Naresh Kumar v. Union of India & Ors

ORDER %

06.12.2018 SANJEEV NARULA, J

¶1The presentpetitionunder Article 226 of the Constitutionof India has been filed seeking a writ of mandamus, directing the Respondents to notionallyre-fixPetitioner'sseniorityby treatinghim appointedwith effect from the date his batch mates were appointed. The Petitioner also seeks consequentialbenefitsthat would accrue on accountofnotionalre-fixation ofseniority,especiallythe benefitofthe "oldpensionscheme".

¶2By way of a common order we have decidedW.P. (C) 6275/2016and W.P. (C) 6312/2016.The factual backgroundof the above noted cases is quite similarto the presentpetition. However, since the Respondentshave raised additionalgrounds opposingthis petition,we are passinga separate order. .WP(C)3860/2016 Page1of15 Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. « Factual Background

¶3StaffSelectionCommission(SSC) issued an advertisementfor selection of Assistant Commandant (Direct Entry) in Central Para Military Organizationby way ofthe SSB CPOs Examination2001. The Petitioner appliedfor the saidpost and was declaredqualifiedand allocatedto BSF for appointmentto the postofAssistantCommandant.

¶4The final result of the examinationwas published in the Employment News dated 18"' May 2002 and pursuant thereto the nodal force-Indo Tibetan Border Police (hereinafterreferred to as "ITBP") issued a letter dated 15'^ July 2002 to the District Authorityto obtain a character and antecedentverificationreport. The aforesaidrequirementis a prerequisite for appointmentof Group A' Officers.

¶5On l?"" September2002, after gettingthe allocationof candidatesfrom nodal force (ITBP), BSF issued an intimationletter dated 17th September, 2002to thePetitioner. The said letterstatesthatthePetitioner'sappointment is subjectto characterand antecedentsverification.The relevantportionof the letter is being reproducedas under: "consequentupon being found medically fit by a duly constituted medical board of SSB CPOs-2001, you have been placed at the disposal of BSF for appointment. However, your final appointment is subject to the satisfactorycompletionofverificationofyour character& antecedents,for which actionis beingtakenseparately"

¶6In the meantime,the basic trainingfor the Petitioner'sbatchmates,who had appeared in the. SSB CPO Examination-2001, commenced on 30^'^ WP(C)3860/2016 ^ L.' December 2002.

¶7Since the Petitioner's character and antecedent report was awaited, he was not allowed to commence basic training along with his batch. After a gap of nearly twenty four months, Petitioner received a letter of appointment directing him to report to BSF Academy, Tekanpur (Gwalior) on 30^^ January 2005.

¶8The Petitioner accordingly joined the service of the Respondents and commenced training along with Assistant Commandant Batch 29. Analysis

¶9The Court has heard Mr. Ankur Chhibber learned counsel appearing on behalf of the Petitioner and Mr. Arun Bhardwaj, CGSC on behalf of the Respondents.

¶10While deciding W.P.(C) No. 6275/2016 and W.P.(C) No.6312/2016 we have examined several decisions of this court relating to delay in appointment and have held that in case the appointment of a candidate is delayed for reasons attributable to the employer, he cannot be deprived of his seniority. In the present case also we note that there has been a delay of 24 months on account of failure on the part of the Respondents to obtain the verification report. The reasons for such delay are solely on account of Respondents' inaction. We need not delve on this issue again and it would suffice to hold that the reasoning recorded in the said order is applicable to the present case. For the sake of clarity, the relevant portion of the said order is reproduced here under;- Page3 of 15 "19. The facts of the present case thus unequivocally establish that it is the Respondents who are to be blamed for depriving the Petitioners from joining the services of the Respondent along with their batch mates who had been successful under the respective examinations. Petitioners are certainly not at fault. It is also undisputed that Petitioners are losing on their seniority, as they were unable to join the training with their batchmates. The factors for the delay discussed above are squarely attributable to Respondents.

¶20There are several other decisions of this Court, where the Petitioners who were similarly deprived of the opportunity tojoin with their batch mates for training, on account of delay in conducting Review Medical Examination, have been granted relief by this Court. It would thus be relevant to note few of such decisions being Avinasit Singh v Union of India 2011 SCC Online 2432, Gurnam Singh v Union of India (2015) 217 DLT 586 (DB), Rajendra Singh v Union of India 240 (2017) DLT 576, Durga Nandan Srivastava in W.P.

