Upendra Rawat v. Union of India and Ors

O R D E R %

18.12.2019

¶1In brief, the case of the Petitioner is he was appointed as Assistant Commandant on 6th August, 2001 with Sashastra Seema Bal ("SSB"). On 13th May, 2005 he was transferred to 7th Bn. Bahraich. Thereafter, he was transferred to SSB Academy Srinagar vide order dated 1st August, 2006. On 16th June, 2007, Petitioner was promoted as Deputy Commandant. Then on 29th July, 2009 he was transferred to 17th Bn. of SSB at Bhairabhakunda where he joined on 22nd September, 2009.

¶2The recruitment rules of SSB were notified on 17th June, 2013. In terms of the said rules, for the promotion of the Commandant following requirements are to be met: a. 5 years regular service as second-in-command in Pay band 3 of Rs. 15600-39100 plus grade pay Rs. 7600, with,

b. 15 years of group A service out of which at least two years in duty battalion as a rank of second-in-command.

c. promotional courses prescribed by Director General, Sashastra Seema Bal from time to time.

d. having SHAPE I medical category."

¶3The Petitioner was promoted to the rank of Second-in-Command (General Duty) [2IC (GD)] against the vacancy year 2013-14 vide order dated 13th November, 2013. On 9th January, 2014 Petitioner was selected for deployment to U.N. Mission in South Sudan and in pursuance to the said order he was relieved from his present duty to join the U.N. Mission. After completion of the U.N. Mission vide order dated 27th February, 2015, Petitioner was posted at Force Headquarter (FHQ), New Delhi, where he had already reported on 13th February, 2015.

¶4On 5th January, 2017 an O.M. was issued by D.G., SSB to the effect that no person should be posted to an establishment where duty would not be counted towards service in a field unit, except in exceptional cases after due approval from the DG, SSB. The Sports Director of SSB approved the posting of

Petitioner as Coach with SSB Athletic Team 25th Bn., SSB Ghitorni vide office note dated 20th February, 2017.

¶5The O.M. dated 5th January, 2017 also noted that duties performed as players/coaches/trainers are to be counted as Field service in the unit for the purpose of promotion. In view of this, on 17th November, 2017, DG, SSB granted relaxation in Mandatory Field Service ("MFS") to Petitioner for a period of eleven months & seven days to complete two years of MFS as required under the Recruitment Rules for his next promotion as Commandant. It is pertinent to mention here that deployment to the U.N. Mission is also counted as field service.

¶6The Petitioner completed 13th MCM course at SSB Academy, Bhopal on 18th September, 2018. As per his medical examination dated 12th October, 2018, Petitioner was shown in SHAPE-I category. Although Petitioner has not mentioned this fact but it is clear from the counter affidavit filed by the Respondents that on 13th February, 2018, the Petitioner had requested for his transfer to duty unit but on 8th March, 2018 the Annual Transfer Committee recommended his continuation at FHQ for one more year.

¶7Petitioner further states that on 12th October, 2018 he was transferred to 65th Bn. Bettiah from FHQ, where he joined on 21st October, 2018. The DG, SSB issued a letter dated 21st October, 2018 to Assistant Director, FHQ, SSB informing that a period of one year, seven months and 25 days rendered by

Petitioner as coach of the sports team be counted as MFS for the purpose of promotion in terms of O.M. dated 5th January, 2017. The DPC held its meeting on 10th January, 2019 for recommending the candidates for the post of Commandants and accordingly DG, SSB issued promotion order to the effect that ten 2ICs be promoted as Commandant on recommendation of the DPC, out of which candidates mentioned at Sl. No. 7 to 10 were junior to the Petitioner. So, the Petitioner submitted a representation dated 29th January, 2019 against denial for promotion to him. No response was received. Being aggrieved of the action of the Respondent, the Petitioner has filed the present writ petition.

