Delhi High Court
Shyam Lal vs Union Of India & Anr. on 16 November, 2015
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat, Deepa Sharma
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 16.11.2015
W.P.(C) 2020/2014
SHYAM LAL ...Petitioner
Through: Mr. G.S. Chauhan, Advocate.
Versus
UNION OF INDIA & ANR. ...Respondents
Through: Ms. Meera Bhatia, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA S. RAVINDRA BHAT, J % The petitioner has approached this Court under Article 226 of the Constitution of India for various directions. Principally, he seeks quashing of the impugned Office Memorandum dated 05.11.2013 which turned down his request for protection of seniority.
2. Briefly, the facts are that the petitioner joined the Indo Tibetan Border Police ("ITBP") as Head Constable in 1986; he was promoted subsequently as Subedar Major (Official Language) on 12.12.2005. In the normal course, the ITBP has elicited applications from its employees for deployment to the United Nations Mission at Congo in 2011. The petitioner was one among the serving employees who applied. He was selected by the concerned authorities and later deployed to the Mission on 29.08.2011. At the time when the petitioner was asked to join the Mission apparently an undertaking was obtained - based upon the ITBP's then understanding that W.P.(C) 2020/2014 Page 1 the petitioner would be "willing to proceed in UN Mission .......... in the present rank and on return from UN Mission Congo" would not claim seniority. The background for this was that the petitioner and other employees were at the time of their deployment eligible for consideration for promotion. In the petitioner's case, the promotion was to the post of Assistant Commandant. Further, admitted facts are that as a consequence of the petitioner's deployment, his name was not recommended for the pre- promotional course which every employee desirous of promotion is required to clear. Equally, when he did return, the petitioner availed the first opportunity and cleared the pre-promotional test in the very first available attempt eventually in 2012. He was later promoted as Assistant Commandant. He approached the ITBP requesting the enforcement of its Instructions containing in Standing Order No.1/92 dated 22.07.1992 and argued that since his absence was not on his own volition, the contingencies visualized in the said Standing Order applied and that he ought to be given due seniority from the date his juniors (in the rank of Subedar Major) were promoted as Assistant Commandant. This was turned down by the impugned order which reads as follows: -
"Please refer to your office letter No.9047 dated 26.08.2013 vide which application of Shri Shyam Lal, Assistant Commandant (Official Language) has been forwarded for protection of his seniority.
2. With reference to above it is informed that in the Departmental Promotion Committee held on 10.01.2012 for the promotion of Assistant Commandant (Official Language) in which above Officer was declared UNFIT for promotion because he has not qualified the requisite pre-promotional course as prescribed in the recruitment rules.
W.P.(C) 2020/2014 Page 2
3. It is also informed with above reference that before deployment in UN Mission, Congo above Officer has submitted an undertaking dated 04.08.2011 in which it has been declared that in case he is promoted during the deployment in UN Mission Congo he will not claim his seniority.
4. In view of the above facts the request made by the above Officer regarding seniority protection has not been acceded to by the Competent Authority. It is, therefore, requested that above Officer may be informed accordingly.
3. It is contended that the respondents could not have relied upon the so called undertaking which was unenforceable given that the Standing Order No.1/92 conferred the rights to the petitioner to claim seniority in case a junior was promoted. Learned counsel relies upon the MHA U.O.No.I-45024/14/2003-Pers-II dated 14.02.2005. The said Instructions/Memorandum issued by the MHA states that the CPF (Central Police Force) personnel deployed on UN Peace Keeping Mission would be treated as having worked on regular posting and not on deputation. The relevant extract from the said Circular is as follows: -
"3. The position about status of CPF personnel on UN deployment has been checked with DOP&T, who have opined that since the UN deployment is not to be treated as deputation, the question of proforma promotion will not arise.
4. It is, therefore, clarified that deployment of CPF personnel on UN Peace keeping missions may be treated as a regular posting and not as „deputation‟. Such personnel may be promoted on their turn, if otherwise, eligible, and allowed to take charge of the promotion post at the place of their deployment under the UN."
