Jeewraj Singh Shekhawat v. Union of India

16. The representation of the petitioner against the same was rejected vide letter dated 16.02.2022. Submissions of the learned counsel for the petitioner

17. The learned counsel for the petitioner, by placing reliance inter alia on the Judgment of this Court in Rakesh Kumar v. Union of India & Ors., 2024 SCC OnLine Del 4886, submits that once the petitioner, in accordance with the Rules, has been granted a retrospective seniority to the post of Assistant Commandant, for all purposes, the date of appointment to the said post has to be considered as 17.08.2004, that is, when his immediate junior Sh. Ajay Kumar was appointed to the said post, and the consequent relief of subsequent promotion and NFFU granted to him on that basis. Submissions of the learned counsel for the respondents

18. On the other hand, the learned counsel for the respondents submits that in terms of the Rules, 10 years Group ‘A’ service, including 5 years service in the rank of Deputy Commandant, is mandatory for the promotion of 2-I/C. Further, as per the provisions contained in paragraph 7 of the said Rules, officers who have completed their qualifying or eligibility service, as prescribed in the Schedule annexed to those Rules, shall only be considered for appointment or promotion or deputation to the grade or grades if they are in Medical Category ‘SHAPE-I’ as specified under the Standing Order No. 04/2008 dated 15.12.2008 issued by the Director General, CRPF.

19. He submits that the petitioner was promoted to the rank of the Assistant Commandant on 23.10.2009. He was eligible to be considered for promotion to the rank of 2-I/C in the following DPCs in terms of his seniority in G/list of Deputy Commandant, but, as he was falling short of 10 years Group ‘A’ service and 5 years residency period as on the crucial date of DPCs, the case of the petitioner for relaxation in his eligibility conditions along with other identical cases was submitted to Ministry of Home Affairs (in short, ‘MHA’). MHA, vide noting dated 19.02.2019, did not grant relaxation in the residency period to the petitioner. Accordingly, the name of the petitioner was not included in the zone of consideration by the DPCs as the belowmentioned criteria for promotion to the rank of 2-I/C were not fulfilled:- S/No. Vacancy year Short in Group ‘A’ service as on crucial date of DPC Short in residency period on crucial date of DPC

1. 2017-18 02 years 06 months and 22 days 06 months and 20 days

2. 2018 01 year 6 months and 22 days -

3. 2019 09 months and 22 days -

20. He further submits that, subsequently, the name of the petitioner was considered for promotion to the rank of 2-I/C by the supplementary DPCs convened on 23.12.2020 for the vacancy in the year 2020, and on being found fit by the DPC, he was promoted to the rank of 2-I/C with effect from 04.01.2021.

21. He submits that as far as seniority is concerned, the same is governed by the GOI, DoP&T OM No. 22011/7/86-Estt(D) dated 03.07.1986, which provides that where a person is considered unfit for promotion and is superseded by his junior, such person shall not, if he subsequently is found suitable and promoted, take seniority in the higher grade over the junior person who had superseded him. He submits that as Shri Ajay Kumar was promoted on 19.03.2018 from the panel of DPCs for vacancy year 2017-18, while the petitioner was promoted to the rank of 2-I/C with effect from 04.01.2021 with respect to the panel of supplementary DPC for the year 2020, his claim for re-assignment of seniority in the rank of 2-I/C at par with Shri Ajay Kumar cannot be acceded to.

22. On the claim of NFFU, he submits that the Screening Committee in the meeting held on 24.04.2020, found the petitioner unfit as he had not completed 10 years Group ‘A’ service as on 01.04.2017, having been promoted as Group ‘A’ officer only on 23.10.2009. It was by the meeting of the Screening Committee held on 09.03.2021, that the petitioner was found fit for grant of NFFU in JAG with effect from 01.01.2020 and, accordingly, the same was granted to the petitioner vide Order dated 10.06.2021 with effect from 01.01.2020. Analysis and findings

23. We have considered the submissions made by the learned counsels for the parties.

24. The controversy in the present case started when the petitioner was sent on deputation abroad with effect from 21.06.2001. He was released by his borrowing organisation only on 01.05.2007. In the meantime, his batchmates were promoted to the rank of Assistant Commandant with effect from 17.08.2004. The petitioner could not be promoted as he could not undergo SICC SL. No. 65 along with his batchmates having not been relieved by his borrowing department.

