THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.23678 of 2000 (Dated : 11-10-2011) Between; K.Jeevan Prakash Rao S/o K.Peeter …Petitioner A n d The Chief Security Commissioner and others …Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.23678 of 2000 ORDER: Petitioner-K.Jeevan Prakasha Rao was appointed as a Railway Protection Force constable on 01-05-1989 and posted at Secunderabad Division. He was transferred to Guntakal Division in the month of June 1986. S.Masthanvali and Y.B.Thimma Reddy- respondents 3 and 4 herein were also appointed as Railway Protection Force Constables. The post of constable is a zonal post and the seniority is maintained at the zonal level. 2. The Chief Security Commissioner, Railway Protection Force, South Central Railway, Secunderabad, invited willingness of the employees to the post of Naiks, vide letter No.G/XP/608/GK/97, dated 21-7-1997. The respondents 3 and 4 were asked to exercise their option. The petitioner was not asked to exercise such an option. He submitted representation dated 9-4-1998 to the 1st respondent ventilating his grievance for not including his name in the promotion list of Naiks. The Railway Board issued Circular No.PC-V/99/1/1/1, dt.1.10.1999 announcing the scheme of Assured Career Programme (ACP) for those, who have put in twelve years of service. Pursuant to the Railway Board’s circular, the 1st respondent issued Proceedings No.XP/530/ACR/Const.12 years (F.O.No.151/2000), dated 19.10.2000 granting the ACP benefits to the Constables who have put in 12 years of service. In the annexure to the Force Order No.151/2000, the petitioner was shown at Sl.No.474 and whereas the respondents 3 and 4 were shown at Sl.Nos.136 and 144 respectively. According to the petitioner, he is senior to respondents 3 and 4 and therefore, his name should have been placed above respondents 3 and 4 in the annexure to the Force Order No.151/2000. He submitted representation to rectify the seniority list annexed to the Force Order No.151/2000. The 1st respondent constituted Departmental Promotion Committee to promote eligible candidates to the post of Head Constables in the scale of Rs.3200-4900/- (Non Selection ), as per Rule 70 of the Railway Protection Force Rules, 1987. The post of Head Constable is not a selection post. According to the petitioner, the service and suitability is the only criterion for promotion to the post of Head Constable. The 1st respondent issued proceedings X/P.530/1/HC/Vol.VII (Force Order No.169 of 2000) dated 25-11- 2000, promoting the respondents 3 and 4 to the post of Head Constable ignoring the petitioner, even though he is senior to them. Therefore, he filed the writ petition seeking a mandamus declaring the action of the 1st respondent in promoting respondents 3 and 4 ignoring his claim to the post of Head Constable is illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India. 3. Rule nisi came to be issued on 12-12-2000. An interim order came to be passed to the effect that further promotion, if any, will be subject to the result of the writ petition, vide W.P.M.P.No.30253, 30946 of 2000. Subsequently, the petitioner filed W.P.M.P.No.30946 of 2000 seeking permission to amend the prayer. By way of amendment, he questioned the promotions from Constable to Head Constable without drawing and finalizing the zonal seniority list, as per the R.P.F Rules, 1987. The said WPMP came to be ordered on 12-02-2001. 4. The respondents entered appearance and filed counter. It is stated in the counter that the petitioner was appointed as a Constable in the RPF on 01.5.1981 and was posted at Secunderabad Division. Subsequently, he was transferred to Guntakal Division, vide the 1st respondent’s Force Order No.101/86 dated 8-5-1986 along with seven other Constables at his own request and on bottom seniority. The petitioner joined in Guntakal Division on 11-6-1986. The staff transferred at their own requests from one Division to another Division prior to 1987 i.e., prior to introduction/implementation of Railway Protection Force Rules, 1987 were to take bottom seniority in the transferred division. The respondent No.3-S.Masthanvali was appointed as a Constable on 6-12-1981 and was transferred from A’Coy/SC to Guntakal Division at his request on bottom seniority, vide Chief Security Commissioner/Secunderabad’s Force Order No.40/83 dtd.21-02-1983. He joined at Guntakal on 15-3-1983. Whereas the petitioner has been transferred from Secunderabad to Guntakal Division at his own request much later to respondent No.3, vide Force Order No.101 of 1986-dated 8-5-1986. Prior to introduction of the R.P.F.Rules, 1987, the seniority of constables was maintained at Divisional level. Hence the petitioner though appointed earlier to respondent No.3 became junior to respondent No.3 as he joined at Guntakal division at a later date. The post of Naik was merged with Head Constable with effect from 04.12.1997. As per the Board’s letter No.PC/V/99/1/1/1 dated 01.10.99, service is not the only criterion for grant of ACP. The financial benefit under the scheme is granted from the date of completion of 12/24 years eligibility period prescribed under the scheme or from the date of issue of the orders, i.e., 01-10-1999. The name of the petitioner was considered and he was granted ACP, vide Force Order No.174 of 2000, dated 06- 12-2000. The financial benefits under ACP