Delhi High Court
Dipak Das & Ors. vs Uoi & Ors. on 8 March, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on : December 14, 2016
% Judgment pronounced on: March 08, 2017
+ WP (C) 5657/2010
DIPAK DAS & Ors. ..... Petitioners
Through : Ms.Madhu Tewatia, Mr.Adhirath
Singh and Mr.Sachin Saini, Advs.
versus
UOI & Ors. ..... Respondents
Through :Mr.Rajan Sabharwal and Mr.Abhishek
Kumar Abhinav, Advs. for R-1 to 3.
Ms.Anjana Gosain, Mr.Rahul Singhal
and Mr.Ankur Chhibber, Advs. for
R-4 to 7.
CORAM:
HON'BLE MS. JUSTICE INDIRA BANERJEE
HON'BLE MR. JUSTICE ANIL KUMAR CHAWLA
JUDGMENT
A. K. CHAWLA, J.
1. By the petition filed under Article 226 of the Constitution of India,
the petitioners seek a writ of mandamus directing the respondents to
regularise their ad-hoc promotions as Head Constables (Band) RPSF in
terms of the policy directive No.18 dated 27.02.1997 framed under Rule
28 of the RPF Rules 1987 in short "the subject rules" read with Section 8
of the Railway Protection Force Act, 1957 in short "the subject Act";
simultaneously, seeking directions that the notification dated 21.07.2010
issued for the selection of Head Constable/Band in RPSF, was not
applicable to the petitioners. Consequentially, the petitioners seek to be
placed in the seniority of the regular Head Constables (Band) from the
date of accrual of regular vacancies.
2. Succinctly, the petitioners plead that the ranks held by the personnel
in the categories/units of Armourers, Dog Squad and Band were declared
ex-cadre in the RPSF by the respondents/DG-RPF and that, under the
subject Act and the rules framed thereunder, there was no provision for
induction and promotion in such said ex-cadre ranks. That, in exercise of
the power conferred under the subject Act and the rules, the DG, RPF had
issued directive No.18 dated 27.02.1997 containing the provisions for
governing/regulating the induction and promotion in such ex-cadre ranks
of Armourers, Dog Squad and Band. In the year 2000 (April/July/August),
the petitioners along with others were recruited as Constable (Band) in
RPSF and posted in the respective battalion of the RPSF. It is the case of
the petitioners that they were recruited as Constable (Band) in RPSF
against regular sanctioned vacancies in accordance with the procedure
prescribed under Directive 18 dated 27.02.1997 and had also undergone
the prescribed mandatory training of 15 months for being appointed as
Constable (Band) and therefore, their appointment was regular in nature.
In the next promotional post of Head Constable (Band), though, it was not
so provided in the directives, the Railway Board has been granting
promotion to the post of Head Constable (Band) after they completed a
period of 8 years as Constable (Band), subject to fulfilment of other
eligibility criteria stipulated in Directive 18 i.e. Trade Test, viva voce and
record, which is the selection process by DPC. According to the
petitioners, for their promotion as Head Constable (Band), a regular
selection process was undertaken by the respondents on 02.07.2008 at
6BN/RPSF/BBS/Delhi against regular substantive vacant posts of 24
Head Constables (Band) (including 3 anticipated vacancies) and for the
purpose, a regular DPC was constituted in terms of Directive 18 as was
then applicable and the DPC had so conducted, the Trade Test and viva
voce under Rule 70 and the Directive 18 for their such selection. It is
pleaded that on the conclusion of such selection process, only 22
candidates i.e. the petitioners qualified to be promoted as Head Constables
(Band). Vide Office Order dated 20.10.2008, the competent authority
granted approval for the ad-hoc promotion of the petitioners as Head
Constables (Band), RPSF. It is the case of the petitioners that vide order
dated 20.10.2008, the respondents had also promoted and approved
regularisation of two (2) Sub-Inspectors (Band) and three (3) ASI (Band)
on ad-hoc basis after conducting similar selection process as was
conducted viz-a-viz the petitioners. In this background, the petitioners
assail office order dated 21.7.2010 directing all the Constables (Band),
who have rendered 8 years of regular service in the grade and have
successfully completed young bandsmen's post (or equivalent) to attend
the selection for promotion as Head Constables (Band) in terms of Rule
71.1 and 71.2 of the subject rules. According to the petitioners, the office
order dated 21.07.2010 was not applicable to the petitioners in as much as
they had already appeared for the regular selection process and stood
qualified. Petitioners have thus prayed for being regularised in terms of
the directive No.18 dated 27.2.1997 framed under the subject Act and the
Rules. According to the respondents however, directive No. 18 dated
27.2.1997 whereby the ranks held by the personnel in the categories of
armourers, dog-squad and band in RPF/RPSF were made ex-cadres, was
superseded with the issue of another directive 18 on 18.7.2006
modified/amended vide notification dated 13.9.2006 and 4.12.2007, and,
thereby, only the personnel working in armourer and dog-squad were to
