{"id":8336,"date":"2011-03-01T00:00:00","date_gmt":"2011-02-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-k-nimoria-vs-uoi-anr-on-1-march-2011"},"modified":"2016-06-17T06:22:27","modified_gmt":"2016-06-17T00:52:27","slug":"r-k-nimoria-vs-uoi-anr-on-1-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-k-nimoria-vs-uoi-anr-on-1-march-2011","title":{"rendered":"R.K.Nimoria vs Uoi & Anr. on 1 March, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
R.K.Nimoria vs Uoi & Anr. on 1 March, 2011<\/div>\n
Author: Pradeep Nandrajog<\/div>\n
*       IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n%                    Judgment Reserved on: February 24, 2011\n                     Judgment Delivered on: March 01, 2011\n\n+                            W.P.(C) 15159\/2006\n\n        R.K.NIMORIA                               ..... Petitioner\n                  Through:        Mr.H.K.Shekhar, Advocate\n\n                                  versus\n\n        UOI & ANR.                                .....Respondents\n                  Through:        Mr.A.K.Bhardwaj, Advocate\n\n         CORAM:\n         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG\n         HON'BLE MR. JUSTICE SURESH KAIT\n\n     1. Whether the Reporters of local papers may be allowed\n        to see the judgment?\n     2. To be referred to Reporter or not?\n     3. Whether the judgment should be reported in the Digest?\nPRADEEP NANDRAJOG, J.\n<\/pre>\n
1.             By way of instant writ petition, filed in the year
\n2006, the petitioner claims that his right to be promoted to the
\nrank of Inspector with effect from 12.12.1971 has been
\nviolated. He alleges that his batch mates who were of 1968
\nbatch and junior to him as Sub-Inspectors were promoted on
\nsaid date without his knowledge and behind his back. The
\npetitioner has also prayed for his further consequential
\npromotions as Assistant Commandant, Deputy Commandant,
\nSecond in Command and Commandant with effect from
\n14.06.1976,         20.05.1986,      07.08.1984     and    23.10.1996
\nrespectively.\n<\/p>\n
     W.P.(C) No.15159\/2006                                   Page 1 of 20<\/span><\/p>\n
 2.             It is obvious that said prayer is founded on his claim
\nfor promotion with effect from 12.12.1971. The further
\nconsequential prayer made by the petitioner in the writ
\npetition is for re-fixation of his pension accordingly. The
\npetitioner has also questioned the order No. 31\/26\/87-Pers\/
\nBSF\/2057, 058 dated 29.05.2001, by which his claim for ante-
\ndating his promotions and hence re-fixation of pay has been
\nrejected.      The petitioner has also asked for deletion of word
\nnotional from the orders dated 16.12.1998 and 24.03.1999 i.e.
\nthe orders under which he was promoted firstly as an Assistant
\nCommandant with effect from 1.4.1987 and then as a Deputy
\nCommandant with effect from 13.12.1993.\n<\/p>\n
3.             Briefly stated the relevant facts are that the
\npetitioner, a member of a Scheduled Caste was appointed as
\nSub-Inspector in Border Security Force with effect from
\n17.05.1968. After completing basic training conducted at BSF
\nAcademy, Takanpur from 17.05.1968 to 17.02.1969, he was
\nposted to the 2nd Bn. BSF in Rajasthan and Gujarat Frontier till
\nOctober 1970 and thereafter he was posted to the 103rd Bn.
\nBSF, Hazari Bagh, Training Centre and School Hazari Bagh
\nwhich was part of the Training Institution. He remained posted
\nthere till 18.10.1975. Up to 1974 he was not superseded by
\nany person junior to him.\n<\/p>\n
4.             The petitioner was considered for promotion as
\nInspector by DPC held in Srinagar Frontier on 09.10.1975. The
\nsaid DPC recorded following remarks against the name of the
\npetitioner:-\n<\/p>\n
        “FAIL IN RECORDS AND IN AGGREGATE EVEN AFTER
\n        RELAXATION AS SCHEDULED CASTE”\n<\/p>\n
     W.P.(C) No.15159\/2006                                 Page 2 of 20<\/span><\/p>\n
 5.             Thus he was not empanelled by the said DPC. Some
\nSub-Inspectors got promotion as Subedar against existing
\nvacancies in the Frontier where they were posted.\n<\/p>\n
6.              The petitioner remained posted at the Training
\nInstitution from October 1970 till 1975 (103rd Bn. BSF) and was
\npromoted as a Subedar thereafter with effect from 06.03.1978
\nagainst the vacancies existing in the Frontier\/ Headquarter
\nwhere he was posted at the time of DPC. As is stated by the
\nrespondents in para 9 of their Counter Reply, in July 1971 the
\npetitioner was borne on the strength of the 103rd Bn. BSF
\nwhich was part of Training Institution and as per record no DPC
\nfor promotion of Sub-Inspectors to the rank of Inspector was
\nconducted by the Training Institution with effect from 1970 up
\ntill 18.10.1975.\n<\/p>\n
7.             Later, when it was decided by BSF for centralization
\nof promotion\/seniority of Sub-Inspectors and above, in order to
\nextend same benefits to the petitioner as given to S\/Shri
\nB.R.Yadav, P.C.Sharma & D.S.Ahluwalia and a few others, a
\nreview DPC was convened and seniority of 357 persons
\nincluding the petitioner in the rank of Inspector was revised
\nvide order No. 17\/49\/94-Pers\/BSF dated 09.11.1994. An
\nattempt was made to hold review DPCs to consider the
\npetitioner and others for promotion to the rank of Assistant
\nCommandant and above. However, in view of the order dated
\n06.04.1995 passed by a High Court in TP No.41-55\/1995 filed
\nby        Direct     Recruit   Assistant    Commandants,        the
\nrecommendation of said review DPC in respect of the
\npetitioner and others could not be given effect.\n<\/p>\n
     W.P.(C) No.15159\/2006                               Page 3 of 20<\/span><\/p>\n
 8.             A DPC held on 11\/13.06.1986 considered the
\npetitioner      for   his    promotion   to   the   rank   of   Assistant
\nCommandant in BSF and graded him good.                 Treating him in
\nGeneral Category, he was not promoted. On being revealed
\nthat the petitioner hails from SC category, his case was
\nreviewed by Review DPC and he was given notional promotion
\nas Assistant Commandant with effect from 01.04.1987 i.e.
