Kartick Kumar Chatterjee vs Union Of India & Ors
2021 Latest Caselaw 909 Cal

04-02-2021
 ct no. 13
  Sl.36
    akd

                            WPA 157 of 2021

                        Kartick Kumar Chatterjee
                                -Versus-
                         Union of India & Ors.
                        (Via Video Conference)


             Mr. Achin Kumar Majumder,
             Mr. Pratik Majumder
                                    ...for the petitioner

             Mr. S.N. Dutta
                                         ...for the respondents

The writ petitioner challenges an order

dated February 5, 2020 issued by the Assistant

Security Commissioner, RPF, CLW Chittaranjan

to the Inspector-in-Charge, RPF, AW - Coy, TS

Post CLW/CRJ.

By reason of the said order, the writ

petitioner who was holding the post of Assistant

Sub-Inspector (ASI) since 2017 and confirmed

as such in the seniority list of the Eastern

Railway was proposed to be reverted to the rank

of Head Constable.

The said order was preceded by and based

on a communication dated 25.10.2019 issued

by the Staff Officer to PCSC RPF, Easter

Railway, Kolkata to the Senior Divisional

Security Commissioner, RPF, Eastern Railway.

In the communication dated 25.10.2019

reference was made to a decision of the Division

Bench of the Delhi High Court in the case of

Gurpartap Singh and others vs. Union of

India and others (W.P. (C) 11293/2016. The

facts relevant to the case are as follows:-

Rule 99 (2) of the Railway Protection Force

Rules, 1987 prescribes that seniority of an

enrolled member of the force transferred on his

own request or mutual exchange from one zone

to another, shall be fixed below that of all

confirmed and officiating enrolled members of

the force of relevant rank.

However, in August 2006, the Director

General of RPF issued a Standing Order no. 70.

In terms of the said Standing Order, request

transfers were permitted to, inter alia, personnel

from Railways Special Force to General RPF

Cadre in respective zones. The incentive given

under Standing Order 70 was that the

applicants for volunteer transfer would retain

batch-mate seniority and would not be reverted

to the bottom of the rank in the force to which

they would be transferred. In essence of,

Standing Order 70 carved out an exception to

Rule 99 (2) of the 1987 Rules.

The petitioner like thousands of other

head constables and constables exercised

options for such transfer. He was placed at the

bottom of the list of Head Constables of his

batch under the RPF, Eastern Railway but

above already existing other Head Constables.

Based on such batch-mate seniority, the

petitioner was further promoted to the post of

ASI in the RPF with Eastern Railway in the year

2017. His seniority in the Rank of ASI entire

RPF, Eastern Railway is at no. 244.

The issue might have rested there until a

writ petition came to be filed before the Delhi

High Court by one Gurpartap Singh and

others (supra). The said writ petition was

disposed of vide order dated 31.01.2019 wherein

it was held that Standing Order no. 70 dated

09.08.2006 was in essence ultra vires of Rule 99

(2) of the 1987 Rules.

The issue came to be first dealt with in the

year 2014 by a Co-ordinate Bench of this Court

in judgment dated June 10, 2014 passed in WP

12403 (W) of 2011 (Sujit Kumar Yadav and

others vs. Union of India and others). It was

held in the said decision (annexed to the writ

application) that rights accrued under Standing

Order no. 70 could not be disturbed or taken

away. The RPF authorities chose to correct the

mistake in Standing Order no. 70 by issuing a

further Standing Order no. 102. It was held by

the Co-ordinate Bench by specific reference to

Standing Order no. 102 that valuable rights

having accrued to the employees concerned,

cannot be taken away and the actions of the

RPF pursuant to Standing Order no. 102, were

quashed.

The decision of the Division Bench of the

Delhi High Court in Gurpartap Singh and

others (supra) came to be passed thereafter on

31.01.2019 as already discussed hereinabove.

Armed with the aforesaid judgment, the RPF

authorities proceeded to set right a past wrong.

It would not have mattered had the wrong

merely being set right but to take away the

rights already accrued under Standing Order

no. 70 to persons across the country, inter alia,

like the petitioner herein has come to be

seriously questioned.

The matter once again came for

consideration before another Division Bench of

the Delhi High Court in Ashok Singh

Bhadauria and others vs. The Union of India

and others (W.P. (C) 920/2020). By the

judgment dated 17.12.2020, the Division Bench

of the Delhi High Court clarified that the

decision of Gurpartap Singh and others

(supra) was not a judgment in rem. It was

further held that Standing Order no. 70 was not

quashed by in the said decision. It was also

clarified that Gurpartap Singh and others

(supra) decision could not have been applied

retrospectively even otherwise.

The petitioners in Ashok Singh

Bhadauria and others (supra) like the writ

petitioner herein were not parties to the

Gurpartap Singh and others (supra) decision

and it was held that the said decision would not

bind or be applicable to the petitioners in the

case of Ashok Singh Bhadauria and others

(supra).

