Praveen Rathore @APPELLANT@Hash Union of India

This writ petition has been filed by the petitioner seeking a direction to the respondents to re-fix seniority of the petitioner above the remaining private

respondent Nos. 3 to 5 and also qua one late Sh. D.K. Bhudliya. Further reliefs have been sought that the date of commencement of training can

only be the date of appointment and a direction to the respondents to re-fix the seniority in accordance with the Rules.

Though the petitioner has also claimed that the provisions occurring in Clause (ii) of Sub Rule 3 of Rule 3 of the Boarder Security Force (Seniority,

Promotion and Superannuation of Officers) Rules, 1978 (‘Rules of 1978’) be struck down, the petitioner during course of submissions has

abandoned the said prayer.

It is, inter alia, indicated in the writ petition that the petitioner was appointed as Assistant Commandant (Technical) in BSF on 17.12.1984; he was

promoted as Deputy Commandant on 21.09.1989 and thereafter as Second-in-command on 28.11.1997. In the Schedule-I attached to the writ petition,

it is inter alia indicated by the petitioner that the date of start of training at BSF Academy of one late Sh. D.K. Bhudliya was 17.06.1986 and that of

respondent No. 3 Sh. R.P. Sanwal was 17.06.1986. However, those persons were granted promotion as Second-in-command on 01.05.1997 and

28.11.1997, respectively. Qua respondent Nos. 4 & 5 it has been indicated that though they started training alongwith petitioner on 17.12.1984, their

date of appointment, as per the seniority list was indicated as 06.11.1984 & 17.12.1984, respectively and have been treated as senior to the petitioner.

The submissions in the writ petition are that the seniority of all the respondent Nos. 3 to 5 and late Sh. D.K. Bhudliya could have only been determined

based on provisions of Rule 3 of the Rules of 1978 and more particularly proviso to Sub-rule 3 to Rule 3 of the Rules of 1979 and as the respondents

have failed to assign seniority by taking into consideration the said provision and other related provisions for determining inter se seniority between the

officers, the same has resulted in the petitioner being granted promotion w.e.f. 28.11.1996 though he was senior to late Sh. D.K. Bhudliya, who was

granted promotion w.e.f. 01.05.1997.

Submissions have been made that even qua respondent Nos. 4 & 5, the inter se seniority qua the petitioner has not been correctly determined and/or

there is no material indicating the basis for determining the inter se seniority between the petitioner and respondent Nos. 3 to 5.

A response to the writ petition has been filed, inter alia, indicating that though the respondent No. 3 â€" Sh. R.P. Sanwal and late Sh. D.K. Bhudliya

were appointed on 17.09.1984, they were granted seniority despite joining the training course on 17.06.1986 notionally w.e.f. 17.09.1984 by the orders

passed by the competent authority and, therefore, the petitioner cannot claim seniority over late Sh. D.K. Bhudliya and Sh. R.P. Sanwal. Further

submissions made by the petitioner qua respondent Nos. 4 & 5 have also been denied indicating that seniority has been assigned appropriately.

Though, initially the writ petition was filed by impleading private respondent Nos.3 to 5 as well as one Shri Venu Gopal Rao, by order dated

10.02.2012, at the prayer of learned counsel for the petitioner, his name was deleted from the array of respondents.

Despite notice no one has put in appearance on behalf of respondent Nos. 3 to 5.

It is submitted by learned counsel for the petitioner that the respondents have committed grave mistake in according seniority to respondent No. 3 â€

R.P. Sanwal & late Sh. D.K. Bhudliya, who had joined the training course on 17.06.1986 by giving them notional benefit w.e.f. 17.09.1984. It is

submitted that the said action of the respondents is ex facie contrary to the proviso to Sub-rule 3 of Rule 3 of the Rules of 1978, which requires that in

case of direct entrants the date of appointment shall be the date of commencement of their training course, which date cannot be changed by giving

them notional benefit.

Further submissions have been made that qua inter se seniority between the direct entrance, the same was required to be determined in terms of sub-

clause (ii) of Sub-rule 3 of Rule 3 of the Rules of 1978, however, no material has been placed no record by the respondents to indicate as to how

respondent Nos. 4 & 5 have been treated as senior to the petitioner.

