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Judgment
K. Ramamoorthy, J.—Mr. A.K. Gautam learned Counsel for the petitioner argued the matter with ability and skill being thorough on facts and law. He argued the matter for a considerable length of time. The case of the petitioner could be stated briefly in the following terms. The petitioner was directly recruited in the Border Security Force as an Assistant Commandant in the year 1966. In 1991 he was holding the post of Commandant Selection Grade. The gradiation list of Group A (GD) Officers as on 1.7.1996 issued by the Directorate General Border Security Force with reference to SG Comdt. is as follows :
s.No. IRLA Name SC/ST Status Date of birth D.O. AS Entry AC
SG COMDT
71 06147 M.L. chobery ECO 03.11.41 23.02.81 15.01.1963
72 00851 Ronald Alfred Vaz ECO 25.05.42 27.05.81 15.04.1963
73 06615 S.S. Badalia ECO 15.10.41 21.10.86 15.01.1963
74 09603 S.S. Kushwaha ECO 25.02.44 29.12.88 22.04.1963
75 09658 Arivind K. Vaishnaya ECO 07.04.42 02.02.89 22.04.1963
76 10824 Ram Sharan Tewari ECO 10.03.44 27.03.90 15.07.1963
77 10867 K.N. Menon ECO 10.12.42 27.06.90 15.07.1963
78 06697 Ram Phal Dabas ECO 01.11.42 27.06.90 15.01.1963
79 02716 P.C. Kaul ECO 04.06.42 17.08.90 15.04.1963
80 10362 J.V.S.Walia ECO 15.12.42 17.08.90 29.04.1963
81 10140 M.S. Rathore ECO 08.10.43 17.08.90 15.07.1963
82 10423 C.P. Ghildiyal ECO 14.03.42 17.08.90 15.07.1963
83 10265 Surinder Kr. Seth ECO 16.11.42 17.08.90 22.07.1963
84 08783 M.S. Bis ECO 09.08.42 17.08.90 22.07.1963
85 11909 R.N. Sharma ECO 20.06.44 17.08.90 14.10.1963
86 13697 B.N. Kabu ECO 27.03.43 01.05.90 20.01.1964
87 13730 S.S. Brar ECO 15.08.42 26.11.91 17.02.1964
88 13051 A.K. Sethi ECO 0.2.12.42 26.11.91 16.02.1964
89 13970 I.M. Mall ECO 10.02.43 26.11.91 20.07.1964
90 00684 A. Ranganathan DE 07.10.42 20.11.91 08.12.1966 DEP-I
91 00833 M.C. Mahapatra DE 01.09.43 26.11.91 12.12.1966 DEP-I
92 01522 Laxman Singh Bisht DE 15.01.42 26.11.91 08.12.1963
93 01540 S.C. Yadav DE 11.05.44 26.11.91 08.12.1963
94 02114 W.S. Elley DE 20.03.44 20.11.91 08.12.1963
95 00718 Ravipal Singh DE 01.01.42 26.11.91 01.03.1967
The services or respondents 4 to 6 could be given shortly in the following manner :
Sr. No. Name of the Officer Date of Impalement
Sh. Bhupinder Singh 24.06.1994 Respondent No.4
Shri A.S. Choudhary 03.08.1995 Respondent No.5
Shri K.K. Bhardwaj 03.08.1995 Respondent No.6
According to the learned Counsel for the petitioner Mr. Gautam, the order of promotion with reference to respondents 5 and 6 wore contrary to the rules and they had been made with a view to oblige and conferring largesse them and if respondent 6 had not been promoted in the way in which they have promoted the case of the petitioner could have been considered in the usual course and he would have been promoted as ADIG before his superannuation on 31.1.1997. The order of promotion for respondent No. 4 is in the following terms :
RX ST 4 TUS
RQ 1.3.195 12.28:37
NR/01/
DE BLA SRL NO. 015108
OP ZEQ APA
OP DT 282000
FM FSO BSF
TO: HQ ADDL. DG BSF J&K ALL FTR HQRs ALL SHQURS BSF INCLD ISD ALL TRG INSTNS/ALL STCS/STS-1/STS-II ALL BSF BNS ARTY REGTS BSF
DIG (HQ) FHO/HO/ARMY BSF - BY HAND
GR BO BT G/CR3262
FROM PERS (.) PROMOTION (.) FOLLOWING COMMANDANTS (SG) ARE APPOINTED AS ADDL DISC ON PROMOTION WITH EFFECT FROM 28 FEB. (.)
