Delhi High Court
O.P. Sharma vs Union Of India & Anr. on 21 July, 2010
Author: Gita Mittal
Bench: Gita Mittal, J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.3752/1993
Date of Decision: 21st July, 2010
O.P. SHARMA ..... Petitioner
Through Mr. Anil Gautam, Adv.
versus
UNION OF INDIA & ANR. ..... Respondents
Through Ms Barkha Babbar, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether reporters of local papers may be allowed to
see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Yes
Digest?
GITA MITTAL, J (Oral)
1. By way of the present writ petition, the petitioner has assailed the action of the respondents in not considering him for promotion to the post of Assistant Commandant in the Departmental Promotion Committee (`DPC' hereafter) which had held proceedings in the years 1986, 1987 & 1988 and 1989.
2. The facts giving rise to the present petition are not disputed. It is an admitted position that the petitioner had joined the Border Security Force (`BSF' hereafter) as stenographer (Sub-Inspector) Grade III on the 1st September, 1966 and was confirmed in this position on 1st January, 1971. On 5th February, 1979, the petitioner was promoted to the post of Subedar (Inspector)(Steno). It appears that the petitioner was superseded in the matter of promotion to the next higher post and rank of Subedar Major (Personal Assistant).
3. The respondents, however, accepted the petitioner's representation and WP (C) No.3752/1993 Page No.1 of 8 appeal and an order dated 30th January, 1987 was passed retrospectively promoting the petitioner as Subedar Major w.e.f. 1st July, 1979 as a result.
4. A decision was taken in the year 1985 by the respondents to reserve 10% of the vacancies in the executive post of Assistant Commandants (Class I) in the Executive Cadre for appointment by promotion of the members of the combatised ministerial cadre of the Border Security Force. The remaining 50% vacancies were required to be filled up by direct recruitment. The amended recruitment rules which were framed in exercise of powers under Section 141 of the Border Security Force Act, 1968 were notified by the Ministry of Home Affairs vide notification dated 28th January, 1985.
5. The petitioner has claimed entitlement for promotion to the post of Assistant Commandant in the 10% vacancies which were so reserved for promotion of combatised Subedar in the ministerial cadre. In this regard, our attention is drawn to the Border Security Force (Assistant Commandants) Recruitment Rules, 1985. These rules provide that promotion to the extent of 10% of the vacant posts shall be from the category of combatised ministerial staff failing which the entire 50% would be from amongst General Duty Cadre. The rules also provide that in case of recruitment by promotion from combatised ministerial subedars in any trade relating to the Border Security Force was concerned, such an officer should have qualified an Integrated Combat Course (instead of Basic Training and the Platoon Weapons Course) and the Company Commander Course.
6. These rules came to be amended by a notification made on 17th March, 1985 and came to be known as the Border Security Force (Assistant Commandant) Recruitment Rules, 1986. These rules provided that the departmental candidates approved for promotion to the post of Assistant Commandant would have to qualify the Platoon Weapons Course and the WP (C) No.3752/1993 Page No.2 of 8 Company Commander Course within a period of one year from his appointment as the Assistant Commandant in addition to the Basic Training Course.
7. Before us there is no dispute at all to the eligibility of the petitioner for consideration for promotion to the post of Assistant Commandant in the year 1986. It appears that perhaps on account of the fact that the petitioner was given the benefit of retrospective appointment to the post of Subedar Major by the order dated 28th April, 1983, he was overlooked for consideration for appointment by the Departmental Promotion Committee which made recommendations in the year 1986. In this background, it is explained by the respondents that the petitioner's case was considered by a review DPC held on 30th October, 1986 but he could not be promoted for want of vacancy in the post of Assistant Commandant against the afore-noticed 10% quota at that time.
8. The petitioner is aggrieved by the further denial of consideration and promotion by the DPCs which made recommendations in 1987, 1988 & 1989. It appears that these DPCs did not recommend the petitioner's name in view of the unamended rule on the ground that the petitioner had not undertaken the Platoon Weapon Course prior to the consideration of his candidature for promotion to the post.
