W.P.(C)(SH) No. 285/2009 Page 1 of 15 - Gauhati High Court

THE GAUHATI HIGH COURT(HIGH COURT OF ASSAM; NAGALAND; MEGHALAYA;MANIPUR; TRIPURA; MIZORAM AND ARUNACHAL PRADESH)SHILLONG BENCHW.P(C) (SH) No. 285/2009Shri Dinesh Kumar PrajapatiNo. 960086007 (VM)Presently serving as Head Constable (VM)Station Headquarter,Border Security Force, Shillong………PETITIONER-VERSUS-1. The Union of IndiaRepresented by the Secretary,Ministry of Home Affairs,New Delhi2. The Director GeneralBorder Security Force,CGO Complex, Lodhi Road,New Delhi3. The Deputy Inspector General (TPT)Border Security ForceProvisoning Directorate (Transport Section)Block No. 10 CGO Complex,Lodhi Road, New Delhi4. The Deputy Inspector General,SHQ, Border Security Force,Shillong…………..RESPONDENTSW.P.(C)(SH) No. 285/2009 Page 1 of 15

BEFORETHE HON’BLE MR. JUSTICE B.K. SHARMAFor the petitioner: Mr. N. Mozika, AdvocatesFor the Respondents : Mr. S.C. Shyam, CGCDate of Hearing & Judgment: 30.05.2011JUDGEMENT & ORDER (ORAL)1. By means of this writ petition, the petitioner has called inquestion Annexure-10 and 11 communications dated 24.07.2009 and10.08.2009 by which the decision of the authority towards rejection ofthe claim of the petitioner for promotion to the cadre of Sub-Inspector(VM) was conveyed.2. The petitioner entered into the services of the respondents in theyear 1996 as Head Constable (VM). At the time of filing of the writpetition, he was serving as Head Constable (VM) in Sector MotorWorkshop, SHQ, BSF, Shillong. Prior to 2006 there was no separateW.P.(C)(SH) No. 285/2009 Page 2 of 15

ecruitment rules for Motor Transport Workshop (Non Gazatted)Grade-C post and the incumbents in the said group were governed byBSF (GD) Cadre (Non Gazatted) Recruitment Rules, 2002. Asper the said Rules, the requirement for promotion from the cadre ofHead Constable to that of S.I. was 5 (five) years of service as HeadConstable with total 18 years of service and possessing thequalifications as prescribed in the rules. As per the new recruitmentrules of 2006 which provides for initial constitution of the cadre, therequirement is 10 years of regular service as Head Constable (Tech.)or 5 (five) years regular service in the grade with at least 18 yearscombined regular service in that grade and in any other grade in theBSF. Another requirement is to have basic training course asprescribed by the Director General from time to time.3. The petitioner having had joined the services of BSF as HeadConstable (VM) in the year 1996, he will be completing 18 years ofservice only in the year 2014. Thus, as per the requirement of 2002Rules, he is yet to complete the requisite length of service. However,in view of the initial constitution of service with promulgation of theaforesaid Rules of 2006 he now fulfills the requirement of 10 years ofW.P.(C)(SH) No. 285/2009 Page 3 of 15

continuous service in the Grade of Head Constable (VM). As regardsthe requirement of basic training course as prescribed by the DirectorGeneral from time to time, it is on record that the petitioner hasobtained the said qualification. In this connection, the petitioner hasreferred to Anenxure-6 movement order dated 28.05.2007. The saidtraining course was of 10 weeks duration. However, later on the BSFauthority insisted for training course of 36 weeks which has againbeen reduced to 4 weeks as per Annexure-5 communication dated09.04.2010 annexed to the additional affidavit filed by the petitioner.4. It is on the above basis, the claim of the petitioner is that he isentitled to get consideration for promotion, which he ought to havebeen called to appear in the DPC. However, he was not called for toappear in the DPC.5. When the petitioner agitated his grievance relating to nonconsideration of his case as per requirement of the aforesaid Rules of2006, he was communicated with the impugned communicationsdated 24.07.2009 (Annexure-10) and dated 10.08.2009 (Annexure-11). For a ready reference both the communications are quoted below:W.P.(C)(SH) No. 285/2009 Page 4 of 15