ONE (.) SHRI S.K. SINGHA IRLA 5500 (.) TWO (.) SHRI B.R. MANGU IRLA 6536 (.) THREE (.) SHRI J.S. BAKSHI IRLA 6192 FOUR (.) SHRI K.K. GUPTA IRLA 6624 (.) FIVE (.) SH. V.P.S. MURTHY IRLA 6554 (.) SIX (X.) SH. PHUPINDER SINGH IRLA 5404
THEY WILL CONTINUE AT THEIR PRESENT PLACESOF POSTING TILL FURTHER ORDERS (.) CHARGE ASSUMPTION REPORT BE SENTTO ALL CONCERNED IMMEDIATELY.
On 23.3.1995, the Additional Deputy Director (Personnel) wrote to the Deputy Director (Accounts) Pay and Accounts Division in the following terms :
Sub: Promotion of Commandant (SC) to the Rank of Additional Dy. Inspector General in BSF.
I am directed to convey sanction of the President to the appointment of following Commandants (Selection Grade) on promotion to the rank of Additional Deputy Inspector General on officiating basis with effect from 29.2.1995 or from the date of taking over charge, whichever is later :-
Sub: Promotion of Commandant (SC) to the Rank of Additional Dy. Inspector General in BSF.
I am directed to convey sanction of the President to the appointment of following Commandants (Selection Grade) on promotion to the rank of Additional Deputy Inspector General on officiating basis with effect from 29.2.1995 or from the date of taking over charge, whichever is later :-
S. No. IRLA No. Name 1. 6536 Shri B.R. Mangu 2. 6192 Shri J.S. Bakshi 3. 6624 Shri K.K. Gupta. 4. 6554 Shri V.P.S. Murthy 5. 5494 Shri Bhupinder Singh
They will draw their pay in the pay scale of Rs. 4500-150-5700 plus Special Pay of Rs. 200/- p.m. and other allowances as admissible from time to time.
Their posting orders have already been issued vide this HQ Signal No. R-3262 dated 28.10.1995 and R-3286 dated 14.3.1995.
The above promotions have the approval of Government of India, Ministry of Home Affairs, New Delhi, vide their UO No. A-13011 /3/94-Pers. III dated 27.9.1994.
Mr. Gautam learned Counsel for the petitioner submitted that para 4 above is a gross Miss presentation of facts. On 27.9.1997 the implementation was made and approval had not been obtained for promotion from the Ministry of Home Affairs and Therefore, the promotion of the 4th respondent was wholly void in law.
Mr. Gautam, the learned Counsel submitted that the promotion order was issued on 28.2.1985 on the date of retirement of the 4th respondent and in law when the order of promotion was passed the 4th respondent was not holding the post of Commandant.
The promotion order of the 5th respondent Mr. A.S. Choudhary was passed on 31.8.1995. The order reads as under :
TO10 25/08/95 00:02:39
NR V 01
OOOO DE BLA S/no 5390-91
OOOO DTO 311900
FM FHQ
TO ALL PRS/ALL SHQURS/ALL TRG INSTS/STS/STCS/ISU/ CENWOSTO/CSMT/ALL BNS/ARTY REGTS/DIG HQ FHQ/HQ ARTY BH.
GR 100 BT
UC NO R.3280
-------- From pers. Promotion/posting.
following Comdt. SG are appointed on promotion as Addl. DISC with effect FM 31 AUG and posted as under :
Sh. Samares Pakarasi IRLA 9696 FM 59 BN to FHQ AS ADD OPS.
Sh. Jagjit Singh Joura IRLA 9612 to continue at FHQ COMN DTE as ADD COMN.
Sh. A.S. Choudhary IRLA-13703 FM SHQ TA (N) to SHQ N & M AS Addl. DIG.
