THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.24811 OF 2000 DATED 7TH NOVEMBER, 2012 Between Krishan Singh …Petitioner and Union of India, rep. by it’s Secretary, Ministry of Home Affairs, New Delhi and others. …Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.24811 OF 2000 ORDER: The petitioner, a Deputy Commandant/Fire in the Central Industrial Security Force (CISF), Hyderabad, challenges its proceedings dated 07.07.2000 rejecting his representation dated 24.03.2000, made in the context of inter se seniority of officers in the rank of Assistant Commandant/Fire in the CISF. He seeks a consequential direction to the CISF to revise his seniority by promoting him to the post of Assistant Commandant/Fire from 29.05.1990 and to the post of Deputy Commandant/Fire from 29.05.1996 with all consequential benefits. He also seeks consideration of his case for promotion to the post of Commandant/Fire from 29.05.2000. In the first instance, this Writ Petition was allowed by a learned Judge on 30.08.2004 directing the respondents to issue notice to all the affected parties and consider the petitioner’s case against the promotees’ quota of 1991 for reckoning his seniority in the post of Assistant Commandant/Fire and to pass appropriate orders within a timeframe. Aggrieved thereby, one Raj Nath Singh, a third party to the writ petition, filed Writ Appeal No.85 of 2005 with leave. His complaint was that the writ petitioner was claiming seniority over him but had not impleaded him in the writ petition. A learned Division Bench of this Court, by Order dated 14.12.2006, opined that as Raj Nath Singh was not a party to the case and as the dispute pertained to the seniority between the writ petitioner and him, an opportunity was required to be given to him. The writ appeal was accordingly allowed setting aside the order dated 30.08.2004 passed in the writ petition. Raj Nath Singh was impleaded as the seventh respondent in the writ petition and the matter was remitted for a fresh hearing. The case of the petitioner, in brief, is as under: He was originally appointed as a Sub-Inspector/Exe (Executive Branch) on 01.09.1976 and was promoted as an Inspector/Exe on 21.10.1984. His services though were utilized, not in the Executive Branch, but in fire services. The Fire Services cadre, however, was created in the CISF only in the year 1990. The posts of Assistant Commandant/Fire were notified on 25.01.1990. As per this notification, the posts had to be filled up as under: “1) 60% by promotion, failing which by transfer on deputation; 2) 30% by transfer on deputation, failing which by direct recruitment; 3) 10% by absorption of officers from public sector undertakings failing which, by transfer on deputation.” The petitioner responded to this notification, by application dated 29.05.1990, seeking appointment as an Assistant Commandant/Fire. His case was however not considered for promotion/appointment to the post till the year 1994. He was promoted as an Assistant Commandant/Fire on 12.08.1994 and joined as such on 16.09.1994, though he was empanelled for the vacancy of the panel year 1991. The qualifications for appointment to this post were: “A. (i) Degree of a recognized University or equivalent. (ii) Advanced Diploma from National Fire Service College, Nagpur or equivalent. (iii) 4 years experience in the established Fire Service/Brigade out of which, 2 years should be in a post equivalent to Inspector (Fire). O R (i) Bachelor of Fire Engineering from National Fire Service College, Nagpur or equivalent. (ii) 2 years experience in an Established Fire Service/ Brigade including one year experience in a post equivalent to Inspector (Fire). B. Holding analogous posts on regular basis; or with 5 years regular service in posts in the scale of Rs.1640-2900 or equivalent.” The petitioner claims that, if not by promotion, he ought to have been considered for the post by transfer on deputation. The authorities however resorted to direct recruitment though the rules posited that such recruitment could be undertaken only if candidates were not available for appointment by transfer on deputation. Five candidates were appointed as Assistant Commandants/Fire by direct recruitment in 1993. The petitioner was thereafter promoted as an Assistant Commandant/Fire on 16.09.1994. However, as he was fully eligible to be promoted at the time of his application itself and the delay in his promotion was wholly unnecessary, he claimed entitlement to be promoted to the rank of Assistant Commandant/Fire with retrospective effect from 29.05.1990 with all consequential benefits. As the delay in this promotion had an impact on his further promotion as a Deputy Commandant/Fire, he also sought retrospective promotion to the said post. He accordingly prayed for setting aside the proceedings dated 07.07.2000 rejecting his representation in this regard and sought a consequential direction to revise his seniority in the post of Assistant Commandant/Fire with effect from 