Arjun Singh Tanwar v. UOI and Ors

S.RAVINDRA BHAT, J. For detailed order, see judgment of the even date passed in W.P.(C)4698/2000-P.L. Vermav. UOI& Ors. "I ' Li^ S. RAVINDRA BHAT (JUDGE) OCTOBER 08, 2015 DEEPA^HARMA (JUDGE) > 14'=' * IN THE HIGH COURT OF DELHI AT NEW DELHI RESERVED ON: 03.09.2015 % PRONOUNCED ON: 08.10.2015 + W.P.(C) 4698/2000 P.L. VERMA Petitioner Through: Ms.Madhu Tewatia and Mr.Saehin Saini, Advocates versus UOI & ORS. Respondents Through: Mr.Rajan Sabharwal and Mr.Raghav Sabharwal, Advocates for railways. W.P.(C) 1796/2011 ARJUN SINGH TANWAR Petitioner Through: Mr.Pawan K.Bahl and Mr.Vishesh Sharma, . Advocates versus UOI AND ORS. Respondents Through: Mr.Rajan Sabharwal and Mr.Raghav Sabharwal, Advocates for railways. W.P.(CI 10176/2009 MAHENDRA KUMAR SHARMA Petitioner Through: Mr.B.S.Mor, Advocate versus UOI &ORS. Respondents Through: Mr.RajanSabharwaland Mr.Raghav Sabharwal,Advocatesfor railways. f -r Paggi of 21 CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA

S.R AVINDRA BHAT, J.

¶1All the Petitionersin thesewritproceedingsseekdirectionsfor re-fixationof their seniority, pay scales and promotion to the higher grades in the Railway ProtectionForce (RPF) which they were entitled to, after reckoning the past military service.

¶2The Brief facts of the case are that the Petitionerin W.P.(C) 4698/2000, (hereafter"P.L. Verma")was releasedfrom the IndianArmy, as ECO (Emergency Commissioned Officer) on 26.08.1971 according to a phased programme on completionofhis tenure.He completed7years and 295 days of approvedmilitary service. In W.P.(C)10176/2009,the Writ Petitioner, Shri Mahendra Sharma (hereafter"Sharma")joined the Indian Army as ECO on 30.08.1964 and was releasedin aphasedprogram,on 01.08.1970.In W.P.(C)1796/2011the petitioner, ArjunSinghTanwar,(hereafter"Tanwar")had originallyjoinedthe IndianArmyas ECO with effectfrom 12.04.1963,in the wake ofthe Chineseaggression.He was releasedfrom the Army on 04.10.1967.In the meanwhile,the ReleasedEmergency Commissionedofficersand Short ServiceCommissionedOfficers(Reservationof vacancies)Rules, 1967 [hereafterreferredto as "ECORules, 1967"]were framed. These rules were replacedby ReleasedEmergencyCommissionedOfficers and Short Service CommissionedOfficers (Reservationof Vacancies)Rules, 1971 [hereafterreferredto as "ECORules, 1971").All the Petitionerswereemployedin the RailwayProtectionForceaftertheircommissionsin the IndianArmy ended.It is not in disputethat at the relevanttime, the RecruitmentRules of the Railway ProtectionForce (firstframed in 1968 and later, in 1974) enabledre-employment of released emergency officers of the Armed Forces, to the grade of Assistant ^' SecurityOfficerClass II Gazettedpost. The modes of filling the post as per the Recruitment Rules of 1974 were:

(a) Promotion from amongst the grade of Inspectors/Company Commanders Grade I, failing which from Inspectors/Company CommandersGrade II, failingwhich from amongstInspectors/Company Commanders Grade III;

(b) By direct recruitment.

(c) Deputation from State Police Officers, holding the rank of Deputy Superintendentof Police, or equivalent;Deputation from armed forces, from amongstpersonsholdingthe rank of Captainor equivalent; Deputationfrom officers of the Transportation(Traffic) and Commercial Department of Railways.

(d) By re-employment.

(e) By occasional admissionof other qualified persons appointed by the Government on the recommendations of the UPSC. The relevantcondition/clausewhich enabledre-employmentof militarypersonnel, read as follows: "Re-employment Retired/ReleasedOfficersoftheArmedForces ofthe Unionoftherank of Captainor equivalentand above.Age limitfor employment-38 years." We note that the RecruitmentRules of 1968 had similar stipulations,save that direct recruitmentwas not possible, and that no age limit is mentioned for re-employment of retired/released officers. Page3of 21

¶3It is submitted that the petitioners were appointed under the Railway Protection Force (Superior Officers) Recruitment Rules -which were first formulatedin 1968 and laterreplacedin 1974. They were repealedand new rules were broughtinto force, in 1981. The Petitionersrely on the terms of the ECO Rules, 1971 particularlyRules4and 6, whichare extractedbelow; "Rule-4 Reservation of vacancies: -

