Union Of India vs S.Ravichandran

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S).429 OF 2017

UNION OF INDIA & ORS. ... Appellant(s)

Versus

S. RAVICHANDRAN & ORS. ... Respondent(s)

JUDGMENT

Deepak Gupta, J.

1. The private respondents are working in the ministerial cadre

of the Border Security Force (‘BSF’ for short). They joined

different posts in the ministerial cadre on different dates, which

factual assertions are not denied by the appellants. There are

two cadres in the BSF – (i) the General Duty cadre and (ii) the

Ministerial cadre. They have different recruitment processes.

The merger of the cadre takes place at the level of Assistant Signature Not Verified Digitally signed by MEENAKSHI KOHLI

Commandant.

Date: 2017.08.14 16:43:18 IST Reason: 2

2. The Border Security Force (Assistant Commandant)

Recruitment Rules, 1985, were promulgated on 28.01.1985.

These rules provide that at the level of Assistant Commandant

50% of the posts would be filled up by direct recruitment and

50% of the posts would be filled up by promotion. Out of the 50%

quota meant for promotion, 10% of the vacant posts were to be

filled in from the combatised ministerial staff failing which entire

50% to be filled in from general duty cadre.

3. On 29.04.1998, a proposal was mooted for deleting the 10%

quota for promotion of combatised ministerial officers, but, at the

same time, it was also proposed that some posts from the general

duty cadre should be diverted exclusively to the ministerial cadre

to provide them better promotional avenues. On this proposal a

note was prepared on 28.08.2000, which sanctioned the creation

of 26 posts of Assistant Commandant and 8 posts of Deputy

Commandant for the ministerial cadre. The Government of India

conveyed the sanction for abolition of 10% of promotion quota

from ministerial cadre to the post of Assistant Commandant and

for creation of 26 posts of Assistant Commandant and 8 posts of

Deputy Commandant for the ministerial cadre of BSF as part of 3

the restructuring of combatised ministerial cadre vide letter dated

31.08.2000. The subject heading of the letter reads as follows:

“Restructuring of combatised ministerial cadre of Border Security Force.”

Some conditions were laid down with regard to the manner

in which these posts were to be filled up, with which we are not

concerned. In this communication it was also mentioned that

the proposal to merge the grades of S.Os, AOs and Subedar

Majors with Inspectors in the ministerial cadre may be considered

at the time of overall cadre review of BSF.

4. Though these posts were sanctioned, this decision was, in

fact, not implemented. Though, the promotion quota meant for

the ministerial cadre was deleted, but no benefit was given to

them in terms of the letter dated 31.08.2000.

5. On 28.06.2001, the BSF (General Duty Officers)

Recruitment Rules, 2001 were notified in which also there was no

provision for promotion of ministerial cadre staff to the post of

Assistant Commandant and above. A lot of correspondence was

exchanged between the BSF and the Government and the 4

authorities in the BSF supported the case of ministerial cadre.

Mention was made that on abolition of 10% quota of posts of

Assistant Commandant, it would be appropriate to create 14

posts of Deputy Commandant and 14 posts of Assistant

Commandant for the ministerial staff.

6. In the meantime, a cadre review of the BSF was being

conducted and, in this context, the Director General, BSF sent a

communication on 16.12.2002 recommending to the Government

of India for restructuring the cadres in the BSF keeping in view

the fact that the BSF had to establish new frontier Headquarters

and sector headquarters.

7. These proposals were duly considered by the Government of

India and the decision in this regard was conveyed vide memo

dated 28.11.2003, the subject matter and opening portion of

which reads as follows:

“Subject: RESTRUCTURING OF SUPERVISORY AND SUPPORT INFRASTRUCTURE IN THE BORDER SECURITY FORCE Sir,

In super session of all orders on the subject cited above....” 5

8. By this sanction letter 67 posts of Assistant Commandant

were created for the ministerial cadre. However, no post of

Deputy Commandant was created for the ministerial cadre. We

may add that by this memo the staffing pattern was restructured

right from the post of Constable to the post of DIG.

