Amit Kumar Gupta and Ors v. UOI and Anr

NAJMI WAZIRI, J. A MAY 25, 2015 b 'nesh

KAILASH GAMBHIR, J. WP(C)No.7545 of2011 Page 2 of2 'C> IT?- '—r - -zrr ; • ni!iriaaiiigwna<iiTgiiiffM7Ti?«iTi^ rr'T'j r'-ii i IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 25.05.2015 + WP(C>No.7545of2011 SAURABHDUBEY&ORS. Petitioners Through: Ms. Jyoti Singh, Sr. Adv. Mr. Ankur Chhibber, Mr. Sameer Sharma & Ml". Amandeep Joshi, Advs. UNION OF INDIA & ORS. Through: Versus Respondents Mr. Sanjay Jain, ASG with Ml-. AmitMahajan,Mr. ManishMohan, Ms. MonilcaArora,Mr. RajeshGogna, Mr. Vivek Goyal, GGSCs, Mr.,Arnab & Mr. Abhishek Chaudhary,Advs. for the UOI. Ms. RekliaPalli & Ms. Garima Sachdeva, Advs. for the PrivateRespondents. + WP(C) No.596 of 2012 AMT KUMAR GUPTA & ORS. _ Petitioners Thi-ough: Mr. P. Vinay Kumar, Adv. UNION OF INDIA & ANR. Thimigh: WP (C)No.7545of201l versus .....Respondents Ml-. Sanjay Jain, ASG with Ml-. Amit Mahajan, Mr. Manish Mohan,. . Ms. MonikaArora,Mr. RajeshGogna, Vivek Goyal, CGSCs, Mr. Arnab & Mr. AbhishekChaudhary,Advs. for the UOI. Page I of 64 + DEV SHARMA \/r WPfO No.4980 of 2012 ..... Petitioner Through: Ms. Jyoti Singh, Sr. Adv. Mr. Ankur Chhibber, Mr. Sameer Sharma & Mr. Amandeep Joshi, Advs. versus INDO-TIBETAN BORDER POLICE & ANR. Respondents + Through: .Mr. Sanjay Jain, ASG with Mr. Amit Mahajan, Mr. Manish Mohan, Ms. MonilcaArora, Mr. Rajesh Gogna, Mr. Vivek Goyal, CGSCs, Mi". Arnab & Mr. Abhishek Chaudhary, Advs. WP(C) No.7104 of 2012 JITESH KUMAR POTFODE & ANR. Petitioners Through: Mr. P. Vinay Kumar, Adv. UNION OF INDIA & ANR. Thimigh: versus ..... Respondents Mr. Sanjay Jain, ASG with Mr. Amit Mahajan, Mr. Manish Mohan, Ms. Monika Arora, Mr. Rajesh Gogna, Mr. Vivek Goyal, CGSCs, Mr. Arnab & Mr..Abhishek Chaudhary, Advs. for the UOL + WP(C) No.7287 Qf2012 ANAND PRAKASH Tlirough: WP(C)}^o. 7545of20II Petitioner Ms. Jyoti Singh, Sr. Adv. Mr. Ankur Clihibber, Mr. Sameer Sharma & Mr. Amandeep Joshi, Advs. -V' V i-H LLiiiLr-rrrr T^'T - rrr n-r"v? "•jfi UNION OF INDIA & ORS. Through: WP (C) No. 7545 of2011 T versus Respondents Mr. Sanjay Jain, ASG with Mr. Amit Mahajan,Mr. Manish Mohan, Ms. MonikaArora,Mr. RajeshGogna, Mr. Vivek Goyal, CGSCs, Mr. Amab & Mr. Abhishek Chaudhary, Advs. CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR HON'BLE MR. JUSTICE NAJMI WAZIRI i-i NAJMI WAZIRI. J.

¶1These batch of wi-it petitions, have impugned the Office Memorandum dated .26.11.2010 issued by the respondents wherebythe officersofMinor Cadreshave been merged with that ofthe GD Cadre and acombinedsenioritylistofthe GeneralDuty Cadre Group Aofficers(hereafterrefen*edto as the " GD Cadre") have been notifiedalongwithMinorCadresofficers.Furthermore, the seniority of the officers has been fixed on the basis of their respectivedate of appointment,as a resultwhereofthe petitioners have been placed beloW the private respondents (in these writ petitions)in the senioritylist. It is the petitioners'case that they had been selected earlier than the private respondentswho had been selected subsequently by their respective selection body. They have accordingly, sought quashing of the orders dated

1.4.2011, 5.5.2011 along with the Office Memorandum dated

26.11.2010and the combinedsenioritylist dated 1.12.2010. The petitionersfurtherseek a writ of mandamusfor maintenanceof a Page i of64 j>'A separate seniority list of the GD Cadre officers and the Minor Cadre officers who have been appointed prior to 5.10.2010 or in the alternative, a writ of mandanuis directing the respondents to place the private respondents below the petitioners in the combined seniority list, if continued.

¶2• The petitioners'caseisthatthey are Group 'A' GeneralDuty (GD) Cadre officers of the Indo-Tibetan Border Police Force (for short 'ITBPF'),which was constitutedby the Ministryof liome Affairs (hereafterreferredto as the "MHA") after the ChineseAggression inthe year 1962 underthe provisionsofthe rrBPF..A.ctand Rules; thatthey had appliedfor the post ofAssistantComraandant/GDin CentralPolice Organizations,Group 'A' and after having cleared the written examination conducted by "the IJPSC. tney appeare-before the interview board in y-Vugust/September,2004 andwere finally selected on 30.9.2004; that in July, 2004, after having cleared the v,written examination, they were called for PET and DME; that the appointmentletterwas sent after a delay ofnine (9) monthsin July, 2005; the petitionersjoined,the ITBP Academyon

7.8.2005;on successfulcompletionoftheir trainingon 3.11.2006, they were posted in different battalions. Correspondingly,the respondents initiated the process of recruitment of 'Assistant Commandants in the Telecom Cadre and constituted a Special SelectionBoard in September,2004. On 17.1.2005,the priva" respondentswere asked to appearbeforethe Board for verification of documents, physical measurement and PET. The candidates who qualifiedwere asked to appear in the written examination. WP7c^hjl45of2011 ---- Page40/64 •K

¶3The candidates who were successful in the written examination were called for'interview and medical examination on 21,1.2005. The result of successful, candidates was declared in March, 2005 and in the subsequent month, they were offered appointmentfor the postof AssistantCommandants(Telecom).Betweentheperiod

6.6.2005 and 8.8.2005, these Assistant Commandants(Telecom) joined differentITBPF Battalionson differentdates, as they were not required to undergo training in the first instance,hence, they were sent directly;to their allotted units. Likewise, the officers of the MT Cadre also joinedthe ITBPF betweenApril-June,2005 on the basisof the results declaredby anotherSpecialSelectionBoard of the ITBPF. Vide Memoranduni dated

27.8.2008, the respondents notified the inter se seniority of direct recruits (AC/GD) in respectof officersof the GD Cadre only. Ms. Jyoti Singh, the learned Senior Advocate for the petitioners, would submit that the aforesaid process would show that the selection process of the GD Cadre officers is far more difficult, onerous and involving different qualificationparameters such as having to ,undergoa long trainingbeforethey were actuallyappointedto the said post. On 5.10.2010,the respondentsissued a,notificationpuiportingto amend, the recruitmentrules of the ITBPF General Duty Cadre, 2010 (hereinafterreferred to as the 'new RRs'). These RRs amendedthe followingsix previousrecruitmentrules: "i. ITBP Force General Duty Cadre Group 'A' Post Recruitment Rules 1999, WP(C)No. 7545 of2011 Page 5 of64 c" 1} ii. ITBP Telecommunication Cadre (Group 'A' and 'B' Posts) insofar as they relate to Group 'A' post, iii. ITBP Force, Deputy Commandant (Transport) and Assistant Commandant (Transport) Recruitment Rules, 2002, iv. ITBP Force, Armourer Cadre (Group 'A' and 'B' Posts) 2007 insofar as they relate to Group 'A' post, V. ITBP (Electronic Data Processing Cadres) Recruitment Rules, 1981 insofar as they relate to the post of Company Commander (Programmer); and vi. ITBP Force, Second-in Command (Transport) Recruitment Rules, 2007. New Recruitment Rules are called as ITBP Force General Duty Cadre Group 'A' Posts Recruitment Rules, 2010."

¶4,Pursuant to the above, an order of merger of the GD Cadre with the Minor Cadre was issued on 26.11.2010. Five (5) days later, on

1.12.2010, a combined seniority list of the GD Cadre and the Minor Cadre was issued whereby officers of the Minor Cadre have been placedabovethe GD Cadreofficers. The petitioners'case i^ that althoughboth the UPSC and the selectionbody concernedhad selected them earlier in time, delays in the subsequent process of appointmentowingto bureaucraticand/orproceduraldelays atthe hands of the respondentsincludingthe period of delay of nine ("^ monthsin simplynotifyingthe appointmentlettercannot.putthem lower in the seniority list than the officers of the Minor Cadre. However, the combined seniority list does exactly the same. It placesthe officersofthe MinorCadreabovethe officersofthe GD WP (C) No.7545of2011 ' P"S<^ V [•p Oh: 'i'l

¶5!• :r!iint^mrTnirCTiTm:inirnTr^ixnninii^^i;wji!^4H^^^ rrr' it"7i i Cadre. Their representation dated 30.12.2010 to the Director General, ITBPF was rejected on 1.4.2011 and 5.5.2011. The petitionerssubmitthat the orders disposingoff their representation did not deal with the issues raised by them. A further representation to the Secretary, Home Affairs did not elicit any response either. • . ' Representing the petitioners, Ms. Jyoti Singh, the learned Senior Advocate would submit that the purported merger of the Cadres and the combinedsenioritylist is wholly illegal and fraught with any number of legal as well as operational difficulties which have not been surmounted as per the procedure laid down. She contends that:

1.

¶11in. the nature of functionsdischargedby the Cadresare entirely different as they mandate specialised and trained wherewithal to discharge the duties assigned to each of the Cadres; the induction into different Cadres was based upon different/specialised basic educational qualification and consequenttrainingas well as on the job capacitybuilding whichpreparedthem for a separateset of dutieswhich is not interchangeableat a higher/supervisorylevel (Commandant level); the RRs for recruitment of the officers to the GD Cadre (Telecom), MT Cadre, etc. were differentand for a good reason,they couldnot have been mergedorlumpedtogether at a .supervisory level solely on the ground that it would WP (C)No.7545of20lI Page 7 of64 V/- ly provide better promotional avenues to officers of different Cadres, which would enable them to keep their morale high; that the ground for merger so as to provide promotional avenues itself would be belied by the fact that in September, 2009, a proposal was sent to the Ministry of Home Affairs for restructuring of post in Minor Cadres and to grant, additional post for promotion in the said cadres. The said proposal was approved by the Government and a formal sanction was issued on 17.2.2011 granting additional posts for the promotion in the said cadres. In such circumstances, seeking to provide promotional avenues by way of merger is obviouslywithoutany basisorjustification. ^ iv. the officers on the GD Cadre are the main combat arm of tl ITBPF while the Minor Cadres or the Technical Cadres provide specialised logistical support to the fighting/combat forces. The duties of the fighting force and the duties of the technical/M'inor Cadres are not interchangeable since it requires special skills set to discharge the functions of the each Group. • V. a glance of the nature of training, apart from the training schedule, imparted to the Assistant Commandants of thb different Cadres of the GD Cadre vis-a-vis the minor/technical Cadres would show that each of them ha'v-. been trained to impart and equip them with,different skiM sets as may berequiredinthe dischargeoftheir duties; Assistant Commandant/GD Technical Cadres/Minor Cadre WP (C}No.7545af20n li,,"1 Ju II •n - r-x Cadre Required to undergo rigorous training of 54 weelcs. To undergo two mandatory promotional courses viz. Commando Course and Battalion Support Weapon Course besides other courses and to have-at least years of experience to be eligible for next promotion of Deputy Commandant. In those five years a GD Cadre officer performsthey duty,of a Company Commander and performs various related tasks such as leader in many Long Range Patrolling, Short Range Patrolling, Rescue Operations, Expeditious, Counter Insurgency Operations and leads a Company (128 personnel) in Sector Level and Battalion Level War Exercises, including on the Border against China, endeavours to make him. capable of commanding a battalion comprising six such companies ivr (C) NoJ545 of2011 rr'i": if' Required to undergo 16 weeks of training. Officers of the Minor/Technical Cadre are not required to undergo the Commando and BSW Course for the next promotion nor are they supposed, to perform any duties for the five years. All they do that they perform their own specialised duties as surveillance, support, logistical arms of the Force. The learned senior counsel would submit that although the duty of the technical/minorcadre may not be the same as that of the General Duty Cadre nonetheless each wing would be deemed to be as important since the Force works as one Unit with the combined inputswith"all its differentwings. The Force would be severely handicapped if the output or required skill set of one wing were to be compromised or Page 9 of64 j .1 and other elements in future. Thus, making the said officer battle ready • with immense experience of actual combat. lessened in any way by introducing personnel who do not have the requisite expertise or experience. vi. from the aforesaid, it is clear that one Cadre could ,not. discharge the duties of the other.

