Promotion rights in public service demand a viable channel to avoid stagnation; eligibility does not guarantee promotion without a sanctioned position.

JUDGMENT

Suresh Kumar Kait, J.

1. The petitioner, who is working as Commandant (Electrical) in BSF Engineering Wing since 15.05.2013 and is performing the duties of DIG (Work) w.e.f. 15.02.2021 till filing of the petition, has preferred the present petition challenging the order dated 06.04.2021 passed by respondent No.1, vide which an officer of the GD Branch has been appointed as DIG (Works) in the BSF Engineering Setup.

2. Petitioner claims to have been promoted to the rank of Second-in-Command (Electrical) pursuant to order dated 19.01.2010 passed by this Court in W.P.(C) 8192/2009, which was challenged by the respondents, however, upheld by the Hon'ble Supreme Court vide order and judgment dated 02.05.2011 in Special Leave Petition 26582/2010; though he was promoted against a vacancy of the year 2011 instead of the vacancy of the year 2007-08, when the post of Second-in-Command (Electrical) was notified. By virtue of judgment dated 13.08.2012 passed by the Jodhpur High Court in W.P.(C) 823/2012 preferred by the petitioner, he was granted notional seniority w.e.f. 31.10.2007.

3. Petitioner claims that his promotion to the rank of Commandant (Electrical) was due in the year 2009 on completion of five years of regular service in the grade, with total fifteen years. service in Group "A", however, he was promoted on 15.05.2013 and since then, he is working in the same rank without any further promotion. Petitioner also claims to have made representation dated 07.10.2020 to the DG, BSF regarding his delayed promotion, but has not received any response thereto.

4. During the course of hearing, learned counsel appearing on behalf of petitioner submitted that a proposal to include 02 vacancies of DIG (Engg/Works) and 01 vacancy of IG (Engg/Works) 0020 for Engineering Setup by the BSF Personnel Directorate has already been initiated and a Cadre Review Committee has already been formed vide letter No.FHQ No 16/26/2018-Pers/BSF/44856-68 dated 21.12.2018 and dated July, 2020 but final outcome thereof is yet to come.

5. Learned petitioner's counsel pointed out that the BSF officers in General Duty Cadre receive their promotion upto the rank of DIG without any stagnation, however, due to non-availability of post in DIG (Works) in the Engineering Cadre, petitioner has been suffering since the year 2013 when he got promoted to the rank of Commandant, despite being eligible since the year 2009-2010. It is further pointed out that the Union Home Secretary's order dated 11.05.2018 stipulates that the officers of General Duty Cadre, irrespective of their grade/rank and academic qualifications, cannot exercise powers related to technical works; and these powers shall be exercised by only technical officers, who are appointed against the sanctioned post of engineering with requisite technical qualifications and experience, as notified by Ministry of Home Affairs.

6. Petitioner is the senior most technical officer in the BSF Engineering Setup, having completed more than 26 years in Group 'A' Gazetted service and so, he is entitled to handle the functioning of DIG (Works) in Engineering Cadre. Attention of this Court was also drawn to the various achievements of petitioner having posted in the Engineering Branch to submit that petitioner deserves to be promoted to the rank of DIG and IG (Works/Engg) in BSF. It