Delhi High Court
All India Railway Protection ... vs Union Of India And Others on 21 August, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) No. 3455/2016
Reserved on: 9th August, 2017
% Date of Decision : 21st August, 2017
ALL INDIA RAILWAY PROTECTION FORCE
ASSOCIATION AND ANOTHER ....Petitioners
Through Mr. Kailash Vasdev, Sr. Advocate with
Ms. Ekta Mehta & Mr. Shreyans Singhvi,
Advocates.
Versus
UNION OF INDIA AND OTHERS ...Respondents
Through Mr. Sanjay Jain, ASG with Mr. Anurag
Ahluwalia, CGSC, Mr. Jagjit Singh, Mr. Sarfaraz
Ahmad & Ms. Ruchi Jain, Advocates for
respondent Nos. 1 to 4 and 6.
Mr. Siddharth Luthra, Sr. Advocate with Mr.
Gaurav Sarin, Ms. Supria Juneja & Mr. Saumyarop
Sanyak, Advocates for respondent No. 5.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
SANJIV KHANNA, J.
All India Railway Protection Force Association and U.S. Jha,
have filed the present writ petition for issue of writ for quashing Rules
54.1(c), 76 and 277 of the Railway Protection Force Rules, 1987 to the
extent they permit appointment of officers in Railway Protection
Force on deputation and subsequent absorption as being ultra vires the
Railway Protection Force Act, 1957 and Article 14 of the Constitution.
Another prayer made is for quashing/deleting Rule 45 (partly) to the
extent it provides for recruitment by taking personnel on deputation in
accordance with the Rules. Similar prayer is made for
quashing/deleting proviso to Rule 1.3 (partly) to the extent it makes
Rules 83 to 86 inapplicable to superior officers and other enrolled
members of the force appointed on deputation as such appointment
would be ultra vires the Railway Protection Force Act, 1957 and
Article 14 of the Constitution. The third prayer is for issuance of writ
in the nature of prohibition restraining the authorities from filling up
the post of Director General and other posts below the rank of Director
General by way of deputation/transfer from any personnel not
belonging to the Railway Protection Force. The fourth and the last
prayer is for mandamus directing the authorities to fill up the post of
Director General and other posts below the rank of Director General
by way of promotion from the officers within the Railway Protection
Force.
2. For the sake of convenience, Railway Protection Force Act,
1957 has been referred to as the Act or the Principal Act and the
Railway Protection Rules, 1987 have been referred to as the Rules.
3. Railway Protection Force is an armed force of the Union and is
governed by the Act, i.e., the Railway Protection Force Act, 1957,
which was notified and came into force on 10th September, 1959.
4. By the Railway Protection Force (Amendment) Act, 1985,
which received the assent of the President on 6th September, 1985,
substantial amendments were made in the Principal Act, i.e., Railway
Protection Force Act, 1957. The Railway Protection Force
(Amendment) Act, 1985 was thereafter published in the Gazette on 9 th
September, 1985. For the purpose of present controversy, we need not
refer to all amendments made to the Principal Act by the Railway
Protection Force (Amendment) Act, 1985 in detail, except reference to
Sections 5, 13, 18 and 19 of the Railway Protection Force
(Amendment) Act, 1985, which for the sake of convenience are
reproduced below:-
" 5. In Section 4 of the principal Act.-
(a) for sub-section (1), the following sub-section shall be
substituted, namely:-
"(1) The Central Government may appoint a person to
be the Director-General of the Force and may appoint
other persons to be Inspectors-General, Additional
Inspectors-General, Deputy Inspectors-General,
Assistant Inspectors-General, Senior Commandants,
Commandants or Assistant Commandants of the Force."
(b) in sub-section (2), for the expression "Inspector-General",
the expression "Director-General" shall be substituted."
XXXXX
13. After Section 15 of the Principal Act, the following
Section shall be inserted, namely:-
"15A. (1) No member of the Force shall, without the
previous sanction in writing of the Central Government or
of the prescribed authority:-
(a) be a member of, or be associated in any way with, any
trade union, labour union, political association or with
any class or trade unions, labour unions or political
associations; or
(b) be a member of, or be associated in any way with any
other society, institution, association or organisation that
is not recognised as part of the Force or is not of a
purely social, recreational or religious nature; or
(c) communicate with the press or publish or cause to be
published any book, letter or other document except
where such communication or publication is in the
bonafide discharge of his duties or is of a purely literary,
artistic or scientific character or is of a prescribed
nature.
