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2011 DIGILAW 536 (GUJ)

RITESH S/O VIJAY KUMAR YADAV v. UNION OF INDIA

2011-07-14

G.B.SHAH, V.M.SAHAI

body2011
JUDGMENT (Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. The questions that arise for consideration in this writ petition are whether where 601 posts for Constable Railway Protection Force and 72 posts for Constable Railway Police Special Force are advertised to filled by selection, then after selection all 673 could be filled as Constable Railway Police Special Force? Whether the post of Constable Railway Protection Force and Constable Railway Police Special Force are interchangeable and inter-transferable ? 2. The petitioner belongs to OBC category. He is a graduate and holds a diploma in Electrical Engineering. An Employment Notice No.01/2007 dated 1.6.2007 was published by the Chief Security Commissioner, Railway Protection Force, Western Railway, Mumbai by which 601 vacancies in Railway Police Force (for short RPF) cadre and 72 vacancies in Railway Police Special Force (for short RPSF) cadre were advertised. Amongst the advertised vacancies, inter-se reservation quota was also fixed. The selection was on the basis of written test and interview. The last date of application was 24.7.2007. The petitioner applied in pursuance of the advertisement. He was called for written test in which he qualified. Thereafter, he was called for interview in which he was also successful. He was called for medical examination by letter dated 12.4.2008 as he was being considered for enlistment as constable (Scale of Rs.3050-4590) in Executive Branch of RPF. In pursuance of this letter dated 12.4.2008, the petitioner was medically examined on 30.4.2008 and he was found fit for constable (Class) B/one RPF branch. He joined the training at RPF Training Centre at Chinkhill. After the training was completed, the result was declared on 2.6.2009 and the petitioner was successful. The petitioner was posted as a constable in RPSF by letter dated 2.6.2009 though this letter was a communication between officers of the department and no appointment letter was issued to the petitioner. Since the petitioner was selected for RPSF, therefore, instead of approaching the respondents for issuance of letter of appointment, he filed the instant writ petition praying that he should he appointed as constable in the Executive Branch of the RPF and he could not be appointed in RPSF as the petitioner was selected for RPF and not for RPSF. 3. In the affidavit-in-reply filed by the respondents, it has been stated that there is only one force RPF. One of the units of RPF is RPSF. 3. In the affidavit-in-reply filed by the respondents, it has been stated that there is only one force RPF. One of the units of RPF is RPSF. Both posts are interchangeable and inter-transferable. It is stated that the petitioner was selected in RPF and he can be appointed on the post of constable RPSF instead of constable in RPF. 4. We have heard Mr. K.K.Shah, learned counsel appearing for the petitioner and Ms. Sejal K. Mandavia, learned counsel appearing for the respondents. 5. The Deputy Director, Government of India, Ministry of Railways (Railway Board) issued a letter dated 26.3.2007 to The Chief Security Commissioners/RPF All Railways and The Chief Security Commissioner/RPSF, Rail Bhavan, New Delhi communicating Standing Order 81 for the recruitment of Constables in RPF/RPSF. In paragraph 2 (a) to (d) of the Standing Order No.81 dated 26.3.2007 determination and notification of vacancies was laid down as under: "2. Determination And Notification Of Vacancies :- (a) The number of existing and anticipated vacancies upto 31st December of the following year shall be assessed by each CSC for his Zonal Railway and CSC/RPSF for RPSF. The concerned CSC shall then notify the vacancies of his Zonal Railway / RPSF. (b) Post-based reservation for the purpose of determining the vacancies to be filled up in the reserved categories shall be followed. instructions of the Government for introduction and maintenance of post-based roster shall also be followed scrupulously. (c) Efforts shall be made to fill up to 5% of the vacancies by recruiting female candidates. (d) Reservation for ex-servicemen will be 10% of the vacancies under the appropriate category (UR, SC, ST and OBC)" The advertisement was issued on 1.6.2007 by the Chief Security Commissioner/RPF, Western Railway, Church Gate, Mumbai as per Standing Order No.81. The number of existing and anticipated vacancies upto 31st December of the following year of constables were assessed and post-based reservation for the purpose of determining the vacancies to be filled up in the reserved categories was followed. It is not disputed that in the advertisement the posts of constable RPF and constable RPSF were separately advertised. The number of existing and anticipated vacancies upto 31st December of the following year of constables were assessed and post-based reservation for the purpose of determining the vacancies to be filled up in the reserved categories was followed. It is not disputed that in the advertisement the posts of constable RPF and constable RPSF were separately advertised. The relevant part of the advertisement is extracted below :- RAILWAY PROTECTION FORCE, WESTERN RAILWAY, CHURCHGATE, MUMBAI - 20 NOTIFICATION RECRUITMENT FOR THE POST OF CONSTABLE (MALE/FEMALE) IN RPF/RPSF Employment Notice No.:- 01/2007 Date:01.06.2007 Applications are invited from eligible Male/Female candidates for filling up the post of Constables in Scale of Rs.3050-4590 in the Executive Branch of Railway Protection Force / Railway Protection Special Force of the Indian Railway. 