Union of India and Ors. vs Satyendra Nehra

The present intra court appeal preferred by the Union of India ( for brevity ''UOI'') assails the common order dated 09.10.2017 whereby the

writ court has allowed a bunch of four petitions including WP No. 4073/2017, quashing the order of posting on promotion of respondent

Satyendra Nehra ( promoted from the rank of Sub-Inspector to Inspector in the Border Security Force ( BSF)).

Learned counsel for the Union of India and the respondents are heard on the question of admission and as well as final disposal.

Record is perused.

Learned counsel for the Union of India primarily contends that in the face of the statutory provision contained in Rule 9 of Border Security

Force (Tenure of Posting and Deputation), Rules 2000 ( for brevity ''Rules 2000'') the writ court wrongly categorized the impugned posting of the

respondent as a posting simplicitor ignoring the fact that the impugned order was a posting on promotion which is governed exclusively by Rule 9

and thus wrongly adjudicated the issue on the anvil of amended Rule 5 of 2000 Rules which relates exclusively to a normal posting and not a

posting on promotion. It is submitted by counsel for the UOI that certain executive instructions issued by the Director General B.S.F. Dated

12.05.2015 vide Annexure P-5 were also wrongly applied in the case of the respondent herein.

Facts briefly stated are that petitioner holding the rank of Sub-Inspector and functioning as an instructor at the BSF, Tekanpur Academy was

promoted by the order dated 17.03.2017 (Annexure P/3) to the rank of Inspector (GD) in the scale of Rs.9,300-34,800 with Grade Pay of Rs.

4,600/- ( pre-revised pay scale) w.e.f. 01.04.2017. A written willingness was taken from the petitioner vide Annexure P-4 on 20.04.2017 to the

following extent :-

UNDERTAKING / UNWILLINGNESS CERTIFICATE

With reference to STS BSF Acy L/ No. 6931 dated 20/04/2017, I. No. 113100750 Inspr. Satyendra Nehra of STS BSF Academy, do hereby

undertake that I am willing for posting to BSF Academy Tekanpur, I am aware that my services at said location shall not count as Field Service as

prescribed in the Recruitment Rules and that 02 years of field service is mandatory / essential eligibility for my promotion to next higher rank /

grade, which I am yet to complete. But I am still willing to serve at STS BSF Academy on posting and shall not claim my promotion / seniority at

par with my juniors and for other consequential benefits attached with the promoted post on the event of my promotion not being considered due

to non completion of Mandatory Field Service, I shall be fully responsible for the same.

This undertaking, I am giving at my free will and understating. I have also been explained this undertaking in Hindi, which I understands and sign

it as correct.

Thereafter vide Annexure P/1 dated 01.07.2017, the respondent in the promoted cadre of Instructor was placed at the disposal of Headquarter

which in turn posted him to the 135 Battalion, BSF. Aggrieved, the petitioner preferred representation dated 20th April, 2017 ( page 80 of the

paper book) solely on the ground that he has not completed four years of tenure at Takenpur in his capacity as Instructor. The petitioner thereafter

preferred WP. 4073/2017 assailing the order of transfer. Union of India filed a short reply dated 20.07.2017 to the said petition which was

followed by additional reply dated 18.09.2017 along with which wireless message dated 12.08.2018 of the Director General, BSF was annexed

rejecting the representation of the petitioner and directing the petitioner to comply with the order of transfer by 20th August, 2017 positively.

6.1 The stand taken by the Union of India in their reply was that immunity granted to Instructors under Rule 5 and instructions of the BSF

Headquarter is relatable to transfers within the same rank and not when the transfer is on promotion for which Rule 9 of 2000 Rules was relied

upon.

6.2. Learned counsel for the Union of India has relied upon the following decisions:-

(i) Kanai Lal Vs. Paramnidhi Sadhukhan; AIR 1957 SC 907

(ii) Laxmi Narain Mehar Vs. Union of India and ors.; (1997) 3 SCC 87

(iii) State of U.P. and Ors. Vs. Gobardhan Lal; (2004) 11 SCC 402.

(iv) Rajendra Singh and Ors. Vs. State of Uttar Pradesh and Ors.; (2009) 15 SCC 178.

Learned counsel for the respondent / employee has supported the impugned order and emphasized its correctness on the anvil of amended Rule

5 and the instructions of Director General, BSF dated 12.05.2015 (Clause 2(b) vide Annexure P-5).

The writ Court allowed the petition by quashing the order of transfer placing reliance on amended Rule 5 and Rule 19 of 2000 Rules and

instructions dated 12.05.2015.

The question which arises for consideration is as to whether the impugned transfer of the petitioner is governed by Rule 5 or Rule 9 of 2000

rules.

9.1. At the very outset, this court needs to keep in mind that the incident of transfer for members of Paramilitary Force BSF is governed by

statutory provisions i.e. 2000 Rules. These rules recognize the concept of tenure in Rule 2(g) as a period specified for service in unit / institution /

establishment of the Force. Whereas Rule 6 provides for different tenures for a battalion ranging from 2-6 years. Harder the area of posting the

lesser is the tenure and viceversa. The concept of normal transfer within the same rank is governed by Rule 3, 4, 5, 7, 8, 10, 11 and 12, while Rule

13 & 14 govern the procedure to be followed while issuing posting orders. Rule 18 prescribes the authority competent to issue order of posting

and Rule 19 which has been subsequently added w.e.f. 2002 vests the Director General of the Force with power to extend or reduce the tenure of

any member of the the Force in the interest of Force or in case of hardship.

