AVINASH CHANDER SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this writ petition, the petitioner is seeking the interference of this Court for issuing a writ in the nature of Quo Warranto for directing the respondents to consider his case for promotion to the rank of Commandant in the Border Security Force (BSF ). Shorn of unnecessary details, his case is that he joined the BSF as Sub-Inspector (General Duty) on 29. 11. 1971 and was promoted to the rank of Assistant Commandant in the year 1989 and thence to the rank of Deputy Commandant in June, 1995 whereafter he took over the charge of Joint Assistant Director (G) at the F. H. Q. , C. G. O. Complex, New Delhi. From 1999 to 15. 4. 2004, he was transferred on deputation to the Intelligence Bureau (IB) under the Ministry of Home Affairs (MHA ). He has admittedly been awarded various rewards such as Police Medal for Meritorious Service, three D. G. 's Commendation Roles, three Commendations by the Joint Director, IB, two Commendations by the Joint Secretary in the Ministry of External Affairs for exemplary performance. In the year 2001, the recruitment rules was replaced by a new set of rules called the Border Security Force (General Duty Officers) Recruitment Rules, 2001 ("the Recruitment Rules" for short), which came into force on 30. 6. 2001 after its publication in the Gazette of India. Under the new rules, one of the eligibility criteria for promotion from the rank of Deputy Commandant to the rank of Second-in-Command is two years' service as Second-in-Command Duty Battalion. According to the petitioner, it was only in the year 2003 that his name came to be listed in the panel of eight officers in service in a duty Battalion for promotion to the rank of Second-in-Command. Though the petitioner was repatriated to the BSF on 15. 4. 2004 and rejoined the same on 2. 5. 2004 and had, therefore, became eligible for promotion to the post of Second-in-Command, his case was withheld, while his juniors were promoted. When he brought this anomaly to the notice of the respondent No. 1 on 11. 2. 2005, the respondent No. 2 was directed to promote the petitioner to the rank of Second-in-Command with retrospective effect from June, 2004 without financial benefit for the period between June, 2004 and June, 2006.

(2.) IT is the further case of the petitioner that despite such direction, his promotion order was issued only on 19. 6. 2006 by giving him notional seniority in the rank of Second-in-Command with effect from 29. 6. 2004, which delayed his promotion by two years. It is admitted by the petitioner that he did not fulfill the criteria relating to mandatory two years' service as Second-in-Command Duty Battalion, but he claims that he was not responsible for this deficiency and that this tenure shortfall came about due to the failure of the respondent authorities to consider his case for promotion in time. His representation dated 12. 10. 2006 to the respondent No. 1 for waiving the mandatory battalion tenure for two years in the post of Second-in-Command, was rejected by the letter dated 23. 7. 2007. It is contended by the petitioner that the refusal on the part of the respondents to count the period of his notional promotion with effect from June, 2004 for the purpose of promotion has rendered the entire exercise of granting him notional seniority an exercise in futility, thereby adversely affecting his promotional career vis-a-vis others. It is pointed out by the petitioner that while this anomaly was yet to be removed, his junior, namely, Shri I. R. Siddique, was promoted to the rank of Commandant. It is submitted by the petitioner that it is an established principle of service jurisprudence that the period of service rendered on deputation is to be treated as on duty in the parent cadre and the service condition of an employee cannot be construed in a manner disadvantageous to him. The petitioner has come to learn that the promotion process for the rank of Commandant has started, for which the Departmental Promotion Committee (DPC) is being constituted. He apprehends that the case of his juniors would again be considered for promotion without considering his case, that too, at the fag end of his career as he retires from service in the early part of 2008. In his additional affidavit, the petitioner has made an additional pleading that he has already undergone Senior Command Course in the year 2006 at the Border Security Force Academy, Tekanpur, Gwalior (M. P.), and was granted Grade 'c' Certificate with the observation that he is " (F) it to command a B. S. F. Bn. " Vide the Certificate dated 8. 10. 2006 issued by the Director of the Academy.

(3.) THE writ petition is resisted by the respondent authorities by filing their affidavit-in-opposition. From their affidavit-in-opposition, it is evident that the respondent authorities do not really join issue with the petitioner on the facts of the case. The stand taken by them, however, is that in terms of the new criteria laid down in the Recruitment Rules, two years' service in a duty Battalion in the post of Second-in-Command is a mandatory statutory requirement for becoming eligible for promotion to the rank of Commandant; the duties performed by the petitioner while on deputation with the IB cannot be construed as service rendered in a duty battalion or duty performed at National Security Guard (NSG)/special Protection Group (SPG) or in the UN Mission. According to the respondent authorities, the representation made by the petitioner to the MHA for waiving the mandatory duty battalion tenure for two years has been rejected at the highest level, and when such statutory requirement is not relaxed/waived by the Central Government, the petitioner is not eligible for promotion to the next higher post. It is pointed out by the answering respondents that the petitioner was given ample opportunity to rejoin the BSF from deputation for enabling him to complete the mandatory duty battalion tenure, but he did not do so. Since he was notionally promoted, he did not gain field experience and did not accordingly complete the duty battalion tenure in the capacity of Second-in-Command in the BSF. It is also the case of the respondent authorities that the BSF is a combat organization, and requisite provision has been made in the Recruitment Rules to the effect that every officer up to the level of Commandant has to serve in a duty Battalion for a period of two years to gain field experience and to undergo pre-promotional course before being considered for promotion to the higher rank. It is also pointed out by the answering respondents that the DPC for the vacancy year 2007-2008 has already been concluded, and no supplementary DPC for the vacancy year 2007-2008 would be held as contended by the petitioner. It is further pointed out by the respondent authorities that the next DPC for the vacancy year 2008-2009 will be conducted after 1st January, 2008, for which the petitioner would be eligible for consideration for promotion to the rank of Commandant. Contending that the writ petition has no merit, the respondents pray for dismissal of the same.