RBE No.222/2004: GDCE – RPF/RPSF staff not eligible – WP No.13376/2004 dismissed

No.E(NG)I/2002/PM2/9, dated 13.10.2004

Sub: Scheme of GDCE for filling up a part of Direct Recruitment quota posts in Group ‘C’ categories – Consideration of RPF personnel.

1. In terms of the instructions contained in this Ministry’s letter of even number, dated 11.08.2003 (RBE No.139/2003), RPF/RPSF staff have been the debarred from appearing in GDCE and other Departmental selection for promotion in Departments other than RPF/RPSF. Subsequently, a copy of CAT, Principal Bench, New Delhi’s Judgment dated 30.12.2003 in OA No.2661/2003 upholding the above instructions was circulated to the Railways for information and guidance vide this Ministry’s letter of even number, dated 24.03.2004 (RBE No.64/2004).

1.1 The issue was also raised by way of Writ Petition No.13376/2004 before the Hon’ble High Court of Andhra Pradesh and Hon’ble High Court vide their order, dated 17.08.2004 have dismissed the writ petition. The operative portion of High Court’s Judgment as contained in para 24 & 25 thereof is reproduced as under:

“24. In the light of the policy decision of the Railway Board that the members of the Railway Protection Force cannot be treated as one of the Departments of the Railway Board, the Judgements of Supreme Court referred supra and in the light of the order of Central Administrative Tribunal, Principal Bench, New Delhi in O.A.No.2661 of 2003, the petitioners being the member of the Railway Protection Force are being treated as a different class and they do not come from the same class under which the member of other departments of the Railway Board were brought and treating them in a different standard does not amount to violation of the equal right provided under Article 14 and 16 of the Constitution of India. There are no Grounds to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution and to issue any direction by way of a writ of mandamus against the respondents.
25. With the above observations, the writ petition is dismissed at the admission stage.”

Writ Petition No.13376 of 2004
[Decided on 17.08.2004]

Coram:
The Honorable Dr. justice G. Yethirajulu

M. Srinivas Reddy & Others – Petitioner
versus
Union of India & Others – Respondents

Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court will be pleased to issue a writ or order or direction, more particularly one in nature of Writ of Mandamus declaring the action of the 2nd respondent in not allowing the Petitioners for change of cadre as ministerial staff i.e. Junior Clerk in the scale of Rs.3050-4590 RS(RP) in pursuant to the Notification No.P/PE/228/New Zones/Vol-I, dated 04.06.2004 of the 3rd respondent throught his proceedings No.X/P.95/Policy, dated 12.07.2004, which is based on the 1st respondent’s Board’s Lr.No.E(NG)I/2002/PM2/9, dt. 11.08.2003 (RBE No.139/2003) and letter No.E(NG)I/2002/PM2/9, dated 24.03.2004 (RBE No.64/2004) as illegal, arbitrary and violative of Article 14 and 16 of the Constitution of India and consequently direct the respondents to absorb the petitioners as Junior Clerks on change of cadre.

For the petitioner – Mr. J.N. Naidu
For the respondents – Mr. Gauri Shankar Sanghi for Rmapp.
The court at the admission stage made the following:

