Delhi High Court
Captain Bindu Sethi vs Uoi And Ors on 26 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of hearing and Order: September 26th , 2014
+ W.P.(C) 4840/2010
CAPTAIN BINDU SETHI ..... Petitioner
Through Ms. Rekha Palli, Ms. Ankita
Patnaik, Ms. Garima Sachdeva &
Ms Shruti Munjal, Advocates
alongwith Petitioner in person
versus
UOI AND ORS ..... Respondents
Through Mr. Sanjeev Narula, Central
Government Standing Counsel
alongwith Sh. Atul Saini & Sh.
S.M. Dewedi, DCs BSF
+ CONT.CAS(C) 475/2012
CAPTAIN BINDU SETHI ..... Petitioner
Through Ms. Rekha Palli, Ms. Ankita
Patnaik, Ms. Garima Sachdeva &
Ms Shruti Munjal, Advocates
alongwith Petitioner in person
versus
RK SINGH SECRETARY & ORS ..... Respondents
Through Mr. Sanjeev Narula, Central
Government Standing Counsel
alongwith Sh. Atul Saini & Sh.
S.M. Dewedi, DCs BSF
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
HON'BLE MR. JUSTICE NAJMI WAZIRI
ORDER
%
KAILASH GAMBHIR, J. (Oral)
1. The instant writ petition has been preferred by the petitioner,
Captain Bindu Sethi, invoking the writ jurisdiction of this Court for a
writ, of mandamus directing respondent Nos. 1 to 4 to consider his case
for promotion to the rank of Sr. Pilot and if found fit, to grant him
promotion w.e.f. 1.1.2009 with all consequential benefits. The petitioner
also seeks quashing of the show cause notice dated 2.6.2009.
2. Before we examine the legitimacy of the petitioner's claim, it
would be necessary to give brief summary of the facts of the case and
also the various directions given by this Court from time to time. The
petitioner who was earlier serving in the Indian Army had joined the BSF
Air Wing in the year 1992. The petitioner was promoted as a Co-Pilot on
24.3.1995 after he had successfully completed 1000 hours of flying
experience. Due to his continuous outstanding performance, he was
endorsed as Captain on B-200 (Super King Aircraft) by the Director
General of Civil Aviation in the year 1997 and thereafter, he was directly
given the Airline Transport Pilot Licence (ATPL). On 26.9.2001, the
petitioner was promoted as a Captain/Pilot and after having completed 4
years of regular service as a Captain, on 26.9.2005 he became eligible for
being considered for promotion to the next higher rank of Senior Captain.
As per the case of the petitioner, he fulfilled all the eligibility conditions
for his promotion to the rank of Senior Captain but due to extraneous
reasons, he was denied promotion to the said rank. It is also the case of
the petitioner that he had completed 1000 hours Pilot-in-Command (PIC)
on BSF type of Aircraft and had also completed 4100 hours on BSF type
of Multi Engine Aircraft as a Co-Pilot (50% of hours as a Co-Pilot is to
be treated as PIC hours as per the DGCA Guidelines). The petitioner
made several representations dated 25.10.2005, 19.6.2007, 14.2.2008 and
27.10.2008 and in the said representations, he had clearly pointed out that
despite he fulfilling the requisite qualifications, no action was being taken
to fill the post of Senior Captain from the feeder cadre, as required under
the Recruitment Rules. It is also the case of the petitioner that pursuant to
the representations made by him, a clarification was sought by the
Director General, Border Security Force, respondent No. 5 herein, from
the office of the Director General of Civil Aviation, respondent No. 3
herein, regarding the flying hours of the petitioner and in reply thereto
respondent No. 3, vide its letter dated 31.12.2008, categorically stated
that the petitioner was fully eligible for promotion as per the Recruitment
Rules since 50% of flying done by the petitioner as Co-Pilot under
supervision could be counted as PIC experience. It is also the case of the
petitioner that regardless of the said clarification given by the Office of
the Director General of Civil Aviation, no action was taken by the
respondents to promote the petitioner, owing to which the petitioner once
again made further representations dated 14.10.2009 and 9.11.2009. It is
also the case of the petitioner that based on the representations of the
petitioner, respondent No. 2 i.e. Director General, BSF, took up the
matter with the Home Ministry, respondent No. 1 herein, for considering
the case of the petitioner for promotion but instead of acceding to the
request of the petitioner, respondent No. 1 acted in utter violation of the
Recruitment Rules and took a stand that the post of Senior Captain which
fell vacant on the retirement of AVM R. Khurana, IG (Air) was meant to
be filled by persons on deputation from the Indian Air Force. It is also the
case of the petitioner that with a view to further victimise the petitioner, a
show cause notice dated 2nd June, 2010 was issued to him by the Director
General, BSF, on a very inconsequential issue, against which a separate
reply dated 7.7.2010 was filed by the petitioner. It is also the case of the
petitioner that vide order dated 3rd June, 2010, respondent No. 1 had
rejected the case of the petitioner by taking an entirely erroneous stand
that the petitioner did not possess the minimum qualification of 2000
hours of flying experience as Pilot-in-Command on a Multi Engine
Aircraft as on 1.1.2010 and therefore, was not considered eligible for
promotion to the rank of Senior Captain against the vacancy for the year
2010-11. Feeling aggrieved by the said decision of the respondent No. 1
and the show cause notice dated 02.06.10 issued by the Ministry of Home
Affairs, Government of India, Directorate General Border Security Force,
the petitioner preferred the present writ petition on 20.07.2010. In the
counter affidavit filed by the respondent No.2, the main stand taken by
them is that the petitioner lacked the prescribed flying experience of a
minimum 2000 hours as Pilot-in-Command on a Multi Engine Aircraft as
on 1.1.2010 and therefore, the post of Senior Captain was filled up by
appointing an eligible candidate on deputation basis. Respondent No. 1
also took a stand that the case of the petitioner was taken up by
respondent No. 2 with respondent No.1 on the basis of the opinion of the
Director General of Civil Aviation but the same was rejected by
respondent No. 1 in the light of the laid down Recruitment Rule of
completing the minimum 2000 flying hours as PIC on Multi Engine
Aircraft, which the petitioner lacked. It is also the case of the respondents
that with a view to meet the functional requirements of maintaining a
large fleet of helicopters, one post of Senior Captain was transferred from
fixed wing to rotary wing in BSF Air Wing vide MHA UO dated
26.2.2010 and the decision of respondent No.1 was accordingly based on
the statutory provisions of hours and also keeping in view the operational
requirements. It is also the case of the respondents that the provision of
deputation was introduced as a one time measure to fill up the vacancy
that arose w.e.f. 1.4.2010 consequent to the retirement of AVM R.
Khanna IG (Air) and in so far as the case of the petitioner was concerned,
he lost his right of promotion to the rank of Senior Captain only because
he could not fulfil the prescribed flying hours and not for any other
reason.
3. Mr. Sanjeev Narula, the learned Central Government Standing
Counsel appearing for the respondents, at the outset submits that the
petitioner has already been promoted to the rank of Senior Captain (IG),
BSF w.e.f. 19.02.2014 against a vacancy for the year 2011-2012.
4. The learned CGSC also submits that the respondents have fully
complied with the statement made before the Court on 11.05.2011 and in
fact the petitioner has been given relaxation of flying hours on Multi
Engine Aircraft and it was due to this relaxation that the petitioner
became eligible for promotion to the rank of Senior Captain against the
vacancy which arose in the year 2011-2012, as per the Pre- revised RR
after taking into consideration the crucial date of 01.01.2012.
5. On the aspect of grant of retrospective promotion, the learned
CGSC submits that there are no mala fides on the part of the respondents
in not granting promotion to the petitioner retrospectively w.e.f.
01.12.2011 i.e., the date when vacancy to the said post had arisen on
account of the DoPT Guidelines dated 10.04.1989 which envisage that
when promotions are made in the order of the consolidated select list,
then such promotions will only have a prospective effect, even in cases
where the vacancies relate to earlier year(s).