“No. 27/1024/BSF/TPT/07-P/2385Government of IndiaMinistry of Home AffairsDirectorate General Border Security Force(Prov. Dte: TPT)Block No. 10, CGO ComplexLodhi Road, New Delhi-03Dated the 24 th July, 2009To,HC(VM) Dinesh Kumar PrajapatiSector MTWKSPShillongSub: MANDATORY COURSES FORPROMOTIONThis is with reference to your request addressed to DGBSF dated 05.05.2009.2. Various details related with you promotion from HC(VM)to SI (VM) have been reconciled in Pers Dte FHQ and Prov DteFHQ. Reply with respect to the points raised by you in yourapplication are given as under.(i) As mentioned in your application that you joined asHC(VM) in Aug 1995. At the time that you joined the Force,Recruitment Rules with respect to MT Workshop personnelwere not available. Hence, it was not feasible to inform you atthat point of time, about exact procedure for promotion fromHC(VM) to SI (VM). In the absence of RRs for MT Workshoppersonnel, the only way to provide further promotion to HC(VM)’s was through GD channel from HC/VM to SI (GD) as perprocedure and guidelines in the Force.(ii) Subsequently, RRs for MT Workshop were approved by theGovt. in the year 2006. Consequent upon availability of theRRs, the exercise of induction of existing personnel in the MTW.P.(C)(SH) No. 285/2009 Page 5 of 15

cadre was initiated. As it involved collection, compilation andconsolidation of data from all over the Force, it took morethan two years time. Till the time, the final list of MTWorkshop personnel got approved for induction by Pers Dte ofFHQ, it was not possible to apply the procedure of promotionto personnel in this stream. Accordingly, the routine processpromotion in GD stream continued so that the technicalpersonnel of MT Workshop are not deprived of first availableopportunity of promotion in GD stream if so decided by them.(iii) As mentioned in your application that you had been askedto undergo PPC list “D” in 2007 and yet you were notpermitted appear in the DPC in the year 2008, the detailssubmitted by SHQ/Ftr. HQ Shillong are as follows:“No. 960086007 HC/VM Dinesh Kumar Prajapati enrolledas HC/VM in BSF MTWKSP wef 23.3/1996(FN). As per RR2002, HCs of the force, having not less than 5 years regularservice as HC together with total of 18 years of service andpossessing all pre-requisite conditions are eligible forpromotion to the rank of SI. Since said individual had notcompleted 18 years service, hence not allowed to appear inDPC list “D” held in the year 2008. As per FHQ Trg Dte Sig No.T/4206 dtd. 28 Feb. 2007, HCs having seniority upto15.05.2007 restricted upto central seniority srl No. 7150 forGeneral category and SC/St category having seniority up to10.10.97 restricted to central seniority srl. No. 10450 had toundergo PPC list “D”. since the individual falls within cut offseniority srl. No. 6296, he had undergone PPC list “D” held atSTC BSF CC Pur wef. 04.06.2007 to 18.08.2007.”3. From the details provided by SHQ Shillong, it has beenamply clarify as to why you were asked to undergo PPC list“D” in 2007 and why you were not allowed to appear in theDPC in 2008.4. Further with regard to mandatory courses, necessary forpromotion from HC/VM to SI/VM, you have mentioned thatsince you have passed PPC list “D” and you have undergone 3years Automobile Engineering Diploma and hence DG BSFW.P.(C)(SH) No. 285/2009 Page 6 of 15

should promote you to the rank of SI and with the sameseniority as entitled. In this regard, it is clarified that you maychoose to take promotion in GD stream or technical stream asyou desire. In case you choose to seek promotion in GDstream, you may be asked to appear in DPC as and wheneligible and shall be promoted as SI (GD) if cleared by the DPCand subject to fulfillment of other terms and conditions. Incase you choose promotion in the Technical stream, you willhave to undergo required courses as per laid down procedureand then be promoted to the rank of SI/VM.5. Finally your contention that instructors detailed to imparttraining during the conduct of mandatory courses, should betechnically superior to you, is not tenable and not acceptedbecause the instructors in the training centers are selectedafter careful scrutiny and all of them are quite capable ofimparting training on the subject allotted to them. Hence, incase you choose to seek promotion in the technical stream,you will have to undergo mandatory course, where theselection of instructors cannot be dictated by you. It shouldbe left to the ingenuity of senior officers to arrange suitableinstructors for the laid down curriculum irrespective of theirrank and qualification.6. It may also be mentioned that, while there were someuncertainties and confusion over promotion from HC/VM toSI/VM due to non availability of RRs, however, this should nothave been a reason for frustration as expressed in the letterunder reference. It is also mentioned that the language andtone and tanner of the contents of the letter are notcommensurate to the ethics of the force and may be betteravoided at your level. You may soon choose the right streamfor you promotion and take the promotion as suited best inyour opinion.Sd/-Dy. Inspector General (TPT)”W.P.(C)(SH) No. 285/2009 Page 7 of 15

