Allahabad High Court
Amir Hasan And 25 Others vs Union Of India And 5 Others on 16 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 73
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 36 Case :- WRIT - A No. - 23380 of 2014 Petitioner :- Amir Hasan And 25 Others Respondent :- Union Of India And 5 Others Counsel for Petitioner :- Udayan Nandan,Shashi Nandan Counsel for Respondent :- Vivek Singh,Rajnish Kumar Rai,S.C. Hon'ble Mrs. Sunita Agarwal,J.
By means of the present petition, the petitioners (26 in number) are seeking for quashing of the letters dated 10/19.3.2014 and 4.4.2014 issued by the Staff Officer, Chief Security Commissioner, Railway Protection Force, North Eastern Railway, Gorakhpur, as the objections taken by the petitioners to the final seniority list published on 24.1.2014 of the post of Head Constable.
The petitioners claim to have been appointed on the post of Constable in Railway Protection Special Force and later promoted to the post of Head Constable some time in the year 2008. All of them requested for transfer from the Railway Protection Special Force to the Railway Protection Force which were accorded to them in the year 2008/2009. Movement orders of some of the petitioners herein have been appended to indicate that they were directed to report to the Commandant, R.P.F in furtherance of their transfer order. A further perusal thereof indicates that upon transfer, the petitioners were kept on bottom seniority of their batch mates (in the feeding cadre).
One of the movement orders dated 30.6.2009 of Suresh Lal, (the petitioner no.19) appended in the writ petition (page-'71' of the paper book) reads as under:-
"In terms of Railway Board's L.No.2009/Sec (ABE)/TR-6/7 dated 02.03.2009 and this office BO No.24/2009 dated 13.6.09, HC/40211 Suresh Lal of HQ Coy of No. 6BN/RPSF/DBSI Delhi-35 is hereby spared from the A/N of 30.06.3009 to avail 2 CL+IR+ICR+IPL from 1.7.09 to 5.7.2009 and directed to report to CSC/RPF, North East Railway on 6.7.09 F/N to carry out his transfer from NO.6BN/RPSF/DBSI to RPF/NE Railway Gorakhpur on bottom seniority of his batch mates (in the feeder category) and other usual terms and conditions governing such inter railway transfer on request.
He is having 11 days CL, one set P/Pass and full sets of PTOs dues during this year."
The contention of learned counsel for the petitioners is that the conditions of services of the petitioners are governed by the provisions of Railway Protection Force Rules, 1987 hereinafter.
Rule 99.2 of the Rules 1987 deals with the transfer on own request or mutual exchange of an enrolled member of the Force from one Zonal Railway to another, or to the Railway Protection Special Force and vice versa.
A reading of the said rules indicates that upon such transfer, the transferred member of the Force shall be kept at the bottom of the seniority list of all existing confirmed and officiating members of the Force in the relevant rank, irrespective of the date of confirmation or the length of the officiating service of such member.
Submission is that the transfer as contemplated in Rule 99.2 has been conceived for placement in the same rank and can not result in reduction of their rank.
In the case of the petitioners, they were promoted to the post of Head Constable in Railway Protection Special Force, much prior to their transfer on request in the year 2008/2009.
It is contended that pursuant to the movement orders they had joined the Railway Protection Force and are working on the post of Head Constable since the date of their joining upon transfer. Surprisingly, in an illegal manner in the seniority list published by the department on 24.1.2014, relating to Head Constable of Railway Protection Force, the name of the petitioners are missing. Upon publication of the said seniority list, the petitioners filed their objections which have been turned down by the letters under challenge to state that necessary corrections in the seniority list have been done.
Submission is that the act of the respondents in placing the petitioners in the seniority list of Constable in Railway Protection Force is completely illegal and arbitrary as no such condition can be found in the Act, 1957 and the Rules, 1987 framed thereunder. Each of the petitioners had undergone a rigorous process of selection and promoted in an exercise conducted under Rule 70 read with 71 of the 1987 Rules. Having been promoted in accordance with the Statute, they cannot be reverted to the post of Constable on the premise that they got transferred on their own request from Railway Protection Special Force to Railway Protection Force.
Submission is that both the Forces are creation of the Railway Protection Force Act, 1957 and transfer of enrolled members of one Force to another was permissible under the scheme of Rule 99.2 of the Rules, 1987.