1. No. of vacancies for RPF Vacancies for RPSF Note : 1. The above vacancies are provisional and may vary. The no. of actual vacancies is likely to increase at the time of recruitment. 2. The Selected candidates are liable to serve anywhere in India and in the RPF or RPSF and may be allotted to RPF/RPSF after selection. 3. ...................... 4. ......................." 5.1. It was stated in the advertisement itself in note:2 that the selected candidates were liable to serve anywhere in India and in RPF or RPSF and they may be allotted to RPF/RPSF after selection. After the petitioner was successful in the written test and interview a letter dated 12.4.2008 was issued to him calling for medical examination clearly stating therein that as a result of the test and interview he is being considered for enlistment as constable (Scale Rs. 3050-4590) in executive branch of RPF on terms and conditions which would be communicated to him later on after successfully passing the prescribed medical examination. In the medical examination held on 30.4.2008, he was found to be fit for the post of Constable (Class)B/one RPF branch. 5.2. From the aforesaid, it is clear that the petitioner was selected for the post of constable in RPF and was also medically examined for the said post. He was not selected or medically examined for the post of constable in RPSF. In the internal communication made by the Chief Security Commissioner on 2.6.2009, the petitioner was shown to have been selected for the post of constable in RPSF for which the petitioner was not selected nor was he medically examined. He was not selected or medically examined for the post of constable in RPSF. In the internal communication made by the Chief Security Commissioner on 2.6.2009, the petitioner was shown to have been selected for the post of constable in RPSF for which the petitioner was not selected nor was he medically examined. In the result declared on 2.6.2009, the petitioner has been shown to have been selected for the post of RPSF. Therefore, the petitioner did not approach the respondents for joining as constable RPSF and filed the instant writ petition claiming that he was selected for the post of constable in RPF and he has been illegally allotted by the respondents the cadre of constable RPSF. 5.3. The petitioner earlier had made a representation to the Director General, Railway Protection Force, New Delhi for posting in RPF which was forwarded on 28.5.2009 by the Divisional Security Commissioner to the Chief Security Commissioner. The Chief Security Commissioner informed on 5.6.2009 to the Divisional Security Commissioner that the petitioner will have to go to RPSF as per order of DG/RPF/Railway Board. This order was communicated by the Chief Security Commissioner to the Divisional Security Commissioner on 9.6.2009. Senior Divisional Security Commissioner/RPF/BRC, communicated this order on 12.6.2009 and on the same day the petitioner was relieved from training for joining as constable RPSF. The respondents have not brought on record the order passed by Director General, Railway Protection Force, New Delhi by which the representation addressed to him had been decided. Only communication letters dated 5.6.2009 and 9.6.2009 have been filed. Be that as it may. The instant writ petition was filed by the petitioner on 10.6.2009 much earlier than the decision was communicated by the Divisional Security Commissioner. Therefore, in absence of the actual order passed by the Director General, Railway Protection Force, New Delhi the petitioner could not challenge it before this Court and the order passed by Director General, Railway Protection Force, New Delhi is liable to be ignored. Since we have taken up this petition for decision on merits the petitioner cannot be non-suited for not challenging the order passed by the Director General, Railway Protection Force, New Delhi which had not been brought on record. 5.4. From the advertisement issued by the respondents, it is clear that the respondents have separately advertised vacancies of RPF and RPSF by mentioning clearly their inter-se reservation quota. 5.4. From the advertisement issued by the respondents, it is clear that the respondents have separately advertised vacancies of RPF and RPSF by mentioning clearly their inter-se reservation quota. In note-2, it was clearly mentioned that after selection, a candidate may be allotted to RPF or RPSF. In all 673 candidates were selected as total number of vacancies for RPF was 601 and for RPSF 72 vacancies were available. The question whether more than number of vacancies advertised for a post could be filled is no longer res integra. The Apex Court in Prem Singh and Others v. Haryana State Electricity Board and others (1996) 4 SCC 319 in paragraphs 25 and 26 has held as under: "25. From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case. 26. In the present case, as against the 62 advertised posts the Board made appointments on 138 posts. The selection process was started for 62 clear vacancies and at that time anticipated vacancies were not taken into account. Therefore, strictly speaking, the Board was not justified in making more than 62 appointments pursuant to the advertisement published on 2-11-1991 