Mr. A.K. Behera, Sr. Adv., with Mr. Amarendra P. Singh, Adv v. UNION OF INDIA ANR

Judgment

1. The petitioner1, Bhupinder Kumar Malik, is before us in challenge against Order dated 3 November 2009, whereby he was promoted to the post of Deputy Judge Attorney General/ Deputy Signature Not Verified 1 “Bhupinder”, hereinafter. Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 14156/2009 Page 1 of 50 Commandant2 with immediate effect – to the extent that he seeks seniority in the post with effect from 2002.

2. Thereafter, he prays to be declared as being in service as Judge Attorney/ Assistant Commandant3 with effect from 10 July 1995, and in the capacity of Deputy JAG / DC with effect from 2002.

3. Subsequently, Bhupinder prays for directions to Respondent 2/ Director General4 Indo Tibetan Border Police Force5 to convene a Department Promotion Committee6 to assess his suitability for promotion to the post of Additional Judge Attorney General/ Commandant7, along with a plea for the grant of relaxation of certain eligibility criteria according to relevant Office Memoranda.

4. Lastly, he wishes for his seniority in the post of Additional JAG to be calculated as accruing from January 2009, with consequential service benefits.

5. Bhupinder commenced his career with the ITBPF on 1 September 1978, with his initial appointment as Jamadar/General Duty (presently equivalent to Sub-Inspector/General Duty). He was subsequently promoted to the rank of Subedar/General Duty in 1985 (presently equivalent to Inspector/General Duty). 2 “Dy. JAG/ DC”, hereinafter 3 “JA/AC”, hereinafter 4 “DG”, hereinafter 5 “ITBP”, hereinafter 6 “DPC”, hereinafter 7 “Addl. JAG/ Comm”, hereinafter Signature Not Verified Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 14156/2009 Page 2 of 50

6. Bhupinder obtained his Law Degree from Choudhary Charan Singh University, Meerut, Uttar Pradesh, in 1994.

7. On 10 July 1995, he was promoted to and assumed charge as Assistant Commandant/General Duty8. This promotion placed him in the pay scale of ₹ 2200-75-2800-EB-100-4000, which has since been revised to Pay Band-3, ₹ 15,600-39,100, with a Grade Pay of ₹ 5,400.

8. The recruitment rules applicable to the post of Judge Attorney were notified on 14 September 1999 and subsequently amended in

2001. The said rules, provided for filling up of posts through deputation or absorption,inter alia, andthe portion relevant to Bhupinder’s case has been reproduced below for ready reference: (1) (2) (3) Judge

4. Attorney (Assistant Commandant ) General Central Service Group “A” Gazetted (Non-Ministerial) Rs. 8000-275-13500/- (4) (5) (6) Selection by merit Not applicable Not applicable (7) (8) (9) Not applicable Not applicable (10) Not applicable Signature Not Verified 8 “AC / GD”, hereinafter Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 14156/2009 Page 3 of 50 By deputation/absorption failing which by re-employment. (11) By Deputation/Absorption By deputation/absorption of a person who: i) Is or has been an officer of Central/State Government holding the analogous post and is having the degree in law of a recognized University or equivalent; or ii) Is or has been an officer holding the post of Assistant Commandant or equivalent in the pay scale of Rs. 8000-275-13500 in the Central Police Organizations having degree in law of a recognized university or equivalent; or iii) Is or has been an officer of the rank of Captain or equivalent in the department of the Judge Advocate General in Army/Navy/Air Force. By Re-employment By re-employment of person who is or has been an officer of the rank of Captain in the Department of Judge Advocate General in Army/Navy/Air Force. Note – ( Period of deputation including of deputation from another Ex-Cadre post held immediately proceeding of this appointment in the same or other organization/department of central Government shall ordinarily not exceed three years. The maximum age limit for eligibility for deputation shall be fifty-six years on the date of receipt of application. (12)

Group “A” Departmental Promotion Committee for confirmation consisting of: Director General Indo Tibetan Border Police Force –

1. Chairman Inspector General, Indo Tibetan Border Police Force –

2. Member

3. Director /Deputy Secretary, Ministry of Home Affairs – Signature Not Verified Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 14156/2009 Page 4 of 50 Member Deputy Inspector General/Chief Administrative Officer

4. Indo-Tibetan Border Police Force – Member (13) Exempted from the purview of the Union Public Service Commission consultation. (F. No. I-12012/01/94/ORG/Pers-I)

9. Vide order dated13 March 2000 by the Inspector General ITBPF, Bhupinder was appointed as Judge Attorney in a General Force Court. This was followed by his attachment to the Judge Attorney Branch, Directorate General, ITBP, vide DG ITBPF order dated 10 April 2000, to perform the duties of Judge Attorney (Assistant Commandant). The recruitment/appointment

10. relevant recruitment rules9, is conducted through two channels, i.e., deputation/ (AC), per to JA absorption, and re-employment.