Counsel for the petitioner would,

therefore, seek interim order staying the

operation of the impugned order dated

05.02.2020.

Per contra, the counsel for the RPF

vehemently opposed the prayer of the petitioner.

He would argue firstly that Standing Order no.

70 of August, 2006 is ex facie illegal, outside the

scope and purport of Rule 99, in conflict thereof

and is thereof void. He places reliance on Rule

21 of the Railway Protection Force Act, 1957

and Rule 28 of the Railway Protection Force

Rules, 1987 stating that the Director General of

Railways does not have power to issue any

standing order or frame any subordinate Rules

in conflict with Rule 99 (2) of the 1987 Rules.

He further argues that having realized that

Standing Order no. 70 was outside the scope

and authority of the parent Rule and/or Act

cannot be valid and such mistake was rectified

in Standing Order no. 102. He would, therefore,

argue that any benefit accrued to any person

under the aforesaid Standing Order no. 70,

must be taken away, withdrawn and the status

quo ante prior to Standing Order 70 must be

restored. He opposed the contention of the

Counsel for the petitioner that it would be unfair

and inequitable to restore status quo ante.

Reliance is placed firstly on the decision of

the Hon'ble Supreme Court in the case of M/s.

Nova Ads. Vs. Metropolitan Transport

Corporation and others reported in AIR 2015

SC 1468, particularly, paragraphs 39, 40, 41

and 42. The facts of the case are substantially

different from the instant case. In the said M/s.

Nova Ads. decision (supra), the Supreme

Court was considering as to whether it would be

unfair and inequitable to direct dismantling of

certain passenger shelters set up by the

appellant therein set up under considerable

expenditure and pursuant to the orders of the

State Government albeit in violation of the

Chennai Municipal Corporation Act. It was in

that context held that there cannot be equity to

save an illegal act. It was further held in the

said decision that when the statute and equity

are in conflict, the statute must prevail. The

prayer of the appellant therein, to be allowed to

continue to hold on its passenger shelters and

an order against the demolition of the same was

refused.

It is clearly evident from the facts of the

aforesaid case that the Hon'ble Supreme Court

was dealing with a case of commercial

investment by a private business organisation

who was admittedly acting contrary to law and

statute. Relief was denied despite the fact that

the State Government itself had authorized

construction of such shelters. The decision,

therefore, cannot come to the aid of the RPF.

Counsel for the RPF next relied upon the

case of Raghunath Rai Bareja and another

vs. Punjab National Bank and others

reported in (2007) 2 SCC 230 wherein at

paragraph 29, the Hon'ble Supreme Court has

laid down that, the law, no matter how hard it

is, will prevail over equity. Equity can only

supplement the law but cannot supplant or

override it.

This Court notices that the Hon'ble

Supreme Court was dealing with interpretation

of a statute and transfer of a matter from the

Company Court of the High Court to the Debts

Recovery Tribunal. Having found that the

transfer sought was contrary to the Recovery of

Debts due to Banks and Financial Institutions

Act, 1993, it was held to be improper and

contrary to law. The argument of the Bank

therein that it would be unjust and unequitable

to prevent the Bank from recovery of its dues

against the guarantor before the High Court was

rejected and the special statute being the 1993

Act was stated to prevail over equitable

considerations. The said decision is

distinguishable and cannot come to the aid of

the RPF.

Coming to the instant case, this Court

finds that the decision of the Delhi High Court

in Ashok Singh Bhadauria and others

(supra) wherein at paragraphs 8, 9, 10 and 11,

the Gurpartap Singh and others (supra) was

clearly explained and clarified. It was held that

the latter decision was only in personam i.e.

between the parties to the said writ petition and

could not be applied generally to all beneficiaries

under Standing Order no. 70. It was further

held that Standing Order no. 70 was not

quashed.

This Court also sees that a large number

of persons like the petitioner have already

benefited and have altered their positions to

their benefit pursuant to the said transfer under

Standing Order no. 70. It would be grossly

unfair and illegal to revert the petitioner from

the post of ASI that he is in today to that of

head constable merely because the Railways

have realized that one of their senior most

officers may have committed some wrong.

It is indeed true that no rights can flow

from an Act that is per se illegal and such

illegality is to the knowledge of the beneficiary.

In the instant case not only had the option been

exercised by the petitioner under Standing

Order no. 70 on the offer made in writing by the

RPF but both the petitioner and the RPF have

acted and altered their position to their benefit

and/or detriment permanently. The illegality if

any in the standing order was not to the

knowledge of the petitioner. It would be against

the principles of service jurisprudence to deprive

the petitioner of long acquired benefits and to

revert him back to the position of head

constable after a period of more than 12 years.

For the reasons stated hereinabove, the

impugned order dated 05.02.2020 shall remain

stayed until disposal of the writ application.

Let affidavit-in-opposition be filed within

a period of eight weeks from date. Reply, if any,

be filed two weeks thereafter.

Liberty to mention for hearing after

completion of pleadings.

(Rajasekhar Mantha, J.)