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2016 DIGILAW 243 (JK)

Raj Kumar Sharma v. Union of India & Ors.

2016-05-02

RAMALINGAM SUDHAKAR

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JUDGMENT The writ petition has been filed for two relief(s) one to quash order No. 07/16/2005/C-Estt/BSF/2213-14 dated 05.03.2009 and another to issue writ of mandamus to the respondents to give retrospective effect of promotion and seniority to the petitioner to the post of ASI/RM w.e.f. 01.06.1991 and to fix the seniority of the petitioner on the post of ASI/RM. 2. Brief facts of the case are as follows: Petitioner was appointed as Constable RM and allotted No. 86588006. He under went basic training at 25 Bn Delhi and underwent training at RM-III Frontier Headquarters, Jammu and promoted to the rank of Head Constable after RM-III on 01.10.1988. On 25.09.1991 the petitioner was promoted as ASI RM-II and promotion to the rank of SI RM-I was accorded to him on 01.04.2008. It is also not in dispute that in June 1991 all other eligible candidates were promoted but the petitioner was aggrieved by non-consideration of his claim for promotion as ASI/RM. He made representation on 10.06.1991 to the Inspector General (Comm) then another representation on 11.06.1991 (Annexure C) and then on 02.07.1991 (Annexure D). Thereafter DPC was conduced and his claim was considered along with one Vijendra Kumar and he was found fit and promoted by proceedings dated 25.09.1991 to the rank of ASI/RM. After getting promotion, he made a detailed representation dated 12.10.1998 seeking refixation of his seniority and correction of his date of birth on the ground that the case of Vijendra Kumar, which was deferred in the DPC of April, 1991, was subsequently promoted to the rank of ASI/RM along with petitioner and his seniority was also restored, whereas the case of petitioner to the same effect was not considered. He, therefore, sought for refixation of seniority as was done in the case of Vijendra Kumar and also for correction of his Date of Birth. He followed the matter by making representation dated 05.01.2001 (Annexure G). This request of the petitioner was considered by the competent authority by a letter dated 08.01.2002 (Annexure H) and the case was forwarded to higher authority. In this recommendation it has been indicated that the seniority of the petitioner has been rightly fixed at serial No. 330. Thereafter, petitioner sends another representation dated 25.10.2005 on the same lines recapitulating the factual background. This is followed by another representation dated 17.06.2006 (Annexure K), next representation on 21.10.2008 (Annexure L). In this recommendation it has been indicated that the seniority of the petitioner has been rightly fixed at serial No. 330. Thereafter, petitioner sends another representation dated 25.10.2005 on the same lines recapitulating the factual background. This is followed by another representation dated 17.06.2006 (Annexure K), next representation on 21.10.2008 (Annexure L). The impugned order came to be passed on 05.03.2009 which reads as follows: “No. 07/16/2005/C-Estt/BSF/2213-24 Government of India Ministry of Home Affairs HQ Directorate General border Security Force (Communication & IT Directorate) Block No. 10, CGO Complex Lodhi Road, New Delhi-03 Dated, the 05 March 2009 To The Director BSF Academy, Tekanpur Sub: FIXATION OF SENIORITY I am directed to refer you L/No. 3249/Estt-I/NOC/2008/12257 dated 24 October 2008 forwarding therewith an application submitted by No. 86588006 ASI/RM (Now SI/RM) Raj Kumar Sharma (52 BN BSF) now posted at BSF Academy Takenpur. 2. The request of the individual has been examined in detail with reference to the remarks of the Inspector General on SCOI and DFC guidelines prevalent during the period when the DPC was held on 12th April 1991. Since he could not makde the grades assessed by the DPC held on 12.04.1991 hence he was not recommended for promotion. 3. It is pertinent to mention here that DPC enjoy full discretion to devise their own methods and procedure for objective assessment of the suitability of the candidates who are to be considered by them. 4. Later the subsequent DPC held on 06.-07 August 1991 declared him fit for promotion and accordingly he was promoted to the rank of ASI/RM. Therefore claiming of seniority by the individual at this belated state has no merit and as such rejected by the competent authority. 5. The applicant may be informed accordingly. (R.K. HAJELA) DIG (C-Estt) HQ DG BSF, New Delhi” 3. The writ petitioner has filed present writ petition challenging the seniority and other consequential benefits of promotion to the post of ASI/RM. 4. Respondents have filed their objections primarily contending that there is delay on behalf of petitioner and, secondly, the case of Vijendra Kumar is different from that of the petitioner which is evidence from Para 15 of the counter affidavit which reads as follows: “15. That in reply to averments made in Para No. 15 of the writ petition, it is submitted that so far the question of seniority of NO. That in reply to averments made in Para No. 15 of the writ petition, it is submitted that so far the question of seniority of NO. 866320009 HC/RM Vijendra Kumar of 49 Bn BSF is concerned, his ACR for the year 1989-90 was found to be wrongly initiated by Commandant 49 Bn BSF instead of Ftr HQ BSF Jammu, where the petitioner was actually working. When this matter was brought to the notice of Competent Authority by individual, his fresh ACR from Ftr. HQ BSF Jammu was produced before the review DPC which was considered by DPC and he was declared FIT for promotion to the rank of ASI/RM and then promoted to the rank of ASI/RM w.e.f. 01/06/1991 i.e. along with his batch considered by DPC on 12/04/1991. Whereas the petitioner was considered on the basis of Annual ACR in review DPC held on 06 & 07 August 1991 and was promoted on 18/09/1991.” 5. In this background of the case, it is to be seen whether the writ petitioner has made case for considering his claim for quashing the impugned proceedings and for consequential relief of mandamus as prayed for. 6. Going to the facts, it is evident that the petitioner’s claim is that he should be considered on parity with all other similarly placed persons promoted by the DPC held in April 1991. That contention was rejected because he was found not to be meritorious. Petitioner, therefore, cannot plead that non-consideration in DPC of April 1991 is bad. Further claim of the petitioner is that in the case of Vijendra Kumar, who was also not considered in DPC of April 1991, has been given certain benefits, namely, seniority which, however, was denied to the petitioner. In the counter affidavit respondents have placed certain facts countering the stand taken by the petitioner stating that he is not qualified in the DPC of April 1991. He was, however, considered and selected in the subsequent DPC and, therefore, he cannot seek parity with those who have been selected in DPC of April 1991. That stand taken by the respondents is justified. The question is whether the claim of Vijendra Kumar was given a favorable treatment though he was on same pedestal as that of the petitioner is a question of fact which cannot be gone into by this Court. The authority can alone consider the said plea. That stand taken by the respondents is justified. The question is whether the claim of Vijendra Kumar was given a favorable treatment though he was on same pedestal as that of the petitioner is a question of fact which cannot be gone into by this Court. The authority can alone consider the said plea. Accordingly, 2nd respondent is directed to consider the claim of the petitioner in light of his assertion that he should be given benefits on parity with Vijendra Kumar. It is made clear that if the consideration for promotion in respect of Vijendra Kumar is found on a totally different perspective, the petitioner would not have any right to claim such relief. This is a factual aspect and authority has to decide on merits. 7. In such view of the matter, the writ petition is disposed of with a direction to the authority concerned to consider the claim of petitioner on its own merits and inform the petitioner within eight weeks from the date of receipt of copy of the order. 8. Writ petition disposed of accordingly.