* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: February 24, 2011
Judgment Delivered on: March 01, 2011
+ W.P.(C) 15159/2006
R.K.NIMORIA ..... Petitioner
Through: Mr.H.K.Shekhar, Advocate
versus
UOI & ANR. .....Respondents
Through: Mr.A.K.Bhardwaj, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
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. By way of instant writ petition, filed in the year
2006, the petitioner claims that his right to be promoted to the
rank of Inspector with effect from 12.12.1971 has been
violated. He alleges that his batch mates who were of 1968
batch and junior to him as Sub-Inspectors were promoted on
said date without his knowledge and behind his back. The
petitioner has also prayed for his further consequential
promotions as Assistant Commandant, Deputy Commandant,
Second in Command and Commandant with effect from
14.06.1976, 20.05.1986, 07.08.1984 and 23.10.1996
respectively.
W.P.(C) No.15159/2006 Page 1 of 20
2. It is obvious that said prayer is founded on his claim
for promotion with effect from 12.12.1971. The further
consequential prayer made by the petitioner in the writ
petition is for re-fixation of his pension accordingly. The
petitioner has also questioned the order No. 31/26/87-Pers/
BSF/2057, 058 dated 29.05.2001, by which his claim for ante-
dating his promotions and hence re-fixation of pay has been
rejected. The petitioner has also asked for deletion of word
notional from the orders dated 16.12.1998 and 24.03.1999 i.e.
the orders under which he was promoted firstly as an Assistant
Commandant with effect from 1.4.1987 and then as a Deputy
Commandant with effect from 13.12.1993.
3. Briefly stated the relevant facts are that the
petitioner, a member of a Scheduled Caste was appointed as
Sub-Inspector in Border Security Force with effect from
17.05.1968. After completing basic training conducted at BSF
Academy, Takanpur from 17.05.1968 to 17.02.1969, he was
posted to the 2nd Bn. BSF in Rajasthan and Gujarat Frontier till
October 1970 and thereafter he was posted to the 103rd Bn.
BSF, Hazari Bagh, Training Centre and School Hazari Bagh
which was part of the Training Institution. He remained posted
there till 18.10.1975. Up to 1974 he was not superseded by
any person junior to him.
4. The petitioner was considered for promotion as
Inspector by DPC held in Srinagar Frontier on 09.10.1975. The
said DPC recorded following remarks against the name of the
petitioner:-
“FAIL IN RECORDS AND IN AGGREGATE EVEN AFTER
RELAXATION AS SCHEDULED CASTE”
W.P.(C) No.15159/2006 Page 2 of 20
5. Thus he was not empanelled by the said DPC. Some
Sub-Inspectors got promotion as Subedar against existing
vacancies in the Frontier where they were posted.
6. The petitioner remained posted at the Training
Institution from October 1970 till 1975 (103rd Bn. BSF) and was
promoted as a Subedar thereafter with effect from 06.03.1978
against the vacancies existing in the Frontier/ Headquarter
where he was posted at the time of DPC. As is stated by the
respondents in para 9 of their Counter Reply, in July 1971 the
petitioner was borne on the strength of the 103rd Bn. BSF
which was part of Training Institution and as per record no DPC
for promotion of Sub-Inspectors to the rank of Inspector was
conducted by the Training Institution with effect from 1970 up
till 18.10.1975.
7. Later, when it was decided by BSF for centralization
of promotion/seniority of Sub-Inspectors and above, in order to
extend same benefits to the petitioner as given to S/Shri
B.R.Yadav, P.C.Sharma & D.S.Ahluwalia and a few others, a
review DPC was convened and seniority of 357 persons
including the petitioner in the rank of Inspector was revised
vide order No. 17/49/94-Pers/BSF dated 09.11.1994. An
attempt was made to hold review DPCs to consider the
petitioner and others for promotion to the rank of Assistant
Commandant and above. However, in view of the order dated
06.04.1995 passed by a High Court in TP No.41-55/1995 filed
by Direct Recruit Assistant Commandants, the
recommendation of said review DPC in respect of the
petitioner and others could not be given effect.