Reliance has been placed on judgment of Hon’ble Supreme Court in Rohitash Kumar & Ors. v. Om Prakash Sharma & Ors. : (2013) 11 SCC

451.

Learned counsel for the respondents supported the action of the respondents in assigning the seniority to respondent Nos. 3 to 5. It is, inter alia,

indicated that the training course of the officers with whom respondent No. 3 â€" Sh. R.P. Sanwal and late Sh. D.K. Bhudliya were selected had

commenced from 17.09.1984 and despite the fact that they joined the training alongwith the subsequent batch on 17.06.1986, they were given notional

benefit w.e.f. 17.09.1984 on account of the fact that late Sh. D.K. Bhudliya was found medically unfit and was sent back by the BSF

Academy, the officer then represented against the finding of the Medical Board and after re-examination, he was declared medically fit on 05.03.1985

and as by then the training of the batch had crossed almost six months, he was directed to undergo the next course, which commenced on

17.06.1986.Â

Regarding Sh. R.P. Sanwal also in it indicated that his character and antecedents report was not cleared, which was returned to the S.D.O.

concerned for clarification and in his case also by the time the character and antecedents report was cleared by the concerned authorities the training

of his batch started and, therefore, he was also directed to undergo the training in the next batch in 1986.

It is submitted by learned counsel that the delay occurred in commencing the training of the said officers on account of the circumstances indicated,

which were beyond the said officers and, therefore, the respondents were justified in according notional benefit to the said officers and on account of

the grant of notional benefit, the said respondent No. 3 and late Sh. D.K. Bhudliya were senior to the petitioner and, therefore, no grievance in this

regard can be raised.

Further submissions have been made that respondent Nos. 3 to 5 have also been assigned the date of appointment in accordance with the provisions

and that the petitioner is not entitled to claim any relief against the said respondents as well.

With reference to the judgment in the case of Rohitash Kumar (supra) submissions were made that the Hon’ble Supreme Court in the said

judgment has not disturbed the judgment in the case of Dinesh Kumar v. U.O.I. decided by Delhi High Court on 14.02.2011, wherein also, on account

of the fact that there was delay in joining the training on account of fitness test by the review medical board, relief was granted to the petitioner

therein and, therefore, as the circumstances in the present case are similar to that in the case of Dinesh Kumar (supra), the petitioner cannot take

advantage of the said aspect. It was prayed that the writ petition deserves to be dismissed.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

It is not in dispute that the petitioner alongwith respondent No.4 and 5 had started training w.e.f. 17.12.1984 and respondent No.3 and late Sh. D.K.

Bhudliya started training on 17.06.1986. It is also not in dispute that by treating late Sh. D.K. Bhudliya and respondent Nos.3 to 5 as senior to the

petitioner, they were granted promotion as Second-in-command from the date prior to the date the same was granted to the petitioner/on the same

date in case of Sh. R.P. Sanwal.

The seniority of the officers as per Rules of 1978 is governed by Rule 3 of the Rules of 1987. The relevant provision of the said Rules reads as

under:-

“3. Seniority of Officers â€" (1) All officers holding a higher rank whether in an officiating or substantive capacity shall be senior to officers

holding a lower rank.

(2) In a particular rank â€

(i) an officer appointed in a substantive capacity shall be senior to an officer appointed in an officiating capacity;

(ii) seniority of officers appointed to any post in a substantive capacity shall be determined in accordance with the date of appointment to that post in a

substantive capacity and where two or more officers are appointed to a post in a substantive capacity on the same date, their seniority shall be

determined in accordance with their seniority to such post in an officiating capacity;

(iii) seniority of officers appointed to any post in an officiating capacity shall be determined in accordance with the order of selection for appointment

to that post.