¶6The impugned QM dated 26.11.2010 reads as under: "Sub: Merger of 4 Specialist Cadres CTelecom, Motor Transport, Armourer and EPF CElectronic Data Processing) cadre with General Duty Cadre. Group 'A', posts and related matters. Consequent upon approval of Govermnent of India on th... subject cited above, the revised Recruitment Rules have been framed and published/notified in the Gazette of India vide Notificationdated 5^'^ October 2010 of Ministry of: Home Affairs. With the issuance of the aforesaid: notification, the Recruitment Rules of Group 'A' posts,; which were in vogue till now, in respect of above cadresI stand superseded.

¶2In consonance of the revised Recmitment Rules notified on 5"^ October,2010, as stated above, a combinedseniority list of all the five cadres viz. General Duty, Telecom, Motor . Transport, Armourer and ED? cadres is under process for circulation in terms of DoP&T advice contained in their note dated 9.3.2010 which provides that the senioritv of t] incumbents of the merged cadres will be counted from the date they are holding the post originally on a regular basis. Accordingly,the combinedsenioritylist is being prepared. WP (C)No.7545 of2011 Page 10 of 64 ' \' •fi'MRW?7-^HrBTOnrntnTF!n']n":n'ri'T m i -.-'r-w

¶3The Dh'ector General, ITBP has desh*ed that the above decision of the Governmentbe formally brought into the notice of all affected officers in appropriate forums and Sainik Sammelans at the Frontiers, Sector and unit levels so that there is no scopefor lack of clarityin this regard."

¶7The learned Senior Counsel submits that the said OM is illegal because it seeks to merge four (4) dissimilarCadres;that the said OM suffers from procedural lapses inasmuch as the requisite approval of the (i) Ministry of Law, (ii) the Department of Personnel and Training, (ill) the UPSC and (iv) the Ministry of Finance was not taken despitethe repeated advisorieson the issue by the Ministryof Law; that by merging all the four Cadres, the seniority of the petitioners has been reduced. The learned senior counsel refers to the Govermiient of India Business Rules which mandates a prior consultationwith the Ministry of Finance in matterswhere financialoutlaywouldbe required.She submitsthat accordingto the affidavitof the Govermnentof India, there is an admission to the lapse of procedure and that in the affidavit filed pursuant to the orders' of this Court dated 22.4.2013, which directed the respondentsto place on record the relevantmaterial whereby the Cadre merger of ITBP was approved by the CompetentAuthority, the respondentshave inter alia submitted that '"'"beforetaking thefinal decision on merger inter ministerial deliberationsi.e. MHA, DOP&Tand MoL tookplace on the issue offixationofinter seniorityconsequentupon the merger andfor making the rules effectingthe mergerof Telecom., EDP, TPTand Armourerinto GD cadreandsame was done with the approvalof WP (C)No.7545 of2011 Page II of64 A Home Minister by notification of the rules in official Gazette vide , GSR 811 (E) dated 5.10.2010" She submits that tliere was do justification for the proposal in the fu'st place because mergers would ordinarily be done, in the case of Driving Cadres whereas in the present case,-the Technical Cadres are not Driving Cadres and this is reflected from the Ministi7 of Finance, Department of ' Expenditure's note which reads as under: . • "Sub: Merger of Driver/MT and Motor Mechanic Cadre and re-designationof the posts of Constable to Inspector in the new cadre. Ref: "MHA FilcNo.l/12013/15/2009-Org.(Main) The proposal of MJIA on the above mentioned subject has been examined by this Department and the followin" observations are made: a. No functional justification has been given in support of merger of the MT driver and Motor Mechanic Cadre of ITBP. It has also not been explained as to what are the specific functional/operational requirements which are not being met in the present set up. Providing promotional avenues is the only justification stated in the proposal. b. The rationale of merging distinct 'Technical' and 'GeneraP cadres are required to be examined for issues like redefinition of duties and responsibilities, and related cadre management issues like competing claims for higher positionsbypersonnelholdingdissimilarqualification. c. It is also felt diat after the proposed merger of the two cadres, the base of the cadre with significant financial implicationwould be very broad and certainly,there will arise demands for higher posts in the hierarchy, with creation of posts at all levels;- WP (C) No.7545of2011 - 12 of64^-\ jHOHHIiniHLEEnEIE •t- • i[ •i'';ii''Hi'i irriiiriT!n^;Tni?iTfriri:FrTriri"'r" rv: irn

¶2MHA may, therefore, examine all the above aspects beforetaking a final decisionon the matter. It may also be notedthat MACP schemetakes adequatecare of stagnation. ITBP, may, therefore, be advised that fi-equent structural changes in the established cadres should be avoided without very strong functional justification." The proposalfor framingthe recruitmentrules of Group 'A' posts for ITBP dated 8.2.2010 was premised on the following justification: "5. The main justificationfor amalgamationof four cadres with the GD cadres is that there is stagnationin various cadres and there is lack of promotional prospects. Managementof so many cadres is becomingvery difficult. The proposal for amalgamation of the cadres has been discussedat great lengthinternallyin the officialcirclesand there is generalconsensusfor amalgamation. xxxx xxxx xxxx xxxx xxxx

¶7Only one issue that is sorted out in this case relates to inter se seniority in the amalgamated cadre between GD cadres and other cadres which are being amalgamatedwith GD cadre. It could be based on two principlesi.e. one the telecom cadre, motor transportetc. could placed en-block junior to the persons in the GD cadre or their date of appointmentin the particularyear could be the basis. We may requestDOP&T to indicate broad principlesfor such amalgamation. In case they have issued any orders in this regard,a copy ofthe same may be placedon file."

¶9To this,the responseofthe DoPT dated8.3.2010is as under: "MliAhave submittedthe proposalfor framing/amendment ofRRS for Gr.A posts in GeneralDuty cadre in ITBP. The existing RRS for the Gr.A posts in General Duty cadre WP (C) No.7545oJlOJI A notified in the year 1999 is at p.7/c. The existing RRS for the SpecialistsCadre are also placed in the file at p.25-62/c. The present proposal involves merger of 4 Specialist cadres

1.e. Telecom, Motor Transport, Armourer and EDP with General Duty cadres. The justification for the same is detailed in MHA notes at pre-pages.

¶2The draft notification in respect of ITBP General Duty Gr.A posts RRs placed below have been examined and our observations on the same are as below: i. In the heading of Col.ll, the words "percentage of posts" • need to be revised as "percentage of vacancies". ii. the entries under Col.11 for the post of Inspector General

(GD) shall accordingly be revised as (i) 50% by promotion failing which by deputation pf IPS officers and (ii) 50% by deputation of IPS officers. iii. For the post of Deputy Inspector General (General Duty), the entries under col. 11 shall be revised as (i) 80% by promotion and (ii) 20% by Deputation of IPS officers. . iv. MI-IA may satisfy themselves_in respect pf entries pertaining to age of superannuation mentioned in the notification and also that the posts are exempted from the purview of UPSC.

¶3Subject to the above and also incorporating the corrections as shown, the draft RRs are in order and may be approved. The 4 draft notifications to denotily the Specialistcadre are also in order and may be approved. On the issue of inter se seniority in the amalgamated cadre, tl - matter may be referred to Estt.D." ,.

¶10In the meanwhile,after carryingout the necessarycorrections,the draft Recruitment Rules was forwarded by the DIG, ITBP to the MI-IA to obtain the concurrence of the DoPT on 18.3.2010. The WP(C)No.7545of20II Page 14 of64 • H,. . J.'j ;k. iaBiinnrtmwwRBiTOiTOtni?rernx" rr^'nr in Ministry of Law, advised the Ministry of Home Affairs vide its note dated 29.3.2010, as under: "Dv. No.575/10 • The draftfoi"wardedby the administrativeMinistiyhas been tentativelyexaminedin this Department. On examinationit is found that the subjectmatteris concernedwith mergerof 4 SpecialistCadres (Telecom, Motor Transport,Armourer' and EDP (ElectronicData Processing)cadres with General Duty Cadre, Group 'A' posts and framing/amendmentof RRs on common seniority basis. Therefore cbncuiTenceof MinistryofFinanceis required.

¶2Fromthe perusalofthe notes on pre-pages,itappearsthat the proposalhas not been got approvedfrom the competent authority i.e. the Hon'ble Minister concerned. So, before forwardingthe proposalto this Ministiy,the same may be gotapprovedby thecompetentauthority.

¶3The recruitmentrules have not been prepared as per guidelinesissuedby DOPTvide theirOM dated 24^^ March, 2009. The same may be preparedaccordingly.

¶4Inthe Scheduleagainstthe postofAssistantCommandant (General Duty) in column 11 regarding method of recruitment, 50% is by direct recruitment. Therefore, consultationand approvalofthe UPSC is necessaryin this regard before forwarding the file to this Ministiy for vetting."

¶11Takingthe same into consideration,the ITBPFnotedas that: "MHA may,kindlyrefer to the notes of MOL(LD) dated

30.3.2010on page 14/n.

¶2As suggestedby MOL(LD),parawisereplyare mentioned belowfor theirkindconsiderationplease. WP (C) No. 7545 of201] a. In the event of merger of 4 specialist cadres namely Telecommunication, Motor Transport, Armourer, and Electronics Data Processing cadres with General Duty cadre, there is no creation of additional posts are required>- Therefore, concurrence of Ministi7 of Finance may not be needed. b. Regarding approval of competent authority in MHA in this proposal MHA may kindly decide to this aspect and reply to MOL(LD) accordingly to their satisfaction. c. As per the advice of MOL(LD) the note mentioned in DOPc&T instructions contained in, their O.M. dated

24.3.2009 have suitably been added below column 12 under heading "By promotion" and "By deputation". d. With respect to recommendation given by MOL(LD) in para 4 of their note, MHA may kindly eyaluate this aspe and informed to MOL(LD) accordingly.

¶3MHA, are therefore, requested to refer the file to MQL

(LD) for final yetting by them after considering the above aspects in MFIA."

¶12However, on 5,4.2010,the MTiA noted: "Reference notes on pages 14-15/N. The proposal in the file relates to notification of RRs of Group 'A' post in rrBP;. One of the item include in the RRs relates to notification of RRs for the post of DIG and this is included in the Annual Action Plan 2009-2010.

¶2The obsei-vaiionsof MQL on page 14/N may please 1 pemsed. ITBP in their note on page 15/N have clarified most of the issues raised by MOL(LD). However, the followingtwo issuesneedsfiirtherelucidation: WP (C)No.7545 of2011 Page 16 of 64,. •" TOi US i; .

13.

¶14•TT r-ir-l" ?- HilEHTiKnr' rrr'

(i) The proposal has been processed based on the general principles with the approval of Hon'ble Home Minister. In this connectionMHAs orders at pages 68-70/c may please be perused. It is further clarified in the case of notification of RRs for the post of DIG. General principles of the proposal has been approved by the Hon'ble HM in the case of another CPMF and in this case fresh approvalof HDVI is not required.

(ii) The RRs have been approved by JS (P.II) in the Administrative Wing (P.7/N). DOP&T have scrutinised the RRs several times and given their concurrence vide notes on . page 10/N. DOP&T have also given,guidelines for merger of specialist cadres of ITBP and in this connection notes on page9/N may please be seen. With regard to consultation with UPSC, as mentioned in para 4 of Legislative Department's note, it is clarified that ITBP is exempted from the .purview of the UPSC's consultation. This is mentioned in the RRs. Further with regard to Asstt. Commandants/GD the proposed RRs are based on the existing RRs as copy of which is also placed on file. We may request MOL(TD) to process the case on priority basis." But on 27.4.2010, the ITBPF recorded the observations of the MinistryofLaw, in particularon the issuesthat the approvalofthe MinistryofFinance/Cabinetis requiredsincethe proposedmerger will involvetransferof posts and mergerof cadres up to the level ofIG in consultationwith the UPSC since 50 per cent ofposts of Assistant Commandant (GD) were filled up through direct recruitment. The views ofthe ITBPF on the obseivationsraisedby the Ministry of Law is as under: "3. Our views on the observationsraisedby the MOL (LD) are WP(C)No. 7545of20II Page 17 of6.4 as under: •

(i) Proposed merger is based on the establislied system in other Border Guarding Forces i.e. BSF, and SSB. Accordingly, we have proposed that the worlc related to Telecom, M.T., Armourer and EDP will be looked after by GD cadre by way of proposedmerger. This is time testedsystemand may kindlybe agreed to.

(ii) Officersof specialistcadre were directlyrecruitedor the basis of some terms and conditions, now since these terms and conditionsare likely to be changed in the event of proposed merger. Therefore,the provisionof willingnesshas been kept to avoid any legal complicationsin the later stage. But if Ministry of law feels,that.such willingness/optionclauses are not requiredthen this can be done away with.

(iii) This issue may kindly be dealt by MHA to decide the competentauthoritywho will approvethisproposal.

(iv) With the proposedmerger, the creationof the post is not involved. With all the probabilities,the specialistcadreofficers will be employedin their field of specialisationonly. Only a.- few, who cannot be accommodated in their field of speciaUsationwill be requiredto be.used on.otherjobs as per requirement. This arrangementis a time testedarrangementas it is working well in BSF, SSB and CRPF which are much largerforcesthan ITBP. Howeyer,MHA may like to comment on this point.

(v) Although, 50% vacancies of Assistant Commandant (GeneralDuty)cadrepostsofall CPMFsi.e. ITBP,BSF, CRPF and SSB are being filled up by direct recruitmenttha-ouf^ UPSC, but withproposedmergerwe are not, any way changii_" the terms and conditions' of recmitment of Assistant Commandant (General Duty). Flowever, MFIA may take a view on this aspect in light of UPSC letter No.F.l/49/69-^iI dated ,6-8-1969 and' letter No.l4/26/68-BS.II/P.VlI(Vol.II) dated4-11-1969(copiesplacedinfile atF'A' &B')." iOL 'WP (C)No'.7545of2011 ' , PagelSof6i,^. .• . . I .. i.- OL

¶15'li'fflmii^niPT^iiTiTnirrTiiirffliErnilI' rf:" On 6.5.2010,theMinistryof Home Affairsnotedas under: "2. The, proposal does not involve transfer of posts and merger ot Cadres upto the level of IG as no post of IG or DIG has been sanctionedin the Telecom,MT, Armourer& EDP cadresin ITBP. As such mergerofpost ofthe levelof Commandantto Asstt. Commandant can be done by re-classiflcationofposts in consultationwithIFD and approval ofHome Secretaryas this does not involve any additional financial implicationor any change in the total strength. Earlierone postof21/C ofGD cadre&2postsofDCs were transferredinto TPT cadre, with the concurrenceof IFD & approvalofSS (IS) (CopyplacedatFlag 'A')."

¶16On 21.6.2010,the ITBPFnoted as under: "2. Contrary to bigger force (BSF and CRPF), ITBP is having^too many small cadres and do not have any promotionalprospectsdue to which there is discontentment mthese cadres. Keepingthis factor in mind organisational structureof BSF and CRPF studiedand onthe basis of their time tested system ITBP also explored the possibility through a series of presentationsand discussionwith D.G. and concernedcadre officers. On the basis of this, ITBP proposed for merging of specialist cadres i.e. Motor Transport, Communication, and Armourer' only at supervisorylevel i.e. AssistantCommandant(GD) onwards. The same system is prevalentin BSF and CRPF which can be seen from their reply vide UO No.l7/60/2009-Pers/BSF 19118 dated 24-5-2010and P.VIII/3/2010-Pers-DA-ldated 19-5-2010 respectively. Similar proposal was mooted by SSB also but it could not be materialised due to some observationsraisedby UPSC."

¶17On 24.6.2010,the MHA notedas under:

¶2The proposal has been processed and concurrenceof DOP&T has been obtained (vide pages 8-10/N). The file WP (C) No. 7545 of20II j: has been referred-to MOL for concurrence. They have raised certain observationsand these has been discussedby officialsof ITBP. The issuesraised and the repliesof H^BP may please he perused on pages 19-20/M. ITBP have satisfactorily explained the issues raised. However two issues are' to be sorted out. They are (i) merger of three cadres in TfBP as Group 'A' service and (ii) approval of competent authority i.e. Home Minister in this case.

¶3With regard to the above it has been ascertained from the-other Forces, CRPF arid BSF do not have separate cadre called Motor Transport Cadre, Telecommunication Cadrfey Armourer Cadre and these posts are filled up through Group 'A' post Genera] Duty Officers who have undergone training in the related field. ITBP propose to remodel their RRs on these lines. In BSF also similar system is in vogue. Hence may be process the proposal and seek concurrence of MOL.

¶4With regard to approval of competent authority it is feii' that approval of SS(IS) is adequate in this case because this is within the overall principles being followed in othei-CPMFs. The file, may be shown to SS(IS) before this is referred to MOL."

¶18Meanwhile, the Ministry of Law again reiterated its objections in the following terms: "Dv. No.140.5/10-SRO ' - •; s • The notification placed on the file relates to .merger of 4' specialist cadres (Telecommunication,Motor Transpoi ' Armourer and El)? of cadre) Group 'A' posts with th.. General Duty Cadre, Group 'A' posts and framing of Recruitment Rules of General Duty Cadre on common seniority basis on common seniority basis. . WP (C) No. 7545 of2011 Page20of64 ; ".i:i : !ie

¶19iingiRranTrmiiii'ni~it;i!"tit:- ;rii i From the perusalof the notes on pre-pages,it appearsthat it was suggestedto the administrativeMinistrj' to consult and obtain the approval of the UPSC before the merger of the specialistcadreswith the GeneralDuty cadre of the ITBP is sent for vetting in this Department. From para 1ofthe page/23-note and the fax messagefrom the SashastraSeema Bal placed in the con^espondencepart ofthe file it is observedthatsimilarproposalwas mootedby the SSB also but it could not be materialised due to some observations raised by UPSC. Para2 ofthe Note OM No.AB.14017/31/2008-Estt.(RR) dt. 24"\March,2009 ofthe DOPTreads as follows: ''....AllMinistries/Departmentsare, therefore, requestedto effect necessary amendments to the Recruitment Rules/ServiceRules notified by them after following the normalprocedureoffurnishingproposalsto the Department of Personnel and Training and the UPSC in the format prescribed in the general guidelines on Recruitment rules circulated by the DOPT OM No.14017/12/87-Estt.(RR) dated 18.3.1988and also in consultationwith Legislative Department.''' Under these circumstances, it is suggested that the administrativeMinistiymay referthis proposalto the UPSC beforethe same is submittedto this Department." In any case, the Ministryof Home Affairs went on to record as under: , "(i) ITBP is exempted from the requirement of the consultationwith UPSC. In this comiectiona copy of the "letterreceivedfrom UPSC may pleasebe seen at F/B.

(ii) Withregardto referenceto SSB mentionedat Xon page 25/N it is felt that the same may not be relevantin this case WP (C) No.7545of2011 because there are other two CPMFs i.e. CRPF and BSF where these Forces do not have separate cadre called Motor Transport Cadre, Tele-communication Cadre, Armourer Cadre etc. Present merger in ITBP is on the lines of CRPF/BSFsince there is a clear cut precedentand prevent practiceof merger in other CPMFs, we may impress upon; MOL(LD) to give concuiTence to the proposal at the earliest. 'Mayplease see."

¶20But the Ministry of Law on 5.8.2010, once again noted: "Dv. No. 1575/10-SRO The draft notification placed on the file relates to merger of four specialist cadres Group 'A' . posts i.e. Telecommunication, Transport, Armourer and Electronic Data Processing with General Duty Cadre Group 'A' post and framing of Recruitment Rules of General Duty Cadre o':'- common seniority basis in the Indian Tibetan Border Polic Force. '!• It was suggested earlier by this department to the administrative Ministry to consult and obtain the approval of the UPSC before the merger of the specialist cadres with the General Duty cadre of the ITBP because 50% of tlm Assistant Commandant (General Duty) vacancies are to be filled through direct recruitment and 17% of the vacancies are to be filled by Limited Departmental Competitive Examination through Union Public Service Commission. In column 14 of the Schedule relating to the post of Assistant Commandant (General Duty), it has been provided that consultation with the UPSC is necessary for direct, recruitment and Limited Departmental Competitiv Examination. Further, it may be noted here that the UPSC,has not agreed to the merging of the cadres of General Duty, and Telecommunicationon the proposal of the SSB to have a WP (C) No. 7545 0/201J Pcge22of64 , C' .1 i: -tlJ LUiii il.

¶21:!inwii?r? HirwiinTiniFiiiirFiiiiF!r[:jTit-n common Assistant Commandantlevel, (ref. reply to the administrativeMinistryon the subjectby the SSB vide File NO.3/1/SSB/SSB/CSC/GC/03-1039dated21-5-10). It is observed with reference to the note of the administrativeMinistryat page 26/N and the UPSC's letter dated 6'''^ August, 1969 placed on file as Annexure'B', it is presumed that the ITBP is also exempted from seeking approval for^ the merger of the cadres as proposed by the administrativeMinistry. However, since the recruitment shall,be conductedthrough UPSC and the proposal of the SSB regardingmerger of technicalposts which is also akin to the presentproposalis suggestedthat the administrative Ministrymay get the approvalof the UPSC before sending this notificationfor publication. Subjectto the above, the draft as modifiedis formallyin order. However, the administrativeMinistiy may before issue ensure that the draft as modified meets with their intentionand requirements." The Ministiyofflome Affairs,on 19.8.2010,read the conditional approval of the draft as being a complete approval and noted as under: "3. The case has beenpendingfor quite sometime. We have leferredthe case to MOL on several occasions,finally in their note on'page 27/N they have modified the draft and stated that it is formally in order. DOP&T has given concurrenceto the proposalat the levelofSecretary(P).

¶4In the light of the above, it is proposed that we may finalise the RRs, as amended by MOL and send to MOL (O.L. Wing) for Hindi versionofthe RRs. Aclean copy of the amendedRRs is placedatF/D. f'VP (C)No.7545of2011 (p\

¶5The file may be submitted for kind consideration and approval of Hon'bie H.M."

¶22The learned Senior Counsel for the petitionerssubmits that the aforesaid correspondence itself would show that the consultation as prescribed in the Government Guidelines on framing/amendment/relaxation of Recruitment Rules dated

18.3.1988 and 2010 have not been followed. The said Guidelines required the approval of the Secretaiywhich inter alia required consultationwith the DoPT and the UPSC. The relevantportion reads as under: "CONSULTATION WITH DOPT

2.4 Ordinarily, the draft Recruitment Rules will be returned by the Department of Personnel & Training with the comments, within a month fi-om the date of reference to that. Department. If the circumstances of a case require more time for scrutiny/discussion, the. administrative Ministiy/Department will be inform of the same and where there are many points for clarification,the Ministriesmay also be requested to discuss the case with the officers of the Department of Personnel & Training. CONSULTATION WITH UPSC

2.5 After obtaining the concun-ence of the Department of Personnel & Training, the Administrative Ministry/ Department should refer the draft Recruitment Rules for posts/serviceswhich ai"e withinthe purviewofthe UP^C i' - a self-contained letter to the Commission, along with th^ information in the prescribed proforma (Ajinexure II). Ii should be stated in tlie letter to the Commission whether the clearance of the Department of Personnel & Training (anq also the. Department of Pension & Pensioners' Welfare where required) has been obtained in respect of the WP (C)No.7545of2011

¶23• I! TOiwi^TnriiiffiiTiFniTiinffiFnTtrT n proposals,in question. Where the procedurefor consultation with the Commission has been followed and information necessaryfor considerationof the proposal has been fully given, it should be possiblefor the Commissionto convey their advice ordinarily within 4 to 5 weeks. If the Commission'sadvice is not received within this time, the administrativeMinistry/Departmentmay settlethe matterby personal' discussion with the officers concerned in the Commission." The learned Senior Counsel for the petitioners argues that the. petitioners have been seriously prejudiced inasmuch as' their seniorityhas been reduced from No.l to No.17 after the alleged merger; that the correspondencebetween the Ministry of Home Affairs,the.MinistryofLaw and the MinistryofFinanceshow'that the requisiteclearancefrom the concernedMinistrieshave neither been obtainednor has the UPSC been consulted.Therefore,the issuance of notification of merger of cadres is without due authority of law and it accordingly,needs to be set aside. The learned senior counsel refers to the objections raised by the Ministry of Finance, Departmentof Expenditureon 21.10.2010 with respect to the merger of the'Driver/MTand the Motor Mechanic Cadre and re-designation,of the posts of Constableto Inspectorin the new cadre. The objectionswere to the effect that no functionaljustificationhad been given in supportof mergerof the MT driverand the MotorMechanicCadreofITBP. It has also not been explainedthe specificfunctional/operationalrequirements which are not being met in the present set up. Providing promotionalavenuesis the onlyjustificationstatedin the proposal. Wl\ (C) No. 7545of2011 She submits that in response, the matter was examined by the DirectorateGeneral,the' ITBjP and the MinistiyofHome Affairs which sought to circumventthe obsei-vationsof the Ministry of Finance as well as the Ministry ofLaw by observingthat since there was no financial implicationin the proposal to merge the four specialistcadres, the concurrenceofthe MinistryofFinance may not be needed. The Ministiy had advised that the MI-JA shouldexamineall the above aspectsbeforetakinga fmal decision in the matter. It further drew the attentionto the fact that the MACP scheme takes adequate care of stagnation and further suggestedthat the ITBP would be better adviseid if it were to be prudent to avoid frequent stmctural changes in the established cadres unless such structural changes are supported by stror, functional justification.

¶24It is arguedthat the mere merger of the two cadres of Driver/MT and Motor Mechanicattractedserious objectionsby the Ministry of Finance.However,in the presentcase, the ramificationswould; be fai-more since the nature of duties discharged by the. five-differentcadres, which are soughtto be merged, are as diverse each can be. Therefore,there could not be and indeed, there was no functionaljustificationfor the mergerof the establishedcadres;.!. Indeed,the Governmenthas given no justificationfor the mergei;-; and the entire discussionhas all along been for the post merger Oi the seniorcadre at supei-visorylevel but there is no discussion,let alone justification for the aforesaid decision. She submits that the inter-departmental consultations are a requisite .under' the WP (C) No. 7545of20II Page26 of64 . ]r?v'

25.

¶26Governmentof IndiaTransactionof BusinessRules, in particular Rules 2 & 2(c) thereofwhich require one departmentto seek the concurrenceof all such.departmentswhich are concernedwiththat department. In particular,it stipulatesthat no departmentshall issue any orders withoutthe prior concurrenceof the Ministryof Financeifamatterrelatesto number or grade of posts, to pay or allowanceshaving financialimplications. The concurrenceofthe MinistryofFinancein this regardis absent. She furtherstates that the OM dated 24.3.2009has suitablybeen amendedby promotionand by deputation. Therefore,the issue of 80 per cent by promotionand 20 per cent by deputationhas also been met, with respectto 50 per centby promotionand 50 per cent by deputation. It is further argued that the nature of duties discharged by the diffeientCadies is as diverse as it can be and for personnelto be appointed anto' the various Cadres a specific educational qualification is a pre-requisite. Subsequently, Cadre specific training has to be undergone by the persomielof the respective cadres;that for the GD Cadre,asimpledegreeofGraduationfrom a recogniseduniversitywas all that was requiredwhereas for the Technical Cadres, a Diploma or Degree in Automobile or Mechanical Engineering was required.. The difference in educationalqualificationitselflays the foundationfor the natureof dutieswhichwouldbe undertakenby them; that the officersofthe GD Cadrewere firstappointedas AssistantCommandantand were requiredto undergorigoroustrainingof54 weeks (63 weeks in the WP (C)No.7545of2011 case ofthe petitioners)as comparedtotheofficersof the Technical Cadreswho were requiredto undergomerely 16 weeksoftraining; that the training,orientationof the officersof the TechnicalCadres is entirely different from the GD Cadre and they were neither trained nor equipped to undertake the work of the GD Cadre -- . which is the main strike force of the ITBPF; that the ITBPF itself had recognisedthe need for willingnessof the officerswho were directly recruited since these specialistcadres had come on the basis of some terms & conditions which are now sought to be changedin the eventof the merger.

¶27The ITBPF further sought the opinion of the "Ministry of Law whetherthe willingness/optionclauseswould be requiredor,could be done away \vith. However,the willingnessof the officersof tl Technical Cadres was never addressedby either the ITBPF or thsi Ministryof Plome Affeirs. They simplyrefeiTcdto the absenceof a separate Motor Transport Cadre, Telecommunication Cadres Armourer Cadre, etc. in the CRPF and the BSF to justify ths-proposedmergerofother'CentralParamilitaryForces.

¶28In reply, Mr. Sanjay Jain, the learned Additional Solicitor General appearing for the Union of India argues that there is sufficient • justification for the present merger and the same is based on the structural arrangement of other paramilitai7 forces such as the BSF and the CRPF. He submits that the merger is only at th^- supervisoiy level at which stage the officers are sufficiently mature and.experienced to perform the supemsoiy functions of the lower cadres. Insofar as there may be a lack of teclmical know-how m im WP(C)NQ.7545of 2011 Page 28 of64 • r:•[p-ii (7y>a the non-familiatisedaspectaproposeitherthe GD or the Technical Cad.-e, the personnel have to undergo a training to equip themselvesfor the same,

¶29Ml-. Jain submits that dissimilarposts can be integratedat the supervisorylevel providedthey meet the criterialaid down in The StateofMaharashtra&Am. v. ChandmkantAnantKulkarni& Ors., AIR 1981 SC 1990. He further submits that the entire proposalhas to be seen from the prismof WednesbuiyPrinciple-whetherit would shockthe conscienceofareasonableperson to arriveat the conclusionthat the Governmentdid. He reliesupon the caseofS.i>.ShivprasadPipalv. UnionofIndia&Ors. (1998) see 598, which held that a decision to merge cadres is essentiallyamatterofpolicyand the powerto regulaterecruitment and conditions of service is wide and includes the power to consthuteanew cadreby mergingthe existingcadresand thatthe principlesofgoverningequationofposts for mergerofcadresare followedin UnionofIndia&Ors. v. S.L. Dutta&Ors. (1991)i see 505 and ChandrakantAnantKulkarni(supra). He furtiier contends that all that the Governmentwas required to see was whether the comparablecadi-es, possessingsimilar qualification and comparableduties, are sought to be merged. If such is the case, thenthe Cadrescan be merged along with the conditionthat the officers would be required to undergo an enabling training programmeto remove any such difficultiesas there may be. At stage, Ms. Jyoti Singh, the learned Senior Counsel for tlie petitionerssubmitsthatthetennsofengagememhave changed:the w fC) No. 7545of2011 Page 29 of64 engineeringand teclinicalpersons do not wish to go to bordersto combatbecausethat is not the basis on which they were engaged in the forces; their worlc was only supportivein nature and not to be out on the actual battlefrontas that would requireseparateskill sets to dischargethe dutiesatthe supervisorylevel.

30.. The learned ASG submits that there is no creation of additional posts and that the job was requiredto be carriedout by the junior cadres. This Court, however, is of the view that the distinction between post arid job as sought to be canvassed is meaningless becauseitis the job and the duty, which an officerhas to discharge in a post. Therefore,the higher the post, more responsibilityis cast upon the senior officer. ,A person dischargingthe duties of N. supervisingthe actual ground work has to be experienced an ought to have the requisitetechnicalloiowledgeto know how th6 entirework at the ground level is done so that in the eventof any difficulty,the said supervisingofficeris competentto remove the deficienciesor obstacles-that may arise. This would be possible only if the person is sufficientlytrained and has the requisiteskill set as well as the experience to discharge the duties.' Just as a Dentist cannot be expected to cure a defect in the eyes,nor can an Orthopaedic operate on the heart, a person-' in;: the Telecommunication Department or any other Technical Department/Cadre cannot be expected to supervise the.firing of^" specialised gun on the border as well as the attendant movement of troops or requisite nature of command in an actual combat. Upon a specific query being posed to the learned ASG as to where thd fVP (C) No.7545of2011 ^ ^ ^ ^ Page ,

31.

¶32• il IfailEIIlilliMHMMMTFBiPlsrn'rT': i justification was for the proposed merger in the pre-merger discussion, Mi-. Jain submits that the original office file, now flaggedas A to L,may be perusedand thatthe notingsmay not be elaborateand hence,muchhas to be readbetweenthe lines. He furthersubmitsthat althoughthe reasoningmay not be explicit,the powerto frame policies,shouldnot be interferedwith. This Court, however, is of the view that the power to frame policy is not in question. What is underjudicialreview is whetherthe procedure prescribedfor the fonnationofthe policywas followed. Ms. Reldia Palli, the learned counsel appearing for the private respondents submits that the affected parties do not have an objectionto the merger and that the presentmerger is akin to the structurealreadyexistingin the BSF and the CRPF, therefore,the IIBP too can dischargethe same functionswithoutany difficulty. She finallysubmitsthatthe respondents/privatepartiesare more in number, therefore,there is greater willingnessin support of this merger. This Court, however, is of the view that what needs to be examined is the exact procedureprescribedfor the merger and whetherthe same was compliedwith or not. The ITBP manual specifiesthat the Force constitutesvarious cadres and categories which discharge their duties in the general functioning of the Foice. However, each cadre is independent in terms of its recruitment,trainingand careerprogressionunderthe aegis ofthe Force, its conceptand philosophy. The varioustechnicalas well as specialisedcadresassistthe Forcein awell co-ordinatedmanner m' (C) No. 7545 of20II Page 31 of64 -Tt, <f\ to make the Force a homogenous organisationto achieve the desired goal. Similarly,in Volume 2 of the ITBP Manual which deals with provisioningPart IV MechanicalTransport,the duties ofthe MechanicalTransportStaffUnit/StmctureHeadquartersare listedwhichfor a MotorTransportOfficerincludesinter alia: "a. He will be responsiblefor proper and correct,indenting of MT spare parts, tools and other stores required for the rurmingof MT and Workshop. b. CoiTect preparationof reports/returnsand 'their timely submission. c. Formulation of budged estimates and control of expenditure pertaining to MT. d. He will also aiTange proper distributionof MT parts tools and ensure correct storage and maintenance. xxxx xxxx xxxx xxxx xxxx h. He will be responsiblefor the localpurchaseofMT parts and various other connected stores. xxxx xxxx xxxx xxxx xxxx •; V.' m. He will have the vehicles tested every month on ITBPF Form-53, for the general fitness and place a report on record. The repairs to the vehicles would generally be carriedout in the Unit Workshopsand records of spare,parts supplied to each vehicle would be entered in the Log Book."

¶33Furtheimore, in Volume 6 of the ITBP Manual dealing with the Telecommunication, the role & functions of the Telecommunication Cadre are spelt out, which read as under: WP(C)No. 7545 of2011 il..

1.. .U: U-i • i ** " a. Operational:Primaryfunctionof Telecomcadre entails providingTelecommunicationcover efficientlythroughout the deploymentofthe Forceinthe Borderareas as well as in Peace locationsdeployedpermanentlyor temporarilyor in the event of emergency, whatsoever, it may be round the clock. It also implies to provide reliable and secure communication cover to the Force both during peace, Internal security scenario as well as during wartime in co ordination with Army. b. Equipment management: This entails Planning, Procurement and Supply of Telecommunication & other allied equipmentincludingTelephoneequipmentand stores required for providingTelecommunicationas well as line communication cover. c. Maintenance cover: This function of Telecom cadre entails providingRepair and Maintenancecover to all the Telecommunication sets and Equipment held by the Force to ensure effective, uninterrupted . and fool proof Telecommunication cover to entire Force at all places round the clock. d. Training Management: In addition to the above mandatory functions it shall be their responsibility of the Telecommunication cadre to Plan, organise and conduct various technical Training programmers for Radio Operators, Technicians and Linemen at the Basic, upgradation and advance level of their training. The cadre will also be responsible for carrying out regular practical training to. Telecom personnel to ensure correct and effective regular maintenance of Telecommunication as well as Line' communication equipment and other Technical stores vis-a-vis to keep abreast the latest technological development in Telecommunication. e. Man Management: Besides, it will be their responsibility to see that the men power under their command are utilised to their, fullest advantage for operational, equipment WP (C)No.7545of20JJ management,training and other purposes as mentioned in sub Para a to d above. f. Modernization: It will be added responsibility"of the Telecomcadreto strive for the continuousdevelopmentand modernizadonof Telecom system in the force vis-a-vis its requirementin changingscenariowith the latest technique and trend in the field of Telecommunication.

¶34It also details the functions of the Telecom Branch and the Directorate General which are as under: "FunctionsofTelecomBranch,DirectorateGeneral Telecom Branch at Directorate General, headed by an officer of the rank of a Deputy Commandantof Telecom Cadreis placedunderthe overalladministrativesupervision, command and control of DIG (Prov.) for the purpose coordinationin regard to functioningof the Branch. The. functions of Telecom Branch of Directorate General are defined below: a. Assess Telecomneeds ofthe force and render technical advice to DG ITBP, through specifiedchain command, on all matters of telecommunication. b. Assistthrough specifiedchain of Command in updating, controllingover all technicalfunctioningol Ieleeom set up and monitoringthereof. c. Advise all branchesofDirectorateGeneral on the issue-likely to effect Telecom set up e.g. re-organisationof Telecom set up etc. d. Liaise with MHA/MOF/MODand other agencies on a^li matters related to" functioning of Telecom set-up of the force. WP(C)No.75450/2011 C): iTOnjiTimiiff-TT-i!^ :nnr e. Issue standingorders/standard-operatikgprocedureson all aspectsoffunctioningofTelecomset-upand reviewthereof from tinie to time. i f. Keep track of Telecom staff/majorTelecom equipment with each Telecom detachment. i g. Oveiseethe cordialfunctioningofTelecompersonnelvis a-vis fonctionariesofothersegmentsofthe force. h. Planning, communication configuration for ITBP consultation with OPS Directorate. i m i. Assessingneeds of frequencyspots in1various bands; get allotted these spots in accordance with regulation from wireless planning commission, get S^tanding Advisory Committee On Radio Frequency Allbcation (SACFA) clearance; allotment and co-ordinating, the use of frequencies in ITBP. j. Functional communicationco-ordinationwith army in consultation with OPs Directorate. ' j \ I k. Making signal plans for force-level exigencies in consultationwith OPs Directorateand arrangemusteringof staffand equipmentfrom the existing-resources.

¶1Liaison consistentlywith Joint Cipher Bureau (MOD), DCPW, ARMY for keeping track oflatest communication security devices, modem crypio systems and feasibility:ofinduction,in ITBP. assessing m. Plamiingofinternalcommunicationmonitoringnetwork; scrutmizmgsuch monitoringreports,for pjanitiveaction on security violations; interact with central ratio committee of MOD. security n Lookingfor suitablesecuritydevicesin consultationwith NCB; DRDO, othersisterorganizations,openmarketetc. ! fVP CO No. 7545of20if Page 35 of64 o

¶0Authorization of Telecom equipment and revision thereof p. Laying down specificationof the authorised equipment for procurement in ITBP, Processing proposals for procurement of Telecom equipment and getting Admn approvals/financialsanctionsfrom competent authorities. q. Controllingforce reserveof TelecomEquipment. r. Scheduling Annual Technical Inspection of Telecom detachments; scmtinizing reports thereof; consolidate such reports and bring the health of Telecom set-up to the notice of DG and recommending further action for improvement. s. Processing condemnation proceedings in respect of Telecom equipment beyond powers of lower units and taking orders of competent authorities'thereon. ( t. Processing C.O.Is involving Telecom equipment."

¶35In Part A Volume 6 of the Manual dealing with the administratior^,, the duties of the officers Assistant Commandant (Compaaw Commander) are listed as under: "48. Asstt. Commandant (Company Commander) While commanding a sei*vicecompany, Asstt. Commandant may be refen^ed as Coy Commander for the purposes of Administration of the Company. lii this capacity he will be:; a. Responsible to. the Commandant for the disciplii administration, training and overall efficiency of his" Company. b. Responsible for the sanitation and cleanliness of his Company Barracks and area. WP(C)No.7545of2011 Page36of64 Ml, • " . 'i 'i iK'': U(): c. He will conduct all correspondence Company. connected with his d. He will supervise the messing company and see,that his men are properly fed. He will ensure that all ration items are con-ectly drawn from the Battalionstores as per laid down scale and also ensure that no pilferagetakesplacein the Coy. e. He will takepersonalinterestin organisingand conductof •angements of his A. — — — ^ ^ WVJkJLX professionalas well as educationalof his ensurethat all personneland will ensure ui his company fulfil the requisite education as well as professionalqualificationfor next promotion. He will also see that they are put to requisitecadre and coursesand their seniorityis not adverselyaffected. f. He will be personallyresponsiblefor correctdisbursement of pay and allowancesofhis coy personneland will ensure •f K rk + n ~ _ 1 • _ ^ , company and will lat all persomiel of that all Battalion and Force deductions ao uci existing order. He will ensure that cash books and pay disbursement register of his compahy are correctly maintained,completedand such entriesthereinare initiated by him. are made as per g. He will ensurethat the uniformand the; equipmentofhis Companyis maintainedin goodorderand .o wuci, requn-ed,and tliatall ranJisofliis companyturn out smartly mid con-ectlydressed both when in uniform and in mufti He must brmg to the notice of the QuartferMasterwithoui delayall misfitsreceivedon issuefrom the QuarterMaster's stoie. He will personallycondemn all akicles of uniform and equipmentneedingreplacementunder the subject. is replaced, when existing order on h He will inspect the clothing and equipmentof all men detailedto attendcourseselsewhereand will ensurethat all instructionsare compliedwith. f'VP (C) No. 7545 of2011 Page 37 of64 i. He will be responsible for the security and the maintenance of all arms, ammunition, furniture and equipment on company charge, in good order and ensure the maintenanceoftheirrecordsand registers. He will reportall losses and damages to the Adjutant as early as possible coming to his notice. j. He v/ill be responsible for the timely disposal of all indiscipline cases pertaining to his coy and v/ill ensure that ail cases beyond his power are submitted immediately to the commandant for flirther order. k. He will be responsible for the time submission of ali crime records and for the attendance of the accused before the Commandant, provide escort and necessary witnesses. He will at once report to the Adjutant, if any, Under Officer or Constable of his company is placed under arrest.

¶1He will carrybut the monthly inspections and checksof: i. Kit and equipmentheld on charge of his Company. . ; ii. Check arms and ammunition on company charge. . iii. Platoon Messing Accounts. m. He will submitperiodicalreports and returns to various officers as directed.from time to time. n. He will be a member of the Boards or Courts of Enquiry concerningthe loss or damageto any arms and ammunition on his company charge. ,

¶0He will be responsiblefor the correctnessof the for^-^ orders issued in respectof his company weekly, and^.ensu" any errors and omissionsare broughtto the laiowlecige.of the adjutant and amendment/corrigendumare issuea,.. He will see that no ordersof the companyrequiringpublication in Force Orders have been omitted. • W (C) No.7545of2011 •' , •T?;.

¶36•i:-iMHi!jiiwiinfflfi![!iWRBn'ninn' /Tn'nni: p. When a Company Commander is on detachment all correspondencewill be conductedthroughthe Adjutantbut when part ofacompanyis on detachmentand the Company Commanderis at Headquarters,all correspondencewill be conductedby the CompanyCommander. q. He will-dischargeother functionsassignedto him by the commandant from time to time regarding movement/deploymentofhis company.

¶1He will see that subordinateofficers and other officers under his command,develop their professionalcompetence and learnto take initiativeand driveto theirstature. s. He will carry out any other duties as assignedto him by the commandant from time to time." From the aforesaid,it is clear that the nature ofduties as well as skill set requiredare extremelydiverse and could not possibly be discharged by the officers who have been interchangedat the seniorsupervisorylevel simplyby undergoinga shortcourseof 16 weeks.Theseissueshave beenhighlightedin aletterfrom the DIG (Laddaldi) dated 12.2.2013 to the IG, North-West Frontier Headquarter-ofthe HBP whereinthe officerstressedas under; "Sir,, Kindly refer to NW Ftr HQr Fax/WT sig no.3809 Dtd 11/2/13 regarding problem being faced after merger of cadres.

¶2In this regard,followingpointsare submittedas desired: A. CAREERPROGRESSION WP (C) No.7545oflOlT Personoftelecomcadre who join as PIC, get a head start of 15-17 years over the CT/GD thus resultingin denial of career progression opportunities to CT/GD. Promotional opportunitiesavailable to GD cadre vis-a-vis specialised cadreaftermergeris evidentfrom followingillustration. i. GD Cadre: In a unit authorisedstrengthof SI/GD is 30, out of which 50% vacancies are field thi-ough direct recruitment/LDCE,thus makingeffectiveavailablevacancy of 50. Thus ratio between total available promotional; avenues and total eligiblecandidatesstands at 1:61 (SI-l'S.^ Ors.915). ii. TelecomCadre: Whereasin telecom cadre of a unit, stand at this ratio is 1:5 (SI-13, Ors.-65). This anomaly gets its manifestation vide Dte Gen letter number 3542 Dtd 10-12 - 12 which contains list for DPC of SM/Inspector. Out of total 108 SMs/lnspectors,49 persormelare from specialised cadre. B. OPERATIONAL DIFFICULTIES: Persomiel enrolled in specialised cadres do not undergo essential courses/cadresas stipulated for.GD troops and do not have operational experience at any stage of their careers. Thus, after becoming officers they will not have effective field/ops experience and this will result in drastic fall in operational efficiency of the Force. C. PROBLEMSOF COMMANDAND MANAGEMENT:'" Command is a virtue which is inculcated 'in the due course of time during the service acquired through experience ar^' • going through the vagariesed ground level soldiering oy^?:.- the years. With due respect to the capabilities' of the Non GD Cadre, it is a fact they lack ground level commanci-experience which will affect the proper management at unit/subunit level. WP (C)No.7545 of2011 i~ .... 'cr U.! \}., •|:iMR:]'iir»i^i)FiPiCThnTr'T

¶3BASED ON THE ABOVE FACTS FOLLOWINGCAN BE CONCLIJI^ED THAT: GD Cadre-personnel right from the ranlc of HC commands section, perform the duties of ground commander and petrol commander and get many administrativedudes. GD Cadre SOs perform duties at various level right from Section Commander, PI. Commander,Parade ContingentCommander,WeaponDett Commanderincludingduties ofMPC, MFC and command BOPs at high altitudeand also participatein variousminor ops ofWar in CI grid and anti naxal operations, llius after becoming an officer after years of ground experienceand command management during peace time as well as in stressful condition they are well versed with general operational and administrative affairs, whereas persons enmlledin 1elecomCadresdo not undergoessentialcourses and do not have commandexperienceat any stage of their careersand on becomingofficersthey may not be effective commanders even during peace time,role which includes borderguarding,IS Duties,aid to CivilAuthorities,Election Duties arid CI Ops etc. Consequentlythe troops of GD Cadre will have all the reasons to doubt the capabilitiesof their commander who has just emerged from a technical post as a consequenceofcadremerger.

¶4After inspectorof technical cadres are not having any specialisedofficer. Thus efficiencyofnon GD Cadi-eis also going down. So, mtotality, this cadre merger has only lowered the self esteem of GD Cadre which is main component and cuttngedge ofthe force and furthercommandofGD Cadre by inexperiencednon GD Cadrewill definitelyhave adverse i^act^onthe efficiency and effectivenessof force as a WP (C) No. 7545 of2011 Page 4! of64

¶37The learned ASG subriiits-thatthe Government'sdecision meets the broad parameters.set out in ChandrcikantAnant Kidkami (supra). The issue of integrationof GovernmentservantsalJotieci to serviceof the new Stateswas examinedin the contextof Section 115 of the States Re-organisation Act, 1956 as well as in the context of the general principles settled by the Chief Secretaries Conferenceofthe StatesheldatNew Delhion May18-19, 1956 for the aforesaidpurpose. The Courtheld thatthe followingprinciples were well settled and had a statutory force in the context of lair and equitabletreatmentunderSection115(5)of the Act. "lO.xxxx "In the matterof equationof posts: i. Where there were regularly constituted similar cadres i the differentintegratingunits the cadres will ordinarilybe" integrated on that basis; but ii. Where, however, there were no such similar cadres the following facts will be taken into consideration determiningthe equationof posts- . . .,;n a. nature and duties of post; b. powersexercisedby the officersholdinga post,the extent of territorial or other charge held or responsibilities discharged; c. the minimum qualifications, if any, prescribed' fo-- recruitment to the post, and d. the salary of the post. xxxx" WP(C)No.7545of2011 ... Page ^2 of 64 . ilLlliiiriiililllJlffllfllilliiklli! •••lit

38.

¶39•LEIHimiilliiii'ii It furtherheld that "mere chancesofpromotionare not conditions of service and the fact that there was reductionin the chances of piomotion did not tantamountto a change in the conditionsof service.Arightto be consideredfor promotionis atermofservice, but mere chancesofpromotionare not He furtherreliesuponthejudgementinS.L Dutta&Ors. (supra) to contendthat while examiningthe mergerofcadreswhat is to be seen is whether they were .cariying comparable/similar qualificationsand had comparableduties and salaries; that the question relating to the constitution, pattern, cadre merger, prescription of qualifications and other conditions of service including avenues of promotion are within the field of policy making and therefore^in the exclusivediscretionand jurisdiction of the Executive; that accordingly, the Executive/respondents could change the rules relating to service as well as alter the qualificationcriteriaand othersuchconditionsofserviceincluding avenues of promotionfrom time to time owing to administrative exigencies;that except for seekingto ensure or safeguardingthe rights and benefitsalreadyaccruedor earnedtill aparticularpoint in time, an employeeof the, Govermnentcould not questionthe power of the State to alter the conditions of service. In other words,an employeecannotclaimthatthe conditionsgoverninghis service should stay permanent. In supportof his contention,he reliesuponadecisionofthe SupremeCourt in P.U. Joshi Ors. V. AccountantGeneral,Ahmedabad&Ors. (2003) 2SCC 632 which held as under: J-VP (C)No.7545of20II Page 43 of64 Questi'ons relating to the constitution, pattern. nomenclature of posts, cadres, categories, thek creation/abolition,prescriptionof qualificationsand other conditionsofserviceincludingavenues of promotionsand criteria to be fulfilled for such promotionspertain to the field of Policy and within the exclusive discretion and jurisdictionofthe State,subject,ofcourse,to the limitations orrestrictionsenvisagedinthe Constitutionof India and it is not for the Statutory Tribunals, at any rate, to direct the Governmentto have a particularmethod of recruitmentor eligibilitycriteriaor avenues ofpromotionor impose itself by substitutingits views for that ofthe State. Similarly,it is well open and withinthe competencyofthe State to change the rulesrelatingto aserviceand alteror amend and vary by addition/subtractionthe qualifications,eligibilitycriteriaand other conditionsofserviceincludingavenuesofpromotion, from time to time, as the administrativeexigencies mav need or necessitate.Likewise,the State by appropriatevuIqs is entitled to amalgamate departments or bifurca'"' departmentsinto more and constitutedifferentcategoriesol posts or cadres by .undertaking further classification./ bifurcation or amalgamation as well as reconstitute arid' restructurethe pattern and cadres/categoriesof service, as', may be required irom time to time by abolishingexisting' cadres/postsand creatingnew cadres/posts.There is no right, in any employeeof the State to claim that rules governing conditions of his service should be forever the same as the one when he enteredservicefor all purposesand except for ensuring,or safeguardingrights or benefits already earned, acquired or accrued at a particular point of time, a Govermiientservanthas no right to challenge,the authority of the State to amend, alter and bring into force new rules relating to even an existing service." '

¶40He furtherrelies upon ajudgementofthe SupremeCourtin Union of India & Ors. v. Harjeet Singh Sandhu AIR 2001 SC 1772 which held that judicial review of administrative action is to be WP(C)No.7545of20iI . [•n r 0{5';

¶41;ir pirnfiiiniiin inrp' n? ^ exercised on well settled parameters i.e. when the administrative actionis ''•shown to,have been vitiatedby malafides or isfound to be based wholly on extraneousand/or irrelevantgrounds or is found to be a clear case ofextraneousand/orabuse to power or what is sometimescalledfraudon power, i.e. where the power is exercisedfor achievingan obliqueend. The truth or correctnessor the adequacy of the material available before the authority exercisingthepower cannotbe revaluedor weighedby the Court while exercisingpower ofjudicialreview. Even ifsome ofthe material,on which the actionis taken isfoundto be irrelevant,the court would still not interfereso long as there is some relevant material available on which the action can besustained.The court wouldpresumethe validity)ofthe exerciseofpower but shall not hesitateto interfereifthe invalidityor unconstitutionallyis clearly demonstrated. If two views are possible, the court shall not interfere by substitutingits own satisfactionor opinionfor the satisfactionor opinionofthe authorityexercisingthepower." On the facts of-the case, the learned ASG argues that the four Gioup A cadres, which are sought to be merged, are at the supervisory/manageriallevel i.e. at the level of the Assistant Commandant(AC); their basic qualificationis Graduationin their respectivefields,and upon merger,theirpay-scaleswould become similarand the powers to be exercisedby the officerwould have paiity inter se the merged cadre. He further submits that the meigei has been plannedin astructuredmannerinvolvingseveral training programmes, which would impart training to all the WP(C)No.7545of2011 .V' segments of the merged cadres including the General Duty Cadre. Thus, Group 'A' officers have merely to perform supervisory duties and the specially structured training courses would equip them sufficiently to cany out the duties cast upon the incumbent post. He furthersubmitsthatthe officerswouldbe sufficientlyable to handle the post by equipping them with the functioning of administrative and operational duties. He has referred to the summary of the courses to be undergone by officers of all the merged cadres. The learnedASG further contendedthat in other Central Paramilitaiy Forces like the BSF and the CRPF at the supervisorylevel i.e. Group 'A' posts, there were no different technical cadres and that they all were supervised by the General Duty Cadres. He refers to Section7 of the ITBP Act as well r- - Rules 8(1) (5) of the ITBPF Rules to state that every member of the Force shall be liable to serve in any part of India as well as outside India and out of all the four minor cadres sought to be merged i.e. Telecom, Motor Transport,Armourer and-Electronic Data Process(EDP), only the last one had toperform:the duties-at the administrative level, hence, they were posted at the Directorate General,NewDelhi. The primaryjob ofthe AssistantComm_anfer and the Deputy Commander in the EDP Cadre is to hanoie computerswhereas all other personnel are requiredto go to tbe borderirrespectiveofthe merger. He submitsthat all personnels the minor cadres are duly and properlycombatisedat the time ;eii joining the Force by undergoing 16 weeks training; the only differencebeing that the personnel from the GD Cadre has to WP (QNoJ545 0/2011 Page 46 of 64. .ilS -i lyr-in undergo 54,weeks trainingto be combatisedbut in any case, with the specialtrainingimpartedto them, they are well equippedto be termed as combatised. He also submits that even the ministerial staff is sufficientlycombatised. He further submits that upon conducting the bridge course/training programme, the non technical personnel, who is required to carry out supervisoiy functions,would be sufficientlyequippedto dischargethe dutiesat the Group 'A' level.Furthermore,ifat any stageitis felt thatthere is a need for modifying or supplementingthe. courses, it can always be done,with the help of experts. Therefore,he contends that differenteducationalqualification,which was a pre-requisite for the personnel joining the Force in different cadres would become irrelevantafter such personnelundergoesthe specialised trainingprogrammesas it wouldrenderthem functionallyequalto dischargethe duties incumbentupon the post. He furthersubmits that prior to the merger of the cadres, due process was followed includingvarious rounds of consultationbetween the concerned Ministries. The reason necessitatingthe merger,was not only to enliancethe promotionalavenues ofthe minor cadre but also in view of unmanageabilityof the various cadres. Furthermore,it is submittedthatthe distilledwisdomfrom the seriesofpresentations and discussionswith the DirectorGeneral and the officersof the cadres concernedled to the merger being accepted. He submits that althoughasimilarproposalfor merger did not find favour of the cadre maintainingauthorityin the year 1999, much water has flown since then and the MHA cannot be faulted for non-WP(C)No.7545of20Il Page 47 of64 \ consideration of the issues raised by a handful of officers. Me submits that in the intervening period of 15 years, the size of the cadre has become different, hence, the pre-governing rejection of' the earlier proposal for merger would neither be applicable nor would the absence of elaborate discussion on the issue lead to the conclusion that the matter was not discussed. He also argues that since the merger did n.ot have financial implication, there was no " requirement for .the approval from the Ministry of Finance. . Aproposnon-submissionof the proposalfor approvalof the Union Public Service Commission (UPSC), he submits that there was no need for the. same because the UPSC had already granted such exemptionvide theirletterdated9.6.1969. Finally,he submitsthat the availabilityof the large pool of officersat the Group 'A' leve-^ . who would be•equally equipped at the supervisorylevel would enhancethe capabilityof the Force and would giye the officersan oppoitunityof promotionwhich would improve their satisfaction and aspirations.