Offer at one and three above will assure charge on promotion in situ and there after move to new places of posting charged assumption report be sent to all concerned.
Here also the submission of Mr. Gautam was that the order was issued at 7.00 p.m. after the retirement of the 4th respondent as Commandant. On 20.9.1995, the Deputy Director (Personnel) wrote to the Deputy Director (Accounts) in the following terms :
"I am directed to convey sanction of the President to the appointment of following Commandants (Selection Grade) on promotion to the rank of Additional Deputy Inspector General on officiating basis with effect from 31.8.1995 or from the date of taking over charge, whichever is later :
S. No. IRLA No. Name
9697 Sh. Samares Pakarasi
9612 Sh. Jagjit Singh Joura
13703 Sh. A.S. Choudhary.
They will draw their pay in the pay scale of Rs. 4500-15-5700 plus Special Pay of Rs. 200/- p.m. and other allowances as admissible from time to time.
Their posting orders have already been issued vide this HQ Signal No. R-3280 dated 31.8.1995.
The above promotions have the approval of Government of India, Ministry of Home Affairs, New Delhi vide their UO ID No. 2337/95-Pers. III dated 28.8.1995.
Para 4 in the aforesaid letter was the subject of some comment by Mr. Gautam as on para 4 of the letter concerning the appointment of the 4th respondent.
The order of promotion of 6th respondent was issued on 30.10.1995 and 6th respondent was to retire on 31.10.1995. On 1.11.1995 the Deputy Director (Pers.) wrote to the Deputy Director (Accounts) about the appointment of 6th respondent on the same line as was with reference to respondents 4 and 5 and the letter reads as under :
I am directed to convey sanction of the President to the appointment of following Commandants (Selection grade) on promotion to the rank of Additional Deputy Inspector General on officiating basis with effect from 30.10.1995 or from the date of taking over charge, whichever is later :
S. No. IRLA No. Name
8394 Shri Lila Ram Rana
10751 Shri K.K. Bharadwaj
Mr. Gautam submitted that on the dates of promotion of respondents 4, 5 and 6, 20.2.1995, 31.8.1995 and 30.10.1995, there were no regular vacancies in the post of Additional DIG in the BSF. Mr. Gautam submitted that the petitioner came to know that the Departmental Promotion Committee had to consider promotion to the Rank of Addl. DIG in the month of June, 1996 and the DPC approved the names of officers up to Serial number 91 in the list shown above and Serial No. 91 is thus above the petitioner. According to the petitioner in June, 1996 if respondents 4 to 6 had not been there the petitioner would have been selected for promotion and he would have been promoted as Additional DIG. In para 20 of the petition it is stated by the petitioner as under :
That while issuing the impugned promotion order in respect of respondents 4, 5 and 6, 8 others officers (5 with respondents No. 4, 2 with respondent No. 5 and 1 with respondent No. 6) were promoted to the rank of Additional DIG on regular basis Along with respondents 4 to 6 against leave/ adhoc / temporary vacancy which promotions are also illegal. However, the petitioner is particularly aggrieved with the illegal promotions of respondents 4 to 6 as the same has adversely effected the promotion prospects of the petitioner. The 8 other officers promoted Along with respondents 4 to 6 who were also on the approved panel of Additional DIG during the year 1994 and 1995 and in any case all the 8 officers would have been lawfully promoted as Additional DIG in due course of time while still in service, hence their regular promotion against adhoc vacancy some time before it would have lawfully become due to them has not effected the promotion prospects of the petitioner because in any case they would have been promoted to the rank of Additional DIG well before their retirement. Furthermore it is apparent from all the three promotion orders impugned herein that the said 8 officers were promoted on regular basis against adhoc vacancy / leave vacancy only to accommodate respondents No. 4 & 5 and 6 and without promoting the 8 other officers it was not possible to grant illegal promotion to respondents 4, 5 and 6 as they happened to be in the approved panel of promotion and also senior to respondents 4, 5 and 6.