(3) Subject to the provisions of sub-rule (2), inter se seniority amongst officers holding the same rank shall be as follows, namely-

(i) seniority of officers promoted on the same day shall be determined in the order in which they are selected for promotion to that rank;

(ii) seniority of direct entrants shall be determined in accordance with the aggregate marks obtained by them before the Selection Board and at the

passing out examination conducted at the Border Security Force Academy;

(iii) Seniority of temporary officers, subject to the provisions of clauses (i) and (ii), shall be determined on the basis of the order of merit at the time of

their selection and officers selected on an earlier batch will be senior to officers selected in subsequent batches;

(iv) seniority of officers, subject to the provisions of clauses (i), (ii) and (iii), shall be determined according to the date of their continuous appointment

in that rank:

Provided that in case of ‘direct entrants, the date of appointment shall be the date of commencement of their training course at the Border Security

Force Academy;â€​

A perusal of the above provisions indicates that the same is comprehensive in nature and deals with almost all situations, which may arise for

determination of seniority among the officers.

Sub-rule 3 deals with inter se seniority among officers holding the same rank and provides that seniority of direct entrants shall be determined in

accordance with the aggregate marks obtained by them before the Selection Board and at the passing of examination conducted at the Border

Security Force Academy.

The proviso to Sub-rule 3 of Rule 3 provides that in case of direct entrants the date of appointment shall be the date of commencement of their

training course at the Border Security Force Academy.Â

As already noticed hereinbefore, so far as the date of commencement of training of the petitioner and the respondents is concerned, the same for

petitioner and respondent Nos. 4 and 5 is 17.12.1984 and for respondent No.3 and late Sh. D.K. Bhudliya is 17.06.1986.Â

The said provision came up for interpretation before Jammu & Kashmir High Court, which by relying on the proviso came to the conclusion that the

seniority has to be assigned from the date of commencement of training, the Division Bench upheld the judgment of learned Single Judge.

Whereafter Hon’ble Supreme Court in the case of Rakesh Kumar (supra) after applying Rules of contemporanea exposition, interpretation of the

proviso, considering hardship of an individual laid down as under:-

“30. The matter requires to be considered in the light of the aforesaid settled legal propositions.

The Service Selection Board (CPOs) 91, selected 154 persons to be appointed as Assistant Commandant (Direct Entry), and they were then sent

for training in two separate batches. Batch No.16 consisted of 67 officers who joined the training on 1.2.1993, while Batch No.17 consisted of 87

officers who joined the training on 2.7.1993. They could not be sent for training in one batch, even though they had been selected through the same

competitive examination, due to administrative reasons i.e., character verification etc. Respondent no.1, who was promoted from the feeding cadre,

joined his post on 15.3.1993. Thus, it is evident that he was placed in the promotional cadre, prior to the commencement of the training of Batch No.17

on 2.7.1993.

The learned Single Judge dealt with the statutory provisions contained in Rule 3 and held as under:

“A perusal of the above makes it apparent that in the case of the officers who have been promoted their seniority is to be determined on the basis

of continuous appointment on a day in which they are selected for promoted to that rank. In case of direct entrants their inter se seniority is to be

determined on the basis of aggregate marks obtained by them. Inter se seniority of the officers mentioned at serial No.(l) (ii) and (1) (iii) is to be

determined according to the date of their continuous appointment in the rank. Proviso to the rule is clear. It is specifically mentioned that in the case of

direct entrants, the date of appointment shall be the date of commencement of their training course at the Border Security Force Academy.â€​

In light of the above, relief had been granted to respondent no.1. The Division Bench concurred with the said interpretation.

If we apply the settled legal propositions referred to hereinabove, no other interpretation is permissible. The language of the said rule is crystal

clear. There is no ambiguity with respect to it. The validity of the rule is not under challenge. In such a fact- situation, it is not permissible for the court

to interpret the rule otherwise. The said proviso will have application only in a case where officers who have been selected in pursuance of the same

selection process are split into separate batches. Interpreting the rule otherwise, would amount to adding words to the proviso, which the law does not

permit.

