Chittaranjan Adhikary vs The Union Of India & Ors.

Reetobroto Kumar Mitra, J.:

These two writ petitions are taken up together as they concern the same issues of denial of promotion and seniority to the writ petitioner.

The issue raised in these two petitions is best addressed as circumstantial anomalies.

The petitioner's grievance is that he has not been given or at least been considered for promotion due to a deficiency on the part of the authorities on two counts. The first is that he ought to have been considered as a direct recruit of the 2014 batch of Sub-inspectors (Executive) and hence included in the 53rd batch of the concerned battalion of the Railway Protection Special Force (hereinafter the RPSF). He has been considered in the 54th batch.

The second is that the petitioner, upon transfer from Railway Protection Force (hereinafter the RPF) on his own request, cannot be deemed to have lost his seniority in inter-cadre transfer, on account whereof he ought to have been granted promotion and his name included in Force Order No. 22 of 2025 dated February 27, 2025 and Force Order No. 25 of 2025 dated March 3, 2025.

A brief enunciation of facts before adverting to the issue raised will be essential to appreciate the chronology of events and the applicability of the prevalent rules at the time.

The petitioner was appointed as a Sub-inspector in the RPSF with effect from March 1, 2015 by an order dated April 24, 2015. This order had not been challenged till the time mentioned hereinafter.

The petitioner was appointed as an Inspector on an ad hoc basis in the RPSF on November 17, 2017.

On July 20, 2023, the petitioner issued a declaration that he was agreeable (in the event of transfer on his own request) to accept "bottom seniority in the grade in which he was directly recruited".

Having made such a declaration, the petitioner was transferred on his own request on June 10, 2024 from RPSF to RPF, which he joined on June 11, 2024 as Sub-inspector on an ad hoc basis.

The provisional list for seniority was published on July 17, 2024. The petitioner's name did not feature in this list, on account whereof the petitioner made a representation on September 10, 2024.

A further provisional list was published on September 12, 2024 with a list of 60 eligible Sub-inspectors for promotion to the rank of Inspector, which did not feature the petitioner.

The petitioner made a second representation on November 11, 2024 and even though such representation was not considered, the petitioner acted on the notice of November 13, 2024 and submitted his APAR (Annual Performance Assessment Report).

It was only thereafter that the petitioner filed the first writ petition challenging, inter alia, the seniority list of July 17, 2024 and September 12, 2024 and seeking to set aside the same, and to consider his two representations which had been made by him. In the said writ petition, an interim order was passed permitting the petitioner to sit for the examination slated on December 20, 2024, and to keep a vacancy in the post of Inspector.

In terms of the said interim order, the petitioner sat for the examination and secured the qualifying marks. After this examination was held, a list of 24 successful candidates eligible for promotion was published, which again did not feature the petitioner. Being aggrieved, the petitioner filed the second writ petition being WPA No. 15785 of 2025.

It is in these limited facts, which are admitted by both parties, that the matters have to be decided.

The only point raised by the petitioner is that the petitioner is guided by the amended Rule 99.2 and Rule 99.2A of the Railway Protection Force Rules, 1987 (hereinafter referred to as “the said Rules”). For the sake of utility, the said unamended and amended Rule 99.2 and Rule 99.2A are set out hereunder:

The petitioner has really not made any submissions insofar as the seniority from the 54th batch to the 53rd batch is concerned.

Before dealing with the question of seniority, it is necessary to address the discrepancy appearing from the records as to whether the petitioner ought to have been in 53rd or the 54th Batch of the RPSF. As regards the petitioner's grievance that although his selection was made along with the 53rd Batch, he was subsequently placed in the 54th Batch on account of the commencement of his training, the said grievance cannot be entertained at this stage. The petitioner was appointed in the year 2015 and was admittedly aware of the batch in which he had been placed. If the petitioner was aggrieved by such placement and considered that the same had adversely affected his seniority, it was incumbent upon him to raise the issue at the earliest opportunity and not remain silent for several (nine) years and seek to reopen the matter only after the seniority list was published in 2024. A person cannot sleep over his rights and subsequently seek to unsettle a position which had remained undisturbed for years. This Court, therefore, finds no justification to entertain the petitioner's grievance regarding his alleged loss of seniority on account of his placement in the 54th Batch.

