M. S. NEHRA v. UNION OF INDIA — 1996 DIGILAW 315 (DEL)

M. K. Sharma ( 1 ) THE present writ petition is directed against the order dated 7. 9. 1995 passed by the respondents calling for nominations of the departmental candidates of the rank of Inspectors for promotion to the post of Assistant Commandant in the General Duty (Executive) Cadre. One of the further reliefs prayed for by the petitioner in this writ petition is for issuance of direction to the respondents to treat all the eligible Inspectors irrespective of the Cadre/category to which they belong, equally by fixing only one cut off date of promotion as Inspector for the purpose of their consideration for promotion to the rank of Assistant Commandant in the General Duty Cadre. ( 2 ) THE petitioner was promoted to the post of Inspector (Subedar) on 11. 4. 1988. The criteria for promotion to the post of Assistant Commandant is governed by the Border Security Force (Assistant Commandants) Recruitment Rules, 1985 (hereinafter called the Rules ). Under the provisions of the aforesaid Rules 50% of the vacancies in the post of Assistant Commandant are to be filled up by promotion of Inspectors (Subedars) who have completed 5 years service in the grade rendered after appointment thereto on a regular basis and atleast be matriculate or equivalent quali- 48 fication from a recognised Board of Education or BSF certificate of Education Class-I and have qualified the pre-promotion courses such as - (1) Basic Training Course; (2) Platoon Weapons Course; and (3) Company Commander Course. The persons having the aforesaid requisite qualifications are eligible fer promotion to the rank of Assistant Commandant. It is further provided in these Rules that promotions to the extent of 10% of the vacant posts out of the 50% vacant posts is to be made from the category of combatised ministerial staff failing which entire 50% from amongst General Duty Cadre. It is also laid down under the Rules that it is necessary to identify the number of eligible Inspectors (Subedars) from both the feeder cadres separately who fulfil the eligibility conditions for the purpose of consideration of their names for promotion to the rank of Assistant Commandant. It is also laid down under the Rules that it is necessary to identify the number of eligible Inspectors (Subedars) from both the feeder cadres separately who fulfil the eligibility conditions for the purpose of consideration of their names for promotion to the rank of Assistant Commandant. For supplementing the provisions of the aforesaid Rules few instructions have been issued by the Competent Authority wherein it is laid down that where promotions are to be made by selection method as prescribed in the Recruitment Rules for more than one grade, the eligible persons shall be arranged in separate list in the order of their relative seniority in the respective grades. By the office Memorandum issued on 24. 12. 1980 by the Ministry of Home Affairs the number of officers to be considered for the purpose of selection from out of the eligible officers in the feeder grade is restricted commensurate with the number of vacancies available. For filling up the vacancies the officers to be considered are 3 times the number of vacancies. ( 3 ) BY another notification dated 12. 10. 1990 issued by the Department of Personnel and Training it was laid down that existing zone of consideration for promotion to selection post had been modified to the extent that as against the number of vacancies of 4 or more the number of officers to be included in the zone of consideration would be twice the number of vacancies in excess of 3 vacancies. The respondents issued an order on 7. 9. 1995 to the lower formations asking for nominations of Inspector of the force, for purposes of promotion to the rank of Assistant Commandant in General Duty (Executive) Cadre. In the said order it was stated that for Subedars (G. D.) Cadre, General category persons having seniority upto 11. 4. 1988 i. e. upto serial No. 600 of the combined seniority list issued by letter dated 29. 7. 1994 were to be called, whereas nominations for the SC and ST category persons having seniority upto 31. 7. 1989 be called and for Subedars (Combatised Category) staff, persons having seniority upto 30. 9. 1990 be called. ( 4 ) BEING aggrieved by the aforesaid order the petitioner has preferred this writ petition. 7. 1994 were to be called, whereas nominations for the SC and ST category persons having seniority upto 31. 7. 1989 be called and for Subedars (Combatised Category) staff, persons having seniority upto 30. 9. 1990 be called. ( 4 ) BEING aggrieved by the aforesaid order the petitioner has preferred this writ petition. The grievance of the petitioner appears to be that because of the aforesaid actions on the part of the respondents all those Inspectors of the General Duty (Executive) Cadre who were promoted as such but are below the cut off serial No. 600 of their seniority list and all those inspectors belonging to the general category of the same cadre (G. D.) promoted before 31. 7. 1989 and 30. 9. 1990 but not in the respective cadre of SC/st and Ministerial Cadres could not be considered for promotion to the post of Assistant Commandant. According to the petitioner such consideration prescribing different cut off dates for different categories of persons would lead to hostile discriminations with further consequences that on promotion as Assistant Commandant all those Inspectors belonging to the Ministerial and SC/st category who were so far junior to the Inspectors belonging to General Duty Cadres would become superior officers than the persons who are placed below serial No-600 in the seniority list in the General Duty cadre. ( 5 ) MR. R. P. Sharma, appearing for the petitioner submitted before me that prescribing different cut off dates for promotion as Inspectors for different cadres such as General Duty Cadre, Ministerial Cadre and SC/st category is arbitrary, discriminatory and irrational. According to the learned counsel, the result of such action would be that firstly all those Inspectors, of the G. D. Cadre who were promoted as such but are below the cut off serial number of 600 of their seniority list and all those Inspectors of the same cadre (G. D.) who had been promoted before 31. 7. 1989 and 30. 9. 1990, the respective cut off dates prescribed for the SC/st and Ministerial Cadres, would not be considered for promotion as Assistant Commandants. He further submitted that by prescribing different cut-off dates for promotion as Inspectors from different cadres senior Inspectors like the petitioners would become junior to their present juniors thus upsetting the entire rank structure in this class of the force. He further submitted that by prescribing different cut-off dates for promotion as Inspectors from different cadres senior Inspectors like the petitioners would become junior to their present juniors thus upsetting the entire rank structure in this class of the force. He further submitted that the aforesaid classification is based upon no intelligible differentia and is violative of the provisions of Articles 14 and 16 of the Constitution of India. ( 6 ) MR. Vali, the learned counsel appearing for the respondents on the other hand submitted that since the General Duty cadre and Ministerial Cadre form two separate feeder grades and in compliance of the Recruitment Rules and the instructions referred to above the number of Subedars belonging to these cadres were to be considered for promotion to the post of Assistant Commandant with different seniority. According to him the nominations of Subedars (G,d. /comn.) upto serial No. 600 i. e. having seniority of 11. 