ORDER

1. The petitioner are working as Constables in Railway Protection Force appointed on various dates from 1998 to 2000. The third respondent who is the Chief Personnel Officer, South Central Railway, Secunderabad circulated a notification vide proceedings No.P/LE/228/New Zones/Vol-I, dated 04.06.2004 inviting options from Group-C staff having graduate qualification (Technical/ Non-technical categories) to join as Ministerial staff in the time scale of Rs.3050-4590 RS(RP) on bottom seniority and Junior Clerk on permanent basis as a change of Cadre from one category to another category at North Eastern division. The last date for exercising the option was fixed as 30.06.2004. The Divisional Security Commissioners forwarded all the applications submitted by the petitioners to the second respondent instead of sending them to the third respondent. The last date for forwarding the applications to the third respondent was 12.07.2004. The second respondent instead of forwarding the applications to the third respondent declined to forward those applications through proceedings No.X/P.95/Policy, dated 12.07.2004 on the basis of first respondent’s proceedings viz. Railway Board’s letter No.E(NG)I/2002/PM2/9, dated 11.08.2003 (RBE No.139/2003) and letter No.E(NG)I/2002/PM2/9, dated 24.03.2004 (RBE No.64/2004), which are based on judgments of Central Administrative Tribunal, Principal Bench, New Delhi vide O.A.No.2661/2003. The petitioners being aggrieved by the action of the second respondent in issuing the proceedings, dated 04.06.2004 and the proceeding of the third respondent, dated 12.07.2004 basing of the first respondent’s letters, dated 11.08.2003 (RBE No.139/2003) and 24.03.2004 (RBE No.64/2004) approached the Court for issuing a writ of Mandamus holding them illegal, arbitrary and violative of Article 14 and 16 of the Constitution of India.

2. It is an undisputed fact that the petitioners are working as Constables in the Railway Protection Force. They are under the administrative control of the Director General and under the overall supervision of the General Manager, South Central Railway, Secunderabad. The General Manager issued a notification dated 04.06.2004 providing the facility of option to the Group ‘C’ staff to those who posses Graduate Degree (Technical/ Non- technical categories) to join as ministerial staff in the time scale of Rs.3050-4590 RS(RP) on bottom seniority. In the said notification the General Manager mentioned at it is decided to extend the facility of option to all the graduates (technical/ non-technical categories) working in Group ‘C’ posts to work as ministerial staff i.e. Junior Clerks on permanent basis as a change of cadre from one category to another at NED subject to certain conditions. It was further mentioned in this notification that this is a rare opportunity extended as one time dispensation for change of category to all technical and non-technical categories (other than running staff) to opt for ministerial category on bottom seniority. He further mentioned that there is likelihood of better chances of promotion on NED division in the ministerial cadre due to availability of vacancies. It was also mentioned that this factual position may be brought to the notice of the concerned duly giving wide publicity as no staff should feel that they have lost the opportunity because of un-awareness of this letter. The General Manager further mentioned in the notification that options exercised before 30.06.2004 should be forwarded to the Division Head Quarters before 05.07.2004 and the Division Head Quarters should forward the same through SPO/Rules in a bunch by 12.07.2004. The said notification was marked to GS/SCRE Sangh/SC, GS/SCRM Union/SC, SC/ST Association/SC, All SPOs and APOs in Head Quarters for the purpose of information.

“With reference to the above, it is to inform that the RPF staff are not permitted to opt for the post of Jr. Clerk vide reference cited above in the light of Board’s letter No.E(NG)I/2002/PM2/9, dated 11.08.2003 (RBE No.139/2003) and Lr. No.2003/Sec(E)/PM-3/3, dated 16.02.2004 circulated vide this office letter even No., dated 05.09.2003 and 27.02.2004 respectively.
In view of the above position, the applications of RPF staff forwarded by the division for the post of Junior Clerk in NED division are returned herewith. The staff may be informed accordingly.
This issues with the approval of CSC/SC.”

4. The copies of this proceedings where marked to the General Secretary/ RPFA/ SCR for information and ISPF/ SIB, ‘A’ Coy/HQrs. And QM for information and necessary action.

5. The petitioner contended that they are being treated as “railway servants” for all practical purposes, in view of Section 10 of the Railway Protection Force Act, 1957 (for short ‘the Act’) and it reads as follows:

“Section 10
The Director General and every member of the Force for all purposes be regarded as “railway servants” within the meaning of the Indian Railways Act, 1890 (9 of 1890), other than Chapter VI-A thereof, and shall be entitled to exercise the powers conferred on railway servants by or under that Act.”