The petitioner's grievance, in terms of the submission made by Mr. Kushal Chatterjee, is restricted to the second element of seniority.

He submits that the petitioner was considered for promotion only in 2024, that is, after the coming into force of the amended Rule 99.2 on July 20, 2021 and the newly inserted Rule 99.2A, also effective by way of the Gazette Notification dated July 20, 2021.

He submits that his date of appointment sometime in 2015 cannot be a ground to keep him outside the purview of the amended Rule as well as the newly inserted Rule, as he became eligible for promotion in 2024. Thus, the amended Rule as well as the newly inserted Rule 99.2A pertaining to promotion will have to be considered for a promotion which takes place after the introduction of such amended Rule and newly incorporated Rule. Merely because the petitioner was appointed prior to the coming into force of the Rules pertaining to promotion, he cannot be left beyond the purview of such Rules.

The respondent's only case has been that the petitioner is not covered by Rule 99.2 or Rule 99.2A as both these provisions were amended and incorporated respectively sometime in 2021. Thus, the petitioner, being a direct recruit in the year 2015, prior to this amendment and incorporation, is not covered thereunder.

Learned advocate for the respondent submitted that the provisions cannot be given a retrospective effect and have to be given a prospective effect only.

I have heard learned counsel for the parties and considered the documents on record.

The interim order of this Hon'ble Court dated December 19, 2024, by which the petitioner had been permitted to sit for the examination, had granted the petitioner opportunity to take the examination without creating any equity in his favour as specified in the said interim order. The petitioner has taken the examination.

Upon taking the examination, the petitioner had secured the qualifying marks, which is also not in dispute. Whether or not these qualifying marks are sufficient for the petitioner to enroll or be appointed to the rank or post of Inspector is a completely different matter.

The claim of the petitioner has to be considered in the light of applicable provisions, namely, Rule 99.2 and Rule 99.2A, of the said Rules and Directive 60 issued by virtue of Office Memorandum dated March 29, 2023. The culmination of the examination is the Force Order No. 22 of 2025 dated February 27, 2025 and Force Order No. 25 of 2025 dated March 3, 2025.

To seek a complete annulment of these two Force Orders would mean that all persons who were part of this issue would be severely affected, irrespective of the fact that these persons may not have been treated favourably by the authorities.

None of these persons (24 in number) who have been promoted have been made parties to the instant proceedings and have not been given any opportunity of representing their case while the matter was being heard. This is a choice exercised by the petitioner as the dominus litus of this proceeding.

The petitioner's case at best can be that these 24 persons are not entitled to be promoted ahead of the petitioner only on these two grounds:-

The petitioner had not urged the second ground. The only ground urged by the petitioner is that these persons, without specifying which one of these 24 is junior to the petitioner, have all been granted promotion.

Interestingly, there is no date given in the Force Orders, which have been challenged by way of this writ petition as to when any of these 24 persons had joined service. This has been retrieved by the court, upon comparison with the list of September 12, 2024 appended to the first writ petition.

On careful consideration, it has been found that these 24 persons who have made it to the merit list for promotion to the rank of Inspectors are all appointees in the years 1992 to 1994 and are hence senior to the petitioner. However, interestingly enough, these 24 persons were promoted to the rank of Sub-inspector sometime in the year 2017.

It has not been urged or argued by the petitioner in any manner that the date of promotion to the post of Sub-inspector would be the date of consideration for promotion and not the initial date of appointment, which, in the case of these 24, is, as specified hereinbefore, between the years 1992–1994.

The provisions relating to Rule 99.2 and Rule 99.2A, as amended and incorporated respectively, clearly keep the Sub-inspectors and Inspectors beyond the realm of the bottom seniority rule while on transfer from one zonal railway to another. A transfer from RPSF to RPF would not deter or limit the petitioner or any other similarly situated persons' right to be considered for the promotional post, unless the same is specifically barred by law.

It is in this perspective that Rule 99.2 and Rule 99.2A assume importance as the definition of transfer from RPSF to RPF or vice versa has been clarified in the Rule itself.

The principal controversy between the parties concerns the applicability of the amended Rule 99.2 and Rule 99.2A of the said Rules to the petitioner's transfer from the Railway Protection Special Force to the Railway Protection Force, Eastern Railway.

The petitioner's original appointment in the RPSF was in the year 2015. However, the seniority-sequence which is the subject matter of challenge did not arise in 2015. It arose upon his subsequent transfer from the RPSF to the RPF/Eastern Railway, pursuant to the transfer order dated 13th December 2023, which was given effect upon his relieving RPSF on 10th June 2024 and joining RPF on 11th June 2024. The relevant event for determining the operation of a rule regulating the consequence of a transfer is ordinarily the transfer to which the rule is sought to be applied, not merely the date of original recruitment. Therefore, the mere fact that the petitioner was initially appointed in the year 2015 cannot, by itself, determine the rule governing the seniority- sequence of a transfer which took place in 2023–2024.

The respondents' contention that Rule 99.2A cannot apply to the petitioner merely because he was recruited prior to its introduction on July 20, 2021, therefore cannot be accepted. The application of Rule 99.2A to the petitioner's case would not amount to giving retrospective effect to the said provision. It would operate upon the legal consequence of a subsequent transfer which took place after in the case of the petitioner, the amended provision had already come into force.

The unamended Rule 99.2 dealt with transfers on own request or on mutual exchange and expressly contemplated transfers from one zonal railway to another as well as transfers to the Railway Protection Special Force and vice-versa. Thus, the rule, in its unamended form, covered both categories of transfer.

The amended scheme is significant. The protection under Rule 99.2A was introduced in respect of the two ranks that of Sub-Inspector and Inspector, and the amended Rule 99.2, correspondingly, contains the qualification “except Sub-Inspectors or Inspectors”. Thus, the effect of the amendment cannot be considered by reading Rule 99.2A in isolation from the amended Rule 99.2.

The legislative scheme emerging from the amendment is that, while Rule 99.2 continues to govern the general category of enrolled members transferred on their own request or on mutual exchange, Sub-Inspectors and Inspectors were carved out as an exception, from the operation of the bottom-seniority consequence contained in Rule 99.2. The exclusion of these two ranks from Rule 99.2 is therefore of considerable significance.

It is true that Rule 99.2 explicitly refers to transfer “from one zonal railway to another zonal railway” and does not separately use the expression “from RPSF to RPF”. If the provision were to be read in isolation, a transfer from RPSF-to-RPF would be beyond the ambit of this provision.

However, the Rules cannot be construed in isolated compartments. The provisions have to be read harmoniously with the administrative scheme governing transfer between RPSF and RPF, including Directive 60.

Rule 7.5 of the said Rules recognises that the enrolled members constituting the Railway Protection Special Force form a separate cadre for the purposes of fixation of seniority.

This provision explains as to why, when a member of the RPSF is transferred to the RPF of a zonal railway, the question of seniority necessarily arises. The petitioner was initially appointed in the RPSF cadre, and his seniority was consequently maintained within that cadre. Upon transfer to Eastern Railway, RPF, he necessarily became a member of the RPF cadre of the transferee railway. The existence of separate cadres, therefore, cannot be disputed.

But the fact that the RPSF constitutes a separate cadre for the purpose of fixation of seniority does not, by itself, determine the consequence of the petitioner's transfer. Though Rule 7.5 specifies that RPSF and RPF constitute distinct cadres for seniority purposes; it does not, by itself, answer the question as to what seniority-sequence would be followed when a Sub-Inspector or Inspector moves from one such cadre to the other after the amendment of 2021.