(1) Twentyper cent ofthe vacanciesin the IndianForeignService, and 25per centofthe vacanciesin all the otherCentralCivilServicesandposts, Class-l to which these rules apply and which are to be filled by direct recruitment,and 27percentofthe vacancieswhich are to befilledby direct recruitment on the basis of open competition, and 25 per cent of the vacancies which are to be filled by direct recruitment otherwise than throughopen competitionin all the CentralCivilServicesandposts, Class-II in any year, shall be reservedfor being filled by the Emergency CommissionedOfficersand the ShortServiceCommissionedOfficersofthe ArmedForcesofthe Union who were commissionedafterthe f November, 1962, butbeforethe 10'^January,1968, andwho -

i) in the case of Emergency CommissionedOfficers are released according to a phased programme; or

ii) in the caseofShortServiceCommissionedOfficersare releasedon the expiryofthe tenureoftheirservice;or Hi) are invalidedowingto adisabilityattributableto or aggravatedby military services. NOTE: - a) Engineers and Doctors employed under the Central Government or State Government or Government owned industrialundertakingafter 1963, who are requiredto serve in the ArmedForcesfor a minimumprescribedperiodunder the Compulsory Liability Scheme and who are granted Short ServiceCommissionunder the rules during the periodofsuch service, are no eligiblefor the vacancies reservedfor the Emergency Commissioned Officers and the Short Service CommissionedOfficersofthe ArmedForces in the Services and posts, to which these rules apply. b) Officers belonging to the volunteer Reserve Forces of the ArmedForces and called uponfor temporaryserviceare not eligiblefor the reserved vacancies. c) The candidatureofperson is liable to be cancelled, if, after submitting his application, he is granted Permanent Commissionin the ArmedForces, or he is releasedtherefrom at his own requestoron accountofmisconductor inefficiency.

(2) Theprovisionsofsub-rule(1) shallapplyto -

i) permanent vacancies which are fdled initially either on a temporary basis or on a permanent basis;

(a) temporaryvacancieswhich are likelyto be madepermanentor to continue on a long-term.

(3) Notwithstandinganythingcontainedin these rules, a candidatekept on the waitinglistor listsfor appointmentagainstthe vacanciesreservedfor EmergencyCommissionedOfficersor ShortServiceCommissionedOfficers under sub-rule (6) of rule 4 of the ReleasedEmergency Commissioned Offcers and Short Service Commissioned Officers (Reservation of Vacancies)Rules, 1967, shall be appointedagainst the vacanciesreserved under sub-rule (1) of this rule before the candidates who qualifyfor appointmentafter the commencementoftheserules.

(4) Ofthe vacanciesreservedfor the EmergencyCommissionedOfficers and the Short Service CommissionedOffcers, vacancies shall be reserved for candidates belonging to the Scheduled Castes and the Scheduled Tribes in accordancewith such orders as are issued in this behalf by the Central Governmentfrom time to time. Provided that if any Emergency CommissionedOffcers or Short Service CommissionedOfficer, as the case may be, belongingto a ScheduledCaste or a ScheduledTribe is selected, his selectionshall be countedagainstthe overallquotaofreservationsthatshallbeprovidedfor the ScheduledCastes Page5of 21 5> or the ScheduledTribes in accordancewith the ordersissuedby the Central Governmentfrom time to time.

(5) Notwithstandinganything containedin these rules or in any other rules relatingto the recruitmentofpersonsfor the Central Civil Services andposts, Class-Ior Class-Il, to which these rules apply, the totalnumber of vacanciesreservedfor the EmergencyCommissionedOfficers and the Short ServiceCommissionedOfficersofthe ArmedForcesofthe Unionand the ScheduledCastesandthe ScheduledTribesshallnot exceedin anyyear 50percentofthe.totalnumberofvacanciesto befilledby directrecruitment in that year....

6.Seniority and pay: -

(1)Seniorityand pay of these candidateswho are appointedagainst the vacanciesreservedunder sub-rule (1) ofrule 4 shall be determinedon the assumptionthat they enteredthe Serviceor thepost, as the case may be, at thefirst opportunitythey had afterjoiningthe trainingprior to their Commissionor the date oftheir Commissionwhere there was only post-Commissiontraining,that is -

(a)In the case ofServicesor posts recruitmentto which is made on the resultsofcompetitiveexaminationconductedby the Commission,the released Emergency Commissioned Officer or Short Service Commissioned Officer who competes successfully at the first or second availableopportunitywould be deemed to have passed the examinationat thefirstorsecondoccasionhe couldhaveappearedat the relevantexaminationhad he notjoinedmilitaryserviceand shall be assignedtheyearofallotmentcorrespondingly,and