6. Refuting the aforesaid submissions of the learned CGSC for the
respondents, Ms. Rekha Palli, the learned counsel for the petitioner
submits that vide letter dated 31.12.2008 sent by the office of the Director
General of Civil Aviation to the Commandant (Personnel), Ministry of
Home Affairs, Directorate General Border Security Force (Personnel
Directorate), CGO Complex, Lodhi road, New Delhi, a categorical stand
was taken that the present petitioner had already completed 1449 hrs. as
PIC and 4100 hrs. as Co-Pilot as on that date and therefore, in their
opinion, the petitioner met the Recruitment Rule criteria for promotion as
mentioned in the letter under reply. The learned counsel for the petitioner
further emphasised that the respondents can no more take a stand that the
petitioner was not eligible due to his inability to meet the criteria of
certain flying hours, in the teeth of the said stand taken by the
respondents themselves.
7. The learned counsel for the petitioner has placed reliance on the
Communication dated 14.02.2014 from the Appointments Committee of
the Cabinet (in short 'ACC'), Ministry of Personnel, Public Grievances &
Pensions, Department of Personnel & Training, wherein again, the ACC
has granted approval for empanelment of the petitioner to the rank of
Senior Captain, BSF in the Panel Year 2011-2012 but the respondents are
intentionally denying him the said promotion against a vacancy that had
arisen as on 01.12.2011, as the grant of the said promotion would make
him eligible for promotion to the next rank of Additional Director
General and ultimately to the rank of Director General, which may not be
to the liking of the non-cadre officers.
8. The learned counsel for the petitioner also submits that in similar
cases, the respondents have been granting promotions on notional basis
and one such example is the case of Mr. Lalit Kumar, which has been
produced by the learned counsel for the petitioner. The learned counsel
for the petitioner also invites the attention of this Court to the order dated
18.03.2013 passed by this Court, laying special emphasis on para 9(iii) of
the same, wherein, the Court gave a clear direction that in case the
petitioner is ultimately appointed to the rank of Senior Captain, he shall
be entitled to all consequential orders of seniority etc. as may be due to
him in such a position, irrespective of the date on which the person was
appointed on deputation. The learned counsel for the petitioner further
invites attention of this Court to the internal noting of the Law Ministry
which has been given in response to the opinion given by the BSF, in the
light of the order dated 11.05.2011, passed by this Court and the opinion
given was that there is no confusion as to the applicability of the RRs
existing as on 11.05.2011 wherein the post of Senior Captain has to be
filled up by promotion or failing which , by deputation. Thus, as on
01.12.2011 if Mr. Bindu Sethi, the petitioner herein fulfils the RRs which
were existing on 01.12.2011 then, he shall have to be considered in terms
of the commitment made by the Government Counsel in the order dated
11.05.2011. In the said advice, the Ministry also made it explicitly clear
that failure to comply with the order dated 11.05.2011 passed in CM
APPL. No.6705/2011 in W.P.(C) 4840/2010 will amount to contempt of
Court by the Ministry of Home Affairs and BSF.
9. The learned counsel for the petitioner also submits that the said
advice given by the legal department was approved by the Law Secretary
and also by the then Minister of Law & Justice.
10. Pursuant to the direction given by this Court vide order dated
15.07.2014, the respondents have filed their additional affidavit through
Mr. Kuldeep Saini, Dy. Inspector General (Personnel), HQ DG BSF,
CGO Complex, New Delhi.
11. We may also mention here that the contempt petition vide CCP
No.475/2014 was also preferred by the petitioner to seek initiation of
contempt proceedings against the Secretary, Ministry of Home Affairs,
Director General (BSF) and the Special Director for wilful disobedience
of the order dated 11.05.2011 passed by this court in the main writ
petition.
12. Before we examine the merits and demerits of the case of the
petitioner, some of the directions given by this Court on various
applications preferred by the petitioner and in the main petition would be
of great significance. CM No. 3390/2011 was preferred by the petitioner
seeking a direction from this Court to pass an ad interim stay order to
restrain the respondents from filling the post of Senior Captain by
resorting to deputation during the pendency of the present writ petition
and vide order dated 11th March, 2011 the following order was passed:
"C.M.No.3390/2011
Application stands disposed of directing that any
appointment to the post of Senior Captain by way of
deputation would be subject to any orders, which
may be passed in the writ petition and if a person is
appointed as a Senior Captain by way of deputation
or otherwise, the fact that the offer/appointment
is subject to orders which may be passed in the writ
petition would be communicated to the person
concerned."
13. Another CM was filed by the petitioner on 6th March, 2011 to seek
a direction to the respondents to consider the case of the petitioner for
promotion, as per the existing Recruitment Rules before resorting again
to fill the vacancy by deputation. In this application, the petitioner
submitted that the deputationist - AVM A.P. Garud was likely to be
reverted back to his parent cadre very soon and as per the existing rules,
the post of Senior Capitan was required to be filled by promotion and
failing which, it could be filled by deputation and therefore, before
resorting to fill the vacancy again by deputation, the case of the petitioner
requires due consideration for the said promotion and while disposing off
this application, the Court passed an order dated 11.05.2011, which reads
as under:-
"CM No.6705/2011
1. Learned counsel for the respondents states that as
and when the post of Senior Captain would be
filled up, the same would be with reference to
the existing Recruitment Rules and that before
resorting to deputation it would be seen whether a
departmental candidate is available and fulfils the
requirements of the Recruitment Rules to be
considered for promotion.
2. The application stands disposed of."
14. The aforesaid order dated 11th May, 2011 is at the centre stage of
the controversy, as non-compliance of the same lead to the filing of a
separate contempt petition by the petitioner vide CCP No.475/2012. We
will deal with this aspect in the later part of the order. Another CM No.
6419/2012 was moved by the respondents so as to bring on record certain
additional facts. Vide order dated 22nd August, 2012, this Court had
directed the respondents to file an additional response to the contentions
raised by the petitioner that despite repeated directives from the Ministry
of Law and Justice, Ministry of Home Affairs and DOPT, the DPC was
not conducted in 2011. The Court in this order had also made it clear that
no order passed by the Court has the effect of precluding the respondents
from holding the original DPC in accordance with the law. The order
dated 22nd August, 2012 is reproduced hereunder:-
"CM No.6419/2012
We have heard learned counsel for the parties on this
application.
The respondents shall place on record the date on
which Air Vice Marshal A.P. Garud was promoted in
the Air Force to the rank of Air Marshal and the dates
on which he drew the benefits in this position.
The respondents shall also file an affidavit in response
to the petitioner's contention that despite repeated
directives from the Ministry of Law and Justice,
Ministry of Home Affairs and DOPT, the DPC was
not conducted in 2011. Such affidavit shall be filed
within two weeks from today. The petitioner may file
response thereto before the next date. There is no
order precluding the respondents from holding the
original DPC in accordance with law."
15. Pursuant to the direction given by the Court, the respondents had
filed an affidavit of Shri Vikas Chandra, Deputy Inspector General
(Personnel) of the BSF and taking note of the stand taken by the said
officer in his affidavit, the Court expressed its strong displeasure over the
conduct of the respondents in not convening the DPC for a period of over
one year. The Court observed that to state that the DPC could not be
convened on account of administrative exigencies is completely
intolerable. Taking note of the submission of the learned ASG that the
DPC shall be convened within a period of three weeks from the date of
the said order, the Court had directed that the respondents shall ensure
that the DPC is convened and held within a period of four weeks from
that date, in accordance with the prescribed procedure and rules and result
thereof shall be placed before the Court on the next date of hearing. The
said order is reproduced as under:-
"20.11.2012
"1. The respondents have filed an affidavit of Shri
Vikash Chandra, Deputy Inspector General
(Personnel) of the BSF (at page 315) wherein it is
deposed as follows:-
"xxx 5. As regards the petitioner's contention
that despite repeated directive from the
MoL&J, MHA and DoP&T, the DPC was
not conducted in 2011, it is submitted that the
matter remained under consultation with
MoL&J for advice regarding the method of
filling up the vacancy and applicability of RRs
in this case in view of suppression of old RRs
by Revised RRs notified on 11.11.2011. Finally,
a DPC was convened on 25.4.2012 for
considering promotion of the eligible officers to
the rank of Sr. Captain/IG to fill up the vacancy
caused by premature repatriation of AVM A P
Garud. However, the said DPC was deferred
for want of some clarification with regard to
applicability of vacancy year i.e. 2011-12 or
2012-2013; and determination of the crucial
date of eligibility i.e. 01.01.2011 or
01.01.2012, etc.
