Delhi High Court
Subodh Rokade vs Union Of India Through Its ... on 24 March, 2021
$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3912/2021, C.M. Appl. No. 11754/2021
SUBODH ROKADE ..... Petitioner
Through: Mr. Udian Sharma, Advocate
versus
UNION OF INDIA THROUGH ITS SECRETARY& ORS.
..... Respondents
Through: None.
% Date of Decision: 24th March, 2021
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE ASHA MENON
JUDGMENT
MANMOHAN, J (Oral):
1. Present writ petition has been filed challenging the letter dated 14th
January 2020 and/or prior and post seniority lists issued by Personnel
Directorate, BSF. Petitioner seeks direction to the Respondents to re-draw
the seniority list and grant seniority to the Petitioner/Petitioner's batch over
the promoted inspectors/ Promotee Officers.
2. Learned counsel for the Petitioner states that the Petitioner was
declared successful for appointment to the post of Assistant Commandant on
02nd November 2004 when the final result of the UPSC CPF (Assistant
Commandants) Examination- 2003 was declared. He, however, states that
the Petitioner was offered appointment to the post of Assistant Commandant
in BSF in 2005. He states that in the interregnum, around 102 Inspectors
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By:MANJEET KAUR
Signing Date:26.03.2021
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were promoted to the rank of Assistant Commandant on 10 th August 2005
against the promotion quota for which DPC was conducted on 26th May
2005.
3. Learned counsel for the petitioner points out that even though the
Petitioner's selection was prior to the promotion of the promotee Inspectors/
promotee Officers, yet they were placed above the Petitioner's batch in the
seniority list circulated by Personnel Directorate, BSF, as circulated vide the
impugned letter. He emphasises that these Promotee Officers have been
placed from seniority No. 1477 to 1527, whereas the Petitioner's seniority
No. is 1561 in the said list.
4. He states that the Petitioner sent a representation to the Director
General, BSF requesting re-examination of the matter of fixation of inter-se
seniority of direct recruits of AC (DE) Batch Srl. No. 30 and Promotee
Officers appointed on 10th August 2005 which was rejected by the
Respondent holding that the inter se seniority has been correctly assigned by
the department.
5. Learned counsel for the Petitioner submits that bare perusal of the
Rule 7(2) of BSF Recruitment Rules, 2001 shows that the rank seniority of
officers appointed to any post shall be determined in accordance with the
order of selection for appointment to that post. The said Rule 7 of BSF
(General Duty Officer) Recruitment Rules, 2001 is reproduced hereinbelow:
"(1) All officers holding a higher rank shall be senior to the
officers holding a lower rank.
(2) In a particular rank seniority of Officers appointed to
any post shall be determined in accordance with the
order of selection for appointment to that post.
(3) Subject to the provisions of sub rule (2) inter se seniority
amongst officers holding the same rank shall be as
follows namely:-
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Signing Date:26.03.2021
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(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 rank;
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."
6. Learned counsel for the petitioner emphasises that the Petitioner
herein was selected on 02nd November 2004, even though the appointment
date was September 2005, and therefore the Petitioner's rank of seniority
will commence from the date of selection, i.e. 02nd November 2004.
7. In ground 'N' of the writ petition, the petitioner relies upon the
judgment of the Supreme Court in Union of India vs. N.R. Parmar & Ors.
(2012) 13 SCC 340 wherein it was held that the date of appointment would
mean the date of first substantive appointment against the clear vacancy.
According to the learned counsel for the Petitioner, in the present case, since
the vacancies were available when the direct recruits were selected, the
direct recruits attain seniority against the promotees.
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By:MANJEET KAUR
Signing Date:26.03.2021
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8. Having heard the learned counsel for the petitioner, this Court finds
that Rule 7 of the BSF Recruitment Rules, 2001 has been interpreted by the
J&K High Court and the Supreme Court to mean that in the case of direct
entrants, the date of appointment shall be the date of commencement of their
training course at Border Security Force Academy. The relevant portion of
the judgment in Rohitash Kumar & Ors. vs. Om Prakash Sharma & Ors.
(2013) 11 SCC 451, which is reproduced hereinbelow:
"32. The learned Single Judge dealt with the statutory
provisions contained in Rule 3 and held 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.(l) (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."
In light of the above, relief had been granted to respondent
no.1. The Division Bench concurred with the said
interpretation.
33. 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.
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By:MANJEET KAUR
Signing Date:26.03.2021
16:12:38
34. 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 Ist 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."
(emphasis supplied)
9. Further the judgment of N.R. Parmar (supra) has been subsequently
overruled in K. Meghachandra Singh & Ors. vs. Ningam Siro & Ors.,
(2020) 5 SCC 689 wherein, it has been held as under:
"38. At this stage, we must also emphasise that the Court
in N.R. Parmar need not have observed that the selected
candidate cannot be blamed for administrative delay and
the gap between initiation of process and appointment.
Such observation is fallacious inasmuch as none can be
identified as being a selected candidate on the date when
the process of recruitment had commenced. On that day,
a body of persons aspiring to be appointed to the
vacancy intended for direct recruits was not in existence.
The persons who might respond to an advertisement
cannot have any service-related rights, not to talk of
right to have their seniority counted from the date of the
advertisement. In other words, only on completion of the
process, the applicant morphs into a selected candidate
and, therefore, unnecessary observation was made
in N.R. Parmar to the effect that the selected candidate
cannot be blamed for the administrative delay. In the
same context, we may usefully refer to the ratio
in Shankarsan Dash v. Union of India, where it was held
that even upon empanelment, an appointee does not
acquire any right.
39. The judgment in N.R. Parmar relating to the Central
Government employees cannot in our opinion,
automatically apply to the Manipur State Police Officers,
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Signing Date:26.03.2021
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governed by the MPS Rules, 1965. We also feel that N.R.
Parmar had incorrectly distinguished the long-standing
seniority determination principles propounded in, inter
alia, Jagdish Ch. Patnaik, Suraj Parkash Gupta v. State
of J&K and Pawan Pratap Singh v. Reevan Singh. These
three judgments and several others with like enunciation
on the law for determination of seniority makes it
abundantly clear that under service jurisprudence,
seniority cannot be claimed from a date when the
incumbent is yet to be borne in the cadre. In our
considered opinion, the law on the issue is correctly
declared in Jagdish Ch. Patnaik and consequently we
disapprove the norms on assessment of inter se seniority,
suggested in N.R. Parmar. Accordingly, the decision
in N.R. Parmar is overruled. However, it is made clear
that this decision will not affect the inter se seniority
already based on N.R. Parmar and the same is protected.
This decision will apply prospectively except where
seniority is to be fixed under the relevant rules from the
date of vacancy/the date of advertisement."
(emphasis supplied)
10. Keeping in view the aforesaid, the present writ petition along with
pending application being bereft of merits is dismissed.
MANMOHAN, J
ASHA MENON, J
MARCH 24, 2021
Pkb/KA
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Digitally Signed
By:MANJEET KAUR
Signing Date:26.03.2021
16:12:38
