Delhi High Court - Orders
Chandra Pal Singh And Ors vs Union Of India And Ors on 1 February, 2019
Author: S. Muralidhar
Bench: S.Muralidhar, Sanjeev Narula
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9693/2017 & CM APPL. 4959/2019
CHANDRA PAL SINGH AND ORS ..... Petitioner
Through: Mr. Naushad Alam and Mr. Jitendra
Bharti, Advocates.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr. Chiranjeev Kumar and
Mr. Mukesh Sachdeva, Advocates for
R-1 to R-3.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE SANJEEV NARULA
ORDER
% 01.02.2019
1. Seven Assistant Sub Inspectors, Radio Mechanic ['ASI (RM)'] in the Border Security Force (BSF) have filed this petition seeking the quashing of a seniority list of ASI (RM) dated 31st December 2016, in which they have been placed below the positions merited by them.
2. The Petitioners initially joined the BSF in the year 1986-87 sat for the Limited Departmental Competitive Examination (LDCE) for the post of ASI (RM). The admitted position is that all of them qualified in the said examination on 8th January 2000.
W.P.(C) 9693/2017 Page 1 of 63. The grievance of the Petitioners is that in the seniority list of ASI's (RM) which was drawn up on 31st December 2016, all these Petitioners have been shown junior to Respondent Nos. 2 to 57 who admittedly qualified as direct recruits in the post of ASI (RM) in 2002.
4. It must be mentioned at this stage is that although the private Respondent Nos. 2 to 57 have been served through Respondent No. 1, none have appeared to oppose the present petition.
5. In para 8 of the writ petition, it has been averred as under:
"8. Thus persons, whose date of promotion/qualifying the Gde- III Course in Batch No. 101 is subsequent to the date of promotion/qualifying the Gde-III Course of the petitioners in batch No. 96 are placed senior to the petitioners in contravention of the rules cited above. To the best of the knowledge of the petitioners person listed @ Seniority No. 380 of the 2016 Seniority List could not qualify the Gde-III Course in Batch No. 96, even than he has been placed above the petitioners in the seniority list and even he stands promoted."
6. A counter affidavit has been filed on behalf of the Respondents on 16th November 2018 wherein in reply to para 8, it is stated as under:
"8. That the contents of the para No.8 are wrong, hence denied. However, it is reiterated here that the date of seniority in respect of a direct entry ASI(RM) is from the date he is enrolled/joins the service and the date of seniority of a LDCE, ASI(RM) is from the date, he qualifies trade course followed by remustration order. The seniority of Respondent No.02 mentioned at Srl No.380 in the seniority list of 2015 has been rectified refixed and he has been placed at correct place and the copy of order dated 17 April 2018 regarding the same is annexed as Annexure-R-2."W.P.(C) 9693/2017 Page 2 of 6
7. Learned counsel for the Petitioner points out that while only Respondent No. 2's seniority position was at Sl. No. 380 has been rectified, the seniority of the remaining Respondent Nos. 3 to 57 is still higher than that of the Petitioners.
8. Annexed to the application CM 4959/2019 is the latest set of rules that govern the seniority position of ASI's (RM). Rule 8 of the Ministry of Human Affairs, Border Security Force, Radio Operator and Radio Mechanic Non Gazetted Cadre requirement Rules 2018 ('Rules') reads as under:
"8 (1) Persons holding a higher rank whether in an officiating or substantive capacity shall be senior to the person holding a lower rank.
(2) Seniority in any rank, shall be determined on the basis of continuous regular appointment in that rank:
Provided that the seniority of the personnel holding the same rank and on the same day shall be determined in accordance with the order of selection for appointment to that post.
(3) Subject to the provision of sub-rule (2), seniority in the entry grade post shall be determined in accordance with merit of their final examination of the Grade -III course from the date of qualifying such examination:
Provided that the persons selected for appointment in an earlier batch will be senior to those selected in subsequent batches.
