Delhi High Court
Shoorvir Singh Negi vs Union Of India & Ors on 17 September, 2015
$~$~7 to 9, 12 to 13 and 21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on : 17.09.2015
+ W.P.(C) 5830/2015
SHOORVIR SINGH NEGI ..... Petitioner
Through: Mr Padma Kumar S., Adv.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Ms Saroj Bidawat and Ms Manisha,
Advs.
And
+ W.P.(C) 5839/2015
RAJIV RANJAN ..... Petitioner
Through: Mr Padma Kumar S., Adv.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Ms Saroj Bidawat and Ms Manisha,
Advs.
And
+ W.P.(C) 5853/2015
SATENDRA MOHAN ..... Petitioner
Through: Mr Padma Kumar S., Adv.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Ms Saroj Bidawat and Ms Manisha,
Advs.
W.P.(C) No.5830, 5839, 5853, 2664, 2667 of 2015 and 163 of 2014 Page 1
And
+ W.P.(C) 2664/2015
RAJESH KUMAR SINHA ..... Petitioner
Through: Mr Padma Kumar S., Adv.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr R.Mishra and Mr M.K. Tiwari, Advs.
And
+ W.P.(C) 2667/2015
PRAMOD KUMAR NAIK ..... Petitioner
Through: Mr Padma Kumar S., Adv.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr R.Mishra and Mr M.K. Tiwari, Advs.
along with Mr Arvind Sharma, DC, BSF
And
+ W.P.(C) 163/2014
DEVENDER KUMAR VERMA ..... Petitioner
Through: Mr Prashant Sivarajan, Adv.
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr Vivek Goyal, CGSC for respondents
along with Mr Arvind Sharma, DC, BSF
W.P.(C) No.5830, 5839, 5853, 2664, 2667 of 2015 and 163 of 2014 Page 2
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
%
1. In all these petitions, the common grievance urged is that the
petitioners are entitled to reckon their seniority and pensionable service with
effect from the date they were declared as successful candidates in the
original selection process in which they participated The facts pertaining to
W.P.(C) Nos.5830/2015, 5839/2015, 5853/2015, 2664/2015 and 2667/2015
are common inasmuch as the petitioners had participated in the recruitment
process and were declared successful for the examination held in the year
2000.
2. It is contended that the position taken by the Border Security Force
(BSF)--the main respondent--in granting seniority with effect from the date
of continuous service based upon its interpretation of Rule 8 of the Border
Security Force Rules, 2002 is untenable.
3. The brief facts necessary for deciding the cases are that all petitioners
were declared successful in the recruitment process in which they originally
participated--mostly in the year 2000. Apparently, the examination was
held in 1999 and the results were declared thereafter the next year. The
petitioners were initially declared unfit for one reason or the other. When
they were declared fit, the petitioners joined the concerned batch/batches
according to the availability of vacancies in the batch of training. The facts
relating to W.P.(C) No.5830/2015 are that the writ petitioner was found
unfit on account of knock knee on 16.03.2002. After his Review Medical
W.P.(C) No.5830, 5839, 5853, 2664, 2667 of 2015 and 163 of 2014 Page 3
Board on 17.01.2003, he was declared fit. He thereafter joined in the year
2004. In W.P.(C) No.5839/2015, the petitioner was declared medically unfit
on 11.02.2002 on account of hydrocele. He apparently underwent surgery
and was subsequently declared fit. However, he could not immediately be
appointed because there was a discrepancy in the name as between the
certificate produced by him and name disclosed in the application form.
Ultimately, he could join only in January, 2005. In W.P.(C) No. 5853/2015,
the petitioner was declared unfit on account of hyper tension and obesity. On
examination by the Review Board on 18.06.2003 subsequently, he was
declared fit; he too joined the service later sometime in 2004. In W.P.(C)
No.2664/2015, the petitioner was declared unfit on account of hydrocele. On
account of the subsequent corrective surgery, he was examined by the
Review Medical Board which declared him fit on 16.01.2003. He joined the
BSF subsequently in the later batch. In W.P.(C) No. 2667/2015, the
petitioner was declared medically unfit on account of ear problem Chronic
Suppurative Otitis Media (COSM). The subsequent Review Medical Board
in February, 2003 declared him fit. He was subsequently appointed in 2004.