11. Vide order dated 22 August 2000, the appointment of Bhupinder to the post of Judge Attorney (Assistant Commandant) on deputation basis for a period of three years, effective 16 August 2000, was confirmed with the concurrence of the Ministry of Home Affairs. Signature Not Verified 9 “RRs”, hereinafter Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 14156/2009 Page 5 of 50 This deputation was the consequence of an application against an advertisement published by the ITBP for the year 2000, concerning JAG cadre posts, wherein he satisfied clause (i) supra, given his existing rank as Assistant Commandant/General Duty, coupled with his law degree.

12. During his tenure on deputation in the Judge Attorney General (JAG) cadre, while holding the post of Assistant Commandant in his parent cadre, Bhupinder received a financial upgradation to senior time scale in 2001, which elevated his pay to the grade of ₹ 10,000- 325-15,200/- (presently Pay Scale ₹ 15,600 - 39,100, Grade Pay ₹ 6600).

13. On 23 April 2003, he was found eligible by a DPC for promotion in his parent cadre the post of Deputy Commandant/General Duty (Deputy Commandant/GD) in the pay scale of ₹ 10,000-325-15,200/-.

14. However, Bhupinder opted for absorption into the lowest rung of the Judge Advocate General (JAG) cadre instead, i.e., as JA (AC).

15. This request for absorption was accepted, in public interest, vide order dated 3 October 2003, issued with the approval of the Ministry of Home Affairs,

16. Following such absorption, the petitioner became the only cadre officer of the Force to be serving in the JAG cadre as Judge Attorney (Assistant Commandant), with no other feeder cadre officers available Signature Not Verified Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 14156/2009 Page 6 of 50 for promotion to the post of Deputy Judge Attorney General (Deputy Commandant), apart from deputationists.

17. The Recruitment Rules of 1999, amended in 2001, governing the promotion from Judge Attorney (Assistant Commandant) to Deputy Judge Attorney General (Deputy Commandant), stipulated an eligibility criterion of "six years regular service in the grade".

18. Bhupinder alleges that he became eligible for promotion to the post of Deputy Judge Attorney General (Deputy Commandant) in the year 2002, having completed six years of regular service accruing from the year 1995 (considering that he held the analogous post of AC/ GD from 10 July 1995) and remaining in medical category SHAPE-1, in accordance with the Recruitment Rules of 1999 as amended in 2001.

19. However, it is his claim that, despite fulfilling the requisite eligibility criteria, his case for promotion and seniority was not processed in a timely manner.

20. Bhupinder was not considered for promotion during the routine cases of 2007, and consequently submitted a representation dated 2 June 2007, asserting that his eligibility for promotion ought to be computed as accruing since 1995. Additional representations were submitted on 7 August 2007 and 16 October 2007. A reply dated 7 November 2007 stated that the matter was under process, with no subsequent follow-up. Signature Not Verified Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 14156/2009 Page 7 of 50

21. Further representations were made, including one dated 12 August 2008, which remained unanswered for nearly a year.

22. In March 2009, Bhupinder was transferred to the Northern Frontier Headquarters, Seemadwar, ITBP, Dehradun. A subsequent representation was submitted on 2 June 2009, aggrieved by the continued inaction regarding his non-consideration for promotion. This was forwarded on 4 June 2009, along with his application for a personal hearing.

23. The Senior Administrative Officer acknowledged his request on 19 June 2009, confirming that the matter was under examination by the JAG Branch. A request for a personal audience submitted on 30 June 2009 was approved on 3 July 2009, and Bhupinder accordingly met with Respondent 2/ DG ITBP on 28 July 2009, submitting a further representation highlighting his continuous service since 1995.

24. Thereafter, on 3 November 2009, Bhupinder was ultimately promoted to the post of Deputy JAG/Deputy Commandant with immediate effect, in the pay band of Rs. 15,600–39,100 with Grade Pay Rs. 6600.

25. During the pendency of this writ petition, Bhupinder superannuated on 31 May 2014.

26. The issue before us is an elementary one, reduceable to the question of what would constitute “regular service in the grade”, Signature Not Verified Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 14156/2009 Page 8 of 50 specifically the context of deputationists who have been subsequently absorbed in their target cadre, where they allege to have previously held an analogous post in their parent cadre.

27. The answer to this question, inevitably possessing a cascading effect, ought to be applied to the calculation of Bhupinder’s seniority on three fronts.

28. Firstly – to his seniority as JA / AC, secondly – to his seniority as Dy. JAG / DC, and lastly, while considering his eligibility for promotion to the post of Additional JAG / Commandant and his plea for relaxation of eligibility criteria in connection thereof.

29. On these points, arguments were advanced on behalf of Bhupinder by Mr. A.K. Behera, learned Senior Counsel, and on behalf of the respondents by Mr. Bhagvan Swaroop Shukla, learned CGSC. Contentions on behalf of the Petitioner

30. Mr. A.K Behera, learned Senior Counsel, advanced his arguments on four fronts – first arguing to establish the analogous nature of Bhupinder’s post of AC in his parent cadre, with that of JA / AC in the JAG cadre. Thereafter, he attempted to persuade the court that the phrase “service in the grade” ought to encompass service rendered in an analogous post of the petitioner’s parent cadre. Thirdly, the argument of mala fides has been pressed through pleadings, with respect to the alleged delay in fixation of Bhupinder’s seniority. Signature Not Verified Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 14156/2009 Page 9 of 50

31. To substantiate his arguments, reliance was placed on relevant Office Memoranda of the DOPT and DOPAR, certain clarifications issued by the MHA, along with relevant judicial authorities.

32. Fourthly, before proceeding on his main line of argumentation, Mr. Behera sought to persuade the Court that in case of the existence of – i) a vacancy, ii) an eligible candidate, and iii) no conscious decision,nor valid reason, provided for keeping such a post unfilled, that - where an eligible candidate is promoted later, such candidate is entitled to ante-dating of promotion with effect from the date of attaining eligibility to the relevant post.

33. In support of this claim, reliance was place on para 12 of UOI v N.R Bannerjee10, as well as para 51 of Praveen Srivastava v UPSC11, both ofwhich stand reproduced below: interest and omission “12. Considered from that perspective, the question arises whether the view taken by the Tribunal is justified in law. It is true that filling up of the posts are for clear or anticipated vacancies arising in the year. It is settled law that mere inclusion of one's name in the list does not confer any right on him/her to appointment. It is not incumbent that all posts may be filled up. But the authority must act reasonably, fairly and in thereof should not be arbitrary. public In Shankarsan Dash v. Union of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95 : (1991) 2 SCR 567] the Constitution Bench had held that inclusion of the name of a candidate in a merit list does not confer any right to be selected unless the relevant recruitment rules so indicate. The State is under no legal duty to fill up all or any of the vacancies even though the State acts in an arbitrary manner. In Babita Prasad v. State of Bihar [1993 Supp (3) SCC 268 : 1993 SCC (L&S) 1076 : (1993) 25 ATC 598] it was held that mere inclusion of one's name in the panel does not confer on him/her any indefeasible right to appointment. It was further held that the purpose of making a Signature Not Verified 10 (1997) 9 SCC 287 11 2017 SCC OnLine Del 8710 Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 14156/2009 Page 10 of 50 rule entitling him to such appointment. panel was to finalise the list of eligible candidates for appointment. The preparation of the panel should be to the extent of the notified or anticipated vacancies. Unduly wrong panel should not be operated. In Union Territory of Chandigarh v. Dilbagh Singh [(1993) 1 SCC 154 : 1993 SCC (L&S) 144 : (1993) 23 ATC 431] it was held that the mere fact that a candidate's name finds a place in the select list as a selected candidate for appointment to a post, does not confer on him/her an indefeasible right to be appointed in such post in the absence of any In State of specific Bihar v. Secretariat Asstt. Successful Examinees Union 1986 [(1994) 1 SCC 126 : 1994 SCC (L&S) 274 : (1994) 26 ATC 500] it was held that a person who is selected and empanelled does not on account of empanelment alone acquire any indefeasible right to appointment. Empanelment is, at the best, a condition of eligibility for the purposes of appointment and that by itself does not amount to selection or creation of a vested right to appointment unless relevant rules state to the contrary. However, in the light of the above principles and in the light of the clear rules extracted hereinbefore, it is seen that the exercise of preparation of the panel is undertaken well in advance to fill up the clear vacancies or anticipated vacancies. The preparation and finalisation of the yearly panel, unless duly certified by the appointing authority that no vacancy would arise or no suitable candidate was available, is a mandatory requirement. If the annual panel could not be prepared for any justifiable reason, yearwise panel of all the eligible candidates within the zone of consideration for filling up the vacancies each year should be prepared and appointment made therewith. In Nagar Mahapalika v. Vinod Kumar in accordance Srivastava [(1987) 1 SCC 602 : (1987) 3 ATC 25 : AIR 1987 SC 847] this Court had pointed out with respect to the prescription of the limitation of one year of the waiting list thus: “The reason underlying the limitation of the period of a list for one year is obviously to ensure that other qualified persons are not deprived of their chances of applying for the posts in the succeeding years and being selected for appointment.”

