Pradeep Nandrajog, J.@mdashIt is settled law that a Government servant does not have a vested right to be promoted and that an amendment to a recruitment rule changing the existing rule of appointment by promotion can be altered by the employer keeping in view the requirements of the cadre. The question which arises for consideration in the instant writ petition is slightly different. Thus, we are not noting the decisions relied upon by the respondents which invoked the legal principle we have stated in the first sentence of this paragraph because learned counsel for the petitioners did not dispute the same.
2. The petitioners joined different posts in the ministerial cadre of the Border Security Force. The post at which they joined is as per Annexure P-1 to the writ petition, authenticity of the data wherein has not been denied by the respondents.
3. The cadre of ministerial staff, up to the post immediately below that of Assistant Commandant is separate and so is the cadre of the general duty staff.
4. The merger takes place at the level of the post of Assistant Commandant.
5. The Border Security Force (Assistant Commandant) Recruitment Rules, 1985, allocated 10% quota of the posts of Assistant Commandant to the combatized ministerial staff; and there was no problem. Peace prevailed in the realm.
6. On April 29, 1998, a proposal was mooted by the Director General BSF for deleting 10% promotion quota of the combatized ministerial cadre for being promoted as an Assistant Commandant; but upon the condition that to keep open a promotional channel for the ministerial cadre posts be created for their cadre. Pithily put, the proposal was to restructure the cadre and allocate posts. For the ministerial cadre, for posts at Group ''B'' and ''A'' level, the proposal envisaged creation of 34 posts as under:-
7. The Cadre Controlling Ministry : the Ministry of Home Affairs, referred the matter to the Ministry of Finance for concurrence, for indeed, as in the mundane affairs of daily lives, the one who controls the purse roosts on the nest. The concurrence was conveyed on August 28, 2000 as under:-
"Proposal of Ministry of Home Affairs on restructuring the combatised ministerial cadre and to abolish 10% promotion posts in the rank of Assistant Commandant from the ministerial cadre of BSF has been considered in the Ministry of Finance.
2. 26 (twenty six) posts of Asstt. Commandants (Rs.8,000-13,500) and 8 (eight) posts of Deputy Commandants (Rs.10,000-15,200) may be created in the ministerial cadre for the time being, subject to the condition that (i) a maximum of only 13 (thirteen) posts of Asst. Commandants and 4 (four) posts of Deputy Commandants will be filled in a year, (ii) and equal number of such posts in the GD cadre will be abolished and (iii) any augmentation in this strength will be considered at the time of overall cadre review of the BSF.
3. The proposal to merge the grades of SOs, AOs and Subedar Majors with Inspectors in the ministerial cadre may be considered alongwith the overall cadre review of BSF.
4. MHA may separately review the need for inducting clerical staff in the grade of ASI (Rs.4,000-6000) in future since in Central Government offices, clerical staff are generally recruited in the scale of Rs.3,050-4,590. This position is required to be reviewed by the MHA in respect of all the CPMFs.
5. This issues with the approval of the Finance Minister."
8. It resulted in a final approval being accorded by the Ministry of Home Affairs on August 31, 2000 as under:-
"Sub: Restructuring of combatised ministerial cadre of Border Security Force.
Sir,
I am directed to convey the sanction of the President to the abolition of 10% promotion quota from the ministerial cadre of BSF to the Asstt. Commandants (GD) in the BSF and to the creation of 26 (Twenty Six) posts of Asstt. Comdts. in the pay scale of Rs.8000-13,500/- and 8 posts (Eight) posts of Dy.Comdts. in the pay scale of Rs.10,000-15,200/- as part of restructuring of the combatised ministerial cadre of BSF. The above creation of the posts in the ministerial cadre shall be subject to the following conditions:-
i) A maximum of only 13 posts of Asstt. Comdts and 4 posts of Dy.Comdt. will be filled in a year.
ii) An equal number of such posts in the GD cadre will be abolished and;
iii) Any augmentation in this strength will be considered at the time of overall cadre review of the SSF.
2. This issues with the approval of IFD, vide their Dy.No.1822/F in. III dated 30.8.2000."
9. The grievance of the writ petitioners is of not being granted any promotion. On the one hand the department has taken away the 10% quota of the ministerial cadre for the post of Assistant Commandant by making the post exclusively for those in the general duty but simultaneously without giving effect to the decisions dated August 28, 2000 and August 31, 2000.
