Jammu & Kashmir High Court - Srinagar Bench
Bashir Ahmad Bhat & Others vs Union Of India&Others on 21 October, 2023
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKHAT SRINAGAR
Reserved on: 14.09.2023
Pronounced on:21.10.2023
SWP No.1416/2013
BASHIR AHMAD BHAT & OTHERS ...PETITIONER(S)
Through: - Mr. R. A. Jan, Sr. Advocate with
Mr. Aswad Attar, Advocate.
Vs.
UNION OF INDIA&OTHERS ...RESPONDENT(S)
Through: - Mr. Nazir Ahmad, Advocate.
CORAM:HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
"For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahimsa" (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre- Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post- Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final."
These observations made by the Hon'ble Supreme Court of India in 'Dalip Singh v. State of U.P., (2010) 2 SCC 114', hold good in this SWP No.1416/2013 Page 1 of 15 case as well, as the petitioners (except the petitioner No.86) have concealed from this court, the material fact of submitting applications with the respondents demonstrating their voluntariness/willingness to work at their home turf but with certain sacrifices.
1) After having successfully participated in the selection process undertaken for the recruitment of Constables in Railway Protect Special Force (hereinafter referred to as "RPSF"), the petitioners came to be appointed as Constables in RPSF. After rendering ten years of service, the petitioners were promoted to the rank of Head Constables in RPSF with effect from 1st July, 2004.
2) The Railway Board accorded sanction for the creation of 252 additional non-gazetted posts of Railway Protection Force (hereinafter referred to as "the RPF") for USBRL between Qazigund-Baramulla, as the said section was likely to be operationalized soon.
3) Vide communication dated 31st March, 2008, the Divisional Security Commissioner/RPF, Northern Railway, Ferozpur Cantt. addressed to the Assistant Security Commissioner/RPF, Amritsar, Jalandhar & Jammu Tawi, sought the names of the serving staff willing to work in Qazigund-Baramulla Section for onward forwarding to Headquarter office for further necessary action. In addition to that, the list of Constables (below the age of 40 years) and Head Constables (below the age of 50 years), who had completed their tenure and were due for transfer during the general transfer-2008, was also sought. SWP No.1416/2013 Page 2 of 15
4) Vide communication dated 9th May, 2008, the transfer of 225 RPSF personnel was approved by the respondent No.2 subject to the condition that they would figure at bottom seniority of their batch- mates in feeder categories and no request for posting elsewhere shall be entertained.
5) As is evident from communication dated 25th June, 2008, the transfer of 124 RPSF personnel was approved by the respondent No.2. By virtue of Force Orders bearing No.16/FZR/2008, 18/FZR/2008, 29/ FZR/2008, 31/FZR/2008, 35/FZR/2008, 46/FZR/2008 and 79/FZR/ 2008, the RPSF personnel, who were transferred to the Northern Railway on the bottom of seniority of their counterparts in the feeder categories, were posted at various locations mentioned in the aforesaid orders.
6) The colour given to the claim projected by the petitioners in the present writ petition is that pursuant to the orders dated 9th May 2008, 23rd May, 2008 and 25th June, 2008, the petitioners were not only reverted from the post of Head Constable to the post of Constable but were also reduced in order of seniority in the reverted lower cadre of Constables in the RPF of Northern Railway, as is evident from communication dated 18th September, 2008. The petitioners, as such, have impugned the orders dated 9th May 2008, 23rd May, 2008 and 25th June, 2008, to the extent of reducing them from the rank of Head Constables to the rank of Constables in RPF Northern Railway. SWP No.1416/2013 Page 3 of 15
7) Earlier a writ petition was filed by the petitioners but the same was subsequently withdrawn by them with liberty to file fresh. It is also stated that some writ petitions were also filed before the High Court of Judicature of Allahabad and vide order dated 27.10.2010, the writ petitions were allowed and the impugned orders to the extent it intended to accommodate the petitioners therein and re-determine their seniority on lower posts were quashed. The petitioners herein further claim to have approached the respondents No.2, 4 and 5 through a comprehensive representation dated 5th June, 2013 but to no effect.
8) It is stated that the recruitment and conditions of service of the members of the Railway Protection Force (RPF) are regulated and governed by the Statute and Statutory Rules known as "Railway Protection Force Act, 1957" and the "Railway Protection Force Rules, 1987" respectively and the transfer orders dated 9th May, 2008, 23rd May, 2008 and 25th June, 2008 are bereft of any warrant or sanction of law and, in fact, are ultravires the relevant provisions of Rules of 1987.
9) It is further averred that the impugned orders/communications proceed on an erroneous assumption that inter-railway transfer was on request when as a matter of fact, the inter-railway transfer was for the administrative reasons necessitating to seek willingness of posting in Qazigund-Baramulla Section of Udhampur-Srinagar-Baramulla Railway Link Project as the Kashmir Province was declared as a disturbed area.
