Prabhu Dayal Gora & Ors v. Union of India & Ors

1. By way ofthese two petitions,the Petitioners have prayed for quashing of the order dated 12'*^ May, 2017 issued by the Respondents and they have W.P.(C)4538and 7770of2017 Page 1 of[9] 2019:DHC:7380-DB further prayed to issue directions to the Respondents to declare the complete result ofselection process initiated in the year 2014 with respect to change of cadre from ancillary staff to Constable (Executive)in which Petitioners had participated and as a consequent thereto direction to appoint the Petitioners to the postofConstable(Executive),in case they had qualified in the aforesaid selection process.

2. The case ofthe Petitioners is that they are working as ancillary staff on various posts such as water carrier, cook, safaiwala etc. in the Railway Protection Force (RPF)for the last many years with unblemished service recorded and they were posted in various divisions of Northern Railway. Rule 75 of RPF Rules 1987 describes special provision for ancillary staff. As per Rule 75.1,the ancillaiy staffshall form part ofthe enrolled members ofthe force. Rule 75.02 prescribes thatin ancillary staffwho is qualified and proficient in his trade and skill may be listed as Constable for the said trade or skill. Rule 28 empowers the Director General,RPF to issue directions for enforcement ofthe RPF Act and Rules and accordingly, a Directive No. 14 dated 25"^ June, 1996 was issued providing for change ofcadre ofancillary staffto the rank ofConstable(Executive)which provided the conditions that the members of the ancillary staff who are matriculate and have put in 5 years' service, may be allowed to change their cadre to Constable (Executive) and 10% vacancies of the Constables were reserved for them. The age limit was fixed at 35 years and they had to be medically fit for B-1 category apart from conforming to physical standards. A committee consisting ofone Commandant/DSC and two Assistant Commandants/ASCs was formed to screen the service records and ifthe ancillary staffis selected after approval by DG,they have to undergo the initial training course before IF.P. (C)4538and 7770of2017 Page2of[9] (9 their posting in the Executive Branch.

3. The Directive No.14 was further amended on 30^"^ June, 2005 and 2""^ August,2005 providing for a written test for making selection to the post of Constable(Executive)and the final panel would be prepared after totalling the marks obtained in ACR grading and written test. The candidate had to secure at least, 60% marks(50% for SC and ST)to qualify in the written test. In the year 2013-14 nearly 17,000 vacancies ofConstables in RPF were advertised out of which 1500 newly recruited Constables were allocated to Northern Railways implying therein that 10% ofthese vacancies were to be filled from ancillary staff. Applications were accordingly invited from ancillary staffand being eligible,the Petitioners along with other candidates had applied and even underwent medical and written examinations in February,2015.

4. Further case of the Petitioners is that the Respondents issued an order dated 8'^ August,2015 withdrawing Directive No.14 with immediate effect in view of reclassification of all posts of ancillary staff as Group'C and their placement in PB-I with appropriate grade pay and their re-designation as Constable (name of the trade) with effect from 1®' January, 2006 and issuance ofinstructions for grant offinal upgradation under MACP Scheme with effectfrom fSeptember,2008.

5. This action ofthe Respondent was challenged by way ofWritPetition(C) No.11401/2015. The said writ petition was dismissed as withdrawn on 17"^ May,2016 with liberty to file a representation before the Respondents who were given six weeks' time to decide the said representation. A joint W.P.(C)4538and 7770of2017 Page3of[9] representation dated June, 2016 was submitted and thereafter as per directions ofthe Respondents,individualrepresentations were also filed.

6. Subsequently, the Respondents issued a letter clarifying that the process of change of cadre, which has been initiated prior to the withdrawal of Directive No.14 would be continued. Under these circumstances. Writ Petition(C)No.1639/2016 {Jay Prakash and Ors vs. Union ofIndia and Ors.) was filed before this Court and the Respondents were directed by the Court to place on record the decision taken regarding pending seleetion proceedings on 5'*^ July,2017.

7. The Petitioners state that before the said date ofhearing,the Respondents issued the result of 22 candidates but result of the remaining candidates including Petitioners' result was withheld. The Petitioners had qualified the written test and the physical test, so they were eligible for change of cadre and there had been number of vacancies yet Respondents had selected only 22 candidates for change of cadre. The Petitioners further contend that the Respondents had also wrongly applied reservation which was riot applicable as it is a case ofonly a change ofcadre and not ofpromotion or recruitment.

8. The Respondents produced certain records before this Court on 5''^ July, 2017 stating that there were only 218 vacancies of Constables and 10% of the same worked out to 22 and that is the reason that only 22 candidates were selected for change ofcadre. When it was pointed out to the Court that there were more vacancies then admitted by the Respondents, the Court gave liberty to the Petitioners, whose names had not figured in the list of22 W.P.(C)4538and 7770of2017 Page4of[9] successful candidates to file a substantive writpetition.

