Narender Pal Singh & Ors. vs Govt. Of India, Through Director ...
2012 Latest Caselaw 3087 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Date of Decision: 9.05.2012

+                    W.P.(C) No.4610/2008

Narender Pal Singh & Ors.                          ...   Petitioners

                                  versus

Govt. of India,
Through Director General,
Railway Protection Force & Ors.                    ...   Respondents

Advocates who appeared in this case:

For the Petitioner :Mr. M.K.Bhardwaj Advocate
For Respondent : Mr. J.K.Singh Advocate for the respondent/UOI
                   : Mr. Suresh Chand Advocate for Respondent No.5

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J.

*

1. The petitioners have sought the quashing of order dated 2nd

February, 2007 passed by respondent Nos.1 to 4 correcting the

seniority of respondent No.5, Sh. Bhanwar Singh, from serial No.1102

to serial No.1. The petitioners have also sought the restoration of the

seniority of Head Constables (Dog Squad) to status quo ante. The

petitioners have further sought directions to the respondents to convene

a DPC meeting for promotion of the Head Constables (Dog Squad) to the

post of ASI (Dog Squad).

2. By order dated 2nd February, 2007, the Director General, Railway

Protection Force had revised the seniority of Sh. Bhanwar Singh,

respondent No.5, Head Constable, RPF/BCTC from serial No.2847 to

583/A and had placed him between Sh. Ranjit Singh, s/o Sh. Charan

Singh serial No.583 and Sh. Rajpal Singh, s/o Sh. Mohar Singh serial

No.584. The present seniority of respondent No.5, as on 20th December,

2006, was revised from serial No.1102 to serial No.1.

3. The petitioners in the present writ petition have assailed the order

dated 2nd February, 2007 which seeks to correct and revise the

seniority, by alleging that they are working as Head Constables (Dog

Squad), Railway Protection Force, RPF Line, Delhi Mandal-1, Delhi- 35

w.e.f. 21st June, 2000. The petitioners have alleged that they have 8

years of service as Head Constables in the Dog Squad and consequently

they have become eligible for promotion to the post of ASI, as per the

recruitment rules. The petitioners have also alleged that though the

vacancies were available in the year 2004, however, no DPC had been

held to consider their cases, which is contrary to the instructions, as it

provides for holding of DPC meetings on a yearly basis. As a

consequence of this, representations were also made by the petitioners

requesting for convening the DPC for their promotion to the post of ASI.

According to the petitioners, the promotion rule contemplates the

minimum technical qualifications/experience for the post of ASI (Dog

Squad) as 28 weeks of trained Dog Handler‟s Course and three years‟

service in the Dog Squad in any rank.

4. The case of the petitioners is that respondent No.5, Sh. Bhanwar

Singh, was in the Dog Squad in the Eastern Railway and was posted at

Liluah. According to the allegations made by the petitioners, he had

applied for transfer to the Northern Railway on deputation on account

of the education of his children, which was accepted for a period of

three years w.e.f. February, 1995 by order dated 17th February, 1995.

However, even after the expiry of the three years of deputation period,

respondent No.5 was not repatriated to his parent cadre. The request of

the respondent no.5 for absorption in the Northern Railway Dog Squad

was accepted but according to the petitioners, it was pursuant to his

willingness to accept bottom seniority in case of his absorption. The

absorption of respondent No.5 was approved by order dated 3rd October,

2000 as Head Constable BCTC, Northern Railway.

5. The petitioners disclosed that respondent No.5, by his

representation dated 20th April, 2000, however, claimed

absorption/transfer in the bottom seniority w.e.f. 1998, instead of 2000,

which was rejected by the respondents by their letter dated 7/9th July,

2005 on the alleged ground that he had been transferred to Northern

Railway in the year 2000. The petitioners also disclosed that the parent

department of respondent No.5 had confirmed that respondent No.5

was not eligible for promotion in the executive cadre as ASI in the Dog

Squad in the Eastern Railway.