(C) No. 4348/2014, Amarendra Kumar v Union ofIndia 2010 SCC Online Del 2565 and Anjan Kumar Mandal VUnion ofIndia 2017 SCC Online Del 12028.

¶21We have considered the afore-noted judgments and note that this court has repeatedly held that in case the employerhas caused delay in thejoining of a candidate, the employeeshould not be deprivedofhis seniority. The facts of the present case are squarely covered by the aforesaid decisions of this Court as well as by the decision in Naveen Kumar Jha (supra). "

¶11In the presentcase, the learnedcounsel for the Respondentshas raised an additionalground to oppose the petition. He argued that in view of the decision of the Supreme Court in the case of Rohitash Kumar v Om \o Prakash Sharma 2013 1 SCC 451 the Petitioner is not entitled to the reliefs sought in the present petition. He further urged that Supreme Court in Rohitash Kumar (supra) has held that the seniorityof direct entry officers would be from the date of their appointment i.e. from the date of commencement of their training in BSF Academy in Gwalior, Madhya Pradesh. He submitted that the fixation of Petitioner's seniority along with his batch mates of the 28"' batch is not permissible. The learned counsel relied upon Section 141 of BSF Act, 1968 and submitted that separate recruitment rules for determination of seniority of BSF (General Duty Officers) have been framed. The Border Security Force (Seniority, Promotionand Superannuationof Officers)Rules, 1978 deal with seniority of Group 'A' (GD) Officers and the seniority has to be determined in accordancewith Rule 7 (3) Border SecurityForce (GeneralDuty Officers) Recruitment Rules, 2001.

¶12Beforewe proceedto decidethis issue, we feel it wouldbe worthwhile to first discuss the decision of this Court in W.P. (C) No. 19748/2005, / L./ decidedon 14th Febmary,2011, titledas DineshKumarDy. Commandant VUnion ofIndia. The facts ofthe said case are quite similarto the case in •J hand. Dinesh Kumar successfullyqualifiedthe examinationfor the post of Assistant Commandant on IS'"" September 1991. He was declared unfit during Medical Board Examinationheld on 4''^ December1992. He then made an applicationfor his fitness being reconsideredby constitutinga Review Medical Board (RMB). RMB met on 13^'^ July 1994 and declared Dinesh Kumar to be medically fit and thus he became eligible for appointmentto the post of AssistantCommandant. In the meantime,the WP(C)3860/2016 Page 5of15 \ w batchesof the AssistantCommandantwho had successfullyundergonethe training course were inducted on regularbasis as .AssistantCommandant. DineshKumar was made to join with the 18"^ batch (2"'' January1995) and givensenioritywith referenceto the date ofjoining.Sincehe was not given senioritywith referenceto 16'*^ batch,he made severalrepresentationsto the Respondents.Ultimately,his senioritywas re-fixedas per the meritposition in the examinationheld on 15"' January 1991. Dinesh Kumar was then constrainedto approachthe Courton accountofRespondentsdenialto give him consequentialbenefitsby re-fixinghis seniorityon the promotionalpost of DeputyCommandant. This Court allowedthe writ petitionand granted promotionwith consequentialbenefits,exceptback wages. The aforesaid decision was challengedby the Respondentsbefore the Supreme Court. However, the SLP was dismissed.