\nfrom the date persons junior to him were promoted. By order
\nNo.C-17011\/2001\/CC\/Pers\/BSF dated 24.03.2005 the petitioner
\nwas given arrear of pay and allowances for the said period.
\nThe amount of arrear was paid to him vide cheque No.248674
\ndated 19.05.2005. The arrear was an amount representing the
\ndifference of pay for the period from 01.04.1987 to 01.04.1988
\ni.e. `74,472\/- (Rupees Seventy Four Thousand and Four
\nHundred Seventy Two).\n<\/p>\n
9.             As initially the petitioner was promoted as Assistant
\nCommandant with effect from 01.04.1988, thus he could not
\nbe considered for his promotion to the rank of Deputy
\nCommandant by the DPC held in 1992. However, on revision of
\nhis seniority and antedating of date of his promotion as
\nAssistant Commandant as 01.04.1987, a review DPC was held
\non 24.11.1992 and on the basis of the recommendation of said
\nDPC, the petitioner was promoted as Deputy Commandant
\nwith effect from 13.02.1993. Since he was promoted as Deputy
\nCommandant on 13.02.1993, he could not be promoted as
\nSecond in Command in the year 1994, as he was not in the
\nzone of consideration for such promotion. As a result he was
\nnot promoted as Commandant in the year 1996. The petitioner<\/p>\n
     W.P.(C) No.15159\/2006                                      Page 4 of 20<\/span>
\n retired in the rank of Deputy Commandant on 30.04.1998 and
\nis being paid pension accordingly.\n<\/p>\n
10.         The petitioner had filed WP(C) No.7631\/2001 before
\nthis Court seeking direction for his promotion to the rank of
\nInspector with effect from 2.1972, Assistant Commandant with
\neffect from 14.06.1976, Deputy Commandant with effect from
\n06.07.1986, Second in Command with effect from 01.01.1994
\nand Commandant with effect from 25.10.1996 and for re-
\nfixation of his pension in the rank of Commandant. The said
\nwrit petition was disposed of vide order dated 19.12.2005
\ndirecting a reasoned order to be passed pertaining to
\npetitioner\u201fs claim.\n<\/p>\n
11.         In compliance of the said order, respondents have
\npassed a detailed order dated 05.05.2006 which reads as
\nunder:-\n<\/p>\n
                               “ORDER
\n      Whereas,      IRLA    No.   38331      R.K.Nimoria,   Dy
\n      Commandant (since retired w.e.f. 30.04.1998), had
\n      filed a writ petition WP (C) No. 7639\/2001 before the
\n      High Court of Delhi soliciting direction to promote him
\n      to the rank of Inspector w.e.f. 01.12.1972. Assistant
\n      Commandant w.e.f. 14.06.1976. Dy Commandant
\n      w.e.f.    06\/1986.    Second-in    Commandant       w.e.f.
\n      01.01.1994 and Commandant w.e.f. 25.10.1996 and
\n      re-fix his pension in the rank of Commandant wherein
\n      MHA as impleaded first respondent.<\/p>\n
      2.   Whereas, the Hon\u201fble Court has decided the said
\n      writ petition vide judgment and order dated
\n      19.12.2005. The operative portion of the judgment
\n      read as under:-\n<\/p><\/blockquote>\n
           “It is not in dispute that the dispute involved
\n           in this writ petition is covered by the judgment
\n           titled as B.S.Narula & Ors Vs UOI CWP No.