(4) Inter-se-seniority of the incumbents on merger of Cipher trade with Radio Operator Stream and Fitter trade with Radio Mechanic stream will be fixed as per the following criteria :W.P.(C) 9693/2017 Page 3 of 6
(i) Seniority will be fixed in merged trades as per their date of promotion in present rank;
(ii) On merging of trades, junior will be placed below the senior of merged entity;
(iii) In instances where date of promotion in the present rank is same then date of promotion in immediate lower rank will be considered for fixing their seniority;
(iv) In case where date of promotion in lower rank is also same, then the date of promotion in next lower rank will be considered and if that is also same, then date of appointment in feeder grade of respective trade will be taken into account;
(v) Seniority of Head Constable (Radio Operator) and Head Constable (Ciphers) will be fixed as per their date of appointment as Head Constable/Naik (Radio Operators) because Head Constable (Cipher) have been remustered from Head Constable (Radio Operator) only and for the purpose of ACP/MACP their service is also being counted from their appointment as Head Constable (Radio Operators) or Nail (Radio Operators)."
9. Rue 8 (3) states that seniority in the entry grade post shall be determined "in accordance with merit of their final examination of Grade-III course from the date of qualifying such examination". The proviso further clarifies that a person selected for appointment in an earlier batch will be senior to those selected in subsequent batches.
10. Learned counsel for the Petitioner also referred to a message dated 27th July 2018 issued from the Head Quarters of the BSF to all Frontiers which inter alia states that seniority is determined according to the merit of the final examination of the Grade-III course "from the date of qualifying such W.P.(C) 9693/2017 Page 4 of 6 examination and not on the date of enrollment/appointment". The message further states that "further seniority be maintained according to the actual date of promotion not the charge assumption in each level".
11. Learned counsel for the Respondents is unable to dispute the fact that the present Petitioners qualified the Grade-III course on 8th January 2000 itself. The combined seniority list enclosed with CM No. 4959/2019 shows that there are several direct recruit ASIs (RM) who qualified in 2002 who have been placed above the Petitioners. Clearly, this is in contravention of Rule 8 (3) of the Rules which has been extracted herein before.
12. The trigger as far as CM No. 4959/2019 is concerned is that Respondent No. 1 proposes to hold a Departmental Promotion Committee (DPC) meeting for promotion of qualified ASI (RM) to the next higher post of Sub- Inspector (SI). It is pointed out that in this petition, if the error in the seniority list is not immediately rectified, it will enable those who are junior to the Petitioners to be considered for such promotion which would seriously prejudice the rights of these Petitioners and other similarly placed members of the BSF.
13. In that view of the matter, the Court has decided to advance the final hearing of the present writ petition today itself and having heard learned counsel for the parties is of the view that the impugned seniority list circulated by the Respondent No. 1 of ASI (RM) is erroneous to the extent that the present Petitioners have been shown junior to the direct recruits ASI (RM) i.e. Respondent Nos. 3 to 57 and that this is contrary to Rule 8 (3) of W.P.(C) 9693/2017 Page 5 of 6 the Rules. Consequently, a direction is issued to Respondent No. 1 to rectify the seniority list drawn up on 31st December 2016 by showing the present Petitioners, who qualified in the Grade-III course for promotion to ASI (RM) on 8th January 2000, senior to Respondent Nos. 3 to 57 i.e. the direct recruit ASI (RM) who admittedly qualified only in 2002.
14. The DPC proceedings for promotion to the post of SI will therefore be put on hold till such time the above rectification is carried out in the seniority list. The seniority list be rectified not later than right weeks today. Thereafter the DPC for promotion to the post of SI will proceed.
15. The petition along with the application are disposed of in the above terms.
16. The date already fixed i.e. 13th May 2019 stands cancelled.
17. Order dasti under the signature of the Court Master.
S. MURALIDHAR, J.
SANJEEV NARULA, J.
FEBRUARY 01, 2019 nk W.P.(C) 9693/2017 Page 6 of 6