Delhi High Court
Sunil Kumar Singh & Ors vs Union Of India & Anr. on 20 February, 2017
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: November 11, 2016
Judgment delivered on: February 20, 2017
+ W.P.(C) 4810/2015, CM No.8700/2015
SUNIL KUMAR SINGH & ORS ..... Petitioners
Through: Ms. Rekha Palli, Sr. Adv. with Mrs.
Punam Singh, Ms. Ankita Patnaik, Ms.
Garima Sachdeva and Ms. Shruti
Munjal, Advs.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Ms. Bharathi Raju, CGSC for R1 and
R2.
CORAM:
HON'BLE MS JUSTICE INDIRA BANERJEE
HON'BLE MR JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
1. This writ petition has been filed by Ninety Five (95) Assistant Commandants
working in the Border Security Force under the respondent No.2 with the following
prayers:-
"A. Issue a writ of certiorari quashing the letter dated 27.6.2013 vide which
the Commando Course has been made mandatory for promotion of Assistant
Commandants appointed through Limited Departmental Competitive
Examination to the rank of Deputy Commandant;
B. Pass any other order/direction as this Hon'ble Court may deem fit."
2. It is the case of the petitioners that they have all joined BSF as Sub-Inspectors.
Based on their merit, they were selected for the post of Assistant Commandants, by way of
fast track promotion through the provision of Limited Departmental Competitive
Examination (LDCE) and are presently working as such. The petitioners 1 to 56 were
selected pursuant to LDCE held in 2014; petitioners 57 to 63 were selected pursuant to the
LDCE held in 2013 whereas, petitioners 64 to 95 were selected pursuant to the LDCE held
in 2012. It is their case that all are in the age group of 35 to 40 years and are aggrieved by
letter dated June 27, 2013 issued by the office of the respondent No.2, vide which, it has
been made mandatory for all Assistant Commandants promoted through LDCE to undergo
the Young Officers Commando Course irrespective of their age at the time of promotion as
Assistant Commandants through LDCE even though, there is no such requirement for
Assistant Commandants promoted in normal course. It is their case that in the year 2001,
Border Security Force (General Duty Officers) Recruitment Rules, 2001 were notified
superseding the Border Security Force (Seniority, Promotion & Superannuation of Officers)
Rules, 1978 and Border Security Force (Assistant Commandant Recruitment) Rules, 1985.
3. According to the petitioners, the Rules of 2001 provided that officers to the post of
Assistant Commandants in the BSF shall be appointed in the following manner:-
(a) 50% by direct recruitment including 10% from amongst the released Short Service
Commission Officers, failing which, by direct recruitment;
(b) Promotion of 33% authorized posts from the feeder cadre of
Inspector/Subedar/Subedar Major;
(c) 17% by Limited Departmental Competitive Examination, failing which, by
promotion.
4. As per the Rules of 2001, the eligibility age for direct entry candidates to the post of
Assistant Commandants was between 19-25 years, whereas the upper age limit for the
candidates seeking promotion to the post of Assistant Commandants through LDCE was 35
years and there was no upper age limit for those seeking promotion in the regular course.
According to them, the Recruitment Rules of 2001 also prescribed for filling up 33% posts
by promotion from the rank of Subedar to Assistant Commandant; the candidates must have
qualified the following BSF courses:-
(i) Basic training course prescribe for the post/rank at the entry level.
(ii) Platoon weapon/Weapon and tactics course.
(iii) Platoon Commander (Tac) Course.
(iv) Coy Commander (SOs) course.
(v) Two years service in Service Coy for all Inspector/Subedar (General Duty) or two
years service in a duty Battallion for Subedar (Communication);
Provided that the provision of two years tenure in Service Coy/Duty Battallion will not
apply to certain category of Subedars/Inspectors.
5. As per the Rules of 2001 for promotion to the rank of Deputy Commandant, the
eligibility for Direct Entry Officers and promotee officers was as under:-
(I) By promotion of Assistant Commandant of the Border Security Force with six years
regular service in the grade and having qualified following courses-
A. For Director Entry Officers
(i) Young Officers (Commando and Weapon Training)
B. For Promotee Officers
(i) Command & Logistic Course
(II) Two years command experience as Company Commander of Service Coy in duty
battalion or as Battery Commander in Border Security Force Artillery except for those
officers who are in central sports team of Border Security Force.
Medical Category SHAPE-I.
6. It is the case of the petitioners that the promotee officers were not required to
undergo the Young Officers Course (Commando and Weapon Training) because of their
age as well as their pre-existing experience in the BSF and similarly the officers selected
through LDCE, who formed part of the promotee quota were also not required to undergo
the Commando course. The Rules of 2001 underwent an Amendment in the year 2003 to
the extent that the age limit for direct entrants was changed to 20-25 years from that of 19-
25 years and further the examination for recruitment of direct entrants was provided to be
conducted by the UPSC. The Rules of 2001 were further amended in the year 2004 to the
extent that the LDCE examination for the 17% posts was to be conducted under the aegis of
UPSC and further for 33% posts to be filled by promotion in lieu of courses prescribed in
column (ii), (iii) and (iv) and were substituted by "other courses/training as prescribed by
the Director General, BSF from time to time". It is averred by the petitioners that the
Assistant Commandants appointed through LDCE already have experience and having
worked in the BSF and are even otherwise much older than the direct recruits. The
Assistant Commandants appointed through LDCE from batches 2004 to 2010 were not
required to undergo Young Officers Commando Course as an eligibility condition for
promotion to the rank of Deputy Commandant. A notification dated August 11, 2010 was
issued whereby, the Border Security Force Group A (General Duty Officers) Recruitment
Rules, 2010 had been notified in supersession of the Recruitment Rules of 2001 and the
Rules provided that 17% of the posts of Assistant Commandants shall be filled by LDCE to
be conducted through BSF, CRPF, CISF, ITBP, SSB on rotation basis and failing which, by
promotion. For filling up of the posts by LDCE the following criteria was prescribed:-
(a) Sub-Inspector/Inspector having four years regular service including training.
