Punjab-Haryana High Court
Arun Kumar Sharma vs Union Of India And Others on 18 November, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No.12317 of 2010
Date of decision: 18.11.2013
Arun Kumar Sharma
..... Petitioner(s)
Versus
Union of India and others
..... Respondent(s)
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.Vivek Singla, Advocate,
for the petitioner.
Mr.Ram Chander, Central Government Counsel,
for UOI
*****
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
RAJIV NARAIN RAINA, J.
This order will dispose of two connected petitions, i.e., CWP No.12317 of 2010 and COCP No.307 of 2011 as common questions of law and facts are involved therein. For the sake of convenience, the facts are taken from 12317 of 2010.
2. The petitioner joined service in the Border Security Force as SI/JE (Civil) on 1.8.1988. He was a diploma holder in Civil Engineering. The rules of service governing posts on the engineering side of the BSF at the time of recruitment were called Border Security Force, Engineering Cell (Class I & Class II posts) Recruitment Rules, 1975. He was promoted as Subedar/JE. The promotion was on general duty side. Later on, he was Kumar Paritosh 2013.11.21 14:31 I attest to the accuracy and integrity of this document CWP No.12317 of 2010 2 promoted as Assistant Commandant. It is his case that he never performed general duty but remained working on the engineering side. The 1975 rules laid down the method of recruitment to the post of Assistant Engineer (Civil) on the 50:50 ratio between promotion and by transfer/deputation. The Junior Engineers with 8 years service in the grade rendered after appointment on a regular post were entitled for promotion to the extent of 50% of the cadre posts of Assistant Engineer (Civil).
3. That when the petitioner was not promoted in the engineering side as AC/Assistant Engineer, he approached this Court by preferring CWP No.9362 of 2005 seeking directions from this Court to promote the petitioner towards engineering side on the post of AC/AE. The petition was disposed of on 13.10.2006 after notice to the BSF. The following directions were issued : -
"In view of the above mentioned fair stand taken by learned counsel for the respondents, this writ petition is disposed of with liberty to the petitioner to make a representation to the competent authority within one month from today for his promotion and absorption in the Engineering Department and if any such representation is made by him, the respondents are directed to consider the same in accordance with provisions of the Engineering Recruitment Rules 1975 read with the Division Bench Judgment of this Court in Rakesh Kumar Kanda and other's case (Supra). The needful shall be done by the competent authority within a period of three months from the date of receipt of the representation from the petitioner.
Disposed of."Kumar Paritosh 2013.11.21 14:31 I attest to the accuracy and integrity of this document CWP No.12317 of 2010 3
4. The petitioner was given liberty to make a representation for promotion and absorption in the Engineering Department and a direction was issued to the respondents to consider his case in accordance with the provisions of the Engineering Recruitment Rules, 1975 read with the Division Bench judgment of this Court in CWP No.15524 of 1997; Rakesh Kumar Kanda v. Union of India and others, decided on 19.12.2002. In Rakesh Kumar Kanda's case (supra), the Division Bench observed as under : -
"The petitioners ever since their induction into the service have rendered duties uninterruptedly in the Engineering Cadre of the Border Security Force as Junior Engineer (Civil). In such circumstances they are liable to be given the benefit of service rendered by them as Junior Engineer (Civil) including the right of onward promotion in terms of the 1975 Recruitment Rules. Since the petitioners have rendered more than 8 years of service as Junior Engineer (Civil) they are all eligible for consideration for promotion to the post of Assistant Engineer (Civil) under the aforesaid rules. The respondents are, therefore, directed to consider the claim of the petitioners for promotion to the post of Assistant Engineer (Civil) under the said rules."
