CAPTAIN BINDU SETHI Vs. UOI

JUDGEMENT

(1.) THE instant writ petition has been preferred by the petitioner, Captain Bindu Sethi, invoking the writ jurisdiction of this Court for a writ, of mandamus directing respondent Nos. 1 to 4 to consider his case for promotion to the rank of Sr. Pilot and if found fit, to grant him promotion w.e.f. 1.1.2009 with all consequential benefits. The petitioner also seeks quashing of the show cause notice dated 2.6.2009.

(2.) BEFORE we examine the legitimacy of the petitioner's claim, it would be necessary to give brief summary of the facts of the case and also the various directions given by this Court from time to time. The petitioner who was earlier serving in the Indian Army had joined the BSF Air Wing in the year 1992. The petitioner was promoted as a Co -Pilot on 24.3.1995 after he had successfully completed 1000 hours of flying experience. Due to his continuous outstanding performance, he was endorsed as Captain on B -200 (Super King Aircraft) by the Director General of Civil Aviation in the year 1997 and thereafter, he was directly given the Airline Transport Pilot Licence (ATPL). On 26.9.2001, the petitioner was promoted as a Captain/Pilot and after having completed 4 years of regular service as a Captain, on 26.9.2005 he became eligible for being considered for promotion to the next higher rank of Senior Captain. As per the case of the petitioner, he fulfilled all the eligibility conditions for his promotion to the rank of Senior Captain but due to extraneous reasons, he was denied promotion to the said rank. It is also the case of the petitioner that he had completed 1000 hours Pilot -in -Command (PIC) on BSF type of Aircraft and had also completed 4100 hours on BSF type of Multi Engine Aircraft as a Co -Pilot (50% of hours as a Co -Pilot is to be treated as PIC hours as per the DGCA Guidelines). The petitioner made several representations dated 25.10.2005, 19.6.2007, 14.2.2008 and 27.10.2008 and in the said representations, he had clearly pointed out that despite he fulfilling the requisite qualifications, no action was being taken to fill the post of Senior Captain from the feeder cadre, as required under the Recruitment Rules. It is also the case of the petitioner that pursuant to the representations made by him, a clarification was sought by the Director General, Border Security Force, respondent No. 5 herein, from the office of the Director General of Civil Aviation, respondent No. 3 herein, regarding the flying hours of the petitioner and in reply thereto respondent No. 3, vide its letter dated 31.12.2008, categorically stated that the petitioner was fully eligible for promotion as per the Recruitment Rules since 50% of flying done by the petitioner as Co -Pilot under supervision could be counted as PIC experience. It is also the case of the petitioner that regardless of the said clarification given by the Office of the Director General of Civil Aviation, no action was taken by the respondents to promote the petitioner, owing to which the petitioner once again made further representations dated 14.10.2009 and 9.11.2009. It is also the case of the petitioner that based on the representations of the petitioner, respondent No. 2 i.e. Director General, BSF, took up the matter with the Home Ministry, respondent No. 1 herein, for considering the case of the petitioner for promotion but instead of acceding to the request of the petitioner, respondent No. 1 acted in utter violation of the Recruitment Rules and took a stand that the post of Senior Captain which fell vacant on the retirement of AVM R. Khurana, IG (Air) was meant to be filled by persons on deputation from the Indian Air Force. It is also the case of the petitioner that with a view to further victimise the petitioner, a show cause notice dated 2nd June, 2010 was issued to him by the Director General, BSF, on a very inconsequential issue, against which a separate reply dated 7.7.2010 was filed by the petitioner. It is also the case of the petitioner that vide order dated 3rd June, 2010, respondent No. 1 had rejected the case of the petitioner by taking an entirely erroneous stand that the petitioner did not possess the minimum qualification of 2000 hours of flying experience as Pilot -in -Command on a Multi Engine Aircraft as on 1.1.2010 and therefore, was not considered eligible for promotion to the rank of Senior Captain against the vacancy for the year 2010 -11. Feeling aggrieved by the said decision of the respondent No. 1 and the show cause notice dated 02.06.10 issued by the Ministry of Home Affairs, Government of India, Directorate General Border Security Force, the petitioner preferred the present writ petition on 20.07.2010. In the counter affidavit filed by the respondent No.2, the main stand taken by them is that the petitioner lacked the prescribed flying experience of a minimum 2000 hours as Pilot -in -Command on a Multi Engine Aircraft as on 1.1.2010 and therefore, the post of Senior Captain was filled up by appointing an eligible candidate on deputation basis. Respondent No. 1 also took a stand that the case of the petitioner was taken up by respondent No. 2 with respondent No.1 on the basis of the opinion of the Director General of Civil Aviation but the same was rejected by respondent No. 1 in the light of the laid down Recruitment Rule of completing the minimum 2000 flying hours as PIC on Multi Engine Aircraft, which the petitioner lacked. It is also the case of the respondents that with a view to meet the functional requirements of maintaining a large fleet of helicopters, one post of Senior Captain was transferred from fixed wing to rotary wing in BSF Air Wing vide MHA UO dated 26.2.2010 and the decision of respondent No.1 was accordingly based on the statutory provisions of hours and also keeping in view the operational requirements. It is also the case of the respondents that the provision of deputation was introduced as a one time measure to fill up the vacancy that arose w.e.f. 1.4.2010 consequent to the retirement of AVM R. Khanna IG (Air) and in so far as the case of the petitioner was concerned, he lost his right of promotion to the rank of Senior Captain only because he could not fulfil the prescribed flying hours and not for any other reason.

(3.) MR . Sanjeev Narula, the learned Central Government Standing Counsel appearing for the respondents, at the outset submits that the petitioner has already been promoted to the rank of Senior Captain (IG), BSF w.e.f. 19.02.2014 against a vacancy for the year 2011 -2012.