9. Learned counsel for the petitioner has drawn our attention to a judgment dated 7th November, 1995 passed by the High Court of Gauhati at the Agartala Bench in case being Civil Rule No.26 of 1988 (renumbered as CC.R. No.476/1995) entitled Shri K.V. Ravindran Vs. Union of India & Ors. wherein a similar challenge as raised by the petitioner had been raised. The court had accepted the plea of the petitioner and had directed the respondents to give him the benefits of promotion to the rank of Assistant WP (C) No.3752/1993 Page No.3 of 8 Commandant with effect from the date on which the promotion were made on the basis of the recommendations of the DPC which was made in the year 1987. The court had accepted the challenge to the decisoin of the Ministry of Home Affairs not to consider Inspectors (Ministerial Staff) for promotion to the post of Assistant Commandant until they passed the Company Commander Course for the reason that the same was contrary to the express provisions of the recruitment rules as amended by the Amendment Rules of 1986 by which the said qualification for passing the Company Commander Course was dispensed with. The court had also noticed that the amended recruitment rules stipulated that the candidates have to pass the Company Commander Course within a period of one year from the date of their appointment as Assistant Commandant. The judgment of the Gauhati High Court has noticed that the respondents had conducted the Departmental Promotion Committee on 30th June, 1987 which had made recommendations for promotion of Inspectors other than from the ministerial cadre in the afore-noticed circumstances. Para 7 of the judgment to the extent necessary for adjudication of the present case, reads as follows:-
"7. The first question which has to be determined in the Civil Rule is as to whether the petitioner who is the meanwhile has been promoted to the rank of Asst. Commandant should be allowed the benefits of his promotion with retrospective effect, and if so from which date although the petitioner has claimed that he should be promotion with effect from 1986, in view of the categorical stand taken in the affidavit-in-opposition that the petitioner was not within the zone of consideration in the year 1986, in my opinion, the petitioner cannot be given the benefit of promotion with retrospective effect with effect from October, 1986, Mr. Chakraborty made an effort in connivance the zone of consideration in June, 1986 by pointing out that in Annexure-2 to the writ petition dated 19.09.1986 he was asked to undergo integrated Company Commander Course for the purpose of promotion to the rank of Asst Commandant. But I find that the DPC which considered the promotions in the year 1986 met during 11th to 13th June, 1986 which was prior to the said message dated 19.09.1986 under which WP (C) No.3752/1993 Page No.4 of 8 the petitioner claims to have come into the zone of consideration for promotion to the rank of Asst. Commandant. As to whether the petitioner should be given retrospective effect from the year 1987, I find from a reading of the minutes of the DPC held in the year 1990 as well as the affidavit-in-opposition filed on behalf of the respondent No.1 & 2 that during the years 1987, 1988 and 1989 the DPC did not consider the case of any Inspector from the category of combatised ministerial staff for promotion to the rank of Asst. Commandant as required by Column-II of the schedule to the Recruitment Rules. The said Column II requires that promotions to the extent of 10% of the vacant posts in the rank of asst. Commandant are to be made from the said category of combatised ministerial staff to which the petitioner belonged. But unfortunately no one from the combatised ministerial staff was considered during the years 1987, 1988 & 1989 and the copy of the minutes of the DPC dated 27.02.1990 produced by Mr. Bhattacharjee before me indicates that all the vacancies during 1987 to 1989 that fell into the share of combatised ministerial staff on the basis of the said quota of 10 per cent as provided in the rules were filled up on the recommendations of the said DPC held on 27.02.1990. Further, a reading of said DPC held on 27.02.1990 indicates that the petitioner was graded as outstanding and was placed at serial No.1 in the recommendations of the DPC for promotion to the rank of Asst. Commandant. If this be the position, then had a DPC been held and the petitioner been considered in the year 1987 for promotion to the 10 per cent vacant posts of Asst. Commandant as per the quota in the Recruitment Rules, then the petitioner perhaps would have been promoted to the rank of Asst. Commandant with effect from 1987. I am further of the view that the decision of the Ministry of Home Affairs not to consider Inspectors (ministerial staff) for promotion to the rank of Asst. Commandant until they passed the company Commander Course was contrary to the express provisions of the Recruitment Rules as amended by Amendment Rules of 1986 by which the said qualification for passing the Company Commander Course was dispensed with and it was stipulated that candidates have to pass the said Company Commander Course within a period of one year from the date of their appointment as Asst. Commandant. The contention of Mr. Bhattacharjee that any direction given by this Court to promote the petitioner with effect from 1987 would unsettle the settle position, I am of the view that the petitioner has approached this Court as per back as in the year 1988 and there was no delay on his part of file the Writ Petition. Moreover, I am not inclined to quash the promotion of any of the respondents No.3 to 15 to the rank of Asst. Commandant and I am only inclined to WP (C) No.3752/1993 Page No.5 of 8 direct the respondents of give him the benefits of his promotion to the rank of Asst. Commandant with effect from the date on which promotions were made on the basis of the date on which promotions were made on the basis of recommendations of the DPC which met on 30.06.1987."
