Safiya Malik

The High Court of Delhi Division Bench of Justice C. Hari Shankar and Justice Ajay Digpaul directed that the petitioner be considered for seniority in the post from an earlier date by convening review Departmental Promotion Committees (DPCs). The Court held that the service rendered in an analogous post in the parent cadre ought to be taken into account for determining seniority in the absorbed cadre. The Bench directed that if the petitioner is found suitable in a review DPC for the year 2002, his subsequent promotion in 2009 shall stand quashed and reconsidered, with further review to assess eligibility for higher promotion in 2009. The Court clarified that all benefits, if granted, shall be notional.

The dispute arose from the petitioner’s contention that his seniority and eligibility for promotion in the Judge Advocate General (JAG) cadre of the Indo-Tibetan Border Police Force (ITBP) should accrue from 1995, the date of his appointment as Assistant Commandant/General Duty (AC/GD), a post he argued was analogous to Judge Attorney/Assistant Commandant (JA/AC). He commenced service in ITBP in 1978 as Jamadar/General Duty, later promoted as Subedar/GD in 1985, and obtained a law degree in 1994. On 10 July 1995, he was promoted to AC/GD. Recruitment rules notified in 1999, amended in 2001, provided for filling JAG cadre posts through deputation, absorption, or re-employment. In March 2000, he was appointed as Judge Attorney in a General Force Court, followed by attachment to the JAG Branch in April 2000 to perform JA/AC duties. On 22 August 2000, he was appointed JA/AC on deputation, effective 16 August 2000, with Ministry of Home Affairs concurrence. He was absorbed into the JAG cadre on 3 October 2003.

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The petitioner contended that by 2002 he had completed six years of service in the analogous AC/GD post and was eligible for promotion to Deputy Judge Attorney General/Deputy Commandant (Dy. JAG/DC), yet his case was not considered. Representations made from 2007 onwards remained unanswered, leading to the writ petition challenging delay and non-consideration. He was eventually promoted to Dy. JAG/DC in November 2009, but claimed entitlement from 2002 with consequential seniority and benefits. He further sought consideration for promotion to Additional JAG/Commandant (Addl. JAG/Com) from 2009 with relaxation of eligibility criteria, asserting that denial of seniority from 1995 deprived him of the opportunity.

The petitioner argued that AC/GD and JA/AC were analogous posts by reference to pay scales, duties under the ITBP Act and Rules, and corresponding ranks. He relied on Office Memoranda (OMs) and judicial precedents, including SI Rooplal v. Lt. Governor, K. Madhavan v. UOI, and UOI v. Pankaj Agnihotri, to argue that service in an analogous post in parent cadre counts as “regular service in the grade.” He also alleged mala fides due to delays despite clarifications by the Ministry of Home Affairs (MHA) and Department of Personnel and Training (DOPT) supporting his claim.

The respondents contended that AC/GD and JA/AC were distinct, not analogous, as the JAG cadre carried judicial duties absent in GD cadre. They argued that “regular service in the grade” meant service only in JAG cadre, commencing upon absorption in 2003, and that by opting for absorption, the petitioner implicitly accepted forfeiture of past seniority. They distinguished precedents relied upon by the petitioner and cited Prabha Devi v. UOI and Mrigank Johri v. UOI to contend that seniority accrues from absorption, especially when terms exclude past service.

The Bench observed that the central issue was the meaning of “regular service in the grade” for deputationists absorbed in target cadres. On the petitioner’s claim for ante-dating promotion, the Court stated, “an indefeasible right to promotion does not arise merely because a post lies vacant while an eligible candidate exists.” It recorded that courts may only direct consideration for promotion, not grant promotion outright.

On the question of analogous posts, the Court examined recruitment rules and duties. It observed that both AC/GD and JA/AC carried identical pay scales and were classified as Group ‘A’ posts. Referring to Rule 7 of the JAG Cadre Rules, the Court noted, “The conditions of service of the Judge Attorney General… shall be the same as are applicable from time to time to other officers of the Indo-Tibetan Border Police Force holding the corresponding ranks or status.” It further recorded, “A complete reading of Rules 4 and 7, along with the petitioner’s rank in his parent cadre being ‘Assistant Commandant/General Duty’ and the same in his target cadre upon deputation being ‘Judge Attorney/Assistant Commandant’, we are satisfied that the posts are to be deemed analogous in nature.”

On the phrase “regular service in the grade,” the Court quoted K. Madhavan, stating, “It will be against all rules of service jurisprudence, if a government servant holding a particular post is transferred to the same or an equivalent post in another government department, the period of his service in the post before his transfer is not taken into consideration in computing his seniority in the transferred post.” The Court recorded, “Regular service rendered in an analogous grade in a different cadre, in case of deputationists, ought to be computed in assessing a candidate’s meeting of this threshold.” It held that the petitioner’s seniority as JA/AC must accrue from 10 July 1995.

On mala fides, the Court observed, “The burden of establishing mala fides is very heavy on the person who alleges it.” It recorded that while there were delays, there was insufficient material to establish mala fides. It stated, “Mere non consideration of his representations, prima facie, have not discharged the lofty burden of establishing mala fides.”

The Bench directed, “we have confirmed that the petitioner has held the post of AC / GD (ITBP cadre) from 10 July 1995, a post analogous to that of JA / AC (JAG cadre). Therefore, his seniority in the post of JA / AC ought to be computed from 10 July 1995.” It ordered, “we direct the convening of a review DPC for the year 2002, to assess the petitioner’s suitability for promotion to the post of Dy. JAG / DC.”

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The Court further held, “In the event that he is found suitable for promotion to the post of Dy. JAG / DC in the year 2002, order dated 3 November 2009 shall stand quashed and set aside.” It directed that, “In the event that he is found suitable in the review DPC, another review DPC shall be convened for the year 2009 to assess his suitability for promotion from Dy. JAG / DC to Addl. JAG / Com. In order to do so, we direct that the respondent’s consider relaxation of requisite eligibility criteria to the extent permissible as per existing guidelines.”

The Court clarified, “any promotions and consequential benefits granted to the petitioner shall be notional in nature.”

“Pending applications, if any, do not survive, and are disposed of accordingly.”

Advocates Representing the Parties
For the Petitioner: Mr. A.K. Behera, Senior Advocate, with Mr. Amarendra P. Singh, Advocate

For the Respondents: Mr. Bhagwan Swaroop Shukla, CGSC, with Mr. Sarvan Kumar, Mr. Mukesh K.M. Pandey, Mr. Satyam Singh, Advocates. Mr. P.R. Rajhans, Mr. Vivek Singh, Mr. Shubham Gupta, Mr. Lajpat Rai, and Mr. Tarun Kumar, Advocates for R-6.

Case Title: Bhupinder Kumar Malik v Union of India & Anr.

Neutral Citation: 2025: DHC:6630-DB

Case Number: W.P.(C) 14156/2009

Bench: Justice C. Hari Shankar and Justice Ajay Digpaul