* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision:12th August, 2011
+ W.P.(C) 8640/2010
YADUNATH SINGH ..... Petitioner
Through: Ms.Rekha Palli, Advocate with
Ms.Punam Singh, Advocate
versus
UOI & ORS. .....Respondents
Through: Ms.Rajdipa Behura, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the
Digest?
PRADEEP NANDRAJOG, J.
1. The facts are not in dispute and thus we may
note the same in brief.
2. Joining service under BSF on 7.9.1970, Yadunath
Singh earned a promotion and became an Assistant
Commandant on 6.11.1998. He earned another promotion
when he became a Deputy Commandant on 28.6.2005.
3. He was taken on deputation in the Law
Department as a Law Officer Grade II on 13.7.2005 and was
permanently absorbed in the law cadre as Law Officer Grade
II on 19.12.2006.
W.P.(C) No.8640/2010 Page 1 of 5
4. As per BSF (Chief Law Officers and Law Officers
Recruitment and Conditions of Service) Rules 1999, vide
Schedule II, eligibility to be promoted as Law Officer Grade I
was as under:-
(a) Law Officer Grade II with 9 years’ regular service
in the grade; failing which
(b) Law Officer Grade II with 4 years’ regular service in
the grade and having total 9 years’ regular service in the
pay scale of `10,000-15,200/- in the Force with total 9 years
experience in legal affairs.
5. Yadunath Singh admittedly did not have the
requisite service either as per sub-para (a) or sub-para (b)
above. In spite thereof, he and persons junior to him, but
who were otherwise eligible having requisite service, were
considered for promotion at a DPC which met on 12.1.2001.
6. Yadunath Singh was empanelled for promotion
and realizing that he had yet to attain the eligibility in terms
of qualifying service matter was sent to the Cadre
Controlling Ministry for relaxation to be granted in favour of
Yadunath Singh.
7. We may highlight that the department very
strongly recommended that relaxation should be granted to
Yadunath Singh.
8. The Cadre Controlling Ministry took a stand that
in terms of OM dated 25.3.1996, relaxation could not be
granted. The undernoted extract of the office memorandum
was held against the petitioner:-
“Where juniors who have completed their
qualifying/eligibility service are being considered
for promotion, their seniors would also beW.P.(C) No.8640/2010 Page 2 of 5
considered provided they are not short of the
requisite qualifying/eligibility service by more
than half of such qualifying/eligibility service or
two years, whichever is less, and have
successfully completed their probation period for
promotion to the next higher grade alongwith
their juniors who have already completed such
qualifying/eligibility service.”
9. The Recruitment Rules in question i.e. BSF (Chief
Law Officers and Law Officers Recruitment and Conditions of
Service) Rules 1999, vide Rule 7 thereof, contains a power
to relax the rules.
10. Rule 7 reads as under:
“7. Power to relax – Where the Central
Government is of the opinion that it is necessary
or expedient so to do, it may, by order, and for
reasons to be recorded in writing, relax any of
the provisions of these rules with respect to any
class or category of persons.”
11. It is apparent that the power under Rule 7 is to
accord relaxation from any of the provisions of the rules
with respect to any class or category or persons where the
Central Government is of the opinion that it is necessary or
expedient so to do.
12. This power is quite independent of the
requirement of OM dated 25.3.1996 which simply states
that where juniors have completed the qualifying/eligibility
service and are being considered for promotion, persons
senior to them would also be considered provided the
seniors are not short of the requisite qualifying/eligibility
service by more than half of such qualifying/eligibility
service or 2 years; whichever is less.
W.P.(C) No.8640/2010 Page 3 of 5
13. We clarify. The OM would come into play where
persons junior, having attained the qualifying service, are
considered for promotion and it is found that a person
senior has not achieved or attained the qualifying service.
Said person would become eligible to be considered for
promotion, if as per the OM, the person concerned has a
shortfall in service being not more than half the qualifying
service or 2 years; whichever is less. The OM does not
envisage a situation where the eligibility condition has to be
relaxed.
14. Power under Rule 7 is an entirely different power
and operates in a totally different area.
15. Power to relax the rule operates in an area where
the facts warrant, either due to necessity or expediency,
relaxation being accorded from the provisions of the rules.
16. Since the Cadre Controlling Ministry has
misdirected the inquiry and has treated the case as if OM
dated 25.3.1996 was attracted; neither BSF nor the
petitioner was wanting a benefit under the said OM; what
was sought from the Cadre Controlling Ministry was the
Central Government’s power of relaxation under Rule 7 to
be exercised, we dispose of the writ petition quashing the
order dated 28.4.2010 rejecting the request that power be
exercised under Rule 7 of the Rules: We issue a mandamus
to the Cadre Controlling Ministry to re-consider the matter
with reference to the power of the Central Government
under Rule 7 of the BSF (Chief Law Officers and Law Officers
Recruitment and Conditions of Service) Rules 1999.
W.P.(C) No.8640/2010 Page 4 of 5
17. Needful would be done within a period of 8
weeks from today.
18. No costs.
19. Dasti.
(PRADEEP NANDRAJOG)
JUDGE
(SUNIL GAUR)
JUDGE
AUGUST 12, 2011
mm
W.P.(C) No.8640/2010 Page 5 of 5