and the selection process which followed thereafter. But as the Board could have taken into account not only the actual vacancies but also vacancies which were likely to arise because of retirement etc. Therefore, strictly speaking, the Board was not justified in making more than 62 appointments pursuant to the advertisement published on 2-11-1991 and the selection process which followed thereafter. But as the Board could have taken into account not only the actual vacancies but also vacancies which were likely to arise because of retirement etc. by the time the selection process was completed it would not be just and equitable to invalidate all the appointments made on posts in excess of 62. However, the appointments which were madeagainst future vacancies-in this case on posts which were newly created-must be regarded as invalid. As stated earlier, after the selection process had started 13 posts had become vacant because of retirement and 12 because of deaths. The vacancies which were likely to arise as a result of retirement could have been reasonably anticipated by the Board. The Board through oversight had not taken them into consideration while a requisition was made for filling up 62 posts. Even with respect to the appointments made against vacancies which arose because of deaths, a lenient view can be taken and on consideration of expediency and equity they need not be quashed. Therefore, in view of the special facts and circumstances of this case we do not think it proper to invalidate the appointments made on those 25 additional posts. But the appointments made by the Board on posts beyond 87 are held invalid. Though theHigh Court was right in the view it has taken, we modify its order to the aforesaid extent. These appeals are allowed accordingly. No order as to costs." 5.5. In another decision the Apex Court in Rakhi Ray and others vs. High Court of Delhi and others (2010) 2 SCC 637 , in paragraphs 7, 11 and 12 has held as under: "7. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstances and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law. (Vide Union of India v.Ishwar Singh Khatri, Gujarat State Dy. Executive Engineers' Association v. State of Gujarat, State of Bihar v. Secretariat Assitt. Successful Examinees Union 1986, Prem Singh v. Haryana SEB and Ashok Kumar v. Banking Service Recruitment Board.)" 11. In Mukul Saikia v. State of Assam this Court dealt with a similar issue and held that "if the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised." The select list "got exhausted when all the 27 posts were filled." Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The "currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies" and said course is impermissible in law.(SCC p 394,para 33). 12. In view of the above, the law can be summarised to the effect that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India, thus, a nullity, inexecutable and unenforceable in law. In case the vacancies notified stand filled up, the process of selection comes to an end. Waiting list, etc. cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification/ advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service any more." The law laid down by the apex court is that in recruitment, more than the advertised post cannot be filled and recruitment of candidates in excess of advertised vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to improper exercise of power and only in a rare and exceptional circumstances and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies which is not permissible in law. 5.6. In para-11 of further affidavit-in-reply filed on behalf of the respondents Mr. Ram Gopal Meena, it has been stated as under:- "I say that Director General has taken a decision on 2.3.2009 that all the selected candidates have taken training at Chinkhill have been allotted for posting in RPSF.” From Annexure-II dated 30.4.2008 filed along with affidavit-in-reply by Rafik Ahmed, 297 candidates were sent for training at Chinkhill training centre, 250 candidates were sent for training at Valsad training centre and 126 candidates were sent for training at Dhanbad training centre. However, in paragraph 7 he had stated that 255 candidates had undergone training at Chinkhill training centre. The learned counsel for the respondents Ms. Sejal Mandavia has produced Mr. Sumit Sandalia, Senior Divisional Security Commissioner, Ahmedabad Division, Ahmedabad who has been authorised to make a statement before this Court, and he has stated before us that all 673 candidates who were selected and who passed out training successfully had been posted in RPSF except female candidates, who could not be posted in RPSF. The respondents have not brought on record the decision of the Director General, Railway Protection Force, New Delhi dated 2.3.2009 that all the selected candidates have taken training at Chinkhill have been allotted for posting in RPSF. It has not been stated in the affidavit in reply that any policy decision was taken by the Director General, Railway Protection Force or the Government that rare and exceptional circumstances or emergent situation existed due to which all 601 vacancies of RPF were converted after the selection, in vacancies of RPSF, in utter disregard of the advertisement. The statement made by Mr. The statement made by Mr. Sumit Sandalia, Senior Divisional Security Commissioner, Ahmedabad Division, Ahmedabad before us that all 673 candidates