The facts of W.P.(C) No.164/2015 are somewhat different. There appears to
be an error in the medical examination as it was declared that he did not
fulfil the requite height standard and was short by 0.5 centimetre. The result
of the Medical Board was declared on 25.01.2002. The petitioner sought
review medical examination which was done on 17.04.2002. He was
declared fit on 11.11.2002 and he subsequently joined the BSF.
4. All the writ petitioners contend that on account of the respondent's
fault, they were kept away from employment and consequently made to
report in subsequent batches--not along with other recruits who were
W.P.(C) No.5830, 5839, 5853, 2664, 2667 of 2015 and 163 of 2014 Page 4
appointed in earlier batches. In other words, the petitioners joined
subsequent batches of training unlike those who had participated in the year
2000 selection/recruitment process. This was not on account of their fault,
but the BSF's own processes. It was submitted that consequently the
interpretation placed upon Rule 8(2) and 8(3) to deny them the seniority at
par with their batches originally joined, is arbitrary. Learned counsel for the
petitioners relied upon the decision of this Court in Naveen Kumar Jha vs.
Union of India, W.P.(C) No.3827/2012 (decided on 02.11.2012). The Court
on that occasion had relied upon a decision of this Court's earlier ruling in
Avinash Singh vs. Union of India & Ors. W.P. (C) No.5400/2010, (decided
on 26.05.2011). The Court in Avinash Singh (supra) highlighted as
follows:-
"17. It is settled law that if appointment is by selection,
seniority of the entire batch has to be reckoned with respect to
the merit position obtained in the selection and not on the
fortuitous circumstance on the date on which a person is made
to join.
18. We highlight in the instant case the fortuitous circumstance
of the petitioners being made to join as Assistant Commandant
on 08.08.2005 is not the result of anything created by the
petitioners but is a result of a supine indifference and
negligence on the part of the ITBP officials.
19. Thus, petitioners would be entitled to their seniority as
Assistant Commandant with respect to their batch-mates in the
context of the merit position in the select panel. We make it
clear, the seniority as Assistant Commandant of the entire batch
would be a reflection of the merit position in the select list and
not the date of joining."
W.P.(C) No.5830, 5839, 5853, 2664, 2667 of 2015 and 163 of 2014 Page 5
5. In Naveen Kumar Jha (supra), after noticing the above observations,
the Division Bench directed as follows:-
"11. On facts it needs to be noted that the seven petitioners of
WP(C) No.5400/2010 had lost out on their seniority with
reference to their merit position in the Select List due to delay
in conducting their Review Medical Evaluation and in the
interregnum their batchmates had joined ITBP.
12. On parity of reasoning and application of law the petitioner
is held entitled to his seniority being refixed as a Sub-Inspector
in CRPF with reference to his merit position at the SSC
Combined Graduate Level 2000 Examination i.e. those who
joined CRPF pursuant to the said examination in March 2003.
The petitioner has already earned promotion to the post of
Inspector and accordingly we direct that he would be entitled to
seniority refixed in said rank with reference to his revised
seniority position in the rank of Sub-Inspector, and this would
mean that the petitioner would be considered for promotion to
the post of Assistant Commandant as per the revised seniority
list.
13. The respondents are therefore directed to revise the
seniority position of the petitioner in the two ranks within a
period of four weeks from today and thereafter consider the
petitioner along with other eligible persons for promotion to the
post of Assistant Commandant."
6. It is also argued that the petitioners cannot be made to suffer with
respect to pensionary benefits on account of the fact that the delay was
caused by the respondents in issuing the appointment letters. Having been
declared fit by the Review Medical Board in all cases in 2002-2003, the
fortuitous circumstance that the appointment letters led to their joining after
the new pension scheme came into force could not deprive them of the more
W.P.(C) No.5830, 5839, 5853, 2664, 2667 of 2015 and 163 of 2014 Page 6
beneficial provisions of the older pension scheme which ended on
31.12.2003. In support of this argument, learned counsel relied upon Naveen
Kumar Jha (supra).
7. Learned counsel for the respondents relied upon an earlier Division
Bench ruling of this Court in Roop Ram Kundu vs. UOI & Ors. W.P.(C)
No.3342/1999 (decided on 16.08.2012). In that case, the petitioner had been
declared temporarily unfit and was subject to another medical examination
conducted later. He had overcome the medical problem from which he was
temporarily suffering and was subsequently declared fit barely two months
after the original declaration of unfitness. The Court rejected the claim for
seniority based upon the original results and stated as follows:-
"6. Thus any challenge to petitioner's temporary medical
unfitness as per the review medical board became a matter
which no longer is capable of being adjudicated upon by any
Court.
