Union Of India And Others v. Harananda And Others

M.R. Shah, J.— Leave granted in Special Leave Petitions (C) Nos. 12393 of 2013, 35548-554 of 2015 and 13937 of 2016. All these appeals are being disposed of by this common judgment.

2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 4-12-2012 passed by the High Court of Delhi in Harananda v. Union of India 2012 SCC OnLine Del 6001, the Union of India and others have preferred the civil appeal arising out of SLP (C) No. 12393 of 2013.

2.1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Delhi dated 3-9-2015 in G.J. Singh v. Union of India 2015 SCC OnLine Del 11803 and other allied writ petitions, the Union of India and others have preferred the present civil appeals arising out of SLPs (C) Nos. 35548-554 of 2015.

2.2. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Delhi dated 15-12-2015 in Karuna Nidhan v. Union of India 2015 SCC OnLine Del 14535, the Union of India and others have preferred the present civil appeal arising out of SLP (C) No. 13937 of 2016.

Civil appeal arising out of SLP (C) No. 12393 of 2013

3. The facts leading to the civil appeal arising out of SLP (C) No. 12393 of 2013 arising out of the impugned judgment and order passed by the High Court of Delhi dated 4-12-2012 in Harananda v. Union of India 2012 SCC OnLine Del 6001, are as under:

3.1. The original writ petitioners — who are the RPF Officers holding Group A posts approached the High Court by filing the writ petition under Article 226 of the Constitution of India with the following reliefs/prayers:

(a) Issue a writ of mandamus directing the respondents to complete the formalities for constituting the RPF as an Organised Service within a definite time-frame with further direction to extend the benefits by giving effect to the RPF Recruitment Rules already approved by Respondent 1 as communicated vide letter dated 1-3-2005 to Respondent 2 and to treat Group A Railway Officers recruited through civil service examination in all respect.

(b) Issue further direction to the respondents to apply with retrospective effect all policy circulars to the petitioners as applicable in respect of other Group A Railway Services bringing them on a par with their batchmates recruited through civil service examinations and grant promotion to the petitioners and other similarly situated officers on that basis with all consequential benefits including the back wages.

(c) Issue a writ of certiorari calling for the records, and other/direction including those not communicated to the petitioner, if any, by way of which the respondents have taken a decision to initiate the process to fill any vacancy in the RPF through deputation against the statutory provisions and thereafter quash the same.

3.2. It was the case on behalf of the original writ petitioners that all the writ petitioners are the officers holding Group A posts in the Railway Protection Force (hereinafter referred as to “RPF”) and all of them were recruited through the Civil Services Examination conducted by UPSC along with 15 other Group A Central Services, including three Group A Railways Services i.e. Indian Railway Traffic Service, Indian Railway Accounts Service and Indian Railway Personnel Service. According to the writ petitioners, as per the Gazette Notification published by the Government of India, based on which the UPSC conducts an examination, these Railway services have been kept on a par with each other. According to the original writ petitioners, the notification and the offer of appointment as well as the Railway Protection Force Act, 1957 (for short “the RPF Act, 1957”) clearly stipulate the officers of RPF as Railway servants with stipulation that in addition to the Indian Railway Establishment Code applicable to the Railway servants, the officers of RPF will be governed by the provisions contained in the RPF Act and the RPF Rules, 1959 as well as the new RPF Rules, 1987, the Recruitment Rules of 1981 and 1994.

3.3. It was the case on behalf of the original writ petitioners that in spite of the consistent stand taken by the Ministry of Railways that the officers of the RPF have all the attributes of Organised Service and they should be constituted as Organised Service, the original Respondent 1, Union of India through the Ministry of Railways and Department of Personnel and Training (Cadre Review Division) [for short “DoPT”], for one reason or the other, have taken a final decision in this respect resulting in large-scale stagnation of the officers of RPF, like the writ petitioners, at every rank.

3.4. It was the case on behalf of the original writ petitioners that, starting from 1981 to 1996, various amendments were brought out in the RPF Act as well as the Rules by which initially the proportion of deputation was reduced and finally by amendment in the Recruitment Rule, the RPF Rules and by bringing in amendment in the Principle Act, 1957, by Section 19 of the Amendment Act, 1985, deputation was debarred by giving only two options to the existing officers on deputation, either repatriation in their parent cadre or to accept retirement.