¶42While adjudicatingupon the issuesinvolvedin thesepetitions^this Court would readilynot questionthe policy wherebypromotional avenues soughtto be enliancedthrough the amended reeruitmeni^ rules as effected. The executivepower and discretionof the State to merge cadresin its administrativewisdomis not in questionand accordingly,it is not for the Courtto impose itselfby substitutin ^ its own viewswiththatofthe State. Amalgamation/bifurcationof cadres or restmcturingthereof or abolishing some of the posts cannotbe questionedby an employeeofthe Stateexceptinsofaras WP(C)No.7545of201J Pcige-4Sqf64 -J ~-n •--• •".r"" •riEiiwipni7ainT7inriiinii!RrnTiT; r[ i';r n;

¶43rights or benefitsabeady earned, acquu'edor agreed in favour of employee is sought to be secured or safeguarded. The Courts would, however, not hesitate to interfere if the invalidity or unconstitutionalityis clearlydemonstratedand inthis regard,what would be required to be seen is whether the points raised in ChandrakantAntintKulkarni(supra)are satisfiedor not, i.e., (a) nature and duties of post; (b) powers exercisedby the officers holding a post, the extent of territorial or other charge held or responsibilitiesdischarged;(c) the minimumqualifications,ifany, prescribedfor recruitmentto the post; and (d) the salary of the post. Whentheproposalfor mergerstoodmooted,the amendmentto the recruitmentrules would be governed by the rules governingthe same. The rules for the same are amended vide OM dated

18.3.1988. The extantrules are now embodiedin the OM of 2010 • which requires that all Ministries and Departments to effect necessary amendments to the recmitment mles/service rules notifiedby them after followingthe general guidelinescirculated by the DoPT on 18.3.1988and also in consultationwith the related Departments. This requirementwas duly notifiedby the Ministry ofLaw to the MinistryofHome Affairs when the opinionofthe Law Departmentwas taken in this matter. As noted, obsei-vations were made by the Department of Law on 5.8.2010 and the Ministryof Home Affairs was advised to consult and obtain the views of the UPSC, as it would be essential,since 50 per cent vacanciesof the AssistantCommandantin the ITBP in the General WP (C)No. 7545of2011 Duty Cadre are to be filled through direct recruitment, which would have a bearing on the existing cadre; 33 per cent of vacancies by promotion and 17 per cent of vacancies to be filled through Limited Departmental Competitive Examination, failing which by promotion. This consultationwas all the more necessaiy because in the schedule relating the post of the Assistant Commandant, it had been provided that consultation with the UPSC was necessary and-LDCE. The Law Ministry pointed out that the UPSC had not agreed to the merger of the cadres of the General Duty and the Telecommunication on the proposal of the SSB to have a common cadre for Assistant Commandant (GD). The Ministry of Law further advised and cautioned the Ministry of Home Affairs that the approval of 6.8.1969 exempting the ITBf from seeking approval of the UPSC prior to the merger of the cadres was misplaced because the recruitment in this case was td be conducted through the UPSC and the proposal of SSB regarding the merger of technical posts, which was referred to in the aforesaid letter, had yet to be decided due to the UPSC's objection. Therefore, the approval of the UPSC was essential. Thus,-subject to the above observations, the modified draft was approved-by the Ministry of Law. The Ministiy of Home Affairs, however, gave its own justification for not^referring the matter to the UPSC again based on the same ^letter of: 1969. Furthermore, it sought 1 overcomethe other objectionsof the Ministry of Law by providing an explanation that no separate cadres of Motor Transport;, Telecommunication and .Armourer existed in the CRPF; Motor WP (C)No.7545of20II ^ Page50 of64 , -"•! • Transport and Telecommunication had already been merged in the BSF and the proposed merger was on the same lines and besides, the DoPT had already indicated the merger. Therefore, since the matter had already been pending for quite some time, it was ultimately approved. This, however, can hardly be any justification to overcome the procedure prescribed for effecting the amendment to any recruitment rules. The Government of India (Transaction of Business) Rules under Article 77(3) of the Constitution of India, notified on 14.1.1961, require inter-departmental consultations on the conduct of business of the Government. Clause 4 thereof requires as under: "4. Inter-Departmental Consultations. -

(1) Wlien the subject of a case concerns more than one department, no decision be taken or order issued until all such departments have concurred, or, failing such concurrence, a decision thereon has been taken by or under the authority of the Cabinet. Explanation - Every case in which a decision is taken in one Department is likely to affect the transaction of business allotted to another department, shall be deemed to be a case the subjectof whichconcernsmorethan one department.

(2) Unless the case is fully covered by powers to sanction expenditure or to appropriate or re-appropriate funds, conferred by any general or special orders made by the Ministry of Finance, no department shall, without the previousconcun-enceof the Ministiyof Finance,issue any orders which may - a. xxxx. b. xxxx. WP(C)No. 7545 of2011 Page 5] of64 c. relate to the number or grade of posts, or to the strength of a service, or to the pay or allowances of Government servants or to any other conditions of their service having financial implications;..."' ' • ^

¶44Furthermore, Clause 7 of the said Business Rules stipulates the submission of cases to the Cabinet. The said Rule reads as under: "7. Submission of Cases to the Cabinet. -

(i) all cases, specified in the Second Scheduleto these Rules except cases covered by sub-rule (5) of rule 6, shall be brought before the Cabinet." .

¶45These include proposal (m), i.e. proposals to vary or reverse a, decisionpreviouslytaken by the Cabinet.

¶46The learned. Senior Couhsel for the petitioners has drawn the !• attention of the Court to the fact that the recruitment ruleii formulated had received the approval of the Cabinet before,they were enactedby the Parliamentand laid on the table of the House respectivelyand then notified. Therefore,in terms ofthis decision, any proposalto vary or .reverse a decision already taken would requirethe previousapprovalof the Cabinetwhich in the present case was not obtained. This Court is in agreement with this contention raised on behalf of the petitioners and fmds that case was not put beforethe Cabinetfor approvalofamendmentof a decision already taken i.e. amendment of the RRs. Th' guidelinesfor framingrelaxationofrecruitmentruleswere also noi followed which required consultation with the UPSC. The WP,(C)No.7545of201I Page:>2of64

¶11' t:'i.

¶47relevantparagraphsof the OM dated 31.12.201,0,notifiedby the DoPT reads as under: "CONSULTATION WITH UPSC

2.5 After obtainingthe concurrenceof the Departmentof Personnel & Training, the Administrative Ministry/ Department should refer the draft Recruitment Rules for posts/serviceswhich are withinthe purviewof the UPSC in a self-containedletter to the Commission,along with the informationin the prescribedproforma (AnnexureII). It should be stated in the letter to the Commission whether the clearanceof the Departmentof Personnel& Training(and also the Department of Pension & Pensioners' Welfare where required) has been obtained in respect of the proposalsin question. Wherethe procedurefor consultation with the Commission has been followed and infomiation necessary for considerationof the proposal has been fully given, it should be possiblefor the Commissionto convey their advice ordinarily within 4 to 5 weeks. If the Commission'sadvice is not received within this time, the administrativeMinistry/Departmentmay settlethe matterby personal discussion with the officers concerned in the Commission." Furthermore,this Courtnoticesthatthe numberofposts are sought to be increased. Therefore,logicallytherewouldbe some element of financial outlay and even if the same was not so, the rules governing the Government of India (Transactionof Business) Rules requirethat aproposalrelatingto numberor grade ofposts, or to the strength of a service, or to the pay or allowances of Governmentservants or to any other conditionsof their service having financial implications would be required to be placed beforethe MinistryofFinance.Thistoo was not done by the MHA IVP (C)No. 7545of201] TIlJJJMiilll \ on the ground that there was no additionalfinancialoutlay. This • was an error since it was not for the MHA to decide if there was a financial outlay or not. The procedureof consultationis clearly laid down which was to be strictlyfollowed. It could well be that the Ministry of Finance could have concluded that there was no financial outlay and could well have approved the MHA'a proposalbut that decisionwould lie entirelyin the domain of the MinistryofFinance.The MHA couldnot vestitselfwiththe power to determinewhethertherewas a financialoutlay. Theremay well be so many other factors to be taken into consideration from a financialperspectiveaboutwhichtheMHA may notbe adequately equipped.

¶48Most importantly,the non-consultationof the UPSC is fatal to th, entire process of decision-making. Furthermore, it is noticed that the notification of the Ministiy of Home Affairs dated 30.4;2003-amending the ITBP General Duty Cadre Group 'A' Recruitment Rules, 1999, in particular mentions in the Schedule thereto thalii- "(g) in column 14 for the entry, the following entry shall be substituted, namely:- ' - "Exempted from the pm-view of the Union Public Service Commission' but consultation with Union Public Sei"vice Commission shall be necessary for direct recruitment."

¶49In the additional affidavit filed in July 2013, on behalf c ~ respondent No.2, it is admitted that before taking a final decision on the merger, there were inter-ministerial deliberations, i.e. the MHA, the DoPT and the Ministry of Law on the issue of fixation WP (C)No.7545of201I ' ~ ^ ^ ^ Page54 of64 , , ' 1 ' •il '!m;Tr[-ni"Tn"n:in'^[norr^nT!r':Tr:r^T-- • r-; ---.Tr- ;• • \> of inter se seniority. However, it clearly excludes the consultation with the Ministry of Finance which otherwise was a requisite under the Government of India (Transaction of Business) Rules. Furthermore, the,approval of the Ministry of Finance/Cabinetwas required sincethe proposedmergerinvolvedtransfer of postsup to the level of the Inspector General, which in the present case had not been obtained. In this regard, advise was given by the Ministry of Law vide their note dated 29.3.2010.

¶50This Court has perused the Main (Original) file produced by the respondents regarding the coiTespondence and notings, etc. apropos the proposal for merger of the cadres. We find that there is no discussion or examination of the technical aspects with respect to the Minor Cadres being merged with the General Duty Cadre particulai'ly from the viewpoint of the Minor Cadres being duly equipped or trained to be able to dischargethe new duties that may be assigned to them post the merger. The letter of the Inspector General (Training Zone) raises serious issues for consideration regarding the very efficacy and combat-readiness of the Force. His views v/ere sought for preparation of the Draft SOP to streamline the Amiual Inspection and other periodical inspections of SPT, TPT and Telecom battalion after the merger of these cadres. The IG"(Training) was of the view that there is no likelihood of the personnel of the GD Cadre acquiring the requisite technical qualifications, therefore, the need for revision of the existing SOP would•not be necessary at any stage and the merger of the specialist cadre with the General Duty Cadre would be "a great WP(C) No. 7545of2'0n' Page Jj of64 drawbackand a minus point." This conclusionwas based on the basis that persons who were inductedinto and had worked in the technical cadres, would have acquired sufficient technical laiowledgeand technicalcompetenceaboutthe safety,securityand managementofthe equipmentand otherrelatedmattersbecauseof their experience in the job, as well as having sufficient professionalqualificationin the. subject relating to its technical aspects.This competencecomes aboutas aresultof10-15 years ot experiencein the respectivefield of specialization,which would subsequentlyequip the cadrewith sufficientknow-howto conduct annualand periodicaltechnicalinspectionofin respectiveareas of operation. The IG (Training) also cautioned that the annual inspectionand otherperiodicalinspectionsofequipments/Arms -. \ Ammunition is to ensure safety, security, serviceability and management of equipments and other related aspects. The GD officers cannot effectivelycany out such inspections.Therefore, not only for-the present but also in the future, the services of technically qualified officers of specialist cadres would be continuouslyrequiredfor effectivelycarryingout varioustechnidaJ inspections.In other words, specialisedcadre officers would .be mostlyemployedto periormthe same natureof dutiesat Battalion Headquarter,SectorHeadquartersand FrontierHeadquarterswhile GD officers shall remain to be deployed for LRPs, SRPs, BC and other operationalduties including deploymentin ANOs. A comparisonwas drawn betweenthe nature of trainingundertaken by the officersofdifferentcadres.'The same are: WP (C)No.7545of2011 i'age56 of64 "Tf -!'Tr T?-7r.rf \ "A. Armr Cadre A person having minimum Matriculatequalificationwith science background on remusteration as Armourer requiredto undergothe followingcourses: i. Armr Basic Course ii. Armr Grade-II iii Armr Grade-I ' iv Armr Refresher Course B. Telecom Cadre 50 weeks duration 12 weeks duration 08 weeks duration 06 weeks duration IS Apersonwith 10+2 withphysics,chemistiy&mathematics or pass with two years ITI certificate in Electronics/Electrical/computer•or 10^*^ pass (with PCM) with .. three. years diploma in Electromcs/Communication/Instmmentation/computer sciences/IT/Electricalis required to undergo the following courses: i.RTG-III ii. RTG-II iii.RTG-I . C.MotorTransport Cadre 46 weeks duration 26 weeks duration 26 weeks duration Aperson with Matriculate(science)having ITI certificate with 3 years experience or Diploma in Mechanical or directlyappointedinthe rank of HC (MotorMechanic). Amechanicin ITBP is requiredto undergothe followingcourses: i. Auto Fitter course ii. Short welder course iii. Auto Electriciancourse iv. HC/MMupgradationcourse V. MTManagementcoursefor GOs/SOs WP (C) No.7545of2011 12 weeks 04 weeks 08 weeks 08 weeks 04 weeks Page 57 of64 \ vi. MTRefreshercoursefor SI(MM) SI(MT) - 02 weeks"

¶51The IG (Training) further cautioned the Government that the • aforesaidcourses/qualificationswere never likely to be acquired due to certain eligibility restrictions and administrative constraints. It also referred to certain restrictions in the Fundamental Rules for deputingofficersfor certain essentialtrainingon duty and in that context referred to FR-9(6).

