IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 30..6..2008 Coram: The Hon'ble Mr. Justice K.CHANDRU W.P. No. 16752 of 1998 1. Sony C. Varghese 2. S. Santhanakrishnan 3. T.P. Philip 4. George thomas 5. BN/Railway Protection Special Force Thiruchirappalli 6. B.S. Parthasarathy 7. Jacob P. John 8. M.A. Rehman 9. P. V. Subramanian 10. P.V. Narasimha Rao 11. P.V. Rajendran 12. M.A. Girinarayanan 13. T.S. Raju 14. E. Mohanam 15. H. Johnson Raja Singh 16. Ashok Singh .. Petitioners vs. 1. Union of India Through Chairman Railway Board Ministry of Railways Rail Bhavan New Delhi 2. Member Staff Railway Board Ministry of Railways Rail Bhavan New Delhi 3. The Secretary Railway Board Ministry of Railways Rail Bhavan New Delhi https://hcservices.ecourts.gov.in/hcservices/ 4. The Director General Railway Protection Force Rail Bhavan New Delhi 5. The Joint Secretary Railway Board Ministry of Railways Rail Bhavan New Delhi 6. Ajanji Kumar 7. Athul Pattak 8. S.E. Rattan Chand 9. Ranvir Singh Chouhan 10. Amiga Nath Mishra 11. Pranav Kumar 12. Chellanya RR 6 to 12 rep. by the Joint Secretary Railway Board Ministry of Railways Rail Bhavan New Delhi 13. R.K. Khullar 14. Vinod Kumar Dhaka 15. Paramjit Mann 16. Suresh Chandra (SC) 17. Nirmal Singh (SC) 18. Shichandre Lyndoh Buam (ST) 19. vijay Kumar Dev (SC) 20. Sunil Kumar Sinha 21. Sanjay Kishore 22. Udai Shanker Shukla 23. Anwar Haleem 24. Pamhal Pacherwal (SC) 25. Darahan Singh (SC) 26. Gopal Ohri 27. Sanjay Sankrityayan 28. Surat Chandra Parhi 29. Sunil Kumar Singh 30. Rajinder Kumar Malik 31. Matvinder Singh 32. Satya Narain Manday 33. Ravindra Sharma 34. A.T. Srivastava 35. Rajakamal 36. B.B. Mishra https://hcservices.ecourts.gov.in/hcservices/ 37. M. Venkateswaralu (SC) 38. Birendra Kumar 39. Rambhau P. Pawar 40. Sarvapriya 41. A.N. Sinha 42. G.M. Eswara Rao 43. Hemant Kumar (SC) 44. Praveen Chandra Sinha 45. Ravendranath Kesar 46. Suresh Kumar Sini 47. Almlendu Shekhar 48. Naresh Kumar Virdi (SC) 49. Ram Swaroop Meena (ST) 50. Kanchana Charan 51. Manaawar Khusheed 52. M. Sabu 53. Vijay Kumar 54. Vikay Kumar Khartarkar (SC) 55. Tarique Ahmed 56. Arma Singh Thakur 57. Renu Pushkar (SC) 58. Surendra Nath Chaudhary (SC) R-13 to 58 impleaded vide order dt.15.12.99 in WMP.26336/98 .. Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of Certiorarified Mandamus calling for the circular of the respondent bearing No. K (O) 1-98/SR-6/18 dated 23.9.1998 and quash the same in so far as the said circular not fixing the interse seniority of the Group A Junior Scale Officers and consequently direct the respondent to grant proforma promotion to the petitioner under the Railway Protection Force (Group A post) Recruitment Rules, 1994 from the date on which the petitioners were due for promotion and give retrospective effect from 01.01.1986 i.e., from the date of implementation of the 4th Pay Commission recommendations and grant all consequential benefits with retrospective effect. For Petitioner : Mr. R. Yashod Vardhan, SC for M/s Aiyar & Dolia For Respondents 1 - 5 : Mr. R. Thiagarajan, SC for Mr. V.R. Gopalan For Respondents 6 & : Mr. M. Velusami 10-12 For Respondents 13 to58 : No Appearance https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard the arguments of the learned counsel for the parties and have perused the records. 2. The 15 petitioners in the writ petition were working as Assistant Security Commissioners in the Railway Protection Force and they are seeking to set aside the order of the respondent dated 23.9.1998 in not fixing the inter se seniority of Group A Junior Scale Officers and for a consequential direction to the respondent to grant pro-forma promotion to the petitioners under the RPF Group A Post Recruitment Rules 1994 with retrospective effect from 01.01.1986, viz., the date of implementation of the IVth Pay Commission. 