3.5. According to the original writ petitioners, “in principle” decision taken by the Railway Board in the year 1986 to constitute RPF as an Organised Service and referred the matter to DoPT (Cadre Review Division) for its approval. According to the original writ petitioners, thereafter, through OM dated 12-7-2001, the Ministry of Railways forwarded the proposal for deeming the RPF as an Organised Service to be known as the Indian Railway Protection Force Service. According to the original writ petitioners, thereafter, DoPT (Cadre Review Division) considering all aspects, by Communication dated 20-11-2003, communicated in principle approval to constitute RPF as Organised Group A Central Service (for short “Ogacs”). According to the original writ petitioners, thereafter, the Ministry of Railways, vide Communication dated 1-3-2005, forwarded the draft Recruitment Rules for Indian Railway Protection Force Service on the lines of other Organised Group A Central Services of Railways after due approval of the Ministry of Railways being the competent authority. According to the original writ petitioners, thereafter, during 2005-2010, various steps were taken for bringing necessary changes to improve the service condition of the RPF officers and to bring them on a par with other Railway Services, but the same did not result in any meaningful solution, as a result of the same, the RPF officers like the writ petitioners kept on stagnating in the same post and suffered.

3.6. According to the original writ petitioners, several meetings were held by the Railway Board to resolve the issue, but no effective steps were taken and the original respondents continued to fill the vacancies available with them by calling the officers on deputation, even when the eligible officers were available and in spite of the statutory prohibition in force. Therefore, the original writ petitioners approached the High Court and prayed for the aforesaid reliefs.

3.7. That by the impugned judgment and order 2012 SCC OnLine Del 6001, the High Court, after having noted and considered the OM dated 20-11-2003, by which in principle decision was taken to constitute the RPF as Ogacs, has directed that within six months the necessary cadre structure of RPF as also the Service Rules be finalised with reference to the RPF being an Ogacs. The High Court has also further observed and directed the Cabinet Secretary to nominate a Nodal Officer to coordinate within the three bodies, namely, UPSC, DoPT and Ministry of Railways.

3.8. Feeling aggrieved and dissatisfied with the direction contained in the impugned judgment and order dated 4-12-2012 2012 SCC OnLine Del 6001, the Union of India and others have preferred the present appeal.

4. Shri Aman Lekhi, learned ASG has appeared on behalf of the Union of India, Shri P.S. Patwalia, learned Senior Counsel has appeared on behalf of the respondents-original writ petitioners and Shri Luthra, learned counsel has appeared on behalf of the Indian Police Service Central Association.

4.1. Shri Lekhi, learned ASG appearing on behalf of the Union of India has vehemently submitted that the High Court has materially erred in issuing the mandamus relying on the “in principle” approval granted by the DoPT for constituting the RPF as Ogacs in its OM dated 20-11-2003. It is vehemently submitted that the findings arrived at by the High Court that the “in principle” approval was granted by the DoPT, is clearly erroneous as the same OM specifically stipulated in Para 2 that the proposal will have to be placed before the Cadre Review Committee for its approval just like a normal cadre review proposal for further processing by DoPT.

4.2. It is further submitted that even the said proposal was also based upon a clearly erroneous OM dated 12-7-2001 by the Ministry of Railways, in which it was wrongly stated that “Administration/Administrative Grade are filled by promotion from next lower grade” in RPF. Shri Lekhi, learned ASG has brought the attention of this Court to various grades and their corresponding posts. It is submitted that there are various grades, such as,

(1) Higher Administrative Grade;

(2) Senior Administrative Grade;

(3) Junior Administrative Grade;

(4) Senior Time Scale; and

(5) Junior Time Scale.

It is submitted that the Attributes of the Monograph of 1993 required that all posts from Junior Time Scale to Senior Administrative Grade level should be filled by promotion. It is submitted that the same is not satisfied by RPF as there is a provision for deputation at the posts of DIG and IG.

4.3. It is further submitted by Shri Lekhi, learned ASG that the Cadre Review Committee, in its meeting dated 2-3-2007, in fact referred the matter to Committee of Secretaries on Cadre Review on the proposal of RPF. It is submitted that the Committee of Secretaries, vide its meeting dated 5-9-2007 decided to deal with the two issues of cadre review of RPF and granting status of Ogacs to RPF. It is submitted that in the Minutes of the Meeting, it was specifically stated that the Secretary, DoPT will consult the Chairman, Railway Board. It is submitted that, therefore, the constitution of RPF as Ogacs was specifically not granted. It is submitted that, pursuant thereto, on 30-11-2007, DoPT had requested the Railway Board to send a revised cadre review proposal to address the aspect of promotional avenues and on constitution of RPF as Ogacs. It is submitted that, thereafter, the proposal was forwarded by the Ministry of Railways on 7-3-2013 and the same was examined in consultation with the Department of Expenditure. It is submitted that the proposal was then considered by the Cadre Review Committee on 29-7-2013 and the Committee did not recommend Ogacs status in view of the recommendations of 6th Central Pay Commission and the concerns expressed by the Ministry of Home Affairs.