Explanation.- If any question arises as to whether any
society, institution, association or organisation is of a
purely social, recreational or religious nature under
clause (b) of this sub-section, the decision of the Central
Government thereon shall be final.
(2) No member of the Force shall participate in, or
address, any meeting or take part in any demonstration
organised by anybody of persons for any political
purposes or for such other purposes as may be
prescribed."
XXXXX
18. The amendments directed in the Schedule (being
amendments of a consequential nature) shall be made in the
Principal Act.
19. (1) The Force constituted under the principal Act, as
functioning immediately before the commencement of this
Act (hereafter in this section referred to as the existing
Force,) shall, on such commencement, be deemed to be the
Force constituted under the principal Act, as amended by
this Act, and every member of the existing Force holding
immediately before such commencement an office
mentioned in column (1) of the Table below shall, on such
commencement, be deemed to have been appointed to the
office mentioned in the corresponding entry in column (2)
of the said Table.
1. Director-General Director-General
2. Inspector-General-cum- Inspector-General
Chief Security Officer
3. Additional Inspector- Additional Inspector-
General-cum-Chief Security General
Officer
4. Additional Inspector- Additional Inspector-
General General
5. Deputy Inspector-General- Deputy Inspector-
cum-Chief Security Officer General
6. Deputy Inspector-General Deputy Inspector-
General
7. Principal, Training College Principal, Training
College
8. Assistant Inspector-General Assistant Inspector-
General
9. Deputy Chief Security Senior Commandant
Officer Headquarters
10. Senior Security Officer Senior Commandant
11. Security Officer Commandant
12. Staff Officer to Chief Commandant-cum-Staff
Security Officer Officer to Chief Security
Officer.
13. Security Officer (Small Commandant (Small
Arms) Arms)
14. Commandant Commandant
15. Assistant Security Officer Assistant Commandant
16. Personal Assistant to Chief Assistant Commandant-
Security Officer cum-Personal Assistant
to Chief Security Officer
17. Adjutant Assistant Commandant
Adjutant
18. Assistant Commandant Assistant Commandant
19. Principal, Training School Assistant Commandant-
cum Principal, Training
School
20. Vice-Principal, R.P.F. Assistant Commandant-
Training College cum-Vice-Principal,
R.P.F. Training College
21. Inspector Inspector
22. Sub-Inspector Sub-Inspector
23. Assistant Sub-Inspector Assistant Sub-Inspector
24. Head Rakshak Head Constable
25. Battalion Havildar Major Head Constable
26. Coy. Havildar Major Head Constable
27. Senior Rakshak Naik
28. Rakshak Constable
(2) Notwithstanding anything contained in sub-section (1),
any member of the existing Force may, within thirty days
from the commencement of this Act, exercise his option by
notice in writing to the Director-General-
(a) if such member has been on deputation to the existing
Force from any other service, to revert to such other service,
and
(b) in any other case, to retire from service, and an option so
exercised shall be final, and a member exercising such
option shall be permitted, within thirty days from the date
on which he exercises such option to revert to the service
from which he had been on deputation or, as the case may
be, to retire from service.
Explanation.- For the purposes of this section, the
expression "member" includes an officer, and the expression
"Director-General" shall have the same meaning as in the
principal Act, as amended by this Act."
5. The aforesaid Gazette notification dated 9th September, 1985
was published by the Ministry of Law and Justice (Legislative
Department).
6. The Ministry of Railways (Railway Board) vide another Gazette
notification published on 18th September, 1985 published the Act, i.e.,
the Railway Protection Force Act, 1957, purportedly incorporating
therein the amendments made by the Railway Protection Force
(Amendment) Act, 1985 with effect from 20th September, 1985.
7. It is an accepted and admitted case of the parties that there were
two significant errors in the Act published vide Gazette notification
dated 18th September, 1985. The first error related to Section 15A
with which we are not primarily concerned and, therefore, is not being
elucidated in detail. Suffice, it is to notice that a portion of the
sentence in clause (b) "is not recognised as a part of the force or" was
omitted. However, what is significant and relevant for the purpose of
the present litigation is the complete omission to incorporate and
include the amendments made vide Section 19 of the Railway
Protection Force (Amendment) Act, 1985.
8. Similar error was also made by the Ministry of Railways in the
in-house booklet published by them incorporating the complete
version of the Act, i.e., the Railway Protection Force Act, 1957
incorporating the amendments notified. We may, at this stage, also
record that as per the official respondents the Act published in the
Gazette on 18th September, 1985 has been treated as an in-house
publication.