who were selected and who passed out training successfully had been posted in RPSF except female candidates, also does not help the respondents in as much in his affidavit-in-reply Mr. Ram Gopal Meena, Divisional Security Commissioner, Ahmedabad had stated in paragraph 11 that the Director General has taken a decision on 2.3.2009 that all the selected candidates have taken training at Chinkhill have been allotted for posting in RPSF. At Chinkhill only 297 or 255 candidates underwent training. Then without their being any policy decision how all 673 selected candidates could be sent to RPSF. No policy decision 2.3.2009 or any other policy decision for sending 297 or 673 candidates have been brought on record. The statement of Mr. Sumit Sandalia, Senior Divisional Security Commissioner, Ahmedabad Division, Ahmedabad, is not worth placing any reliance. 5.7. The respondents have committed an error in posting the petitioner as constable RPSF though the petitioner was selected as constable RPF. Merely because training of RPF and RPSF is jointly held at the training centre, or if joint training is imparted, that will not result in changing the cadre from RPF to RPSF or RPSF to RPF. The respondents ought to have issued an appointment letter to the petitioner as constable RPF and the argument of the learned counsel for the respondents that once they have declared the result, it was the duty of the petitioner to approach the respondents and ask for appointment letter as constable RPSF is unfounded. All selected candidates are required to be issued appointment letters by Railways at the addresses given in their applications and it is not for the candidates to go to the office concerned seeking their appointment letters. When there were only 72 vacancies in RPSF cadre, then the respondents could not fill more than 72 vacancies in RPSF and the remaining 601 vacancies of RPF were required to be filled by candidates selected for the post of constable RPF. The documents on record clearly demonstrate that the petitioner was selected and his medical examination took place and he was called for training for the post of constable RPF. He was illegally and arbitrarily deprived appointment on the post of constable RPF and he is entitled for the post of Constable RPF. 6. The documents on record clearly demonstrate that the petitioner was selected and his medical examination took place and he was called for training for the post of constable RPF. He was illegally and arbitrarily deprived appointment on the post of constable RPF and he is entitled for the post of Constable RPF. 6. The learned counsel for the respondents Ms. Sejal Mandavia has vehemently urged that there is no difference between the post of RPF and RPSF, both are interchangeable and intertransferable, therefore, no one can claim that he had been selected only for RPF. Both the posts are within RPF force and are governed by the provisions of The Railway Protection Force Act, 1957 (for short the Act) and The Railway Protection Force Rules, 1987 (for short the Rules). The word "force" has been defined in section 2(a) of the Act and constitution of "force" has been provided in section 3 of the Act. Section 21 gives powers to Central Government to frame rules. The Central Government had framed Rules of 1987 in exercise of its power under section 21 of the Act. Rules 7 to 7.6 deals with Railway Protection Special Force. Rule 7.1 provides that RPSF would be a specially trained unit. For the purpose of this case, Rule 7.5 is relevant. It is necessary to extract Rule 7.5 as under: " 7.5. Enrolled members of the Force who constitute the Railway Protection Special Force shall form a separate cadre for the purposes of fixation of seniority." The aforesaid Rule 7.5 clearly provides that RPSF was formed as a separate cadre for the purpose of fixing seniority. Rule 89.2 relates to constables. It provides that on successful completion of initial training, direct recruits shall be distributed for enrollment amongst the divisions, production units and RPSF battalions in such manner as may be considered necessary by Chief Security Commissioner concerned in public interest. 6.1. From the reading of Rules 7.1, 7.5 and 89.2 conjointly, it is clear that RPF and RPSF are two different cadres and on successful completion of the training, constables are posted amongst different divisions of the Force, RPF or RPSF battalion, as it is considered necessary by the Chief Security Commissioner in the public interest. The constables recruited for RPSF are imparted special training. 6.2. In RPF, there are two branches at present which are mentioned in Rule 16.1. The constables recruited for RPSF are imparted special training. 6.2. In RPF, there are two branches at present which are mentioned in Rule 16.1. The Executive Branch and the Prosecution branch. The Executive Branch has different wings as provided under Rule 17.1. The Prosecution branch finds mention in Rule 18.1. From the perusal of the aforesaid Rules, it is clear that RPF and RPSF are different cadres and members of the force are to work in RPF or RPSF as per their selection. 6.3. Learned counsel for the respondent has placed reliance on Rule 91 of the Rules which provides for inter-zonal transfer. This Rule is with regard to transfer. Rule 91 applies to superior officers of the force and Rule 91.2 applies to the members of the force. It provides that all inter-zonal transfers of enrolled members of the force shall be ordered by Chief Security Commissioner after obtaining concurrence from the Director General. Rule 91 is not applicable to the controversy in dispute. 