Yadunath Singh vs Union Of India And Ors
2014 Latest Caselaw 1654 Del

I-21

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 7298/2012

       YADUNATH SINGH                            ..... Petitioner
                   Through            Ms.Rekha Palli, Adv.

                     versus
       UNION OF INDIA AND ORS             ..... Respondents
                     Through  Mr. Amrit Pal Singh, Adv.
       CORAM:
       HON'BLE MS. JUSTICE REVA KHETRAPAL
       HON'BLE MR. JUSTICE VALMIKI J.MEHTA

                          ORDER

: VALMIKI J. MEHTA, J. (ORAL)

(1) This writ petition is filed by one Yadunath Singh seeking benefit of promotion to the post of Law Officer, Grade-I. Promotion to the post of Law Officer, Grade-I is sought on the basis of the recommendation of the DPC dated 12 th January, 2010. As per the Petitioner, DPC granted him promotion to the post of Law Officer, Grade-I subject to obtaining the necessary relaxation in terms of the Memorandum dated 25.03.1996 of Department of Personnel and Training (DoPT).

(2) The facts of the case are that Petitioner was employed by the Border Security Force on 7.9.1970 as H.C. (DE). Petitioner was promoted as a Sub-Inspector on 30.10.1980.

Petitioner was appointed as a Law Officer, Grade-I on 13th July, 2005. In the year 2010, promotion of Law Officers, Grade-II to Law Officer, Grade-I was to take place. The requirement for a person to be considered for being appointed to the post of Law Officer, Grade-I was as under:-

"BSF (Chief Law Officers and Law Officers Recruitment and Conditions of Service) Rules 1999, vide Schedule II, eligibility to be promoted as Law Officer Grade I :-

(a) Law Officer Grade II with 9 years' regular service in the grade; failing which

(b) Law Officer Grade II with 4 years' regular service in the grade and having total 9 years' regular service in the pay scale of ` 10,000-15,200/- in the Force with total 9 years experience in legal affairs."

(3) Petitioner did not fall under either of paras (a) and (b) because petitioner did not have either 9 years of regular service of Law Officer, Grade-II or 4 years of regular service in Law Officer Grade II with 9 years of regular service in the pay scale of Rs. 10000-15200 with a total of 9 years experience in legal service.

(4) Petitioner, however, was still considered by the DPC, and this was in view of the Office Memorandum dated 25.03.96 of DoPT. Since the language of this OM dated 25.03.2006 would be relevant, we reproduce the same in its entirety as

under:-

"No.AB/14017/12/88-Estt(RR) Government of India Min. Of Personnel, P.G. & Pensioners (Department of Personnel & Training)

----------

New Delhi, THE 25th March, 96 OFFICE MEMORANDUM

Subject:- Revision of guidelines for framing/amendment/ relaxation of recruitment rules - consideration of seniors in cases where juniors are considered.

The undersigned is directed to refer to para 3.1.2 of part.III in this Department O.M. No. AB/14017/12/87-Estt.(RR) dated 18th March, 1988 wherein it was suggested that a suitable "Note" may be inserted in the Recruitment Rules to the effect that seniors who have completed the probation period may also be considered for promotion when their juniors who have completed the requisite service are being considered.

2. In the light of the Supreme Court judgment in B. Prabha Devi and others versus Government of India and others in Civil Appeals Nos.2040-42 of 1987 decided on March 8, 1988 on the judgment and order dated Feb. 11, 1986 of the Central Administrative Tribunal, New Delhi and in continuation of O.M. of even No. dated 23.10.1989 Government have decided to amend

para 3.1.2 of Part.III in this Department's O.M. No. AB/14017/12/87-Estt(RR) dated 18th March, 1988. Accordingly, the last sentence of para 3.1.2. will stand amended to read as under:-

"To avoid such a situation the following note may be inserted below the relevant service rules/column in the schedule to the Recruitment Rules.

Where juniors who have completed their qualifying/eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade alongwith their juniors who have already completed such qualifying/eligibility service."

3. Consequently para 2.1.2. of this Department's O.M. No. AB/14017/12/87-Estt(RR) dated the 18th March, 1988 will also be amended with the addition of the following sentence after 3rd sentence of para 2.1.2 ibid.

"The administrative Ministries/Departments are also empowered to amend all the service rules/recruitment rules to incorporate the "Note" as amended above."

Sd/-xxxxx (T.O. Thomas) Under Secretary to the Government of India

To

All Ministries/Deptts. Of Govt. of India

Copy to:-

1. Comptroller and Auditor General of India 10, Bahadur Shah Zafar Marg, New Delhi.

2. Union Public Service Commission, Dholpur House, Shah Jahan Road, New Delhi w.r.t. their No.F.1/1/93-S.II dated 27th Nov., 1995. The above decision has been taken with the approval of the competent authority.

