JUDGMENT
Shri Kishan Mal Lodha, J.
1. These two appeals arise out of a common judgment dated November 29, 1978, passed by the learned single Judge of this Court, by which the writ petition was allowed in part holding as under:
(1) that assignment of seniority of Shri P.N. Midha over petitioner Surendrapal Singh Verma is correct whereby negativing the claim of the petitioner Surendra Pal Singh regarding the seniority over Shri P.N. Midha in the cadre of Prosecuting Inspector Grade If, as well as in the cadre of Prosecuting Inspector, Grade-I;
(2) that the Prosecuting Inspectors in the Railway Protection Force are eligible for selection to all the posts of Assistant Security Officer in the Railway Protection Force and the petitioner Surendrapal Singh was eligible for being considered for appointment to the post of Assistant Security Officer at the time when appointments were made on that post on February 3, 1976 and the Union of India; the Railway Board, New Delhi; the Inspector General, Railway Protection Force, Railway Board, Rail Bhawan, New Delhi, the General Manager, Northern Railway, Baroda House, New Delhi, and the Chief Security Officer, Northern Railway Baroda House, New Delhi, were directed to make appointment on the post of Assistant Security Officer after taking into consideration the merits and suitability of the petitioner on the basis that the petitioner was eligible for appointment to that post on February 3, 1976.
2. D.B. Civil Special Appeal No. 29/77, Surendrapal Singh v. Union of India has been filed by the petitioner appellant by which his claim of seniority over Shri P.N. Midha was negatived. D.B. Civil Special Appeal No. 28/79 has been filed by Union of India against the aforesaid finding given in favour of the petitioner Surendrapal Singh and direction given to the non-petitioners.
3. As the points involved in both the appeals are common and they arise out of the common judgment they were heard together and we consider it convenient to dispose them of by a common order.
4. Appellant Surendrapal Singh in D.B. Civil Special Appeal No. 29/79 will be referred to as the petitioner and the respondents Nos. 1 to 5 in this appeal will be referred to as non-petitioners No. 1 to 5 and P.N. Midha will be referred as non-petitioner No. 6 as in D.B. Special Appeal No. 29/79, he has been arrayed as respondent No. 6 and in D.B. Civil Special Appeal No. 28/79, he has been joined as respondent No. 2.
5. The petitioner filed the writ petition on October 25, 1975 under Article 226 of the Constitution seeking the following reliefs :
(a) By an appropriate writ, order or direction the Order dated 28-3-1974 of the Chief Security Officer, Railway Protection Force, Northern Railway, New Delhi, communicated vide letter dated 2-4-1974 (Ex. 6) assigning Seniority to the Respondent No. 6 in the category of Prosecuting Inspectors Grade II may be quashed;
(b) Further, by an appropriate writ, order or direction it may be declared that the Petitioner is senior to Respondent No. 6 in the cadre of Prosecuting Inspector Grade-I;
(c) Further by an appropriate writ, order or direction the Respondents No. 1 to 5 may be directed to consider the case of the Petitioner for appointment by promotion to the post of Assistant Security Officer;
(d) If any order promoting any person who may be junior to the petitioner to the post of Assistant Security Officer is in the meanwhile made then by an appropriate writ, order or direction the same may be quashed on being produced;
(e) Further, if any preferential treatment is given to Respondent No. 6 by reckoning him senior to the Petitioner either in the category of Prosecuting Inspector Grade-II or Grade-I then the said order may be quashed by an appropriate writ, order or direction, with all consequential reliefs;
(f) Further, by an appropriate writ, order or direction the Respondents No. 1 to 5 may be directed to confirm the Petitioner on the post of Prosecuting Inspector Grade-II;
(g) Any other appropriate writ, order or direction which may be considered just and proper in the circumstances of the case may be granted;
(h) The costs of this writ, petition may be awarded to the Petitioner.
The petitioner was appointed as Prosecuting Inspector Grade-II by order dated September 15, 1970. He proceeded to join the post on September 26, 1980. The letter Ex. 1 has been filed, which is the communication of the Assistant Security Officer, Railway Protection Force, Northern Railway, Jodhpur to show that the petitioner joined the post on September 26, 1970 and was directed to report for training at the Police Training College, Phillaur on October 1, 1970. It has been stated that at the relevant time the post of Prosecuting Inspector, Grade-II was not covered by the Railway Protection Force Rules, 1959 (for short ‘the Rules’). The Rules were subsequently amended by the Railway Protection (Amendment) Rules, 1973 (here in after to be referred as ‘the Amendment Rules’) promulgated by Notification dated’ September 20, 1973, published in the Gazette of India dated September 20, 1973. By this, the post of Prosecuting Inspector Grade-II was covered by the Rules. The petitioner executed the agreement Under Rule 23 of the Rules. He was sent for initial training. After the completion of the training examination was held. He secured second position in the batch of the Northern Railway. Subsequently vide Ex. 2 dated August 12, 1974, he was temporarily promoted as Prosecuting Inspector Grade-I. A perusal Ex. 2, dated August 12, 1974 shows that non-petitioner No. 6 was shown at serial No. 1 and the petitioner was at serial No. 2. The petitioner joined the post of Prosecuting Inspector Grade-I on August 14, 1974. On the date of filing of the writ petition, the petitioner was holding the post of Prosecuting Inspector Grade-I. Non-petitioner No. 6 after being appointed as Prosecuting Inspector Grade-II joined on August 27, 1970. He was also selected by the Railway Service Commission. He was assigned the position above the petitioner, in the order of merit, his name being placed at serial No. 1 whereas the petitioner’s name was placed at serial No. 3. He also executed an agreement as per Rule 23 of the Rules and he under went initial training. However, at the examination, which was held after the conclusion of the training, non-petitioner No., 6 obtained merit down below the petitioner at No. 8 Non-petitioner No. 6 and the petitioner were promoted to the post of Prosecuting Inspector Grade-I’ temporarily by order dated August 12, 1974 promoted. He joined the working post on August 29, 1974, i.e., later than the petitioner. He held the same post on the date of filing of the writ petition. A provisional seniority list of Prosecuting Inspector Grade-II was issued by the Chief Security Officer, Northern Railway, New Deli, vide communication dated December 1, 1983, which was received by the petitioner on January 17, 1974. In this list, the name of the petitioner was placed at No. 2 and that of non-petitioner No. 6 at No. 1. The petitioner having come to know about it, submitted a representation Ex. 4, dated January 16, 1974. Subsequently, reminder was submitted on February 25, 1974. The Assistant Security Officer, Railway Protection Force, Northern, Railway, Jodhpur, vide his communication dated March 22, 1974, communicated to the petitioner that the seniority has been assigned to