Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of Decision: 14 February, 2011
+ W.P.(C) 12165/2009
KAMALJEET SINGH ..... Petitioner
Through: Mr.Bijender Singh, Advocate
versus
UOI & ANR. ..... Respondents
Through: Mr.Ankur Chhibber, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J. (Oral)
1. Heard learned counsel for the parties.
2. The hiatus between what ought to have happened and what
actually happened is creating a problem for the petitioner.
3. In view of the facts which we would be hereinafter noting and
the law on the subject, petitioner would be entitled to relief.
4. Holding the post of Deputy Commandant and eligible to be
considered for promotion as 2-IC, at the DPC which met on
19.04.2004, petitioner was declared unfit and persons junior to
him were promoted.
5. Reason why petitioner was declared unfit at the DPC was an
adverse remark entry in his ACR for the year 2000-01.
6. Not being communicated to him and the adverse remark being
taken note of by the DPC, claim of the petitioner in WP(C)
W.P. (C) No.12165/2009 Page 1 of 5
No.6269/2006 for review DPC to be held and the un-
communicated adverse remark being ignored succeeded, when
vide judgment and order dated 24.05.2007, allowing WP(C)
No.6269/2006 was allowed with a direction issued by the Division
Bench of this Court that within 3 months of the date of the order,
review DPC be convened and at the review DPC, case of the
petitioner be reconsidered ignoring the adverse entry in the ACR
for the year 2000-01.
7. A belated review DPC was held. Petitioner was found fit to be
promoted. On 27.05.2008, a promotion order was issued
promoting petitioner to the rank of 2-IC with effect from
29.06.2004 i.e. the date when persons junior to him were
promoted with reference to the DPC held on 19.04.2004.
8. The petitioner faced further problem inasmuch as by the year
2008, the persons who were junior to the petitioner had earned
further promotion to the rank of Commandant.
9. Petitioner made a representation praying that even he be
promoted to the rank of Commandant, which request was
negated on two counts. Firstly, it was held that the mandatory
requirement of rendering 2 years’ service in a duty battalion as 2-
IC was not met by the petitioner. It was stated against the
petitioner that his working as 2-IC in a duty battalion was short by
6 months. The second thing held against the petitioner was his
not having cleared the Senior Command Course.
10. With respect to the first ground held against the
petitioner, suffice would it be to state that in view of the judgment
and order dated 27.10.2009, allowing a batch of writ petitions,
lead writ petition being WP(C) No.21900/2005 Ashok Kumar vs.
UOI & Ors. , relief of being entitled to relaxation has to be granted
to the petitioner.
11. In a nutshell, the reasoning of Ashok Kumar’s case may
W.P. (C) No.12165/2009 Page 2 of 5
be noted.
12. Till Border Security Force (Ground Duty Officers)
Recruitment Rules were framed, the Border Security Force
(Seniority, Promotion and Superannuation of Officers) Rules 1979
and the Border Security Force (Assistant Commandant)
Recruitment Rules 1985 were in force and as per the said rules,
eligibility criteria for promotion to the post of 2-IC did not
mandate that the Deputy Commandant should have worked for at
least two years in a duty battalion. When the new Rules were
notified, for the first time a stipulation was added that Deputy
Commandant should have worked in a duty battalion for at least
two years before becoming eligible to be considered for
promotion as 2-IC.
13. There existed a provision in the Rules for relaxation.
14. What had happened was that in March, 2004 there was a
quantum jump in the sanctioned strength of 2-IC. Existing posts
being 161 were enhanced to 227.
15. Those who were way below in the seniority list would not
bothered to be deputed to duty battalions for the reason they
would reasonably believe that by the time they become senior
they would be sent to duty battalions. With the sudden quantum
jump in the sanctioned strength, these calculations went haywire
and the result was that large number of junior persons, having
fortuitously worked in the duty battalion, were promoted ahead of
their seniors.
16. In view of the fact that a power of relaxation existed in
the Rules notified in the year 2001, and taking note of the fact
that an unexpected situation had come into being, the writ
petitions were allowed with the directions that the competent
authority would consider grant of relaxations on account of the
unexpected events. The competent authority decided to grant the
W.P. (C) No.12165/2009 Page 3 of 5
necessary relaxation and the writ petitioners whose writ petitions
were decided on 27.10.2009 were granted the benefit of
relaxation i.e. were promoted with retrospective effect from the
date persons junior to them were promoted.
17. Petitioner being similarly situated would be entitled to be
treated at par with Ashok Kumar and others.
18. Having overcome the first problem, a further fact needs
to be noted. The petitioner has since completed the Senior
Command Course and has now earned promotion as Commandant
on 01.05.2009, but has been ranked junior.
19. Suffice would it be to state that since the petitioner was not
promoted as 2-IC when persons junior to him were promoted, he
could not be deputed to undergo the Senior Command Course. As
a result of retrospective promotion granted to the petitioner as 2-
IC, the hiatus between notional promotion and actual promotion
has to be resolved. Had the DPC which met on 19.04.2004 not
considered the un-communicated adverse remark in the ACR of
the petitioner for the year 2000-01, he would have earned
promotion as 2-IC on actual basis with effect from 19.04.2004. In
normal course of events he could have been sent for the Senior
Command Course and upon successful completion thereof, would
have earned further promotion. The fact that due to an error
committed by the respondent, petitioner was granted benefit of
notional promotion and seniority, the consequences of the said
notional benefit must flow to the logical conclusion and for this
the petitioner, who has since cleared the Senior Command Course
and has been promoted as Commandant with effect from
01.05.2009 would be entitled to be accorded seniority with effect
from the date persons junior to the petitioner were promoted.
20. Writ petition stands disposed of directing that treating
the petitioner eligible as of 24.01.2008, review DPC would
W.P. (C) No.12165/2009 Page 4 of 5
consider the candidature of the petitioner and if found fit for
promotion, the petitioner would be granted promotion as
Commandant with effect from the date persons immediately
junior to him were promoted; with benefit of seniority.
Consequential benefit of pay fixation except arrears would be
granted to the petitioner.
21. Needful be done within 12 weeks from today.
22. No costs.
PRADEEP NANDRAJOG, J.
SURESH KAIT, J.
FEBRUARY 14, 2011
‘nks’
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