Sohan Singh Seera vs V.K. Gupta and Others

R.S. Chauhan, J.—The petitioner has filed the present contempt petition on the ground that the judgment dated 3.7.1997 passed by this Court has not been complied with. By judgment dated 3.7.1997, the learned Single Judge had given the following directions to the respondents-contemnors, as under:-

For the reasons contained in the above two cases, the respondents are, therefore, directed to constitute a separate cadre of Public Prosecutors and Assistant Public Prosecutors etc. either on divisional basis or zonal basis by creating a separate prosecution department for them and making the head of the department to be appointed for such department directly responsible to the higher authorities of the Railways for their discipline and control and the conducting of all the prosecutions by them before the Magistrates'' court and for free administrative and discipline control of the Railway Police Force and its officers. It is further directed that no person belonging to the armed wing of the RPF shall be appointed as the Head of the Department of the Prosecution Agency.

A bare perusal of these directions clearly reveals that three directions were issued by this Court: firstly, to constitute a separate cadre of Public Prosecutors (''PP'' for short) and Assistant Public Prosecutors (''app'' for short); secondly, to make the head of the department directly responsible to the higher authorities of the Railway; thirdly, a bar was placed that the head of the department would not belong to the armed wing of the RPF.

Mr. A.K. Bhandari, the learned Senior Counsel appearing for the petitioner, has contended that despite the lapse of many years, the Railways is yet to implement the said directions in toto. According to a letter dated 28.9.2011, the Railway Board had agreed in principle to constitute a separate cadre of PPs and apps. It had further directed that drafting of recruiting rules and the structure of the new cadre will accordingly be taken up in consultation with the appropriate authorities.

Meanwhile, since the Union of India was aggrieved by the judgment passed by the learned Single Judge, it had filed an intra-court appeal before the learned Division Bench. Having lost before the learned Division Bench, it had even filed a Civil Appeal No. 5920/2006 before the Hon''ble Supreme Court. According to the order dated 29.9.2011, a statement was made before the Apex Court that the Railway Board had decided, in principle, to create a separate cadre of Public Prosecutors and that the draft of the recruitment rules is under consideration and consultation with various appropriate authorities. Since, such assurance was given and since the Union of India was not willing to further pursue the appeal, the appeal was disposed of by the Apex Court. Furthermore, according to the learned counsel for the petitioner, on 16.7.2012, an order was passed by the Director of the Railway Board clearly revealing that the cadre formation was still under consultation with the Department of Personnel and Training and Ministry of Finance. Thus, till 2012, the judgment of this Court had not been implemented.

The learned counsel for the petitioner has further pleaded that even the letter dated 11.11.2013 passed by the Director Est.(N), Railway Board does not confirm to, and does not implement the order dated 3.7.1997. For, even now the recruitment rules have yet to be framed. Moreover, the PPs and APPs are made responsible to the Railway authorities. Thus, the judgment dated 3.7.1997 has neither been implemented in letter, nor in spirit.

On the other hand, Mr. S.S. Raghav, the learned counsel for Union of India, has pleaded that by letter dated 11.11.2013, it has been clearly stated that a separate cadre of PPs and APPs is being created at the divisional and zonal level. Moreover, the said department shall function in terms of Para 5 of Board''s OM No. 97/Sec.(E)/CD/10(CC) Pt, dated 16.7.2012. Further, the seniority and promotion will be covered by the existing instructions of Railway Ministry, applicable to non-RPF staff. Furthermore, the duties and responsibilities of the PPs and APPs would be in terms of earlier instructions. It was further declared that the PPs and the APPs are no longer member of the Railway Protection Force. Therefore, the Railway Service (Conduct) Rules, 1966, and the Railway Servants (Disciplinary & Appeal) Rules, 1968 would automatically apply to them. Thus, according to him, the order dated 3.7.1997 has already been complied with. Hence, no contempt is made out.

Heard the learned counsel for the parties and perused the record.

The creation of a separate department or a cadre of post does not require as a pre-requisite that prior to the creation of such a department, all the rules governing the service conditions should already be created. In service jurisprudence, it is permissible that the service conditions can be controlled by and can be regulated by executive instructions and by other service rules, which were applicable to other cadres. Although, it is desirable that the recruitment rules should be framed, but it is not a sine quo non condition to the creation of separate cadre.

A bare perusal of the letter dated 11.11.2013 clearly shows that a separate department for PPs and apps has been created, which shall function in terms of Para 5 of the Office Memorandum dated 16.7.2012. Furthermore, the issues about the seniority and promotions shall be covered by the existing instructions of Ministry. The conduct and disciplinary rules shall also apply to this cadre. According to the Office Memorandum dated 16.7.2012, the Public Prosecutors and Assistant Public Prosecutors have been directed to function under the control of AGM/ADRM through DGM(Law)/Sr. Law Officer/Law Officer. In zones where there is no post of AGM, they will function under the administrative and disciplinary control of Senior Most law officer in zone and the officer who is controlling law unit in Zone i.e. SDGM/CPO as the case may be. Moreover, according to the said Office Memorandum, the head of the department is no longer a person belonging to the Railway/Protection Force. Thus, it is obvious that the three directions given by this Court by the judgment dated 3.7.1997 have been complied with.

The only ticklish issue left is the creation of the Recruitment Rules. Undoubtedly, the Railway Board would be aware of the fact that Recruitment Rules are an essential part of service rules. Therefore, it is expected to create the Recruitment Rules as soon as possible and hopefully within a period of six months, so as to lay the entire controversy at rest. For the reasons stated above, this Court does not find that any contempt is made out against the respondents-contemnors. Thus, the contempt petition is, hereby, disposed of in the light of observations made above. The contempt notices stand discharged.