(b)In the case of Services or posts recruitment to which is made othei'wisethan through a competitiveexaminationconductedby the Commission, seniority shall be fixed on the assumption that the Emergency Commissioned Officers and the Short Service Commissioned Officers would have been appointed on the date arrivedat after giving creditfor the approved military service as Emergency CommissionedOfficers or Short Service Commissioned Officers,as the case may be, includingtheperiodoftraining,ifany, andshallbe deemedto have been allottedthe correspondingyearfor thepurposeoffixationofseniority. P^ge6of 21

(2)Seniorityinterse of candidateswho are appointedagainst the vacancies reserved under sub-rule (1) of rule 4 and allotted to a particular year shall he determined according to the merit list prepared by the Commission on the basis of the results of their performance at the examination or test or interview.

(3)All the candidates who have been appointed against the vacancies reserved under sub-rule (1) ofrule 4 shall rank below the candidates who were appointedagainst unreservedvacancies in the Services or posts through the competitiveexaminationor test or interviewconductedby the Commission corresponding to the year to which the former candidates are allotted. "

¶5The Petitioners' complaint is that despite the mandate of the 1971 ECO Rules,especiallyRule 6, they have beendeniedseniority.It is urgedthattheywere clearly entitled to seniority on the basis that they had entered the service from the date they obtained their emergency commissionor short service commission,as the casemaybe. It is submittedthat the RPF kept postponingconsiderationof their claimsand eventually,they were drivento approachthe Court. In this regard,it is submittedthat one of the Petitionershad approachedthe AllahabadHigh Court, and the otherhad fileda writpetitionbeforethe SupremeCourt.A transferpetition was filed in respectof the AllahabadHigh Courtproceeding. Thatpetitionas well as the Article 32 writ petitionwere allowedto be withdrawnand the petitioners were asked to representto the RPF; they did so. However,the RPF did not give any response. In the meanwhile, the petitioners retired.

¶6P.L. Verma's petition refers to the fact that after the judgment of the SupremeCourt,dated27^^ August,1997,asenioritylistwas issuedon 28.08.1998. This did not reflectthe correctseniority,by givingweightageto militaryservice.It is submittedthat the Petitioners'entry into RPF under the Emergency Service Rules cannot be disputed,becauseof the nature of recruitmentrules and the fact that their names were present in the list forwardedto the Union Public Service Page7of 21 y50 Commission.The letterswrittenby the RPF to the UPSC and the repliesthereto are relied upon to say that there were vacanciesthat were in fact filled up from amongst eligible candidates who had undergone military service. Reliance is placed on certaindocuments,sourcedthroughthe Right to InformationAct, 2005

(RTI) includingfile notings,to contendthat the petitioners'claim for seniorityis justifiedand that the RPF had in fact no oppositionto it. It is also contendedthat the RPF fixed pay taking due note of the EGO Rules and gave benefit of past military service. Consequently,it was not open to the RPF to deny seniority benefits.

¶7The contentionof the other petitionersis much the same as in the case of P.L. Verma. In Mahendra Sharma's case, it is stated that the petitioner was continuouslyin contact with the respondents,who had even as late as in 2009, considered his case for antedated seniority in proper perspective. Reliance is placedon file notingsto substantiatethe argument.In the case ofA.K. Tanwartoo, similarargumentsandavermentshave beenadvanced.

¶8The RPF in its repliesin all these petitions,arguesthat the petitionershave approachedthis court after an inordinatedelay. It is submittedthat having been released from the Army in the early nineteen seventies and later appointed on various dates between 1972 and 1975, they cannot now agitate the issue of seniority.It is submittedthat wheneverthe petitionerswere promoted,they knew their exact placement in the seniority vis-a-vis other officers, including those joiningRPF from differentsourcesat variousstages,who were also promotedto higher positions or posts. Not having challengedtheir seniority,the petitioners cannotbe allowedto agitatetheirclaimto antedatedseniority,basedon the Rules. It is also submittedthat in any case, the petitionerscannot lay claim to such antedatedsenioritybecausethey have nowhereestablishedthat they were initially recruitedor appointedagainstthe said quota, earmarkedin terms ofthe 1968 or ® even later, 1971 Rules.Mr. Rajan Sabharwal,learnedcounselalso pointedout that the RPF has consistentlymaintainedthat all thesepetitionerswere appointedto the said Force after the said Emergency CommissionedOfficers' Rules had ceased to operate.Therefore,they cannot claim any benefit fromthe said rules.