be ex-cadres. According to the respondents, the band was made a separate
cadre vide Gazette notification issued vide GSR No. 527 (E) dated
1.8.2007 amending RPF Rules, which, inter-alia laid down the years of
service put in different ranks for promotion to the higher rank of band
cadre and that prior to the said notification, there were no such
stipulations. It is also the case of the respondents that the regular selection
in band cadre was to be held as per the guidelines provided in directive 27
dated 21.7.2010 read with Gazette notification dated 1.8.2007. These
guidelines provided for selection as per rule 70 i.e. on the basis of
seniority-cum-suitability. Thus, according to the respondents, the selection
for promotional posts of Head Constable (Band) was to be conducted in
consonance with the amended rules dated 1.8.2007 and directive 27 and in
pursuance thereof only, the selection process was initiated vide
notification dated 21.7.2010. As for the regularisation of promotion of
five personnel (two SIs and three ASIs), respondents plead that they were
Ex-servicemen having physical and professional training and were so
exempted from initial training after recruitment but that was not the case
for the petitioners and therefore, the petitioners could not be treated at par
with them.
3. In the submissions of the ld. counsel for the petitioners, the
petitioners were promoted as Head Constables (Band) in July, 2008
having undergone a regular selection against regular vacant posts by DPC,
as per the then applicable rules and the guidelines i.e. directive 18 dated
27.2.1997, and therefore, the promotions of the petitioners were required
to be regularised and did not attract the petitioners to undergo a selection
process afresh as envisaged in the notification dated 21.7.2010. In the
other limb of the submissions, it was contended that the appointments
having been made through a regularly constituted DPC, the amended rules
of 2007 could not be enforced inasmuch as such, the amended rules could
not be applied to the vacancies that had occurred prior to its being and
against which, the petitioners had already been promoted. Also in the
submissions of the ld. counsel, the selection process for the petitioners
having been concluded earlier, as per the then applicable rules and the
guidelines, such process could not be over-reached and altered with the
issuance of the notification dated 21.7.2010, which lays down new
guidelines for the selection. It was also contended that the petitioners at
the time of appointment as Constable (Band) had undergone training of 15
months and, therefore, such training period was required to be reckoned
for qualifying for promotion as Head Constable (Band) RPSF and the
petitioners therefore, qualified the stipulation of 8 years of service as
Constable (Band) in the required grade. It was also strenuously contended
that the petitioners were promoted through a regular selection process as
per the then applicable rules and the guidelines and that their promotion as
Head Constable (Band) was not a stop gap arrangement or on temporary
basis on account of some exigency and therefore, the promotion so made,
though titled ad-hoc, should necessarily be construed to be on regular
basis. In support of such submissions, ld. counsel for petitioners placed
reliance on (2006) 4 SCC 1 Secretary, State of Karnataka and Others vs.
Umadevi and Others, (2011) 2 SCC 429 State of Rajasthan and Others
vs. Daya Lal and Others, (1998) 9 SCC 223 B.L.Gupta and Another vs.
M.C.D. and (1997) 6 SCC 406 L.K.Sukhija and Others vs. Union of India
and Others.
4. In the submissions of the ld.counsel for the respondents, however,
the directive 18 dated 27.2.1997 was superseded with directive 18 issued
on 18.7.2006 and thereby, the category of Band was taken out from the
post of Ex-cadre and therefore, the promotion to such post were to be
governed by the rules notified vide Gazette notification dated 1.8.2007
only. It was submitted that while as per the said notification dated
1.8.2007, the rule for promotion was specified to be governed under Rule
70 of the subject Rules, which is a procedure for promotion of enrolled
members of the Force, the guidelines for DPC for holding selection under
Rule 70 is stipulated in Rule 71 of the Subject Rules and according to
Rule 71.3, a panel is to be drawn from amongst the candidates securing
60% or more marks in the order of their respective seniority in the rank
and that, a Constable for the promotion of Head Constable can be
considered only if, he has completed 8 years regular service in the grade.
As for the petitioners, it was submitted that the petitioners were given
ad hoc promotion to the post of Head Constable vide order dated
20.10.2008 as the guidelines for promotion were not finalised though the
rules for promotion were notified and that, in the communication dated
20.10.2008, it was clearly stated that the promotions were ordered purely
on ad-hoc basis till a regular selection is held and it did not confer any
right on the staff to claim seniority or other benefit of regular promotion.