Similar issue came up for consideration before this Court in Writ petition no.59860 of 2008 (HC no.2929 RPF Vinod Kumar vs Union of India and others) alongwith other connected petitions decided by the judgment and order dated 27.10.2010 wherein it has been held that the words "relevant rank" in Rule 99.2, clearly suggest the rank in which the concerned employee was working and from which he sought voluntary transfer.
By reading of the said Rule, it has been held by this Court therein that transfer on request or voluntary transfer cannot result in reduction of rank of enrolled member of the Force. All transferred Head Constables who were petitioners therein have been held entitled to remain in the rank of Head Constable upon transfer from the Railway Protection Special Force to Railway Protection Force. The orders issued by the department to redetermine their seniority of lower post were quashed.
The submission is that the present petitioners are similarly situated and are squarely covered by the aforesaid direction. They are, therefore, entitled to the same relief.
Sri Rajnish Kumar Rai, learned Advocate appearing for the respondents vehemently argued that the petitioners herein have been transferred in the year 2008-09 from one Armed Force namely Railway Protection Special Forces to another Armed Force namely Railway Protection Force, which is at the Zonal level. Their transfer orders were passed with the condition that they would be kept at bottom seniority of their batch mates (in feeding cadre).
The feeding cadre for the enrolled member of Armed Force constituted under the Railway Protection Force Act, 1957 is of 'Constable'. The movement orders of the petitioners also indicate the said fact. Consequently upon transfer the petitioners were allowed to join the duties of constable and are working as such. The designation of Head constable, Railway Protection Force has not been given to them.
The seniority list of each rank has to be prepared in every three years, accordingly, the provisional seniority list for the post of constable had been issued on 13/15.1.2014. On the representations received against the said seniority list, reports were called from the Divisions/Units by the letter dated 4.4.2014 to redress the grievances of the enrolled members of the Force. The names of the petitioners have also been included in the communication dated 4.4.2014.
But before any final decision could be taken, the present writ petition had been filed and the operation of the orders dated 4.4.2014 and 10/10.3.2014 had been stayed. No final decision as such could be taken.
However, it is stated in the counter affidavit that in the order dated 10.11.2009 issued by the Railway Board (annexed as Annexure-'3' to the writ petition), whereby inter railway transfers of 103 Head Constable from R.P.S.F (Railway Protection Special Force) to R.P.F (Railway Protection Force/Zonal Railway Force) had been approved, it was categorically provided that all such transferred enrolled members of the Force shall be kept "on bottom seniority of their batch mates (in feeding cadre)" and other usual terms and conditions governing such Inter Railway transfer on their own requests would be applied.
The petitioners gave their consent in writing to accept the said condition and only after the undertaking given by them, transfer order/movement order were passed/issued. The undertaking given by the petitioners herein have been appended as Annexure C.A-'1' to the counter affidavit which reads as under:-
"I am aware that I shall be placed in the seniority list of the zonal Railway at the bottom of the batch which had joined the railway in the year of my enlistment. I am also aware that such placement in the seniority list may lead to my reversion in the rank also."
With the above facts, it is vehemently contended by the learned counsel for the respondents that the petitioners herein cannot be permitted to retract the conscious decision taken by them to join the seniority of Constables in Railway Protection Force, being the transferred enrolled member of the Force. The reliance placed upon the decision of this Court dated 27.10.2010 (as noted above) is of no benefit in the facts and circumstances of the present case, in as much as, the conditions laid down in the transfer orders in the case of the petitioner herein differ from that of the petitioners in the aforesaid writ petition.
Further a Special Appeal has been filed challenging the said decision which is pending before this Court.
To appreciate the arguments of learned counsel for the parties, it would be apt to go through the scheme of the Act and the Rules which govern service conditions of the petitioners, who are "enrolled members of the Force". The said terms as defined under the Railway Protection Force Act, 1957 (in short Act, 1957') means "the subordinate officer, under officer or any other member of the Force of a rank lower than that of under officer." The term "member of the Force" means a person appointed to the Force under this Act. The term "under officer" means a person appointed to the Force as a Head Constable or Naik. The term "Force" is defined to mean the Railway Protection Force constituted under Section 3 of the Act.
Section 3 states that an armed Force of the Union to be called the Railway Protection Force, (RPF) for better protection and security of the Railway property has to be constituted and maintained by the Central Government.
The organization and structure of the Force has been provided in the Railway Protection Force Rules, 1987 framed by the Central Government under Section 21 of the Act, 1957. The organization and structure of the Force has been given in Chapter II of the Railway Protection Force Rules, 1987 (in short 'Rules 1987').
