IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.11.2006 CORAM THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.NO.25143 OF 2006 AND M.P.NOS.1 AND 2 OF 2006 A.Marimuthu .. Petitioner Vs. 1.The Chief Security Commissioner- cum-Inspector General, Railway Protection Force, 6th Floor, Moore Market Complex, Chennai-600 003. 2.The Senior Divisional Security Commissioner, Railway Protection Force, 6th Floor, Moore Market Complex, Chennai-600 003. 3.The Selection Committee represented by the Chairman-cum-Divisional Security Commissioner, Trivandrum Division, DRM Office Complex, Trivandrum Central .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus calling for the records relating to the selection to the post of Assistant Sub Inspector in Railway Protection Force, Southern Railway, Chennai under 40% Limited Departmental Competition pursuant to the notification issued by the Chief Security Commissioner, the first respondent made in No.X/P.608/ASIPF/LDC/2000 dated 31.1.2006 quash the same and direct the respondents herein to hold the written examination in the Regional language as ordered by the first respondent and thereafter hold selection to the post of Assistant Sub Inspector, Railway Protection Force or in alternative to appoint the petitioner herein as Assistant Sub Inspector, Railway Protection Force, for the illegality committed by the department within a date that may be fixed by this Court. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.K.Rajkumar For Respondents: Mr.V.Radhakrishnan - - - - ORDER This writ petition is filed challenging the notification of the first respondent, the Chief Security Commissioner-cum- Inspector General, Railway Protection Force, dated 31.1.2006 in respect of the selection to the post of Assistant Sub Inspectors in Railway Protection Force, Southern Region, Chennai under 40% Limited Departmental Competition and also for a direction against the respondents to hold written examination in the Regional language and hold selection to the post of Assistant Sub Inspectors, Railway Protection Force or in alternative to appoint the petitioner as Assistant Sub Inspector, Railway Protection Force, for the illegality committed by the department. 2.The case of the petitioner is that the Railway Protection Force is a para military force. This writ petition relates to the post of Assistant Sub Inspector in Railway Protection Force through Limited Departmental Competition among the eligible constables. The said post has to be filled up by giving 60% to promotees from the post of Head Constables, which is called as rank promotion and the remaining 40% has to be filled up through Limited Departmental Competition, which is called as LDC. The petitioner's claim is under the said 40% quota. As per the relevant clause, namely Rule No.72 of the RPF Rules, 1987, the qualification to participate under LDC is Head Constables, Naik and Constables with 10 years service on the date of the notification. For Constables, two chances are given under LDC to become Assistant Sub Inspector through the said method. It was by the notification issued by the first respondent, dated 31.5.2006, 33 vacancies are notified under LDC category. According to the notification, the selection consists of the written examination with maximum mark of 40 and the practical test including IT, PT and Riot Drill, with maximum marks of 20. Out of the total 60 marks, the qualifying mark to be obtained is 36 for unreserved category and 30 marks for SC and ST candidates. The candidates, who qualified in the above said test, are subjected to viva-voce, in which out of 40 marks, 20 marks for personality, comprehension, oral expression temperament and response social consciousness and the remaining 20 marks to record of service. https://hcservices.ecourts.gov.in/hcservices/ 3.The petitioner was called upon to attend the selection committee on 22.7.2006 and he was called upon to write the written examination on 23.7.2006. It was as per the decision of the administration, as accepted by the first respondent, dated 22.6.2006, permission was given to write the examination in the local language. However, when the petitioner has appeared for examination on 23.7.2006, he found that the question papers were given in English and not in the regional language of Tamil. The vacancies were not assessed year-wise. However, the persons eligible as on 2005 was taken into account, resulting many Constables with less than 10 years for the years 2000, 2001, 2002, 2003 and 2004 vacancies, were made eligible in 2005 selection, with the result, fresh candidates, who have come in the year 2005, were denied due opportunity. 