(b) The upper age limit for appearance in the LDCE will be thirty-five (35) years. The
required educational qualification will be graduation as required for direct recruitment.
(c) Must have good record of service.
(d) Physical standards will be same as applicable to Assistant Commandant (Direct
Recruitment).
(e) Medical Category SHAPE-I.
7. The eligibility criteria for promotion to the rank of Dy. Commandant from that of
Assistant Commandant was six years of regular service as Assistant Commandant and
having qualified courses/training as prescribed by Director General, BSF from time to time.
On June 28, 2012, a Policy was issued by the Director General, BSF whereby various
mandatory courses were prescribed for promotion to different posts. For promotion to the
rank of Dy. Commandant from that of Assistant Commandant, following was the criteria:-
A. For Direct Entry-
(i) PW course;
(ii) Commando Course.
B. For (LDCE) below 35 years
(i) New weapon and surveillance Equipment course;
(ii) Commando course.
C. For (LDCE) above 35 years
(i) New weapon and surveillance Equipment course;
(ii) Command & Logistics course.
D. For promotee officers
(i) Command & Logistics Course.
8. It is the petitioner‟s case that they being eligible applied against the advertisements in
the years 2012/2013 and consequent to successfully qualifying the aforesaid examination of
the LDCE, they were issued identical appointment letters and in the letters, it was
categorically mentioned that the appointment of the petitioners forms part of the promotee
quota. It is averred that as per the Policy, the petitioners who were all above the age of 35
years were not required to undergo the Commando Course for promotion to the post of
Deputy Commandant and instead were required to undergo only the Command and
Logistics Course, primarily for the reason that the said Course is very strenuous and
physically demanding. It is their case in the writ petition that the LDCE is a kind of fast
track promotion and cannot be equated with direct recruitment in view of the settled law. It
is also averred that the promotees of LDCE between 2004-2010 were not asked to undergo
the said Commando Course but it was only in 2013 that the respondents issued the
impugned letter making it mandatory for all Assistant Commandants promoted through
LDCE to undergo the said Commando Course as an eligibility condition for promotion to
the post of Dy. Commandant irrespective of their age and therefore removed even the
distinction of being below or above 35 years and therefore for the first time in July/August,
2013 the batch of Assistant Commandants appointed through LDCE held in the year 2011,
were asked to undergo the Young Commando Course irrespective of whether they were
below or above 35 years of age. The petitioners have also referred to a writ petition filed by
the Assistant Commandants appointed through LDCE in the year 2011, which was disposed
of as infructuous as by that time, the Assistant Commandants appointed through LDCE in
the year 2011 have undergone the Commando Course.
9. It is their case that they cannot be discriminated, inasmuch as, the regular promotees
to the rank of Assistant Commandants are not required to undergo the same Commando
Course, which resulted in two sets of conditions for two sets of promotees ignoring the fact
that the promotees through LDCE are also serving employees of the force and the
comparison of the LDCE with the Direct Entry Officers in the rank of Assistant
Commandant by ignoring the fact that Direct Entry Officers in normal course join the force
as Assistant Commandant by the age of 25 years and therefore, complete their Commando
Course by the age of 28 years whereas, the LDCE promotees get promotion to the rank of
Assistant Commandant only after the age of 35 years and therefore it is not feasible for
them to undergo a strenuous course like the Commando Course after the age of 35 years.
10. The respondents in their counter affidavit have referred to the Mandatory Course
Policy dated June 28, 2012, which has already been reflected above in para 7. It is their
case that in view of the changing operational scenario and requirement of the force, the
department has decided that LDCE officers should also get the benefit of Commando
training and Tactical module in commanding the troops in very sensitive areas, hence the
age bar of 35 years for commando course was removed. This step was taken to facilitate
LDCE officers also to command Company in sensitive areas like Assistant Commandant
(Direct Entry) officers. Accordingly, the Department constituted a High Power Committee
under the Chairmanship of Additional DG (Director of BSF Academy) to review and
redesign the syllabus of courses for officers of the rank of AC/2 I/C which encompassed
Commando course for Assistant Commandants. It is also submitted that under the High
Power Committee, various sub-committees were formed to review course syllabus for each
rank. In this regard, it has been pointed that a massive exercise of Training Need Analysis
was conducted by IIM. Several brain storming sessions at Sector, Frontier level etc. were
organized to review and redesign syllabus of courses for officers. After detailed discussion,
deliberation and exhaustive examination, the syllabus of Commando course was framed as
per operational requirement to suit the training of need of both Assistant Commandants
(DE) and Assistant Commandants (LDCE) officers as well as the requirement of the force.
The conventional commando training with prime emphasis on physical endurance and
excessive physical training has considerably been reduced to provide space for various
inputs on operations of war, explosives, Map reading and GPS, Border Management
Intelligence, Personality Development, Leadership and Management, Service Writing etc.
