Promotion Can't Be Denied Due To Reasons Beyond Candidate's Control; Delhi High Court Grants Promotion To Army Officer

Background

The Petitioner, a Sub-Inspector in the Central Reserve Police Force was promoted to the rank of Inspector/GD on 31.03.1999. He was deputed abroad with effect from 21.06.2001. When he became eligible to take the Promotional (Senior Inspector Cadre) course in 2004, the Ministry of External Affairs refused to bring him to the CRPF owing to the deputation. On 01.05.2007, he was relieved by his borrowing organisation and on 11.07.2007, he joined the 9th Battalion, CRPF.

The Respondents issued orders dated 15.10.2007 and 12.11.2007, protecting the chance of the petitioner and his seniority for promotion. Consequently, he was promoted to the rank of Assistant Commandant on 23.10.2009 after completing the Promotional Course. However, the benefit of notional promotion was not granted to him, against which he filed a representation before the Respondents.

On 22.09.2011, an order was issued reassigning the Petitioner's seniority and placing him above a person named Sh. Ajay Kumar at Sl. No. 205A in the gradation list. Ajay Kumar was promoted to the Rank of post of Deputy Commandant in the year 2011, while the petitioner was promoted on 21.08.2012 leading in another representation by the Petitioner seeking re-assignment of his seniority. The Respondents passed an order on 14.08.2013, placing the Petitioner above Ajay Kumar in the rank of Deputy Commandant.

Later, when the Petitioner was due for the next promotion, a list of officers being promoted was issued by the Respondents, however the name of the Petitioner was missing in the list. Pertinently, Ajay Kumar was promoted as per the list.

After being recommended for consideration by the Departmental Promotion Committee for the vacancy year 2018-19, the Petitioner's name was skipped again in the list of officers who were promoted, leading in another representation by a letter dated 28.07.2018.

The Petitioner was informed by the Respondents that as per the Central Reserve Police Force Group 'A' (General Duty) Officers Recruitment Rules, 2010, 10 years of Group-A service was mandatory for promotion and since the Petitioner did not fulfil that condition, it rendered him ineligible to be promoted.

On 12.10.2018, he was excluded again leading in another representation which was also rejected. The Petitioner was finally promoted on 31.12.2020.

On 01.09.2019, a list of officers entitled for the grant of NFFU of JAG was issued and the Petitioner's name was included, however, on 18.05.2020, the benefit was denied to the Petitioner while granting the same to Ajay Kumar. Later the Petitioner was also granted the NFFU but w.e.f 01.01.2020 leading in another representation filed by the Petitioner which was rejected on 16.02.2022.

Aggrieved by the same, the Petitioner approached the High Court.

Contentions of the Petitioner:

Relying on the judgment in Rakesh Kumar v. Union of India & Ors., 2024 SCC OnLine Del 4886, the Petitioner submitted that as per the rules, if the Petitioner was given retrospective seniority to the post of Assistant Commandant, the date of appointment to the post would be considered as 17.08.2004. The Counsel contended that since Ajay Kumar was also appointed on the same date and was granted relief of subsequent promotion and NFFU accordingly, the Petitioner could not be denied the same.

Contentions of the Respondent:

The Counsel for the Respondent contended that as per the Rules, it was mandatory for the Petitioner to have 10 years Group 'A' service, including service of 5 years in the rank of Deputy Commandant to be promoted.

Moreover, mentioning the Standing Order issued by the Director General, CRPF, the Counsel stated that only those officers would be entitled for consideration to be appointed, promoted or deputed who were in Medical Category 'SHAPE-I'.

It was submitted that the Petitioner was eligible to be considered for promotion to the rank of 2-I/C, however he did not fall under 10 years Group 'A' service and 5 years residency period. Hence, the Ministry of Home Affairs did not extend relaxation in the residency period to the petitioner.

The Counsel argued in terms of Seniority not granted to the Petitioner, submitting that the issue of seniority was governed by the GOI. As per the Office Memorandum, a person considered unfit for promotion and superseded by his junior would not take seniority in the higher grade over the junior officer.

It was further submitted that the Petitioner was found unfit by the Screening Committee in a meeting in 2020 as he had not completed 10 years Group 'A' service on 01.04.2017. Later in 2021, the petitioner was found fit for grant of NFFU with effect from 01.01.2020.

Findings of the High Court

The Court held that it was not the Petitioner's fault that resulted in him not being promoted and that it was beyond his control to be relieved by his borrowing department to obtain the ranks along with the other batchmates, as was also recognised by the Respondents.

Calling it a 'strict' practice in connection with the Rules, the Court observed that the Respondents had not approached the Petitioner with benevolent attitude. The Court held that denying the Petitioner retrospective seniority in the rank along with his batchmates and above his immediate junior in the said rank, could not be sustained considering that the reasons behind the same were beyond his control.

The Court relied on the Judgment in Ashok Kumar v. Union of India & Ors., 2009 SCC OnLine Del 3407, wherein it was held,

“the petitioner had no option but to serve wherever he was required to be posted. Moreover, force personnel have no say in the matter of posting and therefore, it is the department who is at fault in not letting a person complete two years duty in a duty battalion, despite the same being a precondition of mandatory field service for grant of promotion. Non-fulfilment of the eligibility condition for promotion requiring two years of service in a duty battalion cannot be held against a person concerned as the same is the sole prerogative of the department.”

Referring to several other judgments including Jay Pratap Singh v. Union of India & Ors., 2015 SCC OnLine Del 7276, Dharam Narayan Borana v. Union of India & Ors., 2019 SCC OnLine Del 6406 and Sudhindra Kumar Singh v. Union of India & Ors, the Court directed the respondents to grant retrospective seniority to the petitioner to the post of 2-I/C from the date on which Ajay Kumar was granted such promotion, and to place him immediately above Ajay Kumar in the seniority list in the rank of 2-I/C.

Accordingly, the Petition was allowed.

Case Title: Jeewraj Singh Shekhawat vs. UOI & Ors

Citation: 2024 LiveLaw (Del) 1194

Counsel for Petitioner: Mr. Ankur Chhibber, Mr. Nikunj Arora, Mr. Anshuman Mehrotra and Mr. Pranjal Marwah, Advs.

Counsel for Respondents: Mr. Vineet Dhanda, CGSC.

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