In the counter affidavit filed on behalf of respondents 1 to 3, as per Rule 9 of BSF (Seniority, Promotion and Superannuation of officers) Rules, 1978, the retirement age for the officers holding a rank higher than that of a Commandant is 58 years and for officers of the other rank it is 55 years.
In para 8, the respondents had referred to the facts culminating in the promotion of the 4th respondent in the following terms :
In reply to para 8 of the writ petition, it is submitted that as per provisions of manual on establishment and administration, whenever short term vacancies are caused by the regular incumbents proceedings on leave for 45 days or more, study leave, deputation etc. of less than one year duration, they may be filled by officers available on approved panel.
It is further submitted that exactly happened in the instant case. Some of the ADI proceeded on leave for 45 days due to which, short term vacancies existed in BSF. On receipt of information regarding proceeding on leave by Additional DISG at BSF HQRs, New Delhi, where seniority/promotion of all officers is maintained/ordered, short term vacancies were filled up by way of promotion the equal number of Commandant (SG) as Additional DIG who were on approved panel for promotion as Additional DISC including respondent No. 4, with effect from 28.2.1995. The respondent No. 4 was due for retirement after attaining the age of superannuation w.e.f. 28.2.1995 as Comdt. Since respondent No. 4 was promoted as Additional DIG before his retirement as Comdt. he can continue in service up to 58 years. No help was extended to respondent No. 4 in connection with his promotion as alleged. His promotion order was issued on 28.2.1995 through wireless message.
In para 9, the promotion with reference to 5th respondent is made in the following manner :
In reply to second para 9 of the writ petition it is submitted that similarly, Shri K.K. Bhardwaj, Comdt. was due for retirement on attaining the age of 55 years w.e.f. 31.10.1995. He was on approved panel for promotion as Additional DIG for the year 1995-96. Some Additional DISC proceeded on leave of 45 days or more due to which, short term vacancies were created in BSF. In order to fill up short term vacancies, respondent No. 6 was promoted as Additional DIG w.e.f. 30.10.1995. Consequent upon his promotion as Additional DIG, he can continue in service up to 58 years of age.
In para 15 the position is explained as follows :
In reply to para 15, it is submitted that the Department had not sent any Additional DISC on leave in order to create vacancies to promote the respondents No. 4 to 6 as alleged in this para. Rather, on receipt of information regarding proceeding on leave by Additional DISG the, short term vacancies created were filled up by promotion of respondents 4 to 6. The respondents No. 4 to 6 were promoted as ADIG before or on the age of 55 years. Since they got promotion to the rank of ADIG prior to their retirement, they can continue in service up to the age of 58 years as per Rule 9 of BSF (Seniority, Promotion and Superannuation of Officer) Rule, 1978. The position would have been different had they not been promoted as ADIG, thereby creating 3 more vacancies. Had these 3 more vacancies been available for the DPC held in June, 1996, the petitioner could have find a place in the panel.
In paras 20 and 21, it is stated as under :
In reply to para 20 of the writ petition it is submitted that 6 Commandant (SG) who were on approved panel, were also promoted as Additional DIG against the leave vacancies. It is incorrect and denied that the promotion of other officers was ordered to accommodate respondents 4, 5 and 6 as alleged. All the officers promoted as ADIG Along with respondent No. 4 to 6 were senior to the petitioner and were entitled for promotion as they were on the approved panel. No illegal promotion was given to them as alleged.
In reply to para 21 of the writ petition the respondent crave leave to refer submissions made in para 15 above.
Mr. Gautam learned Counsel for the petitioner referred to the judgment of the Supreme Court reported in State of Gujarat v. C.G. Raiyant, 1995 (1) SLR 353 wherein the Supreme Court load laid down the principle relating to counting of seniority.
"The length of continuous service in respect of both the services viz. State and Panchayat has been determined with reference to the continuous date of joining service on temporary establishment after regular appointment ignoring the earlier service rendered by them or work charged on temporary establishment prior to the selection/regular appointment."
The learned Counsel referred to Sukhdarshan Pal Sehgal v. Sate of Punjab and Ors., 1994 (2) SLJ 201 a judgment of the Division Bench of Punjab and Haryana High Court.
