IMPORTANT POINT
The appointment to the upgraded post of CLO/IG cannot be made with retrospective effect, and the plea of legitimate expectation is unsustainable.

JUDGMENT

V. Kameswar Rao, J.

1. The petitioner has filed this petition with the following prayers:

"(i) Issue writ of certiorari thereby setting aside order dated 01.10.2020 whereby representation by Petitioner was rejected by Respondents;

(ii) Issue writ of mandamus thereby directing the respondents to consider the Petitioner for promotion to the rank of Inspector General, Chief Law Officer by placing reliance on OM dated 04.02.1992 and 30.03.1988 and, if found suitable, grant notional promotion to Petitioner to the post of Chief Law Officer/IG in BSF from vacancy year 2013-14 along with consequential benefits; and

(iii) Pass any such orders as the Hon'ble Court may deem fit in the light of above mentioned facts and circumstances of the case."

2. The petitioner has challenged the order dated October 01, 2020, by which the request of the petitioner for grant of promotion to the post of Chief Law Officer/Inspector General (`CLO/IG', for short) from the date of Vacancy year of 2013-14 till the date of his retirement from service, was rejected on the ground that the petitioner was not in SHAPE-1 medical category and also Recruitment Rules to the post of CLO/IG are not available.

3. The facts as noted from the record and so stated by Mr. Ankur Chhibber are that the BSF is governed by BSF Act, 1968 and the Rules made in 1969.

4. The petitioner joined the BSF as Assistant Commandant on September 17, 1984. The petitioner was attached with the Law cadre of BSF on May 26, 1987. In the year 1988, the petitioner suffered an unfortunate accident which resulted in injuries to the petitioner on his right arm. The right forearm of the petitioner was amputated. The petitioner was promoted as Deputy Commandant in General Duty on September 21, 1989. Subsequently, he was promoted as Law Officer Grade-II/Deputy Commandant on February 15, 1990 and further promoted to Law Officer Grade-I/Commandant on October 18, 1995. Finally, he was promoted to the post of CLO w.e.f., July 19, 2011, and superannuated on March 31, 2020.

5. Mr. Ankur Chhibber stated that the post of CLO/DIG was upgraded to the post of CLO/IG vide notification dated May 26, 2010. An in-situ promotion was given to one Mr. Hari Gopal Garg (H.C.Garg), who held the post of CLO/DIG at that point of time. The upgradation to the post of CLO/IG was only in force until superannuation of the said H.G. Garg on January 31, 2011. He stated that as per the tentative seniority list of Law Officer in BSF, the petitioner was placed at serial No.1 and one Mr. V. S. Yadav who was holding the post of CLO (DIG) (D&L) was placed at serial No.2.

6. According to Mr. Chibber, on June 28, 2013, MHA sanctioned the proposal for the upgradation of one post from CLO/DIG to CLO/IG. Consequently, aggrieved by the inter-se seniority with the petitioner, V.S. Yadav filed a writ petition being W.P.(C) 4647/2013 seeking stay on DPC for the post of CLO/IG. He stated that this Court, even though had not stayed the DPC, had directed that any appointment to the post CLO/IG (Law) shall be subject to the outcome of the writ petition.

7. In the meanwhile, on August 01, 2013, the respondent No.2 sent a proposal to MHA seeking grant of relaxation in SHAPE-I Medical Category and had requested the respondent No.1 that, since the petitioner is senior most officer in the feeder cadre w.e.f. July 19, 2011, necessary relaxation may be accorded to him. The DPC was held for filling up of the upgraded post of CLO/IG for the vacancy year of 2013-14. The respondent No.1 advised the BSF to take immediate steps to frame Recruitment Rules for the post of CLO/IG.

8. He stated that the respondent No.2 made another proposal to the respondent No.1 for approval to conduct the DPC to fill up the post of CLO/IG. The petitioner's file was referred to the DoP&T on May 16, 2017 for the appointment to the upgraded post of CLO/IG w.e.f July 19, 2017. He also stated that, on May 04, 2018, the Draft of RRs was forwarded to the DoP&T. It is his contention that, despi