W.P.(C) 84/2019 & other connected matters Page 1 of 29

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 10 October 2025

Pronounced on: 5 January 2026

+ W.P.(C) 84/2019

JAI MANGAL RAI ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 104/2019

INSPECTOR (GD) LAXMAN ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 108/2019

INSPECTOR (GD) SANJAY

KUMAR PANDEY ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 174/2019

INSPECTOR (GD) MANOJ KUMAR SINGH ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 3425/2019

W.P.(C) 84/2019 & other connected matters Page 2 of 29

INSP (GD) JYOTIRMOY PAUL ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 3448/2019

INSPECTOR (GD) RAM

CHANDRA CHAUDHARY ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 3464/2019

INSP (GD) AMBIKESH CHOUDHARY ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 368/2019

INSPECTOR (GD) MUKESH

KUMAR SINHA ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 372/2019

INSPECTOR (GD) NARSU NAIDU BHAIRI .... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 381/2019

W.P.(C) 84/2019 & other connected matters Page 3 of 29

INSPECTOR (GD) SANJAY KUMAR ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 382/2019

INSPECTOR (GD) SANDEEP SIYAG ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 383/2019

INSPECTOR (GD) RANJEET KUMAR ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 386/2019

INSPECTOR (GD) ASHISH KHARI ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 387/2019

INSPECTOR (GD) RAJENDRA SINGH ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 388/2019

INSPECTOR (GD) RAM PRAVESH SINGH ..... Petitioner

W.P.(C) 84/2019 & other connected matters Page 4 of 29

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 389/2019

INSPECTOR (GD) DHARAM PAL ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 390/2019

INSPECTOR (GD) ASHUTOSH OJHA ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 85/2019

INSPECTOR (GD) ARUN KUMAR SINGH ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 87/2019

INSPECTOR (GD) PRABHAT KR. SHAHI ..... Petitioner

versus

UNION OF INDIA AND ORS ..... Respondents

+ W.P.(C) 3427/2019

INSPECTOR (GD)MAHENDRA MANDIWAL ..... Petitioner

versus

W.P.(C) 84/2019 & other connected matters Page 5 of 29

UNION OF INDIA AND ORS ..... Respondents

Appearance for the Petitioners: Mr. Ankur Chhibber, Adv.

Appearance for the Respondents: Mr. Farman Ali, CGSC with

Ms. Usha Jamnal, Adv. for UOI

Mr. Ripudaman Bhardwaj,

CGSC, Mr. Kushagra Kumar

and Mr. Amit Kumar Rana in

WP(C) Nos. 104/2019 and

108/2019

Mr. Manish Kumar, Sr. PC for

UOI in WP(C) 84/2019, WP(C)

85/2019 & WP(C) 87/2019

Mr. Subhash Tanwar, CGSC

with Mr. Naveen and Ms. G

Thavi Garg, Advocates for UOI

in WP(C) 3448/2019 and

3427/2019

Mr. Manish Mohan CGSC and

Mr. Jatin Teotia Adv. for UOI in

WP(C) 108/2019

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

HON'BLE MS. JUSTICE JYOTI SINGH

HON'BLE MR. JUSTICE AJAY DIGPAUL

% JUDGMENT

05.01.2026

C. HARI SHANKAR, J.

W.P.(C) 84/2019 & other connected matters Page 6 of 29

1. By order dated 25 February 2019, a Division Bench of this

Court referred these matters to a Larger Bench of three Judges, as the

Division Bench felt that, on the issue in controversy in these writ

petitions, different Division Benches of this Court had ruled

differently.

2. We have heard Mr. Ankur Chhibber, learned Counsel for the

petitioners, and Mr. Farman Ali, Mr. Ripudaman Bharadwaj, Mr.

Subhash Tanwar and Mr. Manish Mohan, learned CGSC for the

respondents, at length.

3. To our mind, the issue in controversy can be decided by a mere

reference to the applicable Rule.

4. Facts in these writ petitions being identical, we refer to the facts

in WP (C) 84/2019

1

.

5. Applications for direct recruitment to the post of Sub Inspector

2

in the Central Police Organizations were invited by the Staff Selection

Commission in 2002. The petitioner applied, seeking appointment as

SI in the Border Security Force

3

. Written examination was held on 12

January 2003, which the petitioner cleared. He also cleared the

Physical Efficiency Test on 26 March 2003. However, in the Medical

Examination which took place on 9 June 2003, he was declared unfit

as suffering from Caries Teeth. The petitioner appealed against the

decision on 12 June 2003, seeking reconsideration by a Review

1

Jai Mangal Rai v. Union of India

2

“SI” hereinafter

3

“BSF” hereinafter

W.P.(C) 84/2019 & other connected matters Page 7 of 29

Medical Board

4

. While his appeal was pending, others, who had

participated with him in the selection and had not been medically

disqualified, were appointed and joined as SI. It was only on 19

December 2003 that the petitioner was called to attend the Review

Medical Examination

5

, which took place on 1 January 2004. Though

the RME declared the petitioner to be fit, the result was communicated

to the petitioner only a year and five months later, on 24 January 2005.

The petitioner was issued an appointment letter, appointing him as SI,

on 3 March 2005, and he joined on 7 March 2005, nearly a year and

seven months after his batchmates.