6. The learned Council submitted that except the disciplinary proceedings which is within the purview of the Director General, the petitioners are governed by Rule 80 of the Railway Protection Force Rules, 1987 (for short ‘the RPF Rules’) for the purpose of Provident Fund, Gratuity, Pension, medical facility, passes etc. The learned counsel submitted that according to Rule 80 the servants of the Railway Protection Force shall be governed by the railway rules in the absence of a specific provision under the RPF Rules. Rule 80 of the RPF Rules reads as under:

(1) In matter relating to – (i) Provident fund, (ii) Gratuity, (iii) Pension, (iv) Medical facilities, (v) Passes and Privilege Ticket Orders, (vi) Educational assistance, (vii) Travelling and transfer allowances, and (viii) Other financial matters.
Superior officers and enrolled members of the Force shall be governed by the provisions of these or where no specific provision has been made in these rules then the extent Railway Rules in the same manner as officers holding corresponding rank or grades in the Railways are governed by the said Railway Rules:
Provided that the extent Railway Rules relating to the aforesaid matter may be modified by the Central Government from time to time in their application to the member of the Force.
(2) A Provident Fund account books shall be issued to each member of the Force in which deductions made by the Pay Drawing Authority shall be periodically entered and authenticated.”

7. The learned Counsel also drew the attention of this Court to Section 2(34) of Railway Act, 1989, which defines the words “Railway Servant” and contented that in view of the amendment to Section 2(34) under the Railways second Amendment Act, 2003 which came into force on 01.07.2004, members of the Railway Protection Force appointed under Clause (c) of Sub-section (1) of Section (2) of Railway Protection Force Act, 1957 are also coming under the definition of the “railway servants”. The definition of “railway servants” after the amendment reads as follows:

“Sec. 2(34)
“Railway servant” means any person employed by the Central Government or by a Railway Administration in connection with the service of a railway, including member of the Railway Protection Force appointed under clause (c) of sub-section (1) of Section (2) of the Railway Protection Force Act, 1957.”

8. The learned counsel for the petitioners further submitted that the security department in which the petitioners are now working is treated as one of the departments of Railways and the respondents are therefore provided the channel of promotion to the security personnel also. When the respondents in the similar cases refused to forward the applications of the Constables for the post of Assistant Station Master in the year 1995, the employees have filed W.P. No.19521 of 1995 and an interim direction was given by this Court to forward the applications to the second respondent.

9. The learned Council for the submitted that the fourth respondent directed his subordinates to relieve the selected candidates in the connection for training by letter, dated 14.08.1997. When the respondents denied the employees to undergo training, some of the employees filed W.P. No.25872 of 1995 on the file of this Court and this Court granted interim direction in W.P.M.P. No.31877 of 1995, dated 16.11.1995 and the petitioners therein were sent for training to the post of Assistant Station Masters. The learned counsel further submitted that the action of the second respondent in refusing to forward the applications of the petitioners to the posts of Junior Clerk on the basis of the proceedings of the first respondent dated 11.08.2003 (RBE No.139/2003) and letter dated 24.03.2004 (RBE No.RBE No.64/2004) is illegal, arbitrary and violative of Article 14 and 16 of the Constitution and the same may be declared as such.
10. The point for consideration is whether the petitioners who are working as RPF Constables can be treated as member of the railway service for the purpose of making applications to the post of Junior Clerk by virtue of an option given to all the graduates working in Group ‘C’ posts.

Points
11. The third respondent issued a notification on 04.06.2004 mentioning that it is decided to extend the facility of option to all the graduates (technical/ non-technical categories) working in Group ‘C’ posts (other than running staff) to work as ministerial staff i.e. Junior Clerk in scale Rs.3050-4590 on permanent basis as a change of cadre from one category to the other subject to certain conditions. It was further mentioned in the said notification that this is a rare opportunity extended as one time dispensation for change of category to all Technical and Non-technical categories (other than running staff) to opt for ministerial cadre on bottom seniority. There is likelihood of better chances of promotion on and NED division in the ministerial cadre due to availability of vacancies.