Rule 7 as contained in Chapter II provides the organizational structure of the Railway Protection Special Force, which reads as under:-
"7.Railway Protection Special Force :
7.1. The Force shall have a specially trained unit called the Railway Protection Special Force, to be raised as a reserve Force on the battalion pattern.
7.2. The number of battalions as also their strength and composition shall be such as may be determined by the Director General.
7.3. Each battalion shall function as a division and shall have at its head an officer not bellow the rank of Commandant who shall be known as Commanding Officer.
7.4. A Commanding Officer shall be assisted by such number of other superior officers and enrolled numbers of the Force as may be appointed from time to time.
7.5. Enrolled numbers of the Force who constitute the Railway Protection Special Force shall form a separate cadre for the purposes of fixation of seniority.
7.6. Battalions will have trained wireless personnel like Armourers. These posts will be ex-cadre. The number of posts will be as decided from time to time. These posts will be governed by the Directives issued in this regard by DG/RPF from time to time."
The organizational set up for the zonal Railway (called as Railway Protection Force) is provided in Rule 14 as contained in Chapter II which reads as under:-
14. Organisational set up of zonal railway:-
14.1. For purposes of the Act, a unit of the Force shall be distributed over each zonal railway including railway establishments and other railway areas served by that zonal railway.
"14.2. The head of the Security Department in each zonal railway shall be a Principal Chief Security Commissioner and the entire unit of the Force posted on that railway (including railway establishments located on that railway) shall be under his command, supervision and administration.
14.3. A Principal*Chief Security Commissioner shall be assisted at his headquarters (hereinafter referred to as the Security Commissariat) by such number of superior officers and enrolled members of the Force as may be appointed from time to time to look after the work of administration including personnel matters, crime and special intelligence, fire, prosecution, stores, reserve companies, training and claims prevention."
Similarly, organizational set up at the Divisional level, Training Institutions, Central Crime Bureau, Arms workshop etc Executive Branch, Prosecution branch etc., is also given in Chapter II.
A careful reading of Section 3 of the Act 1957' with Chapter II of the Rules, 1987 shows that the Armed Forces of the Union which is constituted as "Railway Protection Force" has been structured in different units for organizational purpose. The unit known as "Railway Protection Special Force" is specially trained unit to be raised as a reserved force on the battalion pattern. The number of battalions as also their strength and composition has to be determined by the Director General who is vested with the power of command, supervision and administration of the Force. Each battalion functions as Division and is headed by the Commanding Officer. Rule 7.5 of the Rules, 1987 indicates that enrolled members of the Force who constituted the Railway Special Protection Force shall form a separate cadre for the purpose of fixation of their seniority.
Whereas under Rule 14.1 shows that unit of the Force namely Railway Protection Force (RPF) is to be distributed over each zonal railway including railway establishments and other railway areas served by that zonal railway. The entire unit of the Force (RPF) posted at that zonal railway shall be under the command, supervision and administration of the Chief Security Commissioner, head of the Security Department in each Zonal Railway. Rule 15.1 further shows that the Force (RPF) in each zonal railway is to be further distributed over divisions and railway establishments.
Rule 16.1 shows that the Force (RPF) deployed on each zonal railway consists of the branches known as:-
(a) Executive branch
(b) Prosecution branch Rule 16.3 states that enrolled members in the respective branches of the Force, who are under the administrative control of the Chief Security Commissioner will form a separate cadre in each such branch for the purpose of fixation of seniority. Rule 16.4 further provides that no enrolled member of the Force shall be eligible for transfer from one branch to another except for filling up of vacancies of and below the rank of Assistant Sub-Inspector in the Prosecution Branch.
The proviso (2) of Rule 16.4 however states that if it is intended to transfer an enrolled member permanently from one branch to another, the approval of the Director-General shall invariably be obtained.
Rule 21 as contained in Chapter III provides that the Superintendence of the Force shall vest in the Central Government and it may issue such directions relating to administration of the Act and the Rules, as it may think necessary.
Subject to the provisions of Rule 21, the command, supervision and administration of the Force at the union level shall vest in the Director-General, who is responsible for the efficient functioning and managing of the Force in accordance with the provisions of the Act and Rule. (Reference Rules 22.1) The procedure for the promotion of enrolled members of the Force has been provided in Rule 70 of the Rules, 1987. From the scheme of the Act and Rules, it is evident that the Head Constables are enrolled member of the Force.
Chapter VII provides for distribution and transfer of members of the Force. Rule 87 states that the enrolled members of the Force shall ordinarily be employed through out the service on the zonal railway or to the Railway Protection Special Force to which they are distributed on first appointment under these rules and shall have no claim as of right for transfer to another zonal railway or to the Railway Protection Special Force formations and vice versa.
Rule 89.2 for appointment of Constables (enrolled members) reads as under:-
"On successful completion of initial training, direct recruits shall be distributed for enrolment amongst the divisions, production units and Railway Protection Special Force battalions in such manner as may be considered necessary by Chief Security Commissioner concerned in public interest."
Inter zonal transfer of the enrolled members of the Force is governed by Rule 91.2. Rule 99 deals with the determination of seniority on inter-zonal transfer. Rule 99.2, however, governs determination of seniority on transfer on own request or mutual exchange which reads as under:-
"99.2. Transfer on own request or on mutual exchange :
Seniority of an enrolled member of the Force transferred on his own request or on mutual exchange from one zonal railway to another or to the Railway Protection Special Force and vice versa shall be fixed below that of all existing confirmed and officiating enrolled member of the Force in the relevant rank of that railway or Railway Protection Special Force irrespective of the date of confirmation or length of officiating service of the transferred member of the Force."
From a conjoint reading of the entire scheme of the Act, 1957 and the Rules 1987 framed thereunder, it is evident that the Head constables are referred as 'Enrolled members of the Force'. The deployment/ distribution of the enrolled members of the Force, at the entry level i.e. on the post of constables is made separately in the zonal railways (known as the Railway Protection Force) and a Special trained reserve force known as the Railway Protection Special Force. And the transfer from one zonal railway to another or i.e. from Railway Protection Force to Railway Protection Special Force or vice-versa is not ordinarily permissible.
On the transfer made on request, the enrolled member of the Force will loose his seniority and is to be kept at the bottom of the seniority list of enrolled members of the Force of that unit, at the zonal railway or the Railway Protection Special Force. The "relevant rank" of the enrolled members of the Force, however, would not change i.e. upon transfer on request, the transferred enrolled member of the Force shall be kept in the seniority list of the relevant rank of that Railway (zonal railway) or the Railway Protection Special Force, at the bottom of all existing confirmed and officiating enrolled members of that force, irrespective of the length of his service.
Giving emphasis on the words "the relevant rank", the learned counsel for the petitioners vehemently submits that upon transfer on request, the rank of petitioners could not have been changed i.e. since they were working on the post of Head Constable after promotion made through a rigorous procedure, they could not have been reverted to the post of constable on transfer made on their own request within the meaning of the Rule 99.2.
Submission, thus, is that the action of the respondents in keeping the petitioners in the seniority list of Constables in the Railway Protection Special Force is nothing but reversion by reduction in their rank, which cannot be done except in a case of punishment. The act of the respondents in keeping the petitioners at the bottom of the seniority list of the Head constables of the Railway Protection Force, thus, amounts to punishment which cannot be granted merely on the request made by them to transfer to the Railway Protection Force, that too when it was accepted by the competent authority i.e. the Director General on its own. The condition of transfer being punitive cannot be insisted upon.
Considering the said submissions, noteworthy is the fact that most of the petitioners herein (some may be by different order) were transferred under the order dated 10.11.2009 issued by the Deputy Secretary/ABE, Railway Board on the approval granted by the Director General, Railway Protection Force (RPF). The said order had been passed accepting respect of transfer of 103 Head constables from Railway Protection Special Force to Railway Protection Force( RPSF to RPF), i.e. to the zonal railways, with the conditions that each one shall be kept on bottom seniority of their batchmates (in feeder category), subject to other usual terms and conditions governing such transfers.
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.
The averments in paragraph-'28' of the writ petition, though, have not been categorically denied in the counter affidavit but in paragraphs '30' and '31', in reply to paragraphs '26' and '27' of the writ petition, it is stated that the petitioners were transferred on bottom seniority of their batchmates and they accepted this condition before their relieving from R.P.S.F (Railway Protection Special Force).
It is further stated in paragraph-'32' of the counter affidavit (in reply to the paragraph-'28' in writ petition) that since the provisional seniority list of every rank is prepared in every three years, accordingly, provisional seniority list for the post of constable had been issued on 13/15.1.2014. Several representations were received against the said seniority list and information was sought from the divisions/units through letter dated 4.4.2014 in order to redress their grievances. The grievances put forth by the petitioners have also been indicated in the said communication but on filing of the present petition, the operation of the communications dated 4.4.2014 and 10/19.3.2014 had been stayed. Resultantly, no final decision has been taken on the grievances raised by the petitioners by the respondents.
