Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 294 (GAU)

Avinash Chander Sharma v. Union of India

2008-04-23

TINLIANTHANG VAIPHEI

body2008
JUDGMENT T. Vaiphei, J. 1. In this writ petition, the Petitioner is seeking the interference of this Court for issuing a writ in the nature of Quo Warranto for directing the Respondents to consider his case for promotion to the rank of Commandant in the Border Security Force (BSF). Shorn of unnecessary details, his case is that he joined the BSF as Sub-Inspector (General Duty) on 29.11.1971 and was promoted to the rank of Assistant Commandant in the year 1989 and thence to the rank of Deputy Commandant in June, 1995 where after he took over the charge of Joint Assistant Director (G) at the F.H.Q., C.G.O. Complex, New Delhi. From 1999 to 15.4.2004, he was transferred on deputation to the Intelligence Bureau (IB) under the Ministry of Home Affairs (MHA). He has admittedly been awarded various rewards such as Police Medal for Meritorious Service, three D.G.'s Commendation Roles, three Commendations by the Joint Director, IB, two Commendations by the Joint Secretary in the Ministry of External Affairs for exemplary performance. In the year 2001, the recruitment rules was replaced by a new set of rules called the Border Security Force (General Duty Officers) Recruitment Rules, 2001 ("the Recruitment Rules" for short), which came into force on 30.6.2001 after its publication in the Gazette of India. Under the new rules, one of the eligibility criteria for promotion from the rank of Deputy Commandant to the rank of Second-in-Command is two years' service as Second-in-Command Duty Battalion. According to the Petitioner, it was only in the year 2003 that his name came to be listed in the panel of eight officers in service in a duty Battalion for promotion to the rank of Second-in-Command. Though the Petitioner was repatriated to the BSF on 15.4.2004 and rejoined the same on 2.5.2004 and had, therefore, became eligible for promotion to the post of Second-in-Command, his case was withheld, while his juniors were promoted. When he brought this anomaly to the notice of the Respondent No. 1 on 11.2.2005, the Respondent No. 2 was directed to promote the Petitioner to the rank of Second-in-Command with retrospective effect from June, 2004 without financial benefit for the period between June, 2004 and June, 2006. 2. When he brought this anomaly to the notice of the Respondent No. 1 on 11.2.2005, the Respondent No. 2 was directed to promote the Petitioner to the rank of Second-in-Command with retrospective effect from June, 2004 without financial benefit for the period between June, 2004 and June, 2006. 2. It is the further case of the Petitioner that despite such direction, his promotion order was issued only on 19.6.2006 by giving him notional seniority in the rank of Second-in-Command with effect from 29.6.2004, which delayed his promotion by two years. It is admitted by the Petitioner that he did not fulfill the criteria relating to mandatory two years' service as Second-in-Command Duty Battalion, but he claims that he was not responsible for this deficiency and that this tenure shortfall came about due to the failure of the Respondent authorities to consider his case for promotion in time. His representation dated 12.10.2006 to the Respondent No. 1 for waiving the mandatory battalion tenure for two years in the post of Second-in-Command, was rejected by the letter dated 23.7.2007. It is contended by the Petitioner that the refusal on the part of the Respondents to count the period of his notional promotion with effect from June, 2004 for the purpose of promotion has rendered the entire exercise of granting him notional seniority an exercise in futility, thereby adversely affecting his promotional career vis-a-vis others. It is pointed out by the Petitioner that while this anomaly was yet to be removed, his junior, namely, Shri I.R. Siddique, was promoted to the rank of Commandant. It is submitted by the Petitioner that it is an established principle of service jurisprudence that the period of service rendered on deputation is to be treated as on duty in the parent cadre and the service condition of an employee cannot be construed in a manner disadvantageous to him. The Petitioner has come to learn that the promotion process for the rank of Commandant has started, for which the Departmental Promotion Committee (DPC) is being constituted. He apprehends that the case of his juniors would again be considered for promotion without considering his case, that too, at the fag end, of his career as he retires from service in the early part of 2008. He apprehends that the case of his juniors would again be considered for promotion without considering his case, that too, at the fag end, of his career as he retires from service in the early part of 2008. In his additional affidavit, the Petitioner has made an additional pleading that he has already undergone Senior Command Course in the year 2006 at the Border Security Force Academy, Tekanpur, Gwalior (M.P.), and was granted Grade 'C' Certificate with the observation that he is "(F) it to command a B.S.F. Bn." Vide the Certificate dated 8.10.2006 issued by the Director of the Academy. 