This question has to be answered by reading Rule 7.5 together with Rule 99.2, Rule 99.2A and the administrative directives governing such transfer.

The respondents have placed considerable reliance upon Directive 60. Paragraph 8 thereof provides that, for the purpose of transfer of personnel from RPSF to RPF or vice-versa, the RPSF cadre shall be treated at par with the executive cadre of a zonal Railway and that the transfer shall be subject to Rules 91.2, 99.1, 99.2 and Row 5.1 of Schedule II of the said Rules.

It is true that Directive-60 does not expressly mention Rule 99.2A. It is also true that the Directive specifically refers to Rule 99.2. However, this omission cannot be construed as permitting the continued application of the unamended Rule 99.2 to Sub-Inspectors and Inspectors after the statutory amendment of July 20, 2021.

The expression in Directive-60 that the RPSF cadre shall be treated “at par with the executive cadre of a zonal Railway” is of significance. The purpose of this deeming provision is to determine the legal character of an RPSF-to-RPF or RPF-to-RPSF transferee for the purpose of applying the transfer provisions. Thus, when the Directive enunciates that RPSF is to be treated at par with the executive cadre of a zonal Railway for such transfer, RPSF-to-RPF transfer is to be understood, for the purposes of the transfer rules, as falling within the same regulatory scheme as an inter-zonal transfer.

Consequently, the expression in Rule 99.2A referring to transfer “from one zonal railway to another zonal railway” has to be read in consonance with Directive 60. If a restricted interpretation were to be adopted, an anomalous consequence would follow: a Sub-Inspector transferred from one zonal railway to another after July 20, 2021 would retain his seniority by virtue of Rule 99.2A, whereas the same Sub-Inspector of the same Force, holding the same rank and governed by the same RPF Rules, transferred from RPSF to RPF after the amendment would lose his seniority under Rule 99.2, merely because of the nomenclature of the two cadres.

Such a construction would also render the amendment only partially effective in respect of the very category of personnel for whom the transfer framework treats RPSF as being on par with the executive cadre of a zonal Railway.

The harmonious construction, therefore, is that Directive-60 continues to govern the character and mechanism of a RPSF-to-RPF transfer, but the substantive seniority consequence must be determined with reference to the Rules as they stand on the date of such transfer. Directive-60 cannot revive or preserve the operation of the unamended Rule 99.2 as the said provision has subsequently been altered by the rule-making authority.

This conclusion is further reinforced by the textual change brought about in Rule 99.2 itself. The unamended Rule 99.2 expressly included transfers to the RPSF and vice-versa. After the introduction of Rule 99.2A, the amended Rule 99.2 excludes Sub-Inspectors and Inspectors from its operation. Therefore, the RPSF-to-RPF component which existed in the unamended Rule 99.2 cannot be invoked independently against a Sub-Inspector after the amendment.

In other words, Rule 99.2A need not expressly repeat every category of transfer which was earlier covered by Rule 99.2. The amendment to Rule 99.2 itself, coupled with the introduction of Rule 99.2A, indicates the legislative intent to keep Sub-Inspectors and Inspectors outside the general bottom-seniority rule. Directive-60 then clarifies the amended rule 99.2 by supplying the necessary link by treating RPSF, for the limited purpose of transfer, on par with the executive cadre of a zonal Railway.

Thus, the provisions can be harmoniously construed in the following manner: Rule 7.5 recognises the separate cadre character of RPSF; Directive-60 treats RPSF on par with a zonal executive cadre for the limited purpose of transfer; Rule 99.2A protects the seniority of Sub-Inspectors and Inspectors in the class of transfers covered by the transfer scheme; and the amended Rule 99.2 excludes those two ranks from the general bottom-seniority consequence.

Accordingly, the respondents cannot rely upon the reference to Rule 99.2 in Directive-60 to apply the unamended Rule 99.2 to the petitioner, when the statutory rule itself stood amended before his transfer. Directive-60 came into force in 2023, that is after Rule 99 had been amended. Thus, any reference in Directive-60 to Rule 99 has to be necessarily construed as reference to the amended Rule 99.

