Andhra HC (Pre-Telangana)
K. Srinivas Rao And Ors. vs Union Of India (Uoi), Rep. By Its ... on 13 August, 2002
Equivalent citations: 2002(5)ALD510
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. The petitioners are Inspectors, Sub Inspectors and Head Constables working in the Railway Protection Force (for short 'the Force'). In this writ petition, they challenge the decision of the respondents in ordering closure of the Fire Service branch of the Force and the consequential steps, such as, merger of the Fire Service branch into Executive branch and fixation of inter se seniority consequent on merger.
2. The relevant facts may be stated briefly as under:--
With a view to provide protection for and security of railway property, the Force was constituted under the Railway Protection Force Act, 1957 (for short 'the Act'). The Act stipulated the broad structure of the Force and matters connected therewith. Section 21 thereof empowered the Central Government to frame Rules. Initially Railway Protection Force Rules were framed in the year 1959 and Railway Protection Force Regulations were framed in 1966. Subsequently, the said Rules were repealed and replaced by new set of Rules viz., Railway Protection Force Rules 1987 (for short 'the Rules').
Ever since the constitution of the Force, it comprised of three branches, viz., (1) Executive branch (2) Prosecution branch, and (3) Fire Service branch. The same were also provided for under Rule 16 of the Rules. However, a decision has been taken by the respondents to close the Fire Service branch and merge the same with the Executive branch. The petitioners challenge the same on several grounds.
3. The respondents filed counter affidavit stating the circumstances under which the decision to close the Fire Service branch had to be taken. It is stated that the interest of the petitioners are amply protected and they cannot have any genuine grievance against the closure of Fire Service branch or the consequences thereof.
4. Sri N. Ram Mohan Rao, learned counsel for the petitioners, submits that once the three branches of the Force are provided for under the statutory Rules framed under the Act, it was not open to the respondents to close one of the branches unless the Rules are amended. His second contention is that the Fire Service branch is entrusted with the vital function of ensuring safety of not only the railway property, but even that of the passengers and their property and it is not in the interest of the Railways or the public safety to close such an important wing of the Force. His third contention is that the method of recruitment, the qualifications there for and the avenues of promotion in the Executive branch, on one hand, and the Fire Service branch, on the other, were different and merger of these two branches would result in not only blocking of the promotional avenues of those in the Executive branch, but also in making persons with relatively lower qualifications and lesser tenure from the Fire Service branch over those in the Executive branch.
5. Sri R.S. Murthy, learned Standing Counsel for the respondents-Railways, submits that the respondents have taken the decision to close the Fire Service branch long back and it is being implemented in a phased manner and the process has almost reached finality. He submits that the respondents have taken all aspects of safety and security of the railway property as well as the passengers in the context of any fire accident into account and only when it ultimately emerged that the independent Fire Service branch was serving no useful purpose and the feed back from the concerned Fire services encouraging, that the decision has been taken to close the Fire Service branch. As regards the merger of services, he states that the steps have been taken to ensure that the services are integrated without causing any undue hardship to any of the employees.
6. Taking the second contention of the learned counsel for the petitioner first viz., the safety of the property of the railways as well as its passengers, it needs to be observed that the respondents have undertaken an elaborate study on the matter and they were convinced that the fire stations maintained by the respective State Governments were better suited both as regards promptness to reach the places of accident and availability. It was on being convinced in this regard that they have taken a decision to close the Fire Service branch. It is a policy decision and the Government can be said to have taken all the relevant factors into account before taking such a decision. It is settled principle of law the Courts will be slow to review the merits or otherwise of the policies unless it is demonstrated that such policy was tainted with ulterior motives or that it has not sub-served public interest. The same were neither pleaded nor established. Therefore, the decision, whether a particular branch should be continued as regards safety of the railway property, should be left to be taken by the concerned authorities. Just as the decision creating the branch was accepted, so should be the one to close it.
7. The 1st submission of the learned counsel for the petitioners deserves consideration. As observed earlier, the Force comprises of three branches. These three branches were constituted under the Rules. Rule 16 of the Rules reads as under:
"16.1 Force deployed on each zonal railway shall consist of the following three branches, namely:--
(i) Executive branch,
(ii) Prosecution branch, and
(iii) Fire Service branch.
16.2 These branches shall consist of such number of superior officers and other enrolled members of the Force as may be determined by the Chief Security Commissioner with the approval of the Director General.
16.3 The enrolled members in the respective branches of the Force, who are under the administrative control of the Chief Security Commissioner shall for a separate cadre in each such branch for the purpose of fixation of seniority.
16.4 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.
Provided that it is intended to transfer an enrolled member permanently from one branch to another, the approval of the Director General shall invariably be obtained."
8. Having constituted three separate branches, the Rules have also provided for separate cadres and separate methods of appointments in particular for each branch. Rule 17 dealt with the constitution and other aspects of the Executive branch. Rule 18 dealt with these aspects of Prosecution branch and Rule 19 dealt with the Fire Service branch. A reading of Rule 19 of the Rules would clearly indicate that a separate cadre has been constituted of the Fire Service branch in the Zonal Railways.
"19.1 A Fire Service branch shall be maintained at the Security Commissariat and shall have a separate cadre for each zonal railway for its enrolled members. It shall have two wings, namely:-
(a) Operational-for attending to fire calls on the railways, and
(b) Fire prevention and maintenance."
9. When such is the constitution of the respective branches through statutory Rules, any change as to these aspects can be undertaken only by way of amendment of the Rules. As observed in the preceding paragraphs, it is fully in the discretion of the respondents to decide whether to continue or discontinue any branch of the Force, taking the relevant factors into account. When such a decision is taken, it has to be implemented in accordance with the procedure recognised in law.