him on the” basis of the date of appointment to the Grade as per the decision of the Railway Board contained in letter, dated October 16/17, 1973. Thereafter, the Assistant Security Officer, Railway Protection Force, Northern Railway, Jodhpur served on the petitioner, a copy of the letter dated March 28, 1974 of the Chief Security Officer, Railway Protection Force, New Delhi, wherein it was stated that the provisional seniority list of Prosecuting Inspector Grade-II circulated vide office letter dated December 1, 1973, has been made final. The petitioner obtained the copies of the three letters dated October 16/17, 1973, August 28, 1970 and July 13, 1970. For all purposes, non-petitioner No. 6 was treated senior to the petitioner in the category of Prosecuting Inspectors Grade-I. The petitioner submitted a representation dated April 25, 1975 requesting that he may be treated senior to non-petitioner No. 6 in the category of Prosecuting Inspectors Grade-I. By letter dated July 16, 1975, this representation was replied in which it was stated that the seniority in Grade is assigned on the basis of original seniority in the lower Grade. The petitioner has further stated that the post of Assistant Security Officer is filled from amongst the Inspectors Grade-I and II and in the non-availability of Inspectors Grade I and II for promotion from amongst the Inspectors Grade III with five years’ service. In this connection, reference was made to para 3(iii) of Chapter XII. of the Railway Protection Force Regulations, 1966 (“the Regulations”) and the Railway Protection Force (Superior Officers) Recruitment Rules, 1968. The petitioner and the Prosecuting Inspectors Grade-I and Prosecuting Inspectors Grade-II were not being considered for the post. The name of R.P. Mishra, who was appointed as Chief Law Instructor, which is the post of the rank of Inspector, was appointed by promotion as the Assistant Security Officer and posted in the Railway Protection Force Training Centre, Lucknow in the year 1968-69. According to the petitioner the persons junior to him from the point of view of length of service holding that post of Inspector Grade-I in the Executive Branch have been promoted on ad hoc and officiating basis on the post of Assistant Security Officer. The petitioner made a demand of justice by notice dated Sep. 4, 1975. The petitioner filed the writ petition for the aforesaid reliefs.
6. The writ petition was contested on behalf of non-petitioners No. 1 to 5 on various grounds justifying the assigning of seniority to non-petitioner No. 6 over the petitioner and that the Prosecuting Inspectors Grades I and II cannot be considered for the appointment of Assistant Security Officer, Railway Protection Force. Along with the reply, Ex. R 1 dated September 23, 1969 relating to filling up of vacancies of Prosecuting Inspectors and Sub-Inspectors, issued by the Deputy Director, Security Railway Board, New Delhi and Ex. R-II, procedure for filling up the post of Assistant Security Officer (Prosecution) on the Railway dated January 17, 1976, were filed. The petitioner submitted a rejoinder to the reply on April 5, 1977 reiterating the averments and the Contentions raised in the writ petition and denying the contents of the reply. It appears from the order of the learned Single Judge, that the following two questions arose for his determination:
(1) Whether the petitioner can claim seniority over non-petitioner can claim seniority over non-petitioner No. 6 in the cadre of Prosecuting Inspector Grade II as well as in the cadre of Prosecuting Inspector Grade I; and
(2) Whether a Prosecuting Inspector is eligible for appointment as Assistant Security Officer in the Railway Protection Force?
While dealing with the question relating to the inter se seniority of the petitioner and Non-petitioner No. 6, in the cadre of Prosecuting Inspectors Grade-II, the learned single Judge has held:
(1) that the seniority of the petitioner and non-petitioner No. 6 in the cadre of Prosecuting Inspectors Grade-II was correctly fixed in the imugned seniority list on the basis of respective dates of appointment to the grade of Prosecuting Inspectors Grade II and that the subsequent event of their training at the Police Training College, Phillaur and the merit obtained by them at the final examination of the Training College is of no relevance in the matter of fixation of their seniority;
(2) that the petitioner cannot be assigned seniority over non-petitioner No. 6 in the cadre of Prosecution Inspector Grade-I;
(3) that the Prosecuting Inspectors in the Railway Protection Force are eligible for selection to all the posts of Assistant Security Officer in the Railway Protection Force and the petitioner was eligible for being considered for appointment to the post of Assistant Security Officer at the time when appointments were made on that post on February 3, 1976.
7. In view of the aforesaid findings, the learned single Judge allowed the writ petition in part by his judgment dated November 29, 1978 giving directions, as stated here in above. Being dissatisfied, the petitioner as well as non-petitioners No. 1 to 5 have filed the aforesaid two appeals
8. We have heard Mr. M. Mridul for appellant Surendra Pal Singh in D.B. Civil Special Appeal No. 29/79 and also Mr. N.N. Mathur appearing for non-petitioners No. 1 to 5, who are appellants in D.B. Civil Special Appeal No. 28/79. Nobody has appeared on behalf of non-petitioger No. 6. P.N. Midha in both the appeals. We have carefully considered the writ petition, reply thereto filed on behalf of non-petitioners No. 1 to 5, rejoinder filed by the petitioner, the documents submitted by the parties and the order dated November 29,1978 of the learned single Judge.
9. On the basis of the contentions that have been raised by the learned Counsel for the parties, two questions emerge for our determination in these appeals:
(1) Has the learned single Judge erred in holding that non-petitioner No. 6 was assigned correct seniority over the petitioner in the grade of Prosecuting Inspector Grade II, and Prosecuting Inspectors Grade I; and (2) was the learned single Judge right and justified in holding that the Prosecuting Inspectors in the Railway Protection Force are eligible for selection to all the posts of Assistant Security Officer in the Railway Protection force and as such the petitioner was eligible for being considered for appointment to the post of Assistant Security Officer at the time when the appointments were made on that post on February 3, 1976. The aforesaid two questions form the subject matter of D.B. Civil Special Appeals No. 29/579 and 28/79.
10. The Railway Protection Force (‘the Force’ here in) was constituted under the provisions of the Railway Protection Force Act, 1957 (No. XXIII of 1957) (here in after referred to as ‘the Act of 1957’). This Act was enacted for the constitution and regulation of the Force for the better protection and security of railway property. Section 5 of the Act is as under:
5. Classes and ranks among members of the Force. There shall be the following classes of officers and other rank among the members of the Force, who shall take rank in the order mentioned namely :
(A) Classes of Officers–
(i) Inspector;
(ii) Sub-Inspector;
(iii) Assistant Sub-Inspector
(B) Classes of other ranks–
(i) Head Rakshak,
(ii) Senior Rakshak,
(iii) Rakshak.