\n           1673\/1992 rendered by Division Bench of this
\n           Court. Accordingly the representation made<\/p>\n
  W.P.(C) No.15159\/2006                                  Page 5 of 20<\/span>
\n           by the petitioner dated 18.04.1987 shall be
\n          considered in accordance with the above
\n          judgment. In case the petitioner is aggrieved
\n          by the disposal of the representation it is open
\n          to him to challenge the same in appropriate
\n          proceedings.\n<\/p><\/blockquote>\n
          The writ petition stands disposed of.”\n<\/p><\/blockquote>\n
   3.    Whereas, pursuant to the above judgment of the
\n   Hon\u201fble Court, the petitioner had submitted a
\n   representation dated 16.01.2006 along with copy of
\n   the order dated 20.07.2005 passed by the Hon\u201fble
\n   High Court of Delhi in the case of re-examination of
\n   the case regarding relief sought for antedated
\n   promotion and copy of his representation dated
\n   18.04.1987. The grievances submitted by the
\n   petitioner in his representation dated 16.01.2006 are
\n   summarized as under:-\n<\/p><\/blockquote>\n
         “That his batch mate namely Shri B.R. Yadav
\n         (since retired as Commandant) who was junior
\n         to petitioner in enrolment as Platoon
\n         Commander (Direct Entry) got regular
\n         promotion up to the rank of Commandant
\n         whereas he (the petitioner) retired as Dy
\n         Commandant on 30.04.1998. He was not
\n         given timely promotion to the rank of subedar
\n         due to which he was not given further
\n         promotions like his batch mates\/ juniors. In
\n         the representation dated 18.04.1987, he has
\n         also mentioned that he was due for promotion
\n         to the rank of Assistant Commandant along
\n         with Subedar Office Seniority who were
\n         promoted as Assistant Commandant vide
\n         order dated 31.03.1987 being his seniority in
\n         the rank of Subedar w.e.f. 07.03.1978 but he
\n         was not considered for promotion. He has also
\n         stated that he has never communicated any
\n         adverse\/ advisory remarks during the period
\n         from 1978 to 1987.”\n<\/p><\/blockquote>\n
   4.     Whereas, the brief facts and history of the
\n   litigation commencing with WP No. 257\/80 filed by Shri
\n   Babu Joseph before the Hon\u201fble High Court of Madhya
\nW.P.(C) No.15159\/2006                                 Page 6 of 20<\/span>
\n    Pradesh and culminating in WP No. 1673\/1992 titled
\n   B.S.Narula & Ors Vs UOI & Ors disposed of by the
\n   Hon\u201fble High Court of Delhi vide judgment dated
\n   27.09.2002 are as under:-\n<\/p><\/blockquote>\n
        “(a)   that from 1967 to July 1975, promotions
\n        from Sub Inspectors to Subedars were made
\n        Frontier wise with reference to the vacancies
\n        existing in the concerned Frontiers, as per
\n        provisions of CRPF 14th Amendment Rules.
\n        1967. As a result, some SIs posted in a Frontier
\n        got promotion as Subedar early, while other SIs
\n        of same seniority posted in other Frontier got
\n        their promotion late.\n<\/p><\/blockquote>\n
        (b)    that during 1980. Sh Babu Joseph filed a
\n        Writ Petition No. 257\/80 before the Hon\u201fble
\n        High Court of Madhya Pradesh at Gwalior and
\n        claimed promotion as Subedar w.e.f. the date
\n        of promotion of his junior posted in other
\n        Frontiers. The said WP was decided in his
\n        favour. The Hon\u201fble Court had directed to
\n        consider his entitlement for promotion as
\n        Subedar after completion of 3 years service as
\n        Sub Inspector. The Deptt filed SLP against this
\n        order of Hon\u201fble High Court but it was
\n        dismissed. Accordingly, the judgment was
\n        implemented and Sh. Babu Joseph was given
\n        retrospective promotion from SI to Subedar and
\n        onward.\n<\/p><\/blockquote>\n
        (c)    that subsequently, some more officers
\n        filed WPs No. 2840\/90 (Puran Singh & Ors)
\n        before Gwalior High Court and claimed similar
\n        benefits as granted to Sh. Babu Joseph in the
\n        matter of promotion and seniority. This case
\n        was also decided in their favour.\n<\/p><\/blockquote>\n
        (d)    that Shri Babu Joseph and Puran Singh &
\n        six others were given promotion from SI to
\n        Subedar with reference to the Force level
\n        seniority of SIs and also given further
\n        promotions.\n<\/p><\/blockquote>\n
        (e)    that while implementing the judgment in
\n        the case of Shri Puran Singh and others,
\n        seniority of 357 personnel was revised in the<\/p>\n
W.P.(C) No.15159\/2006                               Page 7 of 20<\/span>
\n         rank of Subedar from various dates on the basis
\n        of Force level seniority.\n<\/p><\/blockquote>\n
        (f)    that meanwhile, the Hon\u201fble High Court
\n        of Madhya Pradesh at Gwalior had stayed
\n        further promotion of Sh. Babu Joseph vide order
\n        dated 04.11.1993 in the M.P No. 316\/93 filed by
\n        Sh. M. Damodaram and Ors vs UOI and Ors.<\/a>\n<\/p><\/blockquote>\n
        (g)    that in the meantime, some more
\n        promotee officers had filed Writ Petitions before
\n        various High Court of the Country claiming
\n        similar relief as granted to Sh. Babu Joseph.
\n        Some Direct Entry officers (Mohan Lal & Ors)
\n        filed Transfer Petition No. 41-55\/95 before the
\n        Hon\u201fble Supreme Court praying for transfer of
\n        all the similar cases to one High Court.