5. When the representation remained undecided, the petitioner filed a contempt petition before this Court. A detailed order was passed in the contempt proceedings. This Court was informed that the petitioner has been absorbed in the Engineering Set Up as Inspector/JE (Civil) with effect from 6.1.2001 and has been given seniority accordingly. It was stated that there were 23 posts of AE (Civil)/ AC sanctioned in the BSF. Kumar Paritosh 2013.11.21 14:31 I attest to the accuracy and integrity of this document CWP No.12317 of 2010 4 Out of the said 23 posts, 75% are to be filled by promotion and 25% by direct recruitment in terms of the new rules promulgated and notified on 16.5.2000 called the Border Security Force (Engineering Officers) Recruitment Rules, 2000. It was these rules that laid down the quota now existing between promotion and direct recruitment in the ratio of 75%:25%. Promotion to the post from feeder cadre of Junior Engineer (Civil)/Inspector with 5 years regular service. This Court in the contempt matter found in the order dated 24.12.2008 that there were 13 persons senior to the petitioner in the feeder cadre and in the zone of consideration. No person junior to the petitioner had been promoted as AE (Civil)/AE. It was, however, observed that even though the final consideration for promotion had not been accorded in terms of the order passed in the writ petition, but the Court was not inclined to proceed further in the matter and dropped the proceedings. In signing off the order, this Court observed in order to bring clarity that as and when the remaining 8 posts of AE (Civil)/AC are to be filled up, the petitioner shall be granted effective consideration in accordance with the Engineering Recruitment Rules, 1975 as per the directions contained in the order of the learned Single Judge dated 13.10.2006 passed in CWP No.9362 of 2005.
6. On closure of the contempt proceedings, the competent authority considered and decided the representation of the petitioner and reverted the petitioner from Assistant Commandant (General Duty) to Inspector (General Duty) notionally with effect from 29.6.2006, the date on which the petitioner was promoted as Assistant Commandant (GD). It was clarified that the petitioner stood absorbed in the Engineering Set Up as Inspector/JE (Civil) with effect from 1.6.2001. It has been observed in the impugned order dated 25.6.2010 that the petitioner willingly accepted Kumar Paritosh 2013.11.21 14:31 I attest to the accuracy and integrity of this document CWP No.12317 of 2010 5 promotion to the post of AC (GD) with effect from 29.6.2006 but gave no option for absorption in the Engineering Set Up despite being reminded to do so. It was after the decision of this Court on 30.10.2006 in the petitioner's first writ petition that he was, thereafter, absorbed in the Engineering Set Up as Inspector/ JE (Civil) vide order dated 22.12.2008 with retrospective effect from 6.1.2001. It was held that right through the process of absorption of the petitioner, no one junior to the petitioner was appointed as Sub Inspector/JE (GD) and none of them held the higher post of Inspector/ JE (Civil). It has been explained that when the contempt petition was posted from 17.12.2008 to 24.12.2008, the order dated 22.12.2008 was passed reverting the petitioner without issuing formal show cause notice. It is stated that the post of AC(GD) is a Group-A post and as such, approval of the MHA, GOI being the appointing authority of Group-A officer was subsequently obtained for formal reversion from AC(GD) to Inspector (GD).
7. It is against the order of reversion that the petitioner has approached this Court praying that the impugned order be quashed. The grievance of the petitioner is that the vacancies prior to the coming into force of the rules of 2000 deserved to be filled on the principles that old rules should apply to old vacancies as laid down in Y.V. Rangaiah and ors. v. J. Sreenivasa Rao and ors. AIR 1983 SC 852 What appears to rub the petitioner the most is that the respondent BSF has not convened a departmental promotional committee meeting to consider the case of the petitioner only to deny him consideration for promotion to the post of AC/AE and therefore there has been breach of compliance of directions issued in the first writ petition and in the contempt proceedings that followed. His case had to be examined and considered strictly in the light Kumar Paritosh 2013.11.21 14:31 I attest to the accuracy and integrity of this document CWP No.12317 of 2010 6 of the 1975 rules because of the orders of this Court in which a direction was issued to consider his case in the terms of the RR, 1975. It is urged that the post of Inspector does not exist in the Engineering Rules, 1975. The old rules protected promotion from the post of SI/JE directly