¶52This Court is of the view that the officers of the General Duty Cadre may face some handicap in appreciatingthe technical and scientificaspects involved in the Telecom and Motor Transport Cadres. Their reason for induction for presence into these Cadres required a background in physics, chemistiy and mathematics, ancr otherwise a certificatein Electronics/Electrical/Computeror 10^'^ Pass (with PCM) with thi'ee years diploma in Electronics/Communication/Instrumentation/Computer Science/ IT/Electrical courses. For the Motor Transport Cadre, it required a Matriculation in Science or ITI certificate with three years experience or Diploma in Mechanical or Automobiles Engineering. The educational qualification was deemed necessary under the RRs to facilitate a better understanding of the technical aspects of the nature of the job. A person who does not have thr' preliminary or basic academic background would eithernot be able to discharge the duties effectively or would otherwise be constrainedfrom appreciating-the technical and scientific aspects PFP (C) No.7545of2011 Page 58 of64 ') 111 ,J:Lj J;;

53.

¶54of the work. At the supervisorylevel, i.e. Group 'A' level, where the mergeris soughtto be done, suchtechnicalknowledgewiththe backgroundin Scienceor technicalproficiencieswould be all the more necessai"y. It is for these reasons that .the matter should have been examinedby the UPSC which is the requisitetechnicalbody concerningthe inductionof personnelinto the cadres. There is no response by the respondents to these serious issues of concern raised by,the IG-(Training)which would affectthe efficacyofthe Force. Any actionofthe respondents,whichaffectsthe efficacyof the Force ought need to be duly deliberatedupon and approached withcautionandprudence. This Court is unable to accept the argumentof the learned ASG that the cadresare.comparablebecausethey wouldbe carryingout similarduties and have same salaries,besides their qualifications are also similar. From the RecruitmentRules, it is apparentthat the inductionofpersonnelinto differentcadres is on the basis of differenteducationalqualificationsas discussedhereinabove. The nature, content and duration of training they undergo in each specificcadre is entirelydifferentand so are the respectiveduties they discharge. There is indeed, no similarity in the duties dischaigedby them exceptthat they work togetheras a team for the effectivenessof the Force. Simply by seeking to merge the officers at the supervisory level cannot make their cadres comparable. In P.U. Joshi &Ors. (supra), the Hon'ble Supreme Court dealt with parity in employmentof supervisorsengaged in accounting. WP (C) No. 7545 of2011 Page 59 of64 j The Supreme Court obsei-ve^that Supervisorsin the.Accountant General (Accounts & Entitlement) who have failed to pass the Section Officers(SOs) GradeExaminationcannot be treated at par with the SOs solely based on a seniority list. The Court went on to observe that the. SOs are considered senior to the unqualified Supervisors. However, the facts of the present case are very different. In the present petition the technical qualifications, nature of training and experience of work is as diverse as chalk and . cheese. For the petitioners, at a supei-visoi7 level i.e. Group 'A' level, it was necessary to have specific teclmical qualification to understand the teclinicar aspects for the work for which they were inducted whereas in P.U. Joshi (supra) all persons concerned had only to do the work of accounting, albeit at different levels. In writ petition however, the distinction and diversity in qualification extends from being trained in arms and ammunition, combat and assault on the actual front lines, by the personnel and communication, technical or logistic support from a far off non combat locations.

¶55The contention of the respondents that a larger number of officers likely to be affected by the impugned notification have already agreed to the new arrangement,hence these petitions by a handful of employeesought to be dismissed,is untenable because change of the Recruitment Rules effecting service conditions is not a democraticprocesswhere the will ofthe majorityprevails;nor c£^^ . there be any place for ex post facto justificationfor an action which is fundamentallyflawed in law and procedure. The actions of the Governmenthaveto be governedby law and must have.the ^l.avour WP (C)No.7545of2011 ~ ~ Page 60 of64 v;! IL.iiJ ii iHifcyiiiiiiliMiiiiliaifiiELilMiiliiill. il iiiiiiiiEmiiiiri' of equity. The RecruitmentRules can be changed only by the procedureprescribedin law, which i& spelt out in the Conductof Business Rules,/as ' well .as the in extant•Recruitment Rules themselves. The. letter of August 1969, upon which the respondentsrely, for accordingexclusionto the BSF, CRPF, ITBP and CISF from the purviewof the UPSC need to examined. The letter observedthat "the posts in the Forces mentionedabove are not a charge on the Defence ServicesEstimates,though it should be argued that some of them involve duties "connected with defence".,The Commissionare, therefore, unable to accept the view that the posts in any ofthese Forcesshouldnot be treatedas civilposts for purposesofArticle320 ofthe ConstitutionofIndia. However,havingregardto the natureofdutiesto be performedby the CentralReservePoliceForce, the Indo-TibetanBorderForce and the Border Security Force, and the special conditions of sei^ice of persons belonging to these Forces, the Commission agree that the posts in the above Forces may be excludedfrom their purview on a permanentbasis under Regulation2 of the Union PublicServiceCommission(Exemptionfrom Consultation) Regulations, 1958. I am accordingly to request that formal amendments to the Schedule to the Regulations may kindly be notifiedin due course."" Evidently,the requisiteamendmenthas not been effected till date. Therefore, till such time that the amendmentcomes about,the extantSchedulewouldbe applicable. The opinionof the UPSC was for asituationinfuturo and would come into effectonly uponthe notificationofthe due amendments. WP (C) No.7545oflOlJ Page 61 of64 ./rl -.4

56.

¶57It is anothermatterthoughthat such amendmentsmay well entail challengesin law. The adviseofthe MinistryofLaw was brushed asideon the groundthatthe ITBPhad alreadybeen exemptedfrom the purviewofthe UPSC becausethe recruitmentinto the merged cadre was to be conducted through the UPSC itself, but oddly enough another very pertinentobjectionof the Ministry of Law that the proposalof the SSB regardingmerger of technicalposts which is also akin to the presentproposal,had not been decided due to objection of the UPSC, was not even addressed or responded to by the MHA. As held in S.L. Dutta & Ors. (supra), judges and lawyers can hardly be expected to have much laiowledge by reason of their training and experienceabout the highly technicaland scientifi<^^ nature concerningthe dischargeof duties by the personnelof the. five cadresofIIBPFsoughtto be merged. Therefore,a technical body such as the UPSC wouldhave bestexamineditor thereought to have been, at least, some discussionon record in this regard,: The respondentshave not shown any discussionor applicationof mind in this regard, in the originalfile. The procedurelaid-down-in the conduct of business rules has not been followednor halve the: RRs themselves been followed. Therefore, the action of thai. Government cannot be sustained. . The Court is neithercommentingupon nor adjudicatingupon th|^ wisdom of the Goveniment'sdecisionto merge the cadres. Such, actionof the Governmentwould fall in the realm of policymakingj' While it is not open for the courtto examinewhetherthe equation WP(C)No.7545of2011 Page 62 of64 k,1iL!j;i-illlliJii.

58.

¶59ofpostsmade by the CentralGovernmentis rightor wrong';there IS no such bar in examiningwhethermergerofcadres,which is a wholly differentresult, has been reached after followingthe due procedure.However,every policy makingprocessmust be based upon relevant materials and with due deliberation with' the requisite agencies/authoritiesconcerned. Any default in this processwouldresultin ill-informedand half-bakedpolicieswhich mturn would defeat the very objectiveof the policy. Hence, in publicinterest,suchflaws in decisionmakingneed to be reviewed. JudicialReview of poUcy decisionswould be permissibleto this extent. Accoidingly, the Court is only examining whether due processwas followedin suchdecisionmaking. We have seen the originalfile ofthe respondents. It is devoidof the consultativeprocessand silent on the vital issues concerning the efficacy of the Indo Tibetan Border Police Force as a ParainihtaryForce. Thereis no deliberationat all in thisregardlet alonesufficientdeliberation. From the precedingdiscussion,it is evident that the impugned Notification dated 26.11.2010 is premature, violative of the prescribedprocedurefor due consultationand in the face of the extantRecmitmentRules.TheNotificationis withoutthe approval of the MinistryofFinanceas well as ofthe UPSC. The approval ofthe MinistryofLaw was uponthe conditionthatthe approvalof the UPSC too wouldbe soughtin thisregard. The latterwas never sought.Thereforethe approvalofthe Ministryof Law cannot be neS""eom,harasl"ra.iA"r. v. CurnlrahamAuamK"lkur"i& Ors., AIR 1981 SC 199(1 WP (C) No. 7545 of2011 Page 63 of64 i-r

¶60/ I said to have come into effect. In the circumstances,the impugned Office Memorandum dated 26.11.2010"cannot be sustained and hence, it" is quashed, 'stiouldthe'respondentsdesireto pursuethe matter, it would always be open to them to have the proposaii^ examined by the Ministry of Finance as well as by the Ui SC before any fresh Notificationis issued purporting to amend the Recruitment Rules. The writpetitionsare accordinglyallowed. No orderas to costs. NAJMIWAZIRI, J. MAY 25, 2015 b'ne.sh KAILA^1'GAMBHJR,J. Vp (C)No.7545of2011 Page 6'': of6 "i.,! Hi . J.

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 25.05.2015 + WPrC^ No.596 of 2012 AMIT KUMAR GUPTA & ORS. Petitioners Through: Mr. P. Vinay Kumar, Adv. versus UNION OF INDIA & ANR. Respondents Through: Mr. SanjayJain,ASG with Mr. Amit Mahajan, Mr. Manish Mohan, Ms. Monika Arora, Mr. Rajesh Gogna, Mr. Vivek Goyal, CGSCs, Mr. Arnab & Mr. Abhishek Chaudhary, Advs. for the UOI. + WP(C^ No.4980 of 2012 DEVSHARMA . .....Petitioner Through: Ms. Jyoti Singh,Sr.Adv. Mr. Anlcur Chhibber, Mr. Sameer Sharma & Mr. Amandeep Joshi, Advs. j ' ' ' versus # INDO-TIBETANBORDERPOLICE& ANR. Respondents Through: Mi-. SanjayJain,ASG with Mr. Amit Mahajan, Mr. Manish Mohan, Ms. Monika Arora, Mr. Rajesh Gogna, Mr. VivekGoyal,CGSCs,Mr. Arnab & Mr. Abhishek Chaudhary, Advs. + WP(C) No.IlM of 2012 JITESHKUMARPOTFODE& ANR.. Petitioners Through: Mr. P. VinayKumar,Adv. versus WP (C) No.7345of2011 ^ A- UNION OF INDIA & ANR. Through: Respondents Mr. Sanjay Jain, ASG with Mr. Amit Mahajan, Mr. Manish Mohan, Ms. Monika Arora, Mr. Rajesh Gogna, Mr. Vivek Goyal, CGSCs, Mr. Arnab & Mr. Abhishek Chaudhary, Advs. for the UOI. + ANAND PRAKASH WP(C)No.2MZof2Q12 Petitioner Through: Ms. Jyoti Singh, Sr. Adv. Mr. Ankur Chhibber, Mr. Sameer Sharma & Mr. Amandeep Joshi, Advs. versus UNION OF INDIA & ORS. Through: Respondents Mr. Sanjay Jain, ASG with Mr. Amit Mahajan, Mr. Manish Mohan, • Ms. Monika Arbra, Mr. Rajesh Gogna, Mr. Vivek Goyal, CGSCs, Mr. Arnab & Mr. Abhishek Chaudhary, Advs. CORAM: HON'BLE MR. JUSTICE KAILASH GAMBHIR HON'BLE MR. JUSTICE NAJMI WAZIRI NAJMI WAZIRI. J. For orders see WP(C) No.7545/201L