\n        Accordingly all the cases were transferred to
\n        Delhi High Court by Hon\u201fble Supreme Court
\n        order dated 06.04.1995. While passing order
\n        dated 06.04.1995 Hon\u201fble Supreme Court had
\n        granted a stay order regarding seniority
\n        between Direct Entry and promottee officers. It
\n        was further directed by the Hon\u201fble Court that
\n        those Writ Petition which have been decided by
\n        the High Courts can be given effect to, subject
\n        to final outcome of writ petition being
\n        transferred to Delhi High Court. It means the
\n        seniority re-assigned to Sh. Babu Joseph and
\n        Puran Singh & ors in various ranks was also
\n        made subject to final outcome of the cases
\n        transferred to Delhi High Court.\n<\/p><\/blockquote>\n
        (h)    that upon transfer of cases to Delhi High
\n        Court, the cases were titled as Shri B.S. Narula
\n        and Ors Vs UOI & Ors. The said case has since
\n        been decided finally by the Hon\u201fble High Court
\n        of Delhi vide judgment and order dated
\n        27.09.2002.”\n<\/p><\/blockquote>\n<\/blockquote>\n
   5.   Whereas, as per the said judgment of Hon\u201fble
\n   High Court of Delhi no law has been laid down in Babu
\n   Joseph\u201fs and Puran Singh\u201fs case and the promotion
\n   from SI to Subedar is to be made as per old rules
\n   which inter-alia provide promotion within the
\n   concerned Frontiers; and<\/p>\n
W.P.(C) No.15159\/2006                                Page 8 of 20<\/span>\n<\/p><\/blockquote>\n
    6.    Whereas, while complying with the judgment,
\n   the crucial point to be examined was to ensure that
\n   whether the said Petitioners had suffered supersession
\n   in promotion from SI to Subedar within their own
\n   Frontiers or otherwise. It was established that they
\n   had got promotion from SI to Subedar correctly in their
\n   Frontiers and also that the promotion given to Sh.\n<\/p><\/blockquote>\n
   Babu Joseph and Puran Singh & Ors with reference to
\n   Force level seniority was incorrect. Accordingly, after
\n   holding review DPCs with the permission of the MHA
\n   and subsequent approval of the MHA thereon, all the
\n   orders giving retrospective promotions to Sh. Babu
\n   Joseph and Sh. Puran Singh & Ors in various ranks
\n   were cancelled and they were given promotion w.r.t.
\n   their original seniority in the rank of Subedar; and<\/p>\n
   7.    Whereas, ultimate result of implementation of
\n   the judgment dated 27.09.2002 titled Shri B.S. Narula
\n   & Ors Vs UOI & Ors was that the benefit of
\n   retrospective promotion given in various ranks to eight
\n   others as a result of the judgments passed by the
\n   Hon\u201fble High Court of MP was cancelled; and<\/p>\n
   8.   Whereas, the order No. 17\/499\/94-Pers\/BSF
\n   dated 09.11.1994 vide which seniority of 357
\n   personnel was revised in the rank of Subedars from
\n   various dates was also cancelled; and<\/p>\n
   9.    Whereas, in the judgment dated 27.09.2002, the
\n   Hon\u201fble Court has held that promotion from Sub-
\n   Inspector to be made as per old rules and that no law
\n   has been laid down in the judgment of the Hon\u201fble
\n   Court of MP in MP NO. 257\/80 Babu Joseph Vs UOI
\n   dated 08.02.1990 and 2840\/90 Puran Singh and Ors
\n   dated 02.07.1992. The court has further directed the
\n   department to carry out re-fixation of seniority as per
\n   old rules.\n<\/p>\n
   10. Whereas, the petitioner being a bonafide
\n   Scheduled Caste candidate, enrolled in BSF as Sub-
\n   Inspector (Direct Entry) on 17.05.1968 and after
\n   completion of basic training conducted at BSF
\n   Academy, Tekanpur w.e.f. 17.05.1968 to 17.02.1969
\n   he was posted to 02 Bn BSF under Rajasthan and
\nW.P.(C) No.15159\/2006                              Page 9 of 20<\/span>
\n       Gujarat Frontier till Oct 1970. Thereafter he was
\n      posted to 103 Bn BSF, Hazaribagh under Training
\n      Centre and School Hazaribagh. As per records, the
\n      DPCs were held in Rajasthan and Gujarat Frontier
\n      during 1972 and onward. In the DPC held in the year
\n      1972 in the R&G Frontier. Sub Inspectors of seniority
\n      up to 20.05.1986 only were considered for promotion
\n      to the rank of Subedar. Since the petitioner was not
\n      borne on the strength of Rajasthan and Gujarat
\n      Frontier during 1972, he was not considered for
\n      promotion by the said DPC. The details of DPCs held
\n      for the candidates of Training Institutions after posting
\n      of the petitioner to 103 Bn BSF are given below:-\n<\/p>\n
Srl      Date of DPC Seniority          of Remarks\nNo.                       Sub-Insprs    up\n                          to       which\n                          considered\/\n                          empanelled\n01       22\/23       July 06.04.1968         Not in the zone of\n         1971                                consideration     being\n                                             date of appointment\n                                             as     on   17.05.1968.\n\n\n02       27     to    29 17.01.1968          -do-\n         July 1972\n03       30\/31 Jan & 27.04.1968              -do-\n         1 Feb 1974\n04       15          Sept 15.07.1968         Unfit\n         1975<\/span>\n\n\n<\/pre>\n
      Since the petitioner was holding the rank of SI w.e.f.