25. The respondent acted as a model employer and protected the chance of the petitioner at the seniority for promotion to the rank of Assistant Commandant, vide Orders dated 15.10.2007 and 12.11.2007. On his repatriation to his parent organisation, the petitioner cleared the promotional course SICC SL.No. 79, and vide Signal dated 23.10.2009, was promoted to the rank of Assistant Commandant. The seniority of the petitioner was re-fixed above his immediate junior- Shri Ajay Kumar vide Order dated 22.09.2011.

26. For the rank of Deputy Commandant also, though Shri Ajay Kumar had already been promoted to the post of Deputy Commandant in the year 2011 itself, when the petitioner was finally promoted to the said rank vide Signal dated 21.08.2012, vide Order dated 14.08.2013, his seniority was reassigned by placing him above his immediate junior- Shri Ajay Kumar.

27. From the above, it would be evident that the respondents themselves had recognised that it was not due to the fault of the petitioner that the petitioner could not earlier be promoted to the rank of Assistant Commandant and later to the rank of Deputy Commandant along with his batchmates. It was due to circumstances beyond his control, that is, for him not being relieved by his borrowing department, that he could not obtain these ranks along with his batchmates.

28. Unfortunately, the respondents for the rank of 2-I/C, however, have not adopted a similar benevolent attitude towards the petitioner. They have acted strictly in accordance with the Rules, which require 10 years Group ‘A’ service and the residency period of 5 years, for depriving the said rank to the petitioner along with his batchmates. The petitioner could not complete the above said eligibility period along with his batchmates only for the reasons which have already been recognised by the respondents to be beyond his control and for which the respondents themselves have given the benefit of retrospective seniority to the petitioner while promoting him to the rank of Assistant Commandant and the Deputy Commandant. In our view, therefore, the denial of retrospective seniority to the petitioner in the rank of 2-I/C along with his batchmates and above his immediate junior in the said rank, cannot be sustained.

29. Similar is our opinion on the denial of NFFU to the petitioner along with his batchmates.

30. In support of our above conclusion, we place reliance on the Judgment of our Court in Jay Pratap Singh v. Union of India & Ors., 2015 SCC OnLine Del 7276, wherein, this Court was confronted with a situation where the petitioner therein was not found eligible to be kept in the zone of consideration for promotion to the post of Inspector as he had not rendered 2 years service in a duty battalion and resultantly his juniors were promoted to the said post. This Court, placing reliance on the earlier Judgment in Ashok Kumar v. Union of India & Ors., 2009 SCC OnLine Del 3407, held as under:-

W.P.(C)No.21900/2005, Ashok Kumar Vs. Union of India & Drs., a Division Bench of this court held that where the department is at fault in not letting a person complete two years duty in a duty battalion, non-fulfillment of the eligibility condition for promotion requiring two years service in a duty battalion cannot be held against the person concerned. xxxxx

25. Suffice it to state that as already noted by us in the order dated March 07, 2011 as well as in the decision in Ashok Kumar's case (supra) the petitioner had no option but to serve wherever he was required to be posted. Moreover, force personnel have no say in the matter of posting and therefore, it is the department who is at fault in not letting a person complete two years duty in a duty battalion, despite the same being a precondition of mandatory field service for grant of promotion. Non-fulfillment of the eligibility condition for promotion requiring two years service in a duty battalion cannot be held against a person concerned as the same is the sole prerogative of the department. As regards the power of relaxation to be exercised by the Ministry of Home Affairs, as per the letter dated July 04, 2012, the perusal of the said letter would reveal that services rendered in NSG/SPGINDRF would be treated as service rendered in a field unit for the purpose of promotion. In the instant case, the petitioner was posted on deputation with the SPG at the time when the batch-mates and persons junior to the petitioner earned promotion as Assistant Commandant by virtue of the order dated November 03, 2010. Therefore, the respondents cannot deny the benefit of back dated promotion to the petitioner on the ground that the same was given to him only upon completion of two years service in duty battalion. Vide impugned order dated June 11,2013, it is observed that in light of the directions given by this Court that the petitioner, if promoted as Assistant Commander, shall be entitled to all consequential benefits, except actual wages and for this very reason he would not be entitled to refixation of pay at par with his juniors from a retrospective date.

26. The same reveals a total non-application of mind in as much as the import of the order dated March 07, 2011 in denying actual wages to the petitioner was on the principle of 'no work no pay' and the same could not have been treated by the respondents as a ground to reject the notional pay fixation of the petitioner. It is not a case where the petitioner has claimed back wages or arrears of pay, in which case the stand taken by the respondents may have been justified. As a natural consequence of being considered and subsequently being found fit for promotion, the petitioner would undoubtedly be entitled for promotion form the date on which his juniors were promoted, i.e. from November 03, 2010 as well as notional fixation of pay in the rank of Assistant Commandant from the said date.”

31. The above Judgment was followed by this Court in Dharam Narayan Borana v. Union of India & Ors., 2019 SCC OnLine Del 6406, by observing as under:-

Respondents were required to consider the case of the Petitioner for promotion as AC on that basis and if found fit, to notionally fix his seniority as AC from the same date when his juniors were promoted as AC. Otherwise at every stage the Petitioner would be lagging behind unfairly and his juniors would be stealing a march on him despite his having succeeded before this Court by way of the judgment dated 7th March 2011. That certainly was not the consequence envisaged by this Court. It is for this reason that this Court made it clear that the Petitioner would be entitled to “all consequential benefits of his seniority as Inspector.”

32. In its Order dated 25.09.2019 in W.P.(C) 9588/2019 titled Sudhindra Kumar Singh v. Union of India & Ors., this Court was again confronted with a factual position where the petitioner therein had not been promoted to the rank of 2-I/C, having been declared unfit on account of DGs displeasure. Pursuant to an order passed by the High Court of Kerala, the petitioner was considered for the said post and maintained his seniority above his immediate junior. However, in the meantime, his immediate junior had been promoted to the rank of Commandant. The petitioner therein was denied this promotion with a retrospective effect on the ground that he had not completed the 2 years residency service in the rank of 2-I/C. MHA also had refused to exercise its power of relaxation, as is the case in the present petition as well. This Court, however, held that as the initial promotion to the post of 2-I/C had been denied to the petitioner therein on account of a mistake committed by the respondent, the mistake ought to have been corrected even for the other DPCs where the petitioner ought to have been considered for promotion. We may quote from the Judgment as under:-

33. Recently, this Court in Rakesh Kumar (supra) (wherein one of us, namely, Justice Shalinder Kaur, was a part of the Bench), again on being confronted with similar facts, held that once the petitioner therein had been placed in his rightful position in the seniority list of Assistant Sub-Inspector, the respondent by taking his actual date of joining service could not deny his promotion.

34. In view of the above facts and the position in law, we allow this petition by directing the respondents to grant retrospective seniority to the petitioner to the post of 2-I/C from the date on which his immediate junior Shri Ajay Kumar was granted such promotion, and to place him immediately above Shri Ajay Kumar in the seniority list in the rank of 2-I/C. The petitioner, however, while being granted all consequential benefits, including pay fixation, etc., will not be given the benefit of enhanced wages for the period he did not actually serve in the rank of 2-I/C. As far as NFFU is concerned, the petitioner shall again be granted the said benefit from 01.04.2017, that is, the date his immediate junior, that is, Shri Ajay Kumar has been granted the same.

35. With the above directions, the petition is disposed of.

NAVIN CHAWLA, J SHALINDER KAUR, J OCTOBER 14, 2024/rv/VS Click here to check corrigendum, if any