Ajeet Kumar vs Uoi And Ors

,,,,

REKHA PALLI, JÂ Â",,,,

The petitioner, a Deputy Commandant in the Border Security Force, has preferred the present writ petition seeking quashing of the order dated",,,,

28.04.2017, whereby his representation to treat his tenure from 15.09.2011 to 25.11.2011 at the Frontiers Headquarters (Personnel Directorate), DG",,,,

Secretariat and from 23.11.2011 to 01.04.2015 at the Frontier Headquarters (Provisional Directorate), New Delhi as mandatory field service, has been",,,,

rejected and consequently, he has been declared ineligible for promotion to the rank of Second-In-Command (hereinafter referred to as ""2IC"") for the",,,,

vacancy year 2016-2017. In the alternative, the petitioner seeks a direction to the respondents to relax the mandatory requirement of 2 years of",,,,

service in a duty battalion in his case, and thereafter consider him for promotion to the rank of 2IC w.e.f. 21.10.2016, the date on which his batch-",,,,

mates were promoted to the said rank. Furthermore, in the event of being promoted to the rank of 2IC, the petitioner also seeks grant of all",,,,

consequential benefits, if found fit for the same.",,,,

The facts as emerge from the record that are necessary for adjudicating the present petition are that the petitioner, having joined the BSF as an",,,,

Assistant Commandant on 30.09.2000, was initially posted to 59 Battalion, BSF in Jammu and Kashmir. Thereafter, the petitioner was transferred to",,,,

STC, BSF, North Bengal, where he joined his duty on 26.06.2007. It emerges that during his posting at STC, BSF, North Bengal, the petitioner was",,,,

promoted to the rank of Deputy Commandant on 01.02.2008 and he was to complete his normal tenure of 3 years on 01.02.2011, when he submitted a",,,,

request for being retained in the same STC for another period of one year. While seeking an extension of one year at STC, BSF, North Bengal, the",,,,

petitioner gave an undertaking inter alia that if his tenure was extended as requested, he would not make any claim in the event his empanelment in the",,,,

rank of 2IC was imperiled or delayed due to noncompletion of the mandatory service of two years in a duty battalion, as prescribed in the Recruitment",,,,

Rules. For the sake of ready reference, the relevant portion of the petitioner's aforesaid undertaking is being reproduced hereinbelow:-",,,,

“2. I am aware of the fact that two years service in a duty Bn as mandatory is essential eligibility criteria for promotion to the rank of Second in,,,,

Command as per notified recruitment Rules of Group „A‟ GD Officers.,,,,

In the event of my extension of one year tenure in STC BSF North Bengal and in the event of empanelment to the rank of 2IC being imperiled or,,,,

delayed due to noncompletion of mandated Bn tenure as prescribed in the RRs, I will not make any claim or hold the BSF liable for consequential",,,,

service and monetary loss as a sequel there to. The risk would be mine only. Further I am willing for one year extension in my tenure at this STC,,,,

NB.â€​,,,,

It transpires that the petitioner's aforementioned request for extension of tenure was not fully accepted and vide Signal dated 29.08.2011 itself, he",,,,

was directed to report to the Frontier Headquarter (Personnel Directorate), DG Secretariat before 15.09.2011 by way of attachment, whereafter, vide",,,,

Signal dated 14.10.2011, he was, posted to the same Frontier Headquarter (Personnel Directorate), DG Secretariat in public interest. However,",,,,

shortly thereafter, the petitioner's posting to Frontier Headquarter (Personnel Directorate), DG Secretariat was cancelled and vide Signal dated",,,,

23.11.2011, he was posted to Frontier Headquarter (Provisional Directorate), New Delhi as DC (Transport) again in public interest. Â",,,,

After completing 3 years of service at the Frontier Headquarter (Provisional Directorate), New Delhi, vide Signal dated 01.04.2015, the petitioner",,,,

was transferred to the Eastern Command for being posted to any of the units in the said Command. Accordingly, vide Signal dated 01.05.2015, the",,,,

petitioner was adjusted in 123 Battalion, BSF at Shillong. However, it appears that despite issuance of the said posting order, the petitioner was not",,,,

relieved from his duties at the Frontier Headquarter (Provisional Directorate), New Delhi and was finally relieved therefrom only on 30.03.2016,",,,,

whereafter he immediately reported to the 123 Battalion, BSF at Shillong on 31.03.2016. Â",,,,

It further transpires that after the petitioner had already been promoted as a Deputy Commandant, the High Court while dealing with a batch of writ",,,,

petitions entitled Ajay Suryavanshi & Ors. vs. Union of India & Ors. [WP(C) No.1611/2015], directed the respondent vide order dated 22.04.2015, to",,,,

carry out a cadre review in the BSF within a period of 6 months. In compliance with the said directions, the respondents carried out a cadre review",,,,

and issued an order dated 21.09.2016, whereby 264 posts of 2IC were created. The result thereof was that the petitioner, who in the normal course,",,,,

would not have been eligible for being considered for promotion to the rank of 2IC at that time, suddenly came within the zone of consideration for",,,,

promotion.,,,,

Apprehending that he may not be considered for promotion to the rank of 2IC along with his batch-mates because he had been posted at the,,,,

Frontier Headquarter, BSF only since the year 2011, the petitioner submitted a representation dated 08.10.2016 to the respondents to consider him as",,,,

eligible for promotion to the rank of 2IC on the ground that he was not at fault for not completing the mandatory field service and on his part, he had",,,,

carried out all the task assigned to him by the organization to the utmost satisfaction of his superior officers. Even though the petitioner’s,,,,

aforesaid representation was duly forwarded with recommendations made by both, the Deputy Inspector General, SHQ, BSF, Jowai and Inspector",,,,

General, HQ Meghalaya, FTR, BSF, SHG, he was not promoted to the aforesaid rank and the DPC declared him ineligible for promotion on the",,,,

ground of non-fulfillment of the mandatory duty battalion service, whereas his batch-mates, including some of his juniors, were promoted to the rank of",,,,

2IC w.e.f. 21.10.2016. Â,,,,

It may be noted here that the aforesaid requirement of two years of service in a duty battalion was introduced by the BSF, for the first time, by",,,,

virtue of the Border Security Force (General Duty Officers) Recruitment Rules, 2001. Aggrieved by the said requirements, some of the officers of the",,,,

BSF, who were unable to fulfill the condition of two years of service in a duty battalion on account of their being posted to static stations in public",,,,

interest, had approached this Court by way of W.P.(C) No. 21900/2005 entitled Ashok Kumar vs. UOI & Ors. The Court while noticing that there",,,,

was a sudden increase in the number of vacancies, observed that matters pertaining to transfer/posting are not in the hands of the concerned officer,",,,,

but is the prerogative of the department and, therefore the department has to ensure that it affords an opportunity to all its officers to become eligible",,,,

for promotion by serving in duty battalions. In view of the above, while allowing the said petition vide judgment dated 27.10.2009, the Division Bench",,,,

directed the respondents to consider the issue pertaining to promotion to the rank of 2IC by relaxing the aforementioned requirement in respect of,,,,

those officers who could not serve in a duty battalion on account of being posted in public interest to static stations.,,,,

The decision in the case of Ashok Kumar (supra) was followed by a judgment dated 02.08.2011 in the cases of S. Arul Raj vs. Union of India &,,,,

