Shilpi Chatterjee, 2Ic And Ors vs Union Of India And Ors
2022 Latest Caselaw 2033 Del

$~16
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Date of decision: July 07, 2022
+      W.P.(C) 3586/2022
       SHILPI CHATTERJEE, 2IC AND ORS.          ..... Petitioners
                     Through: Mr. Ankur Chhibber & Mr.Nikunj
                               Arora, Advocates

                          Versus

       UNION OF INDIA AND ORS.              ..... Respondents
                     Through: Mr. Harish Vaidyanthan Shankar,
                               CGSC with Mr.V.K.Singh,
                               Asst.Commandant (MIN), BSF

       CORAM:

       HON'BLE MR. JUSTICE SURESH KUMAR KAIT
       HON'BLE MR. JUSTICE SAURABH BANERJEE

                          J U D G M E N T (oral)

1. The present petition has been preferred by the petitioners for issuing a

writ of certiorari to the respondents to quash the orders dated 04.09.2020

and 13.05.2021, vide which representations of petitioners seeking to

convene Departmental Promotion Committee (DPC), has been rejected.

2. Pertinently, petitioners belong to the Engineering Cadre in BSF, who

claim to be eligible for promotion to the post of Commandant (Works) and

seek their promotion to the two vacant posts, rather than filling them up with

other Officers through deputation in terms of BSF (Engineering Officers)

Recruitment Rule, 2012 (henceforth referred to as the „Recruitment Rules of

2012‟). In addition, petitioners are also praying for issuance of a writ of

mandamus to the respondents to carry out necessary amendments in the

„Recruitment Rules of 2012‟ to the effect that post of Commandant (Works)

be filled on promotion in the larger interest of Engineering Cadre Officers of

the Force who have duly retained the residency period of 2IC (Works) as 2

years instead of existing 5 years for promotion to the rank of Commandant

(Works) i.e. for a direction to the respondents to relax Rule 11 of the

„Recruitment Rules of 2012‟ to consider the combined Group A and B

services of the petitioners for the purpose of promotion, instead of Group A

service only and thereafter, to fill the existing two vacancies of

Commandant (Works) in BSF on promotion basis instead of filling through

deputation, by convening DPC in respect of eligible officers.

3. Mr. Ankur Chhibber, learned counsel appearing on behalf of

petitioners submits that the petitioners had made representations to the

respondent-BSF to convene a DPC to fill up the two vacant posts of

Commandant (Works) by the eligible officers of Engineering Cadre in BSF

instead of officers belonging to other Organizations through deputation,

however, their representations have been rejected on the ground that as per

the „Recruitment Rules of 2012‟, total three (03) posts of Commandant

(Works) are authorized i.e. 33% by promotion and 66% by deputation

(including short term contract) and as such only one (01) post is authorized

in promotion quota, which is already filled up. In addition, respondent/BSF

has also reasoned that as per „Recruitment Rules of 2012‟, Five (05) years'

regular service in the grade of 2IC (Works) and minimum fifteen (15) years

of Group A service is required for promotion to the rank of Commandant

(Works).

4. Learned counsel for petitioners further submits that there are only

three posts of Commandant (Works), out of which two kept for deputation

are lying vacant since implementation of „Recruitment Rules of 2012‟ and no

cadre officer is being promoted, which has resulted in disparity with the

CAPFs and injustice with the Engineering Officers having rendered more

than 24 years of services to the Force.

5. During the course of hearing, learned counsel for petitioners has also

submitted that the proposal for amendment in „Recruitment Rules of 2012‟

by the Directorate General Border Security Force (Engineering Branch) on

behalf of respondent No.3, has been sent to the respondent No.1- Ministry of

Home Affairs (MHA), vide communication UO No. 122/02/2021/

Recruitment-ENGG/BSF/507 dated 09.02.2022.

6. Mr. Harish Vaidyanthan Shankar, learned Central Government

Standing Counsel, appearing on behalf of respondent No.1-MHA as well as

respondent No.3-BSF, on instructions submits that the proposed amendment

is under discussion and deliberation and the aforesaid proposal dated

09.02.2022 has not been received by the MHA.