Subsequently, duration of Young Officers Commando Course has also been increased by
two weeks i.e from 8 to 10 weeks with the aim to train the young officers of the rank of
Assistant Commandant (Direct Entry) and Assistant Commandant (LDCE) for effective
execution of small team operations such as proficient Company Commanders. The
respondents have referred to the impugned decision dated June 27, 2013 whereby the age
limit to undergo Commando course was removed, wherein it was stated there will be no
distinction based on age for undergoing the Commando Course by Assistant Commandant
(LDCE) officers. Moreover, as per the joining instructions of the course, no age limit has
been prescribed. They referred to the Amendment Rules of 2012, which empowers the
Director General, BSF to prescribe course or courses from time to time for each rank. It is
their case that the major objectives of the course are as under:-
(i) By physically fit, mentally robust with strong leadership qualities.
(ii) Undertake independent small team operations and explosive handling in Low
Intensity Counter/or Counter Insurgency/Anti Infiltration and Anti/Naxal Operations role.
(iii) Be able to execute combat drill in Line of Control environment, No war No Peace
and hot war scenario.
(iv) Have skills and confidence to lead tps and operate in all scenario of BSF
Deployment.
(v) Be efficient in border management in all matters at Coy level.
(vi) Efficiently deal with counter part at Coy level and perform duties in flag meetings
and border conferences.
(vii) Efficiently perform the staff duties at various levels.
(viii) Assist the Unit Commandant in the borders management.
11. Similarly, they have also highlighted the salient features of the newly approved
Commando course as under:-
(i) Out of 650 periods, physical portion constitutes 131 pds only i.e 20% of the total
allotted periods. Rest of the syllabus is meant to have up the skills of Coy Comdr.
(ii) Emphasis is laid on conduct of various operations in anti Naxal, Counters
Insurgency and Border Management scenario. In ANO scenario, almost all Coy Comdrs
are generally from Asstt. Comdt. (Direct Entry or LDCE Officers) who have to carry out
operations 25-30 kms away from Company Operating Base (COB). Thus, the present
syllabus caters for the Ops, requirements also.
(iii) New Syllabus also covers leadership and personality development (87 periods) which
has been identified as grey area for young BSF officers in the Training Need Analysis
report.
(iv) These are separate timings/different parameters for officers above 35 years of age in
physical events.
(v) 10, 20, 30 and 40 kms route marches have now been replaced with the 15 & 25 kms
spewed marches along with operational exercises. Time consideration of age has been kept
in new syllabus, 30 seconds for each Km has been given to trainees above 35 years age and
on experiencing the outcome same will further be adjusted on need basis.
(vi) Major portion of the course i.e 2/3 course is focused on imparting training in various
kind of operations and Management theories/principles.
(vii) FPET which is a physical demanding activity has now been omitted from the
syllabus.
12. They have summed up their stand by stating that the Commando course, besides
being a mandatory course for Assistant Commandant (DE) and Assistant Commandant
(LDCE) also fulfils the organizational need of the force as it enhances the professional
efficiency of the Assistant Commandant (DE/LDCE) as Company Commander to discharge
the duties in the assigned area of deployment. It is stated that the job profile of young
Assistant Commandants require command of a Company in difficult and remote places at
exterior and interiors of the Nation, where as a Coy Commander, he has to lead his men on
strenuous operations. This course is made mandatory in national and public interest and
also in the interest of the force.
13. Ms. Rekha Palli, learned Senior counsel for the petitioners would contend that the
respondents have, without any reason created distinct criteria for promotion of officers who
were promoted from Inspector to Assistant Commandant, by way of regular promotion who
do not have to undergo the said Commando Course, whereas petitioners and other officers
who have earned fast track promotion to the post of Assistant Commandant, are now being
asked to attend the said Commando Course as a mandatory condition for promotion to the
post of Dy. Commandant. According to her, the respondents have ignored the fact that the
Direct Entry Officers, in the normal course join in the age bracket of 20-25 years and finish
their Young Officers Commando course in the next 2-3 years but Assistant Commandants
promoted through LDCE generally will get/are getting detailed for the strenuous Young
Officers Commando Course after completing the age of 35 years. She states, that such a
stipulation has not been put as a pre-condition for regular promotees, which is contrary to
the ratio of the judgment passed by this Court in the case of Ravindra Lamba vs. Unionof
India and others W.P.(C) No. 5421/2011 decided on July 28, 2014, wherein this Court has
held that there is no logic or rationale in prescription of different medical standards for
those recruited by regular promotion and those recruited through LDCE and also held that
for the existing force personnel who apply for recruitment through LDCE the medical shape
category prescribed in the case of recruitment by promotion shall apply.
14. She would also submit that the respondents have overlooked the ratio of the judgment
of the Supreme Court in Roshan Lal Tandon v. Union of India (196) 1 SCR 185, wherein
it is clearly opined that once the direct recruits and promotees were absorbed in one cadre,
they form one class and cannot be discriminated for the purpose of further promotion. She
states that the said ratio was followed by the Supreme Court in the case of S.M. Pandit &
ors v. State of Gujarat and ors (1972) 4 SCC 778, wherein the Supreme Court observed
that the directly recruited Mamlatdars as well as promotee Mamlatdars are designated as
Mamlatdars, they have the same pay scale, they discharge the same functions, the posts held
by them are interchangeable and that there was nothing to show that the two groups were
kept apart. It is her submission that it can be clearly deduced from the facts in the present
petition that the petitioners who were promoted through fast track promotion and form the
promotion quota cannot be discriminated against, making them undergo a course when the
petitioners also perform the same functions and duties as the promotees. She states that the
respondents have failed to give any valid justification for treating the Assistant
Commandants promoted by way of LDCE in a manner different from Assistant
Commandants promoted by way of regular promotion and have merely stated that the
threshold level for undergoing the Commando training have been liberalized for those
above 35 years of age without answering the basic issue raised by the petitioners. She
would state that though initially the respondents who were detailing even those Assistant
Commandants who had already undergone the Commando course as Sub-
Inspector/Inspector, for this Young Officers Commando course but after filing of the
present petition, the respondents have exempted only those petitioners from one module of
the course, which according to them relates to physical training.
