Delhi High Court
Nc Sundar Singh vs Uoi And Ors. on 30 September, 2015
Author: S.Ravindra Bhat
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON: 10.09.2015
% PRONOUNCED ON: 30.09.2015
+ WP (C) 4727/2010
NC SUNDAR SINGH ..... Appellant
Through: Ms. Rekha Palli, Sr. Advocate
with Ms. Punam Singh, Ms. Shruti Munjal,
Ms. Ankita Patnaik and Mr. Nikhil Palli,
Advocates.
versus
UOI AND ORS. ..... Respondents
Through: Mr. Sanjay Kumar Saxena and Mr.
M.K. Tiwari, Advocates.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MS. JUSTICE DEEPA SHARMA
S.RAVINDRA BHAT, J.
1. In this writ petition, directions are sought against the Border
Security Force ("BSF") for the quashing of orders dated 27.04.2009
and 18.02.2010 by which the fourth respondent (hereafter referred to
as "Toswara") was permanently absorbed in the Water Wing (of BSF).
The petitioner complains that these orders are contrary to the BSF
Water Wing Group „A‟ (Technical Staff) Recruitment Rules, 2005,
(hereafter called "the Rules").
2. The brief facts are that the petitioner is currently functioning as
Assistant Commandant in the Water Wing of the BSF. He was
enrolled originally as Subedar (Workshop) on 16.12.1993. He holds a
degree in engineering; he was promoted as Assistant Commandant
(General Duty) on 22.07.2004. Toswara, on the other hand, was
directly recruited by the BSF as Assistant Commandant w.e.f.
02.07.1993. He started functioning in the Water Wing from
07.07.2003. Before 2005, the BSF did not have separate Recruitment
Rules for its Water Wing; its personnel were treated as part of the
General Duty Cadre but in specialized units. When the Rules came
into force, the provision was made by the BSF, to absorb officers
serving in the Water Wing Unit/Cadre. That Rule - i.e., Rule 6 reads
as follows: -
"6. Absorption in Water Wing Cadres. - Officers already
working in Water Wing shall exercise their irrevocable option
for absorption in Water Wing Cadre".
The permanent absorption of the petitioner in the BSF Water Wing as
Assistant Commandant pursuant to the option exercised under Rule 6
was sanctioned on 12.04.2007. Consequently, the orders were made
soon thereafter. The petitioner refers to the letter of 09.03.2009 where
the BSF clarified that future absorption in the Water Wing would be
from the date of issuances of the order of absorption in that Unit. It is
stated that accordingly when on 27.04.2009 Toswara was permanently
absorbed in the Water Wing, he was born in that cadre with effect
from that date. In these circumstances, the petitioner appears to have
represented to the BSF on 28.05.2009 complaining that absorption of
General Duty personnel in Water Wing was contrary to the Rules
because only those possessing technical qualifications would be
treated as part of the Water Wing Cadre. He further represented to the
respondents along the same lines and highlighted that 09.03.2009
letter issued earlier had specifically stated that future absorptions
would be made effective from that date. On 18.02.2010, the BSF
issued a letter, clarifying the inter se seniority as between the
petitioner and Toswara. The relevant extract of the said letter is as
follows: -
"As approved by the MHA, the inter-se seniority in the rank of
Assistant Commandant (Water Wing) in respect of Shri C S
Toswara (IRLA No.19360751) who absorbed in Water Wing
permanently with effect from 27 April 2009, is fixed with effect
from 02 July 1993.
Authority : MHA CR No.101741/2009/Pers-III dated 23 Dec
2009."
3. The petitioner complains that despite his representation against
this inter se seniority fixation, the respondents did not take any steps
to reverse their action. The petitioner, therefore, contends that the
absorption of Toswara sought to be made effective from a date prior to
the letter of absorption is unprincipled and contrary to the norms. Ms.