9. The errors made came to the notice of the Ministry of Law and
Justice in 2006 and the matter was examined. The result was a
corrigendum being published in the Gazette on 4th August, 2006 by the
Ministry of Law and Justice (Legislative Department). The
corrigendum is a short one and states that in Section 15A the words in
clause (b) "is not recognised as part of the force or" would be added.
The second "correction" was to add sub-sections (4) and (5) to Section
21 of the Act. Sub-sections (4) and (5) as quoted therein are verbatim
the entire Section 19 (1) and (2) of the Railway Protection Force
(Amendment) Act, 1985 as published in the Gazette on 9th September,
1985.
10. The Ministry of Law and Justice now accepts and admits that
this was a mistake as sub-sections (1) and (2) to Section 19 of the
Railway Protection Force (Amendment) Act, 1985 were not to be
added and enacted as sub-sections (4) and (5) to Section 21 of the
Principal Act. This was not stipulated in Section 19 of the Railway
Protection Force (Amendment) Act, 1985. Section 19 was required to
be incorporated in the Schedule to the Principal Act. This position is
correct and cannot be debated. This is also clear from the Gazette
notification dated 9th September, 1985. Sections 18 and 19 of the
Railway Protection Force (Amendment) Act, 1985, when read
coherently and harmoniously, would clearly show the said position.
Interestingly, Section 17 of the Railway Protection Force
(Amendment) Act, 1985 had also amended Section 21 of the Act and
had postulated as under:-
"17. In Section 21 of the principal Act,-
(a) In sub-section (2),-
(i) in clauses (a), (b) and (c), the words "superior officers
and" shall be omitted;
(ii) for clauses (d) and (e), the following clauses shall
be substituted, namely:-
(d) prescribing the description and quantity of arms,
accoutrements, clothing and other necessary articles to be
furnished to the members of the Force;
(e) prescribing the places of residence of the member of the
Force;
(f) institution, management and regulation of any fund for any
purpose connected with the administration of the Force;
(g) regulating the punishments and prescribing authorities to
whom appeal shall be preferred from orders of punishment,
or remission of fines, or other punishments and the
procedure to be followed for the disposal of such appeals;
(h) regulating matters with respect to Force custody under this
Act, including the procedure to be followed for taking
persons into such custody;
(i) regulating matters with respect to disposal of cases relating
to offences under this Act and specifying the places in
which persons convicted under this Act may be confined;
(j) any other matter which has to be, or may be, imposed, or in
respect of which rules are required to be made under this
Act."
(b) for sub-section (3), the following sub-section shall be
substituted, namely:-
"(3) Every rule made under this Act, shall be laid, as
soon as may be after it is made, before each House of
Parliament, while it is in session, for a total period of
thirty days which may be comprised in one session or in
two or more successive sessions, and if before the expiry
of the session immediately following the session or the
successive sessions aforesaid, both Houses agree in
making any modification in the rule or both Houses
agree that the rule should not be made, the rule shall
thereafter have effect only in such modified form or be
of no effect, as the case may be, so, however, that any
such modification or annulment shall be without
prejudice to the validity of anything previously done
under that rule."
11. Sections 17, 18, and 19 of the Railway Protection Force
(Amendment) Act, 1985 being three separate provision, it would be
incoherent and inarticulate to hold that amendments vide Section 19
were to be added as sub-sections (4) and (5) to Section 21 of the
Principal Act. In order to correct the aforesaid position, the Ministry
of Law withdrew the corrigendum published in the Gazette on 4 th
August, 2006, which as noted above, had wrongly added amendments
made by Section 19 of the Railway Protection Force (Amendment)
Act, 1985 as sub-sections (4) and (5) to Section 21 instead of
including it in the Schedule to the Act.
12. In our order dated 31st July, 2017 we had asked the official
respondents to elucidate on the procedure to withdraw a gazette
notification and whether the "withdrawal" in the present case would be
in accordance with law. Though there appears to be some ambiguity or
confusion, to our mind in the facts of the present case, it would not
make any difference. The confusion arose because of the corrigendum
published in the gazette on 4th August, 2006 had wrongly added the
provisions, i.e. Section 19 of the Railway Protection Force
(Amendment) Act, 1985, as sub-sections (4) and (5) of Section 21 to
the Principal Act. The amendment in terms of Section 19 of the
Railway Protection Force (Amendment) Act, 1985 should have been
made in the Schedule to the Principal Act. However the said
corrigendum has not been withdrawn by a notification in the official
gazette.
13. Even if the corrigendum dated 4th August, 2006 is taken into
consideration, the effect would be no different. We would observe that
there is a contradiction between the gazette notification dated 9 th
September, 1985 publishing the Railway Protection Force
(Amendment) Act, 1985 and the corrigendum dated 4 th August, 2006.