12. On 12.07.2004 second respondent addressed a letter to the Deputy Chief Security Commissioner and Assistant Security Commissioner of various places informing that RPF staff are not permitted to opt for the post of Junior Clerk vide CPO/SC letter No.P/CE/228/New Zones/Vol-I, dated 10.06.2004 in the light of Board’s letter No.E(NG)I/2002/PM2/9, dated 11.08.2003 (RBE No.139/2003) and letter No.2003/Sec(E)/PM-3/3, dated 16.02.2004 circulated through the office letter dated 05.09.2003 and 27.02.2004 respectively. He further mentioned in the said letter that in view of the above position the applications of the RPF staff forwarded by the divisions for the post of Junior Clerks in NED divisions are returned and the staff members may be informed accordingly. The Railway Board through its letter No.E(NG)I/2002/PM2/9, dated 11.08.2003 (RBE No.139/2003) clarified the position on the Plea of RPF Constables who applied for Junior Clerks and the said clarification to the extent necessary for the purpose of this writ petition read as follows:

The question whether RPF/RPSF personnel should be considered eligible to appear in GDCE or other Departmental Selections for appointment/ promotion to posts in Department other than RPF/RPSF in the Railways has been considered carefully by the Board in consultation with the Ministry of Home Affairs. As the Railways are aware, the scheme of GDCE has been introduced with the main objective of facilitating redeployment of surplus staff either by redeployment of such staff in the posts vacated by staff selected under GDCE or surplus eligible staff themselves getting selected under the scheme. However, the selection of RPF/RPSF staff under the GDCE cannot in anyway facilitate redeployment of surplus staff. In view of this and on the analogy of practice being followed by the Central Police Forces (CPFs) under the control of Ministry of Home Affairs as also the very nature of job and the method of recruitment in RPF/RPSF, it has been decided that RPF/RPSF personnel cannot be allowed to appear in the GDCE. They will also not be eligible to appear in other Departmental selections in Departments other than RPF/RPSF. However, the past cases decided otherwise will not be reopened.

13. Challenging the above letter, dated 11.08.2003 (RBE No.139/2003) some of the RPF Constables have filed an original application vide O.A.No.2661 of 2003 before the Central Administrative Tribunal, Principal Bench, New Delhi and the Tribunal in its order, dated 30.12.2003 passed in the said application observed that RPF/RPSF cannot be said to be covered within the meaning of “other department staff”. The Tribunal further held as follows:

“7. We are inclined to agree with the intention of the respondents that the applicants are part of combatised Force created specifically to look after the security needs of the Indian Railways and the mode of their selection and training has been conducted in that direction only. Thus, creation of such post appears to be totally unrelated to the ministerial needs. Admittedly, the applicants had joined the Force and underwent special training with the full knowledge and intent to remain as member of the combatised Force only and not to migrate to ministerial cadre. Undoubtedly, as admitted by the respondents as well, on certain earlier occasions some members of RPF/RPSF staff had participated in the departmental examinations for the post of Junior Cashier, but we tend to agree with the argument of the respondents that, the by itself does not confer any right on otherwise ineligible members of the Force to appear in the examination because the applicants have not been able to produce before us any rules to show that they are entitled as a matter of right to appear in the examination for the post of Junior Cashier.

14. Subsequent to the circular dated 11.08.2003 (RBE No.139/2003) of the Railway Board, the All India RPF Association made a representation to the Ministry of Railways to permit the personnel of RPF to appear for appointment or for selection or examination of the other Departments of railway and the same was rejected on 16.02.2004. A communication was sent to that effect to the Chief Security Commissioner, Railway Protection Force, South Central Railway, Secunderabad. In response to his letter, dated 23.12.2003, and the same reads as follows:

The demand of All India RPF Association for allowing RPF personnel to appear in the GDCE of the Railways has been considered in consultation with the establishment, Directorate of ministry of Railways. It is however regretted that the demand of All India RPF Association cannot be agreed to.

