DIPAK DAS AND ORS. Vs. UOI AND ORS.

JUDGEMENT

(1.) By the petition filed under Art. 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 Sec. 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 27.01997 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 27.01997 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 007.2008 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 27.1997 framed under the subject Act and the Rules. According to the respondents however, directive No. 18 dated 27.1997 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 4.12007, 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.