“No. 27/1024/BSF/TPT/07/2523-25Government of IndiaMinistry of Home AffairsDirectorate General Border Security Force(Prov. Dte: TPT)Block No. 10, CGO ComplexLodhi Road, New Delhi-03Dated the 10 th August 2009To,No. 960086007HC(VM)Dinesh Kumar PrajapatiSHQ BSF, Shillong(Thorugh FTR HQ BSF Shillong)Sub: PROMOTION OF HC(TECH)HAVING 3 YEARS DIPLOMA INAUTOMOBILE ENGINEERINGThis is with your reference to your request on the subjectaddressed to DG BSF dated 07.01.2009.2. In this regard, it is to inform you that detailedclarification related to your promotion from the rank from therank HC(VM) to SI (VM) has already been forwarded to youvide this office letter No. 27/1024/BSF/TPT/07-P/2285 dated24 July 2009 (Copy enclosed) in response to yourrequest/application dated 05.05.2009 addressed to DG BSF.Further, it is to finrom that as per para 13 Sr. No. 03 of FHQBSF Pers Dte letter No. 17/103/2003-Pers/BSF/38929-98dated 17 Dec 2008, pre-promotional Trade Training CourseLevel-I for 36 weeks, in which 2-3 weeks may be devoted forstream specific advance training is one of the eligibilitycriteria for promotion from HC (Tech) to SI (Tech) which ismandatory irrespective of the fact that one is holding diplomain Auto mobile Engineering.W.P.(C)(SH) No. 285/2009 Page 8 of 15

3. On the other hand diploma in any one of the Auto mobile,Auto (Electrical) Engineering or Mechanical Engineering isessential qualification for direct entry to the post SI (Tech).4. As per para 8 of FHQ BSF (Pers Dte) letter under referredabove, total posts of SI (Tech) are to be filled up 75% bypromotion and 25 by direct Rectt. HC (Tech) with at least 10yeas regular service in the grade; or with at least 5 yearsregular service in the grade with at least 18 years combinedregular service in that grade and any other grade in the BSFand possessing other technical and professional qualification,will be eligible for promotion to the rank of SI (Tech). In allabove cases for promotion from HC to SI, whether personnelare in Technical grade or GD total regular service should be atleast 18 years.5. In your case you have not completed 18 years of regularservice. As such your case will be considered by the DPCaccordingly.Sd/-Dy. Inspector General (TPT)”6. If we go by the aforesaid communications and the contentsthereof what was conveyed to the petitioner is that since he had notcompleted 18 years of continuous service in BSF, his case did notcome within the purview of consideration.7. In the counter affidavit filed by the respondents, it has beenstated that as per the earlier Recruitment Rules of 2002, the petitionerW.P.(C)(SH) No. 285/2009 Page 9 of 15

was not eligible for promotion as he had not completed 18 yearscontinuous service.It has further been contended that with theconstitution of the particular service, the process for absorption wascarried out and final absorption was made in the year 2009. As per thelist prepared for the purpose, the petitioner’s position is at serial No.32 of the list of Head Constable (VM). After issuance of theaforementioned absorption order all the existing technical persons ofthe Force in MT Workshop cadre on the basis of inter se- seniority ineach rank, central seniority list of absorbed personnel has alreadybeen published vide order dated 10.12.2009 wherein the name of thepetitioner appears at serial No. 17.8. In paragraph -13 of the counter affidavit, it has been stated thatas per the new Recruitment Rules of 2006, 75% of the post of SI(Tech) are to be filled up by promotion from amongst Head Constable(Tech) with at lest 10 years regular service in the grade or with at lest5 years regular service in the grade with 18 years combined regularservice in that grade and any other grade in the BSF. Further therequirement of the training etc. has also been indicated in the saidparagraph.W.P.(C)(SH) No. 285/2009 Page 10 of 15