¶13Now, we proceed to note the judgment of the Supreme Court in RohitashKumar (supra). In the said case, the SupremeCourt was dealing with the interpretationofprovisoto Rule 3ofBSF Rules, in calculatingthe seniorityof direct recruitsselectedthroughthe same selectionprocess,but bifurcatedinto differentbatches(Batch 16 and Batch 17) for administrative reasons. The Respondentno. 1 therein, was a promotee and had joined trainingwith the 16thbatchi.e priorto the 17thbatch,but was placedbelow the 17th batch in the seniority list. The Supreme Court held that the languageof the rule is clear and senioritycarmotbe calculatedfrom adate prior to birth in a cadre. Hence, it was held that seniorityof the officials would be from the date of commencementoftraining,giving effectto the provisoto Rule 3. SupremeCourtfurtherheldthatthe saidprovisowillhave WP(C)3860/2016 Page6of15 J applicationonly in case officerswho have been selectedin pursuanceofthe same selection process are split into separate batches. In Rohitash Kumar (supra), the Supreme Court also noted the decision of Dinesh Kumar (supra)and differentiatedthe said decision,which is evidentfrom para 29 of the said judgment which reads as under: "29. Shri R. Venkataramani,learnedsenior counselfor the Appellants,has placedvery heavy relianceupon the judgment oj the Delhi High Court (Dinesh Kumar v. UOI and Ors.) dated 14.2.2011 wherein, certain relief was granted to the Petitioner therein, in view of thefact that there was some delayinjoiningtraining,in relation to passing the fitness test set by the Review Medical Board. The courtgranted relief in lightof thefacts and circumstancesof the case, withoutinterpretingRule 3 of the Rules 1978. Thus, the saidjudgment,infact, doesnot lay down any law. The case at hand is easily distinguishable from the above, as that was a case where seniority and promotion had been granted on a notional basis, with retrospective effect and it was held that the person to whom the same had been granted, was entitled to all consequential benefits."

¶14It is therefore interestingto note that the SupremeCourt did not interfere with the decisionof this Court in Dinesh Kumar (supra). In our opinion, this clearly indicates that the judgment of Supreme Court in Rohitash Kumar (supra) has to be understood and appreciated in the context of the facts of the said case.

¶15Recently,this Court in R.P. Sanwal v Union ofIndia 2018 SCC Online Del12582had the occasionto considera case involvingfixationofseniority in the post of Assistant Commandant (AC) of the BSF. In RP Sanwal (supra).Petitionerswere such officerswhose appointmentswere delayedon Page7of15 •d '•) J account of the fauh of the Respondents. Pursuant to representations, they had got their seniority re-fixed. Respondents relying on the decision of Rohitash Kumar (supra), proceeded to rectify their seniority from the date of joining/training. Such Officers challenged the decision of the Respondents. While deciding the petitions we had the occasion to deal with the subject in hand in detail. While dealing with rival contentions of the parties, the judgment of the Supreme Court in Rohitash Kumar (supra) was considered and discussed. We also noticed and obseh^ed that the decision in Dinesh Kumar (supra) has not been disturbed by the Supreme Court in Rohitash Kumar (supra). Dr. S. Muralidhar, J, writing for the Bench, after considering several judgments has observed that the underlying principle of Dinesh Kumar, Dy. Commandant v. Union of India still holds good. It would be apt to reproduce the relevant paras of the judgment rendered by this Bench in R.P. Sanwai (supra):- "27. Therefore, the Supreme Court was not prepared to disturb the judgment of this Court in Dinesh Kumar (supra) by observing that it was a case where "seniority and promotion had been granted at a notional basis with retrospective effect". Thefact of the matter, therefore, is that even according to the Supreme Court, as a result of its decision, the position as far as the decision in Dinesh Kumar (supra) is concerned, would not be ajfected.

¶28Interestingly, Mr. Dinesh Kumar was a 1991 officer like Mr. Singh. If Rohitash Kumar (supra) was intended to disturb their cases, then clearly the Supreme Court would have recorded its finding to that effect. However, the Supreme Court considered the case of Rohitash Kumar (supra) as an inter se dispute betweenpromotees and direct entrants and, therefore, declined to vary its order. It noted that this Court had granted relief in light Page8 of 15 of the facts and circumstances of the case without interpreting Rule 3 ofthe 1978 Rules and thus, was ofthe view that Dinesh Kumar (supra) had, in fact, not laid down any law.

¶29Interestingly, even in the order passed by this Court in the review petition filed in Dinesh Kumar (supra), this Court observed that the facts in Rohitash Kumar (supra) were distinguishable. The interpretation placed by the Division Bench of this Court of Rohitash Kumar (supra) and what the issue in Dinesh Kumar, (supra) was is j evident from a reading of the entire order dated 12th December 2014, which reads as under: "Review Pet. No. 524/2014

¶1The review petition is entirely misconceived. The decision of the Supreme Court pronounced on November 06, 2012 in CA No. 2133-2134/2004 on which the review is predicated is not applicable to thefacts of the instant case.

¶2Said decision holds that in view ofRule 3 of the BSF (Seniority, Promotion and Superannuation of Officers) Rules, 1978, the seniority of the directly recruited officers has not to be with respect to the merit position secured at the competitive ' ,J examination. The decision notes that as per the Rule, the final merit position is M>ith reference to the aggregate of the marks obtained at the competitive examination and at the induction course.