¶9Variousfile notingswhichformedpartofthe officialrecordswere produced as part of the record; the petitionershave also relied on informationand many notingsof the CentralGovernment,sourcedthroughthe Rightto InformationAct

(RTI). Analysis and Conclusions

¶10The 1971 rules provided that 25% of vacancies in all Central Civil Services Post Class-I which were to be filled by direct recruitment, were to be reserved for being filled by Emergency/SSCOfficers. These rules further stipulate that on appointmentof suchofficersto Class-Iposttheir seniorityand pay andthe services rendered by them as Emergency/SSC Officers were to be taken into consideration.

¶11Before proceeding to discuss the merits of the cases, it would be useful to notice the serviceparticulars of each of the petitionersbefore this Court. The same is produced in the form of a tabular chart: Entry post/ Promotion/ retirement Date(s)of entry, promotion and retirement of each petitioner M.K. Sharma P.L. Verma A.K. Tanwar Asst. Security Ojficer/Asst. Commander (entry) 26-07-1972 24-02-1975 22-01-1975 Security Officer/Commander 05-03-1979 22-01-1982 18-11-1980 Security Commissioner/ Sr. Commander 18-05-1994 20-05-1994 Date ofretirement 31-08-1997 31-07-2001 31-07-1998

¶12The respondents' uniform stand in all these petitions is that though the petitionerswere given the benefitof past, militarysei*vicefor the purposeof pay fixation,such benefitwas inadmissiblefor senioritypurposes.The argumentmade in this regardis twofold:firstlythat there is nothingto show that these petitioners were recruitedagainstreservedvacanciesunderthe said Rules; and secondly,that they-or at least two ofthem were appointedto RTF after the rules ceasedto be operative.

¶13The ECO Rules, 1967, were brought into force and were in effect from

29.01.1996till 28.01.1971.The ECO Rules, 1971 were brought into force with effect from 29.01.1971 till 28.01.1974.

¶14To determine the correctness of the respondents' plea, it is essential to consider the materials placed on the record. The first note is by the Deputy Inspector General, RPF, of 02.09.1972. This recollects an earlier note dated

04.04.1972 which in turn refers to the 4 modes of recruitmentto the post of Assistant Security Officer, including through reemploymentof retired/released Officersof the Armed Forces. It then goes on to say that a total 128 posts were vacantin the cadre ofAssistantSecurityOfficer(ClassII); the proposalwas noted to recruit 9 released ECOs as Assistant Commandants/Adjutantsand further proposedthat the UPSC could be approachedfor selectingsuitableofficers.This note significantlymentionedthat: "3. Itmay be mentionedthatwe havealreadyrecruited8ECO'sto the postofASO/AssistantCommandant/AdjutantsClassII in 1969. Recently,we have recruited8 more ECO's. 6 ofthem have sincejoinedthe Rlys in June 1972and2 moreareexpectedtojoinshortly. Theywillundergotrainingfor 6monthsafterwhich theywilleitherbepostedto RPForRP SF. Therefore, on that comingto workingposts, the shortagein the cadre will come down from 17 to 9." The notingof 12.12.1972by the DeputyInspectorGeneralof the RPF statedinter alia, as follows:

¶2In this connectionit may bementionedthatasper the extantrules, 50 per centoftheposts in the rankofAssistantSecurityOfficersare to befilled up bypromotionfrom the rankof inspectorand the balance50per cent by takingPoliceOfficersondeputation,,reemploymentofex-ArmyOfficersand occasionaladmissionwith the approval of the UPSC. The present position ofASOs in the Zonal Railways including the RPSF has been worked out and theposition may be seen at F/A. It wouldbe seen therefromthat out of the total strength of 129 ASOs excluding ASO [Fire] but including Asstt. Commandants of the RPSF, 61 are present filled up by departmental candidates. There are 57 Police Ojficersand ex-Army Officers. The rest of theposts are temporarilyfilled up byad hocpromotes (departmental).

¶3Our experience in recent times has been that it is becoming increasingly difficult to get suitable Dy. Superintendents of Police on deputation as ASOs. Consequently,more and moreposts which are meant for the Police quota are remaining vacant for want of suitable Police Officers. At the same time, it may not be possible to fill up all these vacancies bypromotion of Departmental inspectors as it is necessary that the quota ofdepartmentalpromotionhas to be restricted to 50% of the total number ofposts. In order to make up the balance of 50%, it is, perhaps, necessary that we should take more released ECOs directly as ASOs. It is immaterial whether they are to be posted in RPSF or in the RPF on the ZonalRailways.I, therefore,propose thatwe shouldimmediatelytakeaction for placinga requisitionwith the DirectorateofResettlementin the Min of Defence, to send us a panel of namesfor filling up 8 posts of ECOsfor appointment as ASOs." Page n of 21 59-On 06.03.1973,the DirectorateGeneral,Resettlement,in reply to an earlierletter of the IndianRailway'sdated 26.02.1973,encloseda listof names and particulars of eligibleex-militaryservice officers.The RailwayBoard'sletterof 04.06.1973 reveals that UPSC was requestedto select suitableofficersfor appointmentfrom amongst74 names. These includedP.L. Verma'sname. UPSC's subsequentletter of UPSC dated 02.08.1973 also contained these names.The further noting of