The enactment, as passed by Parliament which has received the assent
of the President, would prevail and is binding. It would be better for
the official respondents to take remedial steps as per law, so that there
is no ambiguity and doubt and this confusion is set to rest.
14. The next aspect, which requires examination, is the effect of
Section 19 of the Railway Protection Force (Amendment) Act, 1985,
which statedly forms part of the Schedule. Section 19 of the Railway
Protection Force (Amendment) Act, 1985 has been reproduced in
paragraph 4 above. Sub-section (1) to Section 19 is a deeming
provision. Every member of the Force on the commencement of the
Amendment Act holding the post in column 1 is deemed to be
appointed to the corresponding post in column 2. Sub-section (2)
thereof states that any member of the existing Force shall, within thirty
days from the commencement of the said Act, exercise his option by
notice in writing to the Director General, to be reverted to the parent
service if he is on deputation; or to retire from service. The option so
exercised shall be final. The submission of the official and impleaded
respondents is that sub-section (2) was a transitory or onetime
provision, i.e. an option was to be exercised when the Railway
Protection Force (Amendment) Act, 1985 was enforced. It gave the
existing employees of the Force the option to retire, or if they were on
deputation to return to their parent department/service, in which event
sub-section (1) would not be applicable. In other words, the said
provision does not stipulate that in future appointments on deputation
would not be made in the Railway Protection Force. There is no such
specific or implied statement or stipulation. There appears to be merit
in the said contention, in view of the language employed and also the
fact that the provision is a part of the Schedule.
15. However, counsel for the parties have drawn our attention to a
Division Bench judgment of this Court in Writ Petition (Civil) No.
6081/2012, P.S. Rawal and Others versus Union of India and
Others, decided on 4th March, 2013 wherein it has been held as
under:-
"31. The Court is further of opinion that and the
respondents‟ insistence on considering names of IPS and
other outside officials despite the statutory bar, in terms of
Section 19 of the Act, is a clear illegality. Section 19 (2) is
cast in imperative terms, and notwithstanding that an
existing member of the Railway Protection service may be a
deputationist, he has to be repatriated. In other words, the
choice of recruiting personnel on deputation is curtailed.
The only possible exception is the post of Director General,
who has to receive the option of others to repatriate. Implicit
in the provision is the idea that the Director General can be a
deputationist. Having regard to the terms of the said
provision, which now binds the Railway authorities, and
which appears to have been overlooked altogether, it is held
that the post of ADG in the RPF has to be filled from
amongst in-house IG level candidates of the RPF itself, in
accordance with the memorandum of 11-06-2010.
Consequently, a direction is issued to the respondents to
forthwith process the case of the petitioners, and start the
process of promotion to the post of ADG, in line with the
said memorandum of 11-06-2010. The entire process shall
be completed within six weeks and the recommendations
forwarded in that regard, to the ACC (Appointments
Committee of the Cabinet) thereafter."
We may highlight that the Court while deciding P.S. Rawal &
Ors. (supra) did not have the advantage and benefit of examining the
Gazette Notification dated 9th September, 1985 notifying the Railway
Protection Force (Amendment) Act, 1985 and the effect on the
Principal Act i.e. Railway Protection Force Act, 1957. It is apparent
that the said judgment was pronounced on the basis that Section 19 of
the Railway Protection Force (Amendment) Act, 1985 had postulated
an insertion in the form of sub-sections (4) and (5) to Section 21 of the
Principal Act.
16. Another contention raised before us, pertains to the Rules i.e.
the Railway Protection Force Rules, 1987. Our attention was drawn to
the Parliamentary Bulletin of Rajya Sabha dated 4 th May, 1988 (Item
No.30587) for making deletion and amendment of several clauses
including Part-II of Rule 1.3, dealing with appointment on deputation,
paragraph (c) of Rule 54.1 etc. Lok Sabha bulletin dated 16 th March,
1988 (Item No.2164), which relates to the resolution passed by the
House for annulling the Rules, was also relied.
17. In view of the aforesaid pleadings, vide order dated 31 st July,
2017, we had called upon the Union of India to file an additional
affidavit on their stand and stance on the resolution dated 4 th May,
1988 passed by the Rajya Sabha (Item No.30587) and resolution dated
16th March, 1988 of the Lok Sabha (Item No.2164) and whether the
Parliament has annulled or modified the Rules i.e. Railway Protection
Force Rules, 1987.