7. Upon hearing learned counsel representing both the sides and perusal

of material placed before this Court, we find that the respondent -BSF vide

aforesaid communication UO No. 122/02/2021/Recruitment-ENGG/BSF/

507 dated 09.02.2022 has observed as under:-

"10. In order to mitigate the issues ad cope up with the works of Engg Dte, 02 posts (i.e. presently on deputation quota as per RRs 2012) of Codt. (Works) can be filled up immediately by the eligible feeder cadre officers and 01 post can be filled up w.e.f. 01.01.2023 i.e. after superannuation of Shri B S Sandhu, Comdt. (Works) subject to approval of the following suggested measures.

(i) Onetime relaxation for residency period w.e.f. RRs 2012 in favour of four 2IC (Works) namely Shri S C Das, Shri R K Shrivastava, Shri Satpal Singh and Smt. Shilpi Chhaterjee may be sought from MHA/DoP& T so that the posts of Commandant (Works) is not kept vacant w.e.f. 01-01-2023 after superannucation of Shri B S Sandhu, Comdt.(Works) for immediate remedy.

(ii) Amendment to the RRs-2012 for filling up the 02

posts of Commdt (Works) with feeder cadre instead of deputation quota for long ter solution."

8. We have also gone through another document placed before this Court, which is a Communication by respondent No.3- BSF to the respondent No.1-MHA, which reads as under:-

"सीमा सुरक्षा बल, महानदे शल्य अभियाां भिकी शाखा Sub: PROPOSAL FOR SEEKIGN ONE TIME EXEMPTION IN THE METHOD OF RECRUITMENT OF COMMANDANT (WORKS) AND RELAXATION IN RESIDENCY PERIOD OF 2IC (WORKS) FOR PROMOTION

Kindly refer your Uo No. 17/41/2020/Pers/BSF/6568-70 dated 02 Mar

2. In this regard, kind attention is drawn to para-10 of this Dte UoNo.507 dated 09.02.2022. it is reiterated that till the time, the existing RRs' of BSF Engineering Officers are amended, a case for temporary diversion of these two posts of Commandant (Works) by and Administrative order of MHA may be considered in the interest of functioning of Engg. Dte. There is already precedence of diverting the posts of DIG (GD Cadres) of other's quota to GD quota on functional requirement basis in BSF.

3. The amendment in existing RRs is time taking process and likely to take some time which is to be done by Pers Dte (Confd Sec) FHQ.

4. In view of above, it is once again requested to take up the matter with the MHA for temporary diversion of posts of Commandants meant for deputations be made available for incumbent 2IsC(Works) of BSF.

(एन एन डी दु बे) ऊप महाभनरीक्षक (कार्य )

Pers Dte (Pers Sec) बल मुख्यालर् सििुबल िं 0 122/02/RR/2021/ असि/ सििुबल/1781 28 मार्य 2022"

9. After going the afore-noted documents we find that the respondent

No.3-BSF has fairly conceded that the amendment in the existing

recruitment rules is time consuming and therefore, has proposed for

temporary diversion of posts of Commandants to eligible incumbents in

promotion quota. However, the said proposal is still pending. We find that

this stalemate status is not enuring to the benefit of anyone, much less the

respondents themselves as the seats are still lying vacant since long.

Moreover, due to inaction of respondents, great prejudice is caused to the

whole nation and the public at large not to say it is affecting the overall

career prospects of the petitioners and similarly situated employees with

respondent No.3-BSF.

10. We hereby direct the respondent No.3- BSF to take a final decision in

respect of communication UO No. 122/02/2021/Recruitment-ENGG/BSF

/507 dated 09.02.2022 within four weeks, failing which the respondents

shall be burdened with costs of Rs.50,000/- to be paid in favour of Delhi

High Court Legal Services Committee. The decision so taken be then send

to the respondent No.1-MHA within two weeks thereafter with information

in this regard to the petitioners. The respondent No.1- MHA is directed to

take final decision upon the amendment received from the respondent No.3-

BSF within four weeks of receipt of the same, failing which respondent

No.1 shall be burdened with cost of Rs.50,000/-. The decision so taken by

respondent No.1/UOI be also communicated to the petitioners within two

weeks.

11. We also make it clear that if the proposed amendments are in favour

of the petitioners, then the case of eligible petitioners be considered

accordingly. However, if petitioners are still aggrieved, they are at liberty to

challenge the same before appropriate authority.

12. With aforesaid directions, the present petition is accordingly disposed

of.

(SURESH KUMAR KAIT) JUDGE

(SAURABH BANERJEE) JUDGE

JULY 07, 2022 r