6. It is also submitted that in a meeting held
under the Chairmanship of Home Secretary
with the representatives of BSF, DoP&T and
MoL on 27.3.2012, it was decided that BSF may
file an application in the Hon'ble High Court
of Delhi to bring on record the additional facts
regarding notification of fresh RRs for the post
of Senior Captain/IG in BSF on 11.11.2011
and the relevant provisions thereof and clearly
bring out the needs for issuance of such RRs
and also the fact that no step has been taken
which is against the interests of the applicant
i.e. Shri Bindu Sethi. Accordingly, an
Application under Section151 of Code of
Civil Procedure has been filed before the
Hon'ble Delhi High Court on 15.5.2012.
7. It is further submitted that the matter has
again been considered in the light of the
Hon'ble Court direction vide order dated
22.8.2012. Accordingly, a Departmental
Promotion Committee (DPC) meeting had
been convened to be held on 12.10.2012 vide
MHA (Pers-III Desk) under office note
No.17/92/2011-Pers/BSF/Pers-III dated 4th
October, 2012, for considering empanelment of
the eligible Captains/Pilot (DIG) for promotion
to the rank of Senior Captain in BSF for the
vacancy year 2012-13. Further, the MHA vide
under office note No.17/92/2011-
Pers/BSF/Pers-III dated 8th Oct 2012 has
intimated that as per the commitment made
by the respondents before the Hon'ble High
Court and advice of DoP&T as well as MoL&J
the instant DPC is to be held as per the pre-
revised RRs for the post of Senior Captain in
BSF Air Wing with the crucial date for
determining the eligibility as on 01.01.2012.
However, due to administrative reasons, the
DPC's Meeting scheduled to be held on
12.10.2012 has been postponed vide
MHA under office note No.17/92/2011-
Pers/BSF.Pers-III dated 10th Oct 2012. (Copy
of letter No.UO 17/92/2011-Pers-III dated 8th
Oct 2012 and UO 17/92/2011-Pers/BSF/Pers-
III dated 10th Oct 2012 has been
annexed herewith as Annexure R-10 Colly)."
2. We were orally informed on 16th October, 2012 by
learned counsel for the respondents that the
Departmental Promotion Committee (hereinafter
referred to as "DPC") which was scheduled for 12th
October, 2012 could not be held on account of
administrative reasons and the same shall be
convened shortly.
3. Mr. Rajeeve Mehra, learned ASG on instructions
from Mr.Dinesh Mahur, Director (Personnel) with the
Ministry of Home Affairs who is present in court,
submits that DPC could not be convened even
thereafter till date again on account of administrative
reasons.
4. The instant writ petition is concerned with
appointment to the post of a Senior Captain with the
Border Security Force. The petitioner who is present
in person, submits that there are only two posts of
Senior Captain in the entire Border Security Force.
He submits that the post for which the DPC is to be
convened, is lying vacant for the last one year. He
further informs that the incumbent in the other post
has also resigned.
5. It needs no elaboration that the vacancies in senior
positions in organizations as the Border Security
Force, which is a para military force, work extreme
prejudice to public interest. The matter,
therefore, brooks no delay at all. The above narration
would show that the respondents are unreasonably
dragging their feet in convening the Departmental
Promotion Committee. Merely stating that the DPC
could not be convened on account of administrative
exigencies in the circumstances is completely
intolerable. No acceptable reason whatsoever is
disclosed for not convening the DPC and as a result
we are unable to see any justification for not
convening a DPC for a period of over one
year despite the depositions on affidavit and the
statement noticed by us above. These circumstances
compel us to issue peremptory directions. Mr. Rajeeve
Mehra learned ASG submits that the DPC in question
shall be convened in three weeks from today.
6. It is accordingly directed that the respondents shall
ensure that the DPC in accordance with prescribed
procedure and rules, is convened and held within a
period of four weeks from today. The result
thereof shall be placed before the court on the next
date.
List on 17th December, 2012.
Copy of this order be given dasti under the signatures
of the court master."
16. On the next date i.e., 17.12.12, the learned ASG representing the
respondents informed the Court that the DPC in terms of the order dated
20th November, 2012 was held on 10.12.2012 and the matter
subsequently was pending with the ACC to approve the recommendations
of the DPC and thereafter, the matter was to be placed before the Prime
Minister. The matter was accordingly adjourned by the Court for 18 th
February, 2013 so as to enable the respondents to apprise the Court on the
next date of hearing about the outcome of the DPC. In the meanwhile,
another CM was preferred by the petitioner vide CM no. 20067/2012 and
in this CM, the grievance raised by the petitioner was that the
respondents, in a most contemptuous manner were taking the crucial
eligibility date as 1.1.2011 instead of 1.1.2012 so as to again declare the
petitioner, unfit for promotion to the said rank of Senior Captain on the
ground of falling short of the requisite flying hours. On this CM, this
Court vide order dated 15.1.2013 gave the following orders:-
CM No.20067/2012
1. Despite opportunity, reply has not been filed. The
petitioner has expressed a grave apprehension that
in order to scuttle the rights of the petitioner, the
respondents have not complied with the statement
made by them in the affidavit dated 16th October,
2012 (pgs. 316, 317) filed by Border Security
Force ('BSF'), wherein it was clearly stated that
"DPC is to be held as per the pre-revised RRs for
the post of Senior Captain in BSF (Air Wing)
with the crucial date for determining the
eligibility as on 1st January 2012".
2. On 20.11.2012 Mr. Rajeeve Mehra, learned ASG,
on instructions, from Mr.Dinesh Mahur, Director
(Personnel), Ministry of Home Affairs
had submitted that the DPC could not be convened
only on account of administrative reasons and time
was sought for convening the same and for placing
results before us. This has not been done despite
the matter having been adjourned twice.
3. Ms. Rekha Palli, learned counsel for the petitioner
has expressed apprehensions of violation of the
orders passed by this Court the respondents have
not convened the DPC of officers who were eligible
as on 1st January 2012 with the sole intention to
deprive the petitioner from his rightful
consideration.
4. The respondents certainly cannot conduct the DPC
contrary to the statement made in the affidavit and
otherwise in court.\
5. In this view of the matter the respondents shall
ensure that they comply with the statement made
in the affidavit dated 16th October 2012 (at pages
316 and 317) and shall ensure that the DPC had
considered such officers who were eligible as on
1st January 2012.
6. Let a copy of this order as well as the affidavit
filed by the respondents be served upon the ACC
before whom the matter is stated to have been
pending before it considers the proceedings of the
DPC in the instant matter.
7. It is made clear that any action taken by the
respondents with regard to the proceedings of the
DPC shall remain subject to the orders passed in
the present petition.
8. The respondent shall ensure that they file their
reply within two weeks from today.
9. A copy of this order be given dasti under the
signature of the Court Master.
10.List on 18th February 2013 i.e. the date already
fixed."