29.05.1990 and in the post of Deputy Commandant/Fire with effect from 29.05.1996. In the CISF’s first counter, the Commandant/Principal, CISF, FSTI, NISA, Hyderabad, stated as under: The feeder cadre of Inspector/Fire for promotion to the rank of Assistant Commandant/Fire was formed only in October/ November, 1991 on receipt of options from personnel willing to be absorbed in the Fire Services cadre. Seniority of Inspectors/Fire was circulated in November, 1991 but a proposal had been mooted for promotion from this cadre to the rank of Assistant Commandant/Fire in August, 1991 itself and was cleared by the Ministry of Home Affairs (MHA) in August, 1992. It was sent to the Union Public Service Commission (UPSC) in September, 1992 for convening the Departmental Promotion Committee (DPC). However, on certain observations of the UPSC, the case was again taken up with the MHA for relaxation of service eligibility of the officers. This issue was finalized only in December, 1993 and therefore, the DPC meeting could only be held in June, 1994 for the vacancies relatable to the panel years 1991, 1993 and 1994. In this DPC, the petitioner was empanelled against the vacancy of 1991 and was appointed as an Assistant Commandant/Fire. He assumed charge as such on 16.09.1994. For promotion to the post of Deputy Commandant/Fire, an Assistant Commandant/Fire with six years of regular service in the grade is eligible but no suitable Assistant Commandant/Fire was available as on 01.01.2000. However, to meet the requirement of the Department, the matter was referred to the MHA in July, 1999 for relaxation of service eligibility of ten officers, including the petitioner. As per the relaxation granted by the MHA, the petitioner and six other officers were promoted, with relaxation, as Deputy Commandants/Fire. As per the existing rules, for promotion to the post of Commandant/Fire, officers with 14 years regular Gazetted service, with at least two years regular service as Deputy Commandant/Fire, were eligible for consideration. As the petitioner did not possess this qualifying service, he was not eligible for promotion to the rank of Commandant/Fire. The Commandant/Principal stated that the petitioner was absorbed in the post of Inspector/Fire, CISF, with effect from 14.10.1991 and was promoted as an Assistant Commandant/Fire on 16.09.1994 and as a Deputy Commandant/Fire on 09.05.2000. He further stated that as per the recruitment rules, appointment to the post of Assistant Commandant/Fire was from the enumerated three categories in the ratio of 60:30:10. But, as the feeder grade of Inspector/Fire for promotion under the 60% quota was formed only in October/November, 1991, promotions could not be effected. The issue of relaxation of the service eligibility of officers was finalized only in December, 1993, the DPC was held in June, 1994 and the petitioner assumed charge as an Assistant Commandant/Fire on 16.09.1994. The posts falling under the deputation quota were also circulated through the MHA on 30.11.1990 to all the Field Units. It was however decided administratively not to consider deputation of Inspectors/Exe of the CISF as Assistant Commandants/Fire and only officers outside the CISF were considered. However, owing to the poor response to the deputation drive, a proposal was forwarded to the UPSC on 27.03.1991 for filling up the vacancies by direct recruitment. The UPSC, in turn, recommended seven candidates under its letter dated 15.01.1993 out of whom, five candidates, including the seventh respondent, joined as Assistant Commandants/Fire in October, 1993. As these directly recruited Assistant Commandants/Fire assumed office first, they were placed above the promotees in the seniority list of Assistant Commandants/Fire in accordance with the Government’s instructions dated 24.06.1978 and 03.07.1986. The Commandant/Principal pointed out that deputation was not a matter of right and that it was for the parent organization and the borrowing department to accept the same. He pointed out that the authorities were not obligated under the rules to consider Inspectors/Exe for deputation as Assistant Commandants/Fire. He accordingly justified the impugned proceedings dated 07.07.2000 and sought dismissal of the writ petition. In the CISF’s second counter dated 31.10.2007, filed after the case was remanded, the Commandant, CISF Unit, NFC/ECIL, Hyderabad, deposed as under: Pursuant to the order dated 30.08.2004 allowing this writ petition, the matter was referred to the MHA/Department of Personnel and Training (DoPT) and it was clarified that promoted officers should be granted seniority in the panel years in which their names figured. It was further clarified that notwithstanding the grant of seniority from the year of the panel, the regular service of such promoted officers, for all purposes, should count only from the date of their regular service and the promoted officers should be assigned seniority from the panel year only for the purpose of