The officers of the Force have been made empowered to investigate offences involving railway property and in connection with the prosecution for such offences investigation is done by the officers of the Force. At the initial stage, after the constitution of the Force, the practice was to obtain on deputation Prosecuting Inspectors and Sub-Inspectors employed in other departments of the Government. It was thereafter found that the said arrangement was not working satisfactorily and so the Government in 1969 decided that 50% of the posts of Prosecuting Inspectors Grade-II should be filled in by direct recruitment by selection through the Railway Service Commission from amongst Law Graduates with atleast five years experience and in pursuance of the aforesaid decision of the Government, a selection for the posts of Prosecuting Inspectors Grade II was made through Railway Service Commission in 1970. The petitioner was appointed as Prosecuting Inspector Grade II and the contention of the learned Counsel for the petitioner Surendrapal Singh is that his seniority in the cadre of Prosecuting Inspector Grade II is governed by the provisions contained in sub-clause (iii) of Clause 26 of Chapter X of the Railway Protection Regulations, made by the Inspector General of the Force in exercise of the power conferred on him Under Rule 32 of the Railway Protection Force Rules, 1959. Rule 2(b) of the Rules defines ‘Regulation’ to mean a regulation framed by the Inspector-General Under Rule 32 with the approval of the Central Government. Rule 32 occurs in Chapter VII, which deals with the conditions of service and conduct. It lays down the powers of the Inspector General to frame regulations. Chapter X of the Regulations deals with recruitment and appointment. Regulation 26 occurs in Chapter X and it deals with the general conditions of Recruitment of both Sub-Inspectors and the Rakshaks. Clause (iii) of Regulation 26 of the Regulations relates to seniority. Clause (ii) of Regulation 26, reads as under :
(a) Directly recruited Sub-Inspectors : The Seniority of directly recruited Sub-Inspectors will be fixed according to the merit position obtained in the final examinations of S.Is. in the initial course at the Training Centre. When two or more candidates are declared to be of equal merit at one and the same examination, their relative seniority is to be determined by the date of birth the elder candidate being the senior;
(b) Seniority of promotee S.Is. who appear for the selection : This will be determined according to the position assigned to the candidates in the select panel of Sub-Inspectors drawn up the selection committee;
(c) Seniority of S.Is. specially recommended for promotion without their appearing for the normal selection and without undergoing training to the initial course of S.Is. The names of such Sub Inspectors will be placed in the order of their seniority as Asstt. Sub-Inspector;
(d) Combined seniority of directly recruited Sub-Inspectors and the promotees. The names of directly recruited Sub-Inspectors vis-avis the promotees shall be placed in the combined seniority list alternative, the first position being assigned to the promotee referred to at (b) above and the second to the directly recruited and so on. At the end of this list the names of the Sub-Inspectors referred to at (c) above will be placed according to their seniority as Asstt. S.Is.;
(e) Seniority of Rakshaks : The seniority of Rakshaks will be determined by the date of their appointment to the working points in their respectively Branches after the training. When two or more Rakshaks are appointed on one and the same date, their relative seniority will be determined by their date of birth the elder being the senior.
The petitioner and non-petitioner No. 6 were directly recruited as Prosecuting Inepectors Grade-II. Both of them were sent for initial training and so according to the learned Counsel for the petitioner the inter se seniority should be determined on the basis of the merit obtained by them in the final examination at the Police Training Centre, Phillaur. If this criteria is employed, as the petitioner was placed higher than non-petitioner No. 6 in the merit after completing of training at the Police Training College, Phillaur; the petitioner rank senior to non-petitioner No. 6. Mr. N.N. Mathur, learned Counsel for non-petitioners No. 1 to 5, contended that sub-clause (iii) of Regulation 26 of the Regulations is attracted to direct recruits as Sub-Inspectors they have no application to the Prosecuting Inspectors Grade II.
11. We have considered the rival contentions. In agreement with the learned single Judge, we are of opinion that Clause (iii) of Regulation 26 of the Regulations relied on by the learned Counsel for the petitioner Surendrapal Singh, has no application as it is confined to Sub-Inspectors. The petitioner having been appointed as Prosecuting Inspector Grade-II, he cannot avail of the aforesaid Regulation.
12. It was urged by the learned Counsel for the petitioner that the inter se seniority of the petitioner and non-petitioner No. 6 should be determined according to clause (a) of Rule 303 of the Indian Railway Establishment Manual (‘the Manual’ here in), as it is applicable to the Prosecuting Inspectors in view of Rule 29 of the Rules. Rule 29 of the Rules reads as under :
29. Other Establishment matters.–
In regard to establishment matters not covered by these rules, superior officers and members of the Force shall be governed by such modifications as may be specified by the Central Government by notification.
We have carefully considered Rule 29 of the Rules. This provides that in regard to the establishments matters of the Force, which are not covered by the Rules superior officers and members of the Force shall be governed by such rules which are contained in the Indian Railway Codes with such modifications as may be specified by the Central Government by notification.
13. Chapter-III of the Manual deals with the Rules Regulating Seniority of Non-Gazetted Railway Servants. Rule 301 of the Manual deals with the general provisions. It provides that the rules contained in Chapter-III lay down the general principles that may be followed for determining the seniority of non-gazetted railway servants on railway administration. Rule 302 of the Manual relates to seniority in initial recruitment grades. Rule 303, is as under :
302. Unless specifically stated otherwise, the seniority among the incumbents of a post in a grade is governed by the date of appointment to the grade. The grant of pay higher than the initial pay should not, as a rule, confer on a railway servant seniority above those who are already appointed against regular posts. In categories of posts partially filled by direct recruitment and partially by promotion, criterion for determination of seniority should be the date of promotion in the case of a promotee and date of joining the working post in the case of a direct recruit, subject to maintenance of inter-se seniority of promotees and direct recruits among themselves. When the dates of entry into a grade of promoted railway servants and direct recruits are the same, they should be put in alternate positions, the promotees being senior to the first direct recruits maintaining inter-se seniority of each group.
Rule 303 of the Manual deals with the determination of seniority of candidates recruited through the Railway Service Commission or by any other recruiting authority. It is as under :
303. The seniority of candidates recruited through the Railway Service Commission or by any other recruiting authority should be determined as under :
(a) Candidates who are sent for initial training to training school will rank in seniority in the relevant grade in the order of merit obtained at the examination held at the end of the training period before being posted against working posts;
(b) Candidates who do not have to undergo any training the seniority should be determined on the basis of the merit order assigned by the Railway Service Commission or other recruiting authority.