6. According to the petitioners, respondent No.5 was shown at

seniority No.1102 and he was junior to all the petitioners, however, by

order dated 2nd February, 2007 his seniority has been changed to

seniority No.1 illegally and arbitrarily, without giving any notice to the

petitioners, whose promotional chances have been seriously prejudiced

by this act of the official respondents. The petitioners have also relied

on Instructions dated 7/13th September, 1998 to contend that the

seniority of the deputationist, working at BCTC Dayabasti/Delhi was to

be maintained in the parent Unit, and therefore, respondent No.5 could

not have claimed his seniority in Northern Railway prior to his

absorption. The petitioners further relied on Section 99(2) of the

Railway Protection Force Act, 1957 and quoted the same in the writ

petition. However, the section quoted by the petitioner in the writ

petition is not correct, as the seniority on transfer is dealt with in the

Railway Protection Rules, 1987. The correct provision is Rule 99(1)

which is as under:-

Sec 99(2) regarding Correct Rule 99 (1) as quoted by Transfer as quoted by the the respondents petitioner in the WP in para 8 99.2 Transfer on Own 99.1 Seniority of an enrolled Request or on mutual member of force on transfer from exchange: one zone to another or to Railway

"Seniority of an enrolled Protection Special Force and vice member of the Force versa made in the interest of transferred on his own administration shall be regulated request or on mutual by the date of appointment to the exchange from one Zonal grade or rank as the case may be, Railway to another or to where the date of appointment of the Railway Protection the transferred member of the Special Force and vice Force is the same as that of versa shall be fixed below another member of the Force that of all existing already serving on that zonal confirmed and officiating Railway or Railway Protection enrolled members of the Special Force, the relative seniority Force in the relevant rank shall be determined on the basis of of that Railway or Railway the date of birth - the elder being Protection Special Force the senior.

         irrespective of the date of
         confirmation or length of      99.2 Transfer or own request or on
         officiating, service of the    mutual exchange:
         transferred member of the      'Seniority of an enrolled member of
         Force."                        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
                                        members of the force in the
                                        relevant rank of the Railway or
                                        Railway protection Special Force
                                        irrespective    of  the    date    of
                                        confirmation or length of officiating
                                        service of the transferred member
                                        of the Force

7. The petitioners have further contended that they had made a

number of representations against the actions of the official

respondents giving higher seniority to respondent No.5 and not holding

the DPC though the eligible candidates and vacancies in the rank of HC

(Dog Squad) were existing since 2004. In the circumstances, the

petitioners have challenged the revision of the seniority of respondent

No.5 from serial No.1102 to serial No.1 and the inaction of the official

respondents in not convening the DPC meeting, on the ground that

assigning seniority to the deputationist who joined from other Railway

(Cadre) is contemplated under the statutory provisions of Section 99.2

of the RPF Act, 1957. The petitioners have also contended that the

delayed DPC may make the petitioners ineligible by the due date. The

petitioners have also pleaded that promotion is considered to be an

important aspect of right to life as contemplated under Article 21 of the

Constitution of India. In this regard, reliance has been placed on PSN

Rao v. State of Orissa (2002) 6 SCC 478; A.P.SRTC & Ors. v. V.Veeraiah

(2000) 9 SCC 425 and P.Satyanarayana Rao & Anr. v. S.V.P.Sarvani &

Ors., (2009) 1 SCC 419 and directions have been sought to the official

respondents to quash the order dated 2nd February, 2007 revising the

seniority of respondent no.5 from serial No.1102 to serial No.1 and to

convene the DPC for promotion of the petitioners from Head Constable

(Dog Squad) to the rank of ASI (Dog Squad).

8. The writ petition is contested by the respondents. Respondent

Nos.1 to 4 have filed a counter affidavit of Sh. Ratan Chand, s/o Sh.

Beli Ram working as a senior DSC/RPF dated 7th January, 2009 filed

on 9th January, 2009. The said respondents have specifically averred

that respondent No.5 was transferred on request from Eastern Railway

to Northern Railway. However, he was placed at the bottom seniority by

Railway Board‟s Letter No.90/Sec(ABE)/DS/13/1 dated 3rd October,

2000. Accordingly, his seniority was fixed at serial No.2847 as Head

Constable of the Zonal Seniority List published in the year 2000.

Thereafter, respondent no.5, not being satisfied with his seniority fixed

by the administration, had made a representation for fixing his seniority

from the date of joining the RPF (Dog Squad). The request was, however,

declined by letter dated 7th July, 2005.

9. The respondent No.5 again requested for reconsideration of his

seniority. Thereafter, the Director General/RPF by Railway Board‟s

Letter No.2005/Sec/ABE/DS/13/2 dated 22nd January, 2007 decided

after noticing that respondent No.5 was in fact transferred from Eastern

Railway to BCTC on administrative grounds, by order dated 5th

September, 1995, for a period of three years and not on account of

transfer sought by respondent No.5, so as to attract the rule 99(2) of the

Railway Protection Rules 1987.

10. Respondent Nos.1 to 4 further detailed that after the expiry of his

period of transfer of three years, respondent no.5 had continued till

2000 with the Northern Railways. It was also noticed that during the

period from 1998 to 2000 he was not considered for promotion, either

by the Northern Railway or the Eastern Railway. In these

circumstances, it was decided to transfer respondent No.5 to the

Northern Railway with effect from the date of his original transfer, that

is 5th September, 1995, and his seniority was re-fixed from serial

No.2847 to serial No.583A between Sh. Ranjit Singh serial No.583 and

Sh. Rajpal Singh serial No.584. As both Sh. Ranjit Singh, who was

above respondent no.5, and Sh. Rajpal Singh, who was immediately

below respondent no.5, were promoted under the cadre re-structuring

w.e.f. 1st July, 2004, therefore, respondent No.5 was assigned the

seniority at serial No.1 in the seniority list of HC/Executive issued on

20th December, 2006 and not as Head Constable (Dog squad).

11. The official respondents disclosed that the seniority of respondent

no.5 was revised as per the Instructions of the Railway Board and that

he had become due for promotion under the re-structuring. Therefore, a

committee was nominated for granting him promotion to the rank of

ASI/Executive in the Scale of Rs.4,000-6,000/-, subject to passing of

the screening of ACR. The duly nominated committee, after considering

the ACRs of respondent No.5, found him eligible for promotion to the

rank of ASI/RPF (Executive) under the cadre re-structuring w.e.f. 1st

July, 2004. Therefore, he was promoted as ASI/RPF (Executive).

12. Respondent Nos.1 to 4 categorically asserted that respondent

No.5 was promoted as ASI/RPF (Executive) and not as ASI (Dog Squad)

as there is no separate seniority list of Dog Squad staff for the purposes

of promotion. Respondent Nos.1 to 4 also averred that the parent cadre

of the petitioners is also RPF/Executive and not Dog Squad. According

to the directives issued under Rule 28 of the RPF Rules, 1987 read with

Section 8 of the RPF Act, 1957, the staff inducted in the ex-cadre post

are not entitled to promotion within the ex-cadres and they are entitled

for promotion only against the higher posts in their parent cadre. In the

circumstances, the claim of the petitioners for seniority/promotion to

the rank of ASI/Dog Squad was held to be neither correct, nor

acceptable. Respondent Nos.1 to 4 averred emphatically that in order to

stream line the seniority, respondent No.5 was treated to have been

transferred with effect from the date of his original transfer i.e. 5th

September, 1995, on administrative grounds and not on account of the

request by respondent No.5. The seniority of respondent No.5, therefore,

had been justified and since he had become eligible for promotion,

therefore, respondent No.5 was promoted to the rank of ASI/RPF

(Executive) under the cadre re-structuring w.e.f. 1st July, 2004.

13. It has been further contended that all the petitioners are junior

to respondent No.5 and they are not entitled for promotion, as the

petitioners are in the rank of Head Constables (Executive) and are at

serial No.939, 934, 936 & 937 respectively in the provisional seniority

list of Head Constables (Executive) issued by circular No.847-

E/2/RPF/HC/sen/07 dated 12th September, 2008. The respondents

further disclosed that the petitioners shall be promoted as ASI

(Executive) against the vacancy in the executive cadre on seniority-cum-

suitability criteria, subject to vacancy. Respondent Nos.1 to 4 also

placed reliance on directive No.18 contemplating that the total strength

of the respective ex-cadres is to be decided by the Chief Security

Commissioner from time to time as per the workload. However, the

strength of the ex-cadres and the permanent cadre of executive is not to

exceed the sanctioned strength of the executive at any time. The

Directive No.18 issued by the Railway Board‟s Letter

No.92/Sec(E)/PM/1/1 dated 27th February, 1997 is as under:-

(a) "These ex-cadre posts will form part of the number of executive cadre posts of RPF/RPSF. Wherever these ex- cadre posts have not been identified (especially Band), the concerned CSCs will now earmarked the required number of posts in each rank to be operated as ex-cadre posts.