15. In V. Damodar Rao and another v. The Chief Personnel Officer, South Central Railway, Rail Nilayam, Secunderabad & others (W.P.No.29414 of 1998, dated 10.02.1999 delivered by Hon’ble Mr. Justice S.V. maruthi) a learned single Judge of this Court held as follows:

The petitioner’s contention cannot be accepted in view of the fact that the RPF Department is not included in Chapter-I of the Railway Establishment services rules under Sub-section III which provides for recruitment and training for 14 departments. The departments included in the said Chapter are: (1) Transportation (Traffic) Department, (2) Commercial Department, (3) Transportation (Power) Department, (4) Mechanical and Electrical Engineering Department, (5) Civil Engineering Department, (6) Signal And Telecommunication Department, (7) Drawing Office Cadre, (8) Stores Department, (9) Skilled Artisans, (10) Medical Department (Paramedical Staff), (11) Scientific Staff, (12) Ministerial and Non-Ministerial Categories, (13) Official Language Department, and (14) Railway School Staff.
The categories under the expression “Other Departments” mentioned under rule 170(1)(99)(c) relates to those categories only which are mentioned under Sub-section 111(XII) which is as under:
XII. Ministerial and Non-ministerial categories:
(a) Accounts Department
xxx
(b) Other than Accounts Department:
(i) Office Clerks, (ii) Typist, (iii) Stenographers.
It is therefore clear that the Railway Protection Force Department is not included in the Departments narrated above and also the category of Constables is not mentioned under sub-section 111(XII)(b). Therefore, the petitioners are not eligible for consideration to the post of Cashier. The writ petition has no merits and it is accordingly dismissed.

16. The learned counsel for the respondents further submitted that the policy decisions of the Railway Board cannot be interfere with by this Court and it is for the state to decide whether any Department is to be included for the purpose of extending a particular benefit. The learned counsel for the petitioner submitted that permitting the employees of various departments of South Central Railway and denying similar opportunity to the personal of Railway Protection Force amounts to discrimination and is violative of Article 14 and 16 of the Constitution of India.

17. In this regard it may be appropriate to refer to certain decisions of the Supreme Court. In Vijay Lakshmi v. Punjab University [(2003)8 SCC 440] while dealing with the question as regard to the reservation of post in women’s college/ hostel for women only the Supreme Court observed as follows:

In the light of the established propositions of law interpreting Article 14 to 16 it can be stated that there could be classification between male and female for certain posts. Such classification cannot be said to be arbitrary or unjustified. In cases where the policy decisions taken by the State beyond the rules are framed accordingly, it cannot be termed to be arbitrary or unjustified. Hence, it is not possible to hold that the rules empowering the authority to appoint only a lady Principal or a lady Teacher or a lady Doctor or a woman Superintendent are violative of Article 14 or 16.
It is not for the Court to sit in appeal against the policy decision taken by the State Government. It is for the state to decide whether such a rule is preventive one or precautionary measure.

18. In western U.P. Electric Power & Supply Co. Ltd. v. State of U.P. [(1969)1 SCC 817] the Supreme Court held as follows:

Article 14 of the constitution ensures equality among equals: its aim is to protect persons similarly placed against discriminatory treatment. It does not however operate against the rational classification. A person setting up a grievance of denial of equal treatment by law must establish that between persons similar circumstanced, some were treated to their prejudice and the differential treatment had no reasonable relation to the object sought to be achieved by the law.

19. In Chief Security Commr., SCR, RPF, Rail Nilayam, Sec’bad v. H.Srinivasa Rao [2001 (2) ALD 678 (DB)] while answering the challenge made by the petitioners to a policy decision taken by the Railways as regard to merger of fire-service branch in the executive branch consequent on the closure of fire-service branch a division bench of this Court held as follows:
The Court, normally it is not inclined to interfere with such policy decision unless the same is found to be patently arbitrary or illegal. If the persons affected can show there had been a flagrant violation of the policy decision itself, and then only the same can be subject matter of judicial review. A policy decision which is in the Exclusive domain of the State can be struck down only when the same is ultra vires or unconstitutional. Bereft of violation of Article 14 and 16 of the Constitution of India, no policy decision can be done away with.

