2002 Supreme(Del) 1532

High Court Of Delhi
B.S.NARUKA - Appellant
Versus
UNION OF INDIA - Respondent
Civil Writ 1673 of 1992
Decided On : 09/27/2002

Headnote:Service Law - Seniority — Refixation — Inter-se seniority and direct recruitment of Assistant Commandant in BSF — Personnel of the Border Security Force deployed alter 1965 war used to be called as "frontiers" headed by Inspectors-General and Deputy Inspector-General — Direct recruitment started in the Force since 1966 in various frontiers — Respondents directed to consider the desirability of considering the cases of promotion of concerned persons — Merit and suitability of the concerned officer would be the primary test but seniority has also to be taken into consideration — No person found to be having exceptional qualification and fit for accelerated promotion by the competent authority in terms of Sub-rule (3) of Rule 115 — Petitioners are entitled to automatic promotion the same would lead to a situation which is not contemplated by the statutory rules — Seniority of the official in the rank of Assistant Commandant, Deputy Commandant and Second-in-Command would be required to be refixed — Such refixation of seniority would unsettle the settled position at the level of Assistant Commandant and Deputy Commandant which is wholly unwarranted — Border Security Force Rules, 1969, Rule 115(3).

       Held:

       Interpretation of statutory rules would depend upon the text and context thereof. For the afore-mentioned purpose the entire rules are to be read in their entirety and then Chapter by Chapter and then provision by provision. The said rules do not contemplated automatic promotion. Merit and suitability of the concerned officer would be the primary test but seniority has also to be taken into consideration.

       It is not disputed that in these cases no accelerated promotion has been grunted. No. person has been found to be having exceptional qualification and found fit by the competent authority for accelerated promotion in terms of Sub-rule (3) of Rule 115.

       It is also beyond any cavil of doubt that whereas Sub-Inspectors are under the control of the Deputy Inspector-Generals, the Inspectors are under the control of the Inspector-Generals. Rules 123 and 124 provide for maintenance of list of seniority of Sub-Inspectors and Inspectors as State-wise and Frontier-wise respectively. Even for the said purpose some organizations were to be treated as "State" and "Frontier". It is also not in dispute that undergoing the pre-promotion Course as specified in Rule 128 is mandatory for promotion. It may be that an employee has wrongly been denied entry in such Courses but thereforee an appropriate order could be passed, but that by itself, in our considered opinion, cannot he a ground for holding that all the Sub-Inspectors and Inspectors irrespective of their position and date of promotion and irrespective of the fact that as to whether they had undergone the requisite training for promotion would be entitled to promotion as a matter of right. The answer to the said question must be rendered in the negative.

       The rules do not say that automatic promotion would be granted upon completion of three years. Grant of promotion would not only depend upon the existence of vacancy but also on the intention of the Central Government to fill up the same.

       No employee has a right to obtain a writ of or in the nature of mandamus directing the respondents to promote him to a rank irrespective of the fact as to whether he may be found suitable on merit thereforee or not.

       At several stages of promotion not only the vacancy position is required to be considered but also the merit of the respective candidates are also required to be considered.

       Rule 136(6) itself is not a rule specifying as to how seniority is to be maintained. If such was the intention of the Central Government, there was absolutely no reason as to why the provisions like Rules 122, 123 and 124 had to be made which specifically deal with the subject of seniority.

       It is not correct to contend that Rules 123 and 124 are merely procedural in nature. The same, in our opinion, are substantive. Ex facie there appears to be a conflict but the same is not unexplainable. Sub-rule (6) of Rule 136 speaks of a gradiation list. Since gradiation list is to be prepared only in respect of Sub-Inspectors to be selected for list E and promotion from Sub-Inspector to Inspector. Such gradiation list is confined only to the persons appointed. The same, however, would not govern the seniority list which would vary from time to time having regard to the provision of accelerated promotion and supersession. Such a gradiation list is required to be maintained for the purpose of inclusion in list E. Promotion of a person at times may depend upon fortuitous circumstances but it is trite that nobody can, having regard to the specific rules of seniority, contend that despite the fact that seniority lists are required to be maintained State-wise and Frontier-wise, they can claim automatic promotion although no vacancy had arisen within a State of within a frontier.

       We, thereforee, with utmost respect to the learned Judges, are of the opinion that Babu Joseph and Puran Singh cases (supra) were decided in the facts of that case. In those judgments no law has been laid down nor any finding to the effect that the promotion would be automatic had been arrived at. Case of each person, thereforee, has to be considered separately. It is held that by reason of the said judgment to the effect that irrespective of merit the writ petitioners are entitled to automatic promotion the same would lead to a situation which is not contemplated by the statutory rules. By reason of such interpretation the seniority of the official in the rank of Assistant Commandant and Deputy Commandant and Second-in-Command would be required to be refixed. Such refutation of seniority would unsettle the settled position at the level of Assistant Commandant and Deputy Commandant which is wholly unwarranted.