\n      17.05.1968, he was not eligible for consideration by
\n      the DPCs held up to 1974 and hence, not considered
\n      by the said DPCs. He was considered for empanelment<\/p>\n
W.P.(C) No.15159\/2006                                       Page 10 of 20<\/span>
\n      by the DPC held on 15.09.1975 but graded as \u201eUnfit\u201f
\n     due to inadequate confidential record of service and<\/p>\n
     11. Whereas, the petitioner was posted to 52 Bn BSF
\n     in Oct 1975 and further posted to 47 Bn BSF in 1976
\n     under erstwhile North West Frontier (Now Srinagar
\n     Fronteir) and in the subsequent DPC held in the NW,
\n     Frontier during Oct 1975, the petitioner was
\n     considered for empanelment for promotion to the rank
\n     of Subedar but he could not secure the minimum
\n     prescribed marks based on his performance in the
\n     tests conducted for the purpose of empanelment for
\n     promotion to the rank of Subedar besides his
\n     confidential record of service and hence, he could not
\n     get promotion with reference to the said DPC of 1975
\n     even after relaxation given in the case of Scheduled
\n     Caste candidate; and<\/p>\n
     12. Whereas, he was also considered by the
\n     subsequent DPC held in 1976 on 25.11.1976 and
\n     empanelled and promoted to the rank of Subedar
\n     w.e.f. 06.03.1978; and<\/p>\n
     13. Whereas, since the petitioner was not in the zone
\n     of consideration for promotion from SI to Subedar
\n     during the years 1971 to 1974 being SI of 17.05.1968
\n     and not empanelled by the DPC\u201fs for promotion during
\n     1975 but empanelled \/ promoted as Subedar with
\n     reference to the next DPC held in 1976 w.e.f.
\n     06.03.1978 and his said date of promotion as Subedar
\n     is correct as per the record; and<\/p>\n
     14. Whereas, as per the seniority of Subedar w.e.f.
\n     06.03.1978 the petitioner was promoted to the rank of
\n     Asstt. Commandant w.e.f. 01.04.1988 which was
\n     revised w.e.f. 01.04.1987 vide order dated 16.12.1992
\n     and Dy Commandant w.e.f. 13.02.1993; and<\/p>\n
     15. Whereas, the petitioner was assigned the revised
\n     seniority of Subedar w.e.f. 12.04.1973 vide FHQ BSF
\n     order No. 17\/49\/94-Pers\/ BSF dated 09.11.1994, the
\n     order was subsequently treated as cancelled as a
\n     result of implication of the judgment dated 27.09.2002
\n     titled B.S. Narula & Ors Vs UOI & Ors; and
\nW.P.(C) No.15159\/2006                              Page 11 of 20<\/span>\n<\/p>\n
      16. Whereas, the revised seniority granted to the
\n     petitioner in the rank of Subedar as on 12.04.1973
\n     was on the basis of Force level (Central) Seniority and
\n     such Central Seniority is not contemplated in the old
\n     Recruitment Rules; and<\/p>\n
     17. Whereas, as per the old Rules i.e. 123 & 124 of
\n     CRPF (Fourteenth Amendment) Rules, the seniority of
\n     Sub-Inspectors was to be maintained state (Sector)
\n     wise and DPCs for promotion of Sub-Inspectors to the
\n     rank of Subedar were to be held by the respective
\n     Frontiers, Training Institutions; and<\/p>\n
     18. Whereas, as per the old rules some Sub-
\n     Inspectors got promotion to the rank of Subedar early
\n     with reference to number of vacancies existing in that
\n     particular Frontier\/Sector whereas the others including
\n     the petitioner could not get promotion due to lack of
\n     vacancies in their Frontier\/ Sectors. Since the
\n     petitioner remained posted in Training Institution for
\n     the period from Oct 1970 to 1975 (103 Bn BSF), he got
\n     promotion as Subedar late as compared to his batch
\n     mates, Shri B.R. Yadav Commandant. Therefore, the
\n     grievances put forth by the petitioner through his
\n     representation dated 18.04.1987 does not hold any
\n     ground and rejected being devoid of merits.\n<\/p>\n
     19. In view of the above, the case of the petitioner
\n     has been carefully considered in the light of the
\n     decision of Hon\u201fble Delhi High Court in the case of B.S.