4.The petitioner also would state that the selection committee has not communicated the marks obtained in the written examination to all candidates, instead it sent call letters to attend viva-voce on 8.8.2006 for eligible candidates. According to him, he has done very well in the examination, expecting minimum 35 marks out of 40 marks and in the practical test minimum 15 marks out of 20 marks. It is also the admitted case of the petitioner that only two weeks before the selection test for Assistant Sub Inspector, he got selected as the Head Constable in the similar type of test. According to the petitioner, while the persons like the petitioner are permitted to write the examination in local language, namely Tamil, setting the question papers in English does not serve any purpose and there is no fairness in the valuation and the selection was not conducted properly. 5.The petitioner challenges the impugned notification on various other legal grounds, stating that it is in violation of Articles 14 and 21 of the Constitution of India; that the non examining the candidates like petitioner in the regional language is arbitrary and illegal, especially when they were permitted to write answers in Tamil, but the question papers were set in English; that there are some cases, wherein the persons, who have failed in the test for Head Constable post have been given more mark in the present test as per the examiners choice; that fixation of 40 marks in the viva-voce is excessive and it would lead to arbitrariness; that the vacancies for the year 2000, 2001, 2002, 2003 and 2004 were cumulatively taken in the year 2005, with the result the persons, who were not eligible in 2001, 2002, 2003 and 2004, were made eligible, since by the time when they were called for, they have completed 10 years of service as Head Constables, resulting that the fresh candidates in the year 2005 are unable to get proper representation. https://hcservices.ecourts.gov.in/hcservices/ 6.The respondents have filed counter affidavit, stating that as per the Rule, the direct recruitment to the Force shall be made at the level of Constables, Sub Inspectors and Assistant Commandants and all other posts are to be filled up by promotion or through LDC. As per Rule 70 of the RPF Rules, 1987, the posts of the Assistant Sub Inspector are filled up by promotion as well as through LDC. It is admitted that selection of 40% is filled up by LDC. It is also admitted that 10 years of experience is required for the appearance in the selection. The vacancy position for the post of the Assistant Sub Inspector was modified as 33 in the notification, while the mode of examination for the written test and viva-voce, as stated by the petitioner, is admitted. The respondents states that since some of the candidates, who have applied for selection, requested permission to write the written examination in regional languages apart from Hindi and English, an administrative decision was taken to allow the candidates to write the examination in any of the regional languages apart from Hindi and English, by proceedings, dated 15.6.2006. It was after that decision, by letter dated 20.6.2006, the willing candidates, who have not applied earlier, were also given an opportunity to apply afresh and they were advised to submit their applications on or before 15.7.2006 and the written examination was postponed to 23.7.2006. The petitioner, who was selected to write the written examination at Trichy, has opted to write the examination in the regional language Tamil. As per the orders of the Railway Board, dated 18.8.2003, the question papers were prepared in English and Hindi. The allegation of the petitioner that he could not understand English, is denied, as the petitioner has been in service for 21 years having passed Higher Secondary examination. Since the petitioner did not obtain qualifying marks in the written examination, he was not called upon to appear viva-voce test. It is the case of the respondents that the selection process was made known to all and it was after accepting the conditions of selection process only, the petitioner has participated. According to the respondents, when once the petitioner has participated in the selection process, it is not open for him to question the process, simply because he was unsuccessful in the examination. As per the guidelines, the question papers were set up in English and Hindi, while options were given to the candidates to write in the regional language. The petitioner, having chosen to write the examination in the regional language, has not raised any objection to the examiner about the set up of question papers not in the regional language. It was only having failed in the written examination, he has raised the objection. Except the petitioner, no other person has ever raised this sort of objection. The vacancies notified in the impugned notification were assessed as on date for the reason that last examination was held between 24.7.2001 and 26.7.2001 and https://hcservices.ecourts.gov.in/hcservices/ thereafter, selection was deferred, which was revoked only on 16.9.2004 and it was only thereafter, restructuring of selection process was started. 