Delhi High Court
B. L. Bishnoi & Ors. vs Union Of India & Ors. on 22 October, 2008
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP (C) No.4476/2007
Date of decision: 22.10.2008
B.L. BISHNOI & ORS. ...Petitioners
Through: Ms. Jyoti Singh and Mr. Ankur
Chibber, Advocates
Versus
UNION OF INDIA & ORS. .......Respondents
Through: Mr. R.K. Dhawan, Mr. Rahul Gaur, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported in the Digest? No SANJAY KISHAN KAUL, J (oral)
1. The petitioners were recruited as Sub Inspectors in the Railway Protection Force (for short „the RPF‟). The recruitment takes place on an All India basis but the Sub-Inspectors so recruited are assigned different zones. The post of an Inspector is a promotional post from Sub-Inspectors and is filled up zone wise.
2. The aforesaid procedure often results in a situation where Sub-
Inspectors who may be lower in an All India seniority become Inspector in their zone at an earlier stage of time since the WP (C) No.4476 of 2007 Page 1 of 6 assignment of Sub-Inspectors is zone wise so is the promotion to the post of Inspectors.
3. The cause for filing of the present petition has arisen on account of the fact that some Sub-Inspectors seek transfer of the zone and when they come to the Northern Zone (where the petitioners are assigned) they would occupy the post of Inspectors even though they are junior in an All India seniority for Sub- Inspectors. Such persons have been promoted earlier as Inspectors being in a particular zone different from Northern Zone and thus, attain the post of an Inspector in the Northern Zone on transfer even though persons senior to them in All India seniority continue to be sub-inspectors.
4. The transfer so made are stated to be on account of exigencies of service or compassionate grounds and that too only by the DG on the recommendation of the Chief Security Commissioner, RPF under Rule 91.2 of the Railway Protection Force Rules, 1987 (for short „the RPF Rules‟). The affidavits filed by the respondents show that the transfers actually have occurred only on compassionate grounds and in the last 3 years, 14 such people have been transferred. Out of 14 such people transferred, there are 4 persons who are junior in All India seniority to some of the petitioners. The request of some others for inter-zone transfer is also stated to be pending.
5. The result of such transfer is damaging the petitioners on two accounts:-
i) Persons junior to them would occupy the post of inspectors while they occupy a post of sub-inspector. WP (C) No.4476 of 2007 Page 2 of 6
ii) The paucity of promotional avenues results in blocking the seats to be filed on promotion by affecting such transfers.
(Some of the petitioners are awaiting promotion only for lack of vacancies)
6. Learned counsel for the petitioner has also brought out before us that in a recent communication of July, 2002 the Chief Security Commissioner, RPF has himself requested against such transfers as they block the vacancies. An allegation is also made that almost on the last dates of service of the DG, before he demitted office, transfers were affected.
7. In order to appreciate the legality of such transfer, the relevant rules may also be adverted to. The Railways have issued Standing Order No. 70 dated 27.09.2004 regarding transfer of RPF personnel. The instructions are to supplement the provisions of the other rules. The relevant paragraph in this behalf is para 17 which is reproduced hereinunder:
"17.A). All RPF personnel shall be eligible for inter zonal transfer after completion of 10 years of service in a particular zone.
However, RPSF personnel shall be eligible for transfer to RPF after completion of 20 years in RPSF. The following guidelines shall be followed in cases of inter zonal transfer.
a) The total length of service in the RPSF or the Zone will be the criteria for considering the applications of personnel for inter zonal transfers (including transfers from RPSF to RPF)
b) Once an individual is transferred from the RPSF to the Zonal Railway of his choice, he will not be allowed to seek further inter zonal transfer. Similarly, once an individual is transferred from one zone to another, he will not be allowed to seek further inter zonal transfer.WP (C) No.4476 of 2007 Page 3 of 6
c) Inter zonal transfers (including transfers from RPSF to RPF) will be affected keeping in view the vacancy position of RPSF/Zonal Railways.
B) Only in very exceptional cases and in cases of extreme compassion, inter zonal transfers will be considered before the employee completes the above stipulated tenure. The following guidelines shall be followed in dealing with such requests.
a) RPF/RPSF personnel wanting transfer must have completed probation in the rank.
b) He should be ready to go on bottom
seniority in the same rank.
c) Transfer shall be made only to direct
recruitment grades
C) Conditions stipulated in para 17 above shall
not be applicable in the case of transfers in the administrative interest."
(emphasis supplied)
8. The aforesaid order is undisputed and is relied upon by both the parties. Sub para „B‟ of para 17 shows that though the power can be exercised in terms of Rule 91.2 of the said rules the same has to be exercised only in exceptional cases and in case of extreme compassion for such inter-zone transfers, such transfer have to be as per standing order. Not only that the guidelines to be followed when such requests are made are specified in sub sub para „a‟, „b‟ and „c‟ out of which „c‟ is relevant. Transfers can be made only to direct recruitment grades as stipulated therein. The case of transfer was not one of administrative interest but only on compassionate grounds.
9. As to what are recruitment grades is apparent from Rule 45(1) of the said Rules which reads as under:
WP (C) No.4476 of 2007 Page 4 of 6
RECRUITMENT, TRAINING AND CAREER PLANNING
45. Recruitment.-(1) Direct recruitment to the Force shall be made at the level of Constables, Sub-
inspectors and Assistant Commandants and all other posts shall be filed in by promotion or through a limited departmental competition from amongst the eligible enrolled members of the Force or by taking personnel on deputation, in accordance with these rules.
10. A reading of the aforesaid shows that the post of an Inspector is not a direct recruitment grade post but a promotion post. In fact, it is not even disputed by learned counsel for the respondents that the post of Inspector is a promotion post while that of Sub-Inspector is a direct recruitment grade post.
11. The result of the aforesaid is that as per the standing order such inter zone transfer could have only occurred for the post of Sub-Inspectors and not for the post of Inspectors. The rationale for that is also obvious that the inter-zone transfer and promotion to post would create complications as has arisen in the present case and mentioned above. The inter-zone transfers affected by the respondents contrary to its standing orders are prejudicing the petitioner.
12. The conclusion of the aforesaid is that for the post of an Inspector there could not have been in inter-zone transfers and the transfer affected on alleged compassionate grounds are contrary to the standing Order No. 70 and are thus, null and void and have to be quashed. If the transfer has to be affected then as per subsub para
(b) the person would have to be at the bottom of the rank of Sub- Inspectors WP (C) No.4476 of 2007 Page 5 of 6
13. The respondents have realized the fallacy of their stand themselves and have taken remedial action in the connected matter i.e. W.P.(C)6749/2008 titled as ASI Bhanu Pratap Vs. Union of India & Ors. where transferred employee has been given seniority only in the lower grade where he was directly recruited.
14. A writ of mandamus is issued quashing the transfers affected to the post of inspectors being contrary to the standing order and thus, the post of inspectors are liable to be filled in from the Sub- Inspectors of the concerned zone in accordance with their seniority and eligibility.
15. The vacancies so arising should be filled in within a maximum period of three months from today.
16. The writ petition is accordingly allowed leaving the parties to bear their own costs.
SANJAY KISHAN KAUL,J MOOL CHAND GARG,J OCTOBER 22, 2008 anb WP (C) No.4476 of 2007 Page 6 of 6