10.07.1974 shows that the RPF had decided that "8 vacancies of Asst. Security Officers/Asst. Commandants/Adjuncts, Class II in Railway Protection Force should be filled by absorption of released ECOs/SSCOs." The RPF was of the opinion that a special procedure should be adopted to induct them because of acute shortage of staff of that level. However, UPSC did not agree; a list of names was consequently forwarded. UPSC was of opinion that piecemeal forwarding of names was not correct and insisted that all eligible ECOs/SSCOs names and particulars should be sent to it. 75 such officers were available; however particulars of all were not available. Consequently, 51 of such former ECOs/SSCOs whose particulars were available were interviewed between 29.07.1974 and 31.07.1974. The eight selected candidates joined the RPF on various dates between February and March, 1975. Two of these officers, A.K. Tanwar and P.L. Verma, were part of those eight officerswhojoined as Asst. Commandant.As regards M.K. Sharma, he had alreadyjoined RPF in 1972. The record also shows that in all 24 ECOs/ SSCOshadjoinedthe RPF afterbeingduly interviewedand clearedbythe UPSC.

¶15The petitionersand other personnelwere awaitingpromotionto the post of SecurityOfficer/Commander,the higherpost,whenafresh set ofrecruitmentrules was brought into force, in 1981. This led to a spate of litigation,which was ultimatelysettledby the Supreme Court. Two issues had to be decided in those proceedings,i.e. the claimofAsst. SecurityOfficerswho had been recruitedprior to 1981's contention that they promoted to the post of Security Officer/Commander, notwithstanding the creation of a new intermediate promotionalpost, i.e. Asst. SecurityOfficerClassI. The otherissuewas seniority. Two ofthe presentpetitionerswerepartytothoseproceedings:one had fileda writ petition before the AllahabadHigh Court and the other had preferredTransfer Petition against other pending proceedings. The Supreme Court decided the matters before it in the decisionreportedas H.S. Grewalv Union ofIndia 1997

(11) see 758. It held that the new rules were applicableand thatthose occupying the post ofAsst. SecurityOfficerClass II had to first be promotedto the post of Asst. SecurityOfficer,ClassI. The courtheld, inter alia, that: "Thereis no questionhere ofgivingretrospectiveeffectto 1981 Rules. It is, in our opinion, open to the employer, namely. Union ofIndia and it is its prerogative,as a matterofpolicy, to introducean intermediatepost and lay down the conditions of eligibility of Group-B officer in Class-IIfor promotion to such intermediatepost of Group-A in Class-i(JuniorScale). Such an introductionof an intermediatepost does not, in our opinion, amountto interferingwith any vestedrights cannot be interferedwith, is to be acceptedas correct. What all has happenedhere is that an intermediate post has been createdprospectivelyfor future promotionsfrom Group-B Class-IIto Group-A Class-I.If, before these rules of 1981 came intoforce, these officerswere eligible to be directlypromoted as Commandantunder the 1974 rules but before they got any such promotions, the 1981 Rules came in obliging them to go through an intermediatepost, this does not amount to interferingwithany vestedrights."

¶16In the light of the above directions, the RPF had to decide the issue of inter seniorityafresh. Consequently,the issue of granting senioritywas discussed againwithinthe department;the questionofaccordingantedatedsenioritycame up for consideration.In a file notingof 1998,the listof 24 RPF officerswho hadbeen drawn from amongst former ECOs/SSCOs.This list contains the names of all petitioners.The notingsonthe file, ofDecember,1998 areextractedbelow: "RefNote OnPre-page FileNo.96/Sec

(E)/SR/2/5 Page13 of21 ^7 As indicatedonpre-page, ReleasedEmergencyCommissionedOfficersand Short Service Commissioned Officers (Reservation of Vacancies) Rules 1971 ceased to be in force on and from 29.01.1974. 8 Emergency Commissioned Officerswho joined RPF on 10.02.1975or later on are not coveredunder these rules. Sd 07.12.1998 Vacanciesfor ECOs under 1971 rules are reserved onlyfor thoseECOs who had been CommissionedbetweenOE^ Nov.1962and lOl^Jan.1968subjectto Para-4of the rules and whether they have come against vacancies reservedfor ECOs. It has also to be ascertained as to whether their names were forwarded from Defence Ministry to UPSCfor appointment against reserved vacancies for ECOs. The aforesaid information may kindly be furnished before the case is channeled further. Sd. 11.12.1998 SO/E (GR) I Sd 14.12.1998 DDE (GR) Sd/14.12.1998 'A' the benefit is clearly due to those who joined up to 28.01.1974 & may be permittedfor 15 Officerslistedpage 3/Nante. SdEDE(GC) i SdDG(RPF) SdlG(HQ) 16/12"

