‘Active Duty’ Notification Must Prevail | Meghalaya HC Terms Denial of STS Arbitrary, Quashes Orders and Directs Promotion from 29-02-2020
Isabella Mariam
The High Court of Meghalaya Single Bench of Acting Chief Justice H.S. Thangkhiew held that the denial of promotion to Senior Time Scale (STS) to the petitioner, who was serving in a state listed under the Central Government notification declaring 'active duty' areas, was arbitrary and wholly unjustified. The Court quashed the impugned order dated 08.06.2023 and related correspondence rejecting the petitioner’s claim, directing the respondents to grant him STS with effect from 29.02.2020 within three months.
In a matter involving classification of service injury and its impact on promotional eligibility, the Court considered the legal interpretation of "active duty" under Section 2(1)(a) of the Border Security Force Act, 1968 and its supporting notification dated 29.07.2010. Upon review of the statutory definitions and administrative decisions, the Bench concluded that the petitioner’s posting in Madhya Pradesh qualified as active duty. The decision reaffirms the binding nature of the Central Government's active-duty notifications and the statutory rights of eligible personnel to promotional consideration accordingly.
The petitioner, a member of the Border Security Force (BSF), challenged the non-grant of the Senior Time Scale (STS) promotion, despite having fulfilled the necessary service conditions and qualifying standards. He was serving in Madhya Pradesh and sustained injuries in 2017 during his participation as team captain in the All-India Police Commando Competition (AIPCC), which was recognized as 'bonafide government duty' but not 'active duty.'
According to the petition, the injury impacted his medical classification, yet he was eventually placed in the category S1H1A2P1E1 by the Medical Board effective from 06.09.2019. A Departmental Promotion Committee (DPC) convened on 28.12.2022 assessed him as 'Fit' for promotion to STS effective from 29.02.2020. The petitioner had also completed all required promotional training and mandatory courses. Consequently, his name was included in the list of Assistant Commandants eligible for promotion as of 01.01.2022.
Despite this inclusion, the promotion was not granted, and the petitioner was excluded from the list published via the impugned order dated 08.06.2023 issued by the Commandant (Personnel) of BSF. The petitioner filed a representation on 19.06.2023 objecting to the exclusion.
Subsequently, by letter dated 16.10.2023, the authorities responded by stating that the petitioner’s injuries, while attributed to bonafide government duty, did not qualify as sustained during 'active duty,' and therefore he was not eligible under the relaxation clause for promotion. A further reply from the respondents dated 21.02.2024 stated that his case had been forwarded to the Ministry of Home Affairs and a response was awaited.
The petitioner contended that under Section 2(1)(a) of the Border Security Force Act, 1968, "active duty" includes not only direct operational duties but also those periods declared as active duty by the Central Government through official notification. He pointed out that Madhya Pradesh was explicitly listed under the Central Government Notification dated 29.07.2010 as an area where all personnel serving from 01.07.2010 onward would be considered on active duty until further orders.
The respondents, represented by legal counsel, cited provisions from the Instructions for Medical Examination and Classification of Personnel Service in CPMFs, stating that only injuries sustained during field firing or other explicitly operational scenarios qualified under the active-duty relaxation provision. The petitioner’s injuries, they argued, did not meet that criterion.
The Court recorded: "the only issue in question that has to be decided by this Court, is whether the denial of STS to the writ petitioner is justified on the sole ground that the injuries that had been sustained, were held to be not while in active duty but on bonafide government duty, inspite of the petitioner also having been duly recommended for promotion."
The Court referred to Section 2(1)(a) of the BSF Act, 1968 and quoted: "‘active duty’, in relation to a person subject to this Act, means any duty as a member of the Force during the period in which such person is attached to, or forms part of, a unit of the Force – (i) which is engaged in operations against an enemy, or (ii) which is operating at a picket or engaged on patrol or other guard duty along the borders of India, and includes duty by such person during any period declared by the Central Government by notification in the Official Gazette as a period of active duty with reference to any area in which any person or class of persons subject to this Act may be serving."
In furtherance, the Court extracted and discussed Notification No. S.O. 1877(E) dated 29.07.2010 issued by the Ministry of Home Affairs, observing: "the Central Government hereby declares that the duty of every person referred to in the said clause (a) serving in the States or Union Territories mentioned below with effect from the 1st July, 2010 till further orders as active duty for the purposes of the said Act," which included Madhya Pradesh.
Citing the Supreme Court’s decision in State of Jammu and Kashmir v. Lakhwinder Kumar & Ors., (2013) 6 SCC 333, the Court recorded: "From a plain reading of the aforesaid, it is evident that any duty as a member of the Force and enumerated in sub-clauses (i) and (ii) ... shall come within the definition of active duty. It shall also include such duty by the member of the Force as active duty declared by the Central Government in the Official Gazette."
On these grounds, the Court concluded that the petitioner, who had been serving in Madhya Pradesh, fell under the purview of the notification and his duty therefore was to be considered as active duty. The Court found no merit in the respondents' distinction between "bonafide government duty" and "active duty" for denying promotional entitlement.
The Court issued the following directive: "in view of the facts and circumstances of the case, the denial of STS to the writ petitioner who was on duty in Madhya Pradesh, a listed State, is found to be arbitrary and wholly unjustified."
It further ordered: "Consequently, the impugned order dated 08-06-2023, impugned letters dated 16-10-2023 and 21-02-2024 are set aside and quashed and the respondents are directed to afford and grant Senior Time Scale to the writ petitioner w.e.f. 29-02-2020, the date he became entitled for the same within a period of three months from the date of this order."
The writ petition was accordingly allowed and disposed of.
Advocates Representing the Parties:
For the Petitioner: Mr. S. Dey, Advocate; Mr. D. Syiemlieh, Advocate; Ms. S. Dhar, Advocate
For the Respondents: Dr. N. Mozika, DSGI; Ms. M. Myrchiang, Advocate
Case Title: Shri Tokhuye Z. Wotsa v. Union of India & Others
Neutral Citation: 2025: MLHC:481
Case Number: WP(C) No. 327 of 2024
Bench: Acting Chief Justice H.S. Thangkhiew
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