N.C. SUNDAR SINGH Vs. UOI AND ORS.

JUDGEMENT

(1.) IN this writ petition, directions are sought against the Border Security Force ("BSF") for the quashing of orders dated 27.04.2009 and 18.02.2010 by which the fourth respondent (hereafter referred to as "Toswara") was permanently absorbed in the Water Wing (of BSF). The petitioner complains that these orders are contrary to the BSF Water Wing Group 'A' (Technical Staff) Recruitment Rules, 2005, (hereafter called "the Rules").

(2.) THE brief facts are that the petitioner is currently functioning as Assistant Commandant in the Water Wing of the BSF. He was enrolled originally as Subedar (Workshop) on 16.12.1993. He holds a degree in engineering; he was promoted as Assistant Commandant (General Duty) on 22.07.2004. Toswara, on the other hand, was directly recruited by the BSF as Assistant Commandant w.e.f. 02.07.1993. He started functioning in the Water Wing from 07.07.2003. Before 2005, the BSF did not have separate Recruitment Rules for its Water Wing; its personnel were treated as part of the General Duty Cadre but in specialized units. When the Rules came into force, the provision was made by the BSF, to absorb officers serving in the Water Wing Unit/Cadre. That Rule - i.e., Rule 6 reads as follows: -

(3.) THE BSF does not dispute the essential facts. It, however, points out that Toswara was a direct recruit Assistant Commandant whereas the petitioner had joined the lower cadre of Subedar - albeit in the Water Wing Unit of the BSF. At that point of time, the Water Wing did not have a separate cadre and was a part of the General Duty Cadre. In these circumstances, the petitioner's claim, according to both BSF as well as Toswara - is unfounded. It is further pointed out that Toswara was under low medical category at the time when the question of his absorption was considered by the BSF. He could not consequently be recommended. This understanding itself was suspect because the requirement of an officer to be of SHAPE -1 is in fact not prescribed by the Rules for deputationist or for absorption but is applicable to promotees. Since Toswara was already an Assistant Commandant, this condition should not have been applied to him. The BSF relies upon the fixation of inter se seniority as between the petitioner and Toswara on the basis of the latter's initial entry into the cadre by relying upon the Central Government's Office Memorandum dated 29.05.1986. The relevant part of the Central Government's clarification in this regard is as follows: -