\n     Narula & Ors and it is found that his seniority as
\n     Subedar is correctly fixed as per old rules and he
\n     earned subsequently promotion on that basis. He was
\n     superseded in promotion to the rank of Subedar and
\n     Deputy Commandant due to inadequate confidential
\n     record of service. Therefore, the petitioner is neither
\n     entitled   to   any   benefit    in   the   matter    of
\n     promotion\/seniority nor entitled to any additional
\n     service\/financial benefits other than what has already
\n     been allowed to him as per rules.\n<\/p>\n
W.P.(C) No.15159\/2006                                Page 12 of 20<\/span><\/p>\n
         20. That this order is issued in compliance of the
\n        order dated 19.12.2005 passed by the Hon\u201fble High
\n        Court of Delhi.”\n<\/p>\n
13.          In the instant writ petition, the petitioner saliently
\ncontended:-\n<\/p>\n
(i)          His batch mates of 1968 were promoted as
\nInspector with effect from 12.12.1971, 1972, 1973 & 1974
\nwhile he was not so promoted. In para 30 of his petition he
\nmention the names of S\/Shri B.R. Yadav, D.S. Ahluwali, P.C.
\nSharma, Hoshiyar Singh Dahiya, R.S. Negi, S.S. Chahar & R.K.
\nSingh, who according to him were his batch mates and were
\npromoted ahead of him.\n<\/p>\n
(ii)         No common seniority list of Sub-Inspector was
\nmaintained Centrally at Headquarters of BSF.\n<\/p>\n
(iii)        His service record was not placed before DPC held
\nto consider him for his promotion as Assistant Commandant.\n<\/p>\n
14.          Contesting the aforementioned issues raised by the
\npetitioner, respondents filed their counter reply. In para 3 of
\nthe reply, the respondents have mentioned that S\/Shri
\nB.R.Yadav, P.C.Sharma, R.S.Negi, Hoshiyar Singh, R.P. Singh,
\nN.K. Rampal, S.C. Pandey, C.B. Shashi, D.S. Ahluwalia and S.S.
\nChahar were appointed as Sub-Inspector in the year 1968
\nalong with the petitioner, but after passing out the basic
\ntraining they were posted to different Frontier. Admittedly till
\nJuly    1975   the   promotion    from   Sub-Inspector     (Platoon
\nCommandant) to Subedar in BSF was regulated by CRPF (14th
\nAmendment) Rule 1967. In terms of Rule 123 & 124 of said
\nrules, the list of seniority of Sub-Inspectors was to be
\nmaintained State wise and the list of Inspectors was to be
\nmaintained Frontier wise. The said rules read as under:-\n<\/p>\n
 W.P.(C) No.15159\/2006                                   Page 13 of 20<\/span><\/p>\n
       “123.List of Seniority of Sub-Inspectors:- The list of
\n      seniority of Sub-Inspectors shall be maintained state-
\n      wise.\n<\/p><\/blockquote>\n
      Explanation- For the purposes of this rule, the Border
\n      Security Force Academy, Tekanpur, Border Security
\n      Force Training Centre and School, Hazaribagh, Central
\n      School of Weapons and Tactics and Battalions in the
\n      Headquarters reserve shall be construed as a state.\n<\/p><\/blockquote>\n
      124. List of seniority of Inspectors:- The list of
\n      seniority of Inspectors shall be maintained Frontier
\n      wise.\n<\/p><\/blockquote>\n
      Explanation- For the purposes of this rule, the Border
\n      Security Force Academy, Tekanpur, Border Security
\n      Force Training Centre and School, Hazaribagh, Central
\n      School of Weapons and Tactics, Indore, and Battalions
\n      in the Headquarters in the Headquarters reserve shall
\n      be construed as a Frontier.”\n<\/p><\/blockquote>\n
15.         Rule 136 of said rules regulate procedure of
\nselection of Sub-Inspectors (Platoon Commandant) for list E
\nand promotion from Sub-Inspector (Platoon Commandant) to
\nInspector (Company 2 I \/ CS). The said rule read as under:-\n<\/p>\n
      “136.Procedure of selection Sub-Inspectors (Platoon
\n      Commanders) for list \u201eE\u201f and promotion from Sub-
\n      Inspectors (Platoon Commanders) to Inspector
\n      (Company 2 I\/ CS).\n<\/p><\/blockquote>\n
      (1) Once every year the Commandant shall
\n      recommend to the Inspector General, through the
\n      Deputy Inspector General concerned, such Sub-
\n      Inspectors (Platoon Commanders) whom he considers
\n      suitable for promotion to the rank of Inspectors
\n      (Company 2 I\/C).\n<\/p><\/blockquote>\n
      (2) The Inspector General of the Frontier shall
\n      constitute a Board of consisting of himself and all the
\n      Deputy Inspector General under him and two
\n      Commandants of Battalions.\n<\/p><\/blockquote>\n
           Provided that in respect of the Frontier referred
\n      to in the Explanation to Rule 124 the Board shall
\n W.P.(C) No.15159\/2006                               Page 14 of 20<\/span>
\n       consist of the Director General, Border Security Force,
\n      the Commandants of the Border Security Force
\n      Academy, Tekanpur, Border Security Force Training
\n      Centre and School Hazaribagh, and Central School of
\n      Weapons and Tactics, Indore and two Commandants
\n      of the Battalions in the Headquarters Reserve and
\n      when the Director General Border Security Force is
\n      unable to preside over the Board, he shall nominate,
\n      an officer not below the rank of the Deputy Inspector
\n      General to preside.\n<\/p><\/blockquote>\n
      (3) The Board shall consider the record of service of
