Ms. Maninder Acharya, Sr. Adv. with Ms. Shreya Garg., Ms. Padma Priya, Mr. Rishabh v. DIRECTORATE GENERAL, INDO TIBETAN BORDER POLICE FORCE & ORS

Judgment

1. The petitioners assail a seniority list in the grade of Assistant Commandant in the Indo Tibetan Border Police1, circulated by the Directorate General, BTC, Police vide Memorandum dated 24 April 2020, to the extent the seniority list places the petitioners en bloc below the respondents. Facts

2. The petitioners are direct recruits to the grade of Assistant Commandant. They participated in a written test, which was held on 20 October 2013, of which result was declared on 9 July 2014. Pursuant to their succeeding in the said selection, the petitioners joined as Assistant Commandant in the ITBP in June 2015.

3. On 26 July 2017, a Departmental Promotion Committee2 was held for promotion from the grades of Subedar Major and Inspector to the grade of Assistant Commandant. Following this, the respondents were promoted as Assistant Commandants with effect from 21 August 2017, albeit against vacancies of 2013-2014 and 2014-2015.

4. Inter se seniority among direct recruit and promotee officers in 1 “ITBP”, hereinafter 2 “DPC”, hereinafter W.P.(C) 4506/2021 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.04.2025 16:30:05 the ITBP is determined on the basis of Rule 8(b)(ii)(e)3 of the CRPF4 Rules 1955, in terms of Rule 1875 of the ITBP Rules 1994. This position is acknowledged even in the impugned order dated 18 November 2020 and is not, therefore, in dispute.

5. On 6 February 2019, the respondent issued a seniority list in the grade of Assistant Commandant, in which, according petitioners, their seniority vis-a-vis respondents-promotee Assistant Commandants6 was correctly fixed.

The petitioners are aggrieved by the fact that a revised seniority list in the grade of Assistant Commandant was issued on 24 April 2020 in which the petitioners were shown en bloc below the promotee ACs. No show cause notice was issued to any of the petitioners prior to such downward fixation of their seniority. 3 8. Seniority . – (b) ***** The inter se seniority of Superior Officers shall be determined as under: ***** (ii) The inter se seniority of direct recruits to the Central Reserve Police Force in the rank of Company Commander or Quarter Master or Assistant Principal, Central Training College, shall be determined in accordance with the aggregate marks obtained by them before the selection board and at the passing out examinations conducted after their basic training at the Central Reserve Police Force, Internal Security Academy. An officer promoted locally in the Central Reserve Police Force or from a Subordinate Police Service in the State shall take rank immediately below the entire batch of direct recruits, any officer of which may have been appointed on the same date, the inter se seniority between local promotes from the States shall be determined with reference to their dates of birth. ***** (e) A person promoted to a higher rank and a person recruited direct to the same rank shall have their seniority from the date of appointment to that rank subject to the condition that if both were appointed on the same date, the former (promotee) shall be senior: Provided further that if the date of confirmation is the same their seniority immediately before such confirmation shall remain unaffected. 4 Central Reserve Police Force 5 187. Transitory provision. – Any rule or order applicable to the Force on commencement of these rules shall unless repugnant to these rules, continue to apply unless and until abrogated or modified by the Central Government or any other competent authority. 6 “the promotee ACs” hereinafter W.P.(C) 4506/2021 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.04.2025 16:30:05

7. The petitioners represented against the aforesaid revised seniority list on 28 April 2020. The representations were dismissed by the respondents vide OM dated 18 November 2020 issued by the Ministry of Home Affairs7, paras 2 to 5 of which read thus: “2. In this regard it is intimated that the MHA vide their OM No. 9/11/55-RPS dated 22nd December 1959 inter-alia provides that the principles of seniority of Direct Recruits and Promotee shall apply to the determination of seniority in Central Civil Services and Civil Posts except such services and post for which separate principles have already been issued or may be issued by the Govt. These guidelines have also been referred in DoP&T OM No.20011/1/2008-Estt(D) dated 11.11.2010.

