ASI/T ARUN KUMAR MISHRA AND ORS vs UNION OF INDIA AND ORS
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: February 26, 2024
+ W.P.(C) 15102/2022
(30) ASI/T ARUN KUMAR MISHRA AND ORS
….. Petitioners
Through: Ms. Ankita Patnaik, Adv.
versus
UNION OF INDIA AND ORS
….. Respondents
Through: Mr. Ripu Daman Bhardwaj, CGSC with Mr. Kushagra Kumar,
Mr. Vedansh Anand and
Mr. Abhinav Bhardwaj, Advs. for UOI
CORAM:
HON’BLE MR. JUSTICE V. KAMESWAR RAO
HON’BLE MR. JUSTICE SAURABH BANERJEE
V. KAMESWAR RAO, J. (ORAL)
1. This petition has been filed by the petitioners with the following prayers:
It is therefore most respectfully prayed that this Hon’ble Court may be pleased to:-
(A) Issue of a Writ of Certiorari quashing Clause 4 Column 12 of the Schedule of the Central Reserve Police Force Croup ‘B’ and ‘C (Radio Operator, Crypto, Technical, Radio Fitter, Draughtsman) (Non-Gazetted) Male or Female ranks (Signals) Recruitment Rules, 2006 (hereinafter referred to as the ‘Rules’) to the extent it states that a Head Constable (Radio Fitter) shall be remustered as an Assistant Sub Inspector (Technical) after they are selected in the aptitude test end successfully qualify the Basic Radio Mechanic Course (BRMC),
(B) Issue a Writ of Certiorari quashing of the gradation list dated 01.03.2016 for ASI/T.
(C) Issue a Writ of Certiorari quashing all orders denying the Petitioners the seniority from the date the BRMC commences
(D) Issue a Writ of mandamus directing the Respondents to refix the seniority of the Petitioners as ASI/T from the date of commencement of their respective BRMC Course
(E) Issue a writ of Mandamus directing the Respondents to grant 1st MACP to the Petitioners w.e.f the date of completion of 10 years since the commencement of their BRMC and ail other consequential benefits.
(F) Pass any other appropriate order / direction which this Honble Court deem fit and proper.
2. According to Ms. Ankita Patnaik, learned counsel appearing for the petitioners, the petitioners are seeking quashing of Clause 4 Column 12 of the Schedule of the Central Reserve Police Force Group B and C (Radio Operator, Crypto, Technical, Radio Fitter, Draughtsman) (Non-Gazetted) Male or Female ranks (Signals) Recruitment Rules, 2006 (Rules of 2006, for short) to the extent, it states that a Head Constable (Radio Fitter) [HC (RF), for short] shall be remustered as Assistant Sub-Inspector (Technical) [ASI (T), for short] after they are selected in the aptitude test and successfully qualify the Basic Radio Mechanic Course (BRMC, for short). According to her, the gradation list dated March 1, 2016 for ASI (T) denying the seniority to the petitioners from the date BRMC commences is bad. She states, as per the Recruitment Rules in order to remuster as ASI (T), HC (RF) must qualify the aptitude test and undergo BRMC and it is only after successful completion of BRMC, he is remustered. She further states that the petitioner Nos.1 to 42 underwent BRMC-38 from November 14, 2011 to June 30, 2012 and their results were declared on July 27, 2012 but were granted the seniority as ASI (T) w.e.f. August 2, 2012. While the direct recruits to the post of ASI (T) were first made to undergo basic training of 11 months and thereafter, they underwent BRTC for a duration of almost 11 months and despite which they were granted seniority as ASI (T) from the date of joining of CRPF and not from the date on which they completed the training.
3. It is her submission that the petitioners who completed BRMC-38 on June 30, 2012 were granted seniority w.e.f August 2, 2012 but the direct recruits who completed the BRTC-39 much later on December 30, 2013, i.e., almost a year and half later, were granted seniority as ASI (T) above the petitioners w.e.f. January 16, 2012 and as such, the action of the respondents is irrational, arbitrary and liable to be quashed. Based on the aforesaid submissions, she states, the gradation list needs to be redrawn and also the benefits thereof must flow to the petitioners.
4. On the other hand, the case of the respondents is that the petitioners had joined CRPF as Constable between 1997-2004. Later on they were selected in Basic Radio Fitter Aptitude Test (BRFAT, for short) and after successful completion of BRFAT, they were remustered in Signal Cadre as HC (RF). According to Mr. Ripu Daman Bhardwaj, learned CGSC appearing for the respondents, after completion of two years of service as HC (RF), those willing could appear in the BRFAT for remustering as ASI (T) and those, who selected in BRFAT undergo BRMC and the successful candidates were remustered as ASI (T). He submits that the petitioners who were willing to be remustered as ASI (T) appeared for BRFAT and were remustered as ASI (T) after successful completion of BRMC on different dates between 2012-2013.
5. In the year 2012, several candidates were directly recruited as ASI (T) and their inter-se seniority was fixed as per the provisions contained in paragraph 9.7 (d)(ii) and (e) of the Signal Manual, which reads as under:
d) The seniority on re – mustering from one trade to another will be determined as under:-
ii)HC (RF) TO ASI I TECH
From the date of passing Trade Test Board (TTB) of BRM or appointment as ASI I TECH, whichever is later.
e) The Seniority of direct appointees in the categories of Operator, Crypto, Radio Fitters and Radio Mechanics will be determined from the date of enlistment and paid as such.