7.It is also the specific case of the respondents in the counter affidavit that the petitioner got selected to the post of the Head Constable by writing the same examination and practical test. Since he was not selected for the post of Assistant Sub Inspector, he questioned the same. It is also the case of the respondents that the question papers were evaluated by the member, who knows Tamil and therefore, there is no arbitrariness. The allegation regarding the selection of some persons in an improper manner is denied. 8.The petitioner has filed rejoinder statement, reiterating the facts once again, stating that when once option is given to write the examination in the regional language, no useful purpose will be served in giving the question papers in English and Hindi and that will only creates an injustice. 9.Mr.K.Rajkumar, the learned counsel appearing for the petitioner would submit that the letter of the Divisional Security Commissioner, Chennai, dated 23.6.2006, giving an opportunity to the eligible candidates, who wish to write limited departmental examination for the post of the Assistant Sub Inspector in the regional language and extending the period of application, will not serve any purpose, unless the question papers are set up in the same language. That apart, the learned counsel would submit that prescribing 40% marks for interview is against the norms set by the Honourable Apex Court in various cases. The learned counsel would state that even though he has not chosen to challenge the relevant rule, under which the said stipulation has been made, he is entitled to raise the same, since it results in serious consequences. The learned counsel would further submit that since 2001 to 2004, there was no selection due to the ban of appointments, 40%, which is allotted to LDC, has been clubbed together in the year 2005, resulting the persons, who are ineligible during the relevant period from 2001 to 2004, who were made eligible in the year 2005, since they completed 10 years of service. He would also rely upon the Rule 45 of the RPF Rules, 1987, which empowers the Chief Security Commissioner to work out each year the number of vacancies in each rank and take steps to fill up in accordance with the Rules. According to him, by clubbing of five years, gross injustice have been committed. The learned counsel would submit that non preparation of selection list every year in accordance with Rule 45(2) of the RPF Rules, 1987 results in rendering the selection process illegal and once illegality is exposed, the petitioner is entitled to claim alternative prayer for providing employment to him. https://hcservices.ecourts.gov.in/hcservices/ 10.The learned counsel for the petitioner would also admit that the petitioner has, in fact, undergone the similar test for the post of Head Constable, wherein the question papers were set in English and Hindi and he has passed. He also admits that the petitioner, who had undergone similar test for the post of Assistant Sub Inspector, has failed and therefore, he has come to this Court. 11.On the other hand, Mr.V.Radhakrishnan, the learned counsel appearing for the respondents would submit that by proceedings, dated 28.10.2002, the respondents have decided to defer the departmental competitive examination. It was subsequently withdrawn on 16.9.2004. In the meantime, the Government of India, Ministry of Railways, in its proceedings, dated 15.9.2004, has taken a policy decision, restructuring the group C and D cadres as a one time measure. The order passed in the year 2002, deferring the selection, has not been challenged by any one. Therefore, according to the learned counsel for the respondents, when such an earlier order of deferring, remains unchallenged, it is not open to the petitioner to raise the same. As far as 40% viva-voce is concerned, the learned counsel for the respondent would submit that the same was only based on Rule 71 of the RPF Rules, 1987. The petitioner was not called for viva-voce test, since he has not obtained the qualifying marks in the written examination. The learned counsel would also rely on the judgment of the Apex Court reported in 2003 (2) SCC 132 (JASVINDER SINGH AND OTHERS VS. STATE OF J&K AND OTHERS) to justify that the marks given to the viva- voce is not arbitrary. In respect of the allegations relating to the writing of examination in the regional language, the learned counsel would also rely on Rule 45(3) of the RPF Rules, 1987 to show that directives can be issued. It was based on the said power, in fact, guidelines were issued in 2003, according to which, it is specifically stated that question papers shall be both in English and Hindi. These guidelines remain valid as on date. The learned counsel for the respondent would also submit that the petitioner was aware, at the time when he was called for written