The learned Counsel referred to the judgment reported in Ratnlal G. Joshi v. Amreli Nagarpalika and Ors., 1996 (7) SLR 476 wherein the learned Single Judge of tine Punjab and Haryana High Court held :
The appointment of the petitioner was admittedly an ad hoc temporary against the leave vacancy. It is not the case of the petitioner that this appointment has been made by the respondent. Board after making selection and following the procedure laid down for making regular recruitment on the said post. It was the appointment which may be termed to be "backdoor entry". The petitioner was given, from time to time, temporary appointments against leave vacancies, may be on his own application. When the a appointment of the petitioner was itself bad, he has no right to get the appointment regularised which was made on ad hoc temporary basis without following any procedure of recruitment.
The learned Counsel referred to the judgment of the Supreme Court in State of U.P. and Ors. v. Smt. Gayatri Devi Pandey, 1996 (5) SC SLR 192 wherein the Supreme Court had adverted to the appointment on ad hoc basis. The learned Counsel relied upon para 7 of the judgment which is in the following terms :
Rule 6 contemplates that where the appointment is made, notwithstanding anything to the contrary contained in any other rule of orders, the PSC was entitled to appoint the candidates but as regards any person who was directly appointed on ad hoc basis before January 1, 1977, de hors the rules and is continuing in service, as such, on the date of commencement of the rules, namely, May 14, 1979, he is required to be regularised in accordance with the procedure prescribed in Rule 4 and appointment made under Rule 5 will be deemed to have been regular appointment according to Rule 6. It would, thereby, be clear that any ad hoc appointment made from the open market otherwise than according to the rules, is intended to be regulated under the rules. An in sender candidate who has already been holding a lien in a post but working in another department on ad hoc basis, cannot be considered to be a candidate appointed from the open market for the purpose of regularisation required under the rules. Therefore, the contention of Shri Upadhyay that she must be deemed to be regularly appointed on ad hoc basis is not tenable in law. It would be seen that after a short period of four months, she was also promoted as Vocational Guidance Counsellor. If it really is an appointment according to rules, it would be hardly necessary to emphasise that within four months thereafter would it be feasible to promote her on regular basis as Vocational Guidance Counsellor. It is already seen that the procedure for appointments and promotions in the Bureau of Psychology is different and distinct from the procedure of appointment and promotion in the general cadre. Smt. Gayatri Devi Pandey having come from L.T. Grade, to discharge the duty as Assistant Psychologist on ad hoc basis, cannot claim her status to be of regularly appointed, though on ad hoc basis, in the Psychology Department claiming the benefit under the rules.
The learned Counsel relied upon the judgment of the Division Bench of the High Court of Punjab and Haryana wherein the Division Bench had observed "any illegal appointment would cause public injury and Therefore the illegal appointment should be set aside.
The learned Counsel Mr. Gautam referred to a judgment of this Court reported in Hira Lal Sharma v. M.CD. and Anr., 1997 (3) SLR 2 wherein this Court issue writ of quo warranto on the facts and circumstances of that case. The Division Bench held "it was imperative for the respondent to have obtained the approval of the Union Public Service Commission before making the appointment and any appointment without approval is invalid". The ratio will not apply to the facts of this case.
The learned Counsel referred to judgment of the Supreme Court reported in Rajendra Roy Vs. Union of India (UOI) and Another, , wherein the Supreme Court had held "it may not be always possible to establish malice in fact in a straight cut manner. In an appropriate case, it is possible to draw reasonable inference of mala fide action from the pleadings and antecedent facts and circumstances "
The learned Counsel relied upon the judgment of the Supreme Court reported in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, . The Supreme Court had observed :
There is need to minimise the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however high placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complaisant presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be converted by the rule of law.
The learned Counsel also referred to the judgment of the Supreme Court reported in Common Cause A Registered Society Vs. Union of India and others, , wherein the Supreme Court had observed that if there are mala fide on the part of the public servant in discharge of their duties they should be held personally liable for such acts.