to AC/AE (Civil) and it is for this reason that the observations came in the order passed in the contempt proceedings. It is argued that once there is no post of Inspector/JE (Civil) in 1975 rules, the petitioner cannot be reverted to a post which did not exist under 1975 rules which governed the petitioner's services in the Engineering Department. Lastly, it is contended that the impugned order was passed without offering hearing to the petitioner or issuing to him a show cause notice to enable him to explain his case and therefore for this reason prejudice has been caused to him. There may be some thing to say in this last submission on the issue of breach of principles of natural justice but it appears to me inequitable to now direct, without entering into the merits of the case, that the due procedure from the point of reciept of show cause notice should be ordered and that too after more than 3 years have elapsed in the presence of the stand available in the written statement in response to the writ petition. Still further, this Court had by its first motion order stayed the operation of the impugned order dated 25.6.2010 with an interim direction that the petitioner shall be retained in the Engineering Wing. The stand of the petitioner has been refuted, and to the contrary it has been stated that the petitioner was appointed as Sub Inspector (General Duty) in the pay scale of ` 380-560 (pre-revised) under the 3rd Pay Commission w.e.f. 1.8.1988 and he was not appointed as SI/JE (Civil) as alleged by the petitioner. Whereas at the time of appointment of petitioner, JE (Civil) was the designation of the posts sanctioned in Engineering Set up and JEs Kumar Paritosh 2013.11.21 14:31 I attest to the accuracy and integrity of this document CWP No.12317 of 2010 7 (Civil) were appointed in the pay scale of ` 425-700 (3rd Pay Commission pre-revised). Further, the petitioner was permitted to work in Civil Engineering Set up of respondent B.S.F. against the transferred post of Sub Inspector (General Duty). By virtue of possessing technical qualification i.e. Diploma in Civil Engineering, services of the petitioner and similarly situated personnel of the Executive/GD Cadre were utilized in the Engineering Set up of B.S.F. to meet the emergent requirements of the force. However, having been appointed/considered in executive cadre throughout, he was governed by BSF (Subordinate Officers & Under Officers) Promotion and Seniority Rules, 1975 and revised Border Security Force General Duty (Non Gazetted) Recruitment Rules, 2002, for promotion and seniority purposes, instead of Recruitment Rules 1975 [Junior Engineering (Civil)] pertaining to Engineering Department. Therefore, petitioner cannot stake his claim based on the fact that he was appointed as SI/JE (Civil) in the pay scale of `380-560 with effect from 1.8.1988 as post of SI/JE (Civil) never existed in the pay scale of ` 380- 560 under the Rules. The equivalent post existing in Engineering Set up prior to 4th Pay Commission was JE (Civil) in the Pay scale of `425-700. The applicability of 1975 rules to the case of the petitioner has been denied and instead his services it is said can only be taken to be governed by BSF, SOs & UOs, Promotion and Seniority Rules, 1975 which now have been transformed into BSF, GD (Non Gazetted) Recruitment Rules, 2002. It has been stated that on petitioner's promotion as Assistant Commandant (GD), Group-A post, the petitioner stopped discharging duties for BSF in the Engineering Set Up. He then underwent mandatory courses in GD cadre which the executive cadre. It has been clarified that the petitioner was never enrolled as Junior Engineer (Civil) in the pay Kumar Paritosh 2013.11.21 14:31 I attest to the accuracy and integrity of this document CWP No.12317 of 2010 8 scale of ` 425-700, 3rd Pay Commission (Pre-revised) but was appointed as Sub Inspector (GD) in the lower scale of ` 380-560 (pre-revised, 1988). It was for the reason that the petitioner who held the technical qualification of Diploma in Civil Engineering that his services and those of similarly situated personnel of the executive cadre were utilized in the Engineering set up to meet emergent requirements of the force. It is further stated in the order that in the year 1975 when Recruitment Rules were notified, it had provision for 10 posts of JE (Civil) and 04 posts of AE (Civil). The petitioner was appointed on 01.08.1988. Before his entry into service, all posts of JE (Civil) were filled up and there was no vacancy in that cadre. Hence there was no question of his appointment to the post of SI/JE. He was appointed against the transferred post of SI/GD from Executive Cadre as SI/JE (GD) which had a lower pay scale than the pay scale of JE (Civil). 72 such posts were transferred and 72 personnel were appointed.