9.2 All the above said Rules except those pertaining to procedural aspect and prescribing competent authority, govern and regulate the field of

posting within the same rank. 9.3 A distinct provision in shape of Rule 9 of 2000 Rules deals exclusively with ""posting on promotion"", which is

reproduced below :-

Posting on promotion :- A member of the Force upto and including the post of Second-in-Command while posted in a static formation, shall be

posted to a duty Battalion on promotion to the next higher rank. The tenure rule shall not be applied in promotion cases.

Provided that the members of the Force who have less than 2 years of service before attaining the age of superannuation shall be exempted from

application of this rule.

Provided further that the provisions contained in this rule shall only apply to the members of the Force who are promoted to a post which also

exists in a Battalion.

9.4. The above said Rule 9 makes it mandatory for all ranks up to post of Second-in-Command who has been posted in a static formation, to be

posted to a duty Battalion on promotion to the next higher rank. Rule 9 specifically prescribes prohibits the application of tenure rule in cases of

promotion.

9.5 Rule 9 further recognizes two exceptions. First being those members of the Force who have less than two years to attain the age of

superannuation and that the application of Rule 9 is restricted to the members of the Force who are promoted to a post which also exists in a

Battalion.

It is pertinent to mention here that Rule 5 of 2000 Rules underwent amendment in 2002 by introduction of additional proviso, which is

reproduced below :-

Provided further that in the case of the members of the Force appointed as instructors in the training institutions of the Force, there

tenure with a static formation shall be four years.

10.1 The above said newly introduced proviso carves out an exception for members of the Force who are functioning as Instructors

in training institutions ( e.g. BSF Tekanpur Academy) of providing immunity from posting before completion of tenure of four years

with a static formation. A bare perusal of Rule 5 reveals that the same pertains to normal transfer within the same rank and therefore,

newly introduced proviso of 2002, as reproduced above, also has to operate within the same field of transfer / posting within the

same rank. Thus, by necessary implication neither Rule 5 nor its newly introduced proviso, as aforesaid, can be applied to a case of

posting on promotion as that of the respondent herein.

10.2 More so, learned Single Judge has placed reliance on the instructions issued by BSF, Headquarter dated 12.05.2015

particularly clause 2(b) which is reproduced at internal page 5 of the impugned order. The same is reproduced below for convenience

and ready reference :-

Criteria in General

(a) xx xx xx

(b) Empanelled instructors on promotion from junior grade to higher grade ( UOs to ASI, ASI to SI, SI to Inspector, Inspector to

AC and DC to 2IC) may continue to remain on the panel of instructors till completion of normal tenure. The empanelment of HCs will

be effective for seven (07) years in case of promotion to the rank of ASI. Inspectors on their promotion to the rank of Asstt. Comdt.

to remain on the panel of Instructors till completion of normal tenure. After the due tenure in the Training Institution, they should be

posted to a duty Bn to complete their two years period of mandatory filed service in a duty Bn.

10.3 A bare reading of above clause 2(b) of the instructions dated 12.05.2015 inter alia permits the SIs who are working as

instructors, on their promotion to complete the normal tenure i.e. 4 years. The existence of the said instructions dated 12.05.2015 is

not disputed by the rival parties. However, it is important to note that the said immunity granted to instructors is by way of executive

instructions having no statutory backing. Whereas Rule 9 of 2000 Rules empowers the competent authority to post a member of the

Force on his promotion elsewhere by excluding the application of normal rule of posting by a prohibitory mandate in the following

terms :-

........ The tenure rule shall not be applied in promotion cases. .....

More over, Rule 9 does not provide for any immunity from posting on promotion of a person functioning as instructors.

10.4 Thus, present is a case where executive instructions of the BSF, Headquarter providing protection of tenure to instructors in

case of promotion, runs contrary to the statutory Rule 9. It is trite law that in a case of conflict between executive instructions and

statutory provision, the latter prevails to the extent of conflict between the two.

10.5 The petitioner admittedly was working as an Instructor at BSF, Tekanpur Academy when he was promoted from SI to

Inspector and was posted elsewhere before he could complete the normal tenure as per the ""tenure rule"" prescribed in Rules of 2000.

The competent authority in its wisdom thought it fit to post the respondent / petitioner elsewhere on promotion. The competent

authority while doing so exercised its power under Rule 9 which cannot be whittled down or adversely affected by executive

instructions of the BSF Headquarter dated 12.05.2015 or for that matter by Rule 5 which does not pertain to posting on promotion.

In view of the above discussion, this court has no manner of doubt that the impugned order of posting the petitioner elsewhere on his

promotion vide order dated 01.07.2017 (Annexure P-1) is unassailable on the ground of being violative of 2000 Rules.

Consequently, the impugned order of the learned single Judge passed in WP No. 4073/2017 dated 09.10.2017 is set aside. The present writ

appeal stands allowed.