10. There is no dispute that the Rules, particularly those that provided for separate cadres of the three branches, were not altered or amended. The respondents went on taking steps one after the other in reorganizing the branches. However, the final decision to close the Fire Service branch appears to have been taken through order dated 10-6-1999 issued by the 1st respondent. The order reads as under:
"The question of strengthening the Railway Protection Special Force has been engaging the attention of the Ministry of Railways. Simultaneously, the closure of Fire Wing of Railway Protection Force has been under consideration. It has now been decided to close down the Fire Wing of RPF and as an immediate measure, to raise additional Battalions of Railway Protection Special Force against the savings thus generated. Accordingly, the sanction of the Ministry of Railways is accorded to the closure of the Fire Wing of Railway Protection Force...."
11. This order can be said to have been passed in exercise of the Executive powers conferred under Article 73 of the Constitution of India. It is settled principle of law that Executive Instructions, whether issued by the Central Government under Article 73 or by the State Government under Article 162 of the Constitution of India, cannot over-ride the Statutory Rules.
12. The extent of executive power was clearly indicated and explained by the Hon'ble Supreme Court in RAM JAWAYA vs. STATE OF PUNJAB, AIR 1955 SC 551. B.K. Mukherjee, Chief Justice, after discussing at length the provisions of Articles 73 and 162 of the Constitution of India and the power of the other wings of the Government, held as under:
"It may not be possible to frame an exhaustive definition of what executive functions means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away."
13. This principle has been followed in several subsequent judgments. The same proposition has been explained from a different angle by the Hon'ble Supreme Court in STATE OF M.P. vs. NIVEDITA JAIN, "Under Article 162 of the Constitution the executive power of a State, therefore, extends to the matter with regard to which the legislature of a State has power to make laws. As there is no legislation covering the field of selection of candidates for admission to medical colleges, the State Government would, undoubtedly, be competent to pass executive orders in this regard."
14. [It thereby connotes that wherever a situation is provided for by legislation, be it an enactment or a delegated legislation, it is impermissible to deal with other situations in exercise of executive powers.
15. In GOVERNMENT OF A.P. Vs. R.MURALI BABU RAO, the Supreme Court held that the executive instructions cannot over-ride with the Rules framed in proviso of Article 309 of the Constitution of India. It was held so, in several decisions anterior and posterior to it.
16. The service rules framed under an enactment stand on the same footing as those framed under proviso to Article 309 of the Constitution of India. The bar as to operation of the executive power applies to the field covered by statutory rules in the same manner as it does in the cases of rules framed under proviso to Article 309 of the Constitution of India. Such being a clear and unambiguous position of law, it is not open to the respondents to close or discontinue the Fire Service Branch of the Force as long as the Railway Protection Rules 1987, wherein it was constituted, remained unaltered.
17. The learned Standing Counsel for the respondents contends that the petitioners cannot be permitted to canvass this proposition on the ground that it was not raised in the affidavit filed in support of the writ petition. The petitioners have specifically sought for a Writ of Mandamus declaring the action of the respondents in closing the Fire Service branch as illegal and arbitrary. As regards this contention of the learned Counsel for the respondents, the learned counsel for the petitioners submits that the petitioners were not aware of the nature of decision taken and method of implementation of the same till the respondents stated the same in the counter affidavit. It is his case that as soon as the petitioners came to know about the nature of implementation, they filed a reply affidavit specifically raising the plea in that regard. In the reply affidavit filed by the respondents, the petitioners stated as under:
"Rule 16 would specify the branches of the Force on a Zonal Railway and as per this rule, the Force comprises of three branches namely Executive Branch, Prosecution Branch and Fire Service Branch. Any change or addition to threes branches can be made only by way of amending rules and in the instant case admittedly there was no such change. Since the section provides for a particular procedure for promulgating/ amending the rules that having not been followed by the Respondents till date any policy, even assuming that one has been taken by the Respondents cannot be given effective. As long as the rules continue to specify that there would be three separate and distinct branches, the Respondents cannot tinker and tamper with this classification without duly amending the rules following the procedure contemplated under the Act."
18. According to the practice adopted by this Court, reply affidavits form part of the pleadings and they are in the nature of rejoinder. Therefore, it cannot be said that the petitioners failed to raise the plea in this regard.
19. Accordingly, the decision of the respondents to close the Fire Service Branch of the Force cannot be sustained and the same is held as violative of Railway Protection Force Act and the Rules made thereunder.
20. The 3rd contention is as regards the procedure adopted in integration. The learned counsel for the petitioners as well as the respondents relied upon the judgment of the Hon'ble Supreme Court in SIVA PRASAD PIPAL Vs. UNION OF INDIA, . The various aspects of integration of different services and the steps to be taken while effecting integration of services have been elaborately dealt with in that decision. While it is the contention of the learned counsel for the petitioners that the respondents did not follow the same, the learned standing counsel for the respondents states that integration was effected strictly in conformity with the principles laid down therein. Inasmuch as it has been held that the very closure of the Fire Service branch of the Force was found to be contrary to law, adjudication of these aspects are not warranted as the case stands now. The rights of the petitioners on these aspects are reserved to be availed as and when occasion arises.
21. Accordingly, the writ petition is allowed holding that the closure of Fire Service branch of the Force is contrary to law. However, it is made clear that this declaration does not preclude the respondents from taking any decision on the subject in accordance with law. There shall be no order as to costs.