8. It is stated that the absorption order of the petitioner was passed on pain of contempt proceedings in view of the short time available to the Department to address peacefully and consciously on the issue of absorption of the petitioner. However, the order of absorption in the Engineering Set Up stands and the learned counsel for the UOI submits that that order stands and has to be given effect to. The petitioner is the only person from the Executive Cadre who has received the absorption order. It is stated that there are 13 officers who are senior to the petitioner and appointed under similar circumstances against post of SI/AE (GD) (Civil) and are yet to be absorbed in the Engineering Set up and promoted to the post of Assistant Engineer (Civil). It is stated that the seniority list of Engineering Set Up (Civil) is yet to be finalized as stated Kumar Paritosh 2013.11.21 14:31 I attest to the accuracy and integrity of this document CWP No.12317 of 2010 9 on the date of filing of the written statement. All these 13 personnel are eligible for promotion to the next rank of Assistant Engineer (Civil) after absorption accorded through orders passed by various High Courts but have not been promoted for want of sufficient available vacancies in that rank. An undertaking has been given that all the 14 personnel including the petitioner will be considered for the post of Assistant Engineer (Civil) now re-designated as Assistant Commandant (Works) as and when vacancies are available. It is pointed out that the BSF Engineering Cell (Class I and Class II posts) Recruitment Rules, 1975 are no longer operational in BSF as the BSF (Engineering Officers) Recruitment Rules were amended in 2000 and later on in 2007. The 2007 amendment was notified on 31.10.2007 and is currently operational and followed for all officers including that in the case of of Shri R.K. Handa, the petitioner before this Court in proceedings mentioned (supra). It is then averred as a universal fact that two recruitment rules governing the same cadre cannot be operational concurrently. After all, the petitioner was appointed as Sub Inspector (GD) in BSF and not on the post of Junior Engineer. It is the post of Junior Engineer which is the feeder post for promotion to the rank of Assistant Engineer (Civil) as per Recruitment Rules, 1975 and therefore the petitioner and his ilk are to be considered together for next promotion process under the 2000 rules as amended by rules 2007. The directions issued by Guwahati High Court at Shillong Bench in Writ Petition No.264 (SH) of 2004; Ganesh Kukreti and others v. Union of India decided on 21.10.2009 are to the following effect :-
"for all reasons aforesaid, this writ petition is disposed of with a direction to the respondents- authority to consider the prayer of the petitioner Kumar Paritosh for absorption in the Engineering Set up of the 2013.11.21 14:31 I attest to the accuracy and integrity of this document CWP No.12317 of 2010 10 department, if at all the petitioner still nurtured a desire to join the Engineering Department, subject to availability of vacancies, as per eligibility, in terms of Recruitment Rules. However, in doing so other similarly situated candidates, if any, may not be left out."
In view of these directions the respondents are bound to take a uniform decision but the petitioner is not entitled to promotion to the rank of Assistant Commandant (Works) through the DPC process over and above the claims of his 13 seniors.
9. It is averred in paragraph 13 of the writ petition with reference to the impugned order dated 25.6.2010 that the petitioner's reversion from AC (GD) to the post of Inspector (GD) with effect from 29.10.2006 in general stream consequent upon his absorption from the post of Inspector (GD) to Inspector/JE (Civil) with effect from 6.1.2001 in compliance of the order of this Court was as a result of the request of the petitioner made vide his representation dated 6.11.2006. Hence, the 1975 rules are not applicable in his case.
10. It has been explained that the rank of Inspector/JE was introduced in the BSF Engineering Set Up in the year 1992 being a promotional post for the feeder cadre post of SI/JE in BSF Engineering Set UP. The recruitment rules for the post of Inspector/JE were notified on 25.9.1996 as amended on 20.5.1999 which are in force till date for subordinate officers. Once these rules are in operation, BSF Engineering Cell (Class I & Class II) Recruitment Rules, 1975 cannot be relied upon. R.K. Handa too is governed by 2007 rules and not RR, 1975. Kumar Paritosh 2013.11.21 14:31 I attest to the accuracy and integrity of this document CWP No.12317 of 2010 11
11. Vide order dated 1.10.2013 this Court had asked the learned counsel for the petitioner to place the full text of 1975 rules and 2005 rules on record in photocopy. The same have been filed and have been annexed with CM No.15735 of 2013 and have been taken on record. The 1975 rules on which much stress has been laid do not contain provisions like the one found in the Andhra Pradesh rules considered by the Supreme Court in Y.V. Rangiah's case (supra). There is no mechanism for advance DPC for recommending the names through a select list to be operated in one year till the future vacancies are filled from the select list/final position. Therefore, I do not find any merit in the submission of Mr. Vivek Singla, Advocate, learned counsel appearing for the petitioner that the principles of law laid down in Y.V. Rangaiah's case (supra) should apply to the facts of this case and that even if such vacancies existed prior to the new rules the petitioner has a right to promotional post on that principle retroactively.
12. Heavy reliance is placed on the judgment of the Supreme Court in State of U.P. and others v. Mahesh Narain etc.; 2013 (4) SCC 169 by the petitioner. It was observed by the Supreme Court in this case as under : -
9. In order to ascertain the correctness of the orders passed by the High Court as also the Tribunal, we have carefully examined the contesting claims of the parties. In the process, we noticed that the respondents were initially promoted to the post of Senior Chemical Assistant in the year 1973 and were further promoted as Scientific Officer on 16.9.1985 which they joined on 20.9.1985. It is no doubt true that this promotion order indicated that the Kumar Paritosh 2013.11.21 14:31 I attest to the accuracy and integrity of this document CWP No.12317 of 2010 12 promotion was to remain effective only for a period of one year or until the rules of 1987 were published but thereafter when the Rules of 1987 were finally published, it provided that 25% post of the total posts of promotion were to be filled in from amongst the permanent Scientific Officers having experience of five years of service. Hence if the five years of service is counted from the date of initial promotion until publication of amended Rules of 1990, the respondents had already completed five years of service on the post of Scientific Officer making them eligible for further promotion of Assistant Director under the 25% promotion quota to be filled by the departmental candidates possessing the required experience of five years. However, the appellant/State of U.P. contested all through that the experience of the Respondents would be counted not from the date when the rules were published in the Gazette but would be from the date when the rules were under preparation in view of which they did not possess the requisite experience of five years on the post of Scientific Officer.
10. We however have no hesitation in holding that this contention is fit to be rejected outright as the rules cannot be held to be made effective from the date of its preparation but will attain legal sanctity and hence capable of enforcement only when the rules are made effective and the date on which it is to be made effective would obviously be the date when the rules are published vide the gazette notification. In that view of the matter, we find no infirmity in the Respondents plea that they possessed the Kumar Paritosh requisite experience of five years on the post of 2013.11.21 14:31 I attest to the accuracy and integrity of this document CWP No.12317 of 2010 13 Scientific Officer as they had already put in five years of service from the publication of the amended Rules of 1990 and, therefore, they were rightly held eligible for consideration of promotion to the next post of Assistant Director.
We are thus pleased to approve and uphold the view taken by the High Court on this count.
11. But even if we were to hold that the reasons assigned by the High Court in the impugned judgment suffered from some aberration since the respondents had joined on the post of Scientific Officer in the year 1989 due to which in 1990, they did not acquire the requisite experience, it cannot be overlooked that the respondents had been promoted on the post of Scientific Officers on 16.9.1985 on ad hoc basis which had to remain effective for a period of one year only but it had also ordered that the incumbent would be entitled to continue on the promoted post till the service rules of 1987 were published. Thus the respondents had a right to continue on the promoted posts when the Rules of 1987 were finally published and made effective in 1987 which earmarked that 25% of total posts were to be filled by promotion from amongst the permanent Scientific Officers having experience of five years of service and further added a proviso which laid down that:
"where permanent Scientific Officers are not available, such temporary and officiating personnel may also be considered for promotion to the said posts as may be permanent on the next lower post."
Kumar Paritosh2013.11.21 14:31 I attest to the accuracy and integrity of this document CWP No.12317 of 2010 14 Rules of 1987 were amended thereafter in the year 1990 which was published in the U.P. Government Gazette dated 20.10.1990 laying down that the subsequent promotion would be made only by direct recruitment. But this amendment cannot be allowed to affect the respondents' claim for promotion as a rule cannot work to the prejudice of an employee who was holding the post of his eligibility prior to the enactment and enforcement of the Amended Rules of 1990. Since the respondents were eligible and entitled to the promotion for the post of Scientific Officer in terms of the Rules of 1987, their experience could not have been ignored on the said post so as to deny them the benefit of consideration for the subsequent post of Assistant Director on the basis of Rules of 1990 which could be made effective for the vacancies which arose after 1990.
12. Learned counsel for the respondents in support of this position has also cited the authority of this Court in the matter of Nirmal Chandra Bhattachrjee & Ors. vs. Union of India & Ors. reported 1991 Supp. 2 SCC 363 wherein this Court observed as under:-
"No rule or order which is meant to benefit employees should normally be construed in such a manner as to work hardship and injustice specially when its operation is automatic and if any injustice arises then the primary duty of the courts is to resolve it in such a manner that it may avoid any loss to one without giving undue advantage to other".Kumar Paritosh 2013.11.21 14:31 I attest to the accuracy and integrity of this document CWP No.12317 of 2010 15
The Court further observed that the mistake or delay on the part of the department should not be permitted to recoil on the appellants, more so since, the restructuring order in the said case itself provided that vacancies existing on July 31, 1983 should be filled according to procedure which was in vogue before August 1, 1983. This Court therefore, restored the promotion order of the employees to which they were entitled prior to the change of service rules as it was held that the change of service rules cannot be made to the prejudice of an employee who was in service prior to the change. The Court further went on to hold that if the delay in promotion takes place at the instance of the employer, an employee cannot be made to suffer on account of intervening events.
13. The principle laid down in the aforesaid case aptly fits into the facts and circumstances of this case as the subsequent amendment of 1990 laying down to fill in all the posts of Assistant Director Forensic Science by direct recruitment could not have been applied in case of the respondents who were already holding the post of Scientific Officer and hence were eligible to the promoted quota of 25% posts of Assistant Director after completion of five years of service as Scientific Officers in terms of the Rules of 1987 and, therefore, their experience of five years on this post could not have been made to go waste on the ground that the amendment came into effect in 1990 making all the posts of Assistant Director to be filled in by direct recruitment. In support of this view, the counsel for the Respondents also relied on the decision Kumar Paritosh of this Court in the matter of B.L. Gupta & Anr. 2013.11.21 14:31 I attest to the accuracy and integrity of this document CWP No.12317 of 2010 16
vs. M.C.D. reported in (1998) 9 SCC 223 wherein this Court had held that any vacancy which arose after 1995 were to be filled up according to rules but the vacancies which arose prior to 1995 should have been filled up according to 1978 rules only.
13. The facts in the present case are entirely different. Mr. Ram Chander learned counsel appearing for the Central Government/BSF has explained that in the new rules, an intermediary post has been created which did not exist under the old rules and it is this really which has caused heart burn to the petitioner. If the petitioner has no demonstrable right based on the application of the principle of 'old vacancies, old rules', then he cannot legitimately complain of a change brought out by the introduction of statutory rules which may diminish chances of promotion, if not delay it. The petitioner was absorbed in the Engineering Set Up on his personal request. He was absorbed as an exception to the rule, arising out of orders passed in Court proceedings ending in a contempt petition with effect from a date after the new rules had come into force. Though his absorption is protected but no further undue benefit would be available to the petitioner except as what flows naturally from the new rules. The questions raised pointedly by the respondents in the context of rules were neither articulately projected nor debated when the petitioner's previous cases were decided by this Court. Those orders with great respect deserve to be seen in terms of the issues raised therein but not judicially settled so also references to the 1975 rules in the orders which remain the sheet anchor of the petitioner's case set up in the present proceedings. Kumar Paritosh 2013.11.21 14:31 I attest to the accuracy and integrity of this document CWP No.12317 of 2010 17
14. For the foregoing reasons, I do not find merit in this petition which fails and is dismissed. Rule in contempt petition is discharged. Both the petitions stand disposed of.
(RAJIV NARAIN RAINA)
November 18, 2013 JUDGE
Paritosh Kumar
Kumar Paritosh
2013.11.21 14:31
I attest to the accuracy and
integrity of this document