The Division Bench of the Delhi High Court in the case of Lalit Kumar Kain Commandant vs Director General & Anr. consisting of Justices Suresh Kumar Kait and Sudhir Kumar Jain, while observing that since the appellant must provide an opportunity of advancement to its employees via promotion, directed BSF to form a Cadre Review Committee for creation of IG and DIG posts in the Engineering setup.
Facts
The petitioner has been working as Commandant (Electrical) in BSF Engineering Wing since 2013 and performing the duties of DIG (Work) since 2021 till filing of the petition, and he preferred this petition challenging the order passed by respondent No.1, vide which an officer of the GD Branch was appointed as DIG (Works) in the BSF Engineering Setup. He claimed to have been promoted to the rank of Second-in-Command (Electrical) in 2010 which was challenged by the respondents, however, upheld by the Hon’ble Supreme Court; though he was promoted against a vacancy of the year 2011 instead of the vacancy of the year 2007-08, when the post of Second-in-Command (Electrical) was notified. By virtue of judgment passed by the Jodhpur High Court in a petition preferred by the petitioner, he was granted notional seniority in 2007. His promotion to the rank of Commandant (Electrical) was due in the year 2009, however, he was promoted in 2013 and since then, he has been working in the same rank without any further promotion. He claimed to have made representation in 2020 to the DG, BSF regarding his delayed promotion, but did not receive any response thereto.
Contentions Made
Petitioner: Union Home Secretary’s order of 2018 stipulated that the powers related to technical works shall be exercised by only technical officers appointed against the sanctioned post of engineering with requisite qualifications and experience. Petitioner is the senior most technical officer in the BSF Engineering Setup and is entitled to handle the functioning of DIG (Works) in Engineering Cadre. Other Central Arms Para Military Forces which are smaller than BSF, have already sanctioned such posts in Engineering Cadre. However, in contravention of letter by the Ministry of Home Affairs in 2018 and letter dated 28.06.2018 issued by the BSF, respondent No.1 issued a posting of DIG of General Duty Cadre, who is non-technical.
Respondent: Since the posting/ transfer of DIG (Works) from the General Cadre, was already in process, petitioner being the senior most Commandant of Engineering Setup at FHQ, was directed to temporarily look after the duties of DIG (Works), without any financial benefits till posting of regular incumbent. Order issued to the petitioner to look after the duties of DIG (Works) in Engineering Setup is already cancelled and regular DIG (Works) also assumed charge in May 2021. Mere fulfilment of minimum eligibility criteria does not give right to promotion to the Government servant.
Observations of the Court
The Bench did not find the contentions of the respondent to be acceptable as there was no plausible explanation as to why DIG (Works) in Engineering Setup was appointed from the General Duty Cadre, when the non-technical officers do not have such powers. Also, there was no explanation as to why the highest available rank in the Engineering Setup was Commandant, who can execute tenders only upto Rs.8.00 crores only, above which the permission of concerned department is to be obtained, when DIG (Works) can get the works executed upto Rs.15 crores.
It was accepted that only because an officer is efficiently handling a vacant seat or fulfils the eligibility criteria, will not entitle him to hold a permanent rank, but the Bench also concurred with the argument that non-availability of such rank leads to stagnation and lack of promotional avenues for the officers and if the “doctrine of necessity” is not allowed, it would lead to the benefit of officers of General Duty Cadre only.
Reliance was placed on Food Corporation of India v. Parashotam Das Bansal to observe that:
“The appellant is “State” within the meaning of Article 12 of the Constitution of India. An employee of a State although has no fundamental right of promotion, it has a right to be considered therefor. What is necessary is to provide an opportunity of advancement; promotion being a normal incidence of service…provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service…The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance.”
It was observed that if employees are denied an opportunity of promotion for long years on the ground that they fell within a category of employees excluded from promotional prospect, the superior court will have the jurisdiction to issue necessary direction.
Judgment
The Bench mentioned that the other forces smaller than BSF, have already sanctioned the same posts in Engineering Cadre. Hence, keeping all points in view, it directed the formation of a Cadre Review Committee who shall take a decision thereafter for creation of posts, after taking necessary approval from the concerned Ministry or any other department. The concerned department/ Ministry shall take decision on approval from the receipt of any communication from the Committee. Thereafter, BSF shall fill the posts so created and if the petitioner is the senior most eligible officer to hold the position of DIG (Works), as claimed, he shall be considered.
Case: Lalit Kumar Kain Commandant vs Director General & Anr.
Citation: W.P.(C) 5036/2021 & CM APPL. 15421/2021
Bench: Justice Suresh Kumar Kait, Justice Sudhir Kumar Jain
Decided on: 4th July 2022
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