18. The official respondents have filed an affidavit stating that the
Rules i.e. Railway Protection Force Rules, 1987 have not been
modified or amended. The bulletins relied upon relate to the
resolution passed by the single House i.e. Rajya Sabha or Lok Sabha.
Thereafter, the other house did pass or accept the said resolution. In
fact, there have been subsequent amendments to the Rules, which
were tabled before the both Houses of Parliament, but no motion for
amendment or modification has been passed by the Rajya Sabha and
Lok Sabha. Therefore, the provisions and Rules pertaining to
deputation remained unchanged. This shows why the petitioners are
aggrieved.
19. There is another aspect, which must be dealt with at this stage.
Vide order dated 2nd May, 2016 passed in the present writ petition, a
Division Bench of this Court had referred to Section 19 of the Railway
Protection Force (Amendment) Act, 1985 and that sub-sections (4)
and (5) were inserted after section 21 in the Principal Act i.e. Railway
Protection Force Act, 1957. It was accordingly recorded that a person
on deputation cannot be appointed as a member of Railway Protection
Force after the amendments. It was submitted that the relevant Rules,
namely, Rules 45 (partly), 54.1(c), 76 and 277 being contrary to
Section 19 of the Railway Protection Force (Amendment) Act, 1985,
were ultra vires to the parent statute and bad in law. Recording the
above, it was observed that the petitioner had made out a prima facie
case for grant of interim order. It was directed that recommendation
dated 27th April, 2016 for appointment of Mr. S.K. Bhagat, IPS as
Director General would not be given effect to till the next date of
hearing. Mr. S.K. Bhagat, however, had taken over the charge as
Director General before the interim order was passed as recorded in
the order dated 15th March, 2017. The interim order passed on 2nd
May, 2016 was, therefore, ineffective.
20. Thereafter, the petitioners had filed C.M. No.22874/2017
stating that Mr. S.K. Bhagat, who was appointed as the Director
General, has retired and a new Director General was likely to be
appointed by way of deputation.
21. In view of the interim order passed earlier on 2nd May, 2016,
this Bench vide order dated 3rd July, 2017 had directed that the
recruitment process, if any, could continue, but final appointment
order would not be issued till the next date of hearing. The said
interim order has continued. The respondents have stated that a new
incumbent for the post of Director General has been selected and
grave prejudice and harm is being caused in view of the interim stay.
They have also filed C.M. No.28396/2017 for vacation of stay.
However, we have not issued notice on the application as we had
reserved the judgment.
22. We refer the ratio of the decision in P.S. Rawal & Ors. (supra)
to a larger Bench for consideration. However, even in P.S. Rawal &
Ors. (supra), the Division Bench had concurred and accepted the
position that the Director General can be a deputationist. The
contention of the petitioner is that the aforesaid observations are mere
obiter and not the ratio. This aspect would possibly have to also be
examined and finally decided by the larger bench. We would observe
that at this stage it would not be proper to stay appointment to the post
of Director General, for several reasons. Paragraph 31 of the judgment
in the case of P.S. Rawal & Ors. does state that appointment to the
post of Director General was a possible exception. Thereafter, the
Bench observed that this was implicit in the provision i.e. Section 19
of the Railway Protection Force (Amendment) Act, 1985. Thus, the
Division Bench had observed that Director General could be a
deputationist. Thus the contention of the petitioners, prima facie, does
not appear to be correct or weighty.
23. In these facts and circumstances, we would hold that the
petitioner has not been able to make out a prima facie case to stall
appointment of a deputationist at the post of Director General.
Leaving the said post vacant would not be in the interest of good
administration and could cause irreparable harm and inconvenience.
Balance of convenience is thus not in favour of the petitioners, who
have prayed for stay of appointment of a deputationist on the said
post. In the past also, deputationists have been appointed to the post
of Director General. Accordingly, we vacate the stay granted vide
order dated 3rd July, 2017. However, we clarify that appointment so
made would be subject to the final outcome of the writ petition.
24. The matter will be placed before the Hon'ble the Acting Chief
Justice for constitution of a larger Bench to decide whether the ratio
expounded in P.S. Rawal & Ors. (supra) that Section 19 of the
Railway Protection Force (Amendment) Act, 1985 bars and prohibits a
deputationists from being appointed to the said service is correct.
25. Nothing contained in this order would be read as adjudicating or
deciding the issue, contesting the right of Indian Police Service
Central Association to appear in this litigation.
(SANJIV KHANNA)
JUDGE
(NAVIN CHAWLA)
JUDGE
AUGUST 21st, 2017
VKR/ssn