15. It is her case that even otherwise while removing the age bar of 35 years for
undergoing Young Officers Commando course, the respondents have overlooked the fact
that undergoing the Commando course will affect the health of the petitioners in the long
run due to the strenuous activities to be carried out during the course such as carrying 20 kg
weight while running 15-25 kms and also the fact that the Assistant Commandants
appointed through LDCE already have experience of working in the BSF and even
otherwise are much older than the direct recruits. She would submit, the respondents have
in a malafide manner only revealed the statistics of those officers who participated and
completed the course and have not disclosed those number of officers who were badly
injured during the course and were then asked to attend the next course. It is evident that
those officers who were not able to complete the course No. 36 were detailed for the next
course No.38. She states that for the first time LDCE officers Commando course was
conducted from November 2015 to January 2016 in which, 93 officers had participated and
none of them were able to secure above „C‟ grading or a higher grading and were not
eligible for being posted in training centres i.e peace postings. She would state that it has
been learnt that officers above 35 years of age are not made to undergo Young Officers
Commando course in CRPF, CISR, ITBP and in the Army. She would state, on a perusal of
the note sheets produced in the Court, at every stage the removal of age limit was opposed
and it was even pointed out that there are only 12 officers who are presently below 35 years
of age. It is submitted that various officials had opined that removing the age bar of 35
years for the course is unfeasible and without any reasoning the DIG (Training) proposed an
amendment removing the age bar which was approved by the Special DG without giving
any reasonable explanation. She would state, that the relief as prayed for, be granted.
16. On the other hand, Ms. Bharathi Raju, learned counsel appearing for the respondents
would reiterate the stand taken by the respondents in their counter affidavit. The details
have already been referred to above. That apart, it is her case that a provision has been kept
to exempt those Assistant Commandant (LDCE) officers who have already done
Commando Course in subordinate officers rank (Sub Inspector/Inspector) from Module-I
(Commando Training). However, they will be required to undergo Module-II and III of the
Combat & Leadership course as the training inputs of Module-II (Border Management &
Coy Comdr. Duties) and Module-III (Leadership and Personality Development) are not
covered in Commando course prescribed for Subordinate Officers. She would state, so far
128 Assistant Commandants (LDCE) officers have undergone Young Officers Commando
and Combat and Leadership Course and successfully qualified the course. The details of
the Assistant Commandant (LDCE) officers attended Young Officers Commando and
Combat & Leadership Courses since 2013 are as under:-
S.No. Name of Course Rank Total Attended Passed Failed
No.36
No.38
Leadership
Course Srl.
No.41
4. Combat & AC(LDCE) 80 AC(LDCE)
Leadership Officers are
Course Srl. undergoing the
No.44 course
17. She states that the important points which needs to be considered after conduct of
above courses are as under:-
(i) The YO‟s Commando Course Srl. No.36 was attended by 69 officers (AC/DE-41 &
AC/LDCE-28) out of which 1st and 2nd position was obtained by Assistant Commandant
(LDCE) Officer Sh. Gopal Singh Rathore, AC(LDCE) and Sh.Rakesh Kumar, AC(LDCE)
respectively;
(ii) Sh. Gopal Singh Rathore, AC(LDCE) on the basis of his performance in YO‟s
Commando Course Srl. No.36 was selected as Security In-Charge of High Commission of
India in Sri Lanka and presently officer is deployed in Sri Lanka with BSF contingent.
(iii) The performance of Assistant Commandant (DLCE) officers in Commando Courses
has remained better in comparison to Assistant Commandant (DE) Officers as no Assistant
Commandant (LDCE) officer have failed so far. However, 05 Assistant Commandant (DE)
officers failed in YO‟s Commando Course Srl. No.40.
18. She states that following facts are pertinent to note in respect to writ petition filed by
the 95 petitioners:-
(i) Out of 95 petitioners, 56 petitioners have already attended the Combat & Leadership
Course Srl. No.41 conducted at BSF Academy Tekanpur w.e.f. 9/11/2015 to 16/01/2016
and have successfully completed the course.
(ii) 17 Assistant Commandant (LDCE) officers including 10 petitioners were exempted
from the Module-I (Commando Training) as they had already undergone the Commando
Course during Sub Inspector rank.
(iii) 100 Assistant Commandant (LDCE) officers including remaining 39 petitioners have
been detailed for Combat & Leadership Course Srl. No.44 w.e.f 7/11/2016 to 14/01/2017
and they have already joined the course on 7/11/2016.
(iv) 10 Assistant Commandant (LDCE) officers including 03 petitioners have been
exempted from Module-I (Commando Training) of Combat & Leadership Course Srl.
No.44.
(v) Sh. Sunil Kumar, AC(LDCE) who filed WP along with others has also been
exempted for Module-I (Commando Training) of Combat & Leadership Course Srl. No.44
started w.e.f 7/11/2016. He will attend Module-II and Module-III of the course starting
w.e.f 10/12/2016.
19. She would submit that BSF is an armed force of the Union and has been given
mandate to guard International Border during peace time and assist Army during War time.
