Full Text
W.P.(C) 5839/2015
RAHV RANJAN
Date of Decision: 17.09.2015 Petitioner
Through: Mr Padma Kumar S,, Adv.
Through^ Ms-Saroj Bidawat:,and Ms Manisha, Advs.
W.P.(C) 5853/a,015,-,. " "" SATENDR^M^lAN Petitioner
N't. tf S., Ad^- % Ia
Respondfents Petitioner r
ThroughTMrPaidma Ptuniar S.,Adv.
Through: Mr R.Mishra and Mr M.K. Tiwari, Advs.
PRAMOD KUMAR NAIK Petitioner
Through: Mr Padma Kumar S., Adv. W.P.(C) No. 5839, 5853, 2664, 2667 of2015 and 163 of2014 Page 1
2015:DHC:11384-DB
Through: MrR.Mishra andMr M.K.Tiwari, Advs. alongwith Mr Arvind Sharma, DC, BSF
And
DEVENDER KUMAR VERMA Petitioner
ThroughiMr:Prashant,Sivarajan, Adv.
UNION OF INDI^pr^l J ^ .„.;%sponde|its
4-^" ..;Throijih: MryMiyek Goyalfijosi^r respondeniiv^-
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MR. JUSTICE S. RAVINDRA BlMr4(QBEN COURT)
The writ petitions are p For detailed
JUDGMENT
5830/2015 titledShoorvPSjh^^^piy^ Ots. may be referred r
S. RAVINBRA ^JHAT (JUi)G^54.
^ b DEEPA SHARMA (JUDGE)
SEPTEMBER 17, 2015 BG W.P.(C) No. 5839, 5853, 2664, 2667 of2015and 163of2014 Page 2
HIGH COURT OF DELHI
Date of Decision: 17.09.2015
SHOORVIR SINGH NEGI Petitioner
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RAJIVI&NJAN • ''i, h'f/' ;J yetitioner
Through "N^r Padma Kumar S., Adv W
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-c^MasMo UNION OF I^^^;^;^ORS - Respondents '<tjhr(iu|h'Ms^SarqjiBidawat and Ms Mani
^nd" ^
SATENDRA MOHAN . Petitioner
Through: Mr PadmaKumarS., Adv.
Through: Ms Saroj Bidawat and Ms Manisha, Advs.
And
RAJESH KUMAR SINHA Petitioner
Through: Mr R.Mishra and Mr M.K. Tiwari, Advs.
W.P.(C) 2667/20r5 ^ PRAMODp j M A R . . Petitioner
V- ThroughrMr^
UNION OF INDIA & ORS • '• .....Respondents
Through:'-1^r;R.Mis^^ and Mr M.K.^Tiwari, Advs.
A ,aion^i^itli|^fe Sh^ma, DC, BSF
DEVENDER KUMAR VERMA Petitioner
Through; Mr Prashant Sivarajan, Adv.
Through: Mr Vivek Goyal, CGSC for respondents along with Mr Arvind Sharma, DC, BSF
HON'BLE MS. JUSTICE DEEPA SHARMA MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
1. In all these petitions, the common grievance urged is that the petitioners are entitled to reckon their seniority andpensionable service with effect from the date they were declared as successfiil candidates in the original selection process in which, th^y.-participated The facts pertaining to W.P.(C) Nos.5830/2015;' 5839/i0V[5];'5853/20y726^4/2015 and 2667/2015 are common inasrijucli as the ^petitioners ^hadiparticipiated in^the recruitment process and were declared successful for the examination lield in the year 2000..V. / •..,. 'i • • ' \. t •>'. I.