¶8Notice was issued. Counter affidavit has been filed. Although factual submissions made by the Petitioner were more or less admitted by the Respondents but in addition thereto, it has been mentioned that on 19th November, 2018, the DPC met for promoting the candidates to the post of Commandants in the year 2019 but it did not agree with the MFS relaxation given to the Petitioner, so it was recommended to promote him subject to completion of eleven months and seven days of MFS duties in duty battalion. This proposal was sent to Ministry of Home Affairs ("MHA") on which MHA observed vide note dated 27th November, 2018 that no such procedure exists to promote a candidate in advance and thereafter he be called to complete the MFS. In view of the said note, a fresh DPC was convened on 10th January, 2019 but it did not find the Petitioner eligible for promotion due to non-completion of MFS and the list of proposed Commandants was approved by MHA on 29th January, 2019. The representation of the Petitioner for

reconsideration of promotion list was rejected by Respondents on 1st May, 2019.

¶9We have heard Mr. Amit Kumar Singh, learned counsel for Petitioner as well as Mr. P. S. Singh, Senior Panel Counsel for the Respondents.

¶10The main point of consideration in the present petition is the exemption granted to the Petitioner in MFS. The genesis of the entire matter is a notification of Government of India, Ministry of Home Affairs dated 2nd June, 2012, which is reproduced hereunder:

"Government of India

Ministry of Home Affairs

Police-II Division (Pers.-II) Subject: Grant of relaxation in condition of 2/3 years Mandatory Field Service (MFS) in a duty Bn. to become eligible for next rank promotion in respect of Executive personnel of Central Armed Police Forces (CAPFs) & Assam Rifles (ARs) – Guidelines regarding.

The existing Recruitment Rules of various CAPFs & ARs provide for 2 to 3 years of Mandatory Field Service (MFS) i.e. service to be rendered in a duty Battalion, to be completed by the Executive (General Duty) personnel of various ranks to become eligible for promotion to the next higher rank.

¶2Some Force personnel, who did not complete the said eligibility conditions, as provided under the Recruitment Rules

(RRs) and resultantly could not be promoted to next rank, have approached the various Courts of Law for relief in relaxation to the conditions prescribed in the RRs. In some of the judgments

passed in such cases, the Hon"ble Court(s) have directed the respondents (MHA/CAPF concerned), to give promotion to the petitioners along with all consequential benefits, except the back wages, without insisting for completion of MFS. In this regard, the orders of the Hon"ble Supreme Court of India by filing SLP No..../2012 CC No.2919/2012. However, the Hon"ble Apex Court was pleased to dismiss the SLP.

¶3Recently in another such case {WP (C) No. 8046/2011 SI/GD Ghaman Singh Vs UOI} the Hon"ble High Court of Delhi has observed and directed as under:

"Once a matter has been decided by the Apex Court, all the similarly placed persons should be granted the relief in a uniform manner without compelling the members of the Force to go before the Court further directing that in case such frivolous matters are brought before the Court, they will be disposed of with very heavy cost which may have to be recovered from the senior officers responsible for not curbing the litigation. The Court has given 4 weeks time from

28.03.2012 to take a decision on the issue to allow promotion without insisting on 2 years mandatory field service."

¶4The matter has been examined and it has been found that such problem of not completing the MFS which is an operational requirement of the Force and also provided under the RRs to become eligible for next promotions pertains to less than 2% of the total Force personnel which means about 98% personnel are being promoted in conformity of the RRs after completion of the MFS. Even these 2% personnel are not able to complete the required MFS:

(i) Either due to exigency of their services for the Force concerned in the interest of the Force; or

(ii) Due to their own personal reasons such as health, family problems, social commitments, education/marriage of children etc. While some Force personnel are posted/attached to static offices due to the administrative requirements of the Force concerned/MHA, there is another category of personnel who express their unwillingness for being posted to a field unit or in the Ops areas citing different personal reasons as mentioned above and as a result get posted/attached to static offices/offices knowing fully well that the service rendered by them does not counted towards MFS as provided under RRs. Besides this, certain Force personnel are not able to complete the MFS owing to their Medical Shape category.

¶5It has been decided that since MFS is the operational requirement for the Force to hold higher responsibilities, doing away with the requirement of MFS from the Recruitments Rules itself will adversely affect the operational efficiency and functional effectiveness of these CAPFs & ARs. Therefore, all such cases wherein the CAPFs & ARs personnel concerned, has not completed the MFS, while his name is being considered for promotion to the next rank, the waiver/ relaxation of such eligibility condition should be considered by the CAPFs/MHA objectively and sympathetically. CAPFs & ARs may follow the following guidelines while considering such waiver/relaxation of the MFS condition prescribed in the RRs:

(i) Those CAPFs & ARs personnel who could not be posted to Duty Battalion due to exigency/requirements of CAPFs in the interest of the work of the Force or due to other technical reasons/grounds, cases of such CAPFs & ARs personnel will be duly considered by the DG of the CAPF concerned, for granting waiver/relaxation in the Mandatory Field Service.

(ii) As regards the CAPFs & ARs personnel who have not completed the MFS owing to their own request for being posted in static postings/offices where service rendered by them is not counted towards MFS or wherever such personnel have expressed their unwillingness for posting to field units/ops areas and get posted/attached, on their own volition, to static offices, their cases will not be considered for granting relaxation in MFS.

(iii) While posting such CAPFs & ARs personnel to the static postings, the CAPF concerned may inform the Force personnel concerned regarding the consequences of such postings with regard to their not meeting the eligibility criteria for next promotion as per RRs. While posting personnel to any of such static postings, it may be categorically intimated to the personnel that his tenure will not be counted towards Mandatory Field Service and no representation will be entertained for claiming promotion to next rank in relaxation to the prescribed MFS. Therefore, such personnel shall not be considered for promotion by the DPCs till they complete the requisite Mandatory Field Service as laid down in the Recruitment Rules. In case of such personnel, who have been left out by DPC, due to his being declared UNFIT by the DPC for not completing MFS, his seniority will depreciate and he would be considered by the subsequent DPCs for next vacancy year.

(iv) The Force personnel who are not able to complete the MFS owing to their poor Medical shape category shall also not be considered for waiver of MFS criteria. However, in respect of personnel in poor Medical Shape Category due to injury sustained by him attributable to active Govt. duty, the requirement of Mandatory Field Service will be relaxed by DG of CAPF concerned to treat certain low medical category at par with Shape-I medical category for the purpose of promotion.

(v) A certificate with reasons recorded in writing for the waiver/relaxation in requirement of Mandatory Field Service, wherever given, will be placed in the ACR dossier of the personnel concerned.

(vi) The Sector-wise, Frontier-wise/Group Centre-wise static postings, as applicable, which are not to be counted towards the MFS will be determined and notified by the DG concerned from time to time.

¶6The guidelines will have prospective effect."

¶11On the strength of this notification, the Director General of SSB had issued an O.M. dated 5th January, 2017 granting relaxation in MFS for becoming eligible for next promotion in respect of General Duty Cadre Officers. The said O.M. is reproduced herein: "Government of India Ministry of Home Affairs Director General, Sashastra Seema bal East Block-V, R. K. Puram, New Delhi – 110066

No. 9/21/2016/SSB/PERS.I (B)/85-200 dated 05.01.2017

OFFICE MEMORANDUM Subject: Regarding grant of relaxation in condition of two years Mandatory Field Service (MFS) in a duty Bn. to become eligible for next rank promotion in respect of General Duty Cadre Officers. It is to inform that as per Recruitment Rules in Sashastra Seema Bal for the post of Commandant, Second-in-Command. Deputy Commandant and Assistant Commandant, 02 years mandatory field service in the duty Bn. has been prescribed for their promotion to the next higher rank i.e. Commandant to DIG,

Second-in-Commandant to Commandant, Deputy Commandant to Second-in-Command and Assistant Commandant to Deputy Commandant.