reckoning their seniority vis-à-vis the direct recruits. As the direct recruits entered the service in the year 1993, they would be assigned seniority from that year whereas the promotees’ seniority would be based on the panel year on the principle of ‘rota- quota’. Thereby, the petitioner was entitled to seniority from the year 1991 and the direct recruits were to be assigned seniority from the year 1993. The Commandant however stated thereafter that though the petitioner was entitled to seniority from the year 1991 vis-à-vis his inter se seniority with direct recruits, his eligible service for promotion to the next higher rank would be counted only from his regular promotion as an Assistant Commandant/Fire on 16.09.1994. He would therefore complete six years service as an Assistant Commandant/Fire only on 15.09.2000 and was ineligible for promotion as a Deputy Commandant/Fire for the panel year 2000-01, as eligibility for promotion is determined on the first day of January of each year. However, to meet the requirement, the Department sought relaxation of eligibility from the MHA and the DoPT and the petitioner was promoted as a Deputy Commandant/Fire on 09.05.2000 against the panel year 2000-01, with due relaxation of the eligibility condition. He was actually eligible for such promotion only for the panel year 2001-02. As per the recruitment rules notified on 04.12.2002, promotion to the post of Commandant/Fire required 11 years of Gazetted service, including two years regular service as a Deputy Commandant/Fire. The petitioner completed two years regular service as a Deputy Commandant/Fire on 08.05.2002 but he completed 11 years of Gazetted service only on 15.09.2005. He was therefore eligible for promotion as a Commandant/Fire only on 01.01.2006 for the panel year 2006-07. His claim for retrospective promotion as a Commandant/Fire with effect from 29.05.2000 was accordingly condemned as untenable. It was pointed out that Inspectors/Exe were not considered for transfer on deputation as Assistant Commandants/Fire as it would move them up by one rank and would have a cascading effect in the Department. Vacancies that would be caused in the posts of Inspector/Fire would also make it difficult to meet the immediate requirement of those posts. Accordingly, an administrative decision was taken not to consider Inspectors/Exe for deputation as Assistant Commandants/Fire. It was again stated that the petitioner could not claim a right to be deputed to the post as the lending and borrowing departments’ acceptance was a must. The Commandant further pointed out that though the proposal to effect promotions was mooted much earlier than the move to fill up the posts by direct recruitment; the issue was delayed owing to the consultations between the Department, the MHA and the UPSC. It was also pointed out that basing upon the earlier order passed in the writ petition, a clarification was issued by the DoPT that the petitioner should be given seniority, in so far as inter se seniority with the direct recruits was concerned, with effect from the panel year in which his name figured for promotion and that he would therefore become senior to the direct recruits of the year 1993. This course of action, however, was stated to be subject to the final disposal of this case upon remand. Pausing here for a moment, this approach of the CISF, on the face of it, is fraught with complications. On the one hand, the CISF wishes to give seniority to the promotees on the basis of the panel year but at the same time, it states that only actual service rendered in the post would be taken into account. This would mean that though the promotee is shown to be senior to the direct recruit, the direct recruit would be entitled to get promotion to the next higher post earlier based on his actual length of service while the senior promotee would have to wait till he puts in the requisite service! There is no explanation forthcoming from the CISF as to this anomaly. The course of action adopted by the CISF therefore does not commend acceptance. The petitioner filed a reply to the counter filed by the CISF. Therein, he stated that it was the authorities who were responsible for the delay in redressing his grievance. He asserted that his promotion to the post of Assistant Commandant/Fire was delayed by four years without any reason. He relied upon the rules which carved out a percentage of the vacant posts to be filled up by promotion and stated that the CISF had acted in violation of the same by going in for direct recruitment, overlooking the promotional category. He asserted that he should have been considered for promotion against the vacancies for the year 1990 or at least by transfer on deputation pursuant to the notification dated 25.04.1990. He accordingly reiterated his writ prayer. In his counter, the seventh respondent in the writ petition, the appellant in W.A.No.85 of 2005, stated as under: Till the creation of a separate Fire Services cadre in January, 