3. The writ petition is resisted by the Respondent authorities by filing their affidavit-in-opposition. From their affidavit-in-opposition, it is evident that the Respondent authorities do not really join issue with the Petitioner on the facts of the case. The stand taken by them, however, is that in terms of the new criteria laid down in the Recruitment Rules, two years' service in a duty Battalion in the post of Second-in-Command is a mandatory statutory requirement for becoming eligible for promotion to the rank of Commandant; the duties performed by the Petitioner while on deputation with the IB cannot be construed as service rendered in a duty battalion or duty performed at National Security Guard (NSG)/Special Protection Group (SPG) or in the UN Mission. According to the Respondent authorities, the representation made by the Petitioner to the MHA for waiving the mandatory duty battalion tenure for two years has been rejected at the highest level, and when such statutory requirement is not relaxed/waived by the Central Government, the Petitioner is not eligible for promotion to the next higher post. It is pointed out by the answering Respondents that the Petitioner was given ample opportunity to rejoin the BSF from deputation for enabling him to complete the mandatory duty battalion tenure, but he did not do so. Since he was notionally promoted, he did not gain field experience and did not accordingly complete the duty battalion tenure in the capacity of Second-in-Command in the BSF. Since he was notionally promoted, he did not gain field experience and did not accordingly complete the duty battalion tenure in the capacity of Second-in-Command in the BSF. It is also the case of the Respondent authorities that the BSF is a combat organization, and requisite provision has been made in the Recruitment Rules to the effect that every officer up to the level of Commandant has to serve in a duty Battalion for a period of two years to gain field experience and to undergo pre-promotional course before being considered for promotion to the higher rank. It is also pointed out by the answering Respondents that the DPC for the vacancy year 2007-2008 has already been concluded, and no supplementary DPC for the vacancy year 2007-2008 would be held as contended by the Petitioner. It is further pointed out by the Respondent authorities that the next DPC for the vacancy year 2008-2009 will be conducted after 1st January, 2008, for which the Petitioner would be eligible for consideration for promotion to the rank of Commandant. Contending that the writ petition has no merit, the Respondents pray for dismissal of the same. 4. It is contended by Mr. A.S. Siddiqui, the learned senior counsel for the Petitioner that once the Petitioner was given notional seniority with effect from 29.6.2004, he ought to have been considered eligible for promotion to the post of Commandant when the DPC for promotion process for the vacancy year 2007-2008 was held. According to the learned senior counsel, the term "two years regular service as Second-in-Command" cannot mean two years of actual physical service, and eligibility could always be determined with reference to notional promotion granted from retrospective effect, namely, w.e.f. 29.6.2004. So construed, contends the learned senior counsel, the Petitioner was well qualified for promotion to the post of Commandant on or about 29.6.2006 when he completed two years of notional promotion. He strongly relies on the decision of the Apex Court in Union of India and Ors. v. K.B. Bajoria, (2000) 3 SCC 562 , in support of his contention. He also submits that the Certificate dated 8.10.2006 issued by the Director of BSF Academy eloquently demonstrates that the Petitioner has completed the requirement of pre-promotional course. He strongly relies on the decision of the Apex Court in Union of India and Ors. v. K.B. Bajoria, (2000) 3 SCC 562 , in support of his contention. He also submits that the Certificate dated 8.10.2006 issued by the Director of BSF Academy eloquently demonstrates that the Petitioner has completed the requirement of pre-promotional course. He further submits that the Respondent authorities completely overlooked the glaring fact that the Petitioner was not in any manner responsible for not completing the mandatory battalion tenure, which can be attributed to the lapses on the part of the Respondents in not waiving such requirement in time by invoking Rule 13 of the Recruitment Rules despite repeated representations made by the Petitioner to that effect. Therefore, the Petitioner cannot be penalized for such dereliction of duty on the part of the Respondents. He, therefore, strenuously urges this Court to invoke its equity jurisdiction to set right the wrong