6. The petitioner represented to the respondents, seeking seniority

as SI along with those who had undertaken the selection along with

him. The representation was rejected by the respondents on 31 May

2018, relying on the judgment of the Supreme Court in Rohitash

Kumar v. Om Prakash Sharma

6

.

7. When the writ petitions came up for hearing on 25 February

2019, the Division Bench noted that there appeared to be a cleavage of

opinion on the issue, with the judgments in Naveen Kumar Jha v.

Union of India

7

, Avinash Singh v. Union of India

8

, Ram Pal Deswal

v. Union of India

9

, M.V. Sheshagiri v. Union of India

10

, Naresh

Kumar v. Union of India

11

and Dinesh Kumar v. Union of India

12

4

“RMB” hereinafter

5

“RME” hereinafter

6

(2013) 11 SCC 451

7

2012 SCC OnLine Del 5606 (DB)

8

2011 SCC OnLine Del 2432 (DB)

9

Judgment dated 7 March 2011 in WP (C) 393/2008

10

(2019) 173 DRJ 267 (DB)

11

2018 SCC OnLine Del 13015 (DB)

12

Judgment dated 14 February 2011 in WP (C) 19748/2005

W.P.(C) 84/2019 & other connected matters Page 8 of 29

favouring the case of the petitioner and the judgment in Shoorvir

Singh Negi v. Union of India

13

ruling per contra. It was further

noticed that, in Rohitash Kumar, the Supreme Court had left

undisturbed the decision in Dinesh Kumar, despite noticing it in para

35.

8. Paras 6 and 7 of the order dated 25 February 2019, in these writ

petitions, therefore, conclude thus:

“6. Therefore, there is clear difference of opinions by different

DBs of this Court on the issue of fixation of seniority of members

of BSF along with those of the same batch with whom they sat for

the written examination, but were declared qualified at a later date

on account of the medical or other verifications being delayed.

7. Consequently, the Court considers it appropriate to direct

that this entire batch of writ petitions be placed before the larger

Bench of three Hon’ble Judges on 15

th

March 2019 for resolving

the above difference, subject to the orders of the Hon’ble Chief

Justice. It is left open to the parties to request the larger Bench to

consider any other issues that may arise from the above conflicting

decisions.”

9. Clearly, therefore, the writ petitions themselves stand referred

to the Full Bench. We may note that no question, other than the

question formulated in paras 6 and 7 of the order dated 25 February

2019, has been addressed or urged by either side.

10. Before adverting to the judicial authorities noted in the order

dated 25 February 2019, we are of the view that Rule 8 of the BSF

General Duty Cadre (Non-Gazetted) Recruitment Rules, 2002

14

–

which the petitioners themselves claim to be applicable to the case –

13

MANU/DE/3865/2015 (DB)

14

“the 2002 Rules” hereinafter

W.P.(C) 84/2019 & other connected matters Page 9 of 29

is, in fact, dispositive of the issue in controversy. We have to bear in

the mind the fact that we are concerned, here, with inter se seniority

among direct recruits, and not between SIs appointed through

different modes of recruitment. The only issue is whether the delay in

the joining, by the petitioners, of the post of SI, owing to medical

clearances, etc., would depress their seniority.

11. Rule 8 of the 2002 Rules reads thus:

“8. Seniority. –

(1) Persons holding a higher rank whether in an

officiating or substantive capacity shall be senior to the

persons holding a lower rank.

(2) Seniority in any rank shall be determined on the

basis of continuous regular appointment in that rank.

Provided that the seniority of the personnel holding

the same rank and promoted on the same day shall be

determined in accordance with the order of selection for

appointment to that post.

(3) Subject to the provisions of sub- rule (2) seniority

of direct entry Sub- Inspector shall be determined in

accordance with merit of their selection through Staff

Selection Board:

Provided that the persons selected on an earlier

batch will be senior to those selected in subsequent batches:

Provided further that the seniority of

Constables/Head Constables selected under Limited

Departmental Competitive Examination Scheme as Sub-

Inspector against the reserved quota shall be determined in

accordance with their merit of selection and shall be placed

below the Sub- Inspector (Direct Entry) batch with whom

they join for training.”

W.P.(C) 84/2019 & other connected matters Page 10 of 29

12. When we apply Rule 8 of the 2002 Rules to the case of the

petitioner, the consequence is self-evident. Rule 8(2) makes it

perfectly clear that, within one rank, seniority would be determined on

the basis of continuous regular appointment. “Continuous regular

appointment”, in the case of the petitioner, would commence, at the

earliest, when the petitioner was issued his appointment letter on 3

March 2005. Prior thereto, the petitioner had not been appointed as SI.

Inasmuch as persons who had undergone selection with him but did

not have to await the outcome of any RME, or whose appointment was

not delayed on any other ground, were appointed as SI prior to the

petitioner, the petitioner would necessarily rank junior to them by

operation of Rule 8(2) of the 2002 Rules.

13. Rule 8(3) does not apply, as it is expressly subject to Rule 8(2).

The fixation of inter se seniority among direct recruit SIs, on the basis

of their comparative merit in the selection, as envisaged in Rule 8(3)

would, therefore, be subject to Rule 8(2); in other words, if, among

persons selected in one selection process, appointments did not take

place at the same time, then, by virtue of Rule 8(2), those appointed

later would be junior to those appointed earlier. It is only if all were

appointed at the same time and, therefore, their dates of “continuous

regular appointment” were the same, that, by operation of Rule 8(3),

their inter se merit would determine their inter se seniority.

