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HIGH COURT OF DELHI
ROSHAN RAJA ..... Petitioner
Through: Mr. Abdul Azeem Kalebudde, Advocate
Through: Mr. Avnish Singh, CGSC with Mr. Santosh Kumar Yadav, Advocate, H.C. Basant Kumar &
Sub Inspector Prahlad Singh Devenda, CISF
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
JUDGMENT
1. Petitioner, who is posted as Deputy Commandant (Exe) in Central Industrial Security Force (henceforth referred to as the „CISF‟) claims to have qualified Central Police Force Examination in the year 2009 and had secured All India Rank No.8 in the final result declared on 13.10.2010. He claims to have been issued Appointment Letter by the respondents on 25.08.2011 for the post of Assistant Commandant (Exe), wherein he was 11:34 asked to join his basic training from 05.09.2011. He accepted the offer of appointment vide his communication dated 29.08.2011 and requested the respondents to grant two months‟ time to join his training. According to petitioner, the said letter was replied by the respondents on 22.09.2011, i.e. much later than when he was supposed to join training on 05.09.2011, wherein it was mentioned that he had sought “Extension for Next Batch” instead of “Extension for Two Months”. Petitioner hence could not join his training on 05.09.2011. Vide letter dated 28.09.2012, he was directed by the respondents to join training with the next Batch (27th Batch) from 29.10.2012.
2. Petitioner is aggrieved that in the seniority list notified by the respondents in September, 2014, he was wrongly placed at Sl. No.322 by wrongly taking his initial appointment as 27.10.2012 instead of 25.08.2011. Therefore, petitioner made a representation vide letter dated 27.07.2015 to the respondents, reminder letter dated 02.02.2016 whereof was also sent. The respondents vide letter dated 28.03.2016 informed the petitioner that a similar matter was pending adjudication before the High Court of Hyderabad and he should wait for outcome of the same. Finding no resolution to his grievance, petitioner preferred a writ petition, i.e. W.P.(C) 10054/2016, before this Court seeking restoration of his seniority from the date of his appointment i.e. 25.08.2011. During pendency of the said writ petition, the respondents vide order dated 07.10.2016 promoted one Mr. Ankit Dubey to the post of Deputy Commandant (Exe) and placed him at Sl. No.48. Thereafter, the writ petition preferred by the petitioner before this Court was partly allowed vide judgment dated 11:34 24.08.2017, wherein it was directed that the seniority of the petitioner shall be considered as per the rank secured by him in the written examination of the year 2009. Thereafter, respondents amended the seniority list vide order dated 11.05.2018. However, in contravention of judgment dated 24.08.2017 passed by this Court, the date of appointment of petitioner was taken as 27.10.2012 instead of 25.08.2011.
3. Consequently, again petitioner made a representation dated 18.12.2018 to the respondents to re-fix his seniority, which was replied by the respondents vide order dated No.E-35015/NS/ADM/ SENIORITY.LIST/18-3972 dated 26.03.2019 R/W Order No. E- 31016/18/2017/Pers.I/170 dated 19.03.2019 informing the petitioner that his seniority in the rank of Assistant Commandant (Exe) has been re-fixed by the Directorate vide order dated 11.05.2018. Thereafter, petitioner was promoted to the rank of Deputy Commandant (Exe) vide Notification dated 26.03.2019.
4. Petitioner claims to have been erroneously placed below one Mr.Bijender Singh Patwal. Aggrieved by the aforesaid order dated 11.05.2018 passed by the Directorate and respondents‟ Communication dated 26.03.2019, the present petition has been filed by the petitioner seeking setting aside thereof. In addition, petitioner is also seeking proper pay fixation, including grant of senior time scale from the date of his initial appointment, i.e. 25.08.2011 in parity with his batch mates of CPF- 2009 (26th Batch).