3. This writ petition was admitted on 27.10.1998 and an interim injunction was granted. However, the same was vacated by an order dated 19.12.1999 and in paragraph 3 of the order, it is stated as follows:- ".... Taking into consideration of the entire fact and in the light of the pronouncement of Apex Court in H.S. GREWAL V. Union of India and others (Judgment Today 1517 volume 7 Supreme Court 554) and as fairly admitted by R.Thiagarajan Senior Counsel appearing for the Union of India the respondents have to redraw the list. In the light of the law laid down by the Apex Court, Mr. R. Thiagarajan seeks permission of this Court to redraw the list in view of the later pronouncement of the Apex Court and for such a course the respondents 1 to 5 required at least four months time." "In the circumstances, the interim injunction is vacated and liberty is granted to the respondents 1 to 5 to redraw the list in accordance with the pronouncement of the Apex Court as well as the existing rules referred to above and proceed further and also promote the candidates as per the redrawn list." 4. The Supreme Court in H.S. Grewal v. Union of India [1997 (11) SCC 758], (delivered on 28.8.1997) upheld the new policy evolved by the Railways. The following passages found in the said judgments may be referred usefully:- Para 13: In our view, there is no merit in these contentions. There is no question here of giving retrospective effect to the 1981 Rules. It is, in https://hcservices.ecourts.gov.in/hcservices/ our opinion, open to the employer, namely, Union of India and it is its prerogative, as a matter of policy, to introduce an intermediate post and lay down the conditions of eligibility of a Group B Officer in Class II for promotion to such intermediate post of Group A in Class I (Junior Scale). Such an introduction of an intermediate post does not, in our opinion, amount to interfering with any vested rights, ..." Para 14: ".... Therefore a “fresh promotion policy” was to be prepared and placed before the Court." Para 20: "The point that arises for consideration is whether the principles laid down in the draft policy of the Union of India as prepared by the UPSC in its letter dated 10-12-1991 and as modified by the letter dated 3-8-1992 is fair and equitable for reckoning the inter se seniority between the Group B and Group A Officers for purposes of higher promotion." Para 29: "We are of the view that a fair and proper balancing of the rights of Group A and Group B Officers has been made in these draft policies. The contentions of Group A Officers as well as of Group B Officers against these draft policies are therefore rejected. Thus the new policy has our full acceptance and the authorities can take further steps on that basis." Para 37: "The petitioner is about to retire in a few days. Learned counsel pointed out that for the last fifteen years, the petitioner’s grievances have not been redressed and no DPCs were conducted. It was suggested to the counsel that the petitioner could submit a fresh representation within one month and the respondents could dispose of the same as early as possible. We direct accordingly. In other respects the directions given in the main judgment, to the extent relevant, apply." 5. When the petitioners 12 to 14 subsequently moved a writ petition in W.P. No. 6631 of 2002 seeking for convening of DPC for the years 1998 – 2000, 2001 for the post of Assistant Security Commissioner, this Court in paragraph 3 of the order observed as follows:- "I have considered the submissions on both sides. https://hcservices.ecourts.gov.in/hcservices/ I do not think that there can be any objection to the request made by learned counsel for the petitioner having regard to the admitted regulations relating to the quota of direct recruits and promotees and the law laid down by the Supreme Court repeatedly in the context of the departmental promotion committees. It has been repeatedly held by the Supreme Court that the DPC should sit for every year regularly before the appointed date and that the case of eligible candidates within the zone of consideration should be dealt with. In fact, it has been held that action should be initiated well in advance to fill up the existing as well as the undisputed vacancies. That being so, the department cannot cite any administrative reasons resulting from its own default." 