14. Rule 8(2) is, therefore, dispositive of the controversy in issue.

15. We now proceed to refer to the various authorities noted in the

referral order dated 25 February 2019, for the sake of completion.

W.P.(C) 84/2019 & other connected matters Page 11 of 29

16. Rohitash Kumar

16.1 We commence with the judgment of the Supreme Court in

Rohitash Kumar. In that case, in fact, the plea of seniority on the

basis of the selection process was negatived by the Supreme Court as

Rule 3 of the BSF (Seniority, Promotion and Superannuation of

Officers) Rules, 1978

15

, which applied in that case, in its proviso,

specifically required that, among direct recruits, the date of

appointment “shall be the date of commencement of their training

course” at the BSF Academy. If, therefore, there was delay in

commencement of training, it would necessarily affect seniority, as the

date of appointment would also be delayed.

16.2 The decision is, quite clearly, of no application to the facts

before us, as Rule 8 of the 2002 Rules does not contain any provision

akin, or even similar, to the proviso to Rule 3 of the 1978 Rules which

applied in Rohitash Kumar.

16.3 The referral order, however, notes that the earlier judgment of a

Division Bench of this Court in Dinesh Kumar was noted in para 35

of Rohitash Kumar, and left undisturbed. We may, therefore,

reproduce para 35 of Rohitash Kumar, thus, before proceeding to deal

with Dinesh Kumar:

“35. Shri R. Venkataramani, learned Senior Counsel for the

appellants, has placed very heavy reliance upon the judgment of

the Delhi High Court (Dinesh Kumar v. Union of India) dated 14-

2-2011 wherein, certain relief was granted to the petitioner therein,

in view of the fact that there was some delay in joining training, in

15

“the 1978 Rules” hereinafter

W.P.(C) 84/2019 & other connected matters Page 12 of 29

relation to passing the fitness test set by the Review Medical

Board. The Court granted relief, in light of the facts and

circumstances of the case, without interpreting Rule 3 of the 1978

Rules. Thus, the said judgment, in fact, does not lay down any law.

The case at hand is easily distinguishable from the above, as that

was a case where seniority and promotion had been granted on a

notional basis, with retrospective effect and it was held that the

person to whom the same had been granted, was entitled to all

consequential benefits.”

(Emphasis supplied)

17. Dinesh Kumar

17.1 In view of the observation, in para 35 of Rohitash Kumar, that

Dinesh Kumar does not lay down any law, it is clear that the decision

cannot be said to have precedential value.

17.2 Besides, the issue in controversy in Dinesh Kumar was

altogether different. Like the petitioner before us, the appointment of

Dinesh Kumar as Assistant Commandant was delayed owing to his

having been initially medically disqualified and having had to

undertake an RME. There, however, the similarity ceases. Dinesh

Kumar’s representation, seeking ante-dated seniority along with those

who had appeared in the selection process with him, and whose

appointment was not delayed, was allowed by the department itself,

and the seniority refixed accordingly. That issue did not, therefore,

arise for consideration before this Court.

17.3 The dispute in Dinesh Kumar arose because the order re-fixing

his seniority, consequent on allowing of his representation, was issued

several years after the representation was made, on 31 December

2001, during which period persons who had undergone the selection

W.P.(C) 84/2019 & other connected matters Page 13 of 29

process with him, and who were below him in seniority as per the

decision taken on 31 December 2001, had already been promoted as

Deputy Commandants. Dinesh Kumar’s prayer was that he be

promoted as Deputy Commandant along with them, on the ground that

a senior was entitled to be promoted with effect from the date of

promotion of his junior, even if he did not have, to his credit, the

requisite qualifying service. This, therefore, was the dispute before

this Court, which was ultimately decided in favour of Dinesh Kumar.

17.4 The issue which is before us, therefore, never arose for

consideration before the Division Bench of this Court in Dinesh

Kumar.

18. Ram Pal Deswal

18.1 The facts in this case, and the issue in controversy, undoubtedly

parallel the case before us.

18.2 Ram Pal Deswal

16

, like the present petitioner, participated in the

selection for recruitment to the post of SI in the BSF, consequent to an

advertisement issued by the Staff Selection Commission. He was

initially declared medially unfit on 22 October 1998. He sought an

RMB. On 25 July 1999, he was declared medically unfit by the RMB.

He challenged his declaration as medically unfit before this Court by

way of WP (C) 6079/2000. This Court, by order dated 18 October

2004, directed Deswal to be re-examined, including a Cardiologist in

the Board. The fresh medical examination of Deswal did not find him

16

"Deswal" hereinafter

W.P.(C) 84/2019 & other connected matters Page 14 of 29

unfit for recruitment as SI. He was, therefore, issued an order of

appointment dated 23 November 2004.

18.3 In the meanwhile, other candidates who had participated with

him for recruitment as SI had been appointed and had joined.

18.4 Deswal sought seniority along with the said candidates.

18.5 Clearly, therefore, the issue before the Division Bench of this

Court in Ram Pal Deswal was identical to that which is before us. The

applicable Rule was also the same, i.e., Rule 8 of the 2002 Rules,

which stands extracted in para 1 of the decision in Ram Pal Deswal.