17. Vide order dated 18th February, 2013, the Court had directed the
respondents to place a copy of their affidavit dated 16th October, 2012 as
well as a copy of the order passed by this Court on 15th January, 2013
before the Appointments Committee of the Cabinet. Another CM vide
CM No. 3036/2013 was preferred by the petitioner to seek a restraint
order against the respondents from filling the post of Senior Captain/IG in
the BSF Air wing by deputation before considering the case of the
petitioner for promotion. On this application, the Court gave the
following directions vide orders dated 15th March, 2013 and order dated
18th March, 2013 and the same are reproduced as under:-
"Order dated 15.03.2013
CM No.3036/2013
1. We are informed that Mr. Dinesh Mahur, Director
(Personnel), Ministry of Home Affairs is present to
explain the movement of the files with regard to
appointment of Senior Captain on deputation and
pursuant to the Departmental Promotion
Committee. He is however unable to inform us the
complete position as according to him, the file is
being processed by the Department of Personnel
and Training (DOPT) which he states, is actually
a secretariat of the Appointment Committee of the
Cabinet. It is submitted that the Director from this
department should be able to apprise us of the
correction position.
2. In view of the fact the application is under active
consideration and given the urgency expressed by
both sides, we post this application for further
consideration on 18th March, 2013 when the
concerned Director, DOPT shall remain present
in Court. The matter will be taken up at the top of
the board on that date.
3. In view of the above, AVM J.S. Klare who has
been appointed on deputation to the post of Senior
Captain in the BSF shall not join till the next date
of hearing.
4. The petitioner may file rejoinder to the response
filed by the respondents before the next date of
hearing.
Dasti under signature of the Court Master"
"ORDER DATED 18.03.2013
CM No.3036/2013
1. We have heard learned counsel for the parties as
well as Mr. Dinesh Mahur, Director (Personnel),
Ministry of Home Affairs and Mr. Chetan Jain,
Director ACC Secretariat.
2. The applicant has made grievance that despite the
orders dated 11th May, 2011 and 15th January,
2013 passed by this Court, the respondents have
failed to effect the appointment to the post of
Senior Captain in BSF (Air Wing) by promotion
and instead are attempting to fill the post of Senior
Captain I.G. in the BSF (Air Wing) by deputation
so as to avoid the orders of the court and to enable
such officer to claim seniority over the person
regularly appointed by DPC. The parties have filed
reply and rejoinder to this application.
3. It is not necessary for the purpose of the order
which we propose to pass to examine the
contentions by either side which are left open
for consideration at the appropriate stage in
appropriate proceedings.
4. The respondents have placed before us a tabulation
of the dates on which they too took steps to fill up
one post of Senior Captain in BSF (Air Wing) on
repatriation of AVM A.P. Garud on deputation.
5. The respondents have orally made submissions
with regard to the steps taken for appointing a
person as Senior Captain pursuant to
the consideration by the Departmental Promotion
Committee (which conducted its proceedings on
10th December, 2012). It appears that the matter
is yet to be placed before the Appointment
Committee of the Cabinet and is presently pending
with the Ministry of Home Affairs.
6. We are informed by Shri Rajeeve Mehra, learned
ASG appearing for the respondents that he has
been instructed to inform this Court that the matter
shall be scrutinised by the Minister of Home
Affairs at the earliest who shall be apprised of the
orders dated 22nd November, 2012 and 15th
January, 2013 passed by this Court. Mr. Mehra,
learned ASG assures this Court that the matter
shall be expeditiously processed and the
appropriate orders be passed at the earliest.
We accept the submission and assurance made by
Shri Rajeeve Mehra, learned ASG appearing on
behalf of the respondents and express
confidence that the matter would be proceeded
with expeditiously, given, not only the rights of
the petitioner, but the nature of appointments
involved.
7. Ms. Rekha Palli, learned counsel for the petitioner
has drawn our attention to the following averments
made in CM No.20067/2010 (Page 328 of the
paper book) by the petitioner:-
"7. That however, on basis of the
representations made by the Petitioner, the
matter was referred to the Ministry of Law and
Justice who repeatedly advised the
Respondents to consider the Petitioner on basis
of Recruitment Rules existing as on 11.05.2011
which opinion was also endorsed by the DOPT
but still the Respondents in order to prevent the
Petitioner from earning his due promotion filed
an Application being CM NO.6419/2012
seeking liberty from this Hon'ble to fill the
vacancy of Senior Captain as per the Rules
existing as on May 2012 i.e. the Rules notified
on 12.05.2011 and it is only after this Hon'ble
Court vide its order dated 22.08.2012 directed
the Respondents to give details as to when
AVM A P Garud was empanelled for
promotion to the rank of Air Marshal as also
the advise given by Ministry of Law and
Justice and DOPT that the Respondents then
filed an Affidavit dated 16.10.2012 before the
Hon'ble Court wherein they submitted that
they had decided to hold the DPC
for considering the Petitioner's case for
promotion as per the pre-revised Recruitment
Rules for the post of Senior Captain with the
crucial date for determining the eligibility as on
01.01.2012, which eligibility date had been
fixed after consultation with DOPT.
9. That vide the aforesaid affidavit dated
16.10.2012 the Respondents also informed this
Hon'ble Court that the DPC had been
scheduled initially for 25.04.2012 whereafter
the clarification regarding the eligibility date
being 01.01.2012 had been received and the
DPC thereafter been scheduled for 12.10.2012
but the same was again deferred and would
likely to be re-convened very soon.
10. That on 12.11.2012 this Hon'ble Court had
noticed the fact that though as per the affidavit
filed by the Respondents the DPC had
been convened on 12.10.2012 for considering
empanelment of eligible Captains/Pilot for
promotion to the rank of Senior Captain for the
vacancy year 2012-13 with the crucial date for
determining eligibility being 01.01.2012 but
the DPC had been postponed on administrative
grounds and therefore the Respondents were
directed to convene the DPC within three
weeks.
11. That though the Respondents were duty
bound to convene the DPC with the crucial
eligibility date being 01.01.2012 as undertaken
by them before the Hon'ble Court but as per
the information of the Petitioner, the
Respondents specially Mr. Arvind Ranjan,
Special Director General (Respondent No.3
in the Contempt petition) has in a most
contemptuous manner considered the case of
the Petitioner by taking the crucial eligibility
date as 01.01.2011 thereby the Petitioner has
been declared to be unfit on the ground that he
is falling short of the requisite flying hours as
pilot in command by 23 hours 30 minutes. It is
further pertinent to mention that Sh. Arvind
Ranjan had convened the DPC as Acting
Director General and that too in the absence of
the Special Secretary (IS) who was the
member of the DPC but was on leave when the
DPC was convened on 10.12.2012.
12. It is submitted that in the above DPC held
on 10.12.2012 by taking the crucial date as on
01.01.2011 not only the Petitioner has
been declared to be unfit but a person at least
three years' junior to him has been
recommended for promotion and that too in
violation of the DOPT's OM dated 25.3.1996
and therefore it is evident that the Respondents
are trying to repeatedly mislead this Hon'ble
Court and deprive the Petitioner who is a most
meritorious officer to his right to be
promoted to the rank of Senior Captain and that
too when they have admittedly already given
both the local rank and pay (by way of MACP)
of the rank of Senior Captain to the petitioner."
8. Our attention is drawn to the reply filed by the
respondents. Perusal thereof would show that there is
no specific denial to the above averments made by the
petitioner and reply contains only vague denials.
9. The petitioner has made a strong grievance in the
proceedings before us as well as the objections to the
conduct of the DPC which may go to the root of its
jurisdiction. If the submissions of the petitioner are
found correct, the same may result in rendering the
same illegal and in violation of specific and
prescribed procedure. It is therefore necessary that
these contentions of the petitioner be also placed
before the authorities who may take a considered view
in the entire matter specially as the proceedings of the
DPC are to be scrutinised for the purpose of
according an approval or passing of any other order
thereon.
In view of the above, we direct as follows:-
(i) Let a copy of the present order be placed before
the Minister of Home Affairs considering the
proceedings of the DPC.