7. However, taking into account that the petitioner was being
declared temporarily medically unfit, the authorities subjected
the petitioner to another medical examination which was
conducted in July 19, 1996. The petitioner had overcome the
medical problem from which he was temporarily suffering. He
was opined to be medically fit and accordingly an appointment
letter dated September 17, 1996 was issued.
8. Now, the petitioner prays that he be accorded seniority as per
his merit position obtained at the examination with all
consequential benefits.
9. Suffice would it be to state that as per Rule 19 of the BSF
(Subordinate Officers and Under Officers) Promotion and
Seniority Rules 1975, seniority in any rank has to be
determined on the basis of continuous regular appointment in
that rank.
W.P.(C) No.5830, 5839, 5853, 2664, 2667 of 2015 and 163 of 2014 Page 7
10. Being repeatedly declared temporarily medical unfit, till he
was declared fit in September, 1996 resulting in appointment
letter being issued on September 17, 1996, would require
petitioner to be placed with respect to seniority, not with
reference to the merit position which he had obtained when the
examination was conducted in the year 1992 more so for the
reason W.P.(C) No.149/1996 filed by the petitioner stands
dismissed in default and revival whereof has not been prayed
for."
8. The Border Security Force General Duty Cadre (Non-Gazetted)
Recruitment Rules, 2002, to the extent they are relevant, are extracted
below:-
"8. Seniority--(1) Persons holding a higher rank whether in
an officiating or substantive capacity shall be senior to the
persons holding a lower rank.
(2) Seniority in any rank shall be determined on the basis of
continuous regular appointment in that rank.
Provided that the seniority of the personnel holding the
same rank and promoted on the same day shall be determined in
accordance with the order of selection for appointment to that
post.
(3) Subject to the provisions of sub-rule (2) seniority of
direct entry Sub-Inspector shall be determined in accordance
with merit of their selection through Staff Selection Board.
Provided that the persons selected on an earlier batch will
be senior to those selected in subsequent batches.
Provided further that the seniority of Constables/Head
Constables selected under Limited Departmental Competitive
Examination Scheme as Sub-Inspector against reserved quota
shall be determined in accordance with their merit of selection
W.P.(C) No.5830, 5839, 5853, 2664, 2667 of 2015 and 163 of 2014 Page 8
and shall be placed below the Sub-Inspector (Direct Entry)
batch with whom they join training."
9. The petitioners highlight Rule 8(3) to say that seniority of direct entry
Sub-Inspector would be determined in accordance with the merit of their
selection through Staff Selection Board. Although this argument is
attractive, the fact remains Rule 8(3) expressly states that it is "subject to
provisions of sub-rule (2)". This in turn means that the primary rule is
"continuous regular appointment in that rank". This Court is of the opinion
that the question of an individual being "appointed to the rank" would
imply his joining the cadre. In all these cases, the petitioners do not dispute
that they had joined the cadre or the concerned post only after they were
declared medically fit by the Review Medical Board--in 2003. Though they
were initially declared successful in the recruitment process, their medical
conditions constituted a barrier for their entry into the service. That barrier
was lifted on account of their overcoming unfitness and the subsequent
determination of the Review Medical Board. Obviously, therefore, they
joined and started continuously working in the post of Sub-Inspector from
the later dates. This interpretation is supported by the judgment in Roop
Ram Kundu (supra)--a proceeding initiated as far back as in 1999 when the
petitioner claimed seniority of merely three months. He was initially
declared temporary unfit in July, 1999, but was subsequently declared
successful in September, 1999. In the interregnum in Roop Ram Kundu
(supra), the original batch to which he belonged had already joined the
training. He was, therefore, directed to join the subsequent batch. This Court
is of the opinion that the BSF's position cannot be faulted given the fact that
he entered the cadre or joined the post subsequently.
W.P.(C) No.5830, 5839, 5853, 2664, 2667 of 2015 and 163 of 2014 Page 9
10. At some stage, counsel in one of the proceedings W.P.(C)
No.163/2014, relied upon the order in Ram Pal Deshwal vs. UOI & Ors.