Ors. [W.P.(C) No.2266/2011] and judgment dated 27.09.2012, Chamman Singh vs. Union of India & Ors.[W.P.(C) No.8046/2011], wherein similar",,,,

directions were issued, after quashing the decision of the Central Government declining to relax the eligibility condition of service of two years in a",,,,

duty battalion. The Court was constrained to observe that the respondents had not only failed to act in accordance with the principles laid down in its,,,,

judgment dated 27.10.2009 in the case of Ashok Kumar (supra), but even their action in not remedying the manner in which they had acted, had",,,,

necessitated filing of unwarranted writ petitions.,,,,

Pursuant to the aforesaid observations of the Court, the petitioner’s representation, upon being duly recommended by the concerned DIG/IG,",,,,

was considered by a board of officers constituted by the Directorate General, BSF for examining requests of similarly situated officers seeking",,,,

(5),(6),(7),(8),(9)

SelectionÂ,"Not

applicableÂ","Not

applicableÂ",Not applicable,Not applicable

(12),(13),,,

Group         „A‟        Â

Departmental               Promotion

Committee for considering Promotion

(1) Director General             -

   Chairman

    Border Security Force

(2) Joint Secretary               Â

-Â Â Â Member

    Ministry of Home Affairs",Â,,,

 (12),(13),,,

Group         „A‟        Â

Departmental               Promotion

Committee for considering Promotion

(3) Director General             -

   Chairman

    Border Security Force

(4) Joint Secretary               Â

-Â Â Â Member

    Ministry of Home Affairs",Â,,,

Thus, the only question left for us to examine now is whether in the light of the aforesaid Rule position, as already examined in Ashok Kumar",,,,

(supra) and Chamman Singh (supra), would the petitioner, who admittedly does not fulfill the requisite field service, be entitled to relaxation so as to be",,,,

eligible for promotion to the post of 2IC.,,,,

Having considered the facts of the case as noted above, what emerges from the record is that the petitioner’s posting profile as a Deputy",,,,

Commandant shows that from 01.02.2008 to 15.09.2011, he was posted at the STC, BSF, North Bengal, which is a static station. Thereafter, he",,,,

was posted to the Frontier Headquarters, initially on attachment from 15.09.2011 and thereafter, by way of regular posting from 24.10.2011 to",,,,

30.03.2016, which posting was in public interest. It is only w.e.f. 30.03.2016 that the petitioner was relieved from the Frontiers Headquarters and",,,,

was, thus, able to join 123 Battalion, BSF at Shillong on 31.03.2016, even though his posting to 123 Battalion had been issued almost a year ago, on",,,,

01.04.2015. Â,,,,

The issue, thus, would be whether the petitioner can be faulted for not being able to complete the requisite period of service of one year in a duty",,,,

battalion during his 8 years of service as a Deputy Commandant or whether his non-postings to a duty battalion in those 8 long years is attributable to,,,,

the respondents.Â,,,,

The respondents, in their counter affidavit as also during arguments, have laid great emphasis on the fact that the petitioner had, while seeking a",,,,

one year extension of his tenure in the STC, BSF, North Bengal, given an undertaking on 23.02.2011, clearly stating that he will not hold the BSF liable",,,,

in case his empanelment to the rank of 2IC is delayed due to the non-completion of the mandated battalion tenure. They have therefore contended,,,,

that it is the petitioner himself who is to be blamed for not having completed the mandatory field service.Â,,,,

Having carefully examined the petitioner’s aforesaid undertaking, we are unable to comprehend how the same furthers the case of the",,,,

respondents or makes the petitioner ineligible for relaxation. The undertaking furnished by the petitioner was clearly conditional on his being granted,,,,

an extension of one year in the STC, BSF, North Bengal. Thus, the same could be held against him had he been permitted to remain at the STC,",,,,

BSF, North Bengal for a period of the year i.e. till 31.01.2012. However, he was retained there only till 15.09.2011. In view of the said fact position",,,,

the undertaking could not be used against the petitioner to deny him relaxation for the period beyond 15.09.2011, when the admitted facts clearly show",,,,

that all the petitioner’s postings were made in public interest and he had never made any request to cancel his posting, with the sole exception of",,,,

his request made in February, 2011 for retention in the STC, North Bengal for another year, which request was also turned down by the respondents",,,,

as he was transferred out from the STC, North Bengal within six months i.e. on 15.09.2011.Â",,,,