The argument of the learned Counsel was that the petitioner was senior to non-petitioner No. 6 in view of clause (a) to Rule 303 of the Manual on the basis of the order of merit obtained in the examination held at the Training College in as much as both of them had been sent for initial training to the training college. This was opposed by the learned Counsel appearing for non-petitioners No 1 to 5 on the ground that Rule 29 of the Rules only the Rules of the Indian Railway Codes have been made applicable to superior officers and members of the force and that Rules 302 and 303 of the Manual are not rules of Indian Railway Codes and, therefore, the same are not applicable to the Prosecuting Inspectors in the Force. In the alternative, an argument was advanced by him that if the petitioner and non-petitioner No. 6 are governed by the Rules contained in the Manual, then, Clause (b) of Rule 303 would be applicable, for both were appointed before they were sent for trianing and as such it could not be regarded as initial training contemplated by Clause (2) of Rule 302, of the Manual. The learned Single Judge was of the opinion that there are no rules governing the seniority of the Prosecuting Inspectors and, therefore, the seniority will have to be determined on the basis of the letters dated March 12, 1970 and July 13, 1970, which related to directly recruited Prosecuting Sub-Inspectors and Prosecuting Inspectors and letter dated August 28, 1970, which relates to promotee Prosecuting Inspectors Grade I and Prosecuting inspectors Grade-II along with the letter dated October 16/17, 1973 and as such criteria adopted by the Inspector General of Force is the date of appointment to the Grade without the training in the Police Training College, and, therefore, the seniority of the petitioner and non-petitioner No. 6 in the cadre of Prosecuting Inspectors Grade-II has been correctly fixed in the impugned seniority list on the basis of their respective dates of appointment to the post of Prosecuting Inspectors Grade II and that the subsequent event of training at the Police Training College cannot be taken into consideration. The interesting question that arises is whether the Rules contained in the Manual are covered by such Rules of Indian Railway Code or not. It may be mentioned that the Indian Railway Establishment Code (hereinafter referred to as ‘the Code’) does not contain any rules for regulating the seniority of non gazetted railway servants.
14. “Code” means a collection or digest of laws; a system of rules and regulations. ‘Manual’ means a hand book…or handy compendum of a large subject of treatise. It is correct that the prefactory note of the Manual is that this is being issued for the guidance of the staff dealing with establishment matters and it embodies all administrative orders on the Code Rules and allied Establishment matters, issued by the Railway Board from time to time and current on March 31, 1959. The provisions of the Manual, however, do not supersede the rules contained in any of the Railway Codes and in case of conflict the latter should prevail. Rule 29, of the Rules as stated above, is with respect to other establishment matters for which no provision has been made in the Rules of 1959. The words used in rule 29 are ‘Indian Railway Codes’ and not ‘the Indian Railway Establishment Code. In the matter of establishment, it is the Manual only. Chapter I of the Manual deals with Recruitment, Training, Confirmation and Re-employment. Chapter II of the Manual contains the rules regulating seniority of non-gazetted railway servants. Appendix 12 relates to concordance showing the authority for the paragraphs occurring in various Chapters of the Indian Railway Establishment Manual. The relevant part of Chapter III, Appendix 12, is as under :
Paragraph in this Edition Authority
201 and 302 Railway Board's case Nos. E 56 (Manual)
I/III and E(NG) Manual 62/III
303 Railway Board's letters E (NG) 57 SR 6-2
dated 25-4-1957
304 to 311 Railway Board's cases No. E 56 (Manual)
I/III, and No. E (NG) Manual 62/III
Chapter IV of the Manual lays down the scales of pay applicable to principal categories of non-gazetted staff. At serial No. 413 thereof, reference has been made to Security Department and under it Inspectors, Sub-Inspectors Armed Uniformed Intelligence and Fire Service Branches are mentioned. Rule 527 of the Chapter V relates to Inspectors Railway Protection Force. Rule 1018 deals with vision tests. Para B of Rule 527 thereof deals with the vision tests repuired in the interests of the employee himself, his fellow-workers or both. In para B1 reference has, inter alia, been made to all staff of the Railway Protection Force. Rule (ii) of Rule 1018 deals with the Re-examination of railway servants. There is a note under it and it is mentioned therein that the railway servants in the Railway Protection Force will be re-examined for physical fitness at the termination of every period of three years, calculated from the date of appointment until the conclusion of their service and that the Inspectors, Sub-Inspectors, and Assistant Sub-Inspectors of the Railway Protection Force are to be re-examined for physical fitness and visual acuity on attaining the age of 45 years and thereafter at the termination of every period of five years. In Rule 29 of the Rules the words used are Indian Railway Codes” and as stated above, not Indian Railway Establishment Code. The word ‘Codes’ in plural is very significant. The words Indian Railway Codes’ include the Indian Railway Establishment Manual This conclusion of ours is based on the meaning of the words ‘Code’ and ‘Manual’. When there is no provision in the Railway Establishment Code and no provision has been made in the Rules, relating to the establishment matters, with which we are concerned we are of opinion that para 303 contained in Chapter III of the Manual is applicable.
15. Here, we will dispose of the argument raised by the learned Counsel for non-petitioners no. 1 to 5 to the effect that Appendix 12 to the Manual indicates that the authority for para 303 of the Manual is the letter of the Railway Board dated April 25, 1957 and this shows that para 303 of the Manual is not based on a rule of the Indian Raliway Code, but is based on administrative order only and it cannot apply to the Prosecuting Inspectors in the Force by virtue of 29 of the Rules.
16. Rule 157 of the Indian Railway Establishment Code, lays down that the Railway Board have full powers to make rules of general application to non-gazetted railway servants under their control and Rule 157 of the Code is as under :
157. The General Managers of Indian Railways have full powers to make rules with regard to non-gazetted railway servants under their control provided they are not inconsistent with any rules made by the Preseident or the Railway Board.
17. In M.P. Patil v. D.R. Khanna , the scope of Rule 157 of the Code came to be examined, which authorised the General Manager of Railways to make rules in exercise of its powers. In that case, an order dated May 14, 1953 was passed by the General Manager of the Central Railway. It was held that the order had the effect to Rule made under Rule 157 and it was binding on both the parties. It will be useful to excerpt the following from the report :
It is common ground that the petitioner was a non-gazetted railway servant and that therefore the General Manager had the power to make rules which would be applicable to the petitioner. What I have to consider is what is the position in law of the said order made by the General Manager dated 14th May 1953, the contents whereof have been referred to in the said letter dated 29th June 1953. In my opinion, that order must be held to be a rule made by the General Manager in exercise of his said power under the said Rule 157. The said Rule 157 does not lay down any particular form or any formality to to be complied with by the General Manager when making rules in exercise of the power under that rule. Rules would be general in nature i.e., they would concern a body of persons and not to any particular individual or individuals by name. The said order concerns a particular section of the employees of the General Railway.