scheme have no relevant to his seniority position, as per Railway Board’s Letter No.PC- V/99/1/1/1 dated 01-10-1999. ACP scheme has been awarded to those staff who have completed 12 years of regular service and the petitioner is one among the 742 staff considered for the benefit of ACP scheme. The 1st respondent constituted DPC, vide Lr.No.X/P/530/ACP/Constables on 9-8-2000 to assess the suitability of Constables for placement in higher rank under ACP scheme. As per Schedule IV of Railway Protection Force Rules, 1987, the post of Head Constable has to be filled up by promotion of Constables on the basis of non-selection to the extent of 60% under Rule 70 and 40% on the basis of selection under Rule 72. Subsequently, the ratio 60% and 40% has been revised to 75% and 25% respectively. On the basis of the Board’s letter No.2000/Sec(Spl.), dated 5-9-2000, selection to the post of Head Constable was taken up for 207 posts under Rule 70 (75%) [Non-selection basis] and 69 posts (25%) [on selection basis]. The Committee constituted for the purpose of promotion to the post of Head Constable recommended 207 names of RPF Constables for placement on the panel. After successful completion of Pre-promotion Course training held at Railway Protection Force Training Centre, Moula-Ali, Hyderabad from 04.12.2000 to 27.01.2001. The eligible 193 constables including Sk. Mastanvali-respondent No.3 were finally promoted as Head Constables, vide Force Order No.23/2001, dated 7-2-2001. Whereas respondent No.4-Y.B.Thimma Reddy though empanelled provisionally and sent for pre-promotion course training was not promoted along with others, on being noticed about his irregular seniority position. After thorough verification of the seniority position of the R.P.F Constables, seniority of 15 constables were rectified and circulated to the divisions for information of the concerned staff, vide letter No.X/P/612/Security/Control/Vol.III dtd.5-7- 2001. On rectifying the seniority, promotion order in respect of Y.B.Thimma Reddy-respondent No.4 and another Constable, namely, D.G.Pathan of Hubli was issued, vide Force Order No.127 of 2001, dated 24-8-2001. The seniority of Constables was maintained Division wise till the Railway Protection Force Rules, 1987 came into force. The entire seniority position has been reviewed separately to rectify the irregularities and finally a rectified seniority of 15 constables was made out and published on 5-7-2001 for information of the concerned. The petitioner was transferred from Secunderabad to Guntakal Division on his own request and he joined in Guntakal Division on 11-6-1986. Whereas the 3rd respondent was transferred from Secunderabad to Guntakal division at his own request on bottom seniority and he joined at Guntakal on 15-3-1983. Therefore, the seniority of the petitioner and 3rd respondent has been considered from the date of their respective joining at Guntakal Division, in which case, the petitioner cannot claim that he is senior to respondent No.3. Respondent No.4 was appointed as RPF Constable on 7-12-1981. He was transferred to Guntakal Division at his own request after RPF Rules, 1987 came into force. Thereby, his seniority in Secunderabad Division has not been disturbed and he retained his seniority from the date of his appointment i.e., 7-12-1981 and consequently, he came to be promoted as Head Constable, vide Force Order No.127 of 2001, dated 24-8-2001. The seniority of Head Constables and Constables was maintained Divisionwise prior to implementation of RPF Rules, 1987 and after the commencement of the Rules, the seniority of Head Constable and Constable came to be maintained at zonal level. Accordingly, a combined zonal seniority lists of RPF Constables and Head Constables were circulated in the year 1990 and republished during 1996. In the cadre of RPF Head Constables, 75% posts/vacancies are filled up on the basis of non- selection i.e., seniority-cum-suitability, as per Rule 70 of the RPF Rules, 1987 and not merely on the length of service and the rest of the 25% of the posts /vacancies are filled up on the basis of selection under Rule 72 (Limited Departmental Competition), as per Railway Board’s Lr.No.2000/SEC (SPL)/6/5 dated 5-9-2000. Further, as per Rule 64.2 passing of pre-promotion course shall be essential for regular promotion which will take effect from the date on which such enrolled members of the Force report for duty against a clear vacancy after passing the promotion course. Prior to introduction of R.P.F.Rules, 1987, the staff transferred from one division to another in the interest of administration were given protection of seniority on the basis of date of appointment. Whereas in the case of transfer ordered at the request of the members of the Force, their seniority was maintained from the date of their joining in the respective divisions. Hence the seniority of the petitioner was taken from 11-6- 1986, i.e., the date on which he joined at Gutakal Division as he was transferred at his request on bottom seniority though his date of appointment was 01-5-1981. K.Venkata Ramulu and T.Adinarayana were transferred to Guntakal Division during 1990 and 1992 after implementation of zonal seniority system. Thus, they retain the original seniority on their joining at Guntakal Division. The representation dated 27-11-2000 submitted by the petitioner has been looked into and a reply has been given to him, vide Letter No.X/P.612/Seniority/Const.Vol.III, dated 06-02-2001. Since the petitioner joined in Guntakal Division at his request on 11-6-1986, his seniority counts from 11-6-1986. 