6. Inspite of all these exercise, the respondent Railways did not undertake the exercise of convening DPC in respect of each year and grant promotion. When a review DPC was held in May 1998, the judgment of the Supreme Court was given effect to and officers were promoted to the post of Group A with retrospective effect for vacancies from 1981 to 1986. Subsequently, review DPC was held only in the year 1994. If the petitioners herein come under the zone of consideration for the years 1986-96 and if only such DPC was held for those years, the petitioners would have been granted relief. The statutory rules framed in the year 1994 was not retrospective covering the period from 1986 to 1994. By convening a regular DPC for each year, the petitioner should be given proforma promotion by determining the actual number of vacancies in respect of each year. Therefore, it was prayed that the petitioners should be promoted to the rank of Assistant Security Commissioner / RPF Group A with retrospective effect i.e., from the date due promotion should have been given. 7. Learned Senior Counsel for the petitioners relied on the judgment in S.B. Bhattacharjee v. S.D. Majumdar [(2007) 10 SCC 513] and particularly referred to paragraph 13 of the said judgment which is extracted below:- Para 13: "Although a person has no fundamental right of promotion in terms of Article 16 of the Constitution of India, he has a fundamental right to be considered therefor. An effective and meaningful consideration is postulated thereby. The terms and conditions of service of an employee including his right to be considered for promotion indisputably are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India." https://hcservices.ecourts.gov.in/hcservices/ 8. Per contra, Mr. R. Thiagarajan, learned Senior Counsel submitted that the issue relating to the relevant rule was in a state of flux until 28.8.1997. That was the date when the Supreme Court delivered its judgment in H.S. Grewal's case (cited supra) and subsequently, DPC was held for the years 1994 – 97 and candidates have been actually empanelled. But with reference to convening of DPC from 1986 to 1996, in respect of each year, the learned Senior Counsel is not able to explain their inaction though a direction was given in this regard earlier. In the counter affidavit dated 19.11.1999, it is stated in para 13 that vacancies from 1986 to 1994 prior to the introduction of 1994 Rules will be clubbed together and DPC will be held. This stand of the official respondents will be highly irregular. 9. Therefore, in the light of the Supreme Court's judgment in Grewals' case as well as the interim order passed in this writ petition and in the light of the direction given by this Court in W.P. No. 6631 of 2002 dated 14.5.2002, the respondent Railways are directed to convene the DPC for the years 1986 to 1996 and after making an assessment of the case of the petitioners, grant them the presumptive promotion in respect of those years and refix their salary and seniority in the light of such an order being passed by the respondents. 10. Even though many of the petitioners have retired and only three are in service, this Court is of the opinion that relief must be given to all the petitioners since at the time of filing of the writ petition, they were very much in service. This will be in consonance with the decision of the Supreme Court in State of U.P. v. Roshan Singh and others (2006 (13) SCC 661). 11. In the result, the writ petition is allowed and the respondents are directed to undertake the exercise within a period of eight weeks from the date of receipt of a copy of this order. However, there will be no order as to costs. gri Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. Union of India Through Chairman Railway Board Ministry of Railways Rail Bhavan New Delhi 2. The Secretary Railway Board Ministry of Railways Rail Bhavan New Delhi 3. The Director General Railway Protection Force Rail Bhavan New Delhi 4. The Joint Secretary Railway Board Ministry of Railways Rail Bhavan New Delhi + 2 ccs to M/s. Aiyar and Dolia, Advocate SR No. 33368 Order in W.P. No. 16752 of 1998 SKD(CO) SR/7.7.2008 https://hcservices.ecourts.gov.in/hcservices/