Also, in his submissions, the initial training of the petitioners was a
condition precedent to their appointment as Constables (Band) and
therefore, their appointments have to be reckoned from the date from
which they have been working against the post. In support of his
submissions ld. counsel for respondent equally adverted to State of
Rajasthan and Secretary, State of Kerela cases (supra) relied upon by the
ld. counsel for the petitioners.
5. Vide directive No.18 dated 27.02.1997 issued under rule 28 of 'the
subject rules' read with Sec. 8 of 'the subject Act', the Director General
issued the directions for the ranks held by the personnel in the
categories/units of armourers, dog squad and band to be ex-cadre ranks
and also issued instructions for regulating the induction and promotion in
such ex-cadre ranks, within the lawful authority vested in him, is not in
question. In pursuance of this directive No.18 dated 27.02.1997, the
petitioners joined as Constables in RPF/RPSF (Band) during
April/May/July 2000 is equally not in question. It is a matter of record
that in exercise of power conferred under Sec. 21 of the 'the subject Act',
the Central Government notified rules to be called Railway Protection
Force (Amendment) Rules, 2007 in short 'the Rules 2007' to amend the
Railway Protection Force (Band) (Recruitment and Promotion) Rules
1987. The purported Railway Protection Force (Band) (Recruitment and
Promotion) Rules 1987 did not surface before this Court nor any
explanation for its non-availability has come to be given on behalf of the
respondents inspite of the fact that the petitioners pointed out for their
absence. It appears that there are no Railway Protection Force (Band)
(Recruitment and Promotion) Rules 1987 but for the Railway Protection
Force Rules 1987 i.e. 'the subject rules' and that, by the said amendments,
'the subject Rules' only were amended. A constructive reading of
notification dated 1.8.2007 would also necessarily imply so, in as much
as, it reads as under :
" MINISTRY OF RAILWAYS
(RAILWAY BOARD)
NOTIFICATION
New Delhi, the 1st August, 2007
G.S.R. 527(E). - In exercise of the powers conferred by
Section 21 of the Railway Protection Force Act 1957 (23
of 1957), the Central Government hereby makes the
following rules further to amend the Railway Protection
Force (Band) (recruitment and promotion) Rules 1987,
namely :-
1. (1) These rules may be called the Railway
Protection Force (Amendment) Rules 2007.
(2) They shall come into force on the date of their
publication in the Official Gazette.
2. In the Railway Protection Force Rules, 1987,
after rule 45.1, the following rule 45.1A shall be
inserted, namely:-
"45.1A. The qualifications, method of recruitments,
classification and scale of pay etc., for the posts of
Inspector (Band Master), Sub-Inspector (Band
Master), (Assistant Sub-Inspector (Band), Head
Constable (Band), Constable (Band) shall be as
specified in Schedule-VI annexed to these Rules." "
The fact thus remains that with the said notification, 'the subject
Rules' came to be amended to incorporate Rule 45.1A which provided for
the qualifications, method of recruitment, classification and scale of pay
etc. for the post of Inspector (Band Master), Sub-Inspector (Band Master),
Assistant Sub-Inspector (Band), Head Constable (Band) and Constable
(Band). Relevant to the subject, it is to be noted that with the notification
dated 1.8.2007, rule 45.1A came to be inserted providing for the
qualifications, method of recruitments, classification and scale of pay etc.
for the post of Inspector (Band Master), Sub-Inspector (Band Master),
Assistant Sub-Inspector (Band), Head Constable (Band) and Constable
(Band) inter-alia as regards the promotion from the rank of Constable
(Band) to Head Constable (Band). During the currency of the amended
rules, the petitioners came to be promoted as Head Constable (Band) on
ad-hoc basis following directive no. 18 dated 27.2.97. Though, the
petitioners were so selected and promoted through the process of a DPC
following directive no. 18 dated 27.2.97, the fact remains that at the
relevant point of time of their such selection and appointment as Head
Constable (Band) on ad-hoc basis, the inserted rule 45.1A, which had the
statutory effect, was in operation. During the currency of such inserted
rules only, the directive no. 27 dated 21.4.2010 for the selection for
promotion to the rank of Head Constable (Band) in RPSFA on regular
basis came to be issued. Notification dated 21.7.2010 is the outcome of
directive no. 27 dated 21.4.2010, which is not shown to be in violation of
the newly inserted rule 45.1A nor any contention assailing it on any
ground of any illegality or infirmity has come to be made.