Sd/-xxxxx (T.O. Thomas) Under Secretary to the Government of India"

(5) A reading of the relevant portion of this OM dated 25.03.96 shows that where a senior person does not meet the eligibility criteria for being considered for promotion, then, he can still be considered for promotion if juniors below him are being considered for promotion, however, the consideration can only be if the qualifying/eligibility service is not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service or 2 years, whichever is less.

(6) We have reproduced above the eligibility criteria for appointment to the post of Law Officer, Grade-I and we are concerned with para (b) thereof inasmuch as the Petitioner had 4 years of regular service in Law Officer, Grade-II with

service of 5 years 2 months and 7 days in the pay scale of Rs. 10000-15200. Petitioner also indubitably had 9 years of experience in legal affairs.

(7) In terms of the OM dated 25.03.96, once the Petitioner had 4 years of regular service in Law Officer, Grade-II, it was enough if he had the eligibility criteria of four and a half years of regular service in the pay scale of Rs. 10000 - 15200, and admittedly at the time of consideration by the DPC in the year 2010, Petitioner had not four and a half years of regular service in the pay scale of Rs. 10000 - 15200, but in fact of a larger period of 5 years, 2 months and 7 days. Accordingly, the Petitioner squarely was eligible for being considered in the DPC for promotion to the post of Law Officer, Grade-I.

(8) (i) Before us, it is also not disputed that there were 3 vacant posts of Law Officer, Grade-I, which were to be filled in as per the DPC which met on 12.01.2014 and that the Petitioner was one of the three persons, selected by the DPC for being appointed to the post of Law Officer, Grade-I, although with a rider that the necessary relaxation will be obtained in terms of OM dated 25.03.96 from the concerned authorities.

(ii) In fact this is where, in our opinion, the entire problem started unnecessarily for the petitioner. This mistake is because it was thought that so far as the Petitioner is concerned, relaxation will have to be specifically granted in

terms of the OM dated 25.03.96, whereas, the discussion below will show that in fact the OM dated 25.03.96 is a general OM for all classes/categories of persons, and which does not require any pre or post DPC approval of any authority, much less of DoPT, for a specific individual.

(iii) We have reproduced OM dated 25.03.96 in its entirety above and which clearly shows that there is no pre or post approval required by DPC and, in fact, the eligibility criteria is met on the requirement of the OM dated 25.03.96 being complied with.

(9) We may note that possibly the misery of Petitioner besides being passed by the DPC, is also of his own making. This is because it was not the case of the Petitioner earlier before this writ petition that the OM dated 25.03.1996 gave a general relaxation in terms of Rule 7 of BSF (Chief Law Officers and Law Officers Recruitment and Conditions of Services) Rules, 1999, in which Rule 7 reads as under:- "7. Power to relax - Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order, and for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons."

(10) Rule 7 provides that there can be a relaxation granted qua a class or category of persons where the Central Government is of the opinion that it is necessary or

expedient to do so. Obviously, it is pursuant to exercise of powers under this Rule 7 that the OM dated 25.03.1996 was considered by DoPT. Once the general memorandum dated 25.03.1996 is issued, and the terms of the memorandum are met, DPC fell into an error in giving promotion to the Petitioner to the post of Law Officer, Grade-I with a rider of relaxation having to be obtained under the OM dated 25.03.96.

(11) DoPT by its decision/opinion dated 13.12.2011 refused to give "relaxation" as was recommended by DPC on 12.01.2010. Petitioner, therefore, at that stage filed a Writ Petition in this Court being WP(C) No.8640/2010. By this writ petition, Petitioner essentially sought the relief of being granted promotion to the post of Law Officer, Grade-I by seeking a direction to be granted for necessary relaxation as recommended by the DPC. The WP(C) No.8640/2010 was disposed of at the admission stage by a Division Bench of this Court vide its judgment dated 12.08.2011. By this judgment dt. 12.8.2011, the Division Bench held that power under Rule 7 vis-a-vis OM dated 25.03.96 was an entirely different power and operated in a totally different area. Under Rule 7, the Division Bench observed, that there was power to relax the eligibility criteria even if DoPT had declined relaxation. Division Bench held that relaxation thus was directed, could be considered by the appropriate authority under Rule 7 as aforesaid. By the operative

portion of the judgment dated 12.08.2011, the case of the Petitioner was directed to be reconsidered with reference to Rule 7.

(12) Pursuant to this direction, now the impugned order dated 3.1.2012 has been passed by the Competent Authority refusing to grant relaxation under Rule 7 by making the following observations:-

"5. After the issuance of the Court orders dated 12.08.2011, the case of Sh. Yadunath Singh was taken up with DOP&T by the Ministry of Home Affairs on 02.02.2010 for grant of 03 years, 09 months and 23 days relaxation in regular service in the pay scale of Rs.10,000- 15,200/- (pre-revised) to make him eligible for promotion to the rank of Law Officer Grade.I, in the light of Minutes of the DPC held on 12.01.2010. DOP&T in their opinion dated 13.12.2011 stated that the guidelines of DOP&T prescribe that relaxation of recruitment rule rules is to be resorted to in respect of a class or category of persons. Relaxation should not be resorted to in respect of an individual except in cases where as an individual can be treated as class or category of persons. DOP&T has further stated that relaxation involved in this case is substantial and cannot be agreed to.