examination, about the said guideline that the questions are set in English and Hindi and in fact, the same petitioner, for the post of the Head Constable, has written the same test, wherein also the question papers were set in English and Hindi and having participated in the said examination, he cannot be permitted to question the validity of the same, for which, he placed reliance of the judgments of the Honoruable Apex Court reported in 2006 (6) SCC 395 (K.H.SIRAJ VS. HIGH COURT OF KERALA AND OTHERS) and 1995 (3) SCC 486. According to the learned counsel for the respondents, as on date, as per the statutory rule under Rule 70(2) of the RPF Rules, 1987, the proceedings have been done and therefore, inasmuch as the said Rule remains valid, the petitioner is not https://hcservices.ecourts.gov.in/hcservices/ entitled to challenge the procedure followed in the recruitment process. 12.Heard the learned counsel for the petitioner and also the learned counsel for the respondents and perused the entire records. 13.It is true, as admitted by both parties, that in respect of selection of the Assistant Sub Inspector under LDC, 40% of total strength is allotted. It is the case of the respondents that by restructuring, which was a one time measure, the number of vacancies was arrived at as 33 and it is also admitted that between 2001 to 2004, there was no recruitment. The point raised by the learned counsel for the petitioner is that when, between the said period, there was no recruitment, clubbing of all the vacancies in respect of those years for the present recruitment is illegal. In this regard, it is relevant to note the RPF Rules, 1987, which is applicable. The recruitment is explained under Rule 45, which runs as follows: "45.Recruitment: (1)Direct recruitment to the Force shall be made at the level of Constables, Sub-Inspectors and Assistant Commandants and all other posts shall be filled in by promotion or through a limited departmental competition from amongst the eligible enrolled members of the Force or by taking personnel on deputation in accordance with these rules. (2)The Chief Security Commissioner concerned shall work out each year the number of vacancies in each rank and shall take steps to fill them up in accordance with these rules. (3)The procedure for filling up these posts and other matters not specially provided for in these rules shall be such as may be specified in the Directives." A reading of Rule 45 shows that no doubt that each year number of vacancies are to be ascertained and steps are to be taken to fill up the same in accordance with the rules. It also enables that in respect of the other matters, which are not specifically provided, specific directives can be given. It was based on the said power, a decision was taken by the respondents on 28.10.2002, deferring the selection. Of course, it was ultimately on 16.9.2004, the Government has taken a decision to withdraw the same. It was after the said withdrawal, the Government has taken a policy decision, restructuring Group C and D cadres of RPF and RPSF as it is seen in the proceedings of the Ministry of Railways, dated 15.9.2004. Accordingly, the said modified selection procedure was taken as a one time measure for the purpose of expediting the https://hcservices.ecourts.gov.in/hcservices/ implementation of the order. The relevant passage of the said proceedings dated 15.9.2004 is as follows: "This modified selection procedure has been decided upon by the Ministry of Railways as a one time exception by special dispensation, in view of the numbers involved, with the objective of expediting the implementation of these orders. In the case of Artisan staff, the benefit of restructuring under these orders will be extended on passing the requisite Trade Test." At this juncture, it is relevant to point out that the petitioner was very much in the service under the respondents at the time when the decision was taken to defer the selection in the year 2002 and in 2004 to cancel the deferment and restructuring the cadres and make appointments as a one time measure. The petitioner has not chosen to make any whisper about the same at that time. The petitioner cannot say that he was not aware about the deferment. 