SWP No.1416/2013 Page 4 of 15
10) The respondents have filed the response thereby admitting that the petitioners were appointed as Constables in RPSF and their subsequent transfer from RPSF to RPF/Northern Railway on bottom seniority of their batch-mates in feeder category and other usual terms and conditions governing such inter-railway transfer on request.
11) It is stated that the petitioners were posted at various stations in the valley region of J&K State. It is submitted that as the seniors of the petitioners in the rank of Constables have not been promoted as Head Constables, therefore, the petitioners have been placed below their seniors as Constables in RPF. It is also stated that in an identical case, 11 Inspectors arrived on transfer from other Zonal Railways/RPSF to Northern Railway in 2006, as a result of which Shri B. L. Bishnoi and others filed a writ petition bearing WP(C) No.4470/2007 before the High Court of Delhi challenging the transfer orders issued by the Railway Board on the ground that the persons junior to them would occupy the post of Inspector while they occupy the post of Sub- Inspector and the paucity of promotional avenues would result in blocking the seats to be filled on promotion. The High Court of Delhi vide order dated 22.10.2008, quashed the transfer affected to the post of Inspectors being contrary to the Standing Order and thus, held that the posts of Inspectors be filled in from Sub- Inspectors. In compliance to the order passed by Delhi High Court, the Inspectors transferred from RPSF to Northern Railway have been repatriated to their parent Railway/RPF.
SWP No.1416/2013 Page 5 of 15
12) In an identical issue, another matter pertaining to assignment of seniority to staff on their transfer from other Zonal Railways on bottom seniority of their batch-mates, the High Court of Delhi observed that inter-zonal transfers are not permissible in case of a promotional post as per Standing Order No.70 dated 27.09.2004. The petitioner in that case was working on promotional post and inter-zonal transfer was not permissible unless the petitioner was placed at the bottom of the list as Head Constable/RPF Northern Railway. The High Court of Delhi gave an option to the petitioner therein to go back to his zone within a period of three months and in case the petitioner chose to stay in the Northern Zone, then he would have to take his seniority as Head Constable but in the event he decides to go back to his original Zone being the Western Railway, the petitioner would work as ASI as per promotion granted to him earlier.
13) It is stated that the petitioners with number of other staff from RPSF who were transferred to RPF Northern Railway on bottom seniority of their batch-mates in feeder category, raised the issue regarding rank and seniority. They were given an opportunity either to accept the above terms and conditions or go back to their parent cadre of RPSF. Some staff chose to go back to RPSF whereas a number of other staff including the petitioners chose to be posted in RPF Northern Railway thereby accepting the terms and conditions of their transfer.
14) Vide order dated 25th August, 2022, Mr. T. M. Shamsi, learned ASGI, had sought some time to get instructions in the matter and SWP No.1416/2013 Page 6 of 15 thereafter the respondents filed the response pursuant to the order dated 25th August, 2022, wherein it was stated that the petitioners were transferred as per the terms and conditions laid down in para-17(B) of Standing Order No.70 dated 27th September, 2004, as amended vide Ministry of Railway, Railway Board's letter dated 9th August, 2006, which provides that a personnel on transfer from RPSF to RPF would go on bottom seniority of his batch-mates in the same rank. Since the seniors of the petitioners in the rank of Constables have not been promoted as Head Constables in RPF, therefore, the petitioners were placed below their seniors as Constables in RPF. It was reiterated that after joining in RPF/Northern Railway, the issue regarding rank and seniority was raised by the petitioners and they were given open either to accept the terms and conditions or go back to their parent cadre of RPSF with the rank and seniority which they were holding there. The petitioners did choose and submitted their willingness to be posted as RPF as Constables-Northern Railway and thereby accepted the terms and conditions of their transfer. The respondents promoted some Constables to the rank of Head Constables vide orders dated 03.03.2013 and 04.06.2018. In terms of these orders, the petitioners have also been promoted to the rank of Head Constables as per their seniority but kept in sealed cover due to pendency of the present case. It is further stated that all the petitioners have been promoted to the rank of Head Constables in spells and as per their seniority in Northern Railway.
SWP No.1416/2013 Page 7 of 15
15) Mr. R. A. Jan, the learned senior counsel, submitted that the petitioners could not have been demoted from the post of Head Constable (held by the petitioners in RPSF) to the post of Constable (assigned to the petitioners in RPF). In this regard, he has placed reliance upon a judgment passed by the High Court of Judicature at Allahabad in the case titled 'Vinod Kumar vs. Union of India and others'. He further argued that the petitioners made representation with the respondents but the respondents did not take any decision thereupon. It was also urged by the learned senior counsel that the petitioners cannot be forced to surrender their seniority and further they cannot be placed at the bottom of their seniority in the respective feeder categories.