10. The justification given by the respondents is that simultaneously the Cadre Controlling Ministry was considering a proposal for the merger of the grades of Office Superintendents, Accounts Officers and Section Officers etc.
11. But the relevance thereof has not been brought out. We are surprised that a proposal of merger of grades which commenced in the year 2003 has not been taken to its destination even till the year 2015, and the result is a complete stagnation of the ministerial cadre.
12. If at all a merging of grades takes place, at best it would impact the allocation of the 34 posts which were envisaged by the proposal initiated by the DG (BSF). It would have no further impact beyond that.
13. We find that some officers of the BSF in the ministerial cadre have filed a writ petition in the High Court of Jammu and Kashmir, in which the respondents have filed a counter affidavit, in paragraphs 7, 10 and 11 (iv) it has been pleaded as under:-
"7. Para No. 7 of the writ petition is denied. It is submitted that no instructions as mentioned in the para has been issued to the effect that where posts are filled from more than one grade the eligible persons shall be arranged in separate lists in the order of their relative seniority in the respective grades. Moreover, for the purpose of assigning seniority to direct entry/promotee Officers, promoted from combatised ministerial cadre, BSF have got statutory rules namely BSF seniority, promotion and superannuation rules, 1978. Rules 3(3) of the said rules clearly defines the inter-se seniority to be assigned to the officers of General Duty Cadre. Copy of notified rules is annexed as Annexure R2. It is further submitted that besides combatised ministerial cadre have got separate promotion rules. For the rank of Subedar ministerial staff, it takes 14 to 15 years for a Sub Inspector (Clk) to reach the said rank of Inspector (Clk) whereas it takes on an average 8 to 9 years for SI (GD) to attain the rank of Inspector. Not only that, a large number of Inspector (Clk) have given their unwillingness for promotion to the rank of Assistant Commandant in General Duty. The General Duty cadre and the ministerial cadre are two separate feeder grades and there is no relevance of seniority amongst the persons who belong to separate grades. The promotion to the rank of Asstt. Commandant is percentage based and all eligible persons from separate feeder grades are to be considered for promotion as per the zone of consideration.
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10. Para No. 10 of the writ petition is denied. It is submitted that against abolition of 10%: quota which was reserved for combatised ministerial cadre, 26 posts in the rank of Assistant Commandant and eight posts of Deputy Commandant has been created by the Govt. in the combatised ministerial cadre to give promotion to the Inspector of Combatised ministerial cadre in their own cadre.
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11(iv) In reply to para No. 11 Sub-para (iv) of the writ petition, it is submitted that in order to open up promotion avenues for combatised ministerial cadre beyond group ''B'' level, 10% of the vacancies occurring at the level of AC in the GD stream was earmarked for promotion from eligible Inspector of ministerial cadre, vide BSF (AC) Recruitment Rules, 1985. Since then, a number of Subedars from the ministerial cadre have been promoted to the rank of Assistant Commandant and thereafter to the Deputy Commandant. To have promotional avenues available to the Inspectors of combatised ministerial cadre in their own cadre, 10% reserve quota has been abolished by the Govt. Against this abolition, one time compensation of 34 posts in Group ''A'' category have been provided in the rank of Assistant Commandant and Deputy Commandant."
14. The position therefore would be that while taking away the right of the ministerial cadre to be promoted in the 10% quota to the post of Assistant Commandant as per the BSF (Assistant Commandant) Recruitment Rules, 1985, the department would be obliged to give effect to the decision for which approval has been given by the Ministry of Finance on August 28, 2000 as also by the Cadre Controlling Ministry on August 31, 2000 i.e. to create 26 posts of Assistant Commandants (Ministerial) and 8 posts of Deputy Commandants (Ministerial). This may be tinkered with the merger of grades contemplated in November 28, 2003, but the decision has to be taken immediately.
15. What has happened in the meanwhile is that officers in the general duty cadre are earning promotion to the post of Assistant Commandant and some have earned further promotions to the rank of Deputy Commandant and a few to the rank of Commandant. The petitioners languish at the post held by them which is below the rank of Assistant Commandant.
16. We accordingly issue a mandamus to the respondents to give effect to the decision dated August 31, 2000 within a period of 6 months from today, within which period the proposal for merger of grades would also be taken, meaning thereby the number of posts of Assistant Commandants, Deputy Commandants and above for the ministerial cadre would be identified, followed by the process of constituting Departmental Promotion Committees shall be taken up to effect promotion.
17. No costs.