It is, however, categorically stated in the subsequent paragraphs of the counter affidavit that once the petitioners gave their consent/undertaking in writing before they were transferred and relieved from the Railway Protection Special Force, they cannot retract to seek their placement at the bottom of seniority of the Head constables in the Railway Protection Force, i.e. at the zonal railways. A comparative chart of the date of appointment of the Constables working in R.P.F and the petitioners herein has been extracted in the counter affidavit to demonstrate that the Constables appointed in R.P.F., much prior to the date of initial appointment of the petitioners are still working on the said post and have not been promoted as Head constable. The reason being that it is a large Force and the appointees therein could not get chance for promotion to the post of Head constable being limited in number. In case, the vacancy to the post of Head constable in the Railway Protection Force is filled from the transferred employees, the chance of promotion of the incumbents of the Zonal Railway Force (R.P.F) would stand frustrated.
Considering the above, it is noteworthy that the establishment known as Railway Protection Special Force has been conceived and constituted as a specially trained unit which is raised as a reserved Force. The strength and composition of the said Force is different from the Railway Protection Force which is constituted for the zonal railways. The distribution of the enrolled members of the Force is made at the time of their entry into service and their deployment (unitwise) is permanent in nature and as such their cadre are separate. Their duties and responsibilities also differ from each other.
The strength of the Railway Protection Special Force is obviously, much lesser than the strength of the Railway Protection Force which is deployed at the Zonal Railways. Being a large organization, promotion of the enrolled members of the Railway Protection Force (RPF) from the rank of Constable to the rank of Head constable is a time taking process. Whereas the Constables in the Railway Protection Special Force get promotion easily being a small establishment. All the petitioners herein were promoted to the post of Head Constable in the year 2008 in the Railway Protection Special Force. It appears that soon after promotion, they requested for transfer to the Railway Protection Force at the zonal railways.
Having command of the organization, in its wisdom, the Director-General had decided to accept the request of transfer of 103 constables, but with the condition that they shall be kept on bottom seniority of the feeding cadre, i.e. the rank of Constable in RPF. This condition putforth by the Director General as a pre-condition of transfer of the petitioners was readily accepted by each of them by giving their undertaking in writing alongwith the applications seeking transfer moved by them.
These undertakings are appended as Annexure C.A-'1' to the counter affidavit and there is no denial to this fact.
Further, there was no challenge to the said condition by the petitioners for a period of 6 years and the present petition has been filed in the year 2014 only on the pretext to challenge the provisional seniority list, finalised on 24.1.2014 of the post of Head Constable in RPF (Railway Protection Force).
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.
The decision of the Director General to put the above condition in the transfer order appears to be in the administrative interest of the members of the Force as the members of a Special Trained Unit were seeking mass transfer on request after their promotion.
The Force means a disciplined organization. The Head of organizations should be left to manage and administer their sub-ordinates.
Further, the discretionary remedy under Article 226 of the Constitution of India is to be invoked only at the instance of such persons who approach the Court with clean hands and are vigilant about their rights. The petitioners herein do not fall in the said category, in as much as, they did not disclose in the writ petition that they gave consent to accept the conditions of transfer, in writing alongwith the application request their transfers. Moreover, they are acquiesced with the condition of transfer by accepting it with the passing of the movement order. None of them came forward to challenge the same at the relevant point of time.
Having acquiesced with the conditions of their service, imposed by the Head of the organization i.e. Director General they cannot be allowed to retract and challenge his decision that too after the period of more than six years, on the pretext of challenging the seniority list.
Lastly, it may be noted that Rule 28 of 1987 confers power on the Director General to issue "Directives" relating to the enforcement and furtherance of provision of the Act and Rules and the superior officers and enrolled members of the Force are governed by such "Directives". Such a Directive issued on 27.9.2004 as Standing Order No.17 under the notification issued by the Director General, R.P.F is subject matter of consideration in the writ petition filed in the year 2008 which was decided vide judgment and order dated 27.10.2010. The factual situation therein differs from the facts and circumstances in the present petition.
The petitioners, therefore, cannot be treated as being similarly situated persons so as to seek the same relief. The reliance placed upon the decision of this Court dated 27.10.2010, as noted above, therefore, is of no help of the petitioner herein.
For the above discussions, the writ petition is found devoid of merits and hence dismissed.
Order Date :-16.1.2020/Harshita