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2011 DIGILAW 466 (GAU)

Dinesh Kumar Prajapati v. Union of India and Ors.

2011-05-30

B.K.SHARMA

body2011
1. By means of this writ petition, the petitioner has called in question Annexures 10 and 11 communications dated 24.7.2009 and 10.8.2009 by which the decision of the authority towards rejection of the claim of the petitioner for promotion to the cadre of Sub-Inspector (VM) was conveyed. 2. The petitioner entered into the services of the respondents in the year 1996 as Head Constable (VM). At the time of filing of the writ petition, he was serving as Head Constable (VM) in Sector Motor Workshop, SHQ, BSF, Shillong. Prior to 2006 there was no separate recruitment rules for Motor Transport Workshop (Non-Gazatted) Grade-C post and the incumbents in the said group were governed by BSF (GD) Cadre (Non-Gazatted) Recruitment Rules, 2002. As per the said Rules, the requirement for promotion from the cadre of Head Constable to that of S.I. was five years of service as Head Constable with total 18 years of service and possessing the qualifications as prescribed in the rules. As per the new recruitment rules of 2006 which provides for initial constitution of the cadre, the requirement is 10 years of regular service as Head Constable (Tech.) or five years regular service in the grade with at least 18 years combined regular service in that grade and in any other grade in the BSF. Another requirement is to have basic training course as prescribed by the Director General from time-to-time. 3. The petitioner having had joined the services of BSF as Head Constable (VM) in the year 1996, he will be completing 18 years of service only in the year 2014. Thus, as per the requirement of 2002 Rules, he is yet to complete the requisite length of service. However, in view of the initial constitution of service with promulgation of the aforesaid Rules of 2006 he now fulfils the requirement of 10 years of continuous service in the Grade of Head Constable (VM). As regards the requirement of basic training course as prescribed by the Director General from time-to-time, it is on record that the petitioner has obtained the said qualification. In this connection, the petitioner has referred to Annexure 6 movement order dated 28.5.2007. The said training course was of 10 weeks duration. As regards the requirement of basic training course as prescribed by the Director General from time-to-time, it is on record that the petitioner has obtained the said qualification. In this connection, the petitioner has referred to Annexure 6 movement order dated 28.5.2007. The said training course was of 10 weeks duration. However, later on the BSF authority insisted for training course of 36 weeks which has again been reduced to 4 weeks as per Annexure 5 communication dated 9.4.2010 annexed to the additional affidavit filed by the petitioner. 4. It is on the above basis, the claim of the petitioner is that he is entitled to get consideration for promotion, which he ought to have been called to appear in the DPC. However, he was not called for to appear in the DPC. 5. When the petitioner agitated his grievance relating to non-consideration of his case as per requirement of the aforesaid Rules of 2006, he was communicated with the impugned communications dated 24.7.2009 (Annexure 10) and dated 10.8.2009 (Annexure 11) For a ready reference both the communications are quoted below : "No. 27/1024/BSF/TPT/07-P/2385 Government of India Ministry of Home Affairs Directorate General Border Security Force (Prov. Dte: TPT) Block No. 10, CGO Complex Lodhi Road, New Delhi-03 Dated the 24th July, 2009 To, HC(VM) Dinesh Kumar Prajapati Sector MTWKSP Shillong Sub : MANDATORY COURSES FOR PROMOTION This is with reference to your request addressed to DG BSF dated 5.5.2009. 2. Various details related with your promotion from HC(VM) to SI (VM) have been reconciled in Pers. Dated FHQ and Prov. Dated FHQ. Reply with respect to the points raised by you in your application are given as under: (i) As mentioned in your application that you joined as HC(VM) in August 1995. At the time that you joined the Force, Recruitment Rules with respect to MT Workshop personnel were not available. Hence, it was not feasible to inform you at that point of time, about exact procedure for promotion from HC(VM) to SI (VM). In the absence of RRs for MT Workshop personnel, the only way to provide further promotion to HC (VM)'s was through GD channel from HC/VM to SI (GD) as per procedure and guidelines in the Force. (ii) Subsequently, RRs for MT Workshop were approved by the Government in the year 2006. In the absence of RRs for MT Workshop personnel, the only way to provide further promotion to HC (VM)'s was through GD channel from HC/VM to SI (GD) as per procedure and guidelines in the Force. (ii) Subsequently, RRs for MT Workshop were approved by the Government in the year 2006. Consequent upon availability of the