5. Heard Sri J.M.Naidu, learned counsel appearing for the petitioner and Sri Gouri Shankar Sanghi, learned Senior Standing Counsel for South Central Railway appearing for the respondents. 6. Learned counsel appearing for the petitioner submits that the appointment of the petitioner as Constable is much prior to the appointment of respondent No.3-S.Masthan Vali and Respondent No.4- Y.B.Thimma Reddy and therefore, he is to be placed above them in the seniority list for being considered for promotion to the post of Head Constable. While elaborating his arguments, it is contended by the learned counsel that the petitioner has been appointed as Constable at Secunderabad Division on 1-5-1981 and whereas respondent No.3- Masthan Vali has been appointed as Constable on 06-12-1991, much later to him and all the three of them were transferred to Guntakal Division on various dates, and therefore, respondents 3 and 4 could not be senior to the petitioner. In a way, his contention is that the date of appointment of the petitioner in Secunderbaad Division is to be taken into consideration and therefore, he is to be placed above the respondents 3 and 4 in the seniority list. 7. Per contra; learned senior standing counsel for SCR contends that prior to implementation of R.P.F.Rules, 1987 the post of Constable was a Divisional Post and after enforcement of the R.P.F. Rules, the post of Constable has become a zonal post. The petitioner and the 3rd respondent came to be transferred to Guntakal Division on their own request prior to enforcement of the R.P.F.Rules, 1987. The transfer of 3rd respondent is much earlier to the transfer of the petitioner and therefore, interse seniority between the petitioner and the 3rd respondent in Guntakal Division has been fixed taking into consideration the date of joining. The respondent No.3 joined in Guntakal Division on 15-3-1983, whereas the petitioner joined in Guntakal Division on 11-6-1986 and therefore, the 3rd respondent is senior to petitioner in Guntakal Division. With regard to respondent No.4, according to the learned senior counsel, he came to be transferred to Guntakal Division after enforcement of the R.P.F.Rules, 1989. Therefore, his initial date of appointment has been taken into consideration for the purpose of seniority. Thus, he became senior to the petitioner in Guntakal Division. Learned senior counsel took me to the regulation No.24 of the RPF Regulations, which reads as hereunder:- 24. Request from a member of the Force for transfer from one railway to another on grounds of special cases of hardship may be considered favourably by the Chief Security Officers. Such members transferred at their own request from one railway to another shall be placed below all existing, confirmed and officiating staff in the relevant grade of the cadre to which they are transferred, irrespective of their date of confirmation, or length of officiating service.” 8. It is a matter of record that the petitioner has been transferred from Secunderabad Division to Guntakal Division on his own request, vide Force Order No.101 of 1986, copy of which has been filed along with the material papers enclosed to the counter. The petitioner accepted transfer, subject to his taking last place in the list of confirmed constables in the Guntakal Division. The 3rd respondent came to be transferred from Secunderabad Division to Guntakal Division or 15-3-1983 i.e., much earlier to the petitioner, thereby he became senior to the petitioner in the cadre of Constable in the Guntakal Division. As per R.P.F Rules, 1987, the post of Constable has been made a zonal post. The respondent No.4 came to be transferred from Secunderabad Division to Guntakal Division after enforcement of the Rules. Therefore, the 4th respondent retained his seniority in the post of Constable from the date of his appointment in Secunderabad Division. If the date of appointment is taken into consideration, he became senior to the petitioner in Guntakal Division. Indeed, the respondent explained the rule position to the petitioner in their reply dated 6-2-2001. The petitioner has been given the benefit of ACP Scheme taking into consideration his length of service, which included the service rendered by him at Secunderabad Division and also Guntakal Division. Only for the purpose of seniority, he became junior to respondent No.3 since respondent No.3 joined in Guntakal Division prior to him. By the time, the 4th respondent came on transfer to Guntakal Division , the post of Constable has been made as zonal post. Therefore, he retained his original date of appointment for the purpose of seniority. The seniority list has been prepared as per the regulations and rules in force and the same has been notified. Some of the persons raised objections and their objections have been considered and the corrected seniority list of R.P.F.Constables had been published. In the circumstances, the contention of the petitioner that he is senior to respondents 3 and 4 has no substance. 9. The Writ Petition is devoid of merits and accordingly, the same is hereby dismissed. No costs. _____________________ B.SESHASAYANA REDDY, J Dt.11-10-2011 *RAR