4. 1988 of the combined seniority list of Subedars of General Duty/comn set up and SC/st category upto 31. 7. 1989 and Subedars of Ministerial Cadre having seniority upto 30. 9. 1990 were called for to determine the Zone of Consideration, based on the vacancies available for promotion as per the formula laid down in the administrative circular. He further submitted that no junior to the petitioner was considered for promotion and is being promoted and therefore, the petitioner cannot have any grievance. He further submilted that selection process for filling up the vacancies in the post of Assistant Commandant habeen completed but the results have not been announced in pursuance of the interim order passed by this court. The learned counsel appearing for the respondents has also placed before me the Departmental Promotion Committee proceedings relevant to the facts and circumstances of the present case. ( 7 ) ON a reading of the provisions of the Rules and the instructions issued by the Department of Personnel and Training it is clear that where promotions arc to be made by selection method from more than one grade the eligible persons are to be arranged in separate list in the order of their relative seniority in their respective grades. The zone of consideration forpromotion to the post of Assistant Commandant is also laid down as when there be four or more vacancies, the number of officers to be included in the one of consideration would be twice the number of vacancies in excess of 3 vacancies. From the statustics furnished it appears that total number of vacancies available for the G. D. /comn. Cadre was 115 and in accordance with the formula prescribed under the Administrative instructions total number of officers to be considered were 234. However, since some of the officers although have been working as Inspectors (Subedars) they were not eligible for such promotions for not fulfilling the eligibility criteria and in order to find out as to how many officers were eligible to be considered for promotion the nominations of 600 officers were called for and that the officer placed at serial No. 600 had the seniority date as 11,4. 1988. Similarly, for the SC/st category the nominations were called for from the officers having seniority upto 1. 7. 1989. So far as Combatised Ministerial Cadre is concerned vacancies from the said feeder post were in all 13 and for consideration for promotions the total number of inspectors (Subedars) required to be considered was 30. Since many of the officers belonging to the Combatised Ministerial Cadre did not fulfil the eligibility criteria of qualifying in the required courses, the total number of officers called was 205 in all and the seniority of the last person was 30. 7. 1990. At this stage it is pertinent to note that the petitioner has not challenged the legality and validity of either of the Rules and the circular referred to above in the present writ petition. ( 8 ) THE respondents have submitted before me a comprehensive list showing the position as on 19. 4. 1996 i. e. the date of holding the Departmental Promotion Committee meeting, giving the break up of total number of vacancies of Inspectors (Subedars) existing and total number of officers considered for promotions both for G. D. /comn and Combatised Ministerial. ( 9 ) THE statistics furnished show that as against the total number of vacancies exist- ing for G. D. and Comn. ( 9 ) THE statistics furnished show that as against the total number of vacancies exist- ing for G. D. and Comn. Cadre being 115 and Inspectors required to be cosidered being 234 excluding the SC/st categories the total number of officers required to be called was upto serial No. 291 whose seniority position was 54. 1988. Out of the afore- , said officers those who did not do the required courses numbered 60 and therefore, the total number of officers considered for promotion was 307. ( 10 ) I have also minutely perused the proceedings of the departmental promotion committee placed before me. On consideration of the said proceedings and also the statistics furnished with regard to the number of persons considered for promotion, it appears to me that the respondents have followed the procedure laid down under the provisions of the Rules and the guidelines for the purpose of considering officers for promotion to the post of Assistant Commandant. The statistics provided and referred to above satisfies the criteria laid down under the provisions of the Rules and the guidelines issued for the purpose and there appears to be no deviation therefrom. So far the consideration, of the matter of promotion to the post of Assistant Commandant from Combatised Ministerial Cadre is concerned, from the statistics furnished by the respondents there also appears to be no irregularity and/or illegality committed while considering 205 persons for the total number 13 vacancies in the said category. As a matter of fact no separate cut off date has been prescribed for different categories as alleged by the petitioner but in order to give effect to the provisions of the circular laying down the criteria for zone of consideration for different categories, persons with different seniority dates had to be nominated and finally the required notified persons belonging to the two feeder groups with different seniority dates had to be considered for promotion. The said actions of the respondents in calling for nominations of 600 persons from General Duty (Executive) and with different cut off dates for the different categories of persons cannot be said to be illegal. The said actions of the respondents in calling for nominations of 600 persons from General Duty (Executive) and with different cut off dates for the different categories of persons cannot be said to be illegal. ( 11 ) WITH regard to the other submission of the learned counsel for the petitioner that because of the promotion of junior officers than the petitioner in the category of Combatised Ministerial cadre is concerned the same also appears to have no force in view of the fact that only 10% of the vacancies in the post of Assistant Commandant has been reserved for the category of Combatised Ministerial staff whereas the rest is to be promoted from amongst the General Duty Cadre, to which the petitioner belongs to. ( 12 ) FOR the foregoing reasons there is no force in the submissions of the learned counsel for the petitioner and the writ petition stands dismissed. The interim order stands vacated. There will however, be no order as to costs. Dasli.