In this regard, based on the guidelines issued by the MHA vide their UO No. I-45020/7/2012-Pers-II dated 02/06/2012 following instructions is hereby issued for compliance/implementation:

(a) In ordinary course, no person should be posted to an establishment whereby duty is not counted as service in a field Unit till he complete required service in a field Unit. However, in exceptional cases where services of a person is essentially required in the interest of the work of Force or due to other technical reasons/grounds, in a establishment where duty is not counted towards service in a field Unit approval of DG, SSB may be obtained before they are posted in such static establishments. This may be exclusively mentioned in their transfer order that their posting to such static establishment in the interest of the work of the Force.

(b) The officer who is not able to complete the MFS owing to their past medical category shall also not be considered for waiver/relaxation in MFS criteria. However, in respect of officer in poor medical shape category due to injury sustained by them attributable to active Go duty the requirement of MFS can be relaxed by DG, SSB to treat certain Low Category at par with SHAPE-I for the purpose of promotion.

(c) The service rendered in the following establishment of SSB will be counted as field service in a unit for the purpose of promotion.

¶1All SSB Bns.

¶2SHQ (Spl Ops), Srinagar/Bhilai/Gaya/Jammu.

¶3NSG/SPG/NDRF.

¶4Deployment with UN peace keeping mission.

¶5Those officers who are engaged with various central sports team of SSB as Players/Coaches/Trainers.

¶6Those officers recruited in BDDS/Dog squad irrespective place of posting and deployment.

This has the approval of Director General, SSB."

¶12Relying on this O.M., an office order was issued on 17th November, 2017 granting relaxation in MFS to the Petitioner for eleven months and seven days to complete period of two years" field service as required under Recruitment Rules to the post of Commandant. The said office order is reproduced hereunder: "Government of India Ministry of Home Affairs Director General, Sashastra Seema Bal, East Block-V, R.K. Puram, New Delhi-110066. Dated 17th Nov. 2017. No.9/3/2017/SSB/Pers.-II(B)/10914-16 OFFICE ORDER In terms of MHA UO No. 1-45020/7/2012-Pers-II dated 2nd June-2012, Director General SSB is pleased to accord relaxation in Mandatory Field Service (MFS) for a period of 11 months 07 days to complete 02 years as required in the Recruitment Rules of the post of Commandant to Shri Upendra Rawat, Second-In-Command Force Hqrs, SSB, New Delhi who was engaged at FHQ in duties in the interest of the Force/nation to consider him for promotion to the rank of Commandant. Sd/-14-11-17 Assistant Director (Pers-I)

Distribution:

¶1The Assistant Director (Pers-IV), Force Hqrs, SSB, New Delhi for pasting in the APAR folder of the officer.

¶2The Section Officer (Pers-I(A), Force Hqrs, SSB, New Delhi.

¶3Office order folder."

¶13On the basis of this office order, the case of the Petitioner was put up before the DPC held on 19th November, 2018 for promotion to the post of Commandant. However, as per the counter affidavit filed by the Respondents, the following had happened in the said DPC: "That one of the members of the DPC did not agree with the conditions, as per which MFS was treated as complete, as required in the RRs."

¶14It further transpired that the recommendations of promotion were sent to the Ministry of Home Affairs for approval wherein name of the Petitioner was shown at No.7 alongwith comments as under: Sl. No. Name of Officer (S/Shri) Assessment Remarks

¶7Upendra Rawat FIT Subject to completion of 11 months 7 days mandatory field service in duty Bn. since the DPC is not agree with the relaxation granted vide order dated

17.11.2017.

¶15After consideration of the comments, response of the Home Ministry is as under: "5. According to above assessment, the DPC has recommended promotion in respect of 11 Second-in-Commands to the rank of Commandant for the vacancy year 2019. As regards the case of Shri Upendra Rawat (Sl. No. 7) the DPC has stated at para-6 of the minutes that DPC consider that although the relaxation has been granted in his case, but it will not be prudent and appropriate to grant such exemptions at senior level and setting precedence. Therefore, the DPC has recommended his promotion after completion of 11 months 07 days field service in duty Bn.

