Full Text
W.P.(C)1487/2019
INSPECTORPAWAN KUMAR Petitioner
Through: Mr Himanshu Kaushik,Advocate.
Through:
Respondents Mr Rajan Sabharwal with Ms Dipti Jain,Advocates.
INSPECTORPAWAN KUMAR Petitioner
Through: Mr Himanshu Kaushik,Advocate.
Through:
Mr Rajan Sabharwal with Ms Dipti Jain,Advocates.
02.09.2019
ORDER
1. These two petitions arise out of common set of facts and are being disposed ofby this common order.
2. W.P.(C) No.1487/2019 has been filed by Inspector Pawan Kumar, who was originally appointed in the Railway Protection Special Force('RPSF') W.P.(C)1487/2019& CONT.CAS(C)330/2019 Page1of10 2019:DHC:7848-DB as Sub Inspector ('SI') on 11 November, 1999. The challenge in the petition is to an order dated 4 February 2019, whereby the Petitioner has been transferred to the 7^*^ Battalion ofthe RPSF/MLY(Hyderabad). One of the main grounds ofsuch challenge is that the Petitioner was working on the Ex-Cadre post in the BCTC(Dog Squad),and that in terms ofthe Directive No. 18 dated 19^*^ May, 2018 such 'Special Category Staff are exempted from periodical transfer.
3. On IS"^ February,2019,this Court passed the following order in W.P.(C) No. 1487/2019: "2.Notice. Mr.Jagjit Singh,learned senior standing counsel for the Respondents accepts notice.
3. The Court finds that the Petitioner who is part of the Dog Squad has been ordered to report by the impugned order dated 4"^ February 2019to the 7'^Battalion RPSF/MLY atHyderabad. The only reason given is'administrative ground'. •
4. Learned counsel for the Petitioner draws attention to a Railway Board Directive No. 18 dated 19^*^ May 2018 which clarifies that as per para 3(xi)ofDirective 32(revised),special category staff such as those who belong to the Dog Squad are "exempted from periodical transfer". It adds that they can be transferred "on request or an administrative interest".
5. Considering that that Petitioner came to the Dog Squad only in July 2017, the Court prima facie is of the view that the Respondents owe a better explanation for transferring him rather than mere "administrative interest". Consequently, the impugned order is keptin abeyance till the next date.
6. The Respondents will file their reply within two weeks and rejoinder thereto,ifany,be filed before the next date. W.P.(C)1487/2019&CONT.CAS(C)330/2019 Page2of10
7. List on March 2019.
8. This order be given dasti under the signatures of the Court Master."
4. Subsequently on 27'^ March, 2019, the said interim order was made absolute.
5. The Railway Board by an order dated 5'^ March,2019 directed that the Ex-Cadre post of Inspector at BCTC/Daya Basti would be operated as a 'cadre post' and subsequently, by an order dated 2"*^ April, 2019, attached the Petitioner with the 6'^ Battalion. Alleging that the above interim order dated 13 February, 2019 had been disobeyed, the Petitioner filed the contempt petition being Cont.(Cas)No.330/2019.In this contempt petition, the Petitioner also drew attention of the Court to an order dated April, 2019,passed by the Commanding Officer('CO')ofthe 6"^ Battalion,l^SF, placing the Petitioner under suspension.
6. In the said contempt petition on 16^*^ April,2019,the following order was passed: "2. Notice. Mr. Rajan Sabharwal, learned counsel, accepts notice on behalfofthe Respondents.
3. Each ofthe Respondents/Contemnors will remain personally present on the next date. In the meanwhile, they are permitted to each file an affidavitin response to the petition.
4. Till the next date the impugned order dated 5^*^ April 2019 shall remain stayed. Further the status quo as it existed prior to 5^^ April 2019, and in compliance with the interim orders dated 13 February 2019 and 27 March 2019 in W.P.(C)1487 fV.P.CQ 1487/2019& CONT.CAS(C)330/2019 Page3of10 of2019,shall stand restored till further orders.
5. Liston 22""May,2019.Dasti."
7. In response to the contempt petition, a reply was filed by the Respondents stating, inter alia, that the Petitioner had intentionally and deliberately suppressed the fact that there was an enquiry initiated against him consequent upon a preventive check by the Vigilance Department in the Branch of Motor Transport Office where the Petitioner was posted as IPF (MTO),in the year 2015.It is pointed outthatthe Vigilance Department had tb by a letter dated 25 July, 2016, recommended that major penalty be th imposed on the Petitioner, and that he should be transferred from the 6 Battalion. It is stated that in terms ofthe recommendations ofthe Vigilance Department, the Petitioner was issued a major penalty charge-sheet dated 15^^ November, 2016. In compliance with the further recommendations th • regarding his transfer, the Petitioner was transferred to the 14 Battalion, New Cooch Behar by theIG/RPSF by a letter dated lO'"February,2017.