If the contention of the appellants is accepted, it would amount to fixing their seniority from a date prior, to their birth in the cadre. Admittedly, the

appellants (17th batch), joined training on 2.7.1993 and their claim is to fix their seniority from 1.2.1993 i.e. the date on which, the 16th batch joined

training. Such a course is not permissible in law. The facts and circumstances of the case neither require any interpretation, nor reading down of the

Rule.

Shri R. Venkataramani, learned Senior counsel for the appellants, has placed very heavy reliance upon the judgment of the Delhi High Court

(Dinesh Kumar v. UOI & Ors.) dated 14.2.2011 wherein, certain relief was granted to the petitioner therein, in view of the fact that there was some

delay in joining training, in relation to passing the fitness test set by the Review Medical Board. The court granted relief, in light of the facts and

circumstances of the case, without interpreting Rule 3 of the Rules 1978. Thus, the said judgment, in fact, does not lay down any law. The case at

hand is easily distinguishable from the above, as that was a case where seniority and promotion had been granted on a notional basis, with

retrospective effect and it was held that the person to whom the same had been granted, was entitled to all consequential benefits.â€​

Hon’ble Supreme Court approved the finding of the learned Single Judge and came to the conclusion that that if the contention of the appellants

therein was accepted the same would amount to fixing the seniority from the date prior to their birth in the cadre as in terms of Rule 3, the date of

appointment is the date of commencement of training.

In view of the law laid down by Hon’ble Supreme Court dealing with the identical fact situation, the action of the respondents in assigning the date

of appointment to respondent No. 3 and late Sh. D.K. Bhudliya from date prior to the date of commencement of their training, which was 1986 and

treating late Sh. D.K. Bhudliya as senior to the petitioner, cannot be sustained.

So far as the submission made by learned counsel for the respondents seeking to distinguish the judgment in the case of Rohitash Kumar (supra) is

concerned, it would be noticed that Hon’ble Supreme Court though noticed the fact that in case of Dinesh Kumar (supra), Delhi High Court had

granted relief. It was specifically laid down that as Rule 3 was not interpreted the said judgment does not lay down any law.

In view thereof, no support can be sought from the said aspect by the respondents and the action of the respondents in passing the orders Annexures-

R/1 and R/2 giving notional benefit to the said respondents and adverse effects on the petitioner also cannot be sustained.

So far as the case of respondent Nos.4 and 5 is concerned, their date of appointment has been indicated as 06.11.1984 and 17.09.1984 in the seniority

list, which also is contrary to the provisions of Rule 3 as admittedly they also commenced their training at the Academy on 17.04.1984. Once the

said respondent Nos.4 and 5 are taken to have commenced their training from 17.12.1984 and their date of appointment is taken as 17.04.1984, the

inter se seniority of the petitioner alongwith the said respondent Nos.4 and 5 has to be determined in terms of Clause (ii) of Sub-rule 3 of Rule 3 of the

Rules of 1978, which exercise apparently has not been done by the respondents.

As admittedly promotion was granted to late Sh. D.K. Bhudliya as Second-in-command w.e.f. 01.05.1997 and the respondent No. 4 on 28.11.1996,

and once the petitioner is apparently senior to at least late Sh. D.K. Bhudliya, the petitioner would be entitled to grant of promotion from the date/prior

to the date when the same has been granted to the said Sh. D.K. Bhudliya. However, the same would have to be determined once the respondents

re-determined the seniority of the petitioner qua respondent Nos. 4 and 5 as well.

In view of the above discussion, the writ petition filed by the petitioner is allowed. The respondents are directed to refix the seniority of the

petitioner qua late Sh. D.K. Bhudliya and respondent Nos. 3 to 5 by treating their date of appointment as the date of commencement of their training

course at the Border Security Force Academy. The inter se seniority between the petitioner and respondent Nos. 4 and 5 be also re-determined

based on the provisions of Clause (ii) of Sub-rule 3 of Rule 3 of the Rules of 1978 and based on such determination, the petitioner be assigned

appropriate seniority and promotion as Second-incommand. The petitioner would be entitled to all consequential benefits based on the order to be

passed by the respondents based on the said re-fixation. Needful may be done by the respondents within a period of two months from the date a

certified copy of this order be placed before the respondents.