has also been stated that the appeal was filed by the petitioner through

speed post on 3.5.2000.

14. In the absence of relevant records produced by the respondents, as

the same have already been weeded out, the Court has no option but to

give credence and weightage to the said factual assertion made by the

petitioner in the aforesaid writ petition filed before the Punjab and

Haryana High Court. Therefore, we are persuaded to assure that the

petitioner did file an appeal to seek a fresh medical examination by the

Review Medical Board alongwith bank draft No. 454377 dated 3.5.2000,

for a sum of Rs.100/- drawn on State Bank of India, Yamunanagar in

favour of D.C. (Administration-III) HQ DG, BSF, New Delhi alongwith

the Medical Certificate dated 2.5.2000.

15. Another reason for accepting the version of the petitioner as correct

is that the petitioner had been taking his remedy vigorously and diligently

and had it not been so, he would not have filed the said writ petition

before the Punjab and Haryana High Court in the year 2002 and also the

Civil Miscellaneous Application in the year 2003. The Court also cannot

lose sight of the irresponsible and lethargic conduct of the respondents,

which is well established from the fact that despite directions given by the

Punjab and Haryana High Court, the medical examination of the

petitioner was not conducted by the respondents in the time bound

manner and not only that, they further took unduly long time in issuing a

letter of appointment to the petitioner, which incidentally was issued as

late as 16th December 2004.

16. In the background of the aforesaid facts, we cannot accept that

there was any kind of lapse on part of the petitioner in timely seeking his

medical examination before the Review Medical Board. Therefore, we

have no hesitation in taking a view that the petitioner deserves to be given

seniority alongwith his batchmates of Sr.No.26 as per his seniority in the

merit list, instead of the batchmates of Sr.No.29, on the completion of his

basic training for the post of Assistant Commandant (Direct Entry). Sub-

rule 3(iv) of Rule 7 of BSF (General Duty Officer) Recruitment Rules,

2001 clearly envisages that seniority of the officers, subject to the

provisions of clauses (i) to (iii) shall be determined according to the date

of their continuous appointment in that rank. For better appreciation of

the position, Rule 7 of BSF (General Duty Officer) Recruitment Rules,

2001 is reproduced as under:-

"(1) All officers holding a higher rank shall be senior to the officers holding a lower rank.

(2) In a particular rank seniority of Officers appointed to any post shall be determined in accordance with the order of selection for appointment to that post.

(3) Subject to the provisions of sub rule (2) inter se seniority amongst officers holding the same rank shall be as follows namely:-

(i) Seniority of officers promoted on the same day shall be determined in the order in which they are selected for promotion to that rank.

(ii) Seniority of direct entrants shall be determined in accordance with the aggregate marks obtained by them before the Selection Board and at the passing out examination conducted at the Border Security Force Academy;

(iii) Seniority of temporary officers subject to the provisions of clauses (i) and (ii) shall be determined on the basis of the order of merit at the time of their selection and officers selected

on an earlier batch will be senior to officers selected in subsequent batches;

(iv) Seniority of officers, subject to the provisions of clauses (i), (ii) and (iii), shall be determined according to the date of their continuous appointment in that rank;

Provided that in case of direct entrants, the date of appointment shall be the date of commencement of their training course at the Border Security Force Academy."

17. As per the aforesaid provision, the case of the petitioner will have

to be considered as one of continuous appointment on that rank as he was

also a direct recruit alongwith his other batchmates and was at Sr.No.26

in the merit list after having qualified all the requisite tests and the

proviso of the said Rule, on which reliance was placed by the learned

counsel for the respondents, will not be applicable to the petitioner's case.

It would be useful to refer here, the following observations made in the

judgment of the Division Bench of this Court in Avinash Singh (supra)

and we also find ourselves in agreement with the same, as the seniority of

a person must be reckoned with reference to his merit position in the

seniority list of his batchmates. The relevant paragraphs are reproduced

hereunder:-

"18. We highlight in the instant case the fortuitous circumstance of the petitioners being made to join as Assistant Commandant on 08.08.2005 is not the result of anything created by the petitioners but is a result of a supine indifference and negligence on the part of the ITBP officials.

19. Thus, petitioners would be entitled to their seniority as Assistant Commandant with respect to their batch-mates in the context of the merit position in the select panel. We make it clear, the seniority as Assistant Commandant of the entire batch would be a reflection of the merit position in the select list and not the date of joining.

20. It is trite that where a thing is deemed to come into existence everything which logically flows therefrom has to be followed and the imagination cannot boggle down. In other words, the effect of the petitioners' seniority being reckoned with reference to the select panel would mean that the petitioners would come at par with their brethren who joined on 02.11.2004. Since their brethren were granted 1 year qualifying service relaxation, petitioners would be entitled to the same benefit and additionally for the reason the next below rule requires that if a person junior in the seniority position acquires the necessary qualifying service, the person above has also to be considered for promotion.'

18. In the light of the aforesaid discussion, the writ petition is allowed

with the following directions to the respondents, that they shall:-

i) redraft the seniority list of SSB CPOs, 1999 and place the petitioner as per his merit in the select list of Batch Sr. No.

ii) treat the petitioner to be governed by the old pension scheme under Central Civil Service Pension Rules, 1972.

iii) grant all consequential benefits including his seniority as per his merit alongwith his batchmates in SSB CPOs, 1999,

except the actual salary for the post of Assistant Commandant, to which he was entitled since he assumed charge on the said post.

19. The writ petition stands disposed off in the aforesaid terms.

KAILASH GAMBHIR, J.

NAJMI WAZIRI, J.

DECEMBER 22, 2014 v/pkb