Decided on February 09,1982

UNION OF INDIA Respondents


- (1.) IN this petition under Art. 226 of the Constitution of India read with Section 103 of the Constitution of J&K State, it has been prayed that a writ of certiorari be issued quashing the order giving seniority to the respondent No. 3, with effect from 15 -4 -1963 by virtue of order No. 31/69/80/ ORG/BSF dated 25 -5 -1981 and in consequence, it has been prayed, that the respondents 1 & 2 be restrained from promoting respondent No. 3/as/2/1/ C and commandant.
(2.) THE petitioner claims to have joined the Army on 10/11 April 1963 as an officer Cadet at Indian Military Academy Dehra Dun and passed out on 27 -9 -73 as a Commissioned officer under EC No. 52626. The petitioner after having been selected for permanent absorption was taken on deputation from Army to BSF on 20 -X -1967 when he was a Captain in the Army. He was selected in July/August 1967 for B.S.F. by a High Power Special Recruitment Board of the Ministry of Home Affairs. Govt. of India, against one of the reserved posts for the Emergency Commissioned Officer. The Respondent No. 3 also an Emergency Commissioned Officer, was rejected by the Special Recruitment Board for being absorbed in the B.S.F. on account of his service record and interview on merits. The respdt No. 3, however, was selected but in 1968 was allowed seniority from 23 -11 -67 in the BSF as Asstt. Commandant, taking into consideration the period of over 7 months for which he was without a job, and accordingly his seniority was fixed and shown at serial No. 417 in the Gradation of BSF Officers. List, as issued on 1 -9 -80 by the Director -General BSF while the petitioners name appeared at serial No. 151 of the same Gradation List. The petitioner was promoted by the D. P. C. on adhoc -basis as Dy. Commandant in Nov. 1972, but was made regular Dy Commandant in 1974 by a duly constituted D. P. C. The respondent No. 2 was the Chairman of this D. P. C. The petitioner thereafter from 1.4.81 was promoted as 2 I/C. The petitioner was confirmed as Dy. Commandant with effect from 1.1.1977 while the respdt. No. 3, became Dy. Commandant on 5. 6. 1977. The respondent No. 2, however, vide order No. 31/49/ 80/ORG/BSF dated 25. 5. 81 altered the seniority of respondant No. 3 for purpose of promotion and other benefits taking into account for the period for which he was without job. Accordingly, the petitioner alleges, that vide order dt. 25. 5. 1981, the respdt. No. 3 was given a higher place in the Gradation List in inasmuch as he was placed in the Gradation List in between serial No. 149 and serial No. 150. This according to the petitioner was simply a manipulation to promote the respondent No. 3 as Commandant and the orders for his promotion were in the offing. The chances of promotion of the petitioner as Commandant have thus become bleak.
(3.) THE petitioner has challenged the order of placing respdt. No. 3 at place in between serial No. 149 and serial No. 150 of the Gradation List on a number of grounds including that i the respdt. No. 3 has a break in service for a patently more than 7 months ; ii that the order is patently illegal and contrary to the rules of promotion governing the BSF personnel ; iii that the order has been passed without notice to the petitioner and others whose seniority has been affected; iv the petitioner as well as others effected have not been even given a hearing ; v the order was based on mala fide intentions so as to confer undeserved and undue benefit on the respdt No. 3 and also on some other grounds. In their reply affidavit respondent Nos. 1 and 2 have stated that the writ petition was not maintainable for the reason that the petitioner was not availed of the alternative remedy available to him under service rules. It has been alleged that the petition raised disputed and complicated questions of fact which could not be considered and decided in the Writ Petition. It has also been alleged that the petitioner has suppressed real facts and tried to mislead the court by giving distorted facts so as to prejudice the court against the respondent No 2. There was nothing on record to show that the respondent No. 3 was rejected by Special Recruitment Board on the basis of his service record and interview. It has been next alleged in reply to para 9 of the writ petition that the time of preparation of the Gradation List Published on 1.9.1980 and referred to by the petitioner, the respondent No. 3 was not successful in proving his assertion that he had applied for selection the BSF in the year of release from the Army and as such his seniority in the rank of Asstt. Commandants was determined showing him at serial No. 417 of the Gradation List. He made a representation against this order which was allowed and the break in service as alleged, therefore, had no relation with the determination of the seniority of the respondent No. 3. It is next asserted that the appointment of 2 I/C was only an assignment and not a promotion. It has been also alleged, that in fact respondent No. 3 was senior to the petitioner in the Armed Service and on restoration of his seniority in the BSF he has rightly been placed senior to the petitioner in the rank of Assistant Commandant in the B. S. F. It has been next alleged that losing a few places in the seniority list would not give any right to any Govt. Servant to file a writ in the High Court. It has been contended that the next post for promotion being a selection post, merit and ability would be the prime considerations.;

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