9. If we go by the aforesaid stand of the respondents in theirimpugned communications dated 24.07.09 (Annexure-10) and dated10.08.09 (Annexure-11) and the counter affidavit, no definite andconcrete stand of the respondents is discernible. At times, it has beenstated that the petitioner is not eligible for consideration for promotionhe having not completed 18 years of continuous service and at time, ithas been contended that the petitioner will have to qualify in therequisite training etc., but has not denied that the petitioner hasalready attained the requisite qualification by undergoing requisitetraining etc.10. Mr. N. Mozika, learned counsel for the petitioner has submittedthat irrespective of the issue as to whether the petitioner hascompleted basic training or not, his case is required to be consideredin view of the provision of Rule 7 of the 2006 Rules. Rule -7 providesthat a person eligible for promotion to next higher grade but has notqualified the courses prescribed for the post shall be appointed onpromotion in the next higher grade but his continued retention in thepost shall be subject to qualifying the courses within a period of twoW.P.(C)(SH) No. 285/2009 Page 11 of 15

years from the date of notification of the rules. This relaxation shall bedeemed as ceased after completion of two years period.11. In view of the above, it is the submission of the learned counselfor the petitioner that although the petitioner possesses all therequisites for promotion to the post of S.I. (VM), but even if therespondents are not satisfied with the said qualification, his case isrequired to be considered in terms of Rule -7 of the Rules.12. Mr. S.C Shyam, learned CGC on the other hand submits thatsince the petitioner with initial constitution of the cadre was absorbedin the year 2009, has length of service will be counted from the saidyearof absorption and not otherwise. He submits that seniorityposition of the petitioner does not permit consideration for promotionto the cadre of S.I. (VM).13. The aforesaid Rules of 2006 was promulgated exercising thepower conferred by Clause (b) and Clause (c) of Sub-Section 2 ofSection 141 of Border Security Force Act, 1968. Rule 4 speaks of initialconstitution of service of the cadre. The personnel holding the post onW.P.(C)(SH) No. 285/2009 Page 12 of 15

egular basis immediately before the commencement of the Rules,shall be deemed to have been appointed in accordance with theprovisions of the Rules. Rule 4 (2) provides that regular continuousservice of personnel mentioned in sub-rule (1) in the respective cadreimmediately before commencement of the rules shall be counted forthe purpose of probation period, qualifying service for promotion,confirmation and pension in the service.14. The initial constitution of the cadre with stipulations made inRule -4 of the Rules 2006 leaves no scope for endeavouring that 10years of regular service in the grade will be counted from the date ofabsorption in 2009 and not otherwise. Rule 4 makes it abundantlyclear that entire length of service rendered prior to commencement ofthe Rules will be counted not only for other purposes, but also forpromotion.15. Admittedly the petitioner having been appointed in the year1996, he has completed 10 years of continuous service and thus,fulfills the requirement of the aforesaid Rules of 2006. As regards thebasic training course as prescribed by the Director General from timeto time, the petitioner has already undergone the said basic training.W.P.(C)(SH) No. 285/2009 Page 13 of 15

Although the respondents have also taken the plea that the particulartraining course undertaken by the petitioner does not conform to therequirement of the said Rules, but there is only vague and indefinitestand in the counter affidavit to the effect. There is no definite standthat the petitioner is required to undergo further training. In thisconnection, learned counsel for the petitioner has referred to AnnexureA/5 letter dated 09.04.2010 annexed to the additional affidavit so as tocontend that the initial duration of 10 weeks trainingwassubsequently enhanced to 36 weeks, but now it has been reduced to 4weeks. He has further submitted that when the petitioner hadundertaken the said training course, there was no requirement ofundertaking 36 weeks training course and the said duration cannot beapplied retrospectively.16. From the above discussions, what has emerged is that thepetitioner conforms to the requirement of the 2006 rules forconsideration for promotion to the grade of SI (VM). The stand of therespondents in their impugned communication and the counteraffidavit is somewhat vague. Admittedly the requirement of 18 yeas ofcontinuous service has been done away with and now as per the newrequirement rules of 2006, the requirement is 10 years of continuousW.P.(C)(SH) No. 285/2009 Page 14 of 15

service in the grade of Head Constable (VM) which the petitionerfulfills. As regards the requisite training, the petitioner has undergonethe same as indicated in Anenxure-6 Movement Order dated28.05.2007. Even otherwise also Rule 7 of the rules being applicable,his case is required to be considered. According to the petitioner, therequirement of duration of the training course has further beenreduced by Annexure-5 letter dated 09.04.2010 annexed to theAdditional affidavit.17. In view of the above, I am of the considered opinion that therespondents are required to consider the case of the petitioner forpromotion dispassionately and consistently with the observations madeabove. Accordingly, the writ petition is disposed of directing therespondents to consider the case of the petitioner for promotion as perthe requirement of the Rules of 2006 taking into account theobservations made above as expeditiously as possible, but any rate,not later than 31.08.2011.KborahJUDGEW.P.(C)(SH) No. 285/2009 Page 15 of 15