JUDGMENT
Anjani Kumar, J.
1. This is the plaintiffs second appeal against the judgment and decree dated 26th February, 1979, passed by Civil Judge, 1st, Varanasi in Civil Appeal No. 735 of 1977. whereby the lower appellate court has dismissed the appeal filed by the appellant-plaintiff and maintained the order dated 31st May, 1977, passed by the trial court.
2. The facts leading to filing of the second appeal is that the plaintiff-appellant filed a suit being Suit No. 111 of 1972 for the following reliefs :
“(a) That by a decree of this Hon’ble Court it be declared that the order of removal dated 10.2.1970 served on 19.9.1971 is illegal being ultra-vires and as such is not binding on the plaintiff and the plaintiff is a full fledged “RAKSHAK” as before with rights to receive all his pay and other emoluments attached to the post valued at Rs. 300 for declaration.
(b) That the cost of the suit be awarded to the plaintiff.
(c) That such other and further relief as the nature of the suit may admit be also passed in favour of the plaintiff against the defendant.”
3. The aforesaid suit filed by the plaintiff-appellant was contested by the defendant. The trial court dismissed the suit vide judgment and order dated 8th February, 1975, Aggrieved by the aforesaid order, the plaintiff-appellant preferred an appeal being Civil Appeal No. 226 of 1975 before the lower appellate court. The lower appellate court vide its order dated 13th November, 1975, allowed the appeal and the judgment and decree dated 8th February, 1975, passed by the trial court was set aside and the suit is remanded back to the trial court for decision afresh according to law and in light of the observations made in the body of the judgment. Thereafter the trial court again heard the matter as directed by the lower appellate court and after hearing learned counsel for the parties dismissed vide its order dated 31st May, 1977. Aggrieved thereby, the plaintiff-appellant preferred an appeal being Civil Appeal No. 735 of 1977, which was dismissed by the lower appellate court vide its order dated 26th February, 1979. Thus, this second appeal.
4. Sri Radhey Shyam learned counsel appearing on behalf of appellant argued that the appellant who was employed as Rakshak in R.P.F. in the year 1951 at the time when the Railway Protection Force Act, 1957 (in short ‘R.P.F. Act 1957) was not come into force by the Chief Superintendent, Watch and Ward and continued in service till the date of removal. The grounds which were found to be substantial questions of law by the Court at the time of admitting the appeal, are Ground Nos. 1 and 4. The Ground No. 4 states that after coming into force of R.P.F. Act 1957, the post of Chief Superintendent, Watch and Wards have been graded as equivalent to Chief Security Officer under the Act, referred to above. Thus, after coming into force of R.P.F. Act, 1957, the appointing authority of the appellant would be Chief Security Officer. The argument advanced on behalf of learned counsel for the appellant thus is that he having been removed from service by an officer-subordinate to his appointing authority, i.e., the Assistant Security Officer, the removal order is in contravention of the provision of Articles 309 and 310 of the Constitution of India.
5. As against this, learned counsel appearing on behalf of defendant-respondent argued that under the provisions of R.P.F. Act, 1957, rules have been framed in exercise of power under Section 6 of the aforesaid Act.
6. Shri Radhey Shyam further contended that the aforesaid rules have been replaced by amended rules in the year 1981. In this case since the removal order has been passed in the year 1971, therefore, the amended rule will not be applicable. Section 6 of the R.P.F. Act, 1957, which has been relied by learned counsel appearing on behalf of the appellant, is reproduced below :
“6. The appointment of members of the Force shall rest with the Chief Security Officers who shall exercise that power in accordance with rules made under this Act :
Provided that the power of appointment under this section may also be exercised by such other superior officer as the Chief Security Officer concerned may by order “specify in this behalf.”
7. Pursuant to the aforesaid proviso, the power of superior officers with regard to appointment has been specified in Schedule 1, which reads as under ;
Schedule-I (Rule 20)
Powers of Superior Officers to make appointments to the Force.
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Chief Security Security Officer Assistant Security Officer
Officer
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All Members of the Sub-Inspectors, Assistant Sub Senior Rakshaks,
force Inspectors, Head Rakshaks, Rakshaks
Senior Rakshaks, Rakshaks
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8. The appellant, who was Rakshak, therefore, by virtue of the aforesaid Schedule 1, read with Rule 20 and Section 6 of the R.P.F. Act, 1957, will be member of the Force with the appointing authority as Assistant Security Officer. In this view of the matter, the argument advanced on behalf of Shri Radhey Shyam, learned counsel appearing on behalf of the appellant cannot be. accepted on the ground that the order of removal is bad for the reasons that it has not been passed by the Chief Security Officer.
9. Learned counsel for the defendant-respondent had relied upon a decision of the Apex Court in Union of India and Ors. v. Rajendra Singh, 1993 SCC (L&S) 349 : 1993 Supp (2) SCC 176. by which while interpreting the rule in question, the Apex Court has held in para No. 14, which reads thus :
“14. A bare reading of the Act, particularly Section 6, will show that the Act contemplates that the “appointment of members of the Force shall rest with the Chief Security Officer” who is supposed to exercise powers in accordance with the Rules made under the Act. The proviso to Section 6 contemplates other authorities being authorized for making the appointment as may be delegated to such officers by the Chief Security Officer. Therefore, there can be no doubt, that the Act contemplates appointment of members of the Force not only by the Chief Security Officer but also by others. The question, therefore, arises is what is the meaning of the expression “appointment of members of the Force shall rest with the Chief Security Officer”? The expression, “rest” in this section conveys the idea of overall control of appointment resting with the Chief Security Officer subject to the provisions of the Rules. As we have stated earlier Section 6 of the Act contemplates appointment of the members of the Force by such authorities as may be authorized. The proviso to Section 6 contemplates specifically written order of delegation by the Chief Security Officer but this does not derogate from the power of the rule-making authority to confer the said power. The section and the proviso, in our opinion, do not rest the power of appointment merely with the Chief Security Officer. What is contemplated is that the Chief Security Officer will have overall control in the matter of appointment and that control be exercised in accordance with the Rules. If the rules provide for appointment by other superior officers, it cannot be said to be in derogation of the Act or the purposes of the Act.”
10. In this view of the matter, I find no force in the present second appeal. It is accordingly dismissed with costs. The interim order, if any. stands vacated.