6. As per schedule-2 of BSF (Chief Law Officers and Law Officers Recruitment and Conditions of Service) Rules, 1999, the post of Law Officer Grade.I is a combatised Group-A post, and is to be filled up by promotion of (a)

Law Officer Grade.II with nine years regular service in the Grade, failing which (b) Law Officer Grade.II with four years regular service in the Grade and having total nine years regular service in the pay scale of Rs.10,000-15,200/- (pre-revised) with total nine years experience in legal affairs. Shri Yadunath Singh is not eligible for promotion to the rank of Law Officer Grade.I as on 01.01.2010, for the vacancy year 2010-11, due to shortage of 03 years 09 months 23 days service in the pay scale of Rs.10,000-325- 15,200/- (pre-revised) against 'failing which' clause.

7. Grant of relaxation in the eligibility conditions prescribed in the relevant recruitment rules to make officers in the feeder grade eligible for promotion to the next higher rank by exercising the powers conferred under the 'relaxation' clause in the notified Recruitment Rules is resorted to only in 'exceptional circumstances due to exigencies of services and not on the request of individual officers. Provisions of 'failing which' clause made in the Recruitment Rules itself is a kind of relaxation and further relaxation against 'failing which' clause is not resorted to in absence of any such necessity or expediency. Proposals on relaxations received from Ministries/Departments are examined by DOP&T on merits on case to case basis.

8. Since in the instant case, the necessary relaxation has not been accorded to by the

DOP&T, the request of Shri Yadunath Singh, for his promotion to Law Officer Grade.I cannot be acceded to and his representation is accordingly disposed off."

(13) (i) At one stage, we were in a sort of a quandary as to what should be done in the facts of the present case if in our opinion actually the OM dated 25.03.96 did not talk of individual relaxation to be obtained but this OM was in fact issued by the Government pursuant to Rule 7, and the Division Bench of this Court in the judgment dated 12.08.2011 had directed consideration of the case of the Petitioner under Rule 7. We, however, find no scope for confusion because even if the issue of relaxation under Rule 7 has to be considered, once the OM dated 25.03.96 is taken as a memorandum with respect to a class or category of persons found under Rule 7, then the Competent Authority as also this Court only has to examine the fulfilment of the conditions by the Petitioner of the terms as found in the OM dated 25.03.96. We have accordingly in spite of the history of the case narrated above examined the aspect from the point of view of grant of relaxation under Rule 7 read with eligibility criteria contained in OM dated 25.03.96.

(ii) The Competent Authority, in our opinion, while passing the impugned order dated 3rd January, 2012 also cannot be faulted with because the unnecessary conundrum came into existence because of lack of proper pleading by the

Petitioner and understanding the ramifications of Rule 7 read with the OM dated 25.03.96.

(14) (i) In the earlier paras of this judgment, we have already stated the fact that it is more than clear that the Petitioner had the qualification/eligibility of the half of the years of qualifying eligibility because the Petitioner had more than four and a half years of regular service under the pay scale of Rs.10000-15200. This is not an aspect which can be or could be disputed on behalf of respondents before us because this is a matter of service record.

(ii) Therefore, in our opinion, once the Petitioner satisfied the eligibility criteria in terms of OM dated 25.03.96 of having half the period of 9 years of regular service in pay scale of Rs. 10,000-15200, then in such a case DPC need not at all have given a conditional promotion because OM dated 25.03.96 does not require individual relaxation to be taken in an individual case, and as already stated above, the OM comes into operation for classes and categories of persons, who otherwise satisfy the relaxed criteria as found in OM dated 25.03.96.

(15) QED of the above is that the Petitioner in terms of the eligibility criteria for appointment to the post of Law Officer, Grade I in terms of the BSF Rules, 1999 of Law Officers read with the relaxation of eligibility conditions as per OM dated 25.03.96 was qualified to be appointed to

Law Officer, Grade-I subject to his being favourably considered for being appointed and the DPC admittedly considered the Petitioner fit for appointment to the Law Officer, Grade I.

(16) In view of the above, writ petition is allowed, and it is ordered that Petitioner will get all consequential benefits of his appointment to the Law Grade-I in terms of the recommendation of the DPC dated 12.01.2010. The date of promotion of the Petitioner as Law Officer, Grade-I, however, will be either the date of DPC dated 12.01.2010 or any other date in accordance with rules/practice of the Respondent No.2, and which in our opinion should be dated 1.4.2010 because the two other officers who have been promoted to the posts of Law Officer, Grade-I by the DPC dated 12.01.2010, have been given promotion with effect from 1.4.2010.

Writ Petition is accordingly allowed and disposed of leaving the parties to bear their own costs.

VALMIKI J.MEHTA, J

REVA KHETRAPAL, J

MARCH 27, 2014 sk