4.4. It is further submitted that, in any event, the RPF did not satisfy Attribute (iv) of Monograph of 1993 or the OM dated 19-11-2009/20-11-2009. It is submitted that neither the Monograph of 1993 nor OM dated 19-11-2009/20-11-2009 was challenged by the writ petitioners. It is submitted that, therefore, consequently, in the absence of RPF satisfying the above Attribute, there was no occasion for the High Court to issue mandamus for grant of status of Ogacs.

5. It is further submitted by Shri Lekhi, learned ASG that even the reliance placed on the draft Service Rules forwarded vide OM dated 1-3-2005 is clearly erroneous inasmuch as the High Court ignored the meeting of CRC and COS, DoPT Communication of 13-11-2007 and the CRC Meeting of 29-7-2013 apart from the Recruitment Rules and the attributes of Ogacs.

5.1. It is submitted that, therefore, while the foundational facts for grant of relief have not been satisfied, the right itself in RPF was not established and, therefore, there was no occasion for the enforcement of the same through the writ of mandamus.

5.2. It is further submitted by Shri Lekhi, learned ASG that the High Court could not have been able to create Ogacs on the basis of certain notes, correspondence and the letters issued by the DoPT, Government of India, for it is the Home Department which has the jurisdiction/authority under the RPF Act, 1957 and other relevant laws. In support of his submission that the Ministry of Home Affairs is the only competent authority to determine the grant of Ogacs, Shri Lekhi, learned ASG has relied upon Section 8 of the RPF Act, 1957. Relying upon Sections 3 and 8 of the RPF Act, it is submitted that once the RPF is an Armed Force of the Union, any decision that has to be taken, is required to be taken by the Home Department and, ultimately, it has to travel through the Cabinet for its acceptance and notification.

5.3. It is further submitted by Shri Lekhi, learned ASG and Shri Luthra, learned counsel appearing on behalf of IPS Association that there are even statutory rules under the RPF Act, 1957 which provide for deputation into RPF. Reliance was placed upon Rules 54 and 76 of the RPF Rules. It is submitted that if the cadre to which the original writ petitioners belong is declared as Ogacs, then there cannot be any deputation and no one from the cadre of IPS can come on deputation and it is likely to give parallel two systems within the Force establishment.

5.4. It is further submitted by the learned ASG and Shri Luthra that, thus, there is a statutory provision for deputation from IPS as provided under the RPF Rules. It is submitted that an IPS is an All India Service under Article 312 of the Constitution and is deemed to be “necessary and expedient in the national interest” under Article 312(2). It is submitted that this service is common to the Union and the States and is therefore peculiarly suited for Armed Forces of the Union, which though created by the Centre, can be yet made available in aid of civil power of the State despite “Public Order” being the State subject. It is submitted that, therefore, the scheme is consistent within the framework conceived by the Constitution, apparent in Article 312 and Entry 2-A of the Union List and Entries 1 and 2 of the State List. It is further submitted by the learned ASG that the security of the railway property is integral to the maintenance of public order considering the importance of the network in ensuring connectivity and removing isolation as also providing a cheap and convenient mode of transport apart from having a role in development of agriculture and industry. It is submitted that RPF cannot, therefore, be treated any different from CAPFs.

5.5. Relying upon Rule 106 of IREC, it is submitted that the railway service is classified as gazetted and non-gazetted. It is submitted that Rule 108 provides for establishments and categories falling under the services mentioned in Rule 106. It is submitted that a combined reading of the two rules makes it apparent that the RPF is not included in the list of Railway Service. In support of the above submission, he has also relied upon Rule 103(43) of IREC. It is submitted that, therefore, the DoPT cannot be excluded altogether from the affairs of RPF.