10. The judgment of the Guwahati high Court has noticed that the respondents had conducted the Departmental Promotion Committee on 30th June, 1987 which had made recommendations for promotion of inspectors other than from the ministerial cadre in the afore-noticed circumstances.
11. Mr. Anil Gautam, learned counsel for the petitioner has submitted that the respondents assailed the judgment of the learned single Judge by way of Writ Appeal no.68/1995 before the High Court of Gauhati which was also dismissed by an order dated 18th November, 1999. The Special Leave to Appeal (Civil) Petition No.8528/2000 entitled Union of India & Anr. Vs. K.V. Ravindran & Ors. filed by the respondents assailing the said two judgments was also dismissed by an order passed on 19th July, 2001.
12. Learned counsel for the petitioner has also placed before us a copy of an order dated 30th May, 2003 passed by the respondents effectuating and implementing the directions made by the Gauhati High Court in the afore- noticed judgment.
13. The position which subsists in the instant case is identical with the factual and legal situation which was before the Gauhati High Court. Before us also by an administrative instruction, the respondents have attempted to modify the rule position so far as making of promotion to the post of Assistant Commandant from the inspectors of the ministerial cadre is concerned. The respondents were bound by the stipulations contained in the amended rules of 1986 and could not have denied consideration for promotion to the petitioner who was Subedar Major from the ministerial cadre on the ground that he had not completed the Platoon Weapons Course. The petitioner was WP (C) No.3752/1993 Page No.6 of 8 entitled to the benefit under the said rule to complete the course within one year of his appointment to the post of Assistant Commandant.
So far as the rejection of promotion to the petitioner by the DPC of 1986 is concerned, no relief can be given to the petitioner at this stage. We find that there is no dispute to the eligibility or entitlement of relief to the petitioner. Therefore, so far as the consideration for the next three years is concerned, the petitioner is required to be given relief in view of the above discussion.
14. We are informed by learned counsel for the parties that during the pendency of the writ petition, the petitioner was promoted as Assistant Commandant in April, 1990 with the stipulation that he would undergo the requisite courses within one year of his promotion failing which he would be reverted. It is an admitted position that the petitioner completed the courses within the stipulated time. The petitioner is stated to have since superannuated in the year 2004.
15. In view of the above discussion, we are of the view that the petitioner would be entitled to the benefits which would accrue to him if he was promoted to the rank of Assistant Commandant with effect from the date on which the promotions were made on the basis of the recommendations of the DPC which had met in the year 1987.
Accordingly, we direct as follows:-
(i) The respondents shall consider the matter and make a direction granting all benefits of promotion to the petitioner to the rank of Assistant Commandant as if the same was effected from the date on which promotions were made on the basis of the recommendations of the DPC which met on 30th June, 1987.
(ii) The orders to this effect shall be passed within a period of three months WP (C) No.3752/1993 Page No.7 of 8 from today. The benefits which the petitioner shall be entitled shall be released positively within a further period of two months thereafter. The respondents shall forthwith communicate the orders which are passed to the petitioner.
Rule is made absolute in the above terms.
GITA MITTAL, J J.R. MIDHA, J JULY 21, 2010 aa WP (C) No.3752/1993 Page No.8 of 8