In S.K. Chandan v. Union of India Rule 157 of the Code and Rule 301 and Rule 324 to 328 of the Manual, introduced by Advance Correction slip No. 70 in Chapter III, came up for examination and the question arose whether they would govern right of promotion of Class III non-gazetted servant to Class II Gazetted post. In that connection, it was observed as under :
Though the Railway Board has the power to make rules governing both gazetted and non-gazetted railway servants, the rules expressed to be made under Para 157 cannot in the very nature of things be intended to apply to gazetted railway servants or to govern the promotion of non-gazetted railway servants to gazetted posts.
It was also observed as under :
Paragraph 105 of the Indian Railway Establishment Code (Vol. 1) divides railway services into two categories : Gazetted and non-gazetted whereas those in Classes III and IV and the services of the Workshop staff are designated as non-gazetted. Paragraph 157 of the Code confers on the Railway Board “full powers to make rules of general application to non-gazetted railway servants under their control. Acting in pursuance of this power, the Railway Board has framed rules which are to be found in the ‘Indian Railway Establishment Manual. “Chapter I of those rules deals with questions relating to recruitment, training, confirmation and re-employment Chapter II which is headed “Rules governing the promotion of subordinate staff” consits of two sections, ‘A’ and ‘B’ section ‘A’ deals with “Promotion to Class II posts” while Section ‘B’ contains “Rules governing the promotion of sub-ordinate staff.” Chapter III is headed “Rules regulating seniority of non-gazetted railway servants.
In Arun Kumar v. South Eastern Railway and Ors. 1985 UJ (SC) 647, it was ruled that Rule 362 in Chapter III of the Manual has statutory force and it was considered as a rule.
18. Before a Division Bench of the Patna High Court, in S.S. Ghosh v. Union of India 1985 (1) SLR 31 Rule 320 of the Manual came up for consideration. It was observed therein as under:
Under Rule 157 of the Indian Railway Establishment Code Vol. I. the Railway Board have full powers to make the rules of general application to non-gazetted railway servants under their control. In pursuance of the said power the Railway Board framed rules which are incorporated in the Railway Manual. Chapter III of the Railway Manual deals with the rules relating to seniority of the non-gazetted railway servants.
In that case, Railway Board v. P.R. Subramuniyam was noticed, wherein it was held that the Railway Board have been framing rules in exercise of the power Under Rule 157 from time to time and they have been treated as rules having the force of the Rules framed Under Article 309 of the Constitution pursuant to the delegated power to the Railway Board. S.N. Jha, J, speaking for the Court in S.S. Ghosh’s case 1985 (1) SLR 31, observed as under:
In my view when the rule has been framed and when it has got a force of law, it must be followed in cases of promotion to non-selection posts. It has to be followed as proper decision on considerations of merits. The Administrative instructions issued from time to time by the railway administration cannot override the rules having the force of law framed by the Railway Board.
In these circumstances; in our opinion, the Rules contained in Chapter III of the Manual have the force of statutory rules. In other words, Rule 303 of Chapter III of the Manual, will govern the seniority of the non-gazetted staff appointed by the Railway Service Commission. It has to be treated as the rule having the force of law. We have already held that in the absence of any specific provisions relating to the seniority of the Prosecuting Sub-Inspectors Grade II, Rule 303 contained in Chapter III of the Manual dealing with rules regulating the seniority of non-gazetted servants, will govern the determination of inter-se seniority of the petitioner and non-petitioner No. 6.
19. The contention of learned Counsel for non-petitioners No. 1 to 5 that in case Rule 303 is held to be applicable for the determination of the senioriy of the petitioner and non-petitioner No. 6. then Clause (b) thereof is attracted, cannot be accepted, for, that contemplates the candidates, who are not required to undergo any training and, thus their seniority is determined on the basis of merit assigned by the Railway Service Commission or other Recruiting Authority. In this case, as is clear from Ex. 1 the petitioner was appointed by order dated Sept. 15, 1970 as Prosecuting Inspector Grade-II and he was directed to report for training at the Police Training College, Phillaur on Oct. 1, 1970. In para 1(a) of the writ petition, it has been stated by the petitioner that he was made to execute an agreement as per Rule 23 of the Rules though the Rules did not specifically cover the post. The form of agreement is provided in Appendix A of the Rules and that, at any rate, it was in accordance with the advertisement in which it was clearly stated that the appointment is subject to successful completion of initial training course. Non-petitioners No. 1 to 5 in their reply to the writ petition, have stated in para 1(e) that the petitioner was bound to execute the agreement enjoined Under Rule 23 of the Rules. The securing of first position by the petitioner was admitted by non-petitioners No. 1 to 5 in their reply. From Ex.1, it is clear that the petitioner was asked to report at the Police Training College, Phillaur on October 1, 1970, when he reported for duty on September 25, 1970. It is correct that there is an endorsement made by the Assistant Security Officer in Ex. 1 dated September 26, 1970 that the name of the petitioner should be shown in the attendance register from the date mentioned above and necessary attendance be got marked by him, but that, will not make any difference for the reason that the petitioner and non-petitioner No. 6 were required to undergo training at the Police Training College, Phillaur. The letter Ex. 1A dated April 9, 1971 which was issued by the Assistant Security Officer shows that the petitioner and non-petitioner No. 6 having been deputed for training in the Police Training College, Phillaur have qualified themselves in the term ending February, 1971 in the order of merit as shown against each of them. According to para 303, which has been found to be applicable to the appointments of the petitioner and non-ptitioner No. 6, the candidates who are sent for initial training to the Training School are to rank in seniority in the relevant grade in the order of merit obtained at the examination held at the and of the training before being posted against working post. The petitioner in this case after qualifying himself in the training, secured merit above non-petitioner No. 6 and so he has to rank senior to non-petitioner No. 6 Clause (b) Rule 302, of the Manual as contended on behalf of non-petitioners No. 1 to 5, has no application. It appears from the impugned order that the learned Single Judge took into consideration the administrative orders regulating the same, which are contained in the letters Ex. 8 dated March 12, 1970 and the letter Ex. 7 dated July 13,1970. Ex. 8 is the letter from the Deputy Inspector General, RPF stating how the seniority of directly recruited Prosecuting Sub-Inspectors should be determined. Material part of the letter Ex. 8, is as under :
Sub: Seniority of directly recruited Prosecuting Sub-Inspectors.
In the case of directly recruited Prosecuting Sub-Inspectors certain railway has sought clarification whether ;
(1) Their appointment will be taken the date on which they joined PTC or the date on which they resumed duty after completion of their training;
(2) Their seniority will be taken in order of the Railway Service Commission or the merit obtained by them in the final examination of their training at the Police Training College, Phillaur. The matter has been carefully, considered and it has been decided that;
(i) the P.S.’s date of appointment should be the date on which they have been put up to work against a working post after successful completion of their training as provided in para 26 chapter X of RPF Regulations ;
(ii) the Seniority of P.S.’s who have been directly recruited through the Railway Service Commission should be fixed in terms of para 26 (iii) (a) of Chapter X of RPF Regulations.
Ex. 7 is the letter addressed to the Chief Security Officer, Northern Railway, New Delhi from the Inspector General/RPF, Railway Board, on the subject : “Seniority of Directly Recruited Prosecuting Inspectors Grade-I and Prosecuting Inspectors Grade II.”
20. In this letter, reference has been made to the letter Ex. 8 dated March 12, 1970. It reads as under ;
In supersession of the decision contained in item (i) of their letter quoted above, the Board have now decided that the date of appointment of Prosecuting Sub-Inspector will be the date on which they are first appointed as such on the Railways, without undergoing the training at the P.T.C., Phillaur;
These orders will also be applicable to the Prosecuting Inspectors Gr. II who are being recruited on the Zonal Railways through the Railway Service Commission.
21. It is stated in that letter that the orders will be applicable to the Prosecuting Inspectors Gr. II. who are being recruited on the Zonal Railways through the Railway Service Commission. The contention raised on behalf of the petitioner is that from the letters Exs. 8 and 7, it is clear that only the decision regarding the date of appointment has been superseded and so far as the criterion for determining their seniority in the letter Ex. 8 dated July 12, 1970 is concerned, that was allowed to be kept intact and was operative. The learned Single Judge construed the letters Exs. 7 and 8 along with the letter dated October 16/17, 1970 and opined that in the matter of seniority the criterion adopted by the Inspector General of the Force is the date of appointment to the Grade without the training in the Police Training College. We have already held that the seniority of the petitioner is to be determined in accordace with rule 303 of the Manual. Further even on the basis of these letters, the petitioner will be senior in accordance with the criterion laid down for the determination of the seniority in Ex. 8 dated March 12, 1970. Regulation 26(iii) contained in Chapter X of the Regulations relates to the seniority of Sub-Inspectors and it has been found by the learned Single Judge that this regulation only applies to the Sub-Inspectors and not the Prosecuting Inspectors Grade II. The approach made by the learned Single Judge is erroneous for the reason that the Sub-Inspectors and the Prosecuting Inspectors Grade II, both are in the same grade. From the reading of the letters Exs. 7 and 8, it is clear to our mind that the seniority of the Prosecution Inspectors and Sub-Inspectors, who have been directly recruited through the Railway Service Commission, should be fixed in terms of para 26(iii)(a) of the Regulations if it is applicable, for in the letter Ex. 7 it has been specifically mentioned that this will positively apply to the Prosecuting Inspectors Grade II, who have been recruited through Railway Service Commission. So the finding on the question of seniority against the petitioner could not have been recorded on the basis of the letter dated October 16/17, 1973. Our conclusion, therefore, is that the seniority of the petitioner has to be determined on the basis of rule 303 of the Manual, as the petitioner has obtained the merit above non-petitioner No. 6, after the completion of the initial training, he is senior to non-petitioner No. 6. Rule (b) of Rule 303 of the Manual is not applicable. Otherwise also, on the basis of the letters Exs. 8 and 7, the petitioner-appellant is senior to non-petitioner No. 6.
22. The learned Single Judge has also held that non-petitioner No. 6 will be senior to the petitioner in the next higher grade, i.e., the Prosecuting Inspector Grade-I. On the basis of the finding recorded by us, the petitioner will be senior to non-petitioner No. 6 in the next higher grade, that is, Prosecuting Inspector Grade-I. As the petitioner and non-petitioner No. 6 were appointed in the cadre of Prosecuting Sub-Inspector Grade-I, by one and the same order and as the petitioner was senior in the cadre of Sub-Inspector Grade-II, he shall rank senior to non-petitioner No. 6 in the cadre of Prosecuting Inspector Grade-I also. It may be stated that the petitioner was appointed and joined as Prosecuting Inspector Grade-I on August 14, 1974 whereas non-petitioner No. 6 though appointed by the same order, joined on August 29, 1974.
23. From the decision made above, it follows that the learned Single Judge was not right in coming to the conclusion that the petitioner should not be assigned seniority over non-petitioner No 6 in the cadre of Prosecuting Inspector Grade-I, as petitioner is senior to non-petitioner No. 6. In view of this we quash the order contained in the letter Ex. 6 dated April 2, 1974 assigning seniority to non-petitioner No. 6 in the category of Prosecuting Inspector Grade-II and it is held that the petitioner is senior to non-petitioner No. 6 in the cadre of Prosecuting Inspector Grade-I.
24. D.B. Civil Special Appeal No 29/79 filed by the petitioner-appellant has, to be allowed.
25. Now, we take up D.B. Civil Special Appeal No. 28/79, filed by the Union of India and Ors.. It may be mentioned that the learned Single Judge in the impugned order declared that the Prosecuting Inspectors in the Force are eligible for selection to all posts of Assistant Security Officer in the Railway Protection Force and the petitioner was eligible for being considered for appointment to the post of Assistant Security Officer at the time when appointments were made on that post. Non-petitioners No. 1 to 5 were directed to make appointment on the post of Assistant Security Officer after taking into consideration the merits and suitability of the petitioner on the basis that the petitioner was eligible for appointment to that post on Feb. 3, 1976. This has been assailed on behalf of the Union of India and others, inter alia, on the ground that the Rules, Regulations and the Superior Officers Recruitment Rules, 1968 (for short the ‘Rules of 1968’) leave no manner of doubt that Inspector cannot be equated with the Prosecuting Inspector as the promotion to the post of Assistant Security Officer can only be made from the Inspectors and the Prosecuting Inspector cannot be eligible for the promotion to that post. Reference was also made to the Railway Protection Force (Amendment) Rules, 1973. It was submitted by the learned Counsel for the Union of India that the Assistant Security Officer (Prosecution) cannot be treated at par with the Assistant Security Officer as the Assistant Security Officer (Prosecution) will be required to have special knowledge of law on prosecution side and further an Inspector in Executive Branch cannot do the work of the Assistant Security Officer (Prosecution). Therefore, the Inspector has to be promoted from the post of Sub-Inspector whereas the Prosecuting Inspector is directly recruited through the Service Commission. Reference was made to Anx. R. 2, which contains the conditions for promotion to that post. Material part of Rule 3 of the Rules, is as under:
3. Appointment of the Force: The superior officers and members of the Railway protection froce who, at commencement of the Act, were holding the posts specified in column 1 of the Table below are hereby appointed to the post specified in the corresponding entry in column 2 of the said table in the Railway Protection Force constituted Under Section 3 of the Act.