5. During the course of hearing, learned counsel for petitioner submitted that this Court vide judgment dated 24.08.2017 passed in 11:34 W.P.(C) 10054/2016 had directed the respondents to re-fix seniority of petitioner as per the rank secured by him in the examination of the year
2009. However, erroneously, the respondents have taken his date of joining as 27.10.2012 instead of 25.08.2011.
6. It was brought to the notice of this Court that during pendency of aforesaid writ petition, the respondents issued Order No. E-38013/B.P.- 40/2016/POSTING OF GO/2016/PERS.I-827 dated 07.10.2016, wherein the immediate senior of the petitioner, namely, Mr. Ankit Dubey, was promoted to the rank of Deputy Commandant as per rank secured by him in the Central Police Forces (Assistant Commandant) Written Examination 2009 and was placed at Sl. No.48 in the seniority list.
7. Learned counsel for petitioner further submitted that though the petitioner‟s seniority has time and again been re-fixed retrospectively, however, it is not in consonance with the directions issued by this Court vide judgment dated 24.08.2017 and while promoting the petitioner to the rank of Deputy Commandant (Exe) vide notification dated 26.03.2019, he has been erroneously placed below Mr. Bijender Singh Patwal at Sl. No.196 instead of below Mr. Ankit Dubey, who is his immediate senior as per UPSC Merit List. Petitioner is distressed that his representation against fixation of his seniority has not been properly dealt with by the DG-CISF, who vide letter dated 18.12.2018 has erroneously replied that petitioner‟s seniority has been re-fixed by the Directorate vide order dated 11.05.2018.
8. Lastly, learned counsel for petitioner submitted that the present petition deserves to be allowed and a direction be issued to the 11:34 respondents to re-fix petitioner‟s seniority, promotion and other consequential benefits.
9. On the other hand, learned CGSC appearing on behalf of respondents submitted that vide letter dated 25.08.2011 giving offer of appointment, the petitioner was directed to join basic training on 05.09.2011. However, since petitioner had submitted application dated 29.08.2011 seeking extension of two months‟ time to join his basic training, the same was allowed by the respondents vide letter dated 22.09.2011, wherein it was categorically mentioned that he is permitted to join with the next batch of Assistant Commandant/Exe and his seniority shall be regulated as per the contained in DoPT OM No.9/23/74-Estt. D dated 06.06.1978. Pursuant thereto, petitioner had joined the training with 2011 Batch (27th Batch).
10. It was next submitted that vide judgment dated 24.08.2017 in W.P.(C) 10054/2016, this Court had directed to maintain petitioner‟s seniority as per rank secured by him in the Written Examination 2009, however, his seniority has been fixed along with Batch mates of the year 2011 since the petitioner had joined with the 2011 Batch and physically joined CISF on 27.10.2012, therefore, his date of joining is shown as 27.10.2012. It was also submitted that according to the revised seniority list of September, 2014, his immediate junior Mr.Sugana Ram (revised seniority No.106 as on September, 2014) was appointed as Assistant Commandant (Exe) on 02.09.2011, who was found short of one year five months and one day service as on 01.04.2016 for promotion to the rank of Deputy Commandant (Exe) for the vacancy year 2016-17. However, since 11:34 junior of Mr. Sugna Ram, namely, Mr. Bhupinder Singh (revised seniority No.170 as on September, 2014) was promoted as Assistant Commandant (Exe) on 05.09.2014 after completing six years eligibility services; Mr.Sugana Ram also became eligible for consideration to the promotion of Deputy Commandant (Exe) against the vacancy year 2016-17. As the immediate junior of petitioner herein, namely, Mr. Sugana Ram (revised seniority 106) was considered for promotion to the rank of Deputy Commandant (Exe) against the vacancy year 2016-17 and was assessed “Fit” for promotion to the rank of Deputy Commandant (Exe) on 08.10.2016, petitioner (in terms of his revised seniority at Sl. No.105-A) was also considered for promotion to the rank of Deputy Commandant (Exe) against the vacancy year 2016-17. However, he was found to be short of two years six months and twenty six days‟ service, i.e. more than two years as on 01.04.2016. According to respondents, the petitioner‟s immediate junior had become eligible for promotion to the rank of Deputy Commandant (Exe) whereas petitioner was not found eligible as he was short of two years six months and twenty six days‟ service as on 01.04.2016 for promotion as per his senior/junior in terms of Recruitment Rules.
11. It was strenuously submitted that the petitioner was not fulfilling the eligibility criteria on 01.04.2016 and this Court vide judgment dated 24.08.2017 in W.P.(C) 10054/2016 had clearly directed that petitioner be promoted only if he is fulfilling the eligibility criteria.
12. In the next DPC held on 03.03.2017, petitioner‟s immediate junior, namely, Mr.Saroj Kumar Sinha, who was promoted as Asstt Comdt (Exe) 11:34 on 06.02.2010 was considered for promotion to the post of Deputy Commandant (Exe) against the vacancy year 2017-18, however, he was assessed „unfit‟ for promotion. In the said DPC, petitioner was also considered for promotion but he was found short of 01 year, 06 months & 26 days service. Therefore, only Shri Bijender Singh Patwal, who is immediate senior to petitioner, was found fit for promotion by the DPC. Therefore, the DPC recommended the petitioner for promotion and his name was placed in the panel below Mr. Bijender Singh Patwal for the vacancy year 2017-18. Accordingly, notional promotion was given to the petitioner w.e.f. 17.06.2017, i.e. the date when his senior Mr. Bijender Singh Patwal had assumed charge of rank of Deputy Commandant (Exe). Vide Notification dated 26.03.2019 petitioner‟s seniority in the rank of Deputy Commandant was fixed at Sl. No.196 as on 01.01.2018 i.e. below the name of Mr. Bijender Singh Patwal (Seniority No. 195) vide Order No. E-31016/18/2017/Pers.I/291 dated 02.04.2019.
13. It was strenuously submitted that the petitioner was not fulfilling the eligibility criteria on 01.04.2016 and this Court vide judgment dated 24.08.2017 in W.P.(C) 10054/2016 had clearly directed that petitioner be promoted if he is fulfilling the eligibility criteria. As per revised seniority list, being at Sl. No.5-A as on 01.01.2017, petitioner had to be treated for promotion to the rank of Deputy Commandant (Exe) against the vacancy year of 2017-18. Accordingly, he was considered in the Review DPC held on 10.01.2019 wherein he was assessed “Fit” for promotion.
14. In rebuttal, learned counsel for petitioner submitted that the petitioner stood at rank 08 in the merit list of the examination held in 2009 11:34 and was offered appointment letter on 25.08.2011 and his services has been wrongly taken as 27.10.2012 instead of 25.08.2011. It was submitted that respondents have erroneously stated that 25.08.2011 is the date of offer of appointment and it cannot be considered for the purpose of seniority. It was further submitted that seeking extension of time to join training is permissible under the law and respondents have erroneously taken a stand that the offer of appointment is not appointment order.
15. It was further submitted that in violation of judgment dated 24.08.2017 passed by this Court in W.P.(C) 10054/2016, the respondents have relegated him to the bottom of his batch and, therefore, his juniors are promoted whereas respondents have to wait for his promotion. Lastly, learned counsel for petitioner submitted that the stand taken on behalf of respondents is arbitrary, hence, deserves rejection.
16. Upon hearing learned counsel representing both the sides and on perusal of the material placed before this Court, we find that the undisputed position in the present case is that respondents had vide letter dated 25.08.2011 given offer of appointment to the petitioner and he was directed to join basic training on 05.09.2011. However, petitioner had to appear for UPSC examination and as per applicable rules and vide his letter dated 29.08.2011, he sought two months extension to join his training, which was allowed by the respondents vide letter dated 22.09.2011. There is no doubt that in the aforesaid letter dated 22.09.2011 petitioner was given extension of time to join training, but was also mentioned that he will join with the next batch of Assistant Commandant/Exe and his seniority shall be regulated as contained in 11:34 DoPT OM No.9/23/74-Estt. D dated 06.06.1978.
17. The respondents in September, 2014 notified Seniority List of Assistant Commandant / Executive (seniority assigned upto the year 2011), with date of joining as 27.10.2012 and the petitioner reflected at Sl. No. 322, wherein he has been placed at the end of Batch 27. Taking his date of joining as 27.10.2012, petitioner had lost his seniority to around 226 persons and his name should have appeared at Sl. No. 95. When petitioner did not get satisfactory reply to his representation filed against the reply dated 28.03.216, petitioner invoked writ jurisdiction of this Court by filing W.P.(C) No. 10054/2016 seeking re-fixation of his seniority.
18. Pertinently, in the first round of litigation preferred by the petitioner seeking fixation of his seniority, this Court vide judgment dated 24.08.2017 in W.P.(C) 10054/2016 had taken elaborate note of contentions of both the sides, which in verbatim have been urged in the present petition by both the sides. The judgment dated 24.08.2017 in W.P.(C) 10054/2016 is elaborative on the aspect of date of joining and seniority of petitioner in the light of appointment letter, extension letter and terms of seniority contained in DoPT OM No.9/23/74-Estt. Dated 06.06.1978. This Court held as under:-
19. Apparently, vide aforesaid judgment dated 24.08.2017 in W.P.(C) 10054/2016, this Court has already held that the seniority of petitioner has to be maintained as per his rank secured in written examination of the year 2009, which undisputedly is Rank No.8 amongst 594 candidates. However, during pendency of the said petition, regular promotion list dated 07.10.2016 to the post of Deputy Commandant was notified, wherein his immediate senior, namely, Ankit Dubey, in the written examination held in 2009, got promoted and placed at Sl. No. 48. Pursuant to judgment dated 24.08.2017, another seniority list in respect of petitioner was released on 11.05.2018 but again took petitioner‟s date of 11:34 appointment as 27.10.2012 instead of 25-08-2011, which was his date of appointment letter. Thereafter, petitioner was notionally promoted to the rank of Deputy Commandant (EXE) w.e.f.17.06.2017 and was placed at serial No., 196 in the list of Deputy Commandant (EXE) as on 01.01.2018. The petitioner was finally promoted to the rank of Deputy Command (EXE) vide notification dated 26.03.2019. The petitioner claims his seniority below Mr.Ankit Dubey, at serial No.125A in the list of Deputy Commandant as on 01.01.2018; whereas his juniors namely, Kamlesh Poonia who secured 12th position in the 2009 examination has been placed at Sl. No. 126; Anil Kumar who secured 25th position in the 2009 examination is at Sl. No. 127 and Vipin Yadav who secured 33rd rank is positioned at Sl. No. 128; have been placed above him.
20. The second part of the judgment notes that for his seniority, the petitioner has to meet his eligibility criteria. According to respondents, the criteria for promotion has been spelt out by DoPT in OM No.9/23/74-Estt. D dated 06.06.1978, application thereof in the case of petitioner has already been negated in the judgment dated 24.08.2017 in view of O.M. dated 09.08.1995, wherein it is held as under:-
22. Once it has already been held that there have been lacunae on the part of respondents in communicating under what eventualities he may lose his seniority with the batch of 2009 and that the OM No.9/23/74-Estt. D dated 06.06.1978 cannot be implemented in totality in the case of petitioner, we find that petitioner cannot be made to suffer for the fault and lapse of respondents.
23. So far as meeting the eligibility criteria is concerned, we find that respondents have erroneously taken petitioner‟s date of appointment as 27.10.2012. In the considered opinion of this Court, petitioner‟s date of appointment should have been taken as per his merit secured in the UPSC examination. It is not the case of respondents that during his service petitioner had any penalty to his credit. The only eligibility criterion is the date of appointment and, therefore, petitioner‟s date of appointment is required to be corrected. The petitioner had secured remarkably good rank No.8 in merit in the examination held in the year 2009 and so, in the interest of justice, he cannot be deprived of his legitimate right to hold seniority according to the rank earned, especially when his juniors who were below in rank have been positioned above him.
24. In the light of what we have observed above, the respondents are accordingly directed to issue fresh seniority list within four weeks, 11:34 positioning the petitioner in terms of his merit obtained in the examination of the year i.e. 2009 and grant him consequential promotions and benefits.
25. With aforesaid directions, the present and pending application is accordingly disposed of.
(SURESH KUMAR KAIT) JUDGE (NEENA BANSAL KRISHNA)
JUDGE FEBRUARY 10, 2023 r 11:34