5.6. It is further submitted that in fact the deputation to the RPF, being members of All India Services, cannot be under the administrative control of the Railway Board. It is submitted that the Second Schedule to the Allocation of Business Rules itself stipulates under Item 42(a) that the general policy questions of career planning and manpower planning of the All India Services and Central Government Services is the subject-matter of DoPT. By virtue of the same, DoPT functions as the Secretariat for the Cadre Review Committee which is chaired by the Cabinet Secretary. It is submitted that, therefore, neither can the DoPT be kept out of the affairs of RPF nor can the Ministry of Railways claim exclusive control over the affairs of the RPF.

5.7. Making the above submissions, it is submitted that as there was no enforceable right in favour of the original writ petitioners, more particularly, in the absence of any final approval of the DoPT and/or Ministry of Home Affairs, the High Court is not justified in issuing the mandamus. In support of the above, Shri Lekhi, learned ASG has relied upon the decision of this Court in State Of Kerala v. A. Lakshmikutty (Smt) (1986) 4 SCC 632.

5.8. Making the above submissions and relying upon the above decision of this Court in Lakshmikutty case (1986) 4 SCC 632, it is prayed to quash and set aside the impugned judgment and order dated 4-12-2012 passed by the High Court of Delhi in Harananda v. Union of India 2012 SCC OnLine Del 6001.

6. The present appeal is vehemently opposed by Shri Patwalia, learned Senior Counsel appearing on behalf of the original writ petitioners. It is vehemently submitted by him that, as such, the present appeal is not maintainable at all as the same is against the impugned judgment and order which is a consent order passed by the High Court only after counsel of the parties agreed that the High Court can dispose of the matter by issuing necessary directions. It is submitted that, therefore, after counsel of the parties including counsel for Appellant 2 have agreed for issuance of direction and, thereafter, when the High Court has disposed of the writ petition in terms of the agreement, then the appeal is not maintainable.

6.1. It is further submitted by the learned Senior Counsel appearing on behalf of the original writ petitioners that even the present appeal at the instance of the Ministry of Home Affairs is not maintainable inasmuch as the Ministry of Home Affairs is neither a necessary party nor was a party before the High Court. It is submitted that the Union of India which was represented through the Ministry of Railways has not challenged the judgment and order of the High Court and the Ministry of Home Affairs is a complete stranger and has no locus standi to challenge the order of the Division Bench of the High Court.

6.2. It is further submitted by the learned Senior Counsel appearing on behalf of the original writ petitioners that the Ministry of Home Affairs is not at all concerned with the Group A Cadre of RPF inasmuch as in terms of the Government of India (Allocation of Business) Rules, 1961, the Ministry of Railways is empowered to deal with all matters of the Railways, including RPF. It is submitted that the aforesaid Rules would show the list of Police Organisations which are part of allocation of business of the Ministry of Home Affairs. It is submitted that the list does not contain the name of RPF to whom the original writ petitioners belong. It is submitted that even the Ministry of Railways has accepted the impugned judgment and order and, in fact, has also taken steps to implement the impugned directions. It is further submitted that the decision of the High Court, which is in consonance with the statutory Rules and equitable, has been accepted by the Ministry of Railways, which is a Cadre Controlling Ministry.

6.3. It is further submitted by the learned Senior Counsel appearing on behalf of the original writ petitioners that, even otherwise, on merits also, the impugned judgment and order passed by the High Court is not required to be interfered with by this Court. It is submitted that after careful consideration “in principle” decision was taken by the Ministry of Railways to consider and treat the RPF as Ogacs and the High Court has committed no error in issuing the directions, more particularly, when for a number of years, no final decision/approval was taken and the original writ petitioners and the members of RPF suffered.

6.4. The learned Senior Counsel appearing on behalf of the original writ petitioners has drawn our attention to the report filed by the Second Administrative Reforms Commission submitted in the year 2008. It is submitted that the said Commission after writing a Preface on the various aspects has emphasised on the need for reforms. It is submitted that the said Report states about a table which incorporates all the Organised Group A Central Civil Services in the Government of India. It is submitted that in Items 15, 22, 23, 24 and 25, the services which find places are RPF, Border Security Force, Central Industrial Security Force, Central Reserve Police Force and the Indo-Tibetan Border Police respectively. It is submitted that the said list was drawn having its source from DoPT.

6.5. The learned Senior Counsel appearing on behalf of the original writ petitioners has also drawn our attention to the cadre review of Group A Central Civil Services done by the Government of India, Ministry of Personnel, Public Grievances and Pensions, DoPT in 2010. It is submitted that detailed deliberations were held with the Cadre Controlling Authorities to identify areas that need to be improved upon while conducting cadre reviews and, based on the discussions, guidelines came to be revised and a new Monograph on Cadre Management of Central Group A Services has been prepared. It is submitted that the revised Monograph on Cadre Review specifically provide that the RPF is an Ogacs.

6.6. The learned Senior Counsel appearing on behalf of the original writ petitioners has further drawn the attention of this Court to the OM dated 14-12-2010 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, which deals with the consolidated guidelines on the cadre review of Central Group A Services. It submitted that Annexure 1 to the said OM gives list of Central Group A Services categorywise. It is submitted that the first category is non-technical services, the second is technical services, the third is health service and the fourth one, other services. It is submitted that the other services include CRPF, CISF, BSF and ITBP and non-technical services includes RPF. It is submitted that, therefore, once the OM has been issued accepting the position, it cannot be stated that the same was based on the office notes or a policy decision, as has been argued by the learned ASG appearing on behalf of the Union of India.

6.7. It is therefore submitted by the learned Senior Counsel appearing on behalf of the original writ petitioners that the High Court is justified in issuing the writ of mandamus and observing that the benefit of non-functional financial upgradation granted to the Ogacs should be granted to the original writ petitioners, as the cadre has been reviewed and the distinction between the organised and non-organised cadres has already melted.

6.8. The learned Senior Counsel appearing on behalf of the original writ petitioners has also relied upon Section 10 of the RPF Act, 1957 in support of his submission. He has submitted that the Director General is the competent authority and not the Ministry of Home Affairs.

7. Now, so far as the submission made on behalf of the Union of India through the Ministry of Home Affairs and IPS Association that if the RPF is considered as Ogacs cadre, in that case, the same shall be contrary to the statutory provisions with respect to filling up the posts on deputation. Reliance has been placed upon Section 19 of the Railway Protection Force (Amendment) Act, 1985. It is submitted that the aforesaid provisions clearly prohibit any deputation to the Group A post. It is submitted that as to whether a person can be appointed on deputation to the Group A post in RPF, the same has been examined by the High Court of Delhi in P.S Rawal & Ors v. Union Of India & Ors 867, (2013) 137 DRJ 89 and after the relevant provisions of the RPF (Amendment) Act and Rules, the High Court of Delhi has observed that there cannot be any deputation and/or the posts in the Railway Protection Services cannot be filled up on deputation basis. It is submitted that the said judgment has been accepted by the Ministry of Railways.

8. The learned Senior Counsel appearing on behalf of the original writ petitioners has also heavily relied upon the decision of this Court in Prabhat Ranjan Singh v. R.K. Kushwaha (2018) 18 SCC 1 on the power of DoPT. It is submitted that, in the aforesaid decision, this Court has observed that the Railways is not bound by the memorandum issued by DoPT and is empowered to frame its own rules to lay down the service conditions of its employees.

9. Making the above submissions, it is prayed to dismiss the present appeal.

10. Heard the learned counsel appearing on behalf of the respective parties at length.

10.1. The short question which is posed for consideration before this Court is, whether in the facts and circumstances of the case, the High Court has committed any error in treating and/or considering OM No. 96/E(GR)I/16/I dated 8-5-2003 of the DoPT, Government of India as “in principle” decision for constitution of the RPF as an Organised Group A Central Service and thereby directing to take further steps of cadre structure of RPF as also to finalise the Service Rules with reference to the RPF being an Organised Group A Central Civil Service?

10.2. At the outset, it is required to be noted that, from the impugned judgment and order passed by the High Court, it appears that the impugned judgment and order is a consent order, passed by the High Court only after counsel for the parties agreed that the Court can dispose of the matter by issuing the necessary directions. Therefore, as such, thereafter it would not be open for the appellants to challenge the impugned judgment and order passed by the High Court which seems to be an ad invitem order. At this stage, it is required to be noted that, as such, though sufficient time was granted, the original respondents which included the Ministry of Railways, Ministry of Personnel, Public Grievances and Pension, DoPT, did not file any counter-affidavit. Therefore, as such, it was never disputed by any of the respondents that the OM dated 20-11-2003 is not an “in principle” decision of the DoPT for constitution of the RPF as an Organised Group A Central Service. Under the circumstances, as such, thereafter it will not be open for the appellants to challenge the impugned judgment and order by which the High Court has disposed of the writ petition by issuing a mandamus that, within the next six months, the necessary cadre structure of RPF as also the Service Rules would be finalised with reference to RPF being an Organised Group A Central Service. