Delhi High Court
Dalip Kumar Sharma And Anr. vs Union Of India And Ors. on 14 May, 2019
$~56.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 14.05.2019
% W.P.(C) 5206/2019
DALIP KUMAR SHARMA AND ANR...... Petitioner
Through: Ms. Saahila Lamba, Adv.
versus
UNION OF INDIA AND ORS. ..... Respondent
Through: Mr. Shubhash Gosai with Mr. Amit
Kumar Dogra, Advs. for R-1 to R-3.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE REKHA PALLI
VIPIN SANGHI, J. (ORAL)
C.M. No. 23049/2019
1. Exemption allowed, subject to all just exceptions. The application
stands disposed of.
W.P.(C) 5206/2019 and 23048/2019
2. The petitioners assail the central seniority list dated 22.02.2016
of the absorbed HC/ Nursing Assistant in BSF Para-Medical set up. The
petitioners also seek a mandamus to direct respondent Nos. 2 and 3 to revise
the central seniority list of absorbed HC/ Nursing Assistant by placing the
petitioners above respondent Nos. 4 to 38 in the seniority list of HC/
Nursing Assistant.
3. The Head Constables, General Duty (GD) of the BSF were
offered deputation as Head Constable (Nursing Assistant) in the Para-
Medical set up of the BSF. Apart from the petitioners, others, including
respondent Nos. 4 to 38 also opted for the said deputation. It appears that
the deputation took place in three tranches. Eventually, the respondents
have decided to create a separate cadre of Head Constable (Nursing
Assistant). Consequently, the impugned seniority list was circulated on
22.02.2016 inviting objections within one month from the date of receipt of
the seniority list. Admittedly, the petitioners did not file any objection
within the said period and they represented against the said list only on
11.03.2019.
4. The submission of learned counsel for the petitioners is that the
petitioners were amongst the first batch of Head Constable (GD), who were
sent on deputation as Head Constable (Nursing Assistant) in the BSF Para-
Medical set up. According to the petitioners, they should rank senior to the
other Head Constable (Nursing Assistant), who came on deputation in the
subsequent batches. This submission of learned counsel for the petitioners
is premised on the Standing Operating Procedure - 2010 laid down by the
Govt. of India for recruitment of Head Constable (Nursing Assistant) in the
BSF. The said procedure provides in relation to "observation" as follows:
"(f) Absorption
Absorption of willing and eligible personnel will be
considered prior to completion of their deputation period.
Absorption will be considered according to their work
performance during deputation and instructions of Govt. of
India on the subject and will be subject to recommendation of
Board of Officers."
5. Reliance is also be placed by Ms. Lamba on Clause 9 of the order
dated 07.09.2014 which reads as follows:
".......9. The board will prepare the proceedings in
following three parts:-
(i) Part-1 - the personnel who were selected as Head
Constables (Nursing Assistant) on deputation as per Medical
Dte order No. 15/45/HC/(NA)/11/Med/4623-4923 dated 11-05-
2011 will be considered in part-I board proceeding.
(ii) Part-II - similarly the personnel who were selected
as Head Constables (Nursing Assistant) on deputation as per
Medical Dte order No. 15/45/HC(NA)/11/Med/5697-6000 dated
25-05-2011 will be considered in Part-II and.
(iii) Part-III - the personnel who were selected as Head
Constables (Nursing Assistant) on deputation as per Medical
Dte order No. 15/45/HC(NA)-Phase-II/11/Med/11031-
11331dated 11-10-2011......"
6. The submission of Ms. Lamba is that the aforesaid clauses show that
the absorption had to be considered batch wise, and thus considered, the
petitioners having been absorbed first, should rank senior in the cadre of
Head Constable (Nursing Assistant).
7. A perusal of the impugned seniority list shows that the said seniority
has been drawn on the basis of date of promotion as Head Constable (GD).
The senior most person at serial No. 1 in the impugned seniority list became
Head Constable on 01.08.2005. Admittedly, the petitioners though deputed
as Head Constable (Nursing Assistant) earlier, became Head Constable
(GD) subsequently.
8. We have heard Ms. Lamba and perused the record. It is not the
petitioners' case that at the time of deputation, such deputation was offered
to the Head Constable (GDs) according to the inter se seniority. Merely
because the petitioners came on deputation earlier, would not make them
senior in the cadre of Head Constable (Nursing Assistants), since it was not
informed to the members of Head Constable (GD) cadre that their inter se
seniority in the cadre of HC (Nursing Assistant) - that may be created
subsequently, would rank from the date on which they come on deputation.
9. The aforesaid procedures, in our view, do not translate into granting
seniority to the Head Constable (GDs) who were sent on deputation earlier
as Head Constable (Nursing Assistants), in the cadre of Head Constables
(Nursing Assistans). Merely because they were considered for the purpose
of absorption batch-wise, would not mean that the inter se seniority would
also be fixed batch-wise. A perusal of the impugned seniority list shows
that the date of absorption has been fixed as 01.02.2015 in respect of all the
absorbees. It, thus, appears that after completion of the process of deciding
upon who all should be absorbed amongst the three batches of Head
Constable (GDs) as Head Constable (Nursing Assistants), the respondents
have wisely fixed the date of absorption as a common date i.e. 01.02.2015.
That being the position, it is obvious that their inter se seniority in the cadre
of Head Constable (Nursing Assistant) has to be reckoned from the date of
substantive promotion as Head Constable (GDs).
10. We do not find any merit in this petition.
11. Dismissed.
VIPIN SANGHI, J.
REKHA PALLI, J.
MAY 14, 2019
N.Khanna