6. In the given factual conspectus, does the selection and promotion
on ad-hoc basis through a DPC, invest the petitioners with a right to be
regularized in the rank of Head Constable (Band), is the moot question for
consideration. To assert so, ld. counsel for the petitioners strenuously
contend that in the absence of any provision in the subject rules as regards
the induction, appointment and promotion in the ex-cadre rank of band
etc. statutory directive no.18 had come to be issued and it was sacrosanct
for the purposes of the eligibility criteria/qualifications/selection
procedure for the ex-cadre ranks/post of band in RPSF/RPF and would
ipso fact also apply for the purposes of promotion to the higher ranks. Of
course, directive no. 18 dated 27.2.97 by itself states that there was no
provision in the RPF Rule 1987 regarding the induction and promotion in
the ex-cadre posts of Armourers, Dog Squad and Band and for meeting
such requirement only, the instructions, thereby, had come to be issued for
regulating the induction and promotion in such ex-cadre ranks. It is
however to be noted that this directive no.18 while providing for such
instructions, equally stipulated as under :
"..........................................................................................
...........................................................................................
2(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
Railways/RPSF will be maintained and the eligible staff
will be considered/called for promotion tests/selections
at the appropriate time.
...........................................................................................
...........................................................................................
(i) The Constables of these ex-cadres posts who are
promoted as Naiks in the Executive cadre will be entitled
to the rank and pay applicable to Naiks and will be
deemed to be senior to the other Constables working in
the ex-cadre posts. The CSCs will issue orders adjusting
the ex-cadre strength with the Executive Cadre
accordingly.
...........................................................................................
...........................................................................................
(l) Re-employment of such personnel with the requisite
qualifications and experience and from the same trade
will be considered whenever these ex-cadre posts need
strengthening with pre-qualified personnel. These
personnel will serve in the ex-cadre posts for which they
are appointed and will seek promotion only within the
ex-cadre category to which they were appointed. They
will, in no case, exceed 10% of the ex-cadre strength for
the particular trade. For this category of induction, the
rank, qualification etc. will be as shown in Schedules I,
II and III of this Directive. ........................
...........................................................................................
...........................................................................................
(m) The ex-cadre staff, when promoted in the executive
cadre, will undergo the pre-promotion courses/trainings
prescribed for the Executive Cadre. During the said
training, the badges of rank worn, if any, will be the
same as those for the Executive Cadre trainers.
However, the pay of the ex-cadre officials will not be
reduced during the period of the training."
A constructive reading of the above-said instructions
contained in directive no.18 dated 27.2.97 leaves no doubt that the staff
appointed to the ex-cadre posts inter alia Band, were to hold lien in the
executive cadre of the Zonal Railways/RPSF. This necessarily implies
that the staff taken in the ex-cadre ranks of RPF/RPSF under the said
directive no. 18 dated 27.2.97 was strictly on ad-hoc basis. It can
therefore, be safely said that the petitioners were not taken in the ex-cadre
ranks of Constable (Band) on regular basis. Be that as it may, it is the own
case of the petitioners that they were promoted as Head Constable (Band)
on ad-hoc basis. Their such ad-hoc promotion was made after the
issuance of notification dated 1.8.2007, when the subject rules came to be
amended and the qualifications, method of recruitment, classification and
scale of pay etc. for the posts inter alia Head Constable (Band) came to be
stipulated thereby. Undisputedly, the petitioners promotion as Head
Constable (Band) was not in conformity with the newly inserted rule
45.1A in the subject rules and therefore, their such promotion cannot be
said to be in consonance with the then applicable rules, which had the
statutory force. Though, they came to be selected as Head Constable
(Band) through a DPC, their promotion was ad-hoc and not on regular
basis. Even otherwise, admittedly, the then applicable rules inserted vide
notification dated 1.8.2007 inter alia prescribed the eligibility criteria for
selection to be 8 years of regular service as Constable (Band). None of
the petitioners is shown to be meeting the eligibility criteria of being in
regular service of Constable (Band) for 8 years. An ad-hoc promotion per
se cannot be treated to be regular. Ad-hoc promotion even though made
through a process of DPC, cannot be said to be for the purposes of regular
promotion especially, when it was not inconsonance with the then
applicable rules. It has therefore, to be a stop gap arrangement till the
time the regular promotions come to be made as per the then applicable
rules. Ad-hoc promotions therefore, do not invest any right in the
petitioners to claim regularization, as prayed for. Notification dated
21.7.2010 which came to be issued for selection of Head Constable
(Band) which is not shown to be in contravention with the then applicable
rules, therefore, cannot be faulted with. Here, it is worth noting that this
notification is not a directive issued under rule 28 of the subject rules and
the subject Act. It only provided for an intimation and the basis for
selection inviting the eligible candidates to join the selection process. For
the reasons unexplained, the petitioners have not assailed the directive 27
dated 21.4.2010, which had come to be issued on the formation of
separate cadre of Band with the insertion of rule 45.1A and notified on
1.8.2007. Petitioners did not choose to assail directive 27 dated
21.4.2010, we, assume, petitioners refrained, because it did not suffer
from any illegality. Be that as it may, directive 27 dated 21.4.2010 having
been not assailed by the petitioners, in our view, challenge to notification
dated 21.7.2010 is meaningless. Suffice to say, by the said notification,
which is in consonance with directive 27, all eligible Constables (Band)
were invited for being selected and promoted as Head Constable (Band)
on regular basis. Merely, the directive 27 or the notification dated
21.7.2010 came to be issued subsequent to the promotion of the
petitioners on ad-hoc basis, can the statutory provisions, be overlooked?
To our mind, certainly not. At the relevant time of their ad-hoc
promotion, the ex-cadre rank was governed in and by virtue of notification
no. G.S.R. 527 (E) dated 1.8.2007, whereby, rule 45.1A had come to be
inserted in the subject rules. In the face of such inserted rule 45.1A, the
promotion of the petitioners as Head Constable (Band) on ad-hoc basis
than being on regular basis, we do not find to be suffering from any
illegality or arbitrariness.
7. As regards the candidates for two (2) SI (Band) and three (3) ASI
(Band) on ad-hoc basis having been regularized in the similar
circumstances as were the petitioners placed, the respondents contend that
they were the ex-servicemen and therefore, the petitioners could not draw
parity with them. We do not deem it necessary to look into this aspect of
parity for the simple reason that on the date of the appointment of the
petitioners as Head Constable (Band) on ad-hoc basis, the newly inserted
rule 45.1.A, which had the statutory force, was in operation and any
appointment made on regular basis in contravention thereof, would be a
violation thereof.
8. None of the judgments relied upon by the ld. counsel for the
petitioners is of any avail to the petitioners in the given facts and
circumstances of the case. Secretary, State of Karnataka & Ors. (supra)
case by itself clarifies that there cannot be any legitimate expectation for
being absorbed, regularized or granted permanent continuation in public
employment unless it violates their rights under Article 14 & 16. In view
of the insertion of rule 45.1A in the subject rules, any expectation there-
against, would be contrary to the constitutional scheme. In judgment
(supra), the Hon'ble Supreme Court observed as under :
"45. While directing that appointments, temporary or
casual, be regularised or made permanent, the courts are
swayed by the fact that the person concerned has worked
for some time and in some cases for a considerable
length of time. It is not as if the person who accepts an
engagement either temporary or casual in nature, is not
aware of the nature of his employment.
...........................................................................................
...........................................................................................
................ In other words, even while accepting the
employment, the person concerned knows the nature of
his employment. It is not an appointment to a post in the
real sense of the term. The claim acquired by him in the
post in which he is temporarily employed or the interest
in that post cannot be considered to be of such a
magnitude as to enable the giving up of the procedure
established, for making regular appointments to available
posts in the services of the State................................... "
In view of the aforegoing, the reliance placed upon judgment
(supra) is misplaced. L.K. Sukhija's case (supra) is equally of no avail
inasmuch, it was a case, where the promotions were described ad-hoc in
the absence of recruitment rules having been finalised. In the case in
hand, as observed to earlier, the separate cadre of Band had come to be
formed and the newly inserted rule 45.1A was already in force. State of
Rajasthan & Ors. case (supra) is equally of no avail to the petitioners
inasmuch as, the ad-hoc promotion of the petitioners was not in
consonance with the then applicable rules. Merely, the petitioners came
to be promoted on ad-hoc basis through a DPC, it cannot be implied
therefrom that their promotion was on regular basis. Contention raised to
the contrary is therefore, rejected.
9. For the foregoing reasons, the petition fails. Interim order dated
19.8.2010 stands vacated. Keeping in view however, the peculiar facts and
circumstances of the case, it is directed that any of the financial benefits
availed of by the petitioners in the ex-cadre post of Head Constable
(Band) on ad-hoc basis, which may be higher than their original cadre
(executive cadre), till the time of their reversion, shall not be recoverable
from the petitioners. Writ petition stands disposed off accordingly.
A. K. CHAWLA, J.
INDIRA BANERJEE, J.
MARCH 8, 2017
vp/rc