The professional efficiency of a force like a Border Security Force is directly related to
standard of training. BSF has established credibility in its past operational commitments
and maintaining the high standard of the training to meet the present and future security
challenges of the country. It is expected from young officers to maintain the high standard
of physical fitness and acquire the professional skills so that they can command the troops
effectively and efficiently during peace as well as in war. She states that in view of the
above, the Combat & Leadership course prescribed for the Assistant Commandant (LDCE)
officers is as per the operational requirements of the Border Security Force and it should not
be compromised in the overall interest of the nation, force and the individual.
20. Ms. Bharathi Raju, during the course of her submissions, has drawn our attention to
the additional affidavit filed on behalf of the respondents on April 19, 2016. She would
state that para 6 onwards details the mandatory courses (earlier and present courses) with
duration for promotion from Assistant Commandant to Dy. Commandant. She, apart from
other submissions, would submit that different thresholds have been prescribed for officers
who are below 35 years; officers between 35 to 40 years and officers between 40 to 45
years. It is her submission that having prescribed different thresholds for officers having
different age groups, the submission on behalf of the petitioners that they are being
compared with the Assistant Commandants (Direct Entry), who joined the service between
20-25 years of age and undergo the Commando Course within 2-3 years, needs o be
rejected. She would also state that the Assistant Commandants who have undergone PW
course earlier in the Subordinate Officers Rank, are not required to undergo the said Course.
In the end, it is the submission of learned counsel for the respondents that the writ petition
be dismissed.
21. Having heard the learned counsel for the parties, the only issue which arises for
consideration is whether the respondents could have decided that there will be no distinction
based on age for undergoing the Commando Course by the Assistant Commandants
(LDCE), which has resulted in all the Assistant Commandants (LDCE) to undergo the
Commando Course mandatorily. At the outset, we may state the BSF Group A (General
Duty Officers) Recruitment Amendment Rules, 2012 published in the official Gazette on
June 6, 2012, empowers the Director General, BSF to prescribe course or courses from time
to time for each rank. If that be so, admittedly the petitioners have not challenged the
power of the Director General to prescribe course or courses for each rank. The impugned
letter issued on June 27, 2013 being in exercise of the power by the Director General, BSF,
the petitioners are estopped from challenging the same. Even otherwise, what is sought to
be done by the respondents through the letter dated June 27, 2013, is to remove the age bar
of 35 years in the case of Assistant Commandants (LDCE) for undergoing Commando
Course by them. All the petitioners are of the age of 35 years or above. They have earned
their promotion as Assistant Commandant through fast track promotion from the post of
Sub-Inspectors having eligibility condition of four years. The submission of Ms. Palli that
such a stipulation i.e Assistant Commandants (LDCE) above the age of 35 years sought to
be compared with Assistant Commandants (DE), who entered the force between the years
20-25 and undergo the training within 2-3 years and such a course shall affect the health of
the petitioners in the long run due to the strenuous activities to be carried out during the
course such as carrying 20 kg weight while running 15-25 kms and also the fact that the
Assistant Commandants appointed through LDCE already have experience of working in
the BSF and even otherwise are much older than the direct recruits is concerned, suffice to
state that, as noted above, the purpose for issuing the letter dated June 27, 2013 was
primarily to train officers so as to prepare them to discharge their duties, which are essential
for small team operations in hazardous and difficult terrain under life threatening situation.
That apart, the course also fulfils the organizational need of the force as it enhances
professional efficiency of the Company Commander to discharge duties in the assigned area
of deployment. It is stated that the course is mandatory in national interest and also in the
interest of the force. Surely, such being the underlying object for imparting course more
specifically to the Assistant Commandants (LDCE), who being young in age and are to be
given the charge of Company Commander in discharge of their duties, which requires
efficiency, the pleas are not sustainable. It is for the Authorities to decide, the nature of
courses/training that is required. The Court does not have the expertise to determine such
issues. In any case, this Court is not oblivious to the fact that fitter the person, more
capable he is to undertake onerous duties.
22. That apart, we note, in the additional affidavit filed by the respondents on April 19,
2016, in para 6 and 12, which we reproduce as under, the respondents have highlighted the
type of course need to be undertaken by the Direct Entry and the LDCE officers and the
parameters for the officers below 35 years and above 35 years.
"6. The details of the mandatory courses (earlier and present courses) with duration for
promotion from Assistant Commandants to Deputy Commandant are as under:-
Name/Type of Earlier Courses Name/Type of Present Courses Remarks
Asstt. Commdt. (Director Entry) Direct Entry & LDCE Officers (a) The Asstt. Comdts who has
(a) PW Course (only for direct (a) PW course with 8 weeks undergone PW courses earlier in
entry officers) for 9 weeks duration. New Weapons & SOs rank will not require
(b) Commando Course (10 Surveillance Eqpts will also be part undergoing this course.
weeks) of PW Course. Since sufficient inputs
Asstt. Comdt. (LDCE) Officers in all the platoon weapons are given (b) Commando course to be renamed
(a) Commando Course (10 during basic training, therefore, as Combat & Leadership Course.
weeks) focus will only be on advance Offrs who have done Cdo in SOs
(b) New Weapon and training and training methodology ranks will not require undergoing
Surveillance Equipment should be Progressive Weapon Cdo module of Combat Course.
Course (4 weeks) Training (PWT). Efforts should be
made to graduate Integrated Weapon (c) Specialized courses to be
Training method (IWT). undergone only by the selected Asstt.