16) Per contra, Mr. Nazir Ahmad, learned counsel appearing for the respondents, vehemently argued that the petitioners submitted their applications/representations with the respondents demonstrating their conscious willingness to work in RPF as Constables to stay posted in Kashmir Valley. He further argued that as per Standing Order No.70 dated 27th September, 2004, the inter-zonal transfer was permitted in cases of extreme compassion provided the employee is ready to go on bottom seniority in the feeder grade. He further submitted that the Division Bench of Delhi High Court in 'B. L. Bishnoi and others vs. Union of India & others', has already held that inter-zonal transfers can be made only to direct recruitment posts and that the power can be exercised in terms of Rule 91.2 of the SWP No.1416/2013 Page 8 of 15 Railway Protection Force Rules, 1987 only in exceptional cases.
17) Heard and perused the record.
18) Before this court proceeds further, this court deems it proper to observe that none of the Counsels appearing for the parties bothered to the notice of this court, a communication dated 28th May, 2009, though the same is annexed with the writ petition but no reference of it was made in the writ petition itself.
19) This communication dated 28th May, 2009, depicts that the transfer orders of the RPSF personnel dated 9th May, 2008, 23rd May, 2008 and 25th June, 208, issued by the Railway Board, were withdrawn and all the RPSF personnel who were transferred to Northern Railway were directed to report to their original respective battalions and companies to resume back in their respective ranks with seniority in the cadre as held .prior to the said transfer. When the learned senior counsel for the petitioners and learned counsel for the respondents were confronted with the communication (supra) and its import, it was submitted by the learned senior counsel of the petitioners that the said communication was never acted upon whereas the learned counsel for the respondents submitted that in such case, the present petition has been rendered in-fructuous.
20) It is evident from the record that after this order i.e. 28th May 2009, was passed, the petitioners (except the petitioner No. 86) had SWP No.1416/2013 Page 9 of 15 submitted their applications/representations before the respondents for permitting them to continue to perform their duties in Kashmir Valley on the post of Constable at the bottom of the seniority of their batch- mates in RPF. On the strength of those applications/ representations, the petitioners (except the petitioner No. 86) were permitted to perform their duties in Kashmir Valley at their respective places of posting as Constables.
21) It appears that the judgment of High Court of Judicature at Allahabad rekindled the hope in the minds of the petitioners to get back their rank as Head Constable and seniority in RPF, which they were holding while being in RPSF, which prompted them to file representation with the respondents to grant them their rank and seniority in RPF, which they were holding while being in RPSF. When the said representation did not bear any fruitful result, the petitioners filed the present writ petition, without waiting the outcome of the said representation.
22) It needs to be noticed that prior to the filing of this writ petition, the petitioners had earlier filed a writ petition bearing SWP No.1422/2008 which was withdrawn by them by virtue of an order dated 16th June, 2009. The petitioners (except the petitioner No.86) in the present petition have not bothered to disclose that prior to the filing of the present writ petition and withdrawal of the earlier writ petition, they had submitted applications/representation before the SWP No.1416/2013 Page 10 of 15 respondents for permitting them to work as Constables at the same place of posting in Kashmir Valley where they were transferred by virtue of earlier orders, which were subsequently withdrawn vide order dated 28.05.2009. In couple of representations/applications submitted by the petitioners (except the petitioner No. 86), even reference to order dated 28.05.2009 bearing No. 847-E/2-RPF/CT seniority/08 by virtue of which earlier orders of transfer were withdrawn, has also been made. It amounts to a concealment of material fact from this court.
23) It is established beyond doubt that when the petitioners (except the petitioner No. 86) were confronted with the situation of reverting back to their original place of posting and rank in RPSF, they submitted applications for permitting them to work in Kashmir Valley as Constables. The petitioners (except the petitioner No. 86), in fact, by their own act have volunteered the present situation whereby they agreed to work as Constables with placement at the bottom of seniority of their batch-mates in RPF in Kashmir Valley. Without bringing to the notice of this Court the factum of making applications/representations before the respondents, the petitioners (except the petitioner No. 86) have filed the present petition. It appears that the respondents had withdrawn the orders as Para-17B (c) of the Standing Order No.70 dated 27th September, 2004, provided that transfers shall be made only to direct recruitment grades. The post of Constable is a direct recruitment grade and the post of Head SWP No.1416/2013 Page 11 of 15 Constable is a promotional post.
24) The Division Bench of High Court of Delhi in its judgment in 'B. L Bishnoi & ors. V. Union of India & Ors' decided on 22.10.2008 has already observed that the post of Inspector could not have been in inter-zonal transfers and the transfers affected on alleged compassionate grounds are contrary to the Standing Order No.70 and are, thus null and void.