6.4. Neither in the Act nor in the Rules, it had any where been provided that posts of RPF and RPSF are the posts belonging to the same cadre or they are inter-changeable or inter-transferable. Further, it has also not been provided that a constable working in RPF can be transferred as constable in RPSF. Rule 99, 99.1 and, 99.2 provides for determination of seniority on inter-zonal transfer. Rule 99 relied by the learned counsel for the respondents is not relevant. 6.5. Rule 16.4 is important. Further, it has also not been provided that a constable working in RPF can be transferred as constable in RPSF. Rule 99, 99.1 and, 99.2 provides for determination of seniority on inter-zonal transfer. Rule 99 relied by the learned counsel for the respondents is not relevant. 6.5. Rule 16.4 is important. It is necessary to extract Rule 16.4 as under :- "16.4 No enrolled member of the Force shall be eligible for transfer from one branch to another except for filling up of vacancies of and below the rank of Assistant Sub-Inspector in the Prosecution branch :- Provided that if it is intended to transfer an enrolled member permanently from one branch to another, the approval of the Director -General shall invariably be obtained." This rule came up for consideration before a Division Bench of Andhra Pradesh High Court in Writ Appeal No.1357 of 2000, Writ Appeal No.108 of 2001, Writ Petition No.24972 of 2000 and Writ Petition No.1434 of 2001 The Chief Security Commissioner, South Central Railway, Railway Protection Force, Rail Nilayam, Secunderabad and another v. H. Srinivasa Rao and others decided on 8th March, 2001, held in para-26 as under: "However, so far as the orders of transfer of some of the petitioners in W.P.No. 20664 of 1997 to Railway Special Protection Force during the pendency of the Writ Petition and the transfer of personnel from R.S.P.F. to R.P.F. is concerned, the same must be held to be illegal. The provisions of Railway Protection Force Rules do not contemplate that there can be a transfer from one cadre to another cadre. Rule 16.4 as noticed hereinbefore, must be given effect to as it is a well settled law that in absence of any statutory rule, nobody can be transferred from one cadre to another cadre without his consent. The general power of transfer which has been referred to in the Act or the Rules made thereunder must be necessarily mean that such powers are to be exercised keeping in view the fact transfers must be made in the same wing itself subject of course to the special powers conferred therein. The orders of transfer of such personnel to R.P.S.F. must, therefore, held to be bad in law. The orders of transfer of such personnel to R.P.S.F. must, therefore, held to be bad in law. Having regard to the fact that various persons have been transferred to Hyderabad from different states, it is necessary that the order of this Court be implemented forthwith and wrong wherever done must be undone." The Rule 16.4 in unequivocal terms mandates that no enrolled member of the force shall be transferred from one branch to another. The Rule in imperative terms forbids the transfer from RPF to RPSF and vice versa. 7. For the aforesaid reasons we are of the considered opinion that 601 vacancies for RPF advertised could not be changed to RPSF vacancies after the selections. Any appointment made beyond the 72 of vacancies advertised for RPSF is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India, thus, a nullity, inexecutable and unenforceable in law. The post of RPF and RPSF are not interchangeable or inter-transferable. 7.1. Ms. Sejal K. Mandavia, learned counsel appearing for the respondents has urged that apart from the petitioner none of the selected candidates have claimed the post of RPF and they are working on the post of RPSF. Therefore, in view of the special facts and circumstances of this case we do not think it proper to invalidate the appointments made by the respondents on the post of RPSF. Interest of justice would be served if a direction is issued to the respondents to appoint the petitioner as Constable RPF within two months and if no post is available then a supernumerary post of Constable RPF be created and the petitioner be appointed till regular post of constable in RPF is available and the petitioner be appointed and accommodated on regular post of constable in RPF. 8. For the aforesaid reasons, this writ petition succeeds and is allowed. Writ of mandamus is issued to the respondents to issue appointment letter to the petitioner as Constable RPF and appoint him with all benefits of service within a period of two months from today. However, if there is no post available for appointing the petitioner as Constable in RPF, then supernumerary post of Constable RPF be created and the petitioner be appointed till regular post of Constable RPF is available and the petitioner be appointed and accommodated on regular post of Constable RPF. Rule is made absolute. However, if there is no post available for appointing the petitioner as Constable in RPF, then supernumerary post of Constable RPF be created and the petitioner be appointed till regular post of Constable RPF is available and the petitioner be appointed and accommodated on regular post of Constable RPF. Rule is made absolute. The parties shall bear their own costs.