W.P.(C) No.393/2008 (decided on 07.03.2011) to state that Rule 8(2) is
really meant for regulating seniority of promotees. In Ram Pal Deshwal
(supra), the Court observed as follows:-
14. Suffice would it be to state that sub-rule (2) would apply in
case of promotion and where the promotion is ad-hoc, temporary
or stop-gap i.e. fortuitous, seniority would rank on the basis of
continuous regular employment. The proviso to sub-rule (2)
makes clear the ambit of the sub-rule. The proviso deals with
promotions and carves out an exception to what is contemplated
by sub-rule (2). The proviso, therefore, highlights the ambit of
sub-rule (2).
11. This Court is of the opinion that Rule 8(1) firstly states a general
principle, i.e., those holding higher rank whether in an officiating or
substantive capacity would be senior to persons those holding a lower rank.
Rule 8(2) then prescribes a principle of universal application. i.e., the
seniority in any rank "shall" be determined on the basis of continuous
regular appointment in that rank. Thirdly, the proviso of Rule 8(2) states that
the seniority of the two individuals holding the same rank "and promoted on
the same day" shall be determined in accordance with the order of selection
for appointment to that post. In other words, the provision carves out an
exception from the general rule prescribed in Rule 8(2) of seniority on the
basis of the regular appointment to the rank. The exception is that in case of
promotees, the seniority is to be determined "in accordance with the order
of selection for appointment to that post". However, the proviso is silent as
to the matters left out which are part of the main provision, i.e., Rule 8(2).
The corollary irresistibly, therefore is that Rule 8(2) applies for other
W.P.(C) No.5830, 5839, 5853, 2664, 2667 of 2015 and 163 of 2014 Page 10
categories, i.e., direct recruits. If one were to construe Rule 8(2) in this
manner, the mandate of Rule 8(3), i.e., that seniority of direct entry Sub-
Inspector would be determined in accordance with the merit of their
selection, is a rule to guide inter se merit of those who are appointed in the
same selection process. However, it would not in any way disturb or detract
from the application of Rule 8(2), i.e., the seniority in the rank has to be
determined on the basis of continuous regular appointment.
12. This Court does not read proviso to Rule 8(2) in the manner sought to
be urged or as appears to have been read in Ram Pal Deswal (supra). This is
for the simple reason that the provision carves out an exception only for
promotees and its intendment cannot be extended beyond what is prescribed.
(see S.Sundaram Pillai vs. V.R.Pattabiraman, 1985 SCR (2) 643 for the
effect of operation of proviso).
13. Respectfully, we differ from Naveen Kumar Jha (supra) and Avinash
Singh (supra) as we find that no discussion of a rule akin to Rule 8 has been
made in these judgments. In our opinion Rule 8 is determinative of the
question of how seniority must be calculated for the present petitioners. We
are also mindful that interfering in the manner sought will upset already
settled seniority lists and affect persons who are not parties before us. We
prefer instead the view taken in Roop Ram Kundu (supra), a decision that
was not brought to the notice of the court in either Naveen Kumar Jha
(supra) or Avinash Singh (supra).
14. In view of the above discussion, we are of the opinion that the
petitioners claim for seniority from the date their batch mates or original
batch mates who were otherwise appointed in the normal circumstances in
2000-2001 cannot succeed.
W.P.(C) No.5830, 5839, 5853, 2664, 2667 of 2015 and 163 of 2014 Page 11
15. As far as the claim for pensionary benefits based upon the old pension
scheme which ended on 31.12.2003 is concerned, we are of the opinion that
a somewhat different result would have to follow. Undoubtedly, all the
petitioners were declared medically fit by 2003. However, they could not be
issued with appointment letters and joined subsequently in 2004 or 2005. It
is here that the observations in Avinash Singh (supra) quoted with approval
in Naveen Kumar Jha (supra) become relevant. Although the petitioners
were declared fit earlier--at least much before the cessation of the old
pension rules, there was an administrative delay in the issuance of the
appointment letter asking them to join training. In these circumstances, in
the interests of justice, we hold that they should be entitled to the benefits of
the old pension scheme.
16. The writ petitions are allowed partly to the above extent, i.e., that the
petitioners are entitled to the benefits of the old pension scheme. No costs.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
(JUDGE)
SEPTEMBER 17, 2015
BG
W.P.(C) No.5830, 5839, 5853, 2664, 2667 of 2015 and 163 of 2014 Page 12