Comdts having potential and
(b) Combat & Leadership Course aptitude for these courses.
(10 weeks) for which module will be
as under: (d) This should also be ensured that
(i) Module-I (Cdo Trg & Tactical any ACs undergoes only one type of
Ops-05 weeks) specialized course and his service
- CI Urban & Rural are utilized for that task within
- ANO in LWE areas reasonable time frame.
- Explosives
- Confidence trg (e) Asstt. Comdts should be allowed
- Combat firing to undergo 2 courses for
multiskilling of his role as trainer but
(ii) Module-II (Border Mgmt & Coy more than 2 courses should not be
Comdr Duties -3 & ½ weeks) allowed.
- Border Mgmt.
- Minor Tactics & Ops of War (f) Orientation Course will have
- Map Reader & GPS more emphasis on service writing,
- I S Duty custom & etiquettes, Office
- Service Writing Management, IT.
(iii) Module -III (Leadership &
Personality Development- 1 & ½
weeks)
-Moral motivation
- Intelligence
Promotee Offrs
Orientation Course (6 weeks)
12. The salient features of the new approved Combat & Leadership Course are as
under:-
(i) Out of 650 periods, physical portion constitutes 131 pds only i.e 20% of the
total allotted periods. Rest of the syllabus is meant to hone the skills of Coy Comdr.
(ii) Emphasis is laid on conduct of various operations in anti Naxal, Counters
Insurgency and Border Management scenario. In ANO scenario, almost all Coy
Comdrs are generally from Asstt. Comdt. (Direct Entry or LDCE Officers) who
have to carry out operations 25-30 kms away from Company Operating Base
(COB). Thus, the present syllabus caters for the Ops, requirements also.
(iii) New Syllabus also covers leadership and personality development (87 periods)
which has been identified as grey area for young BSF officers in the Training Need
Analysis report.
(iv) These are separate timings/different parameters for officers above 35 years of
age in physical events. The details of parameters are as under:-
EVENT STANDARD AGE AGE 35-40 AGE 40-45
BELOW 35 YEARS YEARS
YEARS
15 Kms Excellent 109 Min 116.5 Min 124 Min
Very Good 116.5 Min 124 Min 131.5 Min
Good 124 Min 131.5 Min 139 Min
Satisfactory 131.5 Min 139 Min 146.5 Min
25 Kms Excellent 195.5 Min 208 Min 220.5 Min
Very Good 208 Min 220.5 Min 233 Min
Good 220.5 Min 233 Min 245.5 Min
Satisfactory 233 Min 245.5 Min 248 Min
Weekly Excellent 13.5 Min 15 Min 16.5 Min
Physical Very Good 14.5 Min 16 Min 17.5 Min
Test 3.2 Good 15.5 Min 17 Min 18.5 Min
Kms Satisfactory 16.5Min 18 Min 19.5 Min
Confidence Excellent 15 Min 16 Min 17 Min
Course Very Good 17 Min 18 Min 19 Min
Good 19 Min 20 Min 21 Min
Satisfactory 21 Min 22 Min 23 Min
Assault Excellent 08 Min 9 Min 10 Min
Very Good 09 Min 10 Min 11 Min
Good 10 Min 11 Min 12 Min
Satisfactory 11 Min 12 Min 13 Min
(v) 10, 20, 30 and 40 kms route marches have now been replaced with the 15 & 25
kms spewed marches along with operational exercises. Time consideration of age
has been kept in new syllabus, 30 seconds for each Km has been given to trainees
above 35 years age and on experiencing the outcome same will further be adjusted
on need basis.
(vi) Major portion of the course i.e 2/3 course is focused on imparting training in
various kind of operations and Management theories/principles.
(vii) FPET which is a physical demanding activity has now been omitted from the
syllabus."
23. The aforesaid would reveal that the respondents are conscious of the age difference
between an Assistant Commandant (DE) and Assistant Commandant (LDCE) and has
accordingly prescribed different thresholds/standards. So, the comparison as sought to be
made by Ms. Palli is totally unsustainable.
24. Insofar as the plea of Ms. Palli that the respondents have in a malafide manner
revealed the statistics of those officers who participated and completed the course and have
not disclosed those number of officers who were badly injured during the course and were
then asked to attend the next course and that apart, that 93 officers had participated and
none of them was able to secure above „C‟ grading or a higher grading and they are not
eligible for being posted in training centres i.e peace postings is concerned, suffice to state,
from the contention of Ms. Bharathi Raju, it is noted that it is the Assistant Commandants
(LDCE) who have topped the position in the course and have been given onerous duties
including protecting the High Commission of India abroad. In any case, if in such kind of a
course, injury occurs, that would not be a ground to set aside the Policy, which is a well
considered decision. Further, the members of the force including the petitioners are
deployed at the international boundaries to guard the country, the courses prescribed for
them must be held be in a larger public interest. Not able to secure above "C" grading or
higher grading and would not be eligible for peace postings, is not a ground to set aside the
impugned order.
25. The plea of Ms. Palli that the impugned order is discriminatory as the Assistant
Commandant (Promotees) have been left out of the ambit of the course is concerned, such a
plea would not help the case of the petitioners. The reason for the same is, a promotee
becomes Assistant Commandant at a very advance age as compared to the Assistant
Commandants (LDCE) and it was not considered viable to prescribe the said course for
them. Even otherwise, if the plea of Ms. Palli is to be accepted then the Assistant
Commandants (Promotees) may also have to undergo the said course. In other words, such
a plea would not entail the setting aside the decision of the Competent Authority to direct
the Assistant Commandants (LDCE) to undergo the said Course.