(c) These ex-cadre RPF/RPSF staff will be required to attend the selection/screening tests in the Executive Branch also for their promotion in the executive cadre. Their lien in the Executive cadre of the Zonal Railway/RPSF will be maintained and eligible staff will be considered/called for promotion test/selections at the appropriate time

(d) The personnel attending the selection test for the ex- cadre post of Armourers, Dog Squad and Band will not be required to be tested in IT/PT etc. during the practical tests."

14. The respondents further reiterated that the rule for promotion

and appointment of ex-cadres in the post of RPF/FPSF were clarified by

Directive No.18 issued by the DG/RPF by Railway Board‟s Letter

No.2004-Sec/(E)/Re-3/38 dated 18th July, 2006 contemplating that the

staff inducted into the ex-cadres are not entitled for promotion within

the ex-cadre and that they are entitled for consideration for promotion

only against the higher posts in their cadre. Consequently, the

petitioners are not entitled for promotion under the head of Dog Squad.

Also in the parent cadre i.e. the executive cadre the petitioners are

junior to respondent No.5.

15. The respondents emphasized that as per Railway Board‟s Letter

No.2005/Sec/ABE/BS/13/2 dated 22nd January, 2007, respondent

No.5 was transferred from Eastern Railway to BCTC on administrative

grounds for a period of three years, however, he still continued till 2000

when he was formerly transferred to BCTC. During the interim period

he was not considered for promotion either by the Northern Railway or

by the Eastern Railway. Consequently, it was decided in order to

streamline the respondent no. 5‟s seniority that he may be treated to

have been transferred to the Northern Railway with effect from the date

of his original transfer dated 5th September, 1995 and his seniority was

regulated accordingly. Respondent Nos.1 to 4 also asserted that

respondent No.5 was transferred from Eastern Railway to Northern

Railway, Executive-cadre of RPF on administrative grounds and not in

the Dog Squad as has been alleged by the petitioners. It was further

held that therefore, he could not be placed at the bottom of the

seniority.

16. The respondents denied that respondent No.5 was promoted

within one week‟s time after clearance was obtained from the concerned

quarters and contended that seniority was decided by letter dated 22nd

January, 2007, whereas, the promotion order was issued only after one

and half year on 30th July, 2008. The respondents also disclosed that

regular DPC was held for the promotion of the respondent no.5 to the

rank of ASI(Executive) and not ASI (Dog Squad), details of which are as

under:-

 Year                Vacancy                  Empanelled
                                              ASI

                     UR        SC      ST     UR             SC      ST

   2004 & 05         266        57      32    261            57      31
    (under re-
   structuring


 2006                61         12      06    57             09      06
 2007                36         13      03    36             13      03
 2008                100        19      10    100            19      3

17. Respondent Nos.1 to 4 also revealed that the panel for promotion

to the rank of ASI(Executive) held during 2008 had been called due to

the recommendations of the Vigilance Directorate of the Railway Board

and that the petitioner, Sh. Narender Pal Singh, had not applied for

selection under Rule 72. Regarding allegations of ignoring the seniority

of the petitioners, it has been averred that the petitioners have not been

lowered in the rank of Head Constable (Executive) and are at serial

No.939, 934, 936, & 937 respectively in the provisional seniority list of

Head Constables (Executive). It is further contended that the petitioners

will be promoted as ASI (Executive) against the vacancy in the executive

cadre on seniority-cum-suitability criteria, subject to availability of

vacancies.

18. Along with the writ petition, the petitioners had also filed an

application, being CMP No.8873/2008, seeking stay of order dated 2nd

February, 2007, by which the seniority of respondent No.5 was fixed at

serial No.583A between Sh.Ranjit Singh and Sh.Raj Pal Singh. No

interim order was passed in favour of the petitioners on various dates

staying the order dated 2.2.2007 though the counsel for the petitioners

had contended that interim order was passed in favor of the petitioners.