9. In the year 2014, the private respondents filed a writ

petition in which they prayed that the decision taken on

28.08.2000/31.08.2000, creating 26 posts of Assistant

Commandant and 8 posts of Deputy Commandant in the

ministerial cadre should be implemented. The stand of the Union

of India was that the order(s) dated 28.08.2000/31.08.2000 stood

superseded by the cadre review conveyed by letter dated

28.11.2003. The High Court allowed the writ petition on the

ground that once the right of the ministerial cadre to be promoted

against 10% of the promotion quota to the post of Assistant

Commandant had been taken away, the department was under

an obligation to give effect to the decision taken by the Ministry of

Finance on 28.08.2000 and conveyed on 31.08.2000. Therefore,

a mandamus was issued to give effect to the decision within

six months.

6

10. Aggrieved by the judgment, the Union of India filed this

appeal. The contention of the appellants is that the decision

taken on 28.08.2000/31.08.2000 stands superseded by the cadre

review which took place on 28.11.2003. It is also urged that

during the period 28.08.2000/31.08.2000 to 28.11.2003, none

from the ministerial cadre was eligible to be promoted either as

Assistant Commandant or Deputy Commandant. On the other

hand, on behalf of the private respondents, it is urged that the

subject matters of the communications dated

28.08.2000/31.08.2000 and 28.11.2003 are totally different. It

has been contended that the appellants cannot be permitted to

only partially implement the decision dated

28.08.2000/31.08.2000. On the one hand, the promotion quota

has been deleted and, on the other hand, the ministerial cadre

has been left high and dry without providing any benefit to it.

11. After hearing arguments and perusing the record, we are

clearly of the view that the decision dated

28.08.2000/31.08.2000 was superseded by the cadre review

which took place on 28.11.2003. It may be true that the subject

matters of the two communications dated 31.08.2000 and 7

28.11.2003 are slightly different but the subject matter of the

letter dated 28.11.2003 encompasses the entire supervisory and

support infrastructure of BSF which will include the ministerial

cadre and has been issued in supersession of all orders on the

aforesaid subject matter. The argument of the learned counsel

for the private respondents that since the subject headings of the

two letters are different they operate in different fields, in our

opinion, is without merit. The communication dated 28.11.2003

deals with restructuring of all posts from Constable to DIG

including the posts meant for the ministerial cadre. It may be

true, as pointed out by the private respondents, that earlier they

were entitled to promotion till higher levels and now they will be

stuck at the levels of Assistant Commandant but that is a matter

in which the court cannot interfere unless the decision of the

employer is totally arbitrary or perverse. It is not as if the

ministerial cadre has no avenues of promotion. They are

normally recruited as clerk (Head Constable) and some at the

level of inspector. They all have avenues of promotion to the post

of Assistant Commandant. It is for the employer to decide how

many avenues of promotion to give to which branch. The BSF is

mainly a combat force and it is for the employer to decide to 8

which level the ministerial staff should be promoted. It is for the

authorities to carry out the cadre review and decide whether the

ministerial employees working on the ministerial side should be

given more avenues of promotion. The court cannot by its

decision change the opinion of expert bodies.

12. It appears none from the ministerial cadre was eligible for

promotion prior to November, 2003 when the cadre review took

place. Admittedly, none of the appellants was eligible for

promotion during this period. It has been pointed out that

though the BSF had also proposed creation of posts of Deputy

Commandant (Ministerial) but these posts were not sanctioned

since no Assistant Commandant (Ministerial) would be eligible for

promotion for at least four to five years and the purpose of

creating these posts would be defeated when there were no

eligible candidates in the foreseeable future. In the meantime,

the cadre review took place and in the cadre review it was decided

that there should be 67 posts of Assistant Commandants

earmarked for ministerial cadre employees but no posts of Deputy

Commandants were earmarked for them. This decision clearly

supersedes the decision taken on 28.08.2000/31.08.2000. 9

13. We, therefore, find no legal infirmity in the communication

dated 28.11.2003, which in our opinion, supersedes the decision

dated 28.08.2000/31.08.2000. We accordingly allow the appeal

and set aside the judgment of the High Court of Delhi.

Consequently, the writ petition filed by the private respondents

also stands dismissed. No order as to costs. Pending

application(s), if any, stand(s) disposed of.

....................................J. (MADAN B. LOKUR)

....................................J. (PRAFULLA C. PANT)

....................................J. (DEEPAK GUPTA)

New Delhi August 11, 2017