\n      the nominees, their performance in the courses, and
\n      seniority, and test them on parade and interview
\n      them.\n<\/p><\/blockquote>\n
      (4) The Board shall prepare a list of names of
\n      officers found fit for inclusion in list \u201eE\u201f.\n<\/p><\/blockquote>\n
      (5) The name will be arranged in the order of
\n      seniority<\/p>\n
            Provided that in case where the Board considers
\n      the performance merit and record of service of an
\n      officer of outstanding merit, the Board may place his
\n      name above his seniors.\n<\/p><\/blockquote>\n
      (6) A gradation list of Sub-Inspectors (Platoon
\n      Commanders) approved for inclusion in the list \u201eE\u201f
\n      shall be maintained at the Headquarters of the Border
\n      Security Force.”\n<\/p><\/blockquote>\n
16.         From the aforementioned rules, it is clear that the
\npromotion from the post of Sub-Inspector to Inspector was
\nmade on Frontier\/ State basis against the vacancies available
\nin the respective Frontier\/ States. Such position was approved
\nby a Division Bench of this Court in order dated 27.09.2002,
\nwhile deciding a batch of petitions including CWP 1673\/1992
\n(B.S. Narula & Ors Vs UOI) etc etc. In the said petition it was
\nheld that the promotion of a person at times may depend upon<\/p>\n
 W.P.(C) No.15159\/2006                               Page 15 of 20<\/span>
\n fortuitous circumstances, but it is trite that nobody can having
\nregard to specific rules of seniority contend that despite the
\nfact that the seniority list are required to be maintained state
\nwise and Frontier wise, they can claim automatic promotion
\nalthough no vacancy had arisen with in a State or within a
\nFrontier. The Relevant portion of the said judgment read as
\nunder:-\n<\/p>\n
      “Rule 136(6) itself is not a rule specifying as to how
\n      seniority is to be maintained. If such the intention of
\n      the Central Government. There was absolutely no
\n      reason as to why the provisions like Rules 122, 123 &
\n      124 had to be made which specifically deal with the
\n      subject of seniority.\n<\/p><\/blockquote>\n
      It is not correct to contend that Rule 123 and 124 are
\n      merely procedural in nature. The same, in our opinion,
\n      are substantive. Ex facie there appears to be a conflict
\n      but the same is not unexplainable. Sub rule (6) of Rule
\n      136 speaks of a gradation list. Such gradation list is to
\n      be prepared only in respect of Sub Inspectors to be
\n      selected for list \u201eE\u201f and promotion from Sub Inspector
\n      to Inspector. Such gradation list is confirmed only to
\n      the persons appointed. The same, however, would not
\n      govern the seniority list which would vary from time to
\n      time having regard to the provision of accelerated
\n      promotion and supersession. Such a gradation list is
\n      required to be maintained for the purposes of inclusion
\n      in list \u201eE\u201f. Promotion of a person at times may
\n      depend upon fortuitous circumstances but it is
\n      trite that nobody can, having regard to the
\n      specific rules of seniority, contend that despite
\n      the fact that seniority lists are required to be
\n      maintained State-wise and Frontier wise, they
\n      can claim automatic promotion although no
\n      vacancy had arisen within a State of within a
\n      frontier.\n<\/p><\/blockquote>\n
      We, therefore, with utmost respect to the learned
\n      Judges, are of the opinion that Babu Joseph and Puran
\n      Singh cases\u201f (supra) were decided in the facts of that
\n      case. In those judgments no law has been laid down<\/p>\n
 W.P.(C) No.15159\/2006                                 Page 16 of 20<\/span>
\n       nor any finding to the effect that the promotion would
\n      be automatic had been arrived at. Case of each
\n      person, therefore, has to be considered separately. It
\n      is held that by reason of the said judgment to the
\n      effect that irrespective of merit the writ petitioners are
\n      entitled to automatic promotion the same would lead
\n      to a situation which is not contemplated by the
\n      statutory rules. By reason of such interpretation the
\n      seniority of the official in the rank of Assistant
\n      Commandant and Deputy Commandant and Second in
\n      Command would be required to be re-fixed. Such re-
\n      fixation of seniority would unsettled the settled
\n      position at the level of Assistant Commandant and
\n      Deputy Commandant which is wholly unwarranted.”\n<\/p><\/blockquote>\n
17.         As can be seen from the order dated 19.12.2005,
\npassed    by   a   Division   Bench   of   this   Court    in    WP(C)
\nNo.7639\/2001 which petition was filed by the petitioner, it is
\nnot in dispute that the issue raised by the petitioner has to be
\ndecided in light of the law laid down by the Division Bench of
\nthis Court in the writ petition filed by B.S.Narula and others.\n<\/p>\n
18.         Thus there is no substance in the contention of the
\npetitioner that the seniority of Sub-Inspectors in BSF till July
\n1975 should not have been maintained on State wise (Frontier
\nwise basis). Similarly there is no substance in his contention
\nthat when his batch mates were promoted against the