19. The petitioners had not taken any steps in compliance with the

orders passed by the Court from time to time requiring them to serve

the notice on respondent No.5. Consequently, the writ petition was

dismissed in default of proper prosecution of the writ petition by the

petitioners on 21st December, 2009. The petitioners filed an application

for restoration of the writ petition and again took considerable time to

comply with the orders. On 23rd November, 2010, respondent No.5,

however, appeared without service of notice on him and accepted the

notice of the application. Thereafter, the writ petition was restored on

23rd February, 2011 and the petitioners took time to file the rejoinder

affidavit to the counter affidavit filed by respondent Nos.1 to 4.

Respondent No.5 had adopted the pleas and contentions raised by

respondent Nos.1 to 4.

20. Rejoinder affidavit was, however, not filed by the petitioners and

the pleas and contentions raised by the respondents have remained un-

rebutted. The writ petition was again dismissed in default on 18th April,

2011. The petitioners again filed an application for restoration of the

writ petition and for recalling of the order of dismissal dated 18th April,

2011. Even while pursuing the application for restoration, the

petitioners were lax and consequently a cost of Rs.5,000/- was imposed

on them. By order dated 17th October, 2011 the writ petition was,

however, restored and the matter was taken up for hearing. Petitioners,

however, still failed to file any rejoinder affidavit rebutting the pleas and

contentions raised on behalf of respondent Nos.1 to 4, that respondent

No.5 was transferred in the year 1995 on administrative grounds and

not on account of the request made by respondent No.5, for which

reason he could not be placed at the bottom of the seniority in

accordance with rule 99.2 of the Railway Protection Rules, 1987;

respondent no.5 was promoted as ASI/RPF (Executive) and not as ASI

(Dog Squad); there is no separate seniority list of Dog squad staff for the

purpose of promotion; staff inducted into ex-cadre are not entitled to

promotion with ex-cadre and they are entitled for promotion only

against the higher posts in their parent cadre and that the petitioners

were junior to the respondent no.5 in the seniority of Head Constable

(Executive).

21. This Court has heard the learned counsel for the parties and

perused the writ petition and the counter affidavit filed on behalf of

respondent nos. 1 to 4. The claims of the petitioners are based on

certain facts which have not been established nor can they be inferred

from the record. The plea of the petitioners that respondent no. 5 was

transferred in the year 1995 at his own request from Eastern Railway to

Northern Railway and, therefore, in accordance with Rule 99.2 he

should have been placed at the bottom of the seniority is not correct

and sustainable. The respondent nos. 1 to 4 have categorically averred

that respondent no. 5 was transferred on account of administrative

reasons for three years and, thereafter, he continued in the Northern

Railway without any promotion. This plea has not been refuted by the

petitioners, as despite various opportunities, rejoinder to the counter

affidavit of the respondents was not filed. No document has been filed

by the petitioners which would show that the respondent no.5 was

transferred at his request and not on account of administrative reasons.

22. The reliance of the petitioners on the order dated 3rd October,

2000 is also misplaced as it does not stipulate that the transfer had

been made at the request of respondent no. 5 and not on account of

administrative reasons. The order dated 3rd October, 2000 is as under:

"No.90/Sec(ABE)/DS/13/2 New Delhi Date 3.10.2000

ORDER

Approval of DG/RPF is hereby communicated to the transfer of Shri Bhanwar Singh Head Constable/Dog Squad/ Eastern Railway (presently working in BCTC/ Daya Basti in terms of Board‟s order of even number dated 17.2.1995) to Northern Railway on bottom seniority and his subsequent retention at BCTC/Dayabasti, Delhi in same capacity.

Necessary action may be taken accordingly under intimation to this Office

(Sheela Verma) Under Secretary/ABE Railway Board"

23. By order dated 17th February, 1995, the respondent No.5 was

transferred for administrative reasons, which fact has been categorically

asserted by the official respondents in their counter affidavit and which

fact has not been denied and cannot be denied by the petitioners. The

order dated 3rd October, 2000, has also been passed in accordance with

the order dated 17th February, 1995, except mistakenly placing the

respondent no.5 at the bottom of the seniority contrary to rule.