9. The Petitioners state that on 6^'' November,2013 permission was granted for inter-zonal transfer of 577 Constables from RPSF to various zones of RPF and out ofwhich 35 Constables were transferred to Northem Railway leaving thereby 4 vacancies to be filled by the ancillary staffby change of cadre. The same was not taken into account while calculating the vacancy position ofConstables.

10. Similarly, on 17*'^ September, 2014 a total of 6411 Constables were transferred from RPSF to RPF. Out of this lot 779 Constables were transferred to Northem Railway and 10% vacancies of the same comes to

78. Again,this number was not added to the existing vacancies. Further,on 29'^ July, 2013,407 Constables were transferred from RPSF to RPF out of which 100 Constables were transferred to Northem Railway meaning thereby another 10 vacancies arose for change of cadre of ancillary staff. The case ofthe Petitioners, therefore, is that recmitment of777 Constables was conducted in 2014 and 10% of this strength comes to 78 and these number of vacancies were available for change ofcadre for ancillary staff. Hence,169 vacancies were available. The statement ofthe Respondents that only 22 vacancies for change of cadre were available was a false and miseonceived statement. The Petitioners have pleaded that the action ofthe Respondents is illegal, arbitrary and violative of Articles 14 and 16 ofthe Constitution ofIndia. Hence,it has been prayed to directthe Respondents to calculate correct number ofvacancies and to declare the result ofPetitioners for change of cadre keeping in view that there were 169 vacancies as mentioned above. W.P.(C)4538and 7770of2017 Page5of[9]

11. A counter affidavit has been filed on behalfofRespondents denying the averments made in the writ petition. It has been eonfirmed that a Screening Committee was constituted by the Headquarters of Northern Railway vide order dated 29'^ July, 2014 for cadre ehange ofaneillary staffto Constable (Executive) as per Directive No.14. Applications were reeeived from 77 ancillary staffmembers. On E'August,2014 the Screening Committee was reconstituted. Directive No.14 was revised from time to time. The list of77 candidates was sereened. Name of one eandidate was inserted twice. So, screening ofservice record was done of76 candidates only and out ofthese 66 candidates were found suitable to appear for the said seleetion process. One ofthe candidates was medieally unfit and one eandidate had submitted his unwillingness to appear in the seleetion process. Henee, only 64 candidates appeared in seleetion held in Ambala on 25'V26"^ February,2015 and all the candidates were found fit in physieal fitness test. However, one candidate was found to be only 8^^ class pass, so remaining 63 eandidates undertook the writtentest on 26^^February,2015.Thefinallist ofcandidates was prepared after going through their service records, AFAR grading, physical fitness test and written examination test, etc. and the said list was sent to Head Quarter Office for approval. Thereafter,result for filling up 22 vacancies was declared by the Head Quarter Offiee, Baroda House, New Delhi on 12'^ May,2017.

12. In the reply on merits, it is mentioned that at the time ofnotification for change ofcategoryfi-om aneillary to Constable,i.e. on 29""April,2014 only 218 vacancies ofthe Constables were worked out and as per Directive No.14 only 10% vacancies,i.e. 22 vacaneies were available for ehange ofeategory. W.P.(C)4538 and 7770 of2017 Page6of[9] th Hence, the result was deelared for filling up the said 22 vacancies on 12 May, 2017. It has been clarified that transfer of RPSF staff to RPF is not fresh recruitment and it is only transfer of Constable/RPSF to Constable/RPF ofthe same rank in bottom seniority as per Rule No.99.[2] of RPF Rules 1987.

13. It has been time and again reiterated in the counter affidavit that on 29 April, 2014, when notification for change of category was issued on that day, there were only 218 vacancies of Constables and accordingly 22 vacancies were reserved for change of category. The Respondents have plaeed on reeord Annexure-R[5] dated 11^^ April, 2014 which is a communication addressed to the Deputy Director/Security (E) Railway Board, New Delhi written by a Staff Officer to CSE/RPF which reads as under: "220-E/l-SI/RPF/Rectt/Petitioner-I/2010 Dy.Director/Security(E) Railway Board,New Delhi. Sub-Recruitment of Constables and Sub-Inspectors in RPF/RPSF 2014-15. Ref-Rly. Bd's letter No. 2014-See (E)/RC-3/14 dated 03.04.2014 In reference to Railway Board's letter cited above,the required Rank Year Total Sub-Inspector 2015 Nil 2016 Nil Constable 2015 218 2016 196 2017 181 W.P.(C)4538 and 7770of2017 Page 7of[9] Total 595 Sd/- StaffOfficer to CSC/RPF"

14. We have heard the arguments ofcounsel for the parties. It has been time and again reiterated by the learned counsel for Petitioners that there were many more vacancies of the Constables which were earried forward from the previous years but the Respondents have arbitrarily selected only 22 persons for cadre change from ancillary staff to Constable whereas the Petitioners were also eligible for selection and they had all the requisite qualifications and they also fulfilled all the physieal parameters for their change ofcadre.