Rekha Palli, learned senior counsel, argues that under the Rules, the
post of Assistant Commandant (Water Wing) is to be filled either by
promotion or deputation. It is stated that as between the petitioner and
Toswara, only the former possesses the requisite qualification to hold
the post of Assistant Commandant (Water Wing). Consequently, the
mere fact that Toswara worked in the Water Wing since 2003 was
insufficient to entitle him to an earlier place in the seniority list given
that the petitioner was absorbed earlier w.e.f. 12.04.2007. Ms. Palli
also highlights that the letter dated 09.03.2009 had clearly stated that
future absorption in the Water Wing would be from the date of issue
of the order of absorption and all personnel would be entitled to
seniority from such dates of "their absorptions" and not from the date
of seniority of the "General Duty Cadre". Despite such clear policy,
Toswara was granted an undue favour completely unsupported by the
Rules.
4. The BSF does not dispute the essential facts. It, however,
points out that Toswara was a direct recruit Assistant Commandant
whereas the petitioner had joined the lower cadre of Subedar - albeit in
the Water Wing Unit of the BSF. At that point of time, the Water
Wing did not have a separate cadre and was a part of the General Duty
Cadre. In these circumstances, the petitioner‟s claim, according to
both BSF as well as Toswara - is unfounded. It is further pointed out
that Toswara was under low medical category at the time when the
question of his absorption was considered by the BSF. He could not
consequently be recommended. This understanding itself was suspect
because the requirement of an officer to be of SHAPE-1 is in fact not
prescribed by the Rules for deputationist or for absorption but is
applicable to promotees. Since Toswara was already an Assistant
Commandant, this condition should not have been applied to him.
The BSF relies upon the fixation of inter se seniority as between the
petitioner and Toswara on the basis of the latter‟s initial entry into the
cadre by relying upon the Central Government‟s Office Memorandum
dated 29.05.1986. The relevant part of the Central Government‟s
clarification in this regard is as follows: -
"(iv). In the case of a person who is initially taken on
deputation and absorbed later (i.e. where the relevant
recruitment rules provide for "transfer on
deputation/transfer"), his seniority in the grade in which he is
absorbed will normally be counted from the date of absorption,
if he has, however, been holding already (on the date of
absorption) the same or equivalent grade on regular basis in
his present department, such regular service in the grade shall
also be taken into account in fixing his seniority, subject to the
condition that he will be given seniority from the date he has
been holding the post on deputation..."
5. The BSF in its counter affidavit also produced the service
profile of the two officers in a tabular form; the same is extracted as
under: -
Srl. No. Particulars Shri C.S. Shri N C Sunder
Toswara Singh
(i) Date of joining 02-07-1993 as 16-12-1993 as
BSF Assistant Inspector/Direct
Commandant Entry
(Direct Entry) (Workshop)
(ii) Date of 02-07-1993 22-07-2004
promotion as
Assistant
Commandant
(iii) Date of posting 07-07-2003 16-12-1993
in Water Wing
(iv) Date of 27-04-2009 11-04-2007
absorption in
Water Wing.
(v) Education M.Sc. BE (Mech)
qualification
(vi) Date of 02-07-1993 11-04-2007
seniority in the (inter-se
Water Wing seniority fixed
Cadre by MHA with
reference to the
date from which
he has been
appointed on a
regular basis to
the same or
equivalent grade
in his parent
department i.e.
the date of
Assistant
Commandant
(General Duty)
6. The BSF refutes the petitioner‟s contentions by further stating
that regulation of inter se seniority as between those working earlier in
the General Duty Cadre but at the same time opting for absorption
could not be regulated in terms of the Recruitment Rules at least so far
as the stipulation as to educational qualification etc. were concerned.
Here again, it is highlighted that Toswara entered the higher cadre of
Assistant Commandant (General Duty) on 02.07.1993, i.e. ten years
earlier to the petitioner who was promoted to that post, i.e. Assistant
Commandant on 22.07.2004. The latter was promoted on the basis of
his seniority in the Subedar (General Duty) Cadre. Both the petitioner
and Toswara were in the BSF Water Wing on the basis of makeshift
arrangement in the absence of any Recruitment Rules clearly
earmarking a separate cadre. It is specifically urged that seniority on
promotion of all such personnel were being regulated as applicable to
General Duty Cadre. The petitioner availed the benefit of promotion
as Assistant Commandant in the seniority of Subedar (General Duty)
Cadre while serving in the Water Wing as junior to fourth respondent
but never opposed his promotion and juniority to the fourth
respondent.