The learned Counsel relied upon the judgment of the Supreme Court in Radha Kishun v. Union of India and Ors., 1997 (2) SLR 418 wherein the Supreme Court had directed appropriate disciplinary action to be taken against all persons concerned for their dereliction of duty.
Learned Counsel submitted that the petitioner had retired on 31.10.1997 and he had lost the chances of promotion by illegal acts of respondents 1 to 3 and Therefore, appropriate direction should be issued to respondents 1 to 3 to give promotion to petitioner and nullify the promotion given to respondents 4 to 6.
The learned Counsel Mr. Gautam submitted in final that respondents 1 to 3 had acted in flagrant manner, violation of rules in promoting respondents 4 to 6 and if they had not been promoted on 28.5.1995, 31.8.1995 and 30.10.1995 respectively when DPC made in 1995 the case of the petitioner also would have been considered Along with other officers and he would have been promoted because he had been having very good record of service. Mr. Gautam learned Counsel submitted that the fact that the petitioner have been good record of service has not been disputed by respondents 1 to 3.
Learned Counsel for respondents 1 to 3 Mr. B.P. Aggarwal submitted that respondents 4 to 6 were appointed in accordance with the rules and regulations and the necessary approval from the Government of India had been considered. The petitioner had no focus standi to challenge respondents 4 to 6. The petitioner was not in the approved panel of 1994. The petitioner was considered in the DPC held on 21.6.1996 and he was included in the panel and he was put in Serial No. 15. Officers found in Serial Nos. 1 to 14 in the panel prepared pursuant to the DPC held on 21.6.1996 had been appointed. Therefore, the case of the petitioner that there had been no infirmity in the order passed by respondents 1 to 3 appointing respondents 4 to 6 cannot be sustained. Mr. Anil Gautam learned Counsel for the petitioner in his submissions in reply to the argument of Mr. B.P. Aggarwal, learned Counsel for the respondents submitted that the ad hoc promotion procedure had been ignored and when respondents 1 to 3 had not followed the rules and regulations relating to the ad hoc promotion of the appointment of respondents 4 to 6 cannot be sustained. Mr. Anil Gautam learned Counsel for the petitioner relied upon the judgment of this Court in Hira Lal Sharma v. M.CD and Anr., 1997 (3) SLR 429, wherein a Division Bench of this Court had set aside the appointment made by the Delhi Electricity Supply Undertaking to the post of General Manager. The ratio laid down in that case does not apply to the facts and circumstances of this case.
The respondents had shown that respondents 4 to 6 were appointed on ad hoc basis after getting approval from the concerned authorities and later on they were appointed on regular basis against the existing vacancies. The sum and substances of the arguments of Mr. Anil Gautam was that if respondents 1 to 3 had not resorted to accommodate respondents 4 to 6 by resorting illegal ad hoc promotion there would have been vacancies sufficient enough to enable the petitioner to get promotion in 1996.
For two reasons I am not able to accept the submissions made on behalf of the petitioner. First is that once respondents 1 to 3 had acted on administrative exigencies and they had acted after taking into account relevant considerations the order passed by respondents 1 to 3 cannot be annulled. The second is that it is not the case of the petitioner that respondents 4 to 6 were not included in the panel after considering their suitability by the Department Promotion Committee. The rules relating to the procedure to be''followed on ad hoc. promotion are to be followed under the circumstances stated in the regulation. But on the facts and circumstances of this case, having regard to the conspectus of the events, I am quite unable to see any force in the submissions of the Mr. Anil Gautam that there had been any violation of the regulations with reference to ad hoc promotion. The main thrust of Mr. Anil Gautam in trying to attack the promotion of respondents 4 to 6 was that the respondents 1 to 3 had not followed the law with reference to ad hoc promotion. As I have stated above that is not precisely the position on facts. Respondents 1 to 3 had acted taking into account the suitability of respondents 4 to 6 and they had acted reasonably and I do not find any irrationality or illegality in the promotion of respondents 4 to 6. The action of the respondents could be sustained on the ground of the doctrine of necessity initiated by the Supreme Court in Election Commission of India and another Vs. Dr. Subramanian Swamy and another, .
Accordingly, the writ petition stands dismissed. There shall be no order as to costs.