26. The plea that the officers above 35 years of age are not made to undergo the said
Course in CRPF, CISF, ITBP and in the Army is concerned, the same is unsustainable as
the petitioners are concerned with the Rules and the decision as applicable to the BSF.
27. That apart, insofar as the plea that note sheets depict that there was opposition for
removing the age limit is concerned, the same would be unsustainable as the note sheets
reflects the view point of an individual officer but relevant shall be the ultimate decision
taken by the Authority, who was competent to take it. The same having been reflected in the
impugned letter, the same is justified.
28. That apart in the synopsis filed by the respondents, which aspect has been reflected
above and also conceded by the learned Senior Counsel for the petitioners that all the
petitioners have since been deployed for the course, would make the challenge to the
impugned order, unsustainable and the present petition has become infructuous, in the same
manner like the W.P.(C) No. 6175/2013 filed by similarly placed Assistant Commandants
(LDCE) of the year 2011, which was disposed of as infructuous as the said Assistant
Commandants (LDCE) had undergone the Commando Course before the writ petition could
be decided.
29. Insofar as the judgments relied upon by Ms. Rekha Palli in support of her contention
are concerned, in the case of Ravindra Lamba v. UOI (supra), this Court was concerned
with an issue, whether different medical standards can be prescribed by the respondents for
those selected through LDCE and those promoted to the rank of Sub-Inspector from the
feder cadre in the same organization. This Court has held that the existing personnel who
apply for recruitment through LDCE, the medical shape category determined for visual
standard in the case of recruitment by promotion shall apply also to those who apply from
the feeder cadre for promotion through competitive examination. Suffice to state, the issue,
which arose for consideration in the said case and the issue in hand are totally different and
the said judgment has no applicability to the facts of this case.
30. Insofar as the judgment of the Supreme Court in the case of Roshan Lal Tandon v.
Union of India (supra) is concerned, in the said case, the Supreme Court was concerned
with facts wherein the vacancies in Grade D of Train Examiners were filled by (a) direct
recruits i.e apprentice train examiners who had completed the prescribed period of training
and (b) promotees from skilled artisans. Promotion from Grade D to C was on the basis of
seniority cum suitability. In October 1965 the Railway Board issued a notification by
which it was provided that eighty percent of the vacancies in Grade C were to be filled up
from apprentice train examiners recruited on and after April 1, 1966 and the remaining
twenty percent by train examiners from Grade D. The notification further provided that
apprentice train examiners who had already been absorbed in Grade D before April 1966
should en block be accommodated in Grade C in the eighty percent of the vacancies without
undergoing any selection and with regard to twenty percent of the vacancies, reserved for
the other class of promotion was to be on selection basis and not on the basis of seniority
cum suitability. The petitioner in the said case entered Railway service in 1954 as a skilled
artisan and was selected and confirmed in Grade D filed a writ petition in the Supreme
Court challenging that part of the notification which gave favourable treatment to
apprentice train examiners who had already been absorbed in Grade D as arbitrary and
discriminatory and violative of Articles 14 and 16 of the Constitution. It was contended
that the earlier order laying down that promotion to Grade C was to be based on seniority
cum suitability had become a contractual condition of service and could not be altered to the
prejudice of the petitioner. The Supreme Court held that the impugned part of the
notification violated the guarantee under Articles 14 and 16 of the Constitution. According
to the Supreme Court, once the direct recruits and promotees were absorbed in one cadre,
they formed one class and they could not be discriminated against for the purpose of further
promotion to the higher grade C. Before the impugned notification was issued there was
only one rule of promotion applicable to both direct recruits and promotees. By the
impugned notification a discriminatory treatment was made in favour of the existing
apprentice Train Examiners who had already been absorbed in Grade D because the
notification provided that this group of apprentice train examiners should first be
accommodated en block in Grade C up to eighty percent of the vacancies reserved for them
without undergoing any selection, whereas in the twenty percent of the vacancies available
to the category of Train Examiners to which the petitioner belonged the basis of recruitment
was selection on merit and the previous test of seniority cum suitability was abandoned.
Whereas in the case in hand, the Recruitment Rules as notified in 2012 prescribed the Rule
for promotion as; (i) Assistant Commandant as five years the regular service; (ii) should
have completed pre-promotional course or courses as prescribed by the Director General,
BSF from time to time; (iii) 2 years Command experience as Company Commander of
service Company in duty battalion or has battery commander in BSF artillery; (iv) medical
category SHAPE-I.
31. The issue raised by the petitioners in the case in hand is with regard to a pre-
promotional course. Before the impugned notification was issued the Assistant
Commandants (LDCE) were segregated on the basis of age. For LDCE below 35 years the
pre-promotional course prescribed was (i) New weapon and surveillance Equipment course;
(ii) Commando course. For LDCE above 35 years, the pre-promotional course was; (i)
New weapon and surveillance Equipment course; (ii) Command & Logistics course. As
stated above by the impugned notification the age bar is sought to be removed and the
Assistant Commandant (LDCE) is required to pass the pre-promotional course (i)
Commando Course; (ii) New weapon and surveillance Equipment course. The substantive
Rule does contemplate an Assistant Commandant (Direct Entry)/ Assistant Commandant
(LDCE)/Assistant Commandant (Promotee), to complete pre-promotional course. In that
regard, there is no discrimination. What the impugned notification contemplate is, only the
type of course a particular Assistant Commandant based on source of entry/age, need to
undergo. The Assistant Commandants (LDCE) who are above the age of 35 years like the
petitioners, had no grievance when such a course was prescribed for LDCE below 35 years
of age. Merely because the cap of 35 years has been removed, would not make the course
discriminatory. Suffice to state, the purpose for removing the age bar was for achieving
efficiency in the force. The tougher Commando course is presumptive of a better physical
health to take on more onerous duties. The classification being reasonable, cannot be said
to be arbitrary.