TABLE
The existing posts in the Railway Corresponding Posts under Railway
Protection force Protection Force Act
1 2
1. SUPERIOR OFFICERS
Inspector General Inspector General
Deputy Inspector General Deputy Inspector General
Chief Security Officer Chief Security Officer
1 2
Assistant Inspector General A ssistant Inspector General
Security Officer/Commandant Security Officer
Principal Training School
(Senior Scales) Assistant
Security Officer
Assistant Commandant Assistant Security Officer
Principal Training School
(Class II)
IN OFFICERS OF THE FORCE
(i) UNIFORMED, ARMED AND INTELLIGENCE BRANCHES
Inspector Inspector
Sub-Inspector Sub-Inspector
Subedar Assistan Sub-Inspector
(ii) FIRE SERVICE BRANCH
Fire Brigade Inspector
Inspector (Fire)
Fire Station Officer Inspector (Fire)
Sub-Inspector (Fire)
Grade-I
Sub-Fire Station Officer Sub-Inspector (Fire)
Sub-Inspector (Fire Grade-II) Grade-II
Mistry (Grade-I) Sub-Inspector Grade-II
(Mistry Grade-I)
Mistry (Grade-II) Assistant Sub-Inspector
Mechanic (Highly Skilled) Mistry Grade II).
The Rules were amended by the Railway Protection Force(Amendment) Rules, 1973 (‘the Amendment Rules’) whereby rule 3 was wholly substituted and Sub-rules (1) and (2) of Rule 5 were also substituted. The relevant portion of Rule 3 which has been inserted by the Amendment Rules, is as under :
3. Superior Officers and members of the force and their ranks–The Superior Officers and members of the force holding the posts specified in column (1) of the Table below at the commencement of the Railway Protection Force (Amendment) Rules, 1973 shall be Superior Officers of members, as the case may be, of the rank specified in the corresponding entry in column (2) of the said Table.
TABLE
Designation of the post Rank
1 2
I. SUPERIOR OFFICERS
Inspector General Inspector General
Deputy Inspector General
Railway Protection Force and
Deputy Inspector General Chief Security
Railway Protection Special Force Officer (Head Quarter)
Chief Security Officer Chief Security Officer
Deputy Chief Security
Nil Officer
Assistant Inspector General Security Officer
Security Officer/Commandant/ Security Officer
Principal Training College
Assistant Inspector of Armed
Assistant Security Officer/Assistant
Commandantry Adjustant
Principal Training School Assistant Security Offices
Vice Principal Railway Protection
Force Training College
II. OFFICERS OF THE FORCE
(1) EXECUTIVE AND PROSECUTION BRANCHES
Inspector Inspector
Prosecuting Inspector
Sub-Inspector Sub-Inspector
Prosecuting Sub-Inspector
Assistant Sub-Inspector Assistant Sub-Inspector
Assistant Sub-Inspector (Armourer)
(ii) Fire Service Branch Inspector
Inspector (Fire) Sub-Inspector
Sub-Inspector (Fire Sub-Inspector)
(Mistry Grade-I)
(iii) Railway Protection Special
Commander Inspector (Ministrial) Inspector
Sub-Inspector
Sub-Inspector (Sr. Clerk)
Sub-Inspector (Steno)
Sub-Inspector (Adjustant) Sub-Inspector
Sub-Inspector (Quarter Master)
Sub-Inspector (Armourer)
Sub-Inspector (Motor Mechanic)
Asstt. Sub-Inspector (Clerk)
Asstt. Sub-Inspector (Typist) Assistant Sub-Inspector
Asstt. Sub-Inspector (Armourer)
It is also necessary to consider the provisions of Sub-rule (1), (2), (2A), (2B), (2C) of Rule 5 which were introduced by the Amendment Rules:
(1) The force shall consist of a unit at the centre in the Ministry of Railways, to be known as the "Railway Protection Special Force" and other units on each Zonal Railway.
(2) The Unit of the Force on each Zonal Railway shall consist of the following three branches, namely;
(i) Executive Branch,
(ii) Prosecution Branch,
(iii) Fire Service Branch.
(2A) The Executive Branch of a Unit of the force on a Zonal Railway shall consist of three wings, namely, Protection wing Investigation wing and Intelligence wing and the branch shall have a common cadre for all its members,
(2B) The Prosecution Branch of a unit of the Force on a Zonal Railway shall have a separate cadre for the Prosecuting Inspectors and Prosecuting Sub-Inspectors while the other members of the Branch shall belong to the cadre of the Executive Branch of the unit but shall be deputed to discharge their duties on the Prosecuting Branch;
(2C) The Fire Service Branch of the unit of the Force on a Zonal Railway shall have a separate cadre.
Rule 24 of the Rules, as substituted by the Amendment Rules, is as under:
24. Recruitment and promotion of superior officer–Recruitment of superior officers and promotion to the rank of Assistant Security Officer and that from one rank of superior officer to a higher rank shall be made in accordance with the Railway Protection Force (Superior Officer Recruitment) Rules, 1968.
Rule 5 of the Rules of 1968 lays down that method of recruitment, age limit and other methods relating to the posts of superior officers in Force. They have been specified in columns 5 to 13 of the Schedule appended to the Rules of 1968. In column No. 10 of the Schedule to the Rules of 1968, it is stated that the method of recruitment to the post of Assistant Security Officer would be :
(a) by promotion
(b) by transfer on deputation
(c) by re-employment
(b) by occasional admission of other qualified persons appointed by Govt. on the recommendations of the Union Public Service Commission.
Note : Will not ordinarily exceed 50% of the total vacancies filled.” Column No. II contains the following provision regarding promotion :
Promotion : Inspectors Garde-I failing which Inspectors Grade-II failing which Inspector Grade-III (with 5 years service in the grade of Inspectors.
