Kamlesh Kumar & Anr v. Union of India & Ors

1. The prayer in both these petitions, which are by personnel ofthe Border Security Force('BSF'),is more or less similar. Accordingly,both petitions are being disposed ofbyacommonjudgment. W.P.(C)3703/2014and W.P.(C)5372/2014 j 2019:DHC:7423-DB )>

2. In W.P.(C) 3703/2014 there are 2 Petitioners. While Petitioner No.l Kamlesh Kumar was appointed as a Constable in the BSF in April 1998, Petitioner No.2Parveen Singh was appointed in December 1993. According to the Petitioners,between 1994and 2002,they took partin varioustrekking expeditions and climbed many ofthe highest peaks. It is stated that on 11^ November,2002 a recommendation was made for out ofturn promotion of the Petitioners in terms ofthe extant policy. However,when an order was issued on 3'^'* July,2003 only[5] persons,less meritoriousthan thePetitioners, were granted outofturn promotions.Itis stated thatin August,2003 again a recommendation was made butthat when a list was released on 28^^ August, 2003,those Head Constables who were less meritorious were granted outof turn promotions. It is further stated that in a case ofthe similarly situated person Mr. Harvinder, W.P.(C) 15547/2004 was filed before this Court, which came to be allowed on 19^''May,2008.

3. As far as W.P.(C)5372/2014 is concerned,the Petitioner Rakesh Kumar joined the BSF as Constable in 1997.He too claims to have participated in manytrekking expeditions and climbed the highestpeaks.It is also his claim that he has been unfairly overlooked for out ofturn promotion, despite a recommendation in thatregard.

4. Counter-affidavits have been filed by the Respondents in both petitions. While the fact that the Petitioners did scale some ofthe highest peaks and, therefore, were eligible for consideration for out ofturn promotions,is not denied;it is pointed outthatthe number ofpersons was notto exceed5% of the total number ofvacancies in each rankin any 1 year.Itis explained that fKP.fCJ3703/2014and W.P.(C)5372/2014 p^ge2of[4] during 2003,90 cases for out ofturn promotions were considered: 8 were from Sub Inspector to Inspector,29 cases from Head Constables to SI and 53 cases from Constable to Head Constable. After discussion, and on the advice ofthe Personnel Directorate,the list was put down to 44 i.e.[5] from SI to Inspector,24 from HC to SI and 15 from Constable to HC.Ofthe 44 cases,[5] were promoted on24*June,2003.

5. During June 2003,a Board ofOfficers(BOO)was constituted to consider the promotion ofthe remaining 37 sportsmen.The BOO in the proceedings held on 8*and 17*July,2003 considered the case ofthose sportsmen who had completed 3 years service in the present ranks. It is stated that both Petitionersin W.P.(C)3703/2014had completed only2yearsand 12daysof service at that stage. Those who were given out ofturn promotions were those who had put in more than 3 years ofservice. A similar exercise was performed on30*December,2003 bytheBOO.ThePetitioners'cases were considered,butrejected on the basis ofthe criteria adopted by the previous BOO. It is pointed out that there is no discrimination qua the present Petitioners as those granted out ofturn promotions were all much senior to the Petitioners. Even as regards the Petitioner in W.P.(C)5372/2014,it is statedthatalthough hisname wasconsidered,buttheBOOrejected it.

6. Inthe repliesto both petitions,itis pointed outthatinstructions dated 22"*^ December,2004 were received from Ministry ofHome Affairs stating that no provision for any 'accelerated' promotion should be incorporated in the servicerulesofthe CAPFs. Itis statedthatsincethatinstruction wasissued, no outofturn promotionshave been made ofany sportspersontill date.Itis W.P.(C)3703/2014and W.P.(C)5372/2014 3of[4] n further pointed out that since July,2012 the policy for grant ofout ofturn promotions underwent a change and mountaineering expeditions did not figure in the criteria any longer. As regards the order dated 19*''May,2008 in W.P.(C)15547/2004(HarvinderSingh v. Union ofIndia),it is pointed outthatthe said decision was given on the basis ofthe peculiar facts ofthat case and no policy or guidelines were placed before this Court.

7. Having heard the learned counselforthe parties the Courtis satisfied that the Petitioners were not discriminated against in being denied out ofturn promotions. Those granted out ofturn promotions at the relevant time in 2003 do appearto have been more meritorious.

8. In any event,noneofthePetitionershasbeen abletosatisfactorilyexplain the inordinate delay in approaching the Courtfor relief. In the meanwhile, the policy itselfhasundergone aseachange.

9. For all ofthe aforementioned reasons,the Court finds no merits in either ofthe petitions and they are dismissed as such. NOVEMBER07,2019 tr S.MURALroHAR,J. TALWANTSINGH,J. W.P.(C)3703/2014and W.P.(C)5372/2014 Page4of[4]