18.6 The Division Bench allowed Deswal’s writ petition, reasoning

as under:

“14. Suffice would it be to state that sub-rule (2) would apply in

case of promotion and where the promotion is ad-hoc, temporary or

stop-gap i.e., fortuitous, seniority would rank on the basis of

continuous regular employment. The proviso to sub-rule (2) makes

clear the ambit of the sub-rule. The proviso deals with promotions

and carves out an exception to what is contemplated by sub-rule

(2). The proviso, therefore, highlights the ambit of sub-rule (2).

15. Sub-rule (3) deals with seniority by way of direct entry to

the post of Sub-Inspector and mandates the same to be determined

with respect to the merit position at the selection conducted

through the Staff Selection Board.

16. That apart, the peculiar facts of the instant case have to he

noted. For no fault of his, and at Medical Boards improperly

constituted, excluding cardiologists, petitioner was repeatedly

declared unfit with reference to a stated cardiological problem. We

may highlight that subjecting the petitioner to a clinical

examination and without subjecting the petitioner to the procedures

of medical jurisprudence required to be followed to confirm a

cardiological problem, he was being rendered unfit. It was only

W.P.(C) 84/2019 & other connected matters Page 15 of 29

through judicial intervention that a properly constituted Medical

Board was constituted. Needless to state, this properly constituted

Medical Board found the petitioner fit.

17. Petitioner cannot be made to suffer for no fault of his.”

18.7 We are, with greatest respect, unable to agree with the view

expressed by the Division Bench in paras 14 and 15 of Ram Pal

Deswal. The Division Bench has understood Rule 8(2) as applicable

in cases of promotion and Rule 8(3) as applicable in cases of direct

recruitment. With respect, we are unable to agree with this reasoning.

18.8 Rule 8(2) expressly covers all appointments. It does not restrict

its application only to promotion. It specifically states that “seniority

in any rank shall be determined on the basis of continuous regular

appointment in that rank”. In Dr. Harkishan Singh v. State of

Punjab

17

and Chander Bhan v. Hoti Lal Gupta

18

, the Supreme Court

has held that the word “appointment” would cover direct recruitment

as well as promotion. In fact, it would cover all kinds of recruitment,

including, for example, deputation, where deputation is provided as a

mode of recruitment. Recruitment, by whichever mode, culminates in

appointment.

18.9 It is well settled that, where the legislature uses a deliberately

wide expression, there is no justification for courts to narrow its

scope. The proviso to Rule 8(2) of the 2002 Rules uses the expression

“promotion”. If the framers of the Rule wanted to restrict the main

part of Rule 8(2) only to promotion, there was no reason why they

17

(1971) 2 SCC 58

18

1991 Supl 2 SCC 156

W.P.(C) 84/2019 & other connected matters Page 16 of 29

would not expressly have so provided. The use of the word

“appointment” is ex facie deliberate.

18.10 The Division Bench has, in Ram Pal Deswal, restricted the

scope of the main part of Rule 8(2) of the 2002 Rules to the scope of

the proviso. Such a mode of interpretation, with greatest respect to the

learned authors of the decision, is unknown to law. In fact, in para 20

of Rohitash Kumar, it is specifically ruled, with respect to the scope

of a proviso, thus:

“20. The normal function of a proviso is generally to provide for

an exception i.e. exception of something that is outside the ambit of

the usual intention of the enactment, or to qualify something

enacted therein, which, but for the proviso would be within the

purview of such enactment. Thus, its purpose is to exclude

something which would otherwise fall squarely within the general

language of the main enactment. Usually, a proviso cannot be

interpreted as a general rule that has been provided for. Nor it can

be interpreted in a manner that would nullify the enactment, or take

away in entirety, a right that has been conferred by the statute. In

case the language of the main enactment is clear and

unambiguous, a proviso can have no repercussion on the

interpretation of the main enactment, so as to exclude by

implication, what clearly falls within its expressed terms. If, upon

plain and fair construction, the main provision is clear, a proviso

cannot expand or limit its ambit and scope. [Vide CIT v. Indo

Mercantile Bank Ltd

19

., Kush Saigal v. M.C. Mitter

20

, Haryana

State Coop. Land Development Bank Ltd. v. Employees Union

21

,

Nagar Palika Nigam v. Krishi Upaj Mandi Samiti

22

and State of

Kerala v. B. Six Holiday Resorts (P) Ltd

23

].”

A proviso cannot, therefore, be used to restrict the scope of the main

Rule.

19

AIR 1959 SC 713

20

(2000) 4 SCC 526

21

(2004) 1 SCC 574

22

(2008) 12 SCC 364

23

(2010) 5 SCC 186

W.P.(C) 84/2019 & other connected matters Page 17 of 29

18.11 We, therefore, are unable to sustain the finding, of the Division

Bench, that Rule 8(2) applies exclusively to promotion and Rule 8(3)

applies to direct recruitment.

18.12 We are, therefore, of the view that the decision in Ram Pal

Deswal does not correctly declare the law, insofar as interpretation of

Rule 8 is concerned.

18.13 We may note, in this context, that the subsequent Division

Bench of this Court, in Shoorvir Singh Negi, also adopted the same

view, i.e. that Ram Pal Deswal was not correctly decided. We would

be adverting to the decision in Shoorvir Singh Negi in somewhat

more detail hereinafter.