(ii) It is further directed that appointments if any
made by the respondents to the post of Senior
Captain in the BSF (Air Wing) on deputation
shall be subject to further orders which may be
passed in the present proceedings.
(iii) It is clarified that the appointee, if any, shall be
informed that in case the petitioner is
ultimately appointed to the post of
Senior Captain, he shall be entitled to all
consequential orders of seniority, etc. as may
be due to him in such position irrespective of
the date on which the person is appointed on
deputation.
This application is disposed of in the above
terms leaving all issues raised by the petitioner open
for consideration in appropriate proceedings.
Dasti under signature of Court Master." "
18. The petitioner in the meanwhile made further representations to the
Cabinet Secretary and on the said representations a decision was taken on
10th July, 2013 by the Ministry of Home Affairs approving the proposal
sent by the Director (Personnel), Ministry of Home Affairs. Order dated
18th July, 2013 incorporating the said note of the Director (Personnel) ,
Home Affairs is reproduced as under:-
"1. In the instant case one of the issues raised by the
petitioner is the prayer of petitioner for direction to
respondents to consider his candidature for the post of
Senior Captain in the Border Security Force, Air Wing
in accordance with the rules which applied on the date
when the appointment to the post became due. In this
regard, the petitioner has made representations to the
respondents. It is further complained that the
respondents conducted meeting of the Departmental
Promotion Committee which did not abide by the rule
position or the undertaking given to this court.
2. It appears that the petitioner's representations to the
respondents on this issue were being actively
considered. We are informed that a decision dated
10th July, 2013 approving the proposal by the
Director (Personnel) of the Ministry of Home Affairs
has been passed. For the purpose of convenience, we
set out here under the proposal which has
been approved at the highest level on 10.7.2013:
CF-155190/13
Ministry of Home Affairs
(Pers.III Desk)
Reference preceding note pre-pages 111-114/n
and remarks of the Secy (IS) and the HS on pre-
pages 114-115/n, regarding DoP&T's
observations O.M. dated 16.5.2013
(F/PUC/431/C) on this Ministry's proposal
for filling up the post of Senior Captain in BSF
by promotion.
2. The matter was discussed by JS (P-II) and
Dir (Pers) with Secy (IS) and HS on
10.07.2013. The points on which DoPandT has
sought comments of this Ministry on the
representations made by Capt/Pilot (IG-LR)
Bindu Sethi before the Cabinet Secretary along
with comments of BSF (pages 99-103/n) may
be perused at para 2 of note on pre-pages 111-
112/n.
3. As regards DoP&T's observation that the
DPC considered Cofidential Reports for the
period from 2006-07 to 2010-11 instead
of 2005-06 to 2009-10 for the vacancy year,
2011-12 for which BSF has requested MHA to
comment upon, it is submitted that DPC has
considered ACRs of both the officers for
preceding five years strictly in accordance with
the instructions with reference to crucial date
i.e. 01.01.2011. The conclusion drawn by DoP
& T vide para 2 (iv) of their letter dated
16th May, 2013 (F/PUC) is perhaps based on
the synopsis included in the DPC's folders
which were prepared by BSF based on the
crucial date of 01.01.2012 for the vacancy year,
2012-13.
4. However, in order to settle long pending
court case, BSF has now requested to convey
approval for counting of 50% of the flying done
by Capt/Pilot Bindu Sethi as Co-Pilot as PIC
experience in accordance with the DGCA's
instructions or to accord relaxation to complete
mandatory flying hours as on 14.01.2011
instead of 01.01.2011 as the officer
had completed prescribed flying hours and
became eligible for promotion on 14.01.2011
for considering his promotion during 2011-12
on the following grounds:
(i) The officer has completed prescribed
flying hours as on 14.01.2011 (just after
13 days).
(ii) The officer is having
instructor/examiner rating which is
the DGCA's ultimate qualification for a
pilot.
(iii) He has been conferred with a local
rank of Sr.Captain/IG with effect from
05.08.2011.
(iv) The officer (Capt/Pilot Dilbagh
Singh) junior to him was
granted relaxation in flying hours twice
i.e. once for his initial appointment to the
post of Co-Pilot and subsequently for
promotion to the rank of Cap/Pilot
(DIG).
5. In the mean time, after the DPC meeting was
held on 10.12.2012, following developments
have happened:-
i. One of the posts of captain/Pilot (DIG)
in BSF Air Wing has been upgraded to
the level of Senior Captain on
23.01.2013 and thus two vacancies in
the rank of Senior Captain are now
required to be filled.
ii. In view of a long pending Court case,
delay of about 7 months already caused
in ACC's approval after the DPC
meeting was held on 10.12.2012, DG,
BSF has now requested MHA to
consider relaxation in experience
requirements of Capt Bindu Sethi (refer
para 3 at 103/n), to consider Capt.
Bindu Sethi for promotion to Sr.
Captain for the vacancy year 2011-12.
6. In view of above developments, following
options are available for consideration:-
(a) To furnish a reply to DoPandT's
query as per comments given in para 2, 4
and 5 of note on pre-pages 111-113/n,
with the request to get the proposal
approved from the ACC.
OR
(b) In view of above developments (para
5 above), the ACC's proposal may be
withdrawn immediately and convene a
fresh DPC (before the next date of
hearing of Contempt Petition Filed by
Capt/Pilot in his WP No.4840/2010 fixed
on 18.07.2013). Meanwhile, we may also
process BSF's proposal (para-3/pre-
page-103/n refers) with DoPandT for
considering relaxation in prescribed
flying experience in respect of Capt/Pilot
Bindu Sethi.
7. In case, option at para 6 (b) is considered
appropriate, approval of Hon'ble HM may be
solicited.
(Dinesh Mahur)
Director (Pers)
10.07.2013"
3. It is informed by the learned standing counsel for the
respondent that expeditious steps to implement the
above decision would be taken and the DPC would be
convened at the earliest.
In view of the above, we direct as follows:
(i) The respondents shall ensure that the
decision noted above is effected in accordance
with the applicable rules and regulations within
a period of eight weeks from today and the
decision taken is communicated to the
petitioner.
List on 10th October, 2013." "
19. As can be seen from the above order, the learned Counsel
representing the respondents took a stand that expeditious steps to
implement the above decision would be taken by the respondents to
convene the DPC at the earliest and taking note of the said submission of
the counsel for the respondents, the Court had directed that the
respondents shall ensure that the decision noted above is effected in
accordance with the applicable rules and regulations within a period of
eight weeks from that date. On 20.11.2013, counsel for the respondent
informed the Court that the matter is at the final stage of consideration at
the PMO and the matter, thereafter, was adjourned for several dates. In
the meanwhile, a review petition was preferred by the respondents to seek
review of the order dated 15.1.2013, which was later withdrawn by the
respondents. The case of promotion of the petitioner to the rank of the
Senior Captain/IG was considered by the DPC on 5.9.2013 and this time,
his case was placed after granting necessary relaxation in deficiency of
the required hours of PIC flying experience by the MHA/DOPT on 29 th
July, 2013 for the vacancy, in the panel year 2011-12. Vide their letter
dated 14th February, 2014, the Appointments Committee of the Cabinet
approved empanelment of the petitioner for the vacancy in the panel year
2011-12 and Captain Dilbagh Singh in the panel year 2012-13 for their
promotion in the grade of Senior Captain, BSF. Based on the said
approval granted by the ACC, the Ministry of Home Affairs vide their
letter dated 19th February, 2014 granted promotion to the petitioner to the
rank of Senior Captain/IG in BSF in the panel year 2011-12 w.e.f. the
date of assumption of charge on the said post and until further orders. The
petitioner felt aggrieved even by this order because of not being granted
retrospective promotion w.e.f. 1st December, 2011 by which date the
earlier deputationist had vacated office. Taking note of the submissions of
the counsel for the petitioner, the Court vide order dated 2 nd May, 2014
directed the counsel for the respondents to take clear instructions in this
regard from the respondents in the light of the orders dated 11 th May,
2011, 16th October, 2012, 15th January, 2013 and 18th March, 2013 passed
by the Court. On 26th May, 2014 further time was granted to the
respondents to explain the reasons for the undue delay caused in holding
a fresh DPC by the respondents and to show that no mala fides are
attributable for the said delay. The respondents however did not come
forward to explain the reasons for the same due to which the Court was
constrained to impose a cost of Rs. 50,000/- on the respondents and it is
only after this, that the respondents came forward to file the additional
affidavit of Mr. Kuldeep Saini, Deputy Inspector General Personnel,
BSF.
20. After protracted legal battle, filing of several representations,
passing of various orders by this Court, the uphill task of making the
bureaucracy move in the right direction to redress the grievance of the
petitioner to seek promotion to the higher rank of Senior Captain/ I.G.
could be finally achieved by the order dated 19 th February 2014, passed
by the respondents. The petitioner has already assumed the charge on the
said post on the afternoon of 19th February 214 and to this extent, the
petitioner can heave a sigh of relief that his fight and struggle ultimately
brought fruitful results. This is an irony in our country that even for
legitimate claims whether in service or in other fields, one has to struggle
a lot and pass through all kinds of harassment and trauma and the struggle
is exasperating more for the persons who are honest to the core and do
not indulge in any kind of flattery or sycophancy.
21. The petitioner filed the instant writ petition in July 2010, to seek a
direction against the respondents for the consideration of his case for
promotion to the rank of Senior Captain with effect from 1.1.2009. The
petitioner who was fully eligible to be considered for promotion to the
post of Senior Captain except the fact that he had no requisite flying
experience of minimum 2000 hours on Multi Engine Aircraft. As per the
petitioner, he has fulfilled this requirement too, because he had completed
4100 hours of BSF type of Multi Engine Aircraft as a co-pilot and as per
the norms, 50% of hours as co-pilot are treated as PIC hours as per the
DGCA Guidelines. It is also the case of the petitioner that the respondent
No.5 i.e., BSF has sought a clarification from the Director General, Civil
Aviation regarding the flying hours of the petitioner and in response to
that the Director General, Civil Aviation vide letter dated 31 st December
2008 addressed to the Directorate General, BSF, took a clear stand that
50% of the flying done by the petitioner as a co-pilot under supervision,
could be counted as PIC experience and therefore, in their opinion, the
petitioner was eligible in all respects to meet the Recruitment Rules
criteria for his promotion to the rank of Senior Pilot.
22. As per the Recruitment Rules, the vacancy for the post of Senior
Pilot was to be filled by promotion from the feeder cadre, failing which
by deputation/absorption/short term contract/re-employment. The post of
Senior Captain fell vacant on the retirement of AVM R. Khurana, IG
(Air). For the said post, the respondents proceeded to appoint a person on
deputation instead of appointing the petitioner who was not only the
senior most Captain but also one of the most decorated officers in the
BSF (Air Wing). The ground for denying promotion to the petitioner was
that he did not possess the requisite experience of minimum 2000 hours
as Pilot-in-Command on Multi Engine Aircraft as on 1st January 2010.
This denial of the petitioner's right, for his promotion to the next higher
rank of Senior Captain started his course of legal challenge and struggle.
23. As we have already stated above that so far as the claim of the
petitioner for his promotion is concerned, the same already stands granted
by the respondents and now the Court has to primarily deal with the
following two issues:-
i) Whether the petitioner is entitled to retrospective promotion
with effect from 1st December 2011;
ii) Whether there is any delay on part of the respondents in
holding the DPC and if so, whether the delay was intentional
and malafide so as to deprive and deny the petitioner his
right for promotion to the said rank of Senior Captain/I.G.?
24. To examine the claim of the petitioner for his retrospective
promotion from 1st December 2011, let us first refer to the eligibility
conditions as laid down under the relevant Recruitments Rules for
promotion to the said rank of Senior Captain, which reads as under:-
"SCHEDULE
Name of Post Number of Classification Scale of pay Whether
post selection-cum-
seniority or
selection by
merit
1. Senior *2 (Two) General Central Rs.18,400- Selection by
Captain (1999) Service Group 500-22,400 merit
*subject to 'A' Gazetted,
variation Non-Ministerial
dependent on (Combatised)
workload
Whether Age limit for Educational and Whether age and educational
benefit for direct recruits other qualifications prescribed for
added years of qualifications direct recruits will apply in the
service required for case of promotees
admissible direct recruits
under rule 30
of the Central
Civil Service
Pension) Rules,
Yes Not applicable Not applicable Not applicable
Period of Method of In case of recruitment by promotion/ deputation/
probation, if any recruitment absorption, grades from which promotion/ deputation/
whether by direct absorption to be made.
recruitment or by
promotion or by
deputation/
absorption and
percentage of the
posts to be filled
by various
methods
Not applicable By promotion (I) Promotion:-
failing which by
deputation/ Captain and Senior Operation officer (Pilot)
absorption/short with four years service in the grade and
term contract/re- having following qualifications:-
employment.
i) Current Airlines transport licence/
Senior Commercial Pilot licence with
current flight Radio Telephone
Operator Licence with current
Instrument rating;
ii) 5000 hours flying experience.
iii) Minimum 2000 hrs as Pilot in
command on multi engine Air-craft
with 1000 hours PIC in BSF type of
Aircraft.
iv) DGCA Endorsement of Pilot in
command on BSF type of Aircraft.
(II) Deputation/Absorption
Short term contract:
Officers below fifty six years of age under
Central Government/ State Government /
Public undertaking: holding analogous posts
or with four years regular service in posts in
the pay scale of Rs.16,400 - 20,000 with
experience as under:-
a) 5000 hrs flying experience as pilot
including minimum 2000 hrs Pilot-in-
Command on multi engine with 1000 hrs
PIC on BSF type of Air Craft.
b) Holding licence as in (I)(i) above.
25. It is not in dispute between the parties that the petitioner duly
fulfilled the eligibility criteria for promotion to the rank of senior
captain/I.G. as on 1st December 2011 except that he was short of 23.34
hours PIC flying experience on Multi Engine Aircraft. As per the
petitioner, this requirement too has been fulfilled and for that he draws
support from the letter dated 31.12.2008 sent by the Director General of
Civil Aviation, wherein they had taken a view that 50% of flying done as
co-pilot can be counted as PIC experience and in the case of petitioner, he
had done 4100 hours as co-pilot. Therefore, he fulfilled the criteria of the
requisite flying experience as PIC on Multi Engine Aircraft. The
respondent nos. 1 and 2 did not subscribe to the said view taken by the
Director General, Civil Aviation. So far as the vacancy was concerned,
the same existed and as per the Recruitment Rules, the post of Senior
Captain was to be filled by promotion from the feeder cadre and failing
which, by deputation, absorption, etc. The petitioner is an officer of
feeder cadre but since the petitioner was considered ineligible because of
the deficiency in flying experience on Multi Engine Aircraft, the decision
was taken by the Ministry of Home Affairs to offer the post to a
deputationist and accordingly, AVM A.P. Garud of IAF was appointed as
Senior Captain on deputation with effect from 28th May 2010.
Respondents have also referred to a MoU signed by the Ministry of Home
Affairs and Ministry of Defence, wherein the decision was taken to
transfer one post of Senior Captain from fixed wing to rotary wing in
BSF (Air Wing) in order to meet functional requirements of maintaining
a large fleet of helicopters. It is also the case of the respondents that
although the petitioner did not meet the eligibility criteria for his
promotion to the rank of Senior Captain as on 1st January 2011 but
nevertheless a proposal was sent to the Ministry of Home Affairs for the
upgradation of two posts of Captain (Pilots) as Senior Captain/I.G. It was
also proposed that till the materialisation of such a proposal for the
upgradation of two posts, the senior most Captains (Pilots/DIGs) may be
conferred with the Local Rank of Senior Captain/I.G. It is also the case
of the respondents that while this proposal was under examination with
the Ministry of Home Affairs, the Ministry of Home Affairs under the
provision of BSF Rule 14-A(3)(ii) had conveyed the approval for
granting Local Rank of Senior Captain/Inspector General to the petitioner
and one Shri Dilbag Singh vide their UO dated 3rd August 2011. It is also
the case of the respondents that so far as the proposal for upgradation of
these posts of Senior Captain was concerned; the same was not agreed to
by the Ministry of Home Affairs/DoPT. It is also the case of the
respondents that AVM A.P. Garud was pre-maturely repatriated from
BSF w.e.f 30th November 2011 and consequently a vacancy of Senior
Captain had accrued with effect from 1st December 2011. It is also the
case of the respondents that the Recruitment Rules were revised and
notified on 11th November 2011 wherein the provision was made for
filling up the two posts of Senior Captain in the ratio of 50% each, i.e.
50% by promotion and 50% by deputation. The petitioner apprehended
that with a view to frustrate his right, there would be a move to amend the
Recruitment Rules and again some person will be brought on deputation
to the said post of Senior Captain. CM No. 3390/2011 was moved by the
petitioner in this regard and while disposing off the application, the Court
directed that any appointment to the post of Senior Captain by way of
deputation would be subject to any orders, which may be passed in this
writ petition.
26. In another application moved by the petitioner vide C.M. Appl. No.
6705/2011, the Court vide order dated 11.05.2011 made the position
explicitly clear by recording the submission of the counsel for the
respondents that as and when the post of Senior Captain is filled up, the
same would be with reference to the existing Recruitment Rules and that
before resorting to deputation, it would be seen whether any departmental
candidate was available and whether he fulfilled the requirements of the
Recruitment Rules, to be considered for promotion.
27. The said order dated 11th May 2011 unequivocally spells out that
the case of the petitioner was to be considered with reference to the
existing Recruitment Rules. Secondly, before the respondents proceed to
fill the vacancy on deputation, they would first see whether a
departmental candidate from the feeder cadre is available or not and
thirdly whether such candidate fulfils the requirement of recruitment
Rules applicable to the said promotional post of Senior Captain. Series of
other directions were given by this Court and the important ones have
already been reproduced above.
28. As can be seen from the various orders reproduced above, the
emphasis of the Court was to ensure that the case of the petitioner for
promotion to the next higher rank of Senior Captain is considered by the
DPC without any loss of time and to grant him promotion, if he fulfils the
eligibility criteria. In the order dated 18th May 2013, passed by this Court,
it was duly clarified that in case the petitioner is ultimately appointed to
the post of Senior Captain then he shall be entitled to all consequential
orders of seniority, etc., as may be due to him in such position
irrespective of the date on which the person is appointed on deputation.
29. As a result of various directions given by this Court, a DPC was
held by Ministry of Home Affairs on 5th sep 2013 to fill up the two
vacancies of incumbent posts of Senior Captain which had accrued due to
pre-mature repatriation of AVM A.P. Garud i.e. with effect from 30th
November 2011 and voluntary retirement of Shri J.S. Thind, Senior
Captain with effect from 27th November 2012. Pursuant to the
recommendations made by the DPC, the Appointments Committee of the
Cabinet (ACC) vide letter dated 14th February 2014 had approved the
case of the petitioner for promotion to the post/rank of Senior Captain in
BSF for the vacancy for the year 2011-2012 and that of the other officer
for the panel year 2012-2013. This could be done by the respondents in
the case of the petitioner after necessary relaxation in deficiency of
required flying hours PIC experience on Multi Engine Aircraft was
granted by the Ministry of Home Affairs on 29th July 2013. The crucial
date to test the eligibility of the petitioner against the vacancy for the year
2011-2012 was to be assessed as on 1st November 2011 and as on this
date, he was having deficiency of 23.34 hours PIC experience on Multi
Engine Aircraft, although this shortfall was made up by the petitioner as
on 14th January 2011.
30. As per the respondents, the proposal was submitted to the Ministry
of Home Affairs by the respondent - BSF to convey their decision by
accepting one of the two suggestions given by them so as to decide the
long pending Court case. The two suggestions which were given by
respondent No. 2 to Ministry of Home Affairs are reproduced hereunder:-
"(i) Convey approval for counting of 50% of the
flying done by Shri Bindu Sethi, Captain (Pilot) as co-
pilot under supervision as PIC experience in
accordance to the DGCA's letter dated 31.12.2008
and as requested vide this Dte UO dated 20th Aug,
2009.
OR
(ii) Since the officer has already completed the
requisite hours of PIC experience on multi engine
aircraft as on 14.01.2011, he may be granted
necessary relaxation to become eligible for
consideration in promotion during the vacancy year
2011-12 as the officer is having instructor/examiner
rating, which is itself DGCA's ultimate qualification
for a pilot. Moreover, he has been conferred with
Local rank of Sr. Captain/IG w.e.f. 5.8.2011 and never
granted any relaxation in eligibility criteria. Whereas,
the officer junior to him was granted relaxation in
eligibility criteria twice i.e. during initial appointment
and at the time of his promotion from Co-pilot to the
rank of Captain (Pilot) as per details already given in
preceding para."
31. As already stated above, the necessary relaxation to meet the
deficiency in flying hours was accorded by the MHA and grant of such
relaxation by the MHA was not for the first time as an officer junior to
the petitioner was granted relaxation in eligibility criteria twice i.e.,
during his initial appointment and at the time of his promotion from co-
pilot to the rank of Captain Pilot as aforementioned.
32. It is quite intriguing and distressing to note that this process of
granting relaxation, which is permissible under the MHA/DoPT Rules
could be resorted to by the respondents even earlier and had the
relaxation been granted to the petitioner earlier, the petitioner could have
been promoted, if not in the year 2011-12 but at least immediately after
the vacancy had arisen on the repatriation of AVM A.P. Garud on 30th
November 2011. It is more shocking that all this happened despite
various directions were given by this Court in the present writ petition
filed by the petitioner and also after filing of a contempt case by the
petitioner.
33. The right of an eligible employee to be considered for promotion
has been held to be a fundamental right granted under Article 16 of the
Constitution of India and the guarantee for a fair consideration in matters
of promotion under Article 16 virtually flows from guarantee of equality
as enshrined under Article 14 of the Constitution of India. (Held in Union
of India & Another v. Hemraj Singh Chauhan and others, (2010) 4
SCC 290).
34. On the issue as to when a person be granted promotion with
retrospective date, the Division Bench of this Court in Sunil Kumar
Mehra v. MCD and Anr, 209 (2014) DLT 595 after placing reliance on
various decisions of the Supreme Court summarised the legal position in
the following para:-
"21. The Bench had held that the cornucopia of case
law noted above brings out the position:-
(i) Service Jurisprudence does not recognize
retrospective promotion i.e. a promotion from a
back date.
(ii) If there exists a rule authorizing the Executive
to accord promotion from a retrospective date,
a decision to grant promotion from a
retrospective date would be valid because of a
power existing to do so.
(iii) Since mala fides taints every act, requiring a
person wronged to be placed in the position but
for the mala fide or tainted exercise of power,
promotion from a retrospective date can be
granted if delay in holding DPC is attributed to
a mala fide act i.e. deliberately delaying
holding DPC with the intention to deprive
eligible candidates the right to be promoted.
(iv) If due to administrative reasons DPC cannot be
held in a year and there is no taint of malice, no
retrospective promotion can be made."
35. Promotion is the only incentive in a service career. In the absence
of any promotion to a higher rank, not only would the growth and
development of the individual officer stop but the department or the
institution too gets affected equally. Stagnation of an employee, without
there being any chance of promotion to a higher rank, could well deter the
employee from taking any initiative to achieve higher targets, goals and
objectives for the ultimate development and growth of the department and
office, which the officer serves.
36. Promotion in any service career is a very important event, which
every employee aspires for. Any unjust and arbitrary denial of this right
to an employee would be a gross violation of his fundamental right of
equality before law and equal protection of the laws as enunciated under
Article 14 of the Constitution of India. Once, this right of consideration
for promotion has been held to be fundamental, then such right must
accrue to the petitioner immediately after any post falls vacant or is
created or at least within a reasonable period of time. Any unreasonable
or arbitrary delay to such right of an employee would amount to unjust
denial of his legitimate right for consideration of his case for promotion
and the same would also be in violation of his fundamental rights. It is
often seen that in many cases, employees are denied their promotion
during their service period and it is only through Court's intervention that
a person gets his promotion, often post retirement, just for deriving
financial benefits. In the Armed and Para-Military Forces, denial of such
right of timely promotion is more agonising, as any unreasonable delay
on part of the authorities not only denies a member of the Forces, a higher
rank but also the privilege of tenure of service commensurate with the
higher rank.
37. In the facts of the present case, the petitioner had filed this writ
petition on 20.07.2010 when he was denied promotion against a vacancy
arising due to the retirement of AVM R. Khurana, IG (Air) and instead of
considering the case of the petitioner, the vacancy was filled by bringing
a person on deputation that too from a junior post. It is an admitted case
of the parties that the petitioner duly fulfilled the eligibility criteria for
appointment to the said post of Senior Captain as on the relevant date,
except that there was deficiency in his flying experience of minimum
2000 hours PIC on Multi Engine Aircraft and on this aspect the Director
General of Civil Aviation vide their letter dated 31st October 2008 had
certified that 50% of the flying done as co-pilot under the supervision can
be counted as PIC experience and therefore in their opinion, petitioner
who had completed 4100 hours as co-pilot would be qualified for
promotion to the rank of Senior Captain but the said Expert opinion given
by the concerned department was not taken into consideration by the
Ministry of Home Affairs. Granting of relaxation of hours was already
within the competence of the Ministry of Home Affairs as the relevant
rules in this regard confers discretion to the Central Government to relax
any of the provisions of the rules with respect to any clause or category of
persons where the Government is of the opinion that it is necessary or
expedient to do so and then it may by order do so by recording the
reasons in writing. This relaxation ultimately came in favour of the
petitioner by an order dated 29th July 2013 passed by the Ministry of
Home Affairs and it is only after the grant of this relaxation that the
petitioner ultimately received the appointment letter dated 19.02.14. The
similar exercise could have been resorted to by the respondents much
earlier and having not done so, we have no hesitation in saying that the
delay on part of these respondents is clearly attributable to legal malice or
malice in law and the delay also appears to be malafide and intentional
and therefore, we are of the view that the petitioner is entitled for
retrospective promotion with effect from 1st December 2011 with all
consequential benefits arising therefrom.
38. With regard to the second issue, the respondents have tried to give
justification for the delay on their part for not holding the DPC in the year
2011-2012 in para 19 of their additional affidavit and the reasons given
by them in this para are reproduced as under:-
"19. The DPC for promotion from Captain/Pilot
(DIG) to the rank of Sr. Captain (IG) could not be
held for the vacancy year 2011-12 due to following
reasons:-
(i) Initially no vacancy of Sr. Captain/IG
was anticipated during the vacancy year 2011-
12 as out of two sanctioned posts, one post was
held by AVM AP Garud, VM on deputation
basis and another post was held by Shri J.S.
Thind, cadre officer.
(ii) Due to premature repatriation of AVM
A.P. Garud, VM to IAF w.e.f. 30.11.2011, one
post of the Sr. Captain/IG fell vacant w.e.f.
01.12.2011. However, before accrual of
vacancy of the incumbent post, the Revised
Recruitment Rules, 2011 came into existence
w.e.f. 11.11.2011 and as per the Revised
Recruitment Rules 2011, the vacant post was to
be filled by deputation against 50% quota
authorized for deputationists.
(iii) Shri Bindu Sethi, Captain/Pilot (DIG)
now Sr. Captain/IG who was the senior most
officer in the feeder grade was not eligible for
promotion during the vacancy year 2011-12 due
to 23.30 hrs. less PIC flying experience. In
order to consider his promotion against the said
vacant post for the vacancy year 2011-12 and
not to fill up the same on deputation from the
IAF, as per the Revised Recruitment Rules
2011, Shri Bindu Sethi filed a writ petition No.
W.P.(C) No.4840/2010 before the Hon'ble High
Court of Delhi which remained subjudice till
grant of necessary relaxation in deficiency of
23.30 hrs. PIC flying experience by the
MHA/DoP&T in July 2013 based on the interim
direction passed by the Hon'ble High Court of
Delhi.
(iv) From the above facts it has been found
that, there was no intention to delay the DPC as
the case remained subjudice before Hon'ble
High Court and decision of the MHA/DoP&T
for granting of necessary relaxation in
deficiency of 23.30 hrs. PIC flying experience
as prescribed in the Pre Revised RR 1999."
39. In para 13 of the same additional affidavit, the respondents have
taken a stand that the petitioner was conferred with the Local Rank of
Senior Captain/I.G. with effect from 5th August 2011 and he was never
granted any relaxation in eligibility criteria while the officer junior to him
was granted relaxation in eligibility criteria twice i.e., during initial
appointment and at the time of his promotion from co-pilot to the rank of
Captain (Pilot). We fail to comprehend that when relaxation could be
granted to an officer junior to the petitioner, then why a similar relaxation
wasn't granted to the petitioner who was just deficient of 23.34 hours PIC
flying experience on Multi Engine Aircraft.
40. We are also at a loss to understand that when Director General,
Civil Aviation by their letter dated 31.12.2008 gave the opinion
certificate, stating that since the petitioner had flying experience of 4100
hours as co-pilot and 50% of the same could be counted as PIC
experience, then why the certification from the expert body was not given
any weightage and for what reasons. We also cannot see any justification
for the respondents not giving due weightage to the views expressed by
the Law Ministry in the Note dated 16th December 2011 and 3rd
December 2012 wherein, the Law Ministry had opined on 1st December
2011, that if the petitioner fulfilled the eligibility criteria under the
recruitment rules which existed as on 11th May 2011, then he shall have
to be considered in terms of the commitment made by the Government
Counsel in terms of the order dated 11.5.2011. The opinion further
cautioned that failure on part of the respondents to comply with the order
dated 11th May 2011 shall amount to contempt of Court against the
officers of the Ministry of Home Affairs and BSF.
41. In the light of the foregoing discussion, it is quite apparent that the
delay on part of the respondents in holding the DPC to consider the case
of the petitioner was deliberate and malafide as he was denied the right to
be considered for promotion to the next higher rank of Senior Captain
within a reasonable period of time after the vacancy had arisen on the
repatriation of AVM A.P. Garud on 30.11.2011. Such action cannot be
sustained in law. We find merit in the petition filed by the petitioner and
accordingly the petitioner is held entitled to retrospective promotion with
effect from 1st December 2011.
42. So far as the CCP is concerned, the Court has not yet issued any
notice. Having taken into consideration the stand taken by the
respondents in their additional affidavit and various directions given by
this Court from time to time and more particularly, the statement made by
the Government counsel on 11th May 2011, we are of the prima facie
view that the contempt proceedings should be initiated against the
respondents.
43. In view of the aforesaid discussions, the present writ petition filed
by the petitioner is allowed and is disposed off accordingly. However,
notice of the contempt petition is ordered to be issued to the respondents
to show cause as to why the contempt proceedings be not initiated against
the respondents, returnable on 18th November 2014.
44. The registry is directed to place a copy of this order in the file of
CCP and to place the contempt matter before the roster bench.
KAILASH GAMBHIR, J.
NAJMI WAZIRI, J.
SEPTEMBER 26, 2014
v/pkb