¶3Onfacts, in said decision, persons who took the competitive examination for appointment as an Assistant Commandant m BSF^could not join in the same year due to administrative exigencies. Character verification for some were received and for others it was not received. The result was that \H WP(.C) 3860/2016 some undenvent the training/induction course earlier and the remainder with the next batch. Officers who underwent training in the next batch wanted seniority to be determined on the basis of the aggregate of the marks obtained in the competitive examination and at the induction course. The department took the view that the prospective appointees at the competitive examination did not undergo training in the same batches and thus those who took training at the latter batch would rank junior to those who underwent training in the earlier batch. The Supreme Court accepted the view taken by the department.

¶4In the instant case the issue was not that of seniority. The writ petition undertook the competitive examination but his appointment as an Assistant Commandant got delayed due to late convening of a review medical board by BSF. Realizing this, BSF itself granted seniority to the appellant as an Assistant Commandant with reference to his merit position at the competitive examination held on September 15, 1991.

¶5There was no issue on said account.

¶6The issue which arose was when promotion to the post of Deputy Commandant became due. As per the service rule, sixyears service in the grade of Assistant Commandant was the eligibility condition. The juniors who had been inducted earlier rendered six years service and thus were being considered for promotion as Deputy Commandant. The Petitioner relied upon para

3.1.2 of the Office Memorandumdated March 25, 1996, relevant portion whereof has been noted in paragraph 15 of the decision dated February 14, 2011. As per the same, if juniors had become eligible for being considered for promotion. Page 10 of15 eligibilitynormfor the senior officerhad to be half the number ofyears ofservice otherwise required.

¶7The writ petition which was decided by us interpreted the Office Memorandum in question and its effect. The petitioner had rendered three years and six months service as an Assistant Commandant. This was more than half the eligibilityservice ofsix years. Admittedly,persons junior to thepetitioner had rendered more than six years ofservice and had become eligiblefor being considered to be promoted as an Assistant Commandant. In said fact, applying para 3.1.2 of \J the Office Memorandum dated March 25, 1996, relief was granted to the petitioner.

¶8The review petition is dismissed.

¶9No costs."

¶30In one sense, the order passed in the review petition in Dinesh Kumar (supra) on 12th December 2014 is consistent with what the Supreme Court itself observed as regards the decision of this Court in Dinesh Kumar (supra) in its decision dated 6th November 2012 in Rohitash Kumar (supra)."

¶16In view of the above discussion, we are of the opinion that Rohitash Kumar (supra) would not come in the way of the Petitionerto seek re-fixation cf his seniority. The Petitionerin the present case is seeking re-fixation of his seniority with his batch mates of SSC CPOs 2001 Examination. The Court is thus being calledupon to issue directionsto the Respondentsto notionallyre-fixthe seniority,on accountofreasonsthat are solely attributable to the Respondents. On IV"" September 2002, the Petitioner was informed that he was selected. It took nearly two years for the Page 11 of15 \ Respondents to carry out the verificationof character and antecedents. Respondents concedcdly delayed Petitioner's appointment. This is also evident from the counter affidavit, the relevant portion whereof is as under: "12. That in reply to Para 1 of WP it is submitted that contents of Para are wrong and denied save and except which are matter of record. It is further submitted that as per instructions issued by GOI(MHA) regarding Character and antecedents verification issued vide OM No. 20/28/45-listt(s) dated Feb 1947 (A true copy of OM dated 07.02.1947 is annexed herewith as Annexure-R-1), "Before a person is appointed his Character & Antecedent must be verified through the DM or Dy Commissioner of the district or locality in which he is permanently resident". Accordingly, nodal force ITBP approached to District Authorities of Sikar, Jaipur & Bikaner, as mentioned by the petitioner in verification roll, to obtain Character and antecedent reports vide letter No. 2027 dated 15"' July 2002 (A true copy of letter dated 15.07.2002 is annexed herewith as Annexure-R-2). However, the verification report from Bikaner District Authority was not received till commencementof Basic trainingofAC(D10BatchSri.-28(i.e. 30^'^Dec 2002).