25) Further in case titled "ASI Bhanu Partap v. Union of India & ors" the Division Bench of High Court of Delhi, after finding that the inter-zonal transfer of the petitioner therein as illegal, granted him an option to go back to his zone and in case he chooses to do so then he would work in the post of ASI as per promotion granted to him but in case he decides to stay in the Zone, where he was transferred, he would work as Head Constable.
26) A fact that cannot be lost sight of is that the seniors of the petitioners in the rank of constables were not yet promoted as Head Constables in RPF Northern Railway and placing the petitioners over and above their seniors would have not only been the travesty of justice but would have also resulted in the denial of promotional avenues to them. This appears to be the reason for the respondents to revoke the transfer orders on 28.05.2009. The petitioners (except the petitioner No. 86) could have joined back in their Zone in their rank and seniority but they preferred to work at their home place at the SWP No.1416/2013 Page 12 of 15 lower post instead of going back to RPSF.
27) The judgment of High Court of Judicature at Allahabad in "Vinod Kumar v. Union of India & Ors" decided on 27.10.2010 relied upon by the petitioners was rendered in different facts and circumstances of the case, as in the said case the petitioners were transferred in the same rank and subsequently, the employer sought to re-determine their seniority on the lower post and then only the court showed indulgence whereas in the instance case, the respondents withdrew the orders of transfer of the petitioners but on the request of the petitioners permitted them to work as per the transfer orders issued earlier. It was the benevolence of the respondents to permit the petitioners (except petitioner No. 86) to continue to work at the place of their choice, which was/is their home (State/Union Territory). In this context, the observations made by the High Court of Judicature at Allahabad in judgment (supra) relied heavily by the learned senior counsel are very relevant and the same are extracted as under:
"21. It is not a kind of mercy or relaxation on the part of the respondents which has been shown to the petitioners by accepting their request of voluntary transfer for the reason that such a right with certain conditions has been conferred upon members of the force by statutory rules. It was incumbent upon the respondents to faithfully obey and follow those provisions and not to meddle with the same at their whims and caprice."
28) The High Court of Judicature at Allahabad in case titled 'Amir Hasan & Ors. versus Union of India' AIR Online 2020 ALL73, has distinguished the judgment rendered in Vinod Kumar's case SWP No.1416/2013 Page 13 of 15 (supra), as the petitioners therein, who were Head Constables in RPSF and were transferred to the RPF as constables, had thrown challenge to the final seniority list of the Head Constables on identical grounds as urged in the present petition. In the instant case also, the petitioners had submitted applications/representations thereby preferring to work in RPF as constables. The relevant paras of the judgment in Amir Hasan's case are extracted as under:
"Each of the petitioner herein had already accepted the said condition, by giving an undertaking in writing along with their application, put by the Director General in its approval order. Resultantly, the movement orders were issued in the same manner and they were permitted to join the R.P.F (Railway Protection Force) in zonal railways. Though a statement has been made in paragraph-'28' of the writ petition that from the date of transfer the petitioners are working continuously as Head Constable and no steps were taken by the respondents to place them in the bottom seniority of feeding cadre, but the statement is a bald averment. There is nothing on record of the writ petition which would establish that the petitioners were allowed to join as Head constable in the Railway Protection Force and they were working and getting the salary of the said post.
It is, thus, clear that the petitioners are trying to retract to their admission/consent given in the year 2009. There is nothing on record which would indicate that the petitioners were allowed to join the post of Head constable upon transfer ignoring the condition in their transfer order/movement order. There is nothing on record that they were getting salary of the post of Head Constable. It, therefore, cannot be accepted that the petitioners were allowed to join the post of Head constable in R.P.S.F and worked as such from the date of joining in R.P.S.F upon transfer till the filing of the present petition in the year 2014."
(emphasis added)
29) In the instant case, the petitioners (except the petitioner No. 86) SWP No.1416/2013 Page 14 of 15 have themselves coaxed the respondents not to send them back to the RPSF and as such they cannot raise any grievance now, when in fact the respondents relying on their representations have retained them in RPF.
30) Though the writ petition filed by the petitioners (except the petitioner No. 86) deserves to be dismissed with exemplary costs for deliberately concealing the material facts from the Court but taking into consideration that the petitioners are serving their Nation, the present petition is dismissed, leaving the respondents free to proceed in accordance with law. However, the respondents with in the period of thirty days from today shall seek the option of the petitioner No.86, as to whether he wants to work with RPF in the Union Territory of J&K or go back to his original battalion with rank and seniority held by him in RPSF and in the event he chooses the latter course, then he shall be entitled to the rank and seniority as he would have enjoyed, had he not been sent to RPF. In the evet the petitioner No.86 chooses the former course, then he shall continue to work at the same place and rank in RPF.
(Rajnesh Oswal) Judge SRINAGAR 21.10.2023 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
SWP No.1416/2013 Page 15 of 15