Rudra Prakash Trivedi v. Union of India

1. By this petition, petitioners are seeking the following reliefs:- “(a) Issue a Writ of Certiorari thereby quashing the impugned orders dated 02.11.2020 and 30.05.2022 vide which the Respondents declined to promote the Petitioners to the newly created posts of Second-In-Command in JAG Cadre of ITBP as per their entitlement based on ground that no Recruitment Rules pertaining to JAG Cadre of ITBP were available; (b) Issue a Writ of Mandamus thereby directing the Respondents to forthwith notify the Recruitments Rules for the newly created post of Second-in-Command in the JAG Cadre of ITBP and thereafter convene DPC in accordance with newly framed Recruitment Rules and if found fit; the Petitioners be promoted to the three vacant posts of Secondin Command with effect from the date vacancies were created thereby granting all the benefits to them as per their 2022:DHC:3574-DB entitlement including pay and arrears and other such consequential benefits since 09.05.2019;”

2. During the course of hearing, learned counsel for petitioner handed over an Office Memorandum dated 16.08.1993 issued by Ministry of Personnel, P.G. & Pensions (Department of Personnel and Training) and drew the attention of this Court to paras 1 and 4 of the same which are reproduced as under: “1. The undersigned is directed to say that the guidelines for framing of Recruitment Rules contained in this Department’s OM No.AB 14017/12/87-Estt. (RR) dated 18.3.1988 provide, inter-alia, that as soon as a decision is taken to create a new post/Service or to upgrade any post or restructure any Service, action should be taken immediately by the administrative Ministry/Department concerned to frame Recruitment Rules therefor. The Recruitment Rules should be framed for all posts which are likely to last for one year or more. These guidelines further provide that Recruitment Rules for Group A & Group B posts/Services as approved by the administrative Ministry/Department should be referred to this Department first for clearance as early as possible and in any case not later than one month from the date of the creation of post/Service.

4. In the light of the position stated above all the Ministries/Departments are requested to ensure that immediate action is initiated to frame Recruitment Rules after a post has been created and the draft Recruitment Rules for Group A & 9 posts should be finalised and referred to this Department for concurrence as early as possible and in any case within a period of one month from the date of creation of the post. Also, the total time take for finalisation of the Rules could in no case exceed three months.”

3. Learned counsel for petitioner further submits that 3rd Cadre Review took place for restructuring of Group 'A' service of Non-GD Cadres of the ITBPF duly approved and conveyed vide MHA letter dated 09.05.2019 where one new post of JAG/DIG and 03 new posts of 2IC were created. However, till date 03 posts of 2IC have not been filed-up by respondents despite the eligibility of the petitioners. Further submitted that the same is in contravention to the aforesaid Office Memorandum dated 16.08.1993.

4. On the last date of hearing, i.e. 26.08.2022, learned counsel for respondents, while accepting notice, had sought time to take instructions within how much time the recruitment rules would be framed.

5. However, today, learned counsel for respondents submits that draft rules have been forwarded to Ministry of Home Affairs, however, the same are pending for final decision.

6. In view thereof and considering the situation as it now stands, we hereby direct respondent No.1 to take final decision on the draft rules and frame the Recruitment Rules within three months from today. After framing of the said Recruitment Rules, the respondents shall conduct DPC as per the procedure in law and shall consider all the eligible officers, who if found fit, will be given due benefit of the same.

7. With the aforesaid directions, the present petition is disposed of.

(SURESH KUMAR KAIT) JUDGE (SAURABH BANERJEE)

JUDGE SEPTEMBER 09, 2022