14.It is pursuant to the powers conferred under Rule 45(3) of the RPF Rules, 1987, enabling the Authority to give directives, in fact, the respondents have framed guidelines for personnel officers and members of selection Board as communicated in the letter, dated 18.8.2003. The said guidelines remain valid as on date. Clause 7, while speaks about the selection process and official language, categorically states that all question papers for the written test should be both in Hindi and English. The said Clause 7 runs as follows: "7.SELECTION PROCESS AND OFFICIAL LANGUAGE: 7.1.The following points should be kept in mind while conducting selections: (i)Option of Hindi medium should be allowed in all the written tests conducted as a part of the selection process. While calling options from candidates or while alerting the candidates to be in readiness for the examination, they should be informed that they will have an option to answer the question papers in Hindi. (ii)All the question papers for the written test should be both in Hindi and English. Violation of these instructions is deemed to be a procedural irregularity and the selections are liable to be cancelled." It is pursuant to the said guidelines, which are statutory and the same have been framed as per Rule 45(3) of the RPF Rules, 1987, the question papers for the examination have been set up in English and Hindi. Inasmuch as the said guidelines remain unchallenged, I do not think that there is any scope for the petitioner to raise objections about the manner of conducting written examination by the respondents. In this regard, it is https://hcservices.ecourts.gov.in/hcservices/ relevant to point out that permission to write the examination in the regional language has been given at the request of the candidates, who wished to write limited departmental examination for selection to the post of Assistant Sub Inspector in the regional languages. It was considering the same, by letter, dated 23.6.2006, the said permission was given by the Divisional Security Commissioner to write the examination in Tamil and the same is certainly well within the powers of the authority under the RPF Rules, 1987, especially Rule 45(3) of the RPF Rules, 1987. However, that guideline, permitting the petitioner and others, who wished to write the examination in Tamil, has not taken away or scrapped the guidelines, which are already in existence as stated above and communicated on 18.8.2003, especially clause 7, as I have elicited above. In view of the above factual position, I do not think that there is any scope for the petitioner to challenge the method of examination on this count also. 15.The learned counsel for the petitioner, placing reliance upon the judgment of the Apex Court rendered in SATPAL AND OTHERS VS. STATE OF HARYANA AND OTHERS reported in 1995 Suppl (1) SCC 206, would submit that when once the selection process is illegal and discriminatory, the same can be set aside by the Court. That was the case wherein in respect of the selection to the post of Patwaris, 85% mark was allotted for interview and the Committee has interviewed nearly 400 to 600 candidates every day and the Honourable Apex Court, having come to the conclusion that the entire process is illegal, has set aside the selection process. However, on the facts of the present case, by fixing of 40% to viva-voce test and the remaining 60% for written examination, it is not as if the entire process of selection becomes illegal. As I have stated earlier, the process of selection has been done based on the guidelines, which remain unchallenged. 16.As far as the guidelines for Departmental Promotion Committee for holding selection is concerned, admittedly, the same is governing under Rule 71 of the RPF Rules, 1987, which runs as follows: "71.Guindelines for Departmental Promotion Committee for holding selection under rule 70 (1)Allocation of marks for written examination and practical test shall be as follows, namely;- Maximum marks Qualifying marks (a)Written Examination 40 60 36 (b)Practical test including 20 IT, PT and Riot Drill https://hcservices.ecourts.gov.in/hcservices/ (2)Candidates qualifying in the above test shall be subjected to a viva voce test for which marks may be awarded having regard to factors specified in the Directives, and the maximum marks shall be as follows, namely:- Maximum marks (a)Personality, comprehension, oral expression, temperament and response, social consciousness 20 (b)Record of service 20 (3)A panel shall be drawn from amongst the candidates securing sixty percent or more marks in the order of their respective seniority in the rank. PROVIDED that candidates obtaining eighty percent marks in the aggregate or more shall be declared as "outstanding" and shall take higher position by fifty percent of the successful candidates above him in order of seniority. (4)Qualifying marks for candidates belonging to the Scheduled Castes and Scheduled Tribes shall be thirty marks under sub-rule (1) and fifty percent under sub-rule(3)." Fixing of 40 marks in the written examination and 20 marks in the practical test and all together make it maximum of 60 marks and notifying that 36 marks out of 60 marks is a qualifying mark and thereafter, fixing 40 marks for viva-voce on the two headings, which are clearly based on the guidelines and are ascertainable, can never be said to be arbitrary. Apart from that, the statutory rule under Rule 71 has not been challenged either by the petitioner or by any one else. Therefore, I have no hesitation to come to the conclusion that this is not a