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5. While the petitioner was serving at the Law Branch in Delhi, the Ministry of Personnel Public Grievances and Pensions, on 12.07.2019, issued an OM extending the benefits of NFFU to the Group "A" Executive Officers of the CAPF w.e.f. 01.01.2006. This benefit was to be extended in accordance with the conditions laid down in the OM dated 24.04.2009 issued by the Department of Personnel and Training (DoPT) as per which whenever an IAS officer of State or Joint Cadre was posted at the Centre to a particular grade carrying a specific Grade Pay in PB-3 & PB-4, officers belonging to batches of Organized Group "A" Services who were two years senior or more and had not been promoted to the higher grade, would be granted the same grade on non- functional basis (NFFU) from the date of posting of the IAS officer in that particular grade at the Centre.

7. It is the admitted case of the parties that the petitioner completed the qualifying period required for the grant of NFFU on 01.04.2017 and had duly completed the pre-promotional course i.e. Junior Command Course between December, 2016 to February, 2017. Further, he was in Medical Category Shape-I, but had not completed two years of MFS in a Duty Battalion as Deputy Commandant. Apprehending that he may be treated as ineligible for grant of NFFU for not having the requisite MFS as a Deputy Commandant, the petitioner submitted an application to the DG, BSF/ respondent no.2, seeking relaxation of the requirement of two years MFS in the rank of Deputy Commandant (Law) for promotion to the next higher rank and grant of NFFU. The petitioner's plea before the respondent no. 2 was that after his promotion as Deputy Commandant, he was, in public interest, retained in the Law Branch initially at the Punjab Frontier, Jalandhar and thereafter at the Frontier Headquarters, Gujarat and therefore, was not able to complete MFS of two years only on account of service exigencies and should therefore be granted relaxation in terms of Rule 12.

8. Upon consideration of the petitioner's application, the respondent no.2 vide his order dated 05.08.2021, granted the requisite relaxation to the petitioner in MFS in the rank of Deputy Commandant for all purposes including NFFU. On 03.08.2022, the respondent no.1 in accordance with the Ministry of Personnel Public Grievances and Pensions' OM dated 12.07.2019 considered the cases of all eligible Deputy Commandants for grant of NFFU which included not only the batch mates of the petitioner but also the persons who had been promoted as Deputy Commandant as late as in 2007. Upon finding that his name had been excluded from the list of selected candidates, the petitioner submitted a representation dated 09.09.2022, which remained unanswered, compelling him to approach this Court.

21. The writ petition is therefore allowed by directing the respondent no.1 to re-consider the petitioner's case for grant of NFFU in the JAG level w.e.f.01.04.2017 by taking into account the relaxation in MFS granted by respondent no. 2 on 05.10.2021. The petitioner's case for NFFU will be considered by examining the relevant promotion criteria as per Rules, he will, however, not be held ineligible for not having completed MFS of two years as Deputy Commandant. We direct that the exercise in terms of this order be carried out within eight weeks. In case the petitioner is found eligible for grant of NFFU, arrears in terms of this order will be released in his favour within four weeks thereafter. In case, the arrears are not paid within the time so granted, the same will bear interest @ 6% p.a. (REKHA PALLI) JUDGE (SHALINDER KAUR) JUDGE AUGUST 8, 2024 sr