51. For the same reason, the contention of the respondents that the petitioners have no right or claim for appointment is misconceived for the petitioners do not claim any such right. The petitioners claim right to be considered for appointment, which cannot be denied by the State acting in an arbitrary manner. Constitution Bench in Shankarsan Dash v. Union of India, (1991) 3 SCC 47, has held that it is not necessary for the State to fill up the notified vacancies even when adequate number of candidates are found fit, for the candidates have no indefeasible right to appointment. The notification or advertisement is only an invitation to qualified candidates to apply for selection. Signature Not Verified Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 14156/2009 Page 11 of 50 However, this does not mean that the State has a licence to whimsically deny appointment by not filling up vacancies. The decision not to fill up a vacancy should be for appropriate and good reasons. It has to be taken bonafidely. We have followed and applied the aforesaid ratio and find that the case of the respondents would falter and fail, as the power of relaxation has not been exercised in accordance with law. Thus, the foundation and basis for non- appointment collapses. The petitioners would be covered by the said ratio and are entitled to be considered for appointment as DLAs.”

34. Resuming his main line of argumentation, Mr. Behera drew our attention to DOPAR OM dated 7 March 1984, prescribing criteria for the determination of analogous posts. We deem it appropriate to reproduce the OM for ready reference: “No. 14017/27/75-Estt.(D)(Pt) Government of India/Bharat Sarkar Ministry of Home Affairs/Grih Mantralaya Department of Personnel & Administrative Reforms (Karmik Aur Prashasnik Sudhar Vibhag) New Delhi, the 7th March, 1984 OFFICE MEMORANDUM Subject: Criteria for determining analogous posts. Whenever the recruitment rules for a post prescribe ‘transfer on deputation/transfer’ as a method of filling up the post, it generally contains an entry in column 12 of the standard form of schedule stating inter-alia that the transfer on deputation/transfer shall be made from the Central/State the officers holding analogous posts under Governments. This Department has been receiving references from various Ministries /Departments asking for the definition of the words analogous posts. It has, therefore, been considered appropriate to lay down the following criteria for determining whether the posts in question could be treated as analogous to each other or not in so far as posts under the Central Government are concerned:– (i) Though the scales of pay of the two posts which are being compared not be identical, they should be such as to be an extension of Signature Not Verified Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 14156/2009 Page 12 of 50 or a segment of each other, e.g. for a post carrying the pay scale of Rs. 1200–1600, persons holding posts in the pay scale of Rs. 1100–1600 will be eligible and for a post in the scale of Rs. 1500–2000, persons working in posts carrying pay scales of Rs. 1500–1800 and 1800– 2000. (ii) Both the posts should be falling in the same group of posts as defined in the same group of posts as defined in the Department of Personnel and Administrative Reforms Notification No. 21/2/74- Estt.(D) dated the 11th November 1975. (iii) The levels of the responsibility and the duties of the two posts should also be comparable. (iv)(a) Where specific qualification for transfer on deputation/transfer have not been prescribed the qualifications and experience of the officers to be selected should be comparable to those prescribed for direct recruits to the post where direct recruitment has also been prescribed as one of the methods of appointment in the recruitment rules. (b) Where promotion is the method of filling up such posts, only those persons from other Departments may be brought on transfer on deputation whose qualifications and experience are comparable to those prescribed for direct recruitment for the feeder grade / post from which the promotion has been made.