8. According to the Respondents,"the Petitioner somehow manipulated to get the posting in BCTC/DBSI by a letter dated lO"^ May,2017,under the CO 6"^ Battalion".It is pointed outthatthe BCTC is partofthe 6^"Battalion, but that in order to be appointed to the BCTC, the minimum technical qualification is completion ofa 28-week 'dog handlers' course and 5 years ofservice in the Dog Squad. It is pointed out that the Petitioner had neither the minimum technical qualification/experience nor had he served in the Dog Squad in any rank for five years, prior to his posting as Inspector(Dog Squad). Further, for the post of Inspector(Dog Squad), the incumbent is W.P.(C)1487/2019& CONT.CAS(C)330/2019 Page4of10 required to be screened by a Screening Committee of[3] CSCs and an expert in Dog Squad.It is pointed outthat prior to his posting atthe Dog Squad,the Petitioner was not screened by the Screening Committee. Therefore, the posting ofthe Petitioner with the BCTC was againstthe recommendations of the Vigilance Department.It is pointed out that an enquiry has been ordered as to how the Petitioner was posted at BCTC,Daya Basti against "norms, rules and advice ofthe Vigilance Department".
9. It appears that, in the meanwhile, on completion of the disciplinary enquiry, the CO 6 Battalion awarded the Petitioner the punishment of withholding his next annual increment for a period of six months, with tb cumulative effect, by an order dated 10 November, 2017. A confidential letter dated 22"'' February,2018 was received from the Vigilance, advising that the case may be remitted to the Revisionary Authority. Accordingly,the case was sent to the DIG,RPSF, by a letter dated 16"^ August,2018. The said enquiry has resulted in the Petitioner being reverted to the rank of SI with effectfrom 15"^February,2019.
10. As far as the impugned transfer order is concerned,it was issued on 4"^ February, 2019, and a consequent movement order, was issued on 9"^ February,2019.It is stated that from the evening of8^*^ February,2019,the Petitioner stayed away from duty, due to a purported illness and, that therefore,the movementorder could not be served upon him.However,after the interim order was passed by this Court on 13"^ February, 2019, the Petitioner on his own received the movementorder dated 9^*^ February,2019 on 14* February, 2019. The Petitioner then got himself relieved from the JV.P.fCJ 1487/2019& CONT.CAS(C)330/2019 Page5of10 \ BCTC by making an entry in the daily diary (roznamcha) in his own handwriting on 14"^ February,2019.Thus,according to the Respondents,the Petitioner has rendered the order dated 13^^ February, 2019, passed by this Court,infructuous.
11. On ll'*^ February,2019 a show cause notice('SON')was issued by the DIG-cum-CSC,RPSF to the Petitioner, for enhancement ofthe Petitioner's punishment in the departmental proceedings, in terms of the advice of the th • Vigilance Department.The Petitioner on 11 February,2019 itselfsubmitted th a reply to the SON,and thereafter on 15 February,2019, he was issued an order by which his rank was reverted from Inspector to SI for three months. th This was duly received on 15 February,2019 by the Petitioner himself.
12. The Respondents have stated in reply to the contempt petition that the entire sequence of events suggest a connivance between the Petitioner and DIG-Cum-CSC/RPSF as the Petitioner was awarded the lowest punishment for the minimum period under the major penalty charge sheet whereas, under Rule 148.[2] ofRPF Rules 1987 the following major punishments are prescribed: (a) Dismissal from service (which shall ordinarily be a disqualification for future employment under the government). (b) Removal from service(which shall not be a disqualification for future employment under the government).
(c) Compulsory retirementfrom service.
(d) Reduction in rank or grade.
13. It is further pointed out by the Respondents that when the W.P.(C) W.P.(C)1487/2019& CONT.CAS(C)330/2019 Page6of10 No.1487/2019 was listed before this Court on 27^*^ March, 2019, the Petitioner did not raise any grievance about the order dated 15'^ February,
2019. Even in the contempt petition filed subsequently, no mention was made of this. It is further pointed out that on the one hand the Petitioner tVi continued to remain in the 'sick list' on 11 February 2019, as per medical certificate and on the other,the Petitioner went to the office ofthe DG,RPF th on 11 February,2019 in uniform.