done to the Petitioner and direct the Respondent authorities to promote the Petitioner to the post of Commandant when his junior like Shri I.R. Siddiqui, was promoted to that post with full consequential benefits. Per contra, Mr. R. Deb Nath, the learned CGC, appearing for the Respondents, contends that when the Petitioner did not complete two years of duty battalion tenure prescribed by statutory rules, he is not eligible for the promotion; to hold otherwise would amount to violation of the Recruitment Rules, which is impermissible. He seeks to distinguish the instant case from K.B. Bajoria case (supra) by pointing out that in that case the criterion stipulated by the Recruitment Rules is not only two years regular service as Second-in-Command but is qualified or supplemented by the other requirement of two years service as Second-in-Command Duty Battalion. Having not fulfilled the mandatory two years of duty battalion tenure, the learned CGC maintains, the Petitioner has been rightly held to be ineligible for the promotion for the vacancy year 2007-2008. He, therefore, submits that the writ petition is liable to be dismissed on this ground alone. 5. Having not fulfilled the mandatory two years of duty battalion tenure, the learned CGC maintains, the Petitioner has been rightly held to be ineligible for the promotion for the vacancy year 2007-2008. He, therefore, submits that the writ petition is liable to be dismissed on this ground alone. 5. On the pleadings of the parties and on giving my thoughtful consideration to the submissions advanced on behalf of the rival parties, the only point which calls for consideration in this writ petition is as to whether the Petitioner can be held to be eligible for promotion to the post of Commandant without actually completing the mandatory duty battalion tenure of two years stipulated by criteria (ii) of the Recruitment Rules in respect of Commandant (General Duty) in the capacity of Second-in-Command? The answer to this query will turn on finding out the true meaning and import of stipulations in the criteria for promotion, which are as under: By promotion: By promotion of Second-in-Command of Border Security Force with two years regular service as Second-in-Command with fifteen years Group 'A' service and possessing following qualification: (i) Senior Command course qualified. (ii) Two years service as Second-in-Command Duty Battalion. Medical category SHAPE-1. (Note: The Central Government by issue of specific order may prescribe certain number of posts to be manned by Indian Police Service) 6. If the criterion stipulated is only regular service as Second-in-Command, the learned senior counsel may not be wide of the mark in contending that two years of regular service does not necessarily mean two years of actual physical service and can rather mean only two years of service whether actual or notional. The difficulty, however, lies in the further stipulation that there should be two years service as Second-in-Command Duty Battalion. A combined reading of the aforesaid criteria leaves no room for doubt that the period of notional promotion is apparently excluded from the purview of the stipulated criterion, namely, two years of service in duty battalion, which can only mean actual experience of service in a duty battalion. This, in simple term, means that the Petitioner must have gained field experience in the capacity of Second-in-Command in a battalion assigned for duty. This, in simple term, means that the Petitioner must have gained field experience in the capacity of Second-in-Command in a battalion assigned for duty. To accept the contention of the learned Counsel for the Petitioner will mean to render the stipulation of "Two years service as Second-in-Command duty Battalion" otiose, which cannot be the intention of the rule-making authorities. In the words of Patanjali Shastry, C.J.I., it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. It is the cardinal principle of interpretation of statute that the Court must always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. The Legislature, or, for that matter, the rule-making authorities, are deemed not to waste their words or to say anything in vain and a construction which attributes redundancy to the Legislature or rule-making authority will not be accepted except for compelling reasons. The policy behind this stipulation appears to be that the BSF is one of the armed forces of the country for maintaining internal security and is a combat organization and due to the onerous responsibility associated with the post, it was considered necessary that every officer upto the level of Commandant has to serve in a duty Battalion for a period of two years to gain actual field experience. In this view of the matter, it is only natural that a further stipulation of two years of service in duty Battalion is prescribed for Second-in-Command while completing two years of regular service. 7. A case somewhat similar to the instant case came up for consideration before the Apex Court in Union of India and Ors. v. Lt. General Rajendra Singh Kadyan, (2000) 6 SCC 698 . In that case, the facts of the case are that the Respondent No. 1 (R-1) therein had a distinguished career and participated in the operations of 1971 Indo-Pak war and also had extensive counter-insurgency experience. The battalion in which he was working during the war was engaged in fighting the enemy from Agartala to Dhaka and reached Dhaka on 16.12.1971 i.e. the date of ceasefire and surrender of the Pakistani Army. The battalion in which he was working during the war was engaged in fighting the enemy from Agartala to Dhaka and reached Dhaka on 16.12.1971 i.e. the date of ceasefire and surrender of the Pakistani Army. He was always senior to the Respondent No. 2 (R-2) by as many as 40 places although they belonged to the same batch having been commissioned on 10.6.1962. In terms of the letter dated 18.11.1996, the officer should have commanded corps for at least one year so as to become eligible for appointment as Army Commander unless waived with the prior concurrence of the Government. As R-1 was the only person to be affected by this new criterion which was sought to be enforced without any lead time, contrary to the earlier practice, in his statutory complaint dated 5.10.1997, he made an alternative request that this stipulation may be waived in his case as the delay in his promotions have been caused entirely in the interest of service and he specifically mentioned that the vacancy was due to occur on 1.3.1998 and he should be considered for the same. On 6.1.1998, the Chief of Army Staff (CAS) recommended the waiver by six months for consideration for promotion to the appointment of Army Commander for a vacancy occurring on 1.3.1998. The Central Government accepted the recommendation of the CAS. The case of R-1 would have been considered for appointment as Army Commander in normal circumstances had he not been inordinately delayed in being placed on present criteria appointment. The delay was caused due to circumstances beyond the control of R-1 and was primarily due to administrative constraints of the organization. The new clause of tenure of one year as a Corps Commander affected only R-1 and this aspect was borne in mind by the CAS while making the recommendation. On 10.4.1997, R-1 was selected for the post of Lt. General by Special Selection Board and on 8.7.1997, he was intimated of the fact of his selection and approval by the Government. In another case filed by Major General Bagga, the Delhi High Court passed a stay order in July, 1997. On 23.8.1997, R-1 was put in charge of GOC 1 Corps and started gaining experience of commanding the Corps and continued to command the same at the material time. In another case filed by Major General Bagga, the Delhi High Court passed a stay order in July, 1997. On 23.8.1997, R-1 was put in charge of GOC 1 Corps and started gaining experience of commanding the Corps and continued to command the same at the material time. The contention of the Petitioner therein was that in terms of the letter dated 18.11.19, it was enough if the officer had commanded a Corps for one year by the date of appointment to the post of Army Commander in the absence of waiver or including the period of waiver; that the appointment to the post of Army Commander having been made by the order dated 20.4.1998, as on that date R-1 had actually commanded Corps for a period of seven months and 26 days; adding the period of waiver of six months, it comes to a total of one year, one month and 26 days. In other words, it was contended, he fulfilled the requirement of commanding a corps for at least one year by 22.2.1998; he was eligible for consideration for the post in question and that he was rightly treated as eligible both by the CAS and the Central Government. Repelling the contentions of the Petitioner, the Apex Court held: 23. But whatever may be the circumstances or the period for which the he fell short, the waiver granted is only for a period of 6 months. If that is so, Respondent cannot be said to have completed the period of one year of experience as Corps Commander. Further, Lt. General R.S. Kadyan was considered by the Selection Board and found fit on 10.4.1997 but he could not be promoted as Lt. General and appointed as Corps Commander because of the stay order passed by the Delhi High Court in the writ petition filled by Lt. General H.S. Bagga. The said order was vacated and thereafter Lt. General R.S. Kadyan was promoted on 24.9.1997 and he functioned as Officer-in-Charge, 1 Corps with effect from 23.8.1997 without any effect on promotion, pay or related benefits till he was actually promoted on 24.9.1997. Lt. General R.S. Kadyan was appointed as GOC 1 Corps after the stay was vacated on 24.9.1997. Hence that period including the period of waiver falls short of the requisite period of two years. 24. Lt. General R.S. Kadyan was appointed as GOC 1 Corps after the stay was vacated on 24.9.1997. Hence that period including the period of waiver falls short of the requisite period of two years. 24. On 5.10.1997, the Respondent No. 1 made a statutory complaint that his case should be considered on the basis of merit-cum-seniority subject to being found fit for promotion and ultimately prayed for the following: (1) The decision to defer his case connection with the Selection Board met on 31.10.1996 may be reviewed and if he is deemed to have been placed in command of a Corps retrospectively from the date of declaration of the results of that Selection Board. (2) In the alternative, he prayed that the stipulation of commanding a Corps for minimum one year to become eligible for appointment as an Army Commander under the letter dated 18.11.1996 may be waived in his case as the delay in his promotion seems to have been caused entirely in the interest of service. 25. The Chief of the Army Staff recommended waiver of this stipulation contained in the letter dated 18.11.1996 limiting to a period of six months. Therefore, the conclusion of the High Court that he became eligible to be considered to the higher post does not seem to be valid nor was the High Court justified in proceeding on that basis. The conclusion of the High Court to that extent is erroneous. 8. What can be understood from the aforesaid observations of the Apex Court is that waiver of mandatory tenure in a particular post is essential to enable one to become eligible for promotion to a higher post. In my opinion, the ratio laid down by the to cases that due publication in the official gazette has the legal effect of notice to all concerned and that in such a case, ignorance of rules cannot be pleaded as a defence; this would be so even though the individual had no reasonable means of actually knowing the rules. The Petitioner has never pleaded that he was never aware of the coming into force of the Recruitment Rules. If that was the case, what prevented him from seeking premature repatriation to his parent organization? The Petitioner has never pleaded that he was never aware of the coming into force of the Recruitment Rules. If that was the case, what prevented him from seeking premature repatriation to his parent organization? Had he been repatriated to the BSF by 2001-2002, he could have easily completed the mandatory battalion duty tenure in the capacity of Deputy Commandant and then be promoted to the rank of Second-in-Command without retrospective effect. He has now become the victim of the chain reaction of his own creation. This naturally has adversely affected his otherwise distinguished career. In the view that I have taken that mandatory duty battalion tenure of two years in those two years of regular service as Second-in-Command is warranted by the express provision of the Recruitment Rules, I do not find it necessary to deal with K.B. Bajoria case (supra), the case cited by the learned Counsel for the Petitioner. It need not be reiterated that the said case is clearly distinguishable on facts as well as statutory stipulations. Therefore, if the Respondent authorities have taken into consideration that the Petitioner did not fulfill the mandatory duty battalion of two years' tenure in the capacity of Second-in-Command though he has been given notional promotion to the said post and, therefore, has not gained necessary field experience, it cannot be said that the ground is an extraneous ground for adjudging his suitability for being promoted to the rank of Commandant. On the contrary, the Respondent authorities acted within the four corners of the law in holding that the Petitioner was not eligible for promotion to the rank of Commandant with reference to the Vacancy 2007-2008. Having said that, one aspect of the matter which cannot be sight of is the statement of the Respondent authorities in paragraph 21 of their affidavit-in-opposition that "the next Departmental Promotion Committee (DPC) for the year 2008-2009 will be conducted after 1st January, 2008, and the Petitioner will be eligible for consideration for promotion to the rank of Commandant, in the vacancy year 2008-2009". If that were the correct position, the ends of justice will be met if the Petitioner is considered for such promotion for the year 2008-2009 in accordance with law. 9. If that were the correct position, the ends of justice will be met if the Petitioner is considered for such promotion for the year 2008-2009 in accordance with law. 9. For the reasons stated in the foregoing, this writ petition has no merit, and is hereby dismissed, subject, however, to the direction that the Respondent authorities consider the case of the Petitioner for promotion to the rank of Commandant in the next Departmental Promotion Committee for the year 2008-2009 with reference to the vacancy year 2008-2009, in accordance with law. If the Petitioner is so promoted, he shall be given all consequential benefits. The parties are directed to bear their respective costs.