RRs, the exercise of induction of existing personnel in the MT cadre was initiated. As it involved collection, compilation and consolidation of data from all over the Force, it took more than two years time. Till the time, the final list of MT Workshop personnel got approved for induction by Pers. Dte of FHQ, it was not possible to apply the procedure of promotion to personnel in this stream. Accordingly, the routine process promotion in CD stream continued so that the technical personnel of MT Workshop are not deprived of first available opportunity of promotion in GD stream if so decided by them. (iii) As mentioned in your application that you had been asked to undergo PPC list "D" in 2007 and yet you were not permitted appear in the DPC in the year 2008, the details submitted by SHQ/Ftr. HQ Shillong are as follows : "No. 960086007 HC/VM Dinesh Kumar Prajapati enrolled as HC/VM in BSF MTWKSP wef 23.3.1996 (FN). As per RR 2002, HCs of the force, having not less than 5 years regular service as HC together with total of 18 years of service and possessing all pre-requisite conditions are eligible for promotion to the rank of SI. Since said individual had not completed 18 years service, hence, not allowed to appear in DPC list "D" held in the year 2008. As per FHQ Trg. Dte Sig No. T/4206 dated 28 February, 2007, HCs having seniority up to 15.5.2007 restricted up to central seniority SI. No. 7150 for General category and SC/ST category having seniority up to 10.10.1997 restricted to central seniority SI. No. 10450 had to undergo PPC list "D". Since the individual falls within cut off seniority SI. No. 6296, he had undergone PPC list "D" held at STC BSF CC Pur wef. 4.6.2007 to 18.8.2007." 3. From the details provided by SHQ Shillong, it has been amply clarify as to why you were asked to undergo PPC list "D" in 2007 and why you were not allowed to appear in the DPC in 2008. 4. No. 6296, he had undergone PPC list "D" held at STC BSF CC Pur wef. 4.6.2007 to 18.8.2007." 3. From the details provided by SHQ Shillong, it has been amply clarify as to why you were asked to undergo PPC list "D" in 2007 and why you were not allowed to appear in the DPC in 2008. 4. Further with regard to mandatory courses, necessary for promotion from HC/VM to SI/VM, you have mentioned that since you have passed PPC list "D" and you have undergone 3 years Automobile Engineering Diploma and, hence, DG BSF should promote you to the rank of SI and with the same seniority as entitled. In this regard, it is clarified that you may choose to take promotion in GD stream or technical stream as you desire. In case you choose to seek promotion in GD stream, you may be asked to appear in DPC as and when eligible and shall be promoted as SI (GD) if cleared by the DPC and subject to fulfillment of other terms and conditions. In case you choose promotion in the Technical stream, you will have to undergo required courses as per laid down procedure and then be promoted to the rank of SI/VM. 5. Finally your contention that instructors detailed to impart training during the conduct of mandatory courses, should be technically superior to you, is not tenable and not accepted because the instructors in the training centers are selected after careful scrutiny and all of them are quite capable of imparting training on the subject allotted to them. Hence, in case you choose to seek promotion in the technical stream, you will have to undergo mandatory course, where the selection of instructors cannot be dictated by you. It should be left to the ingenuity of senior officers to arrange suitable instructors for the laid down curriculum irrespective of their rank and qualification. 6. It may also be mentioned that, while there were some uncertainties and confusion over promotion from HC/VM to SI/VM due to non-availability of RRs, however, this should not have been a reason for frustration as expressed in the letter under reference. It is also mentioned that the language and tone and tanner of the contents of the letter are not commensurate to the ethics of the force and may be better avoided at your level. It is also mentioned that the language and tone and tanner of the contents of the letter are not commensurate to the ethics of the force and may be better avoided at your level. You may soon choose the right stream for you promotion and take the promotion as suited best in your opinion. Sd/- Dy. Inspector General (TPT)" "No. 27/1024/BSF/TPT/07/2523-25 Government of India Ministry of Home Affairs Directorate General Border Security Force (Prov. Dte: TPT) Block No. 10, CGO Complex Lodhi Road, New Delhi-03 Dated the 10th August, 2009 To, No. 960086007HC(VM) Dinesh Kumar Prajapati SHQ BSF, Shillong (Through FTR HQ BSF Shillong) Sub: PROMOTION OF HC(TECH) HAVING 3 YEARS DIPLOMA IN AUTOMOBILE ENGINEERING This is with your reference to your request on the subject addressed to DG BSF dated 7.1.2009. 2. In this regard, it is to inform you that detailed clarification related to your promotion from the rank HC(VM) to SI (VM) has already been forwarded to you vide this office letter No. 27/1024/BSF/TPT/07-P/2385 dated 24th July, 2009 (Copy enclosed) in response to your request/application dated 5.5.2009 addressed to DG BSF Further, it is to finrom that as per para 13 senior No. 03 of FHQ BSF Pers. Dte. letter No. 17/103/2003-Pers./BSF/38929-98 dated 17 December, 2008, pre-promotional Trade Training Course Level-I for 36 weeks, in which 2-3 weeks may be devoted for stream specific advance training is one of the eligibility criteria for promotion from HC (Tech.) to SI (Tech.) which is mandatory irrespective of the fact that one is holding diploma in Auto-mobile Engineering. 3. On the other hand diploma in any one of the Automobile, Auto (Electrical) Engineering or Mechanical Engineering is essential qualification for direct entry to the post SI (Tech). 4. As per para 8 of FHQ BSF (Pers. Dte.) letter under referred above, total posts of SI (Tech.) are to be filled up 75% by promotion and 25% by direct Rectt. HC (Tech.) with at least 10 yeas regular service in the grade; or with at least 5 years regular service in the grade with at least 18 years combined regular service in that grade and any other grade in the BSF and possessing other technical and professional qualification, will be eligible for promotion to the rank of SI (Tech.). HC (Tech.) with at least 10 yeas regular service in the grade; or with at least 5 years regular service in the grade with at least 18 years combined regular service in that grade and any other grade in the BSF and possessing other technical and professional qualification, will be eligible for promotion to the rank of SI (Tech.). In all above cases for promotion from HC to SI, whether personnel are in Technical grade or GD total regular service should be at least 18 years. 5. In your case you have not completed 18 years of regular service. As such your case will be considered by the DPC accordingly. Sd/- Dy. Inspector General (TPT)." 6. If we go by the aforesaid communications and the contents thereof what was conveyed to the petitioner is that since he had not completed 18 years of continuous service in BSF, his case did not come within the purview of consideration. 7. In the counter affidavit filed by the respondents, it has been stated that as per the earlier Recruitment Rules of 2002, the petitioner was not eligible for promotion as he had not completed 18 years continuous service. It has further been contended that with the constitution of the particular service, the process for absorption was carried out and final absorption was made in the year 2009. As per the list prepared for the purpose, the petitioner's position is at serial No. 32 of the list of Head Constables (VM). After issuance of the aforementioned absorption order all the existing technical persons of the Force in MT Workshop cadre on the basis of inter se seniority in each rank, central seniority list of absorbed personnel has already been published vide order dated 10.12.2009 wherein the name of the petitioner appears at serial No. 17. 8. In paragraph 13 of the counter affidavit, it has been stated that as per the new Recruitment Rules of 2006, J5% of the post of SI (Tech.) are to be filled up by promotion from amongst Head Constable (Tech.) with at lest 10 years regular service in the grade or with at lest 5 years regular service in the grade with 18 years combined regular service in that grade and any other grade in the BSF. Further the requirement of the training, etc., has also been indicated in the said paragraph. 9. Further the requirement of the training, etc., has also been indicated in the said paragraph. 9. If we go by the aforesaid stand of the respondents in their impugned communications dated 24.7.2009 (Annexure 10) and dated 10.8.2009 (Annexure 11) and the counter affidavit, no definite and concrete stand of the respondents is discernible. At times, it has been stated that the petitioner is not eligible for consideration for promotion he having not completed 18 years of continuous service and at time, it has been contended that the petitioner will have to qualify in the requisite training, etc., but has not denied that the petitioner has already attained the requisite qualification by undergoing requisite training, etc. 10. Mr. N. Mozika, learned counsel for the petitioner has submitted that irrespective of the issue as to whether the petitioner has completed basic training or not, his case is required to be considered in view of the provision of rule 7 of the 2006 Rules. Rule 7 provides that a person eligible for promotion to next higher grade but has not qualified the courses prescribed for the post shall be appointed on promotion in the next higher grade but his continued retention in the post shall be subject to qualifying the courses within a period of two years from the date of notification of the Rules. This relaxation shall be deemed as ceased after completion of two years period. 11. In view of the above, it is the submission of the learned counsel for the petitioner that although the petitioner possesses all the requisites for promotion to the post of SI (VM), but even if the respondents are not satisfied with the said qualification, his case is required to be considered in terms of rule 7 of the Rules. 12. Mr. S.C. Shyam, learned CGC on the other hand submits that since the petitioner with initial constitution of the cadre was absorbed in the year 2009, has length of service will be counted from the said year of absorption and not otherwise. He submits that seniority position of the petitioner does not permit consideration for promotion to the cadre of SI (VM). 13. The aforesaid Rules of 2006 was promulgated exercising the power conferred by clause (b) and clause (c) of sub-section 2 of section 141 of Border Security Force Act, 1968. Rule 4 speaks of initial constitution of service of the cadre. 13. The aforesaid Rules of 2006 was promulgated exercising the power conferred by clause (b) and clause (c) of sub-section 2 of section 141 of Border Security Force Act, 1968. Rule 4 speaks of initial constitution of service of the cadre. The personnel holding the post on regular basis immediately before the commencement of the Rules, shall be deemed to have been appointed in accordance with the provisions of the Rules. Rule 4(2) provides that regular continuous service of personnel mentioned in sub-rule (1) in the respective cadre immediately before commencement of the Rules shall be counted for the purpose of probation period, qualifying service for promotion, confirmation and pension in the service. 14. The initial constitution of the cadre with stipulations made in rule 4 of the Rules 2006 leaves no scope for endeavouring that 10 years of regular service in the grade will be counted from the date of absorption in 2009 and not otherwise. Rule 4 makes it abundantly clear that entire length of service rendered prior to commencement of the Rules will be counted not only for other purposes, but also for promotion. 15. Admittedly the petitioner having been appointed in the year 1996, he has completed 10 years of continuous service and, thus, fulfils the requirement of the aforesaid Rules of 2006. As regards the basic training course as prescribed by the Director General from time-to-time, the petitioner has already undergone the said basic training. Although the respondents have also taken the plea that the particular training course undertaken by the petitioner does not conform to the requirement of the said Rules, but there is only vague and indefinite stand in the counter affidavit to the effect. There is no definite stand that the petitioner is required to undergo further training. In this connection, learned counsel for the petitioner has referred to Annexure A/5 letter dated 9.4.2010 annexed to the additional affidavit so as to contend that the initial duration of 10 weeks training was subsequently enhanced to 36 weeks, but now it has been reduced to 4 weeks. He has further submitted that when the petitioner had undertaken the said training course, there was no requirement of undertaking 36 weeks training course and the said duration cannot be applied retrospectively. 16. He has further submitted that when the petitioner had undertaken the said training course, there was no requirement of undertaking 36 weeks training course and the said duration cannot be applied retrospectively. 16. From the above discussions, what has emerged is that the petitioner conforms to the requirement of the 2006 Rules for consideration for promotion to the grade of SI (VM). The stand of the respondents in their impugned communication and the counter affidavit is somewhat vague. Admittedly the requirement of 18 yeas of continuous service has been done away with and now as per the new recruitment rules of 2006, the requirement is 10 years of continuous service in the grade of Head Constable (VM) which the petitioner fulfills. As regards the requisite training, the petitioner has undergone the same as indicated in Annexure 6 Movement Order dated 28.5.2007. Even otherwise also rule 7 of the Rules being applicable, his case is required to be considered. According to the petitioner, the requirement of duration of the training course has further been reduced by Annexure 5 letter dated 9.4.2010 annexed to the additional affidavit. 17. In view of the above, I am of the considered opinion that the respondents are required to consider the case of the petitioner for promotion dispassionately and consistently with the observations made above. Accordingly, the writ petition is disposed of directing the respondents to consider the case of the petitioner for promotion as per the requirement of the Rules of 2006 taking into account the observations made above as expeditiously as possible, but any late, not later than 31.8.2011. _____________