Communication Directorate will issue office order approving re-mustering and promotions based on combined seniority list and availability of vacancies in Communication Sector. Inter – se – seniority of departmental candidates and direct appointees will be determined under the provisions of CRPF Rules.
6. He states, as per Chapter 40 of the Swamys Complete Manual on Establishment and Administration, seniority may be de-linked from confirmation as per the directive of the Supreme Court in Para 47(A) of the Judgment dated May 2, 1990. Accordingly, in modification of General Principle 3, proviso to General Principle 4 and Proviso to General Principle 5 (i) contained in OM dated December 22, 1959 and OM dated July 3, 1986, it has been decided that seniority of a person regularly appointed to a post, according to the Rule would be determined by the order of merit indicated at the time of initial appointment and not according to date of confirmation. In other words, seniority of HC (RF) remustered as ASI (T) will be counted from the date of appointment (remusteration) and that of directly appointed ASI (T) will be counted from the date of enlistment. According to him, the present petition has been filed by the HC (RF) claiming that although they had completed BRMC earlier, the directly enlisted ASI (T) have been placed senior to them although they had completed BRTC later than them.
7. He states that the seniority of HC (RF) remustered as ASI (T) will be counted from the date of appointment / remusteration and that happens only after they complete BRMC, whereas the seniority of directly appointed ASI (T) will be counted from the date of their enlistment. He submits that the date of completion of BRMC has no relevance with the seniority. He also laid stress on the qualification possessed by HC (RF) remustered as ASI (T) against those directly appointed as ASI (T) in the following manner:
8. He states from the above it is evident that remustered ASI (T) have already got the privilege in educational qualification and thus, cannot claim parity with directly appointed ASI (T). He also states that the petitioners were well aware of the service conditions and inter-se seniority when they applied for the remusteration and if they had any grouse, they could have remained in rank of HC (RF) and claimed promotion as ASI (RF) and SI (RF) as when their turn comes.
9. It is also his submission that the petitioners were remustered in the rank of ASI (T) during the year 2012-2013 and they have now filed the petition after almost 10 years and as such, at this belated stage, the prayers sought are not tenable and hence, the petition is liable to be rejected.
10. Having heard the learned counsel for the parties, at the outset the primary issue which arises for consideration is whether the challenge to the gradation list of March 1, 2016 is hit by delay and laches as contended by Mr. Bhardwaj. The plea of delay and laches as put forth by Mr. Bhardwaj, looks appealing inasmuch as the present petition has been filed in the year 2022, i.e., after a period of 6 years from the issuance of the gradation list. It is noted that under the guise of challenging the vires of Clause 4 of Column 12 of the Rules of 2006, the petitioners are in a way effectively seeking the quashing of the gradation list. Clause 4 of Column 12 of the Rules of 2006 reads as under:
Head Constable (Radio Fitter) who have completed two years regular service in the grade (They will be remustered as Assistant Sub. Inspector (Technical) after they are selected in an aptitude test and successfully qualify the Basic Radio Mechanic Course (BRMC)
11. It is clear from the perusal of the aforesaid Clause that the same contemplates that the HC (RF) is remustered under two conditions: (a) after competing two years of regular service in the grade of HC (RF) and (b) after getting selected in aptitude test and successfully qualified the BRMC. Hence, Mr. Bhardwaj is justified to state that till the clearance of BRMC, the petitioners could not have been remustered.
12. The plea of the learned counsel for the petitioners is that the petitioners had completed BRMC-38 on June 30, 2012, and were granted the seniority w.e.f. August 2, 2012, whereas the direct recruits who completed BRTC-39 much later than the petitioners on December 30, 2013, i.e., almost a year and half later were granted seniority as ASI (T) above the petitioners w.e.f. January 16, 2012.
13. The justification given by Mr. Bhardwaj primarily is that the seniority of HC (RF) remustered as ASI (T) will be counted from the date of appointment (remusteration) and that of directly appointed ASI (T) will be counted from the date of enlistment.
14. There cannot be any quarrel on the said proposition of law on the above principle inasmuch as HC (RF) would get the status of ASI (T) only on remusteration, i.e., after completing the BRMC, whereas, the directly appointed ASI (T) having the requisite educational qualification and recruited directly, surely will be placed above HC (RF) because their appointment as ASI (T) is on the date of their enlistment.
15. It is a different thing that an ASI (T) undergoes BMTC after he is appointed. It is so that a person recruited directly shall have the seniority from the date of enlistment and there cannot be a comparison inter se between HC (RF) and ASI (T), even if the educational qualification possessed by ASI (T) is higher than the qualification of HC (RF). That apart, the seniority needs to be determined on the basis of rules / instructions in vogue. Remusteration, in a manner, is providing the HC (RF) an opportunity to opt for higher post provided he undergoes BMRC. If the HC (RF) does not clear BMRC, he cannot be remustered as ASI (T). So, there is justification for determining the seniority of HC (RF) from the date of remusteration.
16. We agree with the submissions made by Mr. Bhardwaj that the Rules of 2006 being clear, the petitioners could have remained in the Cadre of HC (RF) as appointed / promoted before remusteration. The petitioners were also clear on the Rules governing the seniority. So, in that sense, having accepted the remusteration and not challenged the gradation list for almost 6 years, it is too late in the day for the petitioners to challenge the gradation list which according to us is based on relevant instructions and Rules, and as such, the same cannot be faulted. Accordingly, we are of the view that the petition lacks merit. It is dismissed. No costs.
V. KAMESWAR RAO, J
SAURABH BANERJEE, J
FEBRUARY 26, 2024/aky
W.P.(C) 15102/2022 Page 9