¶17Apparentlythe senioritylist preparedtriggeredanother spate of litigation. Before all this could be settled,the petitionersretired from service.One of them approachedthis court in 2000 (P.L. Venna). The others however continuedto repose their faith in departmental relief. In the meanwhile, a judgment was deliveredby the CalcuttaHigh Court, which led to re-castingofthe senioritylist. One ofthe petitionerssoughtinformationunderthe RTI and was furnishedwith it, relatingto the officialnotingsin connectionwith grantofantedatedseniority.The Page 14 of21 saidnoting,dated 10.01.2007dealswithrepresentationsoftwo petitioners.It reads as follows: "Placed below are representationsfrom (1) Shri A.S. Tanwar, Sr. SecurityCommissioner(Retd.)andShriM.K. Sharma,SeniorSecurity Commissioner/NR(Retd.) Both are ex.ECOofficersand they want to know whetherthe decisionto grantthem benefitsofarmyservicehas beenfinalized. The listfurnished byEDE (GC) atpage 19n/ante indicatesthat 22 ECOs were re-employedasAssistantSecurityOfficers. The names ofShriM.K. SharmaandShriA.S. TanwarareatS.No. (12) and (16). In termsofthe Cabinet.Sectt'snotificationNo.9/20/69/ESTS(C) dated

26.8.71 (F/X), the benefitofapprovedmilitaryservicefor thepurpose ofseniorityis admissibleto those ECOs/SSCOsrecruitedagainstthe post reservedfor themsubject to certain conditions. In one of their remarks (f/z), it is mentionedthat the benefitis clearly due to those who joined RPF up to 28.1.74 and may be permitted for 15 officers. The representationsplaced at E/A and F/B may please be examined. Mayplease also advise (1) whether they were recruited againstthe vacanciesreservedfor ECOs/SSCOsand (2) whetherthey are eligiblefor the benefitof army service in terms of the Cabinet Sectt. 's orders at (F/X)." The above notings were made availableto the petitionerson 14.01.2009.After waitingfutilely,the PetitionersM.K. Sharmaand Tanwarapproachedthis courtfor relief. Also on the record are minutes ofthe meeting ofthe DPC held in 1980, whichdecidedto recommendthe claimofthe Petitionersfor regularizationoftheir posting/promotionas Security Officer/Commandantin 1980. The issue was pendingconsiderationwhenthe followingnotingwas made: "No.92-Sec.(E)PM-2/3 Sub: -RegularisationofSecurityCommissioners/RPFin Sr. Scale Ref: -DS (E) II'snoteNo.E(0)l/93/SR-6/lpt. Page15 of21 Dated 22.7.94 The eligibilitycriteriafollowed in regularizingthe services of Security Commissioners in Sr. Scale is as under: -

¶11. In the case ofdirectrecruitsGroup-AJr. Scaleojficerstheirservices as BSC in Sr. Scale were regularizedfrom the date they had completed5 years in Jr. Scale. However, those who were promoted after their completionof5yearsin Jr. Scaletheywereregularizedfrom the actualdate ofpromotion.

¶22. In the caseofECOswhojoinedin Group 'B' theirservicesas BSC in Sr. scale were regularizedfrom the date they had completed8 years in Group 'B'. Thosewho werepromotedaftercompletionof8years theywen regularizedfrom the dateoftheiractualpromotion.

¶33. In the case ofGroup B' andpromoteeofficerstheirservicesas BSC in Sr. Scalewereregularizedaspera cut-offdateandthatdatewas takenas

14.5.89.As theirseniorityis stillto befinalized,this arrangementwas made so that these ojficersmay be consideredfor promotionto JA Grade on ad hoc basis. Beforeregularizingthe servicesofGroup—A Jr. ScaleDirectRecruits ECOs Group-Fandpromoteofficers their ACRsfor the 5yearsfrom the date they were consideredfor regularizationin Sr. Scale were reliedupon andtheywereregularizeddependingon theirgoodservicerecord. SB/22-7-94i DB/Securit IG/Hqrs SB/22-7 DG/RPFSD , . .r o u DS/(E) II-With regardto 'B' Group officersas discussedin para No.3 above, whileregularizationin Sr. Scale.Rulesof1981 has beenfollowed. However,the,r seniority has not yet been decided, as it is still to be decided by t e oar adheringto the directionofEon'bleHigh CourtofCalcutta.