W.P.(C) No.15159/2006 Page 3 of 20
8. A DPC held on 11/13.06.1986 considered the
petitioner for his promotion to the rank of Assistant
Commandant in BSF and graded him good. Treating him in
General Category, he was not promoted. On being revealed
that the petitioner hails from SC category, his case was
reviewed by Review DPC and he was given notional promotion
as Assistant Commandant with effect from 01.04.1987 i.e.
from the date persons junior to him were promoted. By order
No.C-17011/2001/CC/Pers/BSF dated 24.03.2005 the petitioner
was given arrear of pay and allowances for the said period.
The amount of arrear was paid to him vide cheque No.248674
dated 19.05.2005. The arrear was an amount representing the
difference of pay for the period from 01.04.1987 to 01.04.1988
i.e. `74,472/- (Rupees Seventy Four Thousand and Four
Hundred Seventy Two).
9. As initially the petitioner was promoted as Assistant
Commandant with effect from 01.04.1988, thus he could not
be considered for his promotion to the rank of Deputy
Commandant by the DPC held in 1992. However, on revision of
his seniority and antedating of date of his promotion as
Assistant Commandant as 01.04.1987, a review DPC was held
on 24.11.1992 and on the basis of the recommendation of said
DPC, the petitioner was promoted as Deputy Commandant
with effect from 13.02.1993. Since he was promoted as Deputy
Commandant on 13.02.1993, he could not be promoted as
Second in Command in the year 1994, as he was not in the
zone of consideration for such promotion. As a result he was
not promoted as Commandant in the year 1996. The petitioner
W.P.(C) No.15159/2006 Page 4 of 20
retired in the rank of Deputy Commandant on 30.04.1998 and
is being paid pension accordingly.
10. The petitioner had filed WP(C) No.7631/2001 before
this Court seeking direction for his promotion to the rank of
Inspector with effect from 2.1972, Assistant Commandant with
effect from 14.06.1976, Deputy Commandant with effect from
06.07.1986, Second in Command with effect from 01.01.1994
and Commandant with effect from 25.10.1996 and for re-
fixation of his pension in the rank of Commandant. The said
writ petition was disposed of vide order dated 19.12.2005
directing a reasoned order to be passed pertaining to
petitioner‟s claim.
11. In compliance of the said order, respondents have
passed a detailed order dated 05.05.2006 which reads as
under:-
“ORDER
Whereas, IRLA No. 38331 R.K.Nimoria, Dy
Commandant (since retired w.e.f. 30.04.1998), had
filed a writ petition WP (C) No. 7639/2001 before the
High Court of Delhi soliciting direction to promote him
to the rank of Inspector w.e.f. 01.12.1972. Assistant
Commandant w.e.f. 14.06.1976. Dy Commandant
w.e.f. 06/1986. Second-in Commandant w.e.f.
01.01.1994 and Commandant w.e.f. 25.10.1996 and
re-fix his pension in the rank of Commandant wherein
MHA as impleaded first respondent.2. Whereas, the Hon‟ble Court has decided the said
writ petition vide judgment and order dated
19.12.2005. The operative portion of the judgment
read as under:-“It is not in dispute that the dispute involved
in this writ petition is covered by the judgment
titled as B.S.Narula & Ors Vs UOI CWP No.
1673/1992 rendered by Division Bench of this
Court. Accordingly the representation madeW.P.(C) No.15159/2006 Page 5 of 20
by the petitioner dated 18.04.1987 shall be
considered in accordance with the above
judgment. In case the petitioner is aggrieved
by the disposal of the representation it is open
to him to challenge the same in appropriate
proceedings.The writ petition stands disposed of.”
3. Whereas, pursuant to the above judgment of the
Hon‟ble Court, the petitioner had submitted a
representation dated 16.01.2006 along with copy of
the order dated 20.07.2005 passed by the Hon‟ble
High Court of Delhi in the case of re-examination of
the case regarding relief sought for antedated
promotion and copy of his representation dated
18.04.1987. The grievances submitted by the
petitioner in his representation dated 16.01.2006 are
summarized as under:-“That his batch mate namely Shri B.R. Yadav
(since retired as Commandant) who was junior
to petitioner in enrolment as Platoon
Commander (Direct Entry) got regular
promotion up to the rank of Commandant
whereas he (the petitioner) retired as Dy
Commandant on 30.04.1998. He was not
given timely promotion to the rank of subedar
due to which he was not given further
promotions like his batch mates/ juniors. In
the representation dated 18.04.1987, he has
also mentioned that he was due for promotion
to the rank of Assistant Commandant along
with Subedar Office Seniority who were
promoted as Assistant Commandant vide
order dated 31.03.1987 being his seniority in
the rank of Subedar w.e.f. 07.03.1978 but he
was not considered for promotion. He has also
stated that he has never communicated any
adverse/ advisory remarks during the period
from 1978 to 1987.”4. Whereas, the brief facts and history of the
litigation commencing with WP No. 257/80 filed by Shri
Babu Joseph before the Hon‟ble High Court of Madhya
W.P.(C) No.15159/2006 Page 6 of 20
Pradesh and culminating in WP No. 1673/1992 titled
B.S.Narula & Ors Vs UOI & Ors disposed of by the
Hon‟ble High Court of Delhi vide judgment dated
27.09.2002 are as under:-“(a) that from 1967 to July 1975, promotions
from Sub Inspectors to Subedars were made
Frontier wise with reference to the vacancies
existing in the concerned Frontiers, as per
provisions of CRPF 14th Amendment Rules.
1967. As a result, some SIs posted in a Frontier
got promotion as Subedar early, while other SIs
of same seniority posted in other Frontier got
their promotion late.(b) that during 1980. Sh Babu Joseph filed a
Writ Petition No. 257/80 before the Hon‟ble
High Court of Madhya Pradesh at Gwalior and
claimed promotion as Subedar w.e.f. the date
of promotion of his junior posted in other
Frontiers. The said WP was decided in his
favour. The Hon‟ble Court had directed to
consider his entitlement for promotion as
Subedar after completion of 3 years service as
Sub Inspector. The Deptt filed SLP against this
order of Hon‟ble High Court but it was
dismissed. Accordingly, the judgment was
implemented and Sh. Babu Joseph was given
retrospective promotion from SI to Subedar and
onward.(c) that subsequently, some more officers
filed WPs No. 2840/90 (Puran Singh & Ors)
before Gwalior High Court and claimed similar
benefits as granted to Sh. Babu Joseph in the
matter of promotion and seniority. This case
was also decided in their favour.(d) that Shri Babu Joseph and Puran Singh &
six others were given promotion from SI to
Subedar with reference to the Force level
seniority of SIs and also given further
promotions.(e) that while implementing the judgment in
the case of Shri Puran Singh and others,
seniority of 357 personnel was revised in theW.P.(C) No.15159/2006 Page 7 of 20
rank of Subedar from various dates on the basis
of Force level seniority.(f) that meanwhile, the Hon‟ble High Court
of Madhya Pradesh at Gwalior had stayed
further promotion of Sh. Babu Joseph vide order
dated 04.11.1993 in the M.P No. 316/93 filed by
Sh. M. Damodaram and Ors vs UOI and Ors.(g) that in the meantime, some more
promotee officers had filed Writ Petitions before
various High Court of the Country claiming
similar relief as granted to Sh. Babu Joseph.
Some Direct Entry officers (Mohan Lal & Ors)
filed Transfer Petition No. 41-55/95 before the
Hon‟ble Supreme Court praying for transfer of
all the similar cases to one High Court.
Accordingly all the cases were transferred to
Delhi High Court by Hon‟ble Supreme Court
order dated 06.04.1995. While passing order
dated 06.04.1995 Hon‟ble Supreme Court had
granted a stay order regarding seniority
between Direct Entry and promottee officers. It
was further directed by the Hon‟ble Court that
those Writ Petition which have been decided by
the High Courts can be given effect to, subject
to final outcome of writ petition being
transferred to Delhi High Court. It means the
seniority re-assigned to Sh. Babu Joseph and
Puran Singh & ors in various ranks was also
made subject to final outcome of the cases
transferred to Delhi High Court.(h) that upon transfer of cases to Delhi High
Court, the cases were titled as Shri B.S. Narula
and Ors Vs UOI & Ors. The said case has since
been decided finally by the Hon‟ble High Court
of Delhi vide judgment and order dated
27.09.2002.”
5. Whereas, as per the said judgment of Hon‟ble
High Court of Delhi no law has been laid down in Babu
Joseph‟s and Puran Singh‟s case and the promotion
from SI to Subedar is to be made as per old rules
which inter-alia provide promotion within the
concerned Frontiers; andW.P.(C) No.15159/2006 Page 8 of 20
6. Whereas, while complying with the judgment,
the crucial point to be examined was to ensure that
whether the said Petitioners had suffered supersession
in promotion from SI to Subedar within their own
Frontiers or otherwise. It was established that they
had got promotion from SI to Subedar correctly in their
Frontiers and also that the promotion given to Sh.
Babu Joseph and Puran Singh & Ors with reference to
Force level seniority was incorrect. Accordingly, after
holding review DPCs with the permission of the MHA
and subsequent approval of the MHA thereon, all the
orders giving retrospective promotions to Sh. Babu
Joseph and Sh. Puran Singh & Ors in various ranks
were cancelled and they were given promotion w.r.t.
their original seniority in the rank of Subedar; and
7. Whereas, ultimate result of implementation of
the judgment dated 27.09.2002 titled Shri B.S. Narula
& Ors Vs UOI & Ors was that the benefit of
retrospective promotion given in various ranks to eight
others as a result of the judgments passed by the
Hon‟ble High Court of MP was cancelled; and
8. Whereas, the order No. 17/499/94-Pers/BSF
dated 09.11.1994 vide which seniority of 357
personnel was revised in the rank of Subedars from
various dates was also cancelled; and
9. Whereas, in the judgment dated 27.09.2002, the
Hon‟ble Court has held that promotion from Sub-
Inspector to be made as per old rules and that no law
has been laid down in the judgment of the Hon‟ble
Court of MP in MP NO. 257/80 Babu Joseph Vs UOI
dated 08.02.1990 and 2840/90 Puran Singh and Ors
dated 02.07.1992. The court has further directed the
department to carry out re-fixation of seniority as per
old rules.
10. Whereas, the petitioner being a bonafide
Scheduled Caste candidate, enrolled in BSF as Sub-
Inspector (Direct Entry) on 17.05.1968 and after
completion of basic training conducted at BSF
Academy, Tekanpur w.e.f. 17.05.1968 to 17.02.1969
he was posted to 02 Bn BSF under Rajasthan and
W.P.(C) No.15159/2006 Page 9 of 20
Gujarat Frontier till Oct 1970. Thereafter he was
posted to 103 Bn BSF, Hazaribagh under Training
Centre and School Hazaribagh. As per records, the
DPCs were held in Rajasthan and Gujarat Frontier
during 1972 and onward. In the DPC held in the year
1972 in the R&G Frontier. Sub Inspectors of seniority
up to 20.05.1986 only were considered for promotion
to the rank of Subedar. Since the petitioner was not
borne on the strength of Rajasthan and Gujarat
Frontier during 1972, he was not considered for
promotion by the said DPC. The details of DPCs held
for the candidates of Training Institutions after posting
of the petitioner to 103 Bn BSF are given below:-
Srl Date of DPC Seniority of Remarks
No. Sub-Insprs up
to which
considered/
empanelled
01 22/23 July 06.04.1968 Not in the zone of
1971 consideration being
date of appointment
as on 17.05.1968.
02 27 to 29 17.01.1968 -do-
July 1972
03 30/31 Jan & 27.04.1968 -do-
1 Feb 1974
04 15 Sept 15.07.1968 Unfit
1975
Since the petitioner was holding the rank of SI w.e.f.
17.05.1968, he was not eligible for consideration by
the DPCs held up to 1974 and hence, not considered
by the said DPCs. He was considered for empanelment
W.P.(C) No.15159/2006 Page 10 of 20
by the DPC held on 15.09.1975 but graded as „Unfit‟
due to inadequate confidential record of service and
11. Whereas, the petitioner was posted to 52 Bn BSF
in Oct 1975 and further posted to 47 Bn BSF in 1976
under erstwhile North West Frontier (Now Srinagar
Fronteir) and in the subsequent DPC held in the NW,
Frontier during Oct 1975, the petitioner was
considered for empanelment for promotion to the rank
of Subedar but he could not secure the minimum
prescribed marks based on his performance in the
tests conducted for the purpose of empanelment for
promotion to the rank of Subedar besides his
confidential record of service and hence, he could not
get promotion with reference to the said DPC of 1975
even after relaxation given in the case of Scheduled
Caste candidate; and
12. Whereas, he was also considered by the
subsequent DPC held in 1976 on 25.11.1976 and
empanelled and promoted to the rank of Subedar
w.e.f. 06.03.1978; and
13. Whereas, since the petitioner was not in the zone
of consideration for promotion from SI to Subedar
during the years 1971 to 1974 being SI of 17.05.1968
and not empanelled by the DPC‟s for promotion during
1975 but empanelled / promoted as Subedar with
reference to the next DPC held in 1976 w.e.f.
06.03.1978 and his said date of promotion as Subedar
is correct as per the record; and
14. Whereas, as per the seniority of Subedar w.e.f.
06.03.1978 the petitioner was promoted to the rank of
Asstt. Commandant w.e.f. 01.04.1988 which was
revised w.e.f. 01.04.1987 vide order dated 16.12.1992
and Dy Commandant w.e.f. 13.02.1993; and
15. Whereas, the petitioner was assigned the revised
seniority of Subedar w.e.f. 12.04.1973 vide FHQ BSF
order No. 17/49/94-Pers/ BSF dated 09.11.1994, the
order was subsequently treated as cancelled as a
result of implication of the judgment dated 27.09.2002
titled B.S. Narula & Ors Vs UOI & Ors; and
W.P.(C) No.15159/2006 Page 11 of 20
16. Whereas, the revised seniority granted to the
petitioner in the rank of Subedar as on 12.04.1973
was on the basis of Force level (Central) Seniority and
such Central Seniority is not contemplated in the old
Recruitment Rules; and
17. Whereas, as per the old Rules i.e. 123 & 124 of
CRPF (Fourteenth Amendment) Rules, the seniority of
Sub-Inspectors was to be maintained state (Sector)
wise and DPCs for promotion of Sub-Inspectors to the
rank of Subedar were to be held by the respective
Frontiers, Training Institutions; and
18. Whereas, as per the old rules some Sub-
Inspectors got promotion to the rank of Subedar early
with reference to number of vacancies existing in that
particular Frontier/Sector whereas the others including
the petitioner could not get promotion due to lack of
vacancies in their Frontier/ Sectors. Since the
petitioner remained posted in Training Institution for
the period from Oct 1970 to 1975 (103 Bn BSF), he got
promotion as Subedar late as compared to his batch
mates, Shri B.R. Yadav Commandant. Therefore, the
grievances put forth by the petitioner through his
representation dated 18.04.1987 does not hold any
ground and rejected being devoid of merits.
19. In view of the above, the case of the petitioner
has been carefully considered in the light of the
decision of Hon‟ble Delhi High Court in the case of B.S.
Narula & Ors and it is found that his seniority as
Subedar is correctly fixed as per old rules and he
earned subsequently promotion on that basis. He was
superseded in promotion to the rank of Subedar and
Deputy Commandant due to inadequate confidential
record of service. Therefore, the petitioner is neither
entitled to any benefit in the matter of
promotion/seniority nor entitled to any additional
service/financial benefits other than what has already
been allowed to him as per rules.
W.P.(C) No.15159/2006 Page 12 of 20
20. That this order is issued in compliance of the
order dated 19.12.2005 passed by the Hon‟ble High
Court of Delhi.”
13. In the instant writ petition, the petitioner saliently
contended:-
(i) His batch mates of 1968 were promoted as
Inspector with effect from 12.12.1971, 1972, 1973 & 1974
while he was not so promoted. In para 30 of his petition he
mention the names of S/Shri B.R. Yadav, D.S. Ahluwali, P.C.
Sharma, Hoshiyar Singh Dahiya, R.S. Negi, S.S. Chahar & R.K.
Singh, who according to him were his batch mates and were
promoted ahead of him.
(ii) No common seniority list of Sub-Inspector was
maintained Centrally at Headquarters of BSF.
(iii) His service record was not placed before DPC held
to consider him for his promotion as Assistant Commandant.
14. Contesting the aforementioned issues raised by the
petitioner, respondents filed their counter reply. In para 3 of
the reply, the respondents have mentioned that S/Shri
B.R.Yadav, P.C.Sharma, R.S.Negi, Hoshiyar Singh, R.P. Singh,
N.K. Rampal, S.C. Pandey, C.B. Shashi, D.S. Ahluwalia and S.S.
Chahar were appointed as Sub-Inspector in the year 1968
along with the petitioner, but after passing out the basic
training they were posted to different Frontier. Admittedly till
July 1975 the promotion from Sub-Inspector (Platoon
Commandant) to Subedar in BSF was regulated by CRPF (14th
Amendment) Rule 1967. In terms of Rule 123 & 124 of said
rules, the list of seniority of Sub-Inspectors was to be
maintained State wise and the list of Inspectors was to be
maintained Frontier wise. The said rules read as under:-
W.P.(C) No.15159/2006 Page 13 of 20
“123.List of Seniority of Sub-Inspectors:- The list of
seniority of Sub-Inspectors shall be maintained state-
wise.
Explanation- For the purposes of this rule, the Border
Security Force Academy, Tekanpur, Border Security
Force Training Centre and School, Hazaribagh, Central
School of Weapons and Tactics and Battalions in the
Headquarters reserve shall be construed as a state.
124. List of seniority of Inspectors:- The list of
seniority of Inspectors shall be maintained Frontier
wise.
Explanation- For the purposes of this rule, the Border
Security Force Academy, Tekanpur, Border Security
Force Training Centre and School, Hazaribagh, Central
School of Weapons and Tactics, Indore, and Battalions
in the Headquarters in the Headquarters reserve shall
be construed as a Frontier.”
15. Rule 136 of said rules regulate procedure of
selection of Sub-Inspectors (Platoon Commandant) for list E
and promotion from Sub-Inspector (Platoon Commandant) to
Inspector (Company 2 I / CS). The said rule read as under:-
“136.Procedure of selection Sub-Inspectors (Platoon
Commanders) for list „E‟ and promotion from Sub-
Inspectors (Platoon Commanders) to Inspector
(Company 2 I/ CS).
(1) Once every year the Commandant shall
recommend to the Inspector General, through the
Deputy Inspector General concerned, such Sub-
Inspectors (Platoon Commanders) whom he considers
suitable for promotion to the rank of Inspectors
(Company 2 I/C).
(2) The Inspector General of the Frontier shall
constitute a Board of consisting of himself and all the
Deputy Inspector General under him and two
Commandants of Battalions.
Provided that in respect of the Frontier referred
to in the Explanation to Rule 124 the Board shall
W.P.(C) No.15159/2006 Page 14 of 20
consist of the Director General, Border Security Force,
the Commandants of the Border Security Force
Academy, Tekanpur, Border Security Force Training
Centre and School Hazaribagh, and Central School of
Weapons and Tactics, Indore and two Commandants
of the Battalions in the Headquarters Reserve and
when the Director General Border Security Force is
unable to preside over the Board, he shall nominate,
an officer not below the rank of the Deputy Inspector
General to preside.
(3) The Board shall consider the record of service of
the nominees, their performance in the courses, and
seniority, and test them on parade and interview
them.
(4) The Board shall prepare a list of names of
officers found fit for inclusion in list „E‟.
(5) The name will be arranged in the order of
seniorityProvided that in case where the Board considers
the performance merit and record of service of an
officer of outstanding merit, the Board may place his
name above his seniors.
(6) A gradation list of Sub-Inspectors (Platoon
Commanders) approved for inclusion in the list „E‟
shall be maintained at the Headquarters of the Border
Security Force.”
16. From the aforementioned rules, it is clear that the
promotion from the post of Sub-Inspector to Inspector was
made on Frontier/ State basis against the vacancies available
in the respective Frontier/ States. Such position was approved
by a Division Bench of this Court in order dated 27.09.2002,
while deciding a batch of petitions including CWP 1673/1992
(B.S. Narula & Ors Vs UOI) etc etc. In the said petition it was
held that the promotion of a person at times may depend upon
W.P.(C) No.15159/2006 Page 15 of 20
fortuitous circumstances, but it is trite that nobody can having
regard to specific rules of seniority contend that despite the
fact that the seniority list are required to be maintained state
wise and Frontier wise, they can claim automatic promotion
although no vacancy had arisen with in a State or within a
Frontier. The Relevant portion of the said judgment read as
under:-
“Rule 136(6) itself is not a rule specifying as to how
seniority is to be maintained. If such the intention of
the Central Government. There was absolutely no
reason as to why the provisions like Rules 122, 123 &
124 had to be made which specifically deal with the
subject of seniority.
It is not correct to contend that Rule 123 and 124 are
merely procedural in nature. The same, in our opinion,
are substantive. Ex facie there appears to be a conflict
but the same is not unexplainable. Sub rule (6) of Rule
136 speaks of a gradation list. Such gradation list is to
be prepared only in respect of Sub Inspectors to be
selected for list „E‟ and promotion from Sub Inspector
to Inspector. Such gradation list is confirmed only to
the persons appointed. The same, however, would not
govern the seniority list which would vary from time to
time having regard to the provision of accelerated
promotion and supersession. Such a gradation list is
required to be maintained for the purposes of inclusion
in list „E‟. Promotion of a person at times may
depend upon fortuitous circumstances but it is
trite that nobody can, having regard to the
specific rules of seniority, contend that despite
the fact that seniority lists are required to be
maintained State-wise and Frontier wise, they
can claim automatic promotion although no
vacancy had arisen within a State of within a
frontier.
We, therefore, with utmost respect to the learned
Judges, are of the opinion that Babu Joseph and Puran
Singh cases‟ (supra) were decided in the facts of that
case. In those judgments no law has been laid downW.P.(C) No.15159/2006 Page 16 of 20
nor any finding to the effect that the promotion would
be automatic had been arrived at. Case of each
person, therefore, has to be considered separately. It
is held that by reason of the said judgment to the
effect that irrespective of merit the writ petitioners are
entitled to automatic promotion the same would lead
to a situation which is not contemplated by the
statutory rules. By reason of such interpretation the
seniority of the official in the rank of Assistant
Commandant and Deputy Commandant and Second in
Command would be required to be re-fixed. Such re-
fixation of seniority would unsettled the settled
position at the level of Assistant Commandant and
Deputy Commandant which is wholly unwarranted.”
17. As can be seen from the order dated 19.12.2005,
passed by a Division Bench of this Court in WP(C)
No.7639/2001 which petition was filed by the petitioner, it is
not in dispute that the issue raised by the petitioner has to be
decided in light of the law laid down by the Division Bench of
this Court in the writ petition filed by B.S.Narula and others.
18. Thus there is no substance in the contention of the
petitioner that the seniority of Sub-Inspectors in BSF till July
1975 should not have been maintained on State wise (Frontier
wise basis). Similarly there is no substance in his contention
that when his batch mates were promoted against the
vacancies in their own Frontiers/ states against the vacancies
available there, he should also have been automatically
promoted. The controversy has already been set at rest in the
case of B.S.Narula and others. Petitioner himself agreed that
his representation dated 18.04.1987 should have been
considered in terms of judgment in the case of B.S.Narula. The
respondents have passed order dated 05.05.2006 deciding his
said representation, following the judgment in the case of
W.P.(C) No.15159/2006 Page 17 of 20
B.S.Narula. The petitioner has not even challenged the said
order dated 05.05.2006. We find no reason to take a view
different from what is already taken in the case of B.S.Narula
on the issue of maintenance of Frontier / state wise seniority
and promotion of Sub-Inspectors from such seniority against
the vacancy available in the Frontier. In para 9 of the Counter
Reply, the respondents have categorically stated that the
petitioner remained / posted in Training Institution from Oct
1970 to Oct 1975. In para 8 of the Counter reply the
respondents have stated that the petitioner was not
superseded by his juniors posted in the Training Institution up
to 1974. Thus the claim of the petitioner for his promotion as
Inspector from 12.12.1971 is not substantiated and is not
tenable. As is stated by respondents in para 9 of the counter
reply, S/Shri B.R. Yadav and P.C. Sharma and Ors Sub-
Inspectors who were promoted as Inspector w.e.f. 12.12.1971
were posted in other Frontiers and got promotion against the
vacancies available in their Frontiers/ Sectors. As has been
pronounced upon in the case of B.S. Narula, the promotion of
said Sub-Inspectors against the vacancies available in their
Frontier does not give any right to petitioner for automatic
promotion, even when there was no vacancy in his Frontier.
19. Since the claim of the petitioner for promotion as
Sub-Inspector from 12.12.1971 is not substantiated, his claim
for consequential promotions as Deputy Commandant, 2IC,
and Commandant on the basis of claim for promotion as Sub-
Inspector from 12.12.1971 from 14.06.1976, 20.05.1986,
07.08.1994 & 23.10.1996 can also be not accepted. Since the
petitioner retired as Deputy Commandant, he is entitled to
W.P.(C) No.15159/2006 Page 18 of 20
pension as Deputy Commandant only and not as
Commandant. Regarding claim of arrear of salary by the
petitioner as Assistant Commandant with effect from
01.04.1987, it has been stated in para 34 of the Counter Reply
that he was given arrears with effect from 01.04.1987 and a
cheque No.248674 dated 19.05.2005 for `74, 472/- was given
to him. Regarding the claim of the petitioner for deletion of the
word notional from orders dated 16.12.1998 and 24.03.1999, it
is suffice to say that once the respondents have stated that
the petitioner was given arrear of salary from 01.04.1987 as
Assistant Commandant, nothing turn adverse to applicant by
use of the word notional in order dated 16.12.1998. Moreover
in the writ petition filed in the year 2006, the challenge to use
of certain words in the orders passed on 16.12.1998 and
24.03.1999 would be barred by latches.
20. However, we are not dismissing the present writ
petition on laches alone, but in view of the facts and
circumstances noted hereinabove particularly the fact that no
person junior to the petitioner in the training institution was
promoted above the petitioner and we reiterate by way of
conclusion that till the Rules of 1975 came into force no
integrated seniority list of Sub-Inspectors was maintained.
Lists were maintained Fontier/State wise and howsoever
absurd it may sound that persons joining together would reach
different destinations on the fortuitous circumstance of the
Frontier/State they were deputed, the issue stands concluded
against the petitioner in B.S.Narula’s case (supra).
W.P.(C) No.15159/2006 Page 19 of 20
21. Thus, expressing sympathy with the petitioner we
can do no more but to relieve his of costs while dismissing the
writ petition.
22. The writ petition is dismissed.
23. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
MARCH 01, 2011
mm / dk
W.P.(C) No.15159/2006 Page 20 of 20