2. It is contended that the position taken by the Border S^fecurity Force (BSF)—the maiii respondent—in^lMi^^Miiority with effectfrom the date of continuous seryice based-upoii its inteipretatioii,of Rule, 8 of the Border • "" " r- v' Security Force Ruleis, 200fjs untenable. v /
3. The brief facts nccessary for deciding the. cases are that all petitioners were declared successful in the recruitment process in, which they originally participated—mostly in the year 2000. Apparently, the examination was held in 1999 and the results were declared thereafter the next year. The petitioners were initially declared unfit for one reason or the other. When they were declared fit, the petitioners joined the concerned batch/batches according to the availability of vacancies in the batch of training. The facts relating to W.P.(C) No.5830/2015 are that the writ petitioner was found unfit on account of knock knee on 16.03.2002. After his Review Medical M Board on 17.01.2003, he was declared fit. He thereafter joined in the year
2004. In W.P.(C) No.5839/2015, the petitioner was declared medically unfit on 11.02.2002 on account of hydrocele. He apparently underwent surgery and was subsequently declared fit. However, he could not immediately be appointed because there was a discrepancy in the name as between the certificate produced by him and name disclosed in the application form. Ultimately, he could join onlyin January, 2005. In W.P.(C) No. 5853/2015, the petitioner was declared unfit on account ofhyper tension and obesity. On examination by the Review B6ai;drrQnjjl[8],Q6^^ he was declared fit; he too joihedvthe' service,later sometime in 2004. In W.P.(C) No.2664/2015, the?petitibner was declared,unfiton account of hydrocele. On account of the.subsequent corre9tive surgery, he was examined by the Review MedicalBoard which declared him on 16.01.2003. Rejoined the BSF subsequefitly in the later [batch>j^In W.P.(C) No. 2^67/2015, the petitioner was declared medically tiniitl^nf of ear problem Chronic Suppurative Otitis; Media;(eO.^S^^ subsequent"R^ Medical Board in February, 2003 deciafed him fit. He was subsequently appointed in 2004. The facts ofW.P.(C) No.r64/2dr[5] are somewh There appears to be an error in the medical examinMion as it was declared that he did not fulfil the requite height standard and was short by 0.[5] centimetre. The result of the Medical Board was declared on 25.01.2002. The petitioner sought review medical examination which was done on 17.04.2002. He was declared fit on 11.11.2002 and he subsequently joined the BSF.
4. All the writ petitioners contend that on account of the respondent's fault, they were kept away from employment and consequently made to report in subsequent batches—^not along with other recruits who were appointed in earlier batches. In other words, the petitioners joined subsequent batches of training unlike those who had participated in the year 2000 selection/recruitment process. This was not on account of their fault, but the BSF's own processes. It was submitted that consequently the interpretation placed upon Rule 8(2) and 8(3) to deny them the seniority at par with their batches originally joined, is arbitrary. Learned counsel for the petitioners relied upon the decision of this Court in Naveen Kumar Jha vs. Union ofIndia, W.P.(C) 7Vo.5<527/207^(decided on 02.11.2012). The Court on that occasion had relied upbri. a-decision.of this Court's earlier ruling in Avinash Singh V[5]. Union India <& Ors. W.P. (C}No.5.400/2010, (decided on 26.05.2011). the Court in Avinash Singh fsw/'ra):,highlighted as follows:- ^ A "17. It is settled law that if appointment is by selection, seniorityjbfthe entire batcl^lia^ reckoned with respect to the merit\position obtained in tlie selection and not on the fortuitous circumstance on the d^te on whiph.a person i[5] made tojoin. '
18. We highhghtjnthe mstantcase-thejorfuftous circumstance of the petitioners being madVto-joiliias Assi^ Commandant on 08.08.2005 is not the result of arijnthing created by the petitioners but is a result of a supine indifference and negligence on the part of the ITBP officials.
19. Thus, petitioners would be entitled to their seniority as Assistant Commandant with respect to their batch-mates in the context of the merit position in the select panel. We make it clear, the seniorityas Assistant Commandant of the entire batch would be a reflection of the merit position in the select list and not the date ofjoining." A^
5. In Naveen Kumar Jha (supra), after noticing the above observations, the Division Bench directed as foliows:- "11. On facts it needs to be noted that the seven petitioners of WP(C) No.5400/2010 had lost out on their seniority with reference to their merit position in the Select List due to delay in conducting their Review Medical Evaluation and in the interregnum their batchmates had joined ITBP.
12. On parity of reasoning and application of law the petitioner is held entitled to his seniority being refixed as a Sub-Inspector in CRPF with reference ^o \psf merit.j^sition at the SSC Combined Graduate:; Level 2000 Examination i.e. those who joined CRPF^'pursuant to the said examination'ih,]^a.rch 2003. The petitiqner ^tias already earned promotion to-the ^post of Inspector andlaccordingly we directthat he wouldIje entitled to seniority refixed in said rank with reference to his revised seniority;position in the rank';,of Sub-Inspector, and this|would mean that the petitioner wouiH be considered for promotion to the post of, Assistant Commaiidant'as per the revised seniority list. '
13. The respondents «.are therefore direc the seniority position of.the^petitio»nefrm^;thej^ ranks within a period of four weeks from.-today consider the petitioner along with other eligible persons for promotion to the post ofAssistant Commandant."
6. It is also argued that the petitioners cannot be made to suffer with respect to pensionary benefits on account of the fact that the delay was caused by the respondents in issuing the appointment letters. Having been declared fit by the Review Medical Board in all cases in 2002-2003, the fortuitous circumstance that the appointment letters led to theirjoining after thenew pension scheme came into force could not deprive them ofthe more beneficial provisions of the older pension scheme which ended on 31.12.2003. In support ofthis argument, learned counsel relied upon Naveen Kumar Jha (supra).
7. Learned counsel for the respondents relied upon an earlier Division Bench ruling of this Court in Roop Ram Kundu vs. UOI & Ors. W.P.(C) No.3342/1999 (decided on 16.08.2012). In that case, the petitioner had been declared temporarily unfit and was subject to another medical examination conducted later. He had overcome the-medical problem from which he was temporarily suffering and was subsequentlyfdeclared fit barely two months after the original d^laration of unfitness. The Court,rejected the claim for seniority based upon the" original results and stated as follows;- "6. Thus? any challenge to. petitioner's temporary inedical unfitness!fas per the review,vmedical board became a matter which no1longer is capable of' being adjudicated upon by any Court.
7. However, taking into account that the petitioner was being declared temporarily medically unfit, the authorities subjected the petitioner to another medical examination which was conducted in July 19, 1996. The petitioner had overcome the medical problem from which Hefwas temporarily suffering. He was opined to be medically fit and accordingly an appointment letter dated September 17, 1996 was issued.
8. Now, the petitioner prays that he be accorded seniority as per his merit position obtained at the examination with all consequential benefits.
9. Suffice would it be to state that as per Rule 19 of the BSF (Subordinate Officers and Under Officers) Promotion and Seniority Rules 1975, seniority in any rank has to be deteraiined on the basis of continuous regular appointment in that rank.
10. Being repeatedly declared temporarily medical unfit, till he was declared fit in September, 1996 resulting in appointment letter being issued oh September 17, 1996, would require petitioner to be placed with respect to seniority, not with reference to the merit position which he had obtained when the examination was conducted in the year 1992 more so for the reason W.P.(C) No. 149/1996 filed by the petitioner stands dismissed in default and revival whereof has not been prayed for.". 8. The Border Security Force General Duty Cadre (Non-Gazetted) Recruitment Rules, 2002, to the extent they are relevant, are extracted below:- ' ' - '
^ post. • 5-:;.-.,-,-, • (3) Subject to the provisions, of" sub-rule (2) seniority of direct entry Sub-Inspector shall be deten^ed in accordance - with merit oftheir selectionlhrough Staff Selection Board. Provided that the persons selected on an earlier batch will be senior to those selected in subsequent batches. Provided further that the seniority of Constables/Head Constables selected under Limited Departmental Competitive Examination Scheme as Sub-Inspector against reserved quota shall be determined in accordance with their merit of selection and shall be placed below the Sub-Inspector (Direct Entry) batch with whom they join training."
9. The petitioners highlight Rule 8(3) to say that seniority of direct entry Sub-Inspector would be determined in accordance with the merit of their selection through Staff Selection Board. Although this argument is attractive, the fact remains Rule 8(3) expressly states that it is ''subject to provisions of sub-rule (2)". This in turn means that the primary rule is ''continuous regular appointment in that rank". This Court is of the opinion that the question of an individual bemg appointed to the rank" would imply his joining the cadre. In all these caseS, the petitioners do not dispute that they had joined the; cadre or the concerned post only after they were declared medically fit by the Review Medical Board—in 2003. Though they were initially declared successful in the recruitment process, |their medical conditions constituted a barrier fbr^ their entry into the servic^^ That barrier was lifted on account of their overcoming unfitness and the subsequent determination of the Review Medical Board. Obviously therefore, they joined and started continuously working in the post of Sub-Inspector from the later dates. This interpretation is supporfed by the judgment in Roop Ram Kundu (supra)—a proceeding initiated as far back as in 1999 when the petitioner claimed seniority of merely three months. He was initially declared temporary unfit in July, 1999, but was subsequently declared successful in September, 1999. In the interregnum in Roop Ram Kundu (supra), the original batch to which he belonged had already joined the training. He was, therefore, directed to join the subsequent batch. This Court is of the opinion that the BSF's position cannot be faulted given the fact that he entered the cadre or joined the post subsequently. Hy
10. At some stage, counsel in one of the proceedings W.P.(C) No. 163/2014, relied upon the order in Ram Pal Deshwal V[5]. UOI & Ors. W.P.(C) No.393/2008 (decided on 07.03.2011) to state that Rule 8(2) is really meant for regulating seniority of promotees. In Ram Pal Deshwal (supra), the Court observed as foliows:-
14. Suffice would it be to state that sub-rule (2) would apply in case of promotion and where the promotion is ad-hoc, temporaiy or stop-gap i.e. fortuitous, seniority would rank on the basis of continuous regular employment. The proviso to sub-rule (2) makes clear the ambit of the sub-rule. The proviso deals with promotions and carves out an exception to what is contemplated by sub-rule (2). The proviso, therefore, highlights the ambit of sub-rule (2)a ', '
11. This Court is. of the opinion? that'8(1) firstly states a general principle, i.e., those holding higher rank whether in an officiating or "1/ jV- \i I - I' 'V •! j substantive capacity would be senior to/persons those holding,a lower rank. Rule 8(2) then.prescribes a;ppiiciple of universal application, i.e., the senioritv in any iank- fee basis of continuous regular appointment in that faiilc; Thirdly, the proviso of Rule 8(2) states that the seniority ofthe two iridiyi%ais hoidiiig the sam^^ "and promoted on the same day" shall be determined in accordance with the order of selection for appointment to that post. In other words, the provision carves out an exception from the general rule prescribed in Rule 8(2) of seniority on the basis of the regular appointment to the rank. The exception is that in case of promotees, the seniority is to be determined "in accordance with the order ofselection for appointment to that posf\ However, the proviso is silent,as to the matters left out which are part of the main provision, i.e.. Rule 8(2). The corollary irresistibly, therefore is that Rule 8(2) applies for other categories, i.e., direct recruits. If one were to construe Rule 8(2) in this manner, the mandate of Rule 8(3), i.e., that seniority of direct entry Sub- Inspector would be determined in accordance with the merit of their selection, is a rule to guide inter se merit of those who are appointed in the same selection process. However, it would not in any way disturb or detract from the application of Rule 8(2), i.e., the seniority in the rank has to be determined on the basis of continuous regular appointment.
12. This Court does not read proviso to Rule 8(2) in the manner sought to be urged or as appears to have been readyin Ram Pal Deswal (supra). This is for the simple reason that, the provision carves out an exception only for promotees andits ititendment caimoitibe extended beyond what is prescribed. (see S.Sundaram Pillai vs. Vk^^abimrhan, 1985 SCR (2) 643 for the effect ofoperatidn ofproviso). V;
13. Respectfully, we differ froni'NaveeniKumar Jha (supraf^din^ Avinash Singh (supra) as we find that no 'ciiscussim^^^ arule akin to Rule 8has been made in these judgments. In ouir-opiiiiori^^ M of the question of how senioritymust be calculated for the present petitioners. We are also mindful that interferihg'in^the rhanher sought will upset already settled seniority lists and affect persons who are not parties before us. We prefer instead the view taken in Roop Ram Kundu (supra), a decision that was not brought to the notice of the court in either Naveen Kumar Jha (supra) oxAvinash Singh (supra).
14. In view of the above discussion, we are of the opinion that the petitioners claim for seniority from the date their batch mates or original batch mates who were otherwise appointed in the nonnal circumstances in 2000-2001 carmot succeed.
15. As far as the claim for pensionary benefits based upon the old pension scheme which ended on 31.12.2003 is concerned, we are ofthe opinion that a somewhat different result would have to follow. Undoubtedly, all the petitioners were declared medically fit by 2003.However,they could not be issued with appointment letters and joined subsequently in 2004 or 2005.It is here thatthe observations in Avinash Singh (supra)quoted with approval in Naveen Kumar Jha (supra) become relevant. Although the petitioners were declared fit earlier—at least much before the cessation of the old pension rules, there was.aif^ministrative^efe^&Jn the issuance of tK "i appointment letter asfEing them'^to jmn^aimng; In^thesp circumstances, im theinterestsofjustihe^^^we hol^t%^fhe^s;^ouM beerit|tledl^the benefitsof theoldpensionslie^;
16. The writ.petitions are alloA^ed^d^lUfo the above extent' i.e., that the I 1 petitioners are entitled to the benefits 01|tne|old pension scheme' No costs. I I ■''U JgSik B i? I fl ■ -o; '^S/RAVINDRA BHAT (JUDGE)
DEEPA SHARMA (JUDGE) SEPTEMBER 17, 2015 BG W.P.(C) No.5830, 5839, 5853, 2664, 2667 of2015 and163 of2014 Page 12