The main legal point established in the judgment is that seniority should be determined according to the date of continuous appointment in that rank and with reference to the merit position in the select list of batch-mates.

Kailash Gambhir, J.

1. The present writ petition has been filed under Articles 226 and 227 of the Constitution of India for fixation of his seniority on the post of Assistant Commandant in SC category from the date of his selection along with his batch-mates of Batch No. 26 and not with AC/DE at Sr. No. 29.

2. The case of the petitioner in brief is that he was selected for appointment to the post of Assistant Commandant (Direct Entry) in BSF through SSB CPOs AC Examination, 1999 and had successfully undergone the written examination, physical efficiency test and interview conducted by the Special Selection Board and was declared successful for appointment to the said post. After having qualified the said tests, he was required to qualify the medical test in which he was found to be medically unfit on 21.12.1999 as he failed to fulfill the chest requirement criterion. Through a letter dated 19.04.2000, the respondents informed the petitioner about his results and further intimated him that if he so desired, he may file an appeal for the review of his medical examination. The petitioner preferred an appeal against the order of the respondents declaring him to be medically unfit, supporting his case by the medical certificate dated 02.05.2000 duly issued by the Government Civil Surgeon, Yamuna Nagar, Haryana but the respondents failed to take a decision to constitute a Review Medical Board for his medical re-examination. Under such circumstances, he filed a Civil Writ Petition No. 12398/2002, titled Gurnam Singh v. Union of India & Ors. before the Punjab & Haryana High Court and the said writ petition was disposed off vide order dated 09.08.2002, with the observation that the respondents were expected to respond to the petitioner’s appeal, accompanied by the certificate (Annexure P-1) within a period of two months from the date when the certified copy of the order therein was brought to their notice. The respondents did not comply with the aforesaid direction given by the Punjab & Haryana High Court in a time bound manner which led the petitioner to move a Civil Miscellaneous Application bearing CM APPL. No. 3231/2003 in the said Writ Petition before the High Court but during the pendency of this application, he was required to appear before the Review Medical Board on 19.02.2003 wherein he was declared to be medically fit. Thereafter, he was issued an appointment letter dated 29.03.2005 for the post of Assistant Commandant (Direct Entry) and was directed to report to the BSF Academy on 31.01.2005 for undertaking the basic training course. The petitioner underwent training for the AC (DE) course which commenced w.e.f. 07.02.2005 and thereafter, his seniority was fixed above the candidates of AC (DE) course at Sr. No. 29. The petitioner being aggrieved claims that his seniority should be fixed along with his batch-mates of AC (DE) course at Sr. No. 26 as it was not on account of his fault that there was a delay in his medical re-examination by the Review Medical Board.

3. Arguments on behalf of the petitioner were addressed by Mr. Puneet Khurana, Advocate and in support of his arguments, he placed reliance on a Division Bench judgment of this Court in W.P. (C) No. 5400/2010 titled as Avinash Singh & Ors. v. Union of India & Ors., decided on 26th May 2011. He also submits that a Special Leave Petition was preferred by the respondents against the said judgment but the same was dismissed by the Supreme Court vide order dated 12th September 2011. He strongly urged that directions be given to the respondents, to grant seniority to the petitioner on the post of Assistant Commandant (Direct Entry) as per his merit in the selection list of Sr. No. 26 Batch alongwith all consequential benefits including his entitlement to be covered by the old pension scheme under the Central Civil Service (Pension) Rules, 1972 as they were in force till 31st December, 2003.

4. The aforesaid contentions raised on behalf of the petitioner have been r