7. Both the BSF and Toswara rely upon Rule 8 of the Rules to say
that those holding a higher rank whether in an officiating or
substantive capacity shall be senior to those holding a lower rank and
more importantly Rule 8 (2) which states that "seniority in any rank
shall be determined on the basis of continuous regular service in that
rank".
8. As can be discerned from the factual discussion, the narrow
controversy which the Court had to decide upon is the inter se
seniority as between the petitioner and Toswara. The petitioner‟s
submission that Toswara should be treated as junior to him is firstly
based upon the fact that he held the degree qualification - which is
prescribed as essential for the post of Assistant Commandant in the
Water Wing whereas Toswara does not admittedly hold that
qualification. The petitioner‟s second premise is that Toswara was
absorbed on 27.04.2009, i.e. after the petitioner‟s absorption on
12.04.2007. Here, reliance is placed upon BSF letter dated 09.03.2009
clarifying that those absorbed in the Water Wing in future would have
their seniority regulated from the date of such absorption.
9. What emerges from an overall reading of the facts is that
Toswara joined as a direct recruit Assistant Commandant (General
Duty) on 02.07.1993. The petitioner joined the BSF later and in a
lower post, i.e. on 16.12.1993 as Subedar (Workshop) in the same
General Duty Cadre. This being undisputed fact, the question of the
petitioner‟s claiming seniority over Toswara could never arise. The
latter held a higher position in the same cadre and had to be treated as
the petitioner‟s senior even after the promulgation of the Rules in
2005 by virtue of Rule 8 (2). The petitioner‟s argument that being
asked to discharge the specialized duties pertaining to the Water Wing
in these circumstances, are not persuasive for the simple reason that
before 2005, there was no separate Water Wing Cadre. The Water
Wing Unit was treated as part of the same cadre, i.e., General Duty
Cadre to which both he and Toswara belonged. Toswara concededly
was an officer holding a superior rank, i.e. one rank higher in the
hierarchy. Besides the untenability of the petitioner‟s argument,
conceding to his claim would in fact amount to directing BSF to efface
16 years of continuous service or employment rendered by Toswara in
the higher cadre of Assistant Commandant and virtually treats him as
having entered that cadre by some unknown method, w.e.f.
27.04.2009. The reliance on the letter dated 09.03.2009 therefore must
also fail given the mandate of Rule 8(2).
10. During the course of hearing, the petitioner‟s counsel relied
upon the judgment of the Supreme Court reported as Madhya Pradesh
Electricity Board v. S.S. Modh & Ors.(1997) 11 SCC 6 to say that the
absorption to an individual is to be based upon existing Recruitment
Rules. This Court is of the opinion that the said decision related to an
entirely different set of facts and circumstances. The officer
concerned was working in the Chambal Hydel Scheme, Gandhisagar;
his services were later absorbed after decision of the State
Government to transfer the project along with the employees to the
Madhya Pradesh Electricity Board. Such subsequently transferred
officers were required to opt either to accept the services under the
Board or opt out of employment. The officer concerned opted for
services with the Board and after absorption claimed that he ought to
have been absorbed as an Assistant Engineer (even though he was an
Overseer). The High Court accepted the contentions. Reversing this,
the Supreme Court held that the absorption in the higher cadre of
Assistant Engineer had to be only of individuals who had prescribed
requisite qualifications. The officer concerned did not possess the
qualifications. In the present case, however, concededly Toswara was
entitled and he was directly recruited as Assistant Commandant
(General Duty). He was asked to work in the Water Wing sometimes
in 2003. The petitioner was promoted from the post of Subedar to
Assistant Commandant subsequently in 2004. If the petitioner‟s
contentions were to be accepted, it would be impossible to give effect
to Rule 6 because individuals who were allowed to opt and continue in
the Water Wing may have or may not have possessed the
qualifications required by the Rules which were formulated in 2005.
The option to be absorbed was given to all existing personnel. This
Court is, therefore, of the opinion that the petitioner‟s submissions in
this regard are without merit.
11. For the forgoing reasons, this Court holds that the petition lacks
merit and is consequently dismissed.
S. RAVINDRA BHAT
(JUDGE)
DEEPA SHARMA
(JUDGE)
SEPTEMBER 30, 2015
/vikas/
