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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)

J U D G M E N T

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

Commandant.

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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

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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

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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....”

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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.  

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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

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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

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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  respondents  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.  

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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