¶13However, reminder letters to District Authority Bikaner vide letter dated 28.08.2002 & 04.10.2002 (A true copy of letters dated 28.08.2002& 04.10.2002are annexed herewith as Annexure-R-3&4, respectively) were also issued to District Authority Bikaner but the DistrictAuthorityBikanerissuedthe same vide letterNo. 296 dated 20/01/2003 (A true copy of letter dated 20/01/2003 is annexed as Annexure-R-5) which was received by respondent authorities after commencement of BRT of AC (DK) batch Sri.- 28. Further,on receiptof CVRs from Bikaner District Authority, offer of appointment was issued to the petitioner to undergo trainingwith next batch of AC(DE) i.e. AC(DE) Batch Page 12 of15 IS Sri.-29 and was advised to report BSF Academy Tekanpur (Gwalior) on 31 Jan 2005."

¶17On account of the aforesaid delay, Petitioner could join only on 31'^ January 2005 and he commenced his basic training on the said date. Such a gross delay cannot be countenanced. The ratio of Naveen Kumar Jha (supra) would be attracted to the facts of the present case. The aforesaid decision is based on sound reasoning and judicial precedents. The Respondents' contention that the said judgment is not applicable is without merit.

¶18We would also like to note the judgment ofAvinash Singh v Union of India 2011 SCC OnLinc Del 2432. In the said case. Petitioners were applying for recruitment to the post of Assistant Commandant in Central Police Forces and the process was completed somewhere in the month of June, 2004. They were then subject to a medical examination and a subsequentreview medical examinationon 14"^ October, 2004. However, - , the persons who had been declared fit in the first medical examination joined ITBP as AssistantCommandanton 2"'' November,2004, while the appointmentprocess of the Petitionergot delayed till 8'*^ August, 2005, on which date they got appointed as Assistant Commandant. This Court held that the Petitioners were entitled to re-fixation of their seniority. The relevant portions of the judgment are reproduced as under: "17. It is settled law that if appointment is by selection, WP(C)5400/2010 Page 5 of 6 seniority of the entire batch has to be reckoned with respect to the merit position obtained in the selection and not on the fortuitous circumstance on the date on which a person is -J made to join. . 18. We highlight in the instant case the fortuitous circumstanceof the petitionersbeing made to join as AssistantCommandanton 08.08.2005is not the result of anythingcreated by the petitionersbut is a result ofa supine indifferenceand negligence on the part of the ITBP officials."

¶19Similarly, in Anjan Kumar Mandal v. Union Of India 2017 SCC OnlineDel 12028,this Courtwas dealingwith a similarfact scenarioas in the present case, in respect of CRPF officials.It was held therein that in view ofthe undisputedpositionthatthe Petitioner'sappointment/joiningwas delayed due to failure on the part of the Respondents in obtaining the VerificationReportin atimelymanner,the Petitioneris justifiedin claiming his seniorityat par with his batchmates.Thejudgmentofthe SupremeCourt in RohitashKumar(supra)was also distinguishedas beingnot applicableto the facts therein.

¶20The Respondentshave also relied upon the judgmentof this Court in W.P.(C)6525/2016dated 11'^ September2017 in V. Ramamurthyv. Union ofIndia. The saidjudgmentpertainsto cut-offdate for the applicabilityof the oldpensionschemeand is not relevant.

¶21In view of the afore-goingdiscussion,we hold that the Petitioneris entitledto have his senioritynotionallyre-fixedatpar with his batch mates who had beenappointedas AssistantCommandantsin 2003. We issueawrit of mandamus to the Respondents directing them to notionally re-fix Petitioner'sseniority(in accordancewith his meritposition)with those who havejoinedBSF pursuantto SSB CPO Examination-2001.Petitionershall WP(C)3860/2016 Page 14 of15 !•) also be entitled to all consequential benefits except for back wages.

¶22The writ petition is allowed with no order as to costs. \ decembp:r 06,2018 nk SANJERV NARULA, J S.MURALIDHAR, J

$-21 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 3860/2017 NARESH KUMAR Petitioner Through; Mr. Ankur Chhibber, Advocate. versus UNION OF INDIA & ORS Respondents Through: Mr. Arun Bhardwaj, CGSC with Mr. Nikhil Bhardwaj, Advocate. CORAM: JUSTICE S.MURALIDHAR JUSTICE SANJEEV NARULA