Consequently, it is inevitable to infer that respondent no. 5 was

transferred on account of administrative reasons and his seniority could

not have been fixed in accordance with Rule 99 (2) of the Railway

Protection Rules, 1987 nor could respondent no. 5 have been placed at

the bottom of the seniority. The plea of the petitioners in the facts and

circumstances is based on their own misconception of the facts and

surmises and thus their petition is devoid of any merit.

24. If respondent no.5 could not be placed at the bottom of the

seniority, and on account of his representation, if his seniority has been

corrected by the official respondents, then the petitioners cannot

impugn the same. The petitioners have not been able to refute the plea

that they are not entitled for promotion under the head of Dog Squad as

their parent cadre is the Executive Cadre. The petitioners have also not

been able to refute the plea that in the Executive Cadre they are junior

to the private respondent. According to the directive issued under Rule

28 of the RPF rules, 1987, read with section 8 of RPF Act, 1957, the

staff inducted into the ex-cadre is not entitled to promotion within the

ex-cadre and such staff is entitled for promotion only against the higher

posts in their parent cadre. The petitioner therefore, cannot claim

promotion to the rank of ASI/Dog squad and their plea is neither

correct nor acceptable nor has it been established by them so as to

entitle them for any of the reliefs claimed by them.

25. Thus, the petitioners are only entitled for promotion to the ASI

(Executive) against the vacancies in the executive cadre on seniority-

cum-suitability criteria, subject to the availability of vacancies. The

respondents have categorically stated that the petitioners shall be

promoted according to the rules in the executive cadre, as per their

seniority against the available vacancies and in the circumstances, the

petitioners are not entitled for any relief as has been claimed by them.

26. No mala-fides or favoritism or bias in favor of Respondent no.5

has been alleged against the official respondents while revising his

seniority. This is not the plea of the petitioners that the Chief Security

Commissioner or any other officer wanted to favor him and therefore his

seniority was revised. If this is not the case, then undoubtedly the

revision was done to correct the mistake in the seniority of the

respondent no.5, which had occurred on account of fixing his seniority

in the year 2000 on the basis of Rule 99 (2) of the RPF Rules, 1987 even

though the private respondent was transferred on account of

administrative reasons in the year 1995 and not on account of his own

request, as has been asserted by the official respondents, and it has not

been proved otherwise by the petitioners. In the circumstances, it is

evident that the seniority of the private respondent was to be fixed in

accordance with Rule 99 (1) of the said rules, which was subsequently

done by the official respondents. In view of the specific assertion by the

respondents that the private respondent was transferred on account of

administrative reasons, the plea of the petitioners that the private

respondent was transferred at his own request is a bald plea, which is

unsupported by any documents or any record. The entire case of the

petitioners is based on an incorrect assumption that the private

respondent was transferred on his own request and therefore, his

seniority on transfer is to be fixed in accordance with Rule 99.2 of RPF

Rules, 1987. Though the order dated 3rd October, 2000 was passed on

the wrong assumption that the private respondent had been transferred

on his own request, on account of which the private respondent was

placed at the bottom of the seniority in the Northern Railway, it was

subsequently rectified by the Railway Board and after correcting the

seniority of respondent no.5, the same was intimated to the private

respondent by communication dated 2nd February, 2007, which has

been challenged by the petitioners. The petitioners, therefore, are not

entitled to challenge the order dated 2nd February, 2007 nor can it be

set aside on the grounds as has been raised by the petitioners.

27. For the foregoing reasons and in the facts and circumstances, the

petitioners are not entitled for any relief and the orders of the official

respondents cannot be interfered with on any grounds as has been

alleged by the petitioners. The petitioners have failed to make out any

illegality, irregularity or any perversity in the orders of the official

respondents so as to require any interference by this Court in exercise

of its jurisdiction under Article 226 of the Constitution of India. The writ

petition is therefore, without any merit and it is dismissed. The

petitioners shall also be liable to pay a cost of Rs.10,000/- to the

respondent no. 5. Cost be paid within four weeks. With these directions

the writ petition is dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

MAY 9, 2012 „vk‟