The judgment establishes that failure to qualify the E-list test and medical conditions may not meet the conditions for protection of seniority as per Standing Order No. 1/92.

JUDGMENT :

NEENA BANSAL KRISHNA, J.

1. A Civil Writ Petition under Article 226 of the Constitution of India, 1950 has been filed on behalf of the petitioner for quashing and setting aside the Order/Communication No. I-15012/12/2018/Estt/1611 dated 07.12.2018 and to order for his notional promotion and fixation of the seniority in the post of Inspector (GD) on the basis of E-list drawn in September, 2006 and also to grant him seniority to the post of Inspector (GD) above respondent No. 3 Sh. Sher Singh who was junior to the petitioner, having been promoted as Sub-Inspector in September, 2003 in the general category like the petitioner.

2. The petitioner joined the Indo Tibetan Border Police (ITBP) Force as Sub-Inspector (GD) on 12.08.2002. He was the topper of his batch. He after successfully completing 54 weeks of Basic Training at ITBP Academy, Mussourie, was posted in Border Battalion in Uttarakhand, Arunachal Pradesh and Himachal Pradesh. After completion of his tenure, he was posted at Directorate General, ITBP, New Delhi. The petitioner secured first position in Intelligence course held at New Delhi in 2005. Considering his performance, he was selected by Directorate General as Instructor to impart training in subsequent courses in 2005 and 2006.

3. In the year 2004, during his posting at Forward Post, Koloriang, Arunachal Pradesh he developed pain in his right knee due to some injury and he was given medicines. He continued to perform his duties including patrolling in rugged mountainous terrain in hazardous climate conditions during deployment in Palin town and Itanagar for internal security duties. While undergoing Promotional Course at BTC (Basic Training Centre) Panchkula in August, 2005 he again suffered injury in right knee. The Court of Inquiry conducted held that the said injury had occurred due to risk of service. However, the petitioner successfully underwent promotional courses i.e. Platoon Commander (PC) Course w.e.f. 18.07.2005 to 27.09.2005 at BTC-Panchkula and Subordinate Officer's (Tactics) Course at ITBPF Academy, Mussoori from 03.10.2005 to 10.12.2005. The successful completion of these which included written as well as physical activities, exhibited his physical fitness. He remained in Medical “SHAPE-I” category.

4. The promotion from the post of Sub-Inspector (GD) to Inspector (GD) was governed by Standing Order No. 2/2004 dated 17.08.2004. The Departmental Promotion Committee (DPC) in terms of the Standing Order makes assessment/evaluation on the basis of E-List test and those Sub-Inspectors who qualify the Test, are recommended on the approval list “E: meant for promotion, to Inspector (GD).

5. The petitioner became eligible for promotion to the post of Inspector (GD) in the year 2005 on fulfilment of eligibility conditions as specified in Standing Order No. 2/2004 dated 17.08.2004. He was called for E-List Test in February, 2006, but could not make the grade. In September, 2006 another E-List Test was held, but the petitioner was not nominated to appear in the said Test. When he enquired from the office of his Unit, he was verbally informed that he was not nominated due to force commitment/exigencies of service and that one can appear in E-List Test only once a year and that his seniority on his promotion to the post of Inspector would be protected in terms of Standing Order No. 1/92 dated 22.7.1992 according to which a personnel not detailed to appear in promotional test due to unavoidable involvement in force commitments, such personnel would be allowed to claim seniority from the date on which his junior is promoted. It is claimed that the case of the petitioner was covered under Clause (e) of the said circular.

6. The petitioner has further asserted that he was not nominated in the subsequent E-List Test conducted in September, 2007 and June, 2008 and has been unjustly deprived of the opportunity/not considered for promotion during this period. In September, 2008 he was nominated to appear in E-List T