6 As per RRs, at least 02 years field service in the rank of Second-in-Command in a duty battalion is mandatory for promotion to the rank of Commandant. Shri Upendra Rawat is short of 11 months 07 days field service against the requirement of 02 years field service. As per this Ministry"s U. O. dated

02.06.2012 (Pg.-41-45/c), those CAPFs personnel who could not be posted to Duty Bn due to exigency/requirements of CAPFs in the interest of the work of the Force or due to other technical reasons/grounds, cases of such personnel will be duly considered by the DG of the CAPFs concerned for granting waiver/relaxation in the Mandatory Field Service. As per SSB"s order dated 17.11.2017 (Pg.-4/c), relaxation in mandatory field service for 11 months 07 days was granted to him. However, the DPC has recommended his promotion after completion of 11 months 07 days field service in duty Bn.

¶7It is observed that the recommendation of the DPC in respect of Shri Upendra Rawat for his promotion to the rank of Commandant subject to completion of 11 months 07 days mandatory field service in duty Bn is not in order as

no such procedure is existing. If the relaxation/exemption granted to Shri Upendra Rawat is found to be appropriate, the same is required to be cancelled and consider him for promotion after completion of mandatory field service as per RRs.

¶8In view of above, it is for orders whether we may request SSB to rectify the mistakes and re-submit the proposal to this Ministry for obtaining approval, of the competent authority."

¶16In para 7 quoted above, it has been specifically mentioned that if the DPC was not satisfied with the relaxation/exemption in MFS granted to the Petitioner for 11 months and 7 days then the same was required to be cancelled and he was to be considered after mandatory field service as per RR. The entire counter affidavit as well as the documents enclosed with the said counter affidavit nowhere state that the MFS granted to the Petitioner was held to be not appropriate or the same was ever recalled or cancelled.

¶17It means, the MFS exemption certificate issued by the Director General to the Petitioner is in order. Once the said certificate has not been recalled till date, there was no occasion for DPC/Review DPC to ignore the said MFS exemption certificate and no member of the DPC had any authority to make vague comments in this regard that it was not prudent and appropriate to grant such exemption at senior level and setting precedence. It appears that the said member of the DPC was either not aware of the directions issued by the MHA dated 02nd June, 2012 or the O.M. issued by the Director General, SSB dated 5th January, 2017 under which the said exemption was granted. It also appears that opinion of the said member of the DPC is directly in the teeth of the directions

of MHA as well as O.M. dated 5th January, 2017 issued by the DG, SSB and both of these directions/orders are still in force having not been withdrawn or modified.

¶18It is worthwhile to note that the next DPC was held on 10th January, 2019 and the observations of this DPC in respect of the Petitioner are as under: Sl.No. Name of 21C S/Shri Date of Appointment as AC GD Date of promotion as Second-in Commandant

(GD) Date of completion of 15 years Group "A" Service Date of completion of 5 years service as 21C (GD) Whether promotional course

(MCMC) qualified or not Whether 02 years MFS in duty Bn. Completed or not

¶7Upendra Rawat

16.08.2001

13.11.2013

15.08.2016

12.11.2018 Yes Not completed

¶19It is unfortunate that even in the second DPC no decision has been taken regarding the validity of MFS certificate granted to the Petitioner in compliance of the directions of MHA dated 02nd June, 2012 and O.M. dated 5th January, 2017 issued by the DG, SSB. Accordingly, DPC had recommended names of 11 other 2ICs, except the present Petitioner, who were being appointed as the Commandants. The recommendations of this DPC were processed by MHA on 25th January, 2019 and accordingly the same were approved by Hon"ble Home Minister and implemented and a notification dated 1st February, 2019 was issued appointing 10 officers as Commandants, many of whom were junior to present Petitioner. The 11th candidate was also promoted on 20th March, 2019 as Commandant.

¶20It is pertinent to note that the Petitioner was detained in the FHQ against his own wishes. On 13th February, 2018, the Petitioner had submitted a request to transfer him to a field Unit, preferably in Ranchi so that he might be able to guide the team under him and Ranchi had got good infrastructure for sports. He had given the choice of Units which were either in Ranchi or in nearby areas so that he might be posted in an active Unit and was able to obtain the field experience apart from contributing for the welfare of the sports in SSB. Strangely, this request was declined by Annual Transfer Committee ("ATC"), which met on 8th March, 2018, for the reasons best known to the officials who participated in the said committee meeting and he was ordered to be retained in the Headquarter for one more year. It is to be noted that when the second DPC had met in January, 2019, the deficiency in MFS of the Petitioner was only to the tune of 8 months and 25 days as on 1st January, 2019. If the ATC had heeded to the request of Petitioner to be posted in field unit and the Petitioner was transferred to the field Unit in March, 2018, he would have completed the remaining period of MFS of 8 months and 25 days by 1st January, 2019 and he would have been eligible for his promotion as Commandant even ignoring the MFS exemption granted to him.

¶21On the one hand, the Petitioner was being retained in FHQ against his own will so that he was able to guide the athletic team of the SSB which had performed very well in the competitions and on the other hand in spite of being there clear directions issued by the MHA and an OM issued by DG, SSB respectively, to treat the period spent in the field of sports as field duty, the same was not treated as such by first DPC on 19th November, 2018 and second

DPC on 10th January, 2019 for the reasons best known to the respective members of DPCs. Apart from this, the rejection of request of Petitioner to be transferred to field Unit, which was put up before Annual Transfer Committee in March, 2018, has done a great injustice to the Petitioner and he has been denied his promotion only because of the reason that he had not completed his MFS and was falling short of the same by 8 months 25 days on 1st January, 2019.

¶22We have noticed that this grave injustice has been done to the Petitioner by Respondents by violating all the established norms and specifically it is in violation of the direction of MHA dated 02nd June, 2012 and the O.M. dated 5th January, 2017 issued by DG, SSB and specifically against the office order dated 17th November, 2017 by which relaxation in MFS for a period of 11 months and 7 days was granted to the Petitioner and this office order was not considered by members of both DPCs for the reasons best known to them but not articulated in any of the minutes of the said committee meetings.

¶23The second DPC has also gone against the observations of Ministry of Home Affairs quoted in para 13 above, wherein in para 7 (quoted) it was impressed upon that if the exemption in MFS granted to the Petitioner is not appropriate then the same be cancelled. Till date the exemption granted to the Petitioner in MFS for 11 months 7 days is considered to be in order and both DPC have committed a grave irregularity in not promoting him on time and his seniority has been affected. Petitioner"s career has been adversely affected by this illogical and unjustified decision of both the DPCs.

¶24Keeping this in view, it is hereby ordered that a review DPC be conducted for promotions for the year 2019 and case of the Petitioner be considered on merits and office order dated 17th November, 2017 issued regarding relaxation in MFS for a period of 11 months and 7 days be considered as legal and valid and in view of the same, the remaining period of 8 months and 25 days in completion of two years of Mandatory Field Service be treated as fulfilled and the said review DPC shall consider other qualifications and mandatory requirements and take a decision regarding promotion of the Petitioner with effect from the date when his juniors were promoted.

¶25This exercise of convening the DPC and taking a decision be completed within six weeks from today and consequent orders be issued within two weeks thereafter. If DPC decides to promote him, the earlier seniority of the Petitioner be restored and he be placed above his juniors, who were promoted on the basis of recommendation of DPC dated 10th January, 2019. Consequent orders regarding payment of arrears of pay and allowances be also passed.

¶26The writ petition is allowed in the above terms.

S. MURALIDHAR, J

TALWANT SINGH, J DECEMBER 18, 2019 mr

* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 4567/2019 UPENDRA RAWAT ..... Petitioner Through: Mr. Amit Kumar Singh, Advocate. versus UNION OF INDIA AND ORS. ..... Respondents Through: Mr. P. S. Singh, Senior Panel Counsel for UOI with Mr. Annu Singh, GP. CORAM: JUSTICE S. MURALIDHAR JUSTICE TALWANT SINGH