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4. The ITBP resists the claim in these proceedings and contend in its counter affidavit that the petitioner was not compelled to furnish the undertaking which he did and that his juniors were recommended for promotion since they fulfilled requisite criteria i.e. having cleared the pre- promotional course at the time when the petitioner in fact did not do so. The ITBP further points out that the four posts of Assistant Commandant were sanctioned on 17.02.2011 and the petitioner had departed for UN Mission on 29.08.2011. When the time for consideration of the eligible candidates took place, the ITBP decided to fill the newly sanctioned posts by one time relaxation. The petitioner was undoubtedly the senior-most but could not be promoted since (a) he did not fulfil the requisite criteria of having cleared the pre-promotional course and (b) he was on deputation.
5. As is evident from the discussion of facts, the petitioner was selected for deployment to the UN Mission. The Standing Order no.1/92 discusses various contingencies and situations according to the prevailing factual matrix where employees not present at the time their cases for promotion were to be considered had to be dealt with. The relevant extracts of the said Standing Order read as follows: -
"2. After a careful examination of the matter, it has been decided that seniority of such personnel who are otherwise eligible but could not be detailed on the requisite promotional Course or appear in the promotion test, due to their un-avoidable involvement in the under mentioned Force commitments will be protected, subject to the condition that they qualify in the concerned promotional course/promotion test in the first attempt. They will be allowed to claim their seniority from the dates on which their juniors are promoted. However, financial benefits will accrue to them only from the dates of taking over charge of the new posts.
W.P.(C) 2020/2014 Page 4
(a) Force level/international mountaineering expeditions including detailment as L.O. for Foreign Mountaineering Expeditions.
(b) Un-avoidable/un-foreseen/operational made scale deployment of the Force including during General Elections.
(c) West Zone Police Tournaments, All India Police Games, All India Police Duty Meet National/International Sports Meets.
(d) Postings/deployment at Indian missions abroad.
(e) Any other peculiar circumstances for which the matter will be decided on merits of the individual case at the Directorate General.
3. It will be ensured by all concerned that as far as possible, such seniority protection cases are kept to the minimum and all efforts are made to put eligible candidate through promotional courses in their turn. For deputation of personnel to ministry of External Affairs also, sincere endeavours should be made to see that to the extent possible no personnel who are required to undergo promotional Course in the near future are detailed for such duties."
6. In the present case, the petitioner went on UN Peace Keeping Mission on 29.08.2011 and returned the next year. A combined reading of the terms of Standing Order No.1/92 and the Circular dated 14.02.2005 are explicit. In that, it is stated that those sent on foreign posting or deployment of such kind would not suffer from any adverse consequence as regards promotion. In fact, the latter Circular of 2005 goes to the extent of stating that UN Peace Keeping Mission deployment would be treated as regular posting. In these circumstances, this Court is of the opinion that the ITBP could not have insisted that the undertaking furnished by the petitioner debarred him from claiming what is his rightful claim upon his clearing the pre-promotional course in the first available opportunity after W.P.(C) 2020/2014 Page 5 his return. In other words, the petitioner was entitled to be treated as senior to his juniors in the cadre of Subedar Major and who had been promoted as Assistant Commandant.
7. Consequently, the writ petitioner is entitled to succeed; a direction is accordingly issued to the ITBP to issue appropriate consequential orders and treat the petitioner as having been borne on the cadre of the Assistant Commandant from the date and time his juniors in the cadre of Subedar Major were actually promoted. It goes without saying that the fixation of pay and other consequential benefits such as increments would be only notional and actual payments would be made from the date the petitioner joined the post of Assistant Commandant. Such orders shall be passed within eight weeks from today. Furthermore, the petitioner's case for promotion shall be considered having regard to the seniority so worked out in accordance with the directions of this Court.
8. The writ petition is allowed in the above terms.
S. RAVINDRA BHAT (JUDGE) DEEPA SHARMA (JUDGE) NOVEMBER 16, 2015 /vikas/ W.P.(C) 2020/2014 Page 6