32. The Supreme Court in the case of State of Mysore vs. P. Narasing Rao 1968 (1) SCR
407, wherein, the Rules framed by the Government, the non-matriculate tracers formed a
separate cadre from those who had passed the matriculation examination and had different
pay scales were upheld. Similarly, in Union of India v. Dr. Mrs. S.B. Kohli AIR 1973 SC
811, wherein the Supreme Court upheld the Central Health Service Rules requiring a
Professor in Orthopedics to have a post graduate degree in a particular speciality was
upheld on the ground that the classification made on the basis of such a requirement was not
" without reference to the objective sought to be achieved and there can be no question of
discrimination." Suffice to state, in the aforesaid two judgments, the Supreme Court has
upheld the Rules where a distinction was made on the basis of academic qualifications. We
may note here, the following observation of the Supreme Court in the case of Union of
India v. Dr. Mrs. S.B. Kohli:-
"7. We also do not understand the argument advanced on behalf of the
appellant that the interpretation placed by the High Court and accepted by us
now on this part of the case would mean infraction of Article 16 of the
Constitution. We do not agree that the decision of this Court in Roshan Lal
v. Union, lays down any such principle. Professors and Additional
Professors in teaching institutions do not stand in the same position as
General Duty Officers. The argument that it would lead to discrimination in
the matter of promotion of specialist is also without substance. To say that to
be appointed a Professor in Orthopaedics a person must have a post-
graduate degree in Orthopaedics is not to make a classification without
reference to the objectives sought to be achieved and there can be no question
of discrimination."
33. Even in the case of P. Murgesan vs. State of Tamilnadu and others (1993) 2 SCC
340, the Supreme Court held Rule making Authority is competent to impose complete bar
as well as partial restriction on a category of promotees on the basis of an education
qualification. The Supreme Court in para 13 has held as under:-
"13. The learned Judge held that judged from the above standpoint it was
impossible to accept the proposition that the classification of assistant engineers
into degreeholders and diplomaholders rests on any unreal or unreasonable
basis. They accepted the plea that the said classification was brought about
with a view to achieving administrative efficiency in the engineering services.
The higher academic qualifications, the learned Judge held, is at least
presumptive evidence of a higher mental equipment. The learned Judge said,
"what is relevant is that the object to be achieved here is not a mere pretence
for an indiscriminate imposition of inequalities and the classification cannot be
characterized as arbitrary or absurd. That is the farthest that judicial scrutiny
can extend." The learned Judge referred to the earlier decision of this Court in
State of Mysore v. P. Narasing Rao and Union of India v. Dr. (Mrs) S.B. Kohli
to demonstrate that a distinction made on the basis of academic qualifications
was always upheld by this Court. Ineed, in the latter case, the relevant rule
required that a professor of orthopaedics must have a post-graduate degree in
the particular speciality. It was upheld as a relevant requirement. The learned
Judge the explained the decision in Roshan Lal Tandon v. Union of Inida
(upon which substantial reliance was placed by the respondents in that case) as
an authority certainly for the proposition that "no discrimination could be made
between promotees and direct recruits by reference to the source from which
they were drawn" but that it does not bar a classification based upon academic
qualifications. In the words of Chandrachud, J.:
"Roshan Lal Tandon case is thus no authority for the proposition that if
direct recruits and promotees are integrated into one class, they cannot
be classified for purposes of promotion on a basis other than the one that
they were drawn from different sources."
Having thus distinguished Roshan Lal Tandon case and Mervyn Continho v.
Collector of Customs, the learned Judge concluded:
"We are therefore of the opinion that though persons appointed directly
and by promotion were integrate into a common class of Assistant
Engineers, they could, for purposes of promotion to the cadre of
Executive Engineers, be classified on the basis of educational
qualification. The rule providing that graduates shall be eligible for
such promotion to the exclusion of diplomaholders does not violate
Articles 14 and 16 of the Constitution and must be upheld."
34. That aforesaid being the position, we must hold that though persons appointed
through LDCE and by promotion were integrated into a common class of Assistant
Commandants, they could, for the purpose of promotion to the rank of Dy. Commandants
be classified on the basis of a promotional course as there is an objective sought to be
achieved. The Rule providing Assistant Commandants (LDCE) required to undergo
Commando Course to the exclusion of the Assistant Commandants (Promotee) does not
violate Articles 14 & 16 of the Constitution of India and must be upheld.
35. In view of the above, the reliance placed by Ms. Palli on the judgment of S.M. Pandit
(supra), would also not be applicable, as in the said case, the Supreme Court noted that the
High Court relied upon the decision of the Supreme Court in Mervyn Continho v. Collector
of Customs Bombay (1966) 3 SCC 600 and Roshan Lal Tandon v. Union of India (supra),
which have been distinguished in the later judgment of P. Murgesan (supra) (as noted
above), which permit reasonable classification.
36. In view of the discussion above, the writ petition is dismissed.
CM. No. 8700/2015 (for Stay)
Dismissed as infructuous.
V. KAMESWAR RAO, J
INDIRA BANERJEE, J
FEBRUARY 20, 2017/ak