2. As far as the posts under the State Government Public Undertakings, etc. are concerned, it is quite likely that even posts with identical designations may not have comparable scales of pay and they may also differ with reference to the extent and stage of merger of D.A. with pay. The levels in the hierarchy and the nature of duties, may not also be comparable. These posts may not also be classified into 4 groups as has been done under the Central Government. Taking these factors into consideration the selecting authorities may have to be guided more by the nature of duties performed by the candidates in their parent organization vis-a-vis, those in the posts under selection, and qualifications and experience required for the post under the Central Government transfer/deputation (including short-term contract) from outside the Central Government service. Since details of recruitment rules for the posts under State Government/Public undertaking etc. may not be available, bio-data sheets, signed by the officers themselves and certified qualification, experience, assignments held in the past, contributions / countersigned by their employer for making appointments indicating selection Signature Not Verified Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 14156/2009 Page 13 of 50 made by them in the field of research, publications to their credit and any other information which the officers might consider relevant for assessing their suitability for the post in question may be obtained in the Performa (enclosed) prescribed vide the Department of personnel and A.R.’s O.M. No. 3911/8/81/Estt. (B) dated the 18th July, 1981.

3. The Ministries / Departments are requested to keep the above guidelines in mind in examining the applications from officers holding analogous posts for making selection by the process of transfer on deputation transfer (including short-term contract). (K.S.R. Krishna Rao) Under Secretary to Government of India Tele: 373180 To All Ministry/Departments of the Govt. of India.”

35. Mr. Behera contended that there is no provision for direct recruitment in the post structure of the JAG cadre, and that deputation/absorption and re-employment are only provided for at the lowest rung of the cadre, being the post of JA / AC, and that the duties that Bhupinder was discharging in the post of AC (GD) from 10 July 1995 were analogous to that of JA / AC, for the following reasons: a. The post of AC / GD corresponded to the pay scale of ₹ 8,000-275-13,500, which is equivalent to that of the post of JA / AC. b. Considering the ITBPF Act, 1992, and its 1994 Rules, all officers of the rank of AC and above dealt with matters concerning disciplinary cases, drafting of charges, conducting prosecution, Courts of inquiry, preparing Records of Evidence, and awarding punishments to defaulters, and Signature Not Verified Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 14156/2009 Page 14 of 50 that these were similar duties / responsibilities as those performed by officers in the JAG cadre. c. Rule 7 of the JAG Cadre RRs and Conditions of Service dated 14 September 1999 provides that officers of the cadre hold corresponding ranks/ status to the other officers of the ITBP. d. Bhupinder was appointed JA / AC in a General Force Court vide order dated 13 March 2000 and was also subsequently appointed to perform the duties of JA / AC to prepare a Record of Evidence vide order dated 12 June 2000.

36. After attempting to satisfy the Court on the analogous nature of the posts in question, Mr. Behera proceeded to advance his submissions on the interpretation of the phrase “regular service in the grade”.

37. It was submitted that this phrase ought to be construed in a manner encompassing service rendered from the date of Bhupinder’s holding of the allegedly analogous post of AC / GD (10 July 1995), and not from his date of absorption into the JAG cadre (3 October 2003).

38. For this purpose, Mr. Behera placed reliance on the following judgments, which shall be discussed during our evaluation of the merits of this argument: Signature Not Verified Signed By:SHILPI Signing Date:08.08.2025 20:04:16 W.P.(C) 14156/2009 Page 15 of 50 a. SI Rooplal v Lt. Governor through Chief Secretary, Delhi12(para 23). b. K. Madhavan v UOI13(para 21). c. UOI v Pankaj Agnihotri14 (paras 34-36).

39. Reliance has also been placed on the following OMs: a. DOPT OM dated 3 July 1986. b. DOPT OM dated 27 March 2001.

40. It was also argued that Bhupinder’s absorption into the JAG cadre, vide order dated 3 October 2003, was not accompanied with caveat as to the non-counting of past service rendered by him as AC / GD for the purpose of determination of his seniority in the JAG cadre.

41. On the argument of mala fides, it has been pleaded that the DG ITBP sought clarification regarding the seniority of various cadres within the same department / organisation vide Letter dated 10 March 2008, followed by a note dated 16 May 2008 seeking the same clarifications, relevant portions of which stand extracted below: “DIRECTORATE GENERAL, ITBP (Ministry of Home Affairs) Subject: Clarification recruitment Rules of various department/organization. regarding seniority and cadres within framing