3. The seniority of Direct Recruit officers and Promote officers in ITBP are determined as per Rule 8 (b) (ii) & (e) of CRPF Rules in terms of Transitory Provision under Rule-187 of ITBP Rule 1994. Thus, separate principles are available for determining seniority amongst the Direct Recruits and Promotee Officers in Force, Hence, the DoP&T OM dated 07.02.1986 & 03.07.1986 are referred in DoP&T OM dated 04.03.2014 are not applicable in ITBP Besides, while issuing offer of Appointment to all applicants for appointment as AC/GD (DF), it is clearly specified that their services will be governed under TBPF Act-1992 and Rules-1994 and their seniority will be decided as per CRPF Rule 8 (b) (ii). Since, there was, no DPC could take place for empanelment 4. promotion to the rank of AC(GD) during the year 2013-14 for 2016-17 due to stay imposed by the Hon'ble High Court of Delhi in merger/de-merger case. However based on the order passed by the Hon'ble Supreme Court of India the ITBP conveyed DPC on 26.07.2017 duly taking into consideration year wise vacancies from 2013-14 to 2016-17 as per provision contained in DoP&T OM dated 10.04.1989. Hence, the seniority lists of GD Cadre as on 01.01.2020 has been issued to all formations of the Force vide this Directorate OM No. 5802-35 dated 24.04.2020 placing the ACs promoted during the year 2017 against the vacancy year 2013-14 to 2016-17 in respective years as they were not promoted during these vacancy year due to the merger/de-merger case.

5. TBPF/CRPF Act & Rules or Due to non availability of specific provision either in instructions for in DoP&T 7 “the MHA” hereinafter W.P.(C) 4506/2021 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.04.2025 16:30:05 inter-se- seniority determining case of officer considered/assessed by the DPC for previous years where DPC could not be held due to any reasons/circumstances. In fact, the officers promoted against previous relevant vacancy year is August 2017, have been assigned seniority below the entire batch of Direct Entry AC(GD) and LDCE AC(GD) who joined ITBP as AC(GD) in that particular vacancy year However, actual promotion in respect of all these officers appointed as AC(GD) on promotion against the vacancy year 2013-14 to 2016-17 has not been changed and their further service prospects will be looked into with reference to their actual date of promotion strictly as per the RRs.”

8. Aggrieved thereby, the petitioners have instituted the present writ petition, seeking that the seniority list of Assistant Commandants, circulated by the ITBP under cover of OM dated 24 April 2020, be quashed and set aside, along with the rejection of the petitioners’ representations against the OM dated 18 November 2020. A further prayer for a direction to the respondents to publish a revised seniority list, in which the seniority of the petitioners, vis-à-vis the promotee ACs is confirmed, is sought.

9. In the counter-affidavits filed by way of response to the writ petition, the respondents’ stand is that promotions against promotion quota vacancies of Assistant Commandant during the years 2013-2014 to 2016-2017 could not be filled up in time owing to an order dated 8 January 2013 passed by this Court in WP (C) 7545/20118 and WP (C) 596/20129. As a result, promotions against vacancies which arose during all these years were effected only in 2017. The assignment of seniority, to promotee-ACs, w.e.f. the relevant vacancy year, it is submitted, was to balance equities and ensure that the officers did not 8 Saurabh Dubey v UOI 9 Amit Kumar Gupta v UOI W.P.(C) 4506/2021 Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:30.04.2025 16:30:05 lose out on seniority owing to no fault of theirs. The allegation that retrospective promotion was granted to the promote-ACs is denied, and it is sought to be submitted that assignment of seniority was strictly in terms of para 6.4.4 of OM dated 10 April 1989 issued by the Department of Personnel & Training10. The respondents place reliance, for this purpose, on the judgments of the Supreme Court in Asis Kumar Samanta v State of West Bengal11 and K. Meghachandra Singh v Ningam Siro12. Rival Submissions

10. We have heard Ms. Maninder Acharya, learned Senior Counsel for the petitioners, Ms. Pratima N. Lakra, learned Central Government Standing Counsel for the UOI and Mr. Sagar Saxena, learned Counsel for the promotee ACs, who have been impleaded as respondents.

11. Ms. Acharya places reliance on Rule 8(e) of the CRPF Rules which, she submits, squarely requires inter se seniority, among direct recruit and promotee ACs, to be fixed as per their date of appointment as AC. The promotee is entitled to seniority over the direct recruit only if both were appointed on the same date. She also relies on para

6.4.4. of the DOPT OM dated 10 April 1989, which reads thus: “6.4.4 While promotions will be made in the order of the consolidated select list, such promotions will have only prospective effect even in cases where the vacancies related to earlier years.”