The respondents have also relied upon Rule 27.1 to contend that separate seniority lists are maintained for personnel belonging to RPF and RPSF and that, consequently, the petitioner was required to be removed from the RPSF seniority list and placed at the bottom of the RPF seniority list upon transfer.

The said submission, however, proceeds on a misconception as to the effect of maintaining separate seniority lists.

The maintenance of separate seniority lists for RPF and RPSF does not, by itself, prescribe the consequence of an inter-cadre transfer of a Sub-Inspector or Inspector. The provision relating to maintenance of seniority lists and the provision regulating the effect of transfer operate in different fields.

Even assuming that, upon transfer, the petitioner's name was required to be shifted from the relevant RPSF list to the relevant RPF list, it does not follow that his accrued seniority in the rank was extinguished. The question whether such seniority is to be retained or forfeited has to be determined by the substantive provision governing the transfer.

The respondents' reliance upon Rule 27.1, therefore, cannot by itself sustain the application of Rule 99.2 to the petitioner. Rule 27.1 deals with the maintenance and compilation of seniority lists; it cannot be treated as an independent source for imposing a bottom-seniority consequence which is otherwise excluded by the amended Rule 99.2 read with Rule 99.2A.

The distinction is important. A separate seniority list does not necessarily mean a fresh seniority. The former concerns the way the seniority of personnel is maintained administratively; the latter concerns the substantive position of an employee in that seniority upon transfer.

The respondents have placed considerable reliance upon the declaration dated 20th July 2023 executed by the petitioner, contending that by such declaration the petitioner accepted the condition of being placed at the bottom of the seniority list upon his transfer from RPSF to RPF. The declaration undoubtedly records the conditions communicated to the petitioner in connection with his transfer. However, the legal effect of such declaration has to be determined in the light of the statutory Rules governing the petitioner’s service.

In the present case, the declaration cannot operate to deprive the petitioner of the seniority protection conferred by Rule 99.2A. The statutory Rules governing seniority are binding upon both the employee and the administration. An employee may undertake to abide by the conditions of a transfer, but such an undertaking cannot amount to a surrender of a statutory service benefit in a manner contrary to the Rules, nor can it confer upon the respondents a power to impose a consequence which the Rules, as applicable to the petitioner, do not prescribe.

The position becomes clearer from the amendment brought into Rule 99.2 with effect from July 2021. By the amendment, Sub-Inspectors and Inspectors were expressly excluded from the operation of the general bottom-seniority provision contained in Rule 99.2, while Rule 99.2A was simultaneously introduced to provide that there shall be no change in the seniority of Sub-Inspectors or Inspectors transferred on mutual exchange or on their own request from one zonal Railway to another zonal Railway. Thus, the statutory scheme itself makes a distinction between the general rule governing other enrolled members and the specific seniority protection applicable to Sub-Inspectors and Inspectors.

The declaration dated 20th July 2023 cannot alter this statutory position. The respondents cannot derive from the said declaration a power to impose upon the petitioner a consequence which the statutory Rules, as applicable on the date of his transfer, do not prescribe. The Supreme Court has consistently held that the plea of estoppel cannot be raised to defeat the provisions of a statute and that a promise, declaration or undertaking contrary to law or beyond the authority of the person making it cannot be enforced. Reference may be made to Krishna Rai (Dead) Through Lrs& Ors. Versus Banaras Hindu University Through Registrar & Ors [(2022) 8 SCC 713], Tata Chemicals Ltd. Vs. Commissioner of Customs (preventive), Jamnagar [(2015) 11 SCC 628] andAbhimeet Sinha and others v. High Court of Judicature at Patna and others, [(2024) 7 SCC 262].

The principle is equally applicable here. The petitioner's declaration may establish that he was made aware of the condition sought to be imposed upon his transfer; it cannot, however, confer upon the respondents any authority which the statutory Rules do not confer, nor can it revive the operation of the pre-amendment Rule 99.2 after the statutory scheme had been altered. The declaration, therefore, cannot be treated as a valid basis for depriving the petitioner of the seniority protection available to him under Rule 99.2A.

The consequence of the above finding is that the petitioner's seniority could not have been determined by mechanically applying the unamended Rule 99.2 merely because his original appointment was in 2015 or because he had voluntarily sought transfer.

The relevant transfer took place in 2023–2024, when the amended statutory scheme was already in force. The respondents were, therefore, required to determine the petitioner's seniority by applying the amended Rules, read harmoniously with Directive-60 and the separate cadre arrangement recognised under Rule 7.5.

The petitioner had also served as Sub-Inspector and was promoted as Inspector (ad hoc) in 2017. The respondents were consequently required to consider his claim in accordance with the applicable seniority and promotion provisions rather than treating the petitioner as a fresh entrant at the bottom of the relevant rank solely by reason of his transfer.

At the same time, the petitioner's entitlement to consideration for promotion cannot be equated with an automatic right to promotion. Rule 71 provides the manner in which candidates qualifying in the written examination are to be considered for assessment of their service record and the preparation of the panel. Therefore, mere success in the written examination does not confer an indefeasible right to promotion.

The petitioner obtained 49.62 marks out of 80 in the written examination and thereby crossed the qualifying threshold applicable to him. His qualification in the examination, however, does not by itself establish an absolute entitlement to promotion, since the other requirements of the promotion scheme, including assessment of service record and preparation of the panel in accordance with the prescribed seniority, are also required to be satisfied.

Nevertheless, once it is found that the petitioner's seniority was liable to be determined under the amended statutory scheme and could not have been reduced by applying the unamended Rule 99.2, his exclusion from consideration on the basis of such erroneous seniority position cannot be sustained.

In view of the aforestated discussions, the following conclusions are ineluctable:-

In view of the aforestated findings, it is clear that the petitioner ought to have been considered in the light of Directive 60 read with Rule 99.2 and 99.2A of the said Rules. Clearly, the transfer of the petitioner falls within the inter-zonal transfer framework by virtue of Directive 60 and the seniority sequence should be determined in accordance with the amended Rule 99.2 read with Rule 99.2A.

Since the seniority of the petitioner has been ascertained and fixed in terms of the unamended Rule 99.2, his placement in the seniority list published on July 17, 2024 and September 12, 2024 is set aside. However, the list per se will remain as it is. It is only the seniority of the petitioner reflected in such list which is set aside. However, since the petitioner has already participated in the examination process and secured the qualification marks, the petitioner’s right to obtain promotion will be visited afresh by the authority in the light of Rule 99.2 and 99.2A of the said Rules as applicable to the petitioner. Thus, WPA No. 29040 of 2024 is allowed to the aforesaid extent. Since there is an interim order operating in favour of the petitioner and a post of Inspector was directed to be kept vacant for the petitioner, in the event he succeeds, the authorities are directed to consider the petitioner’s candidature for promotion to the post of Inspector (Executive) upon determination of his seniority position in accordance with applicable rules.

This order will, however, not in any manner give any vested right to the petitioner to obtain promotion. For such purpose the respondent authorities shall take into consideration all benchmark parameters and criteria set forth by them including marks obtained by the petitioner, the APAR and all other service records as may be applicable.

The Force Order No. 22 of 2025 dated February 27, 2025 and Force Order No. 25 of 2025 dated March 3, 2025 will remain unaltered. If the petitioner is found to be eligible, without insisting on the bottom seniority rule, he shall be granted the promotion without disturbing the two Force Orders or the persons who have been promoted thereby.

The writ petitions are accordingly disposed of.

There shall, however, be no order as to costs.

Urgent Photostat certified copy of this judgment, if applied for, shall be granted to the parties as expeditiously as possible, upon compliance of all formalities.