B. L. Bishnoi & Ors. vs Union Of India & Ors.
2008 Latest Caselaw 1873 Del

*          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

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.

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.

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:

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

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