19. Avinash Singh

19.1 The decision in Avinash Singh, on facts, is clearly

distinguishable, as has also been noted in the subsequent decision in

Shoorvir Singh Negi. Avinash Singh was a case in which the

petitioners before this Court had been declared fit by the review

medical board before other candidates who had participated in the

selection process along with them were appointed and made to join

the service. The Division Bench, therefore, found it unacceptable that,

even after the petitioners had been declared fit, their appointment was

postponed to a date beyond that on which other candidates who had

participated in the selection after them had been appointed. This is

apparent from paras 7, 8, 16 and 18 of the decision in Avinash Singh,

which may be reproduced thus:

W.P.(C) 84/2019 & other connected matters Page 18 of 29

“7. On 02.11.2004, a date which is after 18 days of the date

14.10.2004 when petitioners were declared medically fit, those

persons who were declared fit at the first instance joined ITBP as

Assistant Commandant.

8. For unexplainable reasons, why petitioners who were

declared medically fit on 14.10.2004 were not issued appointment

letters by 2.11.2004 remains a mystery. Their appointment process

got delayed till 08.08.2005 on which date even they were

appointed as Assistant Commandant.

*****

16. Facts noted hereinabove make it plain clear that by

14.10.2004 the petitioners were declared fit. By that date nobody

from amongst the merit list had joined as an Assistant

Commandant and that a few out of the list joined as Assistant

Commandant on 02.11.2004. We see no reason as to why the

petitioners were not made to join as Assistant Commandant on

02.11.2004.

*****

18. We highlight in the instant case the fortuitous circumstance

of the petitioners being made to join as Assistant Commandant on

08.08.2005 is not the result of anything created by the petitioners

but is a result of a supine indifference and negligence on the part of

the ITBP officials.”

19.2 In para 17, however, the Division Bench has observed thus:

“17. It is settled law that if appointment is by selection, seniority

of the entire batch has to be reckoned with respect to the merit

position obtained in the selection and not on the fortuitous

circumstance on the date on which a person is made to join.”

The statement of law contained in para 17 of Avinash Singh is made

without reference to any Rule. It cannot, therefore, be treated as an

omnibus declaration of the legal position, which would apply even

where the rule position is such as is contained in Rule 8 of the 2002

Rules with which we are concerned.

W.P.(C) 84/2019 & other connected matters Page 19 of 29

19.3 Avinash Singh is, therefore, clearly distinguishable from the

issue before us.

20. Naveen Kumar Jha

20.1 The facts and the issue in Naveen Kumar Jha are, like Ram

Pal Deswal, the same to those which are before us. The petitioner had

initially been declared unfit by the Medical Board on 4 February

2002. He appealed. He was examined by the RMB only on 18 January

2003. On being found fit, he was interviewed in July 2003 and was

appointed as SI in the CRPF in April 2004.

20.2 In the meanwhile, other successful candidates, who had

participated in the selection with him, joined their respective para

military forces.

20.3 The Division Bench upheld the entitlement of Naveen Kumar

Jha to be granted seniority along with those who had participated in

the selection process with him and had been appointed while the

results of the RMB which had examined him was still pending.

20.4 There is, however, no reference, in Naveen Kumar Jha, to any

applicable Rule or Regulation. The appointment was to posts in the

CRPF. We are unaware as to whether the Rule position in the CRPF

was comparable to Rule 8 of the 2002 Rules applicable to the BSF.

Inasmuch as the decision in Naveen Kumar Jha has been rendered

without reference to any Rule or Regulation, it cannot be regarded as

declaring the law on the issue.

W.P.(C) 84/2019 & other connected matters Page 20 of 29

21. Shoorvir Singh Negi

21.1 Shoorvir Singh Negi also dealt with persons who were seeking

appointment to the BSF. As in the present case, they were initially

declared unfit. They were subjected to RME. By the time they were

declared fit in the RME, others who had participated in the selection

with them were appointed. The petitioners, therefore, contended that,

on account of the fault of the respondents, they were unable to join

and that their seniority could not be prejudiced for that reason.

21.2 Reliance was placed, by the petitioners, on the decisions in

Naveen Kumar Jha, Avinash Singh and Ram Pal Deswal.

21.3 As against this, the Union of India, contesting the petition,

relied on an earlier Division Bench ruling of this Court in Roop Ram

Kundu v Union of India

24

, in which, dealing with Rule 19 of the BSF

(Subordinate Officers and Under Officers) Promotion and Seniority

Rules 1975, which was pari materia with Rule 8 of the 2002 Rules,

the Division Bench held as under:

“6. Thus any challenge to petitioner's temporary medical

unfitness as per the review medical board became a matter which

no longer is capable of being adjudicated upon by any Court.

7. However, taking into account that the petitioner was being

declared temporarily medically unfit, the authorities subjected the

petitioner to another medical examination which was conducted in

July 19, 1996. The petitioner had overcome the medical problem

from which he was temporarily suffering. He was opined to be

medically fit and accordingly an appointment letter dated

September 17, 1996 was issued.

24

2012 SCC OnLine Del 4223

W.P.(C) 84/2019 & other connected matters Page 21 of 29

8. Now, the petitioner prays that he be accorded seniority as

per his merit position obtained at the examination with all

consequential benefits.

9. Suffice would it be to state that as per Rule 19 of the BSF

(Subordinate Officers and Under Officers) Promotion and

Seniority Rules 1975, seniority in any rank has to be determined on

the basis of continuous regular appointment in that rank.

10. Being repeatedly declared temporarily medical unfit, till he

was declared fit in September, 1996 resulting in appointment letter

being issued on September 17, 1996, would require petitioner to be

placed with respect to seniority, not with reference to the merit

position which he had obtained when the examination was

conducted in the year 1992 more so for the reason W.P.(C) No.

149/1996 filed by the petitioner stands dismissed in default and

revival whereof has not been prayed for.”

(Emphasis supplied)

21.4 Shoorvir Singh Negi was also directly concerned with Rule 8

of the 2002 Rules, which stands extracted in extenso in para 8 of the

decision. In the paragraphs which follow para 8, the Division Bench

has held as under:

“9. The petitioners highlight Rule 8(3) to say that seniority of

direct entry Sub-Inspector would be determined in accordance with

the merit of their selection through Staff Selection Board. Although

this argument is attractive, the fact remains Rule 8(3) expressly

states that it is “subject to provisions of sub-rule (2)”. This in turn

means that the primary rule is “continuous regular appointment in

that rank”. This Court is of the opinion that the question of an

individual being “appointed to the rank” would imply his joining

the cadre. In all these cases, the petitioners do not dispute that they

had joined the cadre or the concerned post only after they were

declared medically fit by the Review Medical Board—in 2003.

Though they were initially declared successful in the recruitment

process, their medical conditions constituted a barrier for their

entry into the service. That barrier was lifted on account of their

overcoming unfitness and the subsequent determination of the

Review Medical Board. Obviously, therefore, they joined and

started continuously working in the post of Sub-Inspector from the

later dates. This interpretation is supported by the judgment in

Roop Ram Kundu (supra) – a proceeding initiated as far back as in

1999 when the petitioner claimed seniority of merely three months.

W.P.(C) 84/2019 & other connected matters Page 22 of 29

He was initially declared temporary unfit in July, 1999, but was

subsequently declared successful in September, 1999. In the

interregnum in Roop Ram Kundu (supra), the original batch to

which he belonged had already joined the training. He was,

therefore, directed to join the subsequent batch. This Court is of the

opinion that the BSF’s position cannot be faulted given the fact that

he entered the cadre or joined the post subsequently.

10. At some stage, counsel in one of the proceedings W.P. (C)

No.163/2014, relied upon the order in Ram Pal Deswal v. UOI &

Ors. W.P.(C) No.393/2008 (decided on 07.03.2011) to state that

Rule 8(2) is really meant for regulating seniority of promotees. In

Ram Pal Deswal (supra), the Court observed as follows:-

“14. Suffice would it be to state that sub-rule (2) would

apply in case of promotion and where the promotion is ad-

hoc, temporary or stop-gap i.e. fortuitous, seniority would

rank on the basis of continuous regular employment. The

proviso to sub-rule (2) makes clear the ambit of the sub-

rule. The proviso deals with promotions and carves out an

exception to what is contemplated by sub-rule (2). The

proviso, therefore, highlights the ambit of sub-rule (2).”

11. This Court is of the opinion that Rule 8(1) firstly states a

general principle, i.e., those holding higher rank whether in an

officiating or substantive capacity would be senior to persons those

holding a lower rank. Rule 8(2) then prescribes a principle of

universal application. i.e., the seniority in any rank “shall” be

determined on the basis of continuous regular appointment in that

rank. Thirdly, the proviso of Rule 8(2) states that the seniority of

the two individuals holding the same rank “and promoted on the

same day” shall be determined in accordance with the order of

selection for appointment to that post. In other words, the provision

carves out an exception from the general rule prescribed in Rule

8(2) of seniority on the basis of the regular appointment to the

rank. The exception is that in case of promotees, the seniority is to

be determined “in accordance with the order of selection for

appointment to that post”. However, the proviso is silent as to the

matters left out which are part of the main provision, i.e., Rule

8(2). The corollary irresistibly, therefore is that Rule 8(2) applies

for other categories, i.e., direct recruits. If one were to construe

Rule 8(2) in this manner, the mandate of Rule 8(3), i.e., that

seniority of direct entry Sub Inspector would be determined in

accordance with the merit of their selection, is a rule to guide inter

se merit of those who are appointed in the same selection process.

However, it would not in any way disturb or detract from the

application of Rule 8(2), i.e., the seniority in the rank has to be

determined on the basis of continuous regular appointment.

W.P.(C) 84/2019 & other connected matters Page 23 of 29

12. This Court does not read proviso to Rule 8(2) in the manner

sought to be urged or as appears to have been read in Ram Pal

Deswal (supra). This is for the simple reason that the provision

carves out an exception only for promotees and its intendment

cannot be extended beyond what is prescribed. (see S. Sundaram

Pillai v. V.R. Pattabiraman

25

, for the effect of operation of

proviso).

13. Respectfully, we differ from Naveen Kumar Jha (supra)

and Avinash Singh (supra) as we find that no discussion of a rule

akin to Rule 8 has been made in these judgments. In our opinion

Rule 8 is determinative of the question of how seniority must be

calculated for the present petitioners. We are also mindful that

interfering in the manner sought will upset already settled seniority

lists and affect persons who are not parties before us. We prefer

instead the view taken in Roop Ram Kundu (supra), a decision

that was not brought to the notice of the court in either Naveen

Kumar Jha (supra) or Avinash Singh (supra).

14. In view of the above discussion, we are of the opinion that

the petitioners claim for seniority from the date their batch mates or

original batch mates who were otherwise appointed in the normal

circumstances in 2000-2001 cannot succeed.”

21.5 Thus, in paras 9 to 12 of Shoorvir Singh Negi, the Division

Bench has clearly disagreed with the interpretation of Rule 8 of the

2002 Rules as propounded in Ram Pal Deswal. For this purpose, the

Division Bench has also relied on the judgment of the Supreme Court

in S. Sundaram Pillai, which clearly holds that a proviso only carves

out an exception and that its intendment cannot extend beyond what is

prescribed in the main provision. Equally, as we have already held, a

proviso cannot operate to restrict the scope of the main provision,

especially where the main provision is couched in wide and

compendious terms.

25

AIR 1985 SC 582

W.P.(C) 84/2019 & other connected matters Page 24 of 29

21.6 We, therefore, express our wholehearted concurrence with the

exposition of the law by the Division Bench of this Court in Shoorvir

Singh Negi, to the extent it holds that the interpretation of Rule 8 in

Ram Pal Deswal is not correct, and that inter se seniority among

direct recruits would have to be determined on the basis of the date

when they joined the service or, at the earliest, the date of their

appointment order. Once we interpret Rule 8 thus, the petitioners

before us really have no case.

22. Naresh Kumar

22.1 Naresh Kumar, again, involved a similar issue. We do not deem

it necessary to enter into the specifics of the decision. However, in

paras 12 to 14 of the Naresh Kumar, the Division Bench has held as

under:

“12. Before we proceed to decide this issue, we feel it would be

worthwhile to first discuss the decision of this Court in W.P. (C)

No. 19748/2005, decided on 14

th

February, 2011, titled as Dinesh

Kumar Dy. Commandant v. Union of India. The facts of the said

case are quite similar to the case in hand. Dinesh Kumar

successfully qualified the examination for the post of Assistant

Commandant on 15

th

September 1991. He was declared unfit

during Medical Board Examination held on 4

th

December 1992. He

then made an application for his fitness being reconsidered by

constituting a Review Medical Board (RMB). RMB met on

13

th

July 1994 and declared Dinesh Kumar to be medically fit and

thus he became eligible for appointment to the post of Assistant

Commandant. In the meantime, the batches of the Assistant

Commandant who had successfully undergone the training course

were inducted on regular basis as Assistant Commandant. Dinesh

Kumar was made to join with the 18

th

batch (2

nd

January 1995) and

given seniority with reference to the date of joining. Since he was

not given seniority with reference to 16

th

batch, he made several

representations to the Respondents. Ultimately, his seniority was

re-fixed as per the merit position in the examination held on

15

th

January 1991. Dinesh Kumar was then constrained to approach

W.P.(C) 84/2019 & other connected matters Page 25 of 29

the Court on account of Respondents' denial to give him

consequential benefits by re-fixing his seniority on the promotional

post of Deputy Commandant. This Court allowed the writ petition

and granted promotion with consequential benefits, except back

wages. The aforesaid decision was challenged by the Respondents

before the Supreme Court. However, the SLP was dismissed.

13. Now, we proceed to note the judgment of the Supreme

Court in Rohitash Kumar (supra). In the said case, the Supreme

Court was dealing with the interpretation of proviso to Rule 3 of

BSF Rules, in calculating the seniority of direct recruits selected

through the same selection process, but bifurcated into different

batches (Batch 16 and Batch 17) for administrative reasons. The

Respondent no. 1 therein, was a promotee and had joined training

with the 16

th

batch i.e prior to the 17

th

batch, but was placed below

the 17

th

batch in the seniority list. The Supreme Court held that the

language of the rule is clear and seniority cannot be calculated

from a date prior to birth in a cadre. Hence, it was held that

seniority of the officials would be from the date of commencement

of training, giving effect to the proviso to Rule 3. Supreme Court

further held that the said proviso will have application only in case

officers who have been selected in pursuance of the same selection

process are split into separate batches. In Rohitash Kumar (supra),

the Supreme Court also noted the decision of Dinesh

Kumar (supra) and differentiated the said decision, which is

evident from para 29 of the said judgment which reads as under:

“29. Shri. R. Venkataramani, learned senior counsel for

the Appellants, has placed very heavy reliance upon the

judgment of the Delhi High Court (Dinesh

Kumar v. UOI) dated 14.2.2011 wherein, certain relief was

granted to the Petitioner therein, in view of the fact that

there was some delay in joining training, in relation to

passing the fitness test set by the Review Medical Board.

The court granted relief, in light of the facts and

circumstances of the case, without interpreting Rule 3 of the

Rules 1978. Thus, the said judgment, in fact, does not lay

down any law. The case at hand is easily distinguishable

from the above, as that was a case where seniority and

promotion had been granted on a notional basis, with

retrospective effect and it was held that the person to whom

the same had been granted, was entitled to all consequential

benefits.”

14. It is therefore interesting to note that the Supreme Court

did not interfere with the decision of this Court in Dinesh

Kumar (supra). In our opinion, this clearly indicates that the

judgment of Supreme Court in Rohitash Kumar (supra) has to be

W.P.(C) 84/2019 & other connected matters Page 26 of 29

understood and appreciated in the context of the facts of the said

case.”

22.2 With greatest respect, we are unable to agree with the

exposition of law in paras 12 to 14 of Naresh Kumar. We have

already held, earlier in this judgment, that Dinesh Kumar dealt with

an entirely different issue, as the petitioner in that case had already

been granted the benefit of seniority with the persons who had

undergone selection with him by the department itself, and the issue

before this Court was the entitlement of the petitioner to promotion to

the next grade at par with his juniors. We cannot, therefore, agree with

the Division Bench in its view, contained in para 12 of Naresh

Kumar, that the issue in Dinesh Kumar was similar to that before us –

or, for that matter, before the Division Bench in Naresh Kumar.

22.3 For the reasons already provided earlier, we are also unable to

subscribe with the view expressed in para 13 of Naresh Kumar, to the

effect that the judgment of the Supreme Court in Rohitash Kumar was

applicable. As we have pointed out, Rohitash Kumar dealt with a case

in which there was a peculiar dispensation in the applicable Rule to

the effect that appointment would only reckon from the date when the

candidate joined training. In fact, based on that Rule, the Supreme

Court rejected the claim for antedated seniority made by the

petitioners before it.

22.4 Insofar as the reference to Dinesh Kumar, in Rohitash Kumar,

is concerned, we have already extracted the relevant paragraph from

Rohitash Kumar supra. From a bare reading of the paragraph, the

W.P.(C) 84/2019 & other connected matters Page 27 of 29

Supreme Court has clearly held that Dinesh Kumar does not lay down

any principle of law.

22.5 Moreover, we find that Shoorvir Singh Negi was not even

brought to the notice of the Bench which decided Naresh Kumar. We

have no doubt, in our mind, that, if the Bench deciding Naresh Kumar

had been apprised of the earlier decision in Shoorvir Singh Negi, the

outcome might have been different.

22.6 We cannot, therefore, subscribe to the view expressed in Naresh

Kumar.

23. M.V. Sheshagiri

23.1 M.V. Sheshagiri is, again, a judgment which does not refer to

the applicable Rules in that case. Appointment, in the case of M.V.

Sheshagiri was to the post of SI in the CRPF. The Division Bench

followed its earlier decision in Naveen Kumar Jha. As we have noted,

Naveen Kumar Jha also did not make any reference to the applicable

Rules.

23.2 In the absence of any reference to the applicable rules, we are

unable to regard the decision in M.V. Sheshagiri as a useful precedent

for the controversy before us.

24. The sequitur

W.P.(C) 84/2019 & other connected matters Page 28 of 29

24.1 We have, thus, peregrinated through the decisions which have

been noted in the referral order of the Division Bench. It would be

meaningless to advert to all decisions on the point, as there are many.

The actual decisions which have a bearing on the controversy, in so far

as we are concerned, are Ram Pal Deswal and Shoorvir Singh Negi.

Both these decisions dealt with Rule 8 of the 2002 Rules, with which

we are concerned. They adopted diametrically opposite views of the

said Rules. The Division Bench proceeded, in Ram Pal Deswal, on

the premise that Rule 8(2) applied only to promotion and Rule 8(3)

applied to direct recruitment. We have already expressed our inability

to agree with the said proposition. The subsequent Division Bench in

Shoorvir Singh Negi also found it difficult to agree with the

proposition and, therefore, chose to follow the contrary decision in

Roop Ram Kundu.

25. We express our concurrence with the decision of the Division

Bench in Shoorvir Singh Negi and our respectful inability to concur

with the view expressed in Ram Pal Deswal which, therefore, must be

taken to have been wrongly decided.

Conclusion

26. In view of our aforesaid discussion, we are of the view that the

petitioners in these writ petitions cannot claim seniority along with the

persons who participated in the selection along with them but joined

earlier, as the joining of the petitioners was delayed owing to their

having to undertake the RME. The fact that this delay may not have

been attributable to the petitioners cannot affect the legal position. It is

W.P.(C) 84/2019 & other connected matters Page 29 of 29

equally not attributable to the persons who joined before the

petitioners. The Rule must apply as it stands.

27. Rule 8(3) cannot, in our view, apply as it is subject to Rule 8(2).

Where Rule 8(2) applies, therefore, Rule 8(3) would not apply. In our

view, and as has been held in Shoorvir Singh Negi, Rule 8(2) would

apply both to direct recruitment and promotion. In the case of any

appointment, therefore, whether by direct recruitment or promotion,

seniority would have to be based on the date of appointment.

Inasmuch as the petitioners’ date of appointment was after the dates

when the others who had participated in the selection with them were

appointed, they cannot seek antedating of the dates of appointment to

be at par with such earlier appointees or seek any benefit in seniority

on that ground.

28. The issue which stands referred to us by the order dated 25

February 2019 of the Division Bench is answered accordingly.

29. Resultantly, all these writ petitions are dismissed with no orders

as to costs.

C. HARI SHANKAR, J.

JYOTI SINGH, J.

AJAY DIGPAUL, J.

JANUARY 5, 2026

dsn/ar