The respondents have failed to give any justification as to why after being promoted as a Deputy Commandant on 01.02.2008, the petitioner was",,,,

not posted to any duty battalion for 8 long years and why, even after issuance of his posting order for the Eastern Command and his consequential",,,,

posting on 01.04.2015 to the 123 Battalion, which is admittedly a duty battalion, he was relieved by the Frontier Headquarters, New Delhi only on",,,,

30.03.2016, i.e., after expiry of another year. These circumstances clearly show that it is the respondents, who are alone responsible for the petitioner",,,,

not being able to render service in any duty battalion from 01.02.2008 i.e. the date when he was promoted as a Deputy Commandant, till 31.03.2016",,,,

when for the first time he was posted to a duty battalion, i.e., 123 Battalion.",,,,

We have also considered the decision in the case of Ashok Kumar (supra) and find that the facts of the instant case are similar to those of the,,,,

petitioner’s in the aforementioned case. Like in the case of Ashok Kumar (supra), in the present case also there has admittedly been an",,,,

unprecedented increase in the number of vacancies of 2IC in June, 2016 and, therefore, the petitioner cannot be blamed for not protesting when he",,,,

was continuously being allocated static postings in public interest, instead of being posted to duty battalions so as to enable him to fulfill the eligibility",,,,

criteria for his next promotion. The record also shows that the board of officers which had been constituted to examine the cases of similarly placed,,,,

officers, had after carefully examining the petitioner’s case and the reasons for his nonposting to duty battalions, specifically recommended that he",,,,

was entitled to be granted relaxation, which recommendation was rejected by the IG (Personnel) on wholly untenable grounds.Â",,,,

In our considered view, once the petitioner had no say in his postings, the respondents were obliged to exercise the power of relaxation by keeping",,,,

in mind the fact that he was not posted to any duty battalion from 01.02.2008 till 01.04.2015, for no fault of his whereafter also, he was not relieved",,,,

from the Frontiers Headquarters till 30.03.2016. In these circumstances, we have no hesitation in holding that the petitioner could not complete the",,,,

mandatory period of service in a duty battalion solely on account of the respondents’ own orders and therefore, the rejection of the special",,,,

board’s recommendation for granting relaxation to the petitioner by the IG (Personnel) is erroneous and wholly unsustainable. Â,,,,

We are informed that the petitioner, upon being posted to the 123 Battalion on 31.03.2016, upon completion of one year in the aforesaid duty",,,,

battalion during the pendency of the present petition has now been promoted as 2IC w.e.f. 07.11.2017. Even though the petitioner now stands,,,,

promoted as 2IC, a direct consequence of the failure on the part of the respondents to promote him along with his batch-mates is that he has not only",,,,

been deprived of the salary of the rank of 2IC from 21.10.2016 till 07.11.2017, but he is also being treated as junior to his erstwhile batch-mates. Â",,,,

For all the aforesaid reasons, the decision of the respondents in declining to relax the eligibility condition of two years service in a duty battalion for",,,,

promotion of the petitioner to the post of 2IC as also the impugned order dated 28.04.2017 rejecting his representation are unsustainable and liable,,,,

to be quashed. Ordered accordingly.  The respondents are directed to reconsider the petitioner’s case after granting him the necessary,,,,

relaxation and pass appropriate orders, if he is otherwise found eligible for promotion to the rank of 2IC w.e.f. 21.10.2016 i.e. the date when officers",,,,

immediately junior to him were promoted. The respondents are further directed to grant the petitioner all the consequential benefits including,,,,

seniority, pay fixation etc. except actual arrears of pay. The aforesaid directions shall be implemented within a period of eight weeks.",,,,

The writ petition is allowed in the aforesaid terms while leaving the parties to bear their own costs.,,,,