Rajesh Kumar And Ors. vs Union Of India And Ors.
2015 Latest Caselaw 6490 Del

$~20
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                        Decided on : 01.09.2015
+      W.P.(C) 8195/2015
       RAJESH KUMAR AND ORS.                          .......Petitioners
                  Through: Ms. Rekha Palli, Sr. Advocate with Ms. Punam
                  Singh, Ms. Ankita Patnaik, Ms. Garima Sachdeva and
                  Ms. Shruti Munjal, Advocates.

                    versus

       UNION OF INDIA AND ORS.                   .....Respondents

Through: Sh. D.P. Bhardwaj, CGSC along with Sh.

Arvind Sharma, Deputy Commandant, BSF.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

%

1. The petitioners in this writ proceeding are working as Assistant Commandants [hereafter "AC"] in the Border Security Force [hereafter "BSF"]. They seek fixing of their inter se seniority with other ACs with effect from the date they were selected to that post.

2. The petitioners joined the BSF as Sub-Inspectors on various dates between 1998 and 2003. As per the recruitment rules, the higher cadre of AC can be filled to the extent of 50% by direct recruitment; to the extent of 33% by promotion from amongst eligible officers and upto 17% by way of Limited Departmental Competitive Examination [hereafter as "LDCE"]. The petitioners appeared in the LDCE process sometime in 2008 and were declared as selected by the BSF on 16.09.2009. They allege that the

W.P.(C) 8195/2015 Page 1 publication of their results in the LDCE is the determinative date for counting inter se seniority and that their appointment letters were issued by the BSF (asking them to report for training) after inordinate delay. The petitioners contend that the seniority of LDCE officers is to be guided by an Office Memorandum dated 24.06.1978 (hereafter "OM of 1978"). In this respect they rely upon the decision of a Bench of this Court in WP. (C) No. 1255/ 2011 [Rabindra Jha v. Union of India, decided on 22.07.2011 and reviewed on 13.01.2012] which had been filed by one Rabindra Jha who too, was appointed as AC after appearing in an LDCE. It is submitted that that officer had challenged the inter se seniority of his batch and this Court clearly observed that personnel recruited through LDCE are to be treated at par with those promoted under the 33% promotion quota. The petitioners complain that though several representations were made to the BSF, they went unheeded. Consequently they have approached this Court.

3. Ms. Rekha Palli, learned senior counsel for the petitioner, highlights that the OM of 1978 dictates that seniority of candidates - particularly those entering through the LDCE quota - is to be reckoned from the date of the announcement of results and that fixation of seniority in this case, is premised upon that the petitioners' entry into the service. Terming this move by the BSF as unlawful, it is submitted that no rule applicable permits fixation of inter se seniority of officers recruited and promoted through different channels on that basis. It is submitted that like directly recruited officers, those appointed through LDCE channel are to be treated as having entered the cadre from the date of announcement of the results or from the date of selection. The OM of 1978 states that seniority of LDCE promotees is to be taken into account from "date of announcement of results". Learned

W.P.(C) 8195/2015 Page 2 senior counsel further argued that the concerned rule, Rule 7 of the BSF rules (as it stood when the petitioners were promoted) was silent on this point; consequently, the petitioners were entitled to reckon their seniority from the date of announcement of results of the LDCE exam, i.e. 16.09.2009.

4. Learned counsel for the BSF, appearing on advance notice, submitted that there is no merit in the present petition and that the claims are unwarranted. It is argued that from inception- at least as far as the petitioners were concerned- in the concerned rules (framed in exercise of the power conferred upon the BSF under Section 141 (2) (b) and (c) of the Border Security Force Act, 1968) the rule governing inter se seniority was date of "continuous appointment in the rank". It is submitted that reading the principles enunciated in the OM of 1978 would be contrary to the concerned rule, i.e. Rule 7 (3) (iv) of the Border Security Force (General Duty Officers) Recruitment Rules, 2001. Learned counsel also referred to the decision of the Supreme Court in Rohitash Kumar v. Om Prakash Sharma AIR 2003 SC 30 and stated that the Court had to deal with identically worded provisions of the BSF, in rules that existed from 1978, i.e. the Border Security Force (Seniority, Promotion and Superannuation of Officers) Rules, 1978 .

5. It is not in dispute that when the Petitioners joined the BSF as AC, the Border Security Force (General Duty Officers) Recruitment Rules, 2001 were in force. Those rules had been amended from time to time-2003, 2004, 2009, 2010 and 2012. However, the basic scheme pertaining to seniority, whereby superior ranking officers would be senior to junior officers (Rule 7 (1)); the general rule that seniority of an officer would be from the date of

W.P.(C) 8195/2015 Page 3 selection (Rule 7(2)); inter se seniority of officers in a grade being determined in accordance with rules applicable to particular channel of entry (direct recruit/promotee etc.) - i.e. Rule 7 (3) remains. After delineating rules applicable to promotees, direct recruits and temporary officers, Rule 7 (3)

(iv) prescribed that " 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." This Court notes that in Rohitash Kumar (supra) too, the rule was identical:

"(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."

6. In Rohitash Kumar (supra), the Supreme Court rejected the claim of direct recruits in that case, who stated that their seniority should be

W.P.(C) 8195/2015 Page 4 determined on the basis that they too entered the cadre from a date anterior to what they actually did, because their batch had been bifurcated for training purposes, to suit the administrative convenience of BSF. The Court had rejected the contentions of the direct recruits, and stated as follows:

"26. The learned Single Judge dealt with the statutory provisions contained in Rule 3 and held as under:

"A perusal of the above makes it apparent that in the case of the officers who have been promoted their seniority is to be determined on the basis of continuous appointment on a day in which they are selected for promoted to that rank. In case of direct entrants their inter-se seniority is to be determined on the basis of aggregate marks obtained by them. Inter-se seniority of the officers mentioned at serial No.(i) (ii) and (iii) is to be determined according to the date of their continuous appointment in the rank. Proviso to the rule is clear. It is specifically mentioned that in the case of direct entrants, the date of appointment shall be the date of commencement of their training course at the Border Security Force Academy." In light of the above, relief had been granted to respondent no.1. The Division Bench concurred with the said interpretation.

27. If we apply the settled legal propositions referred to hereinabove, no other interpretation is permissible. The language of the said rule is crystal clear. There is no ambiguity with respect to it. The validity of the rule is not under challenge. In such a fact-situation, it is not permissible for the court to interpret the rule otherwise. The said proviso will have application only in a case where officers who have been selected in pursuance of the same selection process are split into separate batches. Interpreting the rule otherwise, would amount to adding words to the proviso, which the law does not permit."

W.P.(C) 8195/2015 Page 5

7. In the present case too, a grievance - identical to the one articulated before the Supreme Court, in Rohitash Kumar (supra) - forms the basis of the Petitioners' argument. This Court is bound by authority of that precedent.

The judgement of Rabindra Jha (supra) cited at the bar does not notice the judgement of the Supreme Court in Rohitash Kumar (supra). Even otherwise, the clear rule (as envisaged in Rule 7) for determining inter seniority is the date of continuous appointment. In this case, the petitioners' appointment was in 2010; therefore, others appointed prior to them, in different channels of recruitment would take precedence over them, in accordance with the rules prescribed for the purpose. The OM of 1978 cannot stand in the way of a clear Rule to the contrary.

8. In view of the above reasons, the Court finds no merit in the writ petition. It is accordingly dismissed without any order as to costs.

S. RAVINDRA BHAT (JUDGE)

DEEPA SHARMA (JUDGE) SEPTEMBER 01, 2015

W.P.(C) 8195/2015 Page 6