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11. Based on the aforesaid order, cases of BSF Law Cadre Officers, including the petitioner, were submitted to MHA for consideration for grant of NFFU in SAG level. Based on the recommendations of the Internal Screening Committee held at MHA/respondent no. 1 on 17.10.2019, financial upgradation in SAG (in pre revised grade pay Rs. 10,000) now pay matrix level 14, was recommended to be granted to four officers of the BSF Law Cadre, namely Sh KJS Bains, CLO/DIG, Sh. Vijay Singh Yadav, CLO/DIG, Sh Vijay Yadav, Additional CLO/DIG and the petitioner. These recommendations, which were based on the draft Recruitment Rules were approved by the respondent no. 1 on 25/28.10.2019 and consequently, vide order dated 01.11.2019, while Sh KJS Bains and Sh Vijay Singh Yadav were granted NFFU in SAG w.e.f 01.04.2014, the petitioner, along with Sh Vijay Yadav, was granted NFFU in SAG w.e.f 01.04.2015.

12. However, after about one year, i.e. on 02.12.2020, the respondent no. 1, based on the advice of the DoPT took a decision to withdraw the benefit of NFFU granted to all the four officers of the BSF Law Cadre, including the petitioner. Consequently, vide the impugned order dated 06.01.0201, the aforesaid three officers, along with the petitioner, were informed that the benefit of NFFU extended to them vide order dated 01.11.2019 was being withdrawn. As a result of this withdrawal order which was issued without any show cause notice to the petitioner, his salary was considerably reduced and recoveries were sought to be made for the amount paid to him towards NFFU w.e.f 01.04.2015.

14. In support of the petition, learned counsel for the petitioner submits that the impugned orders are liable to be set aside as the petitioner was granted NFFU only after he was found to be meeting all the eligibility criteria by the respondent's own Internal Screening Committee, the recommendations of which were also approved by the MHA/respondent no.

1. He submits that the respondents' act of unilaterally withdrawing benefits of NFFU from the petitioner, without even giving him any opportunity to show cause, is violative of principles of natural justice and, therefore, liable to be set aside on this ground alone. Further, the impugned decision for withdrawal of NFFU is also contrary to the various decisions of the Apex Court as also the DoPT's O.M.s dated 30.03.1988 and 06.07.2007, which categorically allow promotions even on draft Recruitment Rules. His plea being that once even promotions are permissible on the basis of draft Recruitment Rules, there is no reason as to why the benefit of NFFU, which is only in the nature of a financial upgradation, could not have been granted on the basis of these draft Rules framed on 01.10.2013.

28. Having given our thoughtful consideration to this issue, we are of the view, that it would be highly unfair to the petitioner to permit the respondents to withdraw this benefit which has already been granted to him after due deliberations by respondent no.1, the cadre controlling authority. It is not as if the petitioner, on 01.04.2015, when he was granted the benefit of NFFU, in accordance with DoPT's OM dated 24.04.2009 read with the O.M.s dated 15.12.2009 and 30.09.2019, did not meet the eligibility criteria prescribed in the notified Recruitment Rules, which as noted hereinabove were identical to the draft Recruitment Rules formulated on 01.10.2013. In fact, as noted hereinabove, during the pendency of the present petition, the petitioner has already been granted regular promotion as a CLO/IG on 12.05.2023. In these circumstances, we are of the view, that when the criteria for grant of upgradation under the NFFU was already clear, the petitioner could not have been penalized for the delay in notification of the Rules, which instead of being notified within a reasonable time were notified after more than 9 years from the date of formulation of the draft Rules and therefore, there is no justification for withdrawal of the NFFU granted to him as per law with reference to the pay scale of the post which stood created much prior to the date of grant of NFFU to him. In this regard, reference may be made to the following observations in Shailendra Singh (supra) as contained in para nos. 14 to 18: