Delhi High Court - Orders
Gp Capt Tarun Saha, 20171-L F(P) vs Director General, Border Security ... on 20 October, 2022
Author: Sachin Datta
Bench: Sachin Datta
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CONT.CAS(C) 364/2020
GP CAPT TARUN SAHA, 20171-L F(P) ..... Petitioner
Through: Mr. S.C. Malhotra and Mr. Kunal
Kishore, Advocates with petitioner in
person.
versus
DIRECTOR GENERAL, BORDER SECURITY FORCE & ORS.
..... Respondents
Through: Mr. Ravi Prakash, CGSC with Mr.
Farman Ali, Mr. Manas Tripathi and
Ms. Usha Jamwal, Advocates along
with Mr. S.K. Nath, IPS IG (PERS)
BSF, Mr. M. Raja Logde Comdt.
BSF, Mr. Hemendra Singh, Dy.
Comdt, Law and Mr. Chitra Pal,
Comdt. AIR, BSF.
CORAM:
HON'BLE MR. JUSTICE SACHIN DATTA
ORDER
% 20.10.2022
1. Respondent no. 2 is personally present in Court today.
2. During the course of arguments, attention has been drawn to the counter affidavit filed on behalf of the respondents in these proceedings, wherein it has been stated as under:-
"2. That in reply to Para 3 of Contempt Petition it is submitted that contents of Para are wrong and hence denied, save and except which are matter of records. It is further submitted that after detailed examination, MHA was requested vide Pers Dte letter dated 25/10/2019 attached as Annexure -'A' to consider petitioner's application dated 30/06/2017 for further assessment and to conduct DSC in respect of petitioner Gp Capt (TS) Tarun Saha to absorb in Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:21.10.2022 18:43:49 the post of Capt/Pilot (DIG) in BSF Air Wing.
Accordingly, in reference to MHA letter dated 09/12/2019 attached as Annexure - 'B' and order dated 16/12/2019 attached as Annexure -'C' in respectful compliance to directions of Hon‟ble Delhi High Court, a duly constituted Departmental Screening Committee under the chairmanship of Special Secretary (IS) met on 17/12/2019 at MHA, to consider the application dated 30/06/2017 of Gp Capt (Time Scale) Tarun Saha, for appointment to the post of Captain/Pilot (DIG) in BSF Air Wing on Permanent absorption basis and drawn the DSC minutes.
Whereas, MHA vide UO No.CF-3476390/MHA/AW/P-
II/05/322 dated 19/03/2020, has conveyed the approval of Govt, on the recommendation of DSC rejecting candidature of Group Captain (Time Scale) Tarun Saha ( 20171)-L F(P) of IAF for appointment to the post of Capt/Pilot (DIG) in BSF Air Wing on Permanent Absorption basis, as under:-
"after going through the detailed instructions of the DoP&T, there is a provision that the officer who initially comes on deputation, may be permanently absorbed in the post/grade if recruitment rules prescribe for absorption as mode of recruitment. The Hon‟ble Court has not commented on this issue. Gp Capt (Time Scale) Tarun Saha was not on deputation in the post of Capt/Pilot (DIG) rather he was on deputation in lower post. Hence, DSC did not recommend the case of Gp Capt (Time Scale) Tarun Saha for direct absorption to the post of Capt/Pilot (DIG) post as he was not on deputation in that post rather he was on deputation at lower post."
This is issued in respectful compliance of the Hon‟ble Delhi High court order dated 12/09/2019 and out come of the DSC has been conveyed to Petitioner by issuing consequential order dated 15/05/2020 attached as Annexure-'D'."
3. In essence, non-compliance of the directions regarding consideration of the petitioner for absorption in the BSF as contained in the aforesaid judgment/order dated 12.09.2019, has been sought to be justified on account of the fact that the petitioner was not on deputation in the post of Capt/Pilot Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:21.10.2022 18:43:49 (DIG), rather he was on deputation at a lower post. It is noticed from the contents of the judgment/order dated 12.09.2019, that identical contention was raised by the respondents in the counter affidavit filed in W.P.(C) 10726/2018, and the same was also noticed in paragraphs 23 and 24 of the judgment/order dated 12.09.2019, which read as under:-
"23. In the counter-affidavit filed by the Respondents the stand taken is that the Petitioner submitted an application on 30th June, 2017 stating that he had been promoted from the rank of WC to the rank of GC on 14th June, 2015. Since he was promoted on TS basis and not on merit selection, the BSF took the stand that the Petitioner's request to jump two scales to hold a higher post in the BSF was not tenable. It is stated that his request to get absorbed in the rank of DIG, which is higher than the rank he is holding on deputation, was not tenable. According to the Respondents, the Petitioner did not meet the eligibility criteria in terms of the RRs.
24. The reasons given in the counter-affidavit for rejection of the Petitioner's candidature are as under:
"a) As per Recruitment Rules, the mode of filling up the post of Capt Pilot (DIG) is by Promotion failing which by deputation/absorption.
b) Further the clause for absorption in the rank of Capt Pilot (DIG) is "Deputation (Short Term Contract)/Absorption".
c) DoPT instructions indicate that, absorption and deputation are not synonymous and there is a substantial difference between deputation and absorption. The Officer, who will come on deputation, may be permanently absorbed in the post/grade if recruitment rules prescribe for absorption as mode of recruitment. Such absorption can be affected only in the case of Officers who are on deputation from the Central/State Government.
d) The Petitioner is on Deputation to the Post of Commandant (Pilot) in the pay matrix 13. While joining BSF, he was holding post of Wg Cdr in pay matrix 12 A of defence pay matrix and promoted to the post of Gp Capt (Time Scale) in pay matrix 13 and he has applied for absorption in higher post of pay matrix Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:21.10.2022 18:43:49 13 (A) for which is neither permissible nor he is eligible.
(e) The Officers of IAF are deputed to BSF by maintaining rank parity of Wg Cdrs to the post of Commandant (Pilot) and Gp Captain (select) to the post of DIG. Further, IAF has also highlighted that, they are sponsoring Wg Cdrs/Gp Captain (TS) rank Officers for the post of Comdt (Pilot) only.
f) There is no Official/formal communication from IAF regarding promotion/Charge Assumption in promoted post in respect of their Officer. Like in the instant case it only came to the notice, when the Officer applied for the post vide his application dated 30 Jun, 2017 that, he has been promoted as Gp Capt since 14 Jun, 2015 wherein also he did not mention that he is promoted on Time scale basis.
g) There is no instruction of DoPT for treatment of Commissioned service at par with Group 'A' service. In this regard on the issue of treatment of Commission service as Group 'A' service, the clarification of DOP&T in a case received through MHA is, "any post is to be filled as per existing Recruitment rules (RRs). The RRs provide 11 years group 'A' service for promotion therefore the same is required for promotion. DoP&T have not issued any Office Memorandum related to counting of service rendered in Defence Service for considering at par with Group „A‟ of Central Civil Service."
4. Despite the aforesaid contention raised by the respondents as recorded in paragraph 23 and 24 of the judgment dated 12.09.2019, the Division Bench finally directed as under:-
"39. For the aforementioned reasons, the Court finds no justification for the differential treatment in denying the Petitioner the post of Captain/Pilot (DIG) in the BSF Air Wing. Accordingly, the impugned orders dated 1st March, 2018 and 8th August, 2018 issued by the DIG (Pers.), BSF rejecting the candidature of the Petitioner for the post of DIG are hereby set aside. A direction is issued to the Respondents to consider the Petitioner's application dated 30th June, 2017 for absorption in the BSF against the available vacant post and issue the consequential orders not later than 4 weeks from today."Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:21.10.2022 18:43:49
5. As such, the justification which is sought to be given for non- consideration of the petitioner for absorption, appears to be in the face of the directions contained in the aforesaid judgment dated 12.09.2019.
6. At this stage, Mr. Ravi Prakash, learned standing counsel appearing on behalf of the respondents submits that the respondents will suitably apprise the Ministry of Home Affairs, and take all necessary steps to ensure that the directions contained in the judgment dated 12.09.2019 are complied with, latest within a period of four weeks from today, subject to their right to pursue the review petition that is stated to be pending before a Division Bench of this Court.
7. The said submission and assurance of learned standing counsel for the respondents, on instructions from respondent no. 2, who is present in person, is accepted.
8. Re-notify on 22nd November, 2022.
9. The personal appearance of respondent no. 2 is dispensed with for the next date of hearing.
SACHIN DATTA, J OCTOBER 20, 2022 AK Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:21.10.2022 18:43:49