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13. Before the Tribunal the stand of the respondent was that the retrospective absorption of the petitioner was incorrect and, therefore, he could not be given seniority over others with effect from 28.10.1984. So far as the case of Shri R.C. Randhawa was concerned the stand of the respondent was that Shri R.C. Randhawa was earlier serving in the combatised ministerial cadre. He had opted for promotion in the Executive Cadre i.e. General Duties stream and had undergone all mandatory/pre-requisite courses in various BSF training institutions located in various parts of the country to earn promotion in the executive cadre against the 10% of vacancies meant for promotion of Subedar (Ministerial) as provided in the then notified recruitment rules for the post of Assistant Commandant (General Duties). Once he was promoted as Assistant Commandant (General Duties), upon his turn, he was further promoted to the rank of Deputy Commandant. The respondent further stated that the petitioner's case was considered in the light of the career graph of one, Shri Mohan Lal Sharma, the immediate junior to Shri R.C. Randhawa who was holding the post of SI (Clk) and was promoted to the rank of Inspector (Auditor) with effect from 3.11.1986 along with other SIs/Clerks including the petitioner. Due to the change in the cadre of Shri R.C. Randhawa on his promotion as Assistant Commandant (G.D.), Shri Mohan Lal Sharma was the next immediate junior to the petitioner in the combatised ministerial cadre. Therefore, the review DCP considered the case of the petitioner keeping in view the rank held by his immediate junior Shri Mohan Lal. Respondent submitted that the petitioner could not seek parity with Shri R.C. Randhawa as he had not opted to earn his promotion in the executive/combatised (GD) stream and had also not undergone any mandatory/pre-requisite courses as prescribed for the rank of Assistant Commandant (GD).

17. On the other hand, the respondents submit that the petitioner has been granted his due inasmuch as, he has been given all his promotions in the parent combatised ministerial cadre from the dates from which his junior Shri Mohan Lal was granted these promotions. The petitioner cannot seek parity with Shri Randhawa, since Shri Randhawa had successfully undergone various courses and then got selected in the Executive Cadre General Duty Stream in the rank of Assistant Commandant in the 10% reserved vacancies for the combatised ministerial cadre personnel.

18. We have given our thoughtful consideration to the rival submissions and have also gone through the three opinions of the Members of the Tribunal as also the record placed before us. It appears to us that the petitioner has been a victim of the various acts and omissions on the part of the respondents. Firstly, the petitioner was not reverted back to his parent cadre i.e. the combatised ministerial cadre in 1986, when his promotion to the post of Inspector became due, and he was continued to be retained in the PAD. He was thereafter absorbed on 11.8.1987, with effect from 28.10.1984. The respondents subsequently term the said retrospective absorption as being against the rules, and without a show cause notice to the petitioner sought to adversely affect his rights by changing the date of his absorption in the PAD to 11.8.1987 vide order dated 16.4.2000. This was in response to his agitation against his being superseded by a large number of SAs who were junior to him, having been appointed as SAs in December, 1984, as opposed to the petitioner's date of absorption i.e. 28.10.1984. The respondents also disregarded the ruling of the MHA/DOPT which gave two options to the respondents to remedy the legitimate grievance of the petitioner. The first was to grant him seniority w.e.f. 28.10.1984 in the PAD, and the other was to repatriate him to his parent cadre i.e. combatised ministerial cadre and to grant him the same position as being held by his immediate junior in the parent cadre viz. Shri Randhawa. The MHA/DOPT was conscious of the fact that in the meantime Shri Randhawa had changed his cadre from combatised ministerial to Executive-General Duty stream and for that purpose he had undergone various courses successfully. The MHA/DOPT therefore suggested that the respondents grant a reasonable opportunity to the petitioner to undertake the requisite courses. Though this ruling came in the year 1998, the respondents did not act on it, and instead sought to unilaterally, and without notice or hearing to the petitioner, revise his seniority/date of absorption from 28.10.1984 to 11.8.1987. This conduct of the respondents was clearly illegal and in gross violation of the principles of natural justice. We fail to understand how the petitioner's civil rights could be adversely affected without even giving him a notice and affording him a hearing. Not only that, even after the Tribunal passed the order dated 6.2.2002 directing the respondents to take a decision in two months time with regard to the repatriation of the petitioner and his placement at par with Shri Randhawa, who was then serving as Deputy Commandant in the Executive Cadre-General Duty Stream, the respondents did not pas any order till the fag end of the petitioner's career, and repatriated him to his parent cadre vide order dated 29.8.2002, when he was attaining the age of superannuation i.e. 57 years on 31.8.2002, which was the age of superannuation for the combatised ministerial cadre. These acts and omissions of the respondents repeatedly deprived the petitioner of the opportunity to undergo the necessary courses to be able to go over to the Executive Cadre-General Duty Stream like him immediate junior Shri Randhawa by competing for the 10% reserved quota for the personnel of the combatised ministerial cadre.

19. The majority view of the Tribunal that in his O.A. NO.263/2002, the petitioner did not question his repatriation in the parent cadre from the PAD, and therefore he could not be granted any relief qua his continuation in the PAD and refixation of his seniority in that Department appears to be correct since the petitioner had elected the remedy to get repatriated to his parent cadre and to seek parity with Shri Randhawa. The majority view of the Tribunal that the petitioner not having undergone the requisite courses, necessary for change of cadre from combatised ministerial cadre to the Executive Cadre-General Duty stream for selection to the post of Assistant Commandant (GD), he could not be treated at par with Shri Randhawa also appears to be correct. It is not that any Inspector of the combatised ministerial cadre could, at will, choose to change his tracks and go on to become an Assistant Commandant , in the General Duty Stream of the Executive cadre. For that the officer had to undergo the courses and clear the same. Only 10% of the posts of Assistant Commandant (GD) were reserved for the personnel of the combatised ministerial cadre. There was, therefore, an element of uncertainty, as to whether the petitioner would have got selected as an Assistant Commandant (GD) or not. Moreover, the fact remains that he neither underwent that course, nor served in the capacity of an Assistant Commandant (GD) or as Deputy Commandant. Therefore, the claim of the petitioner for parity with Shri Randhawa may not be entirely justified.