14. It is then stated in the said counter affidavit to the contempt petition as under: "Neither the Petitioner revealed before the DG that he has been declared sick nor he went through proper channel as such the DG could not be informed in advance about the status of Petitioner. Since wearing a uniform during off duty or during sickness is in violation ofRule 122.[2] & 123.[1] ofRPF Rules and the Petitioner instead ofapproaching the Railway doctor gotthe medical certificate issued from a private practitioner in violation of the procedure provided under Rule 272 of RPF Rules 1987,the Petitioner was put on suspension and a charge sheet dated 12.04.2019(Annexure R-21) was served upon the Petitioner." • th
15. It is submitted by the Respondents that since by an order dated 15 February, 2019,the Petitioner had been reverted to the rank of SI for three months,and the said order was never challenged,the letter dated 5'*^ March, 2019,declaring the post ofInspector to be a'cadre post', does not affect the Petitioner at all. It is also pointed out that the withdrawal ofEx-Cadre post from BCTC was necessitated as the Dog squad is being used by open line field formations and there is no Dog Squad functional in RPSF.The trained and eligible staff who can be posted in Dog Squad are not available in the fV.F.(CJ 1487/2019& CONT.CAS(C)330/2019 Page 7of10 RPSF to be posted at BCTC.The Northern Railway has a separate wing of Dog Squad which is manned by the staff trained for the said job. By transferring the Ex-Cadre post ofIFF BCTC to the cadre post of Northern Railway it facilitated the better trained officers eligible for the post of IPF/BCTC to be placed where their services could be better utilized. Moreover, since the rank of the Petitioner was reverted and the Ex-Cadre post was converted into the Cadre Post,by a letter dated 4^*^ April,2019 the Petitioner was to hand over the charge ofthe said post fb
16. The Respondents state that consistent with the order dated 13 February, tb 2019, the Petitioner was attached to the 6 Battalion itself, and that therefore,there was no disobedience ofthe order ofthis Court. On the same lines, a reply has been filed in W.P.(C) No.1487/2019. An additional affidavit wasfiled on 26'*^ August,2019.
17. This Court has heard the submissions ofMr Himanshu Kaushik,learned counsel for the Petitioner and Mr Rajan Sabharwal, learned counsel appearing for the Respondents.
18. From the documents placed on record, as well as the affidavits filed by the Respondents,it is plain to this Court that the writ petition has been filed by suppressing the crucial material facts. In particular, the Petitioner suppressed the fact that he had faced disciplinary enquiry and that his transfer order dated 11^*^ July, 2017 was in fact passed pursuant to the recommendations ofthe Vigilance Department. The Petitioner has also been totally silent on how he managed to get posted in the Dog Squad, without complying with the mandatory requirements, as pointed out in the counter W.P.(C)1487/2019& CONT.CAS(C)330/2019 Page8of10 affidavit ofthe Respondents.
19. The Railway Board's Directive No. 32 does not constitute a complete embargo on transfer of personnel belonging to the Dog Squad and such a transfer can take place in 'administrative interests'. It is indeed a mystery as to how the Petitioner, without having the minimum technical qualification and experience and without serving in a Dog Squad prior to his posting as Inspector,could have managed to get such a posting.
20. The Petitioner also did not draw the attention ofthe Court to the fact that the Petitioner was posted in Delhi for more than 16 years, in continuous spells, which exceeds the permissible time limit, as specified in Para 13 of the Directive-32(Revised).Importantly, as pointed out by the Respondents, the Petitioner did not draw this Court's attention to the order dated 15'^ February 2019, whereby he was reverted to the rank of SI for a period of three months.He did not even challenge that order.
21. It is, therefore, not clear as to how the letter dated 5^*^ March, 2019 converting the post of the Inspector to be a 'cadre post', can be said to adversely prejudice the Petitioner.
22. The Court is satisfied that the Petitioner has not come to the Court with clean hands and has failed to place the entire facts on record.
23. The Court,therefore,sees no meritin the writ petition.The interim order dated 13^*^ February 2019, which was confirmed on 27^^ March, 2019 is hereby vacated. W.P.(C)1487/2019& CONT.CAS(C)330/2019 Page9of10
24. The writ petition and the contempt petition are accordingly dismissed. Consequently, the order dated 16^*^ April, 2019, passed in Cont. (Gas) No.330/2019 is also vacated. The contempt proceedings against the Respondents are hereby dropped. CM Nos. 18033/2019 and 30921/2019 are accordingly disposed of.
SEPTEMBER 02,2019 rd S.MURALIDHAR,J. TALWANT SINGH,J. W.P.(C)1487/2019& CONT.CAS(C)330/2019 Page 10of10