20. In State of Maharastra v. Dr. Shri Hari Shanker Vaidya [1997 (4) Supreme 352] while dealing with the claim made by certain teachers working in Ayurvedic, Unani and Homeopathic aided institutions for pension and gratuity on par with State Government Civil Servants, the Supreme Court held that whether the scheme could be extended or not was a question of executive policy and the Court would not take responsibility of directive the Government to extend the policy. The Court requires examination as to how the policy laid down is being worked-out. Since it is stated that extending of the above benefits to the teachers mentioned above involve huge financial outlay, the Supreme Court directed the Government to consider extension of benefits of pension and gratuity scheme to the teachers working in Ayurvedic, Unani and Homeopathic aided educational institutions in a phased manner, as was done with respect of other aided institutions.

21. The learned counsel for the petitioners submitted that in the definition of the word “railway servant” as amended in the Railway Protection Force (Amendment) Act, 2003, which came into force with effect from 01.07.2004, the member of Railway Protection Force is also included, therefore, the petitioners shall be treated as “railway servants” and a direction may be given to the respondents that they are entitled to make application of the Junior Clerk post notified by the Chief Personnel Officer.

22. The Railway Protection Force (Amendment) Act, 2003, (Act 51 of 2003) was brought into existence with the following object:

The railway administration has at its disposal seventy thousand personnel of the Railway Protection Force, which is an armed Force of the union. The Railway Protection Force has been given limited powers under the Railway Property (Unlawful Possession) Act, 1966 to take action against any person who is found in unlawful possession of railway property. However, the Railway Protection Force is not able to actively help the railway administration in dealing with day-to-day problems and to ensure smooth running of trains. Though the Railway Act, 1989 empowers the railway servants, including a member of the Railway Protection Force, to arrest without warrant the persons committing offences mentioned in section 179 of the said Act and to produce them before the nearest Magistrate, such persons are not empowered to either investigate or enquiry into cases or launch prosecution in a court of law. These functions are performed by the State Policy.
For effectively dealing with certain offences under the Railways Act, 1989, it is proposed that the officers authorized by central government may be empowered to enquire and launch prosecution against the persons committing offences directly related to the functioning of the railway by amending the said Act. It is also proposed to empower these officers to search and seize any property and to file complaint in a Court of competent jurisdiction and respect of these offences. The authorized officers would not have the power in respect of certain serious offences viz. offences under Section 152 to 152 of the Railways Act, 1989.

23. Act 51 of 2003 was brought into for a specific purpose of empowering the officers of Railway Protection Force to search and seize any property and to file complaint in a Court of competent jurisdiction. Therefore, the inclusion of Railway Protection Force in the definition of “railway servant” is for the above purpose and not for any other purpose. If no such clarification is given by the Railway Board in its object, then there would have been a scope for interpreting the definition of “railway servant” and treating the members of Railway Protection Force as Railway servants for all purposes and as member of one of the departments under the direct control of the Railway Board, including the one of the making applications for ministerial posts.

24. In the light of the policy decision of the Railway Board that the members of the Railway Protection Force cannot be treated as one of the Department of the Railway Board, the judgment of the Supreme Court referred Supra and in the light of order of the Central Administrative Tribunal, Principal Bench, New Delhi in O.A.No.2661 of 2003, the petitioners being the member of Railway Protection Force are being treated as a different class and they do not form the same class under which the member of other departments of the Railway Board were brought and treating them in a different standard does not amount to violation of equal right provided under Article 14 and 16 of the Constitution of India. There are no Grounds to invoke the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution and to issue any direction by way of writ of Mandamus against the respondents.

25. With the above observations, the writ petition is dismissed at the admission stage.