Here, we may re-call Para 3 of Chapter XII of the Regulations which deals with promotion to the Grade of Assistant Security Officer, which reads as under:
3. Promotion to the Grade of Assistant Security Officer Promotion to the grade of Assistant Security Officer (Class II) shall be made against the reserved quota (i.e. 50% of the total number of posts of Assistant Security Officer Minimum the post of Assistant Commandant. Armed wing and the Principal R.P.F. Training School from amongst the Inspectors of all Branches of the R.P.F. except the Fire Service as indicated below :
(i) The Selection of candidates shall be made by a selection Board consisting of the Inspector General, Railway Protection Force Director Establishment. Railway Board and one Chief Security Officer to be nominated by the Inspector General, Railway Protection force. This Selection Board shall consider candidates from all Railways but frame panels for each railway separately;
(ii) The Chief Security Officer shall be responsible to intimate to the Inspector General in the first week of January every year the number of vacancies, both existing and anticipated, during the year. The Inspector General will then call for nominations from the Railway Administrations and arrange to hold the selections as early as possible;
(iii) Conditions of eligibility Inspectors Grade II and, I, failing which Inspectors Grade III also of all, branches except fire service, who have satisfactorily completed the period of 5 years service as Inspector shall be eligible to appear for selection. These recommendations shall be routed through the Chief Personnel Officer of the Railway Administrations. The selection which would ordinarily he held in the Board’s office shall include both a written and viva voce tests.
The Prosecuting Inspector in the Force holds the post in the rank of Inspector and by virtue of Rules 24 of the Rules, as amended by the Amendment Rules, read with the Rules of 1968, an Inspector is eligible for appointment to the Post of Assistant Security Officer and, therefore, a Prosecuting Inspector is eligible for promotion to the post of Assistant Security Officer. Before us, learned Counsel referred to Para 3 of Chapter XII of the Regulations, which provides that Inspectors Grade II and I in all branches except the Fire Service who have satisfactorily completed the period of five years service as Inspector shall be eligible to appear for selection for the post of Assistant Security Officer.
26. Learned Single Judge did not accept the aforesaid argument which has been reiterated before us by the learned Counsel for the Union of India and others, namely, that the provisions contained in the Rules, as amended by the Amendment Rules and the provisions contained in the Rules of 1968, as well as Para 3 of Chapter XII of the Regulations, show that the Prosecuting Sub-Inspector is not eligible for being appointed as Assistant Security Officer.
27. Having considered the aforesaid provisions, it is abundantly clear that the Railway Protection Force has been divided into three branches, viz. Executive Branch, Prosecution Branch and Fire Service Branch. The division, so far as the executive and the prosecution branches are concerned, is confined to the post of Inspectors and Sub-Inspectors only and a separate cadre for Prosecuting Inspectors and Prosecuting Sub-Inspectors has been created but a similar division has not been made in the cadre of the Assistant Security Officers. In the Rules as amended by the Amendment Rules, there is no provision to show that there are separate parts of Assistant Security Officer (Executive), Assistant Security Officer (Prosecution) and Asstt. Security Officer (Fire). Rule 24 of the Rules, clearly provides for recruitment and promotion to the post of Security Officer including Assistant Security Officer, and it lays down that the recruitment to the rank of Assistant Security Officer shall be made in accordance with the Recruitment Rules of 1968. A reading of Rule 25 shows that the Rules contemplate promotion from a lower rank to the higher rank. In the category of the officers of the Force in Rule 3 as substituted Prosecuting Inspectors have been given the rank of Inspectors. The learned Single Judge was right in holding that from the Rules, as amended by the Amendment Rules, it should be inferred that the Prosecuting Inspectors, who have the same rank as Inspectors, are eligible for promotion to the next higher rank of Assistant Security Officer and that in the rank of Assistant Securtiy Officers, there is no division of posts amongst the branches. According to the Rules of 1968, the promotion to the post of Assistant Security Officer shall be from amongst Inspectors Grade-I, failing which Inspectors Grade II, failing which Inspectors Grade III with five years service in the Grade of Inspectors. We find it difficult to construe the term ‘Inspectors’ in the Rules of 1968 to mean Inspectors in the Executive Branch only and to exclude Prosecuting Inspectors as contended by the learned Counsel for the Union of India and others. This conclusion of ours is further strengthened by the provisions contained in Para 3 of Chapter XII of the Regulations which clearly states that all the Inspectors of Grade II and Grade I of all the branches except Fire Service shall be eligible for selection for the post of Assistant Security Officer.
28. We may here refer the letter Anx. RII dated Jan. 17, 1976. This contains the decision of the Government that the Prosecuting Inspectors should be considered for selection only for the post of ASO (Prosecution).Even in that letter, it is mentioned that the necessary provision in the Regulations is being made separately. From this, the intention of the Govt. is clear that it was proceeding on the basis that the Regulations and the Rules, will have to be amended to make it possible for Prosecuting Inspectors to be considered for selection for the post of Assistant Security Officer (Prosecution). Learned counsel for the Union of India did not bring to our notice that any such amendment has been made in the Regulations or the Rules. Having examined the matter in the light of the provisions relating to the promotion to the Assistant Security Officer under the Rules, as amended by the Amendment Rules, the Regulations and the Rules of 1968, we are of opinion that the learned Single Judge was right in coming to the conclusion that the Prosecuting Inspectors are eligible for selection for appointment to all the posts of Assistant Security Officer and the eligibility of the Prosecuting Inspectors can not be confined to selection for the post of Assistant Security Officer (Prosecution) only.
29. The inevitable conclusion is that the findings of the learned Single Judge that the Prosecuting Inspectors in the Railway Protection Force are eligible for selection to all the posts of Assistant Security Officer in the Railway Protection Force and the petitioner was eligible for being considered for appointment to the post of Assistant Security Officer at the time when the appointments were made on that post on Feb. 3, 1976, are correct. The appeal filed on behalf of the Union of India and others is, therefore, without any merit.
30. The result is that D.B. Civil Special Appeal No.29/79 is allowed and the judgment of the learned Single Judge to the extent he found that non-petitioner No. 6 is senior to the petitioner, is set-aside. It is held that the petitioner is senior to non-petitioner No. 6 in the cadre of Prosecuting Inspector Grade-I.
31. D.B. Civil Special Appeal No. 28/79 is dismissed and the judgment of the learned Single Judge holding that the Prosecuting Inspectors in the Railway Protection Force are eligible for selection to all the posts of Assistant Security Officer in the Railway Protection Force and the petitioner was eligible for being considered for appointment to the post of Assistant Security Officer at the time when the appointments were made on that post on Feb. 3, 1976, is maintained. The direction issued to non-petitioners No. 1 to 5 to make appointment on the said post of Assistant Security Officer after taking into consideration the merits and suitability of the petitioner on the basis that the petitioner was eligible for appointment to that post on Feb. 3, 1976, is maintained.
32. In the circumstances of the case, the parties case left to bear their own costs of these appeals.