\nvacancies in their own Frontiers\/ states against the vacancies
\navailable there, he should also have been automatically
\npromoted. The controversy has already been set at rest in the
\ncase of B.S.Narula and others. Petitioner himself agreed that
\nhis   representation     dated   18.04.1987   should      have   been
\nconsidered in terms of judgment in the case of B.S.Narula. The
\nrespondents have passed order dated 05.05.2006 deciding his
\nsaid representation, following the judgment in the case of<\/p>\n
 W.P.(C) No.15159\/2006                                     Page 17 of 20<\/span>
\n B.S.Narula. The petitioner has not even challenged the said
\norder dated 05.05.2006. We find no reason to take a view
\ndifferent from what is already taken in the case of B.S.Narula
\non the issue of maintenance of Frontier \/ state wise seniority
\nand promotion of Sub-Inspectors from such seniority against
\nthe vacancy available in the Frontier. In para 9 of the Counter
\nReply, the respondents have categorically stated that the
\npetitioner remained \/ posted in Training Institution from Oct
\n1970 to Oct 1975. In para 8 of the Counter reply the
\nrespondents     have     stated   that   the   petitioner   was     not
\nsuperseded by his juniors posted in the Training Institution up
\nto 1974. Thus the claim of the petitioner for his promotion as
\nInspector from 12.12.1971 is not substantiated and is not
\ntenable. As is stated by respondents in para 9 of the counter
\nreply, S\/Shri B.R. Yadav and P.C. Sharma and Ors Sub-
\nInspectors who were promoted as Inspector w.e.f. 12.12.1971
\nwere posted in other Frontiers and got promotion against the
\nvacancies available in their Frontiers\/ Sectors. As has been
\npronounced upon in the case of B.S. Narula, the promotion of
\nsaid Sub-Inspectors against the vacancies available in their
\nFrontier does not give any right to petitioner for automatic
\npromotion, even when there was no vacancy in his Frontier.\n<\/p>\n
19.         Since the claim of the petitioner for promotion as
\nSub-Inspector from 12.12.1971 is not substantiated, his claim
\nfor consequential promotions as Deputy Commandant, 2IC,
\nand Commandant on the basis of claim for promotion as Sub-
\nInspector from 12.12.1971 from 14.06.1976, 20.05.1986,
\n07.08.1994 & 23.10.1996 can also be not accepted. Since the
\npetitioner retired as Deputy Commandant, he is entitled to<\/p>\n
 W.P.(C) No.15159\/2006                                      Page 18 of 20<\/span>
\n pension      as    Deputy   Commandant      only     and     not     as
\nCommandant. Regarding claim of arrear of salary by the
\npetitioner    as   Assistant   Commandant     with     effect      from
\n01.04.1987, it has been stated in para 34 of the Counter Reply
\nthat he was given arrears with effect from 01.04.1987 and a
\ncheque No.248674 dated 19.05.2005 for `74, 472\/- was given
\nto him. Regarding the claim of the petitioner for deletion of the
\nword notional from orders dated 16.12.1998 and 24.03.1999, it
\nis suffice to say that once the respondents have stated that
\nthe petitioner was given arrear of salary from 01.04.1987 as
\nAssistant Commandant, nothing turn adverse to applicant by
\nuse of the word notional in order dated 16.12.1998. Moreover
\nin the writ petition filed in the year 2006, the challenge to use
\nof certain words in the orders passed on 16.12.1998 and
\n24.03.1999 would be barred by latches.\n<\/p>\n
20.          However, we are not dismissing the present writ
\npetition on laches alone, but in view of the facts and
\ncircumstances noted hereinabove particularly the fact that no
\nperson junior to the petitioner in the training institution was
\npromoted above the petitioner and we reiterate by way of
\nconclusion that till the Rules of 1975 came into force no
\nintegrated seniority list of Sub-Inspectors was maintained.
\nLists were maintained Fontier\/State wise and howsoever
\nabsurd it may sound that persons joining together would reach
\ndifferent destinations on the fortuitous circumstance of the
\nFrontier\/State they were deputed, the issue stands concluded
\nagainst the petitioner in B.S.Narula’s case (supra).\n<\/p>\n
 W.P.(C) No.15159\/2006                                     Page 19 of 20<\/span><\/p>\n
 21.         Thus, expressing sympathy with the petitioner we
\ncan do no more but to relieve his of costs while dismissing the
\nwrit petition.\n<\/p>\n
22.         The writ petition is dismissed.\n<\/p>\n
23.         No costs.\n<\/p>\n
                                      (PRADEEP NANDRAJOG)
\n                                             JUDGE<\/p>\n
                                              (SURESH KAIT)
\n                                                  JUDGE<\/p>\n
MARCH 01, 2011
\nmm \/ dk<\/p>\n
 W.P.(C) No.15159\/2006                                 Page 20 of 20<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court R.K.Nimoria vs Uoi & Anr. on 1 March, 2011 Author: Pradeep Nandrajog * 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-8336","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nR.K.Nimoria vs Uoi & Anr. on 1 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/r-k-nimoria-vs-uoi-anr-on-1-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"R.K.Nimoria vs Uoi & Anr. on 1 March, 2011 - 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