1990, the entire cadre existed only as an Executive one. The petitioner was therefore not a member of the Fire Services cadre till his absorption as an Inspector/Fire on 14.10.1991. His service from 21.10.1984 till 14.10.1991 was therefore not eligible to be counted as experience in the Fire Services cadre. As qualified Inspectors/Fire were not available for promotion in the year 1990, the 60% quota reserved for such promotion could not be filled up. The 30% quota meant for recruitment by transfer on deputation also could not be filled up owing to poor response and was accordingly notified for direct recruitment through the UPSC. Pursuant to the selections conducted by the UPSC, he was appointed to the said post and joined as such on 02.10.1993. It was only thereafter that the petitioner was promoted as an Assistant Commandant/Fire and joined as such on 16.09.1994. Thus, though vacancies were available since 1991 for promotion, the same could not be filled up owing to lack of qualified and eligible personnel. He pointed out that the petitioner was actually ineligible for promotion till 1996 as he completed the requisite period of service in the Fire Services cadre only then. It was after the Department took up this issue and the recruitment rules were amended on 13.07.1993 that panels were prepared for promotions in respect of the vacancies from the year 1991 onwards and the petitioner and others were promoted in 1994. He asserted that the petitioner and other promotees could not claim seniority over him and the other direct recruits who were appointed in the year 1993. He therefore prayed for dismissal of the writ petition. Perusal of the impugned proceedings dated 07.07.2000 of the Assistant Inspector General/Personnel issued on behalf of the Director General, CISF, New Delhi, reflects that the proposal for promotions to Assistant Commandant/Fire category was initiated in August, 1991, cleared by the MHA in August, 1992 and sent to the UPSC in September, 1992 for convening a DPC meeting. However, the issue of relaxation of eligibility was finalized only in December, 1993 and the meeting of the DPC was held in June, 1994 for vacancies pertaining to the panel years 1991, 1993 and 1994. The petitioner thereupon came to be promoted as an Assistant Commandant/Fire and assumed office as such on 16.09.1994. The proposal for direct recruitment to the posts was forwarded to the UPSC on 27.03.1991. Out of the 7 candidates suggested by the UPSC on 15.01.1993, only 5 joined as Assistant Commandants/Fire in the CISF in October, 1993. As their selection was finalized earlier in point of time, the Assistant Inspector General/Personnel justified their being placed above the promotees in the seniority list of Assistant Commandants/Fire. For promotion to the post of Assistant Commandant/Fire, an Inspector/Fire of the CISF with five years regular service in the grade, possessing the educational qualifications and experience prescribed for direct recruits, was eligible. Thereafter, by the CISF (Amendment) Rules, 1993, the essential qualifications for promotion to the post of Assistant Commandant/Fire were modified by stating that Inspectors/Fire of the CISF with seven years regular service in the grade, including regular service as Inspectors/Exe in the CISF, would be eligible. It is on the basis of this amendment of the year 1993 that the petitioner became eligible to be considered for promotion as an Assistant Commandant/Fire, as he had put in more than the requisite seven years of service by then, taking his experience as an Inspector/Exe into account. The minutes of the DPC held on 24.06.1994 reflect that 24 vacancies were available in the year 1991, of which four were reserved for SC and two for ST candidates. As no SC and ST Officers were available for consideration, those vacancies were kept vacant. The remaining 18 unreserved vacancies were therefore taken up for consideration. The DPC was informed that only three officers were eligible for consideration against the 1991 vacancies, none for 1992 and the remaining 15 vacancies were carried forward to the year 1993. Four Officers became eligible for consideration against 1993 and the remaining 11 vacancies were carried forward to 1994. On the basis of the assessment, the Committee recommended the panel for officiating promotion to the grade of Assistant Commandant/Fire in the CISF consisting of the Officers in the following order: “Sl.No. Name Panel for 1991 1. D.V.Singh 2. Krishan Singh 3. D.R.Yadav Panel for 1993 1. Netrapal Singh 2. Tapan Debnath 3. S.K.Dey 4. P.R.Singh Panel for 1994 ……… Consolidated Panel ………” An identical matter came up for consideration before the High Court of Delhi in W.P.C.No.9540 of 2003. The counter affidavit filed by the CISF in that writ petition is placed on record and makes for an interesting reading. D.V.Singh, the petitioner therein, was one of the empanelled promotees against the panel year 1991 along with the petitioner herein. He was appointed as an