¶18Apeculiarfeature of these proceedingsis that almost from inception,the recruitmentrules concerningthe RPF -framed initiallyin 1968, laterreplacedby the 1974 rules had identifiedex-ECOs/SSCOsas aseparatesourceor channelof recruitment-apart from another channel of recruitmentfrom amongst serving armed forces personnel. These rules had a higher maximum age-38 years-naturally,because previous army service was factored in. However, the Central Governmentframed separaterules to ensure that such ECOs/ SSCOs who had respondedto the call of duty during national emergenciesget their dues. The rationale for denying seniority benefit to such officers is twofold, i.e. that inductionwas not on the basis of the quota set apart for the ECO/SSCOsand secondly, that the petitionerswere recruited after the 1971 rules pertainingto inductionofsuchex-militarypersonnelceasedto operate.

¶19Areadingofthe Rules governingrecruitmentto the post ofAsst. Security officerofthe RTF would show that re-appointmentwas one ofthe regularmodes of recruitment.This positionexistedunder both the 1968 and the 1974 Rules. If this fact wereto be keptin mind,it wouldbe apparent-thathe quotaprescribedby the EGO Rules of 1971 was adhered to. Rule 4 talks of reservationof 25% vacancies of posts if it were to be in services other than those specified ("otherwise")were earmarkedfor being filled by ECOS/SSCOs.The outer limit under Rule 4(5) was not more than 50% ofthe vacanciesfallingto the share of directrecruits.This would mean that ECOs were entitledto be recruitedagainst 25% of the existingvacancies.In the present case, even at the stage of initial recruitment,the UPSC had soughtclarificationto ensurethatthoserecommended, like the petitioners,were within and not in excess of their quota. The Railway Board'snotingdated28.06.1974wouldrevealthatareplywas givento the UPSC; it is onlythereafterthatappointmentswere finalized.This is strongevidenceofthe fact that the petitionerswere in fact appointedagainstthe quota set apart for this purpose. There is another way of looking at the matter. The correspondence betweenRPF and UPSC continuedfor at least3years.It is amatteroffactthatthe petitionersdidnotparticipatein any directrecruitmentprocessbutneverthelessthe UPSC was consultedat the stage of consideringsuitabilityof the ECOs; their names were recommendedfor appointment.In these circumstances,and in the absenceofany evidenceto showthattherewere insufficientvacancies-or to put it differently,aclearlistofthe numberofvacanciesavailableat the relevanttime, the irresistibleinferencethat this court would draw is that the petitionerswere appointedagainstthequotacarvedoutby theECOrules.The applicationofRule6 ofthe ECO Rules and pay fixationtakinginto accountthe militaryserviceofthe petitionersis not disputedat all. As amatteroffact the 1968Rulesgovermngthe recruitmentto the post ofAsst. SecurityOfficersfixed the cadre strengthat 109. The records and materials produced before the court also nowhere show any distinct quota for deputationistsfrom civilian departments, or armed forces. Similarly,the breakupofdirectrecruitvacancieshasnot beenshown.On the other hand, the materialsshownto the courtwouldrevealthat therewas ademand for filling up of vacancies;24 ECOs/SSCOswere appointedafter UPSC conducted interviewand recommendedtheirnames.These24 officerswere appointedovera periodof6years (1969, 1970, 1972 and 1975).The courtthereforeholdsthatthe RPF's submission that the petitioners were not appointed under the quota earmarked for the ECOs/SSCOs under the ECO Rules, is without basis and erroneous;theywere in fact appointedin termsofthe quotaearmarkedunderRule

6.

¶20The secondsubstantialargumentofthe RPF to deny the benefitofthe ECO Rules is that the appointmentof the petitionerswas made after the ECO Rules ceasedto be in force.Thereis no doubtthattwo ofthe petitionerswere appointed after the date the ECO Rules ceased to be in foree. However, equally there is overwhelmingmaterialon the recordshowing(1) thatthey had leftthe army after completingthe emergencycommissionswithinthe time contemplatedby the ECO Rules; (2) the process of selection culminating in their appointment was considerablydelayed-it took overtwo years. The DirectorGeneral,Rehabilitation, RPF and UPSC correspondedwitheachotherrightfrom thebegiimingof 1973;the petitioner'snames figuredin the list with the UPSC, dated 02.08.1973.The delay whichoccurredatthe end ofthe authoritiescannottherefore,be the groundto deny the advantageof Rule 6, which was intendedfor individualslike the petitioner. This courtis also ofthe opinionthat once the selectionprocessbegan,the fact that rules ceased to operate, or a new regime was brought into existence,would not efface the circumstancethat the officers-in the presentcase, the petitionerswere eventuallyappointedpursuant to and in culminationof the process which began earlier.This contentiontoo, therefore, deservesto be rejected.

¶21In Union ofIndia v. Dr. S. Krishna Murthy 1989 (4) SCC 689 the Supreme Court had occasion to consider the vires of provisions inparimateria with Rule 6 of the ECO Rules. Its observationson its efficacyare quoted below: "The impugnedrules have beenframed with a view to giving weightageto theECOs and SSCOs in recognitionoftheirpast servicesin thearmyduring theperiod of emergency. Wefail to under-stand why the classificationhas no rational relation to the objectssought to be achievedby the impugned rules. The classification has been made only for the purpose of compensatingthe ECOs and SSCOsfor their lost opportunitybecause of their joining the army service and the impugned rules best subserve the purpose.Accordingly,we do not thinkthat there is any merit in thefinding of the Tribunal and also in the contention of the respondents that the impugnedrules are violativeof theprovisionsofArticles14 and 16of the Constitution, "[para 13] In the present case too, this Court holds that the petitioners'claim to antedated seniorityon the basis ofRule 6 ofthe ECO Rules could not have been rejected. After all, they are beneficiariesof pay fixation in terms of that provision.They W.P.{C)Nos.4698/2000,1796/2011,10176/2009 participatedin at least one-ifnot two wars for the defenseofthe country.They gave up the opportunityofjoiningpublicserviceat an earlierage. To compensate such lost opportunity,the ECO Rules were framed. Clearly, they are entitledto seniorityfrom the date oftheirArmy commissions.

¶22This court is conscious of the fact that considerabletime has lapsed between the claim and the time the petitioners'entitlementshave been upheld. Although seemingly they approached the court after a delay, the .reality appears to be otherwise.Two of the petitionershad approachedthe SupremeCourt; when H.S. Grewal's judgment was delivered, they v/ere permitted to represent to the authorities,which they did. After the judgment, in 1998 a gradation list was published,which too denied them relief. In 2000, P.L. Verma approachedthis court. The others,notablyTanwar, continuedto represent.Even in 2007, the RPF was in doubt and was veering to the possibility of granting benefit to the petitioners.Having regard to all these factors, delay cannot be a factor to deny reliefin this case; it is howevera relevantcircumstancefor mouldingthe reliefto be given, appropriately.

¶23Before the petitioners' retirement, they had agitated about denial of promotion.Consideringthese facts, the petitionersare held entitledto reckontheir seniorityfrom the date of each of them secured commissionin the army. That wouldmean that the RPF wouldhave to reviewpromotionsappropriatelyto see if any of their juniors got promotions before them (i.e. reckoned after granting seniorityas ifthey had joinedRPF from the date of their originalcommissionas ECOs/SSCOs).Consequentactionby way of holdingreviewDPCs for all higher promotionalranks shall be undertaken. However, that should not disturb any promotionsearnedby otherpersonneloverthe years,as they are not partiesbefore this Court. In case the petitioners'recordsare suchthatthey have to be promoted Page20 of 21 u L to posts hip.horthan liiosethey superannuatedfrom, notionalbenefitofpromotion shall be accorded to them; this shall also entail consequent pay and pension fixation.An*earsofpension(i.e. differentialbetweenwhat they got and what they would be entitledto on account of notional fixation) shall be calculated;actual aiTcars shall be limited to period commencing from the date of filing of the petitionsin each case. The entireprocessshall be completedwithin four months, and orders as well as amounts issued directlyto the petitioners,and disbursedto them.

¶24All the writ petitionssucceedand are allowed in the above terms, without any order as to costs. OCTOBER 08, 2015 W.P.(C) Nos.4698/2000,1796/2011,10176/2009 S. RAVINDRA BHAT (JUDGE) <2. e. deepA sharma (JUDGE)

* IN THE HIGH COURT OF DELHI AT NEW DELHI RESERVED ON: 03.09.2015 o/o PRONOUNCED ON: 08.10.2015 + W.P.(CVl796/2011 ARJUN SINGHTANWAR ••••• Petitioner Through: Mr.PawanK.BahlandMr.Vishesh Sharma, Advocates versus UOI AND ORS. Respondents Through: Mr.RajanSabharwaland Mr.Raghav Sabharwal, Advocates for railways. W.P.(C^ 10176/2009 MAHENDRAKUMAR SHARMA Petitioner Through: Mr.B.S.Mor,Advocate . versus " UOI & ORS. Respondents Through: Mr.RajanSabharwaland Mr.Raghav Sabharwal, Advocates for railways. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA