Delhi High Court
R P Sanwal vs Union Of India & Ors. on 27 November, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 14th November 2018
Decided on: 27th November 2018
+ W.P.(C) 2671/2016
R P SANWAL .....Petitioner
Through: Mr. V.K. Garg, Sr. Advocate with
Mr. Ankur Chhibber, Ms. Noopur
Dubey & Mr. Bhanu Gupta,
Advocates.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Ms. Maninder Acharya, ASG with
Mr. Rakesh Kumar, CGSC for UOI.
+ W.P.(C) 2668/2016
PRAKHAR TRIVEDI .....Petitioner
Through: Mr. V.K. Garg, Sr. Advocate with
Mr. Ankur Chhibber, Ms. Noopur
Dubey & Mr. Bhanu Gupta,
Advocates.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Ms. Maninder Acharya, ASG with
Mr. Rakesh Kumar, CGSC for UOI.
+ W.P.(C) 743/2015
MANJIT SINGH .....Petitioner
Through: Mr. V.K. Garg, Sr. Advocate with
W.P.(C) 2671/2016 & connected matters Page 1 of 23
Mr. Ankur Chhibber, Ms. Noopur
Dubey & Mr. Bhanu Gupta,
Advocates.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Ms. Barkha Babbar with Mr.Het
Shah, Advocates for UOI.
+ W.P.(C) 2672/2016
C H SETHURAM .....Petitioner
Through: Mr. V.K. Garg, Sr. Advocate with
Mr. Ankur Chhibber, Ms. Noopur
Dubey & Mr. Bhanu Gupta,
Advocates.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Ms. Maninder Acharya, ASG with
Mr. Rakesh Kumar, CGSC for UOI.
+ W.P.(C) 2664/2016
GEORGE MANJURAN .....Petitioner
Through: Mr. V.K. Garg, Sr. Advocate with
Mr. Ankur Chhibber, Ms. Noopur
Dubey & Mr. Bhanu Gupta,
Advocates.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Ms. Maninder Acharya, ASG with
Mr. Rakesh Kumar, CGSC for UOI.
W.P.(C) 2671/2016 & connected matters Page 2 of 23
+ W.P.(C) 2653/2016
K S RATHORE .....Petitioner
Through: Mr. V.K. Garg, Sr. Advocate with
Mr. Ankur Chhibber, Ms. Noopur
Dubey & Mr. Bhanu Gupta,
Advocates.
versus
UNION OF INDIA & ORS. .....Respondents
Through: Ms. Maninder Acharya, ASG with
Mr. Rakesh Kumar, CGSC for UOI.
CORAM: JUSTICE S. MURALIDHAR
JUSTICE SANJEEV NARULA
JUDGMENT
Dr. S. Muralidhar, J.:
1. All these petitions raise a common issue concerning the fixation of
seniority in the post of Assistant Commandant („AC‟) of the Border Security
Force („BSF‟).
2. The Court would like to deal with the facts in the case of
Mr. R.P. Sanwal, the Petitioner in W.P.(C) 2671/2016. In 1984, Mr. Sanwal
was selected for AC (DE) in the Sl.No.10 batch. Although he cleared all the
requisite tests, i.e. the written examination, physical efficiency test,
interview, and medical examination, the offer of appointment along with
training batch No.10 could not be issued due to delay in verification of his
character and antecedents by the District Authorities. However, by a letter
dated 24th June 1984, the PS Cantonment, Faizabad, Uttar Pradesh issued a
report wherein there was nothing adverse against Mr. Sanwal. He was
declared fit by the District Authorities.
3. By a letter dated 7th August 1984, Mr. Sanwal was informed by the
Respondents, i.e. the BSF, that his verification report was awaited and on
receipt thereof he would be sent for Medical Board and Training at the BSF
Academy, Tekenpur, Gwalior, Madhya Pradesh on 1st September 1984.
After coming to know that by a letter dated 24th June 1984 a verification
report had already been sent by PS Cantonment in Faizabad, the Petitioner
by a representation dated 29th January 1985 informed the Respondents that
the verification report had already been sent to them more than a month and
a half earlier.
4. By a letter dated 15th February 1985, the Respondents informed
Mr. Sanwal that he would be called for medical/training when the training
for the next batch would start, i.e. sometime during October-
November 1985. Finally, on 12th March 1986, a letter was issued to
Mr. Sanwal by the Respondents to appear before a medical board for
detailed examination on 9th April 1986. He appeared as directed and was
declared medically fit. On 26th May 1986, he was given an offer letter for
post of AC in the BSF.
5. Thus, as a result of the above sequence of events, although Mr. Sanwal
was selected for the appointment to the post of AC (DE) in the BSF along
with the 10th batch of officers in 1984, he could be offered an appointment
only at a later date and was made to undergo training along with the officers
of the next batch, i.e. the 11th batch, on 16th June 1986.
6. Mr. Sanwal made a representation to the Respondents about losing
seniority with his batch-mates for no fault of his own. Finding force in his
contention, by an order dated 6th September 1994, Mr. Sanwal was granted
notional seniority with effect from 17th September 1984, i.e. the date of
commencement of the training course for the 10th batch. It is stated that this
re-fixed seniority of Mr. Sanwal with effect from 17th June 1984 was not
challenged by anyone and attained finality. On this basis, after being dealt
with by the Departmental Promotion Committee („DPC‟), Mr. Sanwal was
promoted to higher ranks up to the rank of Deputy Inspector General
(„DIG‟).
7. The facts in the cases of the other Petitioners are more or less similar.
Mr. K.S. Rathore, the Petitioner in W.P.(C) 2653/2016 and Mr. George
Manjuran, the Petitioner in W.P.(C) 2664/2016, both originally belonged to
the 11th batch in the year 1986. In the case of Mr. Rathore, on account of the
delay in granting age relaxation, and in the case of Mr. Manjuran, due to the
initial erroneous adverse verification report from the District Collector
which was later corrected on 24th February 1987, these two persons could
not join training along with their batch-mates of the 11th batch. They were
sent for training along with the 12th batch with effect from 5th October 1987.
Just as in the case of Mr. Sanwal, they too represented to the Respondents
about their loss of seniority and their notional seniority was re-fixed by
orders dated 23rd June 1990 (in the case of Mr. Rathore) and
5th September 1994 (in the case of Mr. Manjuran) with effect from
16th June 1986. They too received promotions from time to time up to the
rank of DIG.
8. Mr. C.H. Sethuram, the Petitioner in W.P.(C) 2672/2016, belonged to the
14th batch from 1989. On account of his medical unfitness, he was unable to
be sent for training along with his batch but joined training along with the
16th batch with effect from 10th February 1993. Later, by an order dated
31st January 2001, he was given notional seniority along with the 14th batch.
Subsequently, he earned promotions up to the rank of Commandant.
9. In the case of Mr. Prakhar Trivedi, the Petitioner in W.P.(C) 2668/2016,
he belonged to the 15th batch from 1990. Initially, he was declared medically
unfit but ultimately declared medically fit on 14 th June 1993. Accordingly,
he was sent for training along with the 17th batch with effect from
2nd July 1993. Aggrieved by the non-fixation of his seniority, he filed
W.P.(C) 118/2001 before this Court. Prior to filing a counter-affidavit, the
Respondents, of their own accord, reviewed his seniority by an order dated
14th April 2001 and informed the Court that he had been reassigned along
with officers of his batch as per his merit. Finally, this Court disposed of the
writ petition on 2nd January 2014, noting that his seniority had been correctly
fixed and that he had been promoted to the next post with notional benefits.
Mr. Trivedi subsequently earned promotions up to the rank of Commandant.
10. In the case of Mr. Manjit Singh, the Petitioner in W.P.(C) 743/2015, he
was selected in the 16th batch in 1991 but could not be given an offer of
appointment since he was declared medically unfit by the medical board.
Ultimately, in July 1994, after being examined by a Special Selection
Medical Board, he was declared fit and was issued an offer of appointment
by a letter dated 16th December 1994. He joined training with the 18th batch
which commenced on 2nd January 1995. He was accordingly assigned
seniority with ACs of the 18th batch.
11. On 3rd March 2001, Mr. Singh made a representation for re-fixation of
his seniority along with the 16th batch as per the gradation list of July 2000.
The competent authority then reassigned the seniority by an order dated
26th July 2001 along with the officers of the 16th batch with effect from
1st February 1993. The gradation list of Group „A‟ GD officers circulated by
a letter dated 30th June 1997 in which Mr. Singh figured at S.No.1829 was
amended and he was assigned seniority at S.No.1518(A) below Mr. Shiv
Murthy and above Mr. Suresh Kumar. The promotion to the rank of DC was
notionally granted to him with effect from 7th October 1998 by the order
dated 5th December 2001.
12. In Mr. Singh‟s case, the Respondents, by a letter dated
16th January 2007, was informed that in terms of the instructions of the
Government of India dated 24th September 1997, it was proposed to review
his case for promotion from AC to DC. By a subsequent office
memorandum dated 24th September 2007, he was informed that as many as
seven officers, including Mr. Singh, had been served with show cause
notices and that all their cases were being processed by the Ministry of
Home Affairs („MHA‟).
13. Meanwhile, Mr. Dinesh Kumar, who was also selected in 1991 (16th
batch) filed W.P.(C) 19748/2005 (Dinesh Kumar, Dy. Commandant v.
Union of India). He complained to the Court that although he qualified with
the 16th batch, on account of delay in his being declared medically fit, he
joined training with the 18th batch with effect from 2nd January 1995 and his
seniority was fixed with reference to the 18th batch. His writ petition came to
be allowed by a Division Bench of this Court by an order dated 14 th
February 2011. In that order, reference was made to the fact that in the case
of Mr. Singh, who also belonged to the same 16th batch, the Respondents
had rectified the error and granted to him the correct seniority and, therefore,
the Court found it strange that the Respondents had filed a counter-affidavit
in the year 2006 in that case alleging that Mr. Singh was granted a wrong
benefit.
14. This Court, in Dinesh Kumar (supra) noted in para 25 of its order "that
the Respondents, having correctly granted the benefit to Manjeet Singh,
have pleaded, what this Court would label as a mere ruse, to deny the claim
of the Petitioners". Accordingly, Mr. Dinesh Kumar‟s writ petition was
allowed with the direction to the Respondents to fix his seniority with
reference to the seniority of persons junior to him in the same batch. It is not
in dispute that the appeal by the Respondents against the aforementioned
order in Dinesh Kumar (supra), i.e. SLP(C) 18484/2011, was dismissed by
the Supreme Court on 25th July 2011.
15. Meanwhile, some promote ACs of the 16th batch challenged the seniority
list dated 18th July 1985 by filing SWP 1393/1999 in the High Court of
Jammu and Kashmir contending that certain persons who joined training
with the 17th batch had been placed senior to them. The said writ petition
was allowed by an order dated 27th July 2001 wherein it was held that the
said Petitioners were entitled to be ranked in the seniority above the officers
of the 17th batch and below the officers of the 16th batch. The said judgment
was challenged before the Supreme Court in Rohitash Kumar v. Om
Prakash Sharma (2013) 11 SCC 451. By the judgment dated
6th November 2012, the Supreme Court held that the seniority of the direct
entry officers would be from the date of their appointment, i.e. the date of
commencement of their training at the BSF Academy in Gwalior, Madhya
Pradesh. It further opined that "there may be a statutory provision which
causes great hardship or inconvenience to either the party concerned or to an
individual but the Court has no choice by to enforce it in full rigour" if the
language of the statute is plain.
16. Consequent to the above judgment dated 6th November 2012, the
Respondents decided to undertake, on their own, an exercise to review the
entire seniority list of the Group „A‟ (GD officers). Two orders dated
28th November 2013 and 24th January 2014 were issued constituting a board
of officers (hereinafter „Board‟) to verify the records/files relating to fixation
of seniority of Group „A‟ officers and to arrange their inter se seniority.
Interestingly, the order dated 24th January 2014 states that the board of
officers were detailed "to verify the records/files relating to fixation of
seniority of AC (DE) batches Srl.No.29 to 35 and AC (LDCE) batch Srl-05
and re-arrange the inter se seniority in accordance with BSF (GD Officers)
Recruitment (Amendment) Rules 2003 and Rule 7(3)(2) of the BSF Group
„A‟ (GD Officers) Recruitment Rules 2010".
17. In other words, it appears that what was intended to be reviewed by the
aforementioned Board was the fixation of seniority of the direct entry AC
officers of 29th to 35th batches and not other batches. It is an admitted
position that no show cause notices were issued to any of the present
Petitioners whose seniority would have been affected by the said review. A
general signal was issued on 14th February 2014 stating that, pursuant to the
aforementioned orders, the Board was considering review of seniority and
that in case any other GD cadre officer was aggrieved with his seniority, he
could forward his representation/grievance directly to the office of the
Seniority Desk by 19th February 2014 for consideration.
18. On 8th May 2014, the Board submitted a report in which inter alia it was
concluded as under:
"154 The Board has considered the cases of above officers as
per the available records and factual position provided/reflected
by various branches/documents. The Board has recommended
re-assigning seniority to affected officers in the rank of
Assistant Commandant with reference to BSF (Seniority
Promotion and Superannuation of officers) Rules, 1978 and
BSF (General Duty Officers) Recruitment Rules, 2001 and as
per the law laid down by the Hon'ble Supreme Court of India
vide judgment dated 6.11.2012. The due benefit of seniority as
admissible to such officers may be considered after observing
all requisite formalities. In case name of any officer is left out
and later comes to the notice the same may be examined on
case to case basis on similar analogy.
155 It is noted that maximum of the above officers were
originally assigned correct seniority but in due course of time
the rule was misinterpreted and these officers have been granted
notional seniority. It is also noted that in many of such cases the
approval of MHA/DoP&T was also taken. As the rule has now
been defined clearly by the Hon'ble Supreme Court vide
judgment dated 6.11.2012 and the seniority of AC/DE batch 16
& 17 has been held w.r.t. their commencement of training, the
Board views that its recommendations may be got
vetted/concurred from MHA & DoP&T. The administrative
orders of review of seniority issued by FHQ (Pers Dte) in
respect of officers as mentioned under the sub head/column.
Change in seniority, if any needs to be cancelled even if these
are implemented or otherwise."
19. The report noted that the decision of this Court in Mr. Prakhar Trivedi‟s
(Petitioner in W.P.(C) 2668/2016) case was in conflict with the decision of
the Supreme Court in Rohitash Kumar (supra). By the letters dated 12th and
17th December 2014, Mr. Trivedi was informed by the Respondents that his
seniority had been reassigned and he could represent against it if he wished
to do so. Certain others also made representations knowing of the
recommendation of the Board to again down grade their seniority.
20. Ultimately, by the order dated 27th January 2016, the seniority of all the
present Petitioners was downgraded, cancelling the earlier orders issued
whereby their respective seniority had been re-fixed along with their
respective batches. It is this order which is under challenge in all these
petitions.
21. It must be mentioned that Mr. Manjit Singh (Petitioner in W.P.(C)
743/2015) stood already aggrieved by the gradation list dated
8th September 2014 whereby his seniority was being reconsidered by the
Board. On 22nd October 2014, Mr. Dinesh Kumar was promoted to the rank
of Commandant superseding Mr. Singh. The review petition filed by the
Respondents in Dinesh Kumar (supra), i.e. Review Petition No. 524/2014,
wherein they mentioned that the judgment dated 14 th February 2011 of this
Court would be subject to the judgment dated 6 th November 2012 passed in
Rohitash Kumar (supra) was rejected by this Court by dismissing the
Review Petition on 12th December 2014. Therefore, anticipating the
downgrading of his seniority as a result of the above, Mr. Singh filed
W.P.(C) 743/2015 on 19th January 2015 seeking the quashing of the
gradation list issued in his case on 8th September 2014.
22. This Court has heard the submissions of the learned counsel for the
parties. The main plank of the arguments on behalf of the Respondents is the
judgment of the Supreme Court in Rohitash Kumar (supra). The Appellants
before the Supreme Court in that case, were the direct recruits ACs in the
BSF. Om Prakash Sharma and others, the Respondents, were promotees.
The 16th batch consisted of 67 officers who joined the training on
1st February 1993 while the 17th batch consisted of 87 officers who joined
the training on 2nd July 1993. Due to administrative reasons such as
character verification, they could not be sent for training in one batch even
though they had been selected through the same competitive examination. It
was noted that Om Prakash was promoted from the feeder cadre and joined
his post on 15th March 1993 and, therefore, was placed in the promotional
cadre prior to the commencement of the training of the 17th batch on
2nd July 1993. The Court interpreted Rule 3 of the BSF Rules 1978 („1978
Rules‟) which reads as under:
"(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 Tank.
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."
23. The Supreme Court then noted the interpretation placed on the said rule
by the learned Single Judge of the Jammu and Kashmir High Court which
reads 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. (1) (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."
24. The Supreme Court then proceeded to observe as under:
"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.
28. If the contention of the appellants is accepted, it would
amount to fixing their seniority from a date prior, to their birth
in the cadre. Admittedly, the appellants (17th batch), joined
training on 2.7.1993 and their claim is to fix their seniority from
the 1st of February, 1993 i.e. the date on which, the 16th batch
joined training. Such a course is not permissible in law.
The facts and circumstances of the case neither require any
interpretation, nor reading down of the rule."
25. There are certain features of the above case that require elucidation. One
is that it was a dispute essentially between promotees and direct entrants
where the promotees, relying on the main part of Rule 3 reproduced
hereinabove, claimed that since they were inducted into the cadre by their
appointment on an earlier date, they were senior to the direct entrants. This
was accepted particularly since the validity of the rule was not under
challenge. Secondly, it was clarified that the proviso to Rule 3 would 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". Thirdly, the 17th batch, having
joined training on 2nd July 1993, could not claim seniority from the date on
which the 16th batch joined training, i.e. 27th March 1993. In other words,
those of an earlier batch who joined training earlier would be senior to those
who joined training later.
26. Interestingly, however, the Supreme Court had no occasion to deal with
the cases of all whose seniority had already been re-fixed, such as the
present Petitioners, with the Respondents accepting their plea that their
failure to join training was not on occasion of any fault of theirs. In fact, the
Appellants in Rohitash Kumar (supra) placed reliance on the decision dated
14th February 2011 in Dinesh Kumar (supra) and it was observed in para 29
as under:
"29. Shri R. Venkataramani, learned Senior counsel for the
appellants, has placed very heavy reliance upon, the judgment
of the Delhi High Court (Dinesh Kumar v. UOI & Ors.) dated
14.2.2011 wherein, certain relief was granted to the petitioner
therein, in view of the' fact that there was some delay in joining
training, in relation to passing the fitness test set by the Review
Medical Board. The court granted relief, in light of the facts and
circumstances of the case, without interpreting Rule 3 of the
Rules 1978. Thus, the said judgment, in fact, does not lay down
any law. The case at hand is easily distinguishable from the
above, as that was a case where seniority and promotion had
been granted on a notional basis, with retrospective effect and it
was held that the person to whom the same had been granted,
was entitled to all consequential benefits."
27. Therefore, the Supreme Court was not prepared to disturb the judgment
of this Court in Dinesh Kumar (supra) by observing that it was a case where
"seniority and promotion had been granted at a notional basis with
retrospective effect". The fact of the matter, therefore, is that even according
to the Supreme Court, as a result of its decision, the position as far as the
decision in Dinesh Kumar (supra) is concerned, would not be affected.
28. Interestingly, Mr. Dinesh Kumar was a 1991 officer like Mr. Singh. If
Rohitash Kumar (supra) was intended to disturb their cases, then clearly the
Supreme Court would have recorded its finding to that effect. However, the
Supreme Court considered the case of Rohitash Kumar (supra) as an inter
se dispute between promotees and direct entrants and, therefore, declined to
vary its order. It noted that this Court had granted relief in light of the facts
and circumstances of the case without interpreting Rule 3 of the 1978 Rules
and thus, was of the view that Dinesh Kumar (supra) had, in fact, not laid
down any law.
29. Interestingly, even in the order passed by this Court in the review
petition filed in Dinesh Kumar (supra), this Court observed that the facts in
Rohitash Kumar (supra) were distinguishable. The interpretation placed by
the Division Bench of this Court of Rohitash Kumar (supra) and what the
issue in Dinesh Kumar (supra) was is evident from a reading of the entire
order dated 12th December 2014, which reads as under:
"Review Pet.No.524/2014
1. The review petition is entirely misconceived. The decision of
the Supreme Court pronounced on November 06, 2012 in CA
No.2133-2134/2004 on which the review is predicated is not
applicable to the facts of the instant case.
2. Said decision holds that in view of Rule 3 of the BSF
(Seniority, Promotion and Superannuation of Officers) Rules,
1978, the seniority of the directly recruited officers has not to
be with respect to the merit position secured at the competitive
examination. The decision notes that as per the Rule, the final
merit position is with reference to the aggregate of the marks
obtained at the competitive examination and at the induction
course.
3. On facts, in said decision, persons who took the competitive
examination for appointment as an Assistant Commandant m
BSF could not join in the same year due to administrative
exigencies. Character verification for some were received and
for others it was not received. The result was that some
underwent the training/induction course earlier and the
remainder with the next batch. Officers who underwent training
in the next batch wanted seniority to be determined on the basis
of the aggregate of the marks obtained in the competitive
examination and at the induction course. The department took
the view that the prospective appointees at the competitive
examination did not undergo training in the same batches and
thus those who took training at the latter batch would rank
junior to those who underwent training in the earlier batch. The
Supreme Court accepted the view taken by the department.
4. In the instant case the issue was not that of seniority. The
writ petition undertook the competitive examination but his
appointment as an Assistant Commandant got delayed due to
late convening of a review medical board by BSF. Realizing
this, BSF itself granted seniority to the appellant as an Assistant
Commandant with reference to his merit position at the
competitive examination held on September 15, 1991.
5. There was no issue on said account.
6. The issue which arose was when promotion to the post of
Deputy Commandant became due. As per the service rule, six
years service in the grade of Assistant Commandant was the
eligibility condition. The juniors who had been inducted earlier
rendered six years service and thus were being considered for
promotion as Deputy Commandant. The Petitioner relied upon
para 3.1.2 of the Office Memorandum dated March 25, 1996,
relevant portion whereof has been noted in paragraph 15 of the
decision dated February 14, 2011. As per the same, if juniors
had become eligible for being considered for promotion,
eligibility norm for the senior officer had to be half the number
of years of service otherwise required.
7. The writ petition which was decided by us interpreted the
Office Memorandum in question and its effect. The petitioner
had rendered three years and six months service as an Assistant
Commandant. This was more than half the eligibility service of
six years. Admittedly, persons junior to the petitioner had
rendered more than six years of service and had become eligible
for being considered to be promoted as an Assistant
Commandant. In said fact, applying para 3.1.2 of the Office
Memorandum dated March 25, 1996, relief was granted to the
petitioner.
8. The review petition is dismissed.
9. No costs."
30. In one sense, the order passed in the review petition in Dinesh Kumar
(supra) on 12th December 2014 is consistent with what the Supreme Court
itself observed as regards the decision of this Court in Dinesh Kumar
(supra) in its decision dated 6th November 2012 in Rohitash Kumar (supra).
31. The net result is that there was no requirement for the BSF to have
undertaken a review of the seniority positions of all officers pursuant to the
judgment in Rohitash Kumar (supra). This Court has not been told why,
despite the order dated 24th January 2014 clearly stating that the review was
to be confined to the 29th to 35th batches, the Respondents desired to open up
a Pandora‟s box. It was contended by Ms. Maninder Acharya, learned ASG
appearing for the Respondents, that there were already grievances expressed
about the re-fixation of seniority. She referred to what was noticed by this
Court in its order in Dinesh Kumar (supra) about the re-fixation of
Mr. Singh‟s seniority.
32. However, as has already been noted hereinbefore, this Court in Dinesh
Kumar (supra) was of the view that there was no justification in reviewing
Mr. Manjit Singh‟s seniority. The order in Dinesh Kumar (supra) attained
finality with the dismissal of the SLP of the Union of India. The decision of
this Court in Dinesh Kumar (supra) also found mention in the judgment in
Rohitash Kumar (supra) and was not disturbed. The net result would be that
although both belong to the 1991 batch, because of the disinclination of the
Supreme Court in Rohitash Kumar (supra) to disturb the position vis-à-vis
Dinesh Kumar (supra), the case of Mr. Manjit Singh would also stand on
the same footing as Mr. Dinesh Kumar. In other words, the seniority earlier
re-fixed in his case (prior to the impugned orders) would not be disturbed.
33. As far as the five other Petitioners are concerned, Ms. Acharya was not
able to justify why, without any complaint being made by anyone, their
seniority was re-fixed. The only justification revealed was the judgment in
Rohitash Kumar (supra) but, as already pointed out, it was actually a case
of inter se seniority between a promotee and a direct recruit. The promotee
there had taken training earlier with the 16th batch whereas the Appellants
joined training with the 17th batch which took the training later. Therefore,
the promotee‟s seniority over the direct recruit entrants was affirmed by
following Rule 3. It was not a case of inter se seniority in the same batch of
direct recruits. In any event, the judgment in Rohitash Kumar (supra) was
not meant to apply retrospectively. It was incumbent upon the Respondents
to point out to the Supreme Court, if they were intending to apply the
judgment retrospectively, the consequences of such retrospective
application.
34. The decision of the Supreme Court in Rohitash Kumar (supra) was not
meant to reopen the seniority of all officers of all batches. The Supreme
Court was, in fact, not disturbing the status quo when it affirmed the
judgment of the Jammu and Kashmir High Court. If after nearly two decades
seniority has to be re-fixed all of a sudden as a result of a judgment of the
Supreme Court, it would alter the status quo to the severe detriment of many
despite that there being no complaint at all from any quarter. This was an
unwarranted problem unnecessarily brought about by the Respondents
themselves.
35. On the question of „settled seniority‟, it would also be relevant to note
that the Supreme Court, in H.S. Vankani v. State of Gujarat (2010) 4 SCC
301, held as under:
"38. Seniority is a civil right which has an important and vital
role to play in one's service career. Future promotion of a
government servant depends either on strict seniority or on the
basis of seniority-cum-merit or merit-cum seniority, etc.
Seniority once settled is decisive in the upward march in one's
chosen work or calling and gives certainty and assurance and
boosts the morale to do quality work. It instills confidence,
spreads harmony and commands respect among colleagues
which is a paramount factor for good and sound administration.
If the settled seniority at the instance of one's junior in service
is unsettled, it may generate bitterness, resentment, hostility
among the government servants and the enthusiasm to do
quality work might be lost. Such a situation may drive the
parties to approach the administration for resolution of that
acrimonious and poignant situation, which may consume a lot
of time and energy. The decision either way may drive the
parties to litigative wilderness to the advantage of legal
professionals both private and government, driving the parties
to acute penury. It is well known that the salary they earn, may
not match the litigation expenses and professional fees and may
at times drive the parties to other sources of money-making,
including corruption. Public money is also being spent by the
Government to defend their otherwise untenable stand. Further,
it also consumes a lot of judicial time from the lowest court to
the highest resulting in constant bitterness among the parties at
the cost of sound administration affecting public interest.
39. Courts are repeating the ratio that the seniority once settled,
shall not be unsettled but the men in power often violate that
ratio for extraneous reasons, which, at times calls for
departmental action. Legal principles have been reiterated by
this Court in Union of India v. S.K. Goel [(2007) 14 SCC 64],
T.R. Kapoor v. State of Haryana [(1989) 4 SCC 71] and
Bimlesh Tanwar v. State of Haryana [(2003) 5 SCC 604]. In
view of the settled law the decisions cited by the appellants in
G.P. Doval case [(1984) 4 SCC 329], Prabhakar case [(1976)
2 SCC 890], G. Deendayalan [(1997) 2 SCC 638] and R.S.
Ajara [(1997) 3 SCC 641] are not applicable to the facts of the
case."
36. It is an equally well-settled principle of law that judgments of the courts
are not to be interpreted as statutes. On this proposition, it is relevant to note
that in Union of India v. Dhanwanti Devi (1996) 6 SCC 44, the Supreme
Court observed as under:
"10. .... No judgment can be read as if it is a statute. A word or
a clause or a sentence in the judgment cannot be regarded as a
full exposition of law. Law cannot afford to be static and
therefore, Judges are to employ an intelligent technique in the
use of precedents."
37. Therefore, in view of the decisions referred to hereinabove, we are of the
opinion that a meaningful interpretation of the ratio of the Supreme Court‟s
decision in Rohitash Kumar (supra) would result in the conclusion that
„settled seniority‟ should be preserved. The retrospective application of the
said judgment would be inconsistent with the ratio of the judgements
referred to hereinabove. The manner in which the Respondents are seeking
to apply the judgment would lead to a reopening of the question of seniority
which has been settled of several years. An interpretation that is harmonious
with the well-settled principle of „settled seniority‟ would be most suitable
and any other exposition would cause administrative chaos and lead to
situations that would result in grave injustice to persons who are already
settled in their positions.
38. It was then contended by Ms. Acharya, learned ASG, that if they were to
re-work the entire exercise as a result of the impugned order dated
27th January 2016 being set aside, then those other officers whose seniority
would be affected thereby would also have to be made parties. She,
however, does not dispute the fact that no such plea was taken by the
Respondents in the counter affidavits filed in these petitions.
39. The situation was brought upon by the Respondents themselves without
any complaint by any of others parties who benefitted from that exercise. As
far as the present Petitioners are concerned, the Respondents are only
required to restore the status quo ante the impugned order whereby they had
notionally fixed their seniority. In some cases this has been by indicating the
position with alphabets like „a‟ and „b‟ alongside the Sl. No. The
Respondents should be able to work out a solution without unduly affecting
the rights of anyone.
40. The writ petitions are accordingly allowed and vis-à-vis these
Petitioners, the impugned order dated 27th January 2016 to the extent it
cancels the re-fixed seniority and downgrade the seniority of these
Petitioners (as indicated in the last column of the table in para 6 of the order
dated 27th January 2016) is hereby set aside. In other words, the seniority of
these Petitioners as re-fixed initially by the Respondents as indicated in the
fourth i.e. last but one column of the table in para 6 of the aforementioned
order dated 27th January 2016 will be restored. No orders as to costs.
S. MURALIDHAR, J.
SANJEEV NARULA, J.
NOVEMBER 27, 2018
tr