Assistant Sub-Inspector/Exe and was thereafter promoted as an Inspector/Exe. He was amongst the executive personnel who were trained in fire services and was one of those who opted for being absorbed as an Inspector/Fire in the newly created Fire Services cadre in 1991. The recruitment rules for the post of Assistant Commandant/Fire were notified for the first time in the Extraordinary Gazette of India dated 25.01.1990. The proposal to hold a DPC meeting for effecting promotions to this post was sent to the MHA on 29.08.1991 and was thereupon referred to the DoPT on 09.10.1991. The DoPT, by its note dated 23.10.1991, opined that an Advanced Diploma of NFSC, Nagpur, was an essential qualification for promoting an Inspector/Fire as an Assistant Commandant/Fire. The case was thereupon re-examined and an amendment was proposed in the recruitment rules to provide for the Divisional Officer’s course in FSTI, Deoli, or its equivalent, as an alternative qualification for promotion to the post. The case was then taken up with the MHA on 04.08.1992 for a one-time relaxation in the educational qualifications prescribed in the recruitment rules so as to consider Inspectors/Fire who had completed five years of regular service in the grade as on 01.07.1992. The MHA, by note dated 05.08.1992, however directed the CISF to send the DPC proposal to the UPSC in respect of only three Inspectors/Fire, viz. D.V.Singh, the petitioner herein and D.R.Yadav, as they possessed the Advanced Diploma of NFSC, Nagpur, that was required under the rules. Accordingly, the DPC proposal for considering these three Inspectors/Fire against the panel year 1991 was sent to the UPSC on 14.09.1992. The UPSC, by its letter dated 12.01.1993, observed that some of the seniors had not undergone the Divisional Officer’s course at NFSC, Nagpur, while the juniors had completed the said course and therefore, relaxation of the rules was required so that those senior officers who obtained the requisite qualification later could also be considered for promotion. In the meantime, the amended recruitment rules were notified on 13.07.1993 and stipulated that successful completion of Divisional Officer’s course from NFSC, Nagpur, or CISF, FSTI, would be sufficient eligibility for promotion as an Assistant Commandant/ Fire. As per the amended recruitment rules, the case was again taken up with the MHA on 18.10.1993 for approval to convene a DPC meeting. The MHA took up the matter with the DoPT, which clarified on 01.12.1993 that it was neither desirable nor practical to relax the basic condition for promotion, i.e., possession of the fire service qualification. The DoPT therefore directed the CISF to prepare a separate panel for those left over vacancies available for filling up the vacancies of the previous year upto 13.07.1993. The revised DPC proposal was accordingly sent to the UPSC on 17.12.1993. By letters dated 11.02.1994 and 08.03.1994, the UPSC communicated that on account of the amendment of recruitment rules, notified on 13.07.1993, officers who became eligible for promotion would not be eligible for consideration against the vacancies of the year 1993, for which the crucial date was 01.01.1993. They could therefore be considered only against the vacancies of the year 1994. The complete record in respect of the eligible officers was therefore sent to the UPSC in April, 1994. The UPSC fixed the DPC meeting on 24.06.1994 and the cases of 15 Inspectors/Fire were considered for promotion to the rank of Assistant Commandant/Fire against the 24 vacancies (General-18, SC-4 and ST-2). Three officers, D.V.Singh, the petitioner herein and D.R.Yadav, were promoted against the vacancies of the year 1991, none were promoted for the year 1992, four officers were promoted against the vacancies for the year 1993 and eight officers against the vacancies of the year 1994. The DPC proceedings were sent to the MHA on 15.07.1994 for approval, which was accorded on 06.08.1994, and promotion orders were issued on 12.08.1994. The stand of the CISF before the Delhi High Court was that D.V.Singh would be entitled to seniority in the rank of Assistant Commandant/Fire only from the date of his actual promotion. It is pertinent to note that Guideline 17.10 of the ‘Guidelines on DPCs’ communicated under Office Memorandum dated 10.04.1989 by the Ministry of Personnel, Public Grievances and Pension, the DoPT and the Government of India, deals with the date from which promotions are to be treated as regular and states that the general principle would be that promotion of officers included in the panel would be regular either from the date of validity of the panel or the date of their actual promotion, whichever is later. The question is whether the petitioner is entitled to be treated differently given the facts of this case. Now, a glance at case law on this subject. I n VINODANAND YADAV v. STATE OF BIHAR[1], the Supreme Court was dealing with a situation where promotions had been granted to the respondents