Delhi High Court
Sh Neeraj Kumar And Others vs Union Of India & Ors. on 18 August, 2020
$~VC-6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 18th August, 2020
+ W.P. (C) 5381/2020
NEERAJ KUMAR AND ORS. .....Petitioners
Through: Mr. A.K. Bhardwaj and Mr.
Shivanshu Bhardwaj, Advocates
versus
UNION OF INDIA AND ORS. .....Respondents
Through: Mr. D.S. Mahendru and Mr.
Kavindra Gill, Advocates
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
ORDER
% 18.08.2020
[VIA VIDEO CONFERENCING]
RAJIV SAHAI ENDLAW, J.
C.M. Appln.19388/2020 (Exemption from filing typed copies of
the Annexures) and C.M. Appln.19389/2020 (Exemption from
attestation of the accompanying affidavits)
1. Allowed, subject to just exceptions and as per the extant
rules.
2. The applications are disposed of.
W.P. (C) 5381/2020
3. The 46 personnel of the respondent No. 3 Border Security
Force (BSF) have filed this petition seeking the following reliefs:-
A. Issue an appropriate writ/direction to
respondents to read down the DoP&T OM
dated 6th June, 2000, to the effect that the
benefits of NFSG is extended to OGAS officers
of BSF General Duty Cadre w.e.f. 06.06.2000,
but on 1st January of the 14th year following the
year of examination on the basis of which the
members of the service were recruited in the
entry grade i.e. Assistant Commandant,
disregarding, inter alia, the following: -
i. Restriction of holding the JAG post;
ii. Limitation of extending the NFSG only to
the number of officer's equivalent to the
posts authorized in JAG;
and
iii. Ceiling of 30% of SDPs be removed.
B. Pass an order granting the Petitioners (OGAS
Officers of BSF General Duty Cadre) NFSG
from the 1st of January of the 14th year from the
year following the year of examination on the
basis of which they were recruited in the entry
grade;
4. It is the contention of the petitioners, (i) that the 4th Central
Pay Commission (CPC) extended the benefit of Non-Functional
Selection Grade (NFSG) to Group „A‟ Services; (ii) that pursuant
to the judgment of this Court in G.J. Singh Vs. Union of India
2015 SCC OnLine Del 11803, upheld in Union of India Vs.
Harananda (2019) 14 SCC 126, the BSF was also treated as
Organised Group „A‟ Services (OGASs) and the personnel of BSF
became entitled to NFSG; (iii) that though the impugned
Department of Personnel and Training (DoP&T) Office
Memorandum (O.M.) dated 6th June, 2000 relating to grant of
NFSG provides for the grant of the said benefit after 14 years of
service and on compliance of certain other conditions and such
benefit vis-à-vis other Group „A‟ Services, of which examples have
been pleaded in the petition, is being granted immediately after the
said 14 years, but in BSF, the personnel are not becoming entitled
to the benefit, in spite of 19-20 years of service, owing to acute
stagnation in BSF; (iv) that thus the objective of the
recommendation of the CPC and the OM of DoP&T for grant of
NFSG is being defeated by the condition therein of holding a
Junior Administrative Grade (JAG) post and owing to the ceiling
placed, of 30% of the Senior Duty posts, on the personnel entitled
to NFSG; (v) though the eligibility prescribed for JAG is of 10
years, but the personnel of the BSF are getting JAG only after 19-
20 years; (vi) thus, the purpose of NFSG, of addressing stagnation,
is being defeated; (vii) thus, the OM dated 6th June, 2000 has to be
read down, to exclude the said condition and with the exclusion
whereof, the purpose of grant of NFSG qua BSF shall be served;
(viii) though the Government has relaxed certain conditions of the
said OM vis-à-vis other Services, but not for BSF; and, (ix) that
similar issue raised by personnel of CRPF by way of W.P.(C) 3445
of 2020 came up before this Court on 10th June, 2020, when notice
thereof has been issued for 14th September 2020.
5. We have informed the counsel for the petitioners that though
from a reading of the petition, our sympathies are with the
petitioners, but enquired, how, within the legal framework, we can
grant the relief as claimed.
6. The petitioners, while on the one hand seek the benefit of
DoP&T O.M. dated 6th June, 2000, on the other hand are seeking to
split up the said O.M. and wanting to accept some part of it and
reject some part of it. To us, it prima facie appears that the reliefs
sought, of deletion of certain conditions for grant of NFSG, do not
fall within the ambit of the concept of "reading down".
7. We have enquired from the counsel for the petitioners,
whether not the same is a matter of policy and since according to
the petitioners, the conditions have already been relaxed for some
other Services, as per exigency thereof, whether not the remedy of
the petitioners is before the governmental authorities only.
8. Attention of the counsel for the petitioners has been drawn to
our judgment in Tarun Kumar Banjaree Vs. Union of India 2020
SCC OnLine Del 859 where, while declining the reliefs claimed by
members of Central Armed Police Forces (CAPFs) as a
consequence of being declared OGAS, we have directed the
Central Government to consider the representations preferred by
them.
9. The counsel for the respondents appearing on advance notice
states that the remedy of the petitioners is by way of making a
representation to the Central Government. It is contended that no
representation whatsoever has been made claiming the reliefs as
are claimed in this petition or highlighting the grievances, as are
urged in this petition. With respect to W.P.(C) 3445/2020, it is
contended that the controversy therein is different from as raised in
the present petition.
10. The counsel for the petitioners, without prejudice to the
rights and contentions of the petitioners, states that in view of what
has been observed by the Court, the petitioners would be satisfied
if the direction is issued to the respondents to treat this writ petition
as a representation of the petitioners and to, after hearing the
representatives of the petitioners, either grant the reliefs as are
claimed or if not inclined to grant the relief, give reasons in writing
therefor.
11. Considering the nature of the grievances, which have prima
facie merit therein, we are of the view that the request of the
counsel for the petitioners is reasonable.
12. We therefore direct the respondents to consider the writ
petition as a representation of the petitioners and to, on or before
30th November, 2020, after giving an opportunity of hearing/s to
the representatives of the petitioners, limited to not more than three
of the petitioners, take a decision thereon, in writing, and if the
reliefs as sought by the petitioners, or any of the reliefs are not
granted, to give reasons therefor in writing to the petitioners,
within the said time.
13. The petition is disposed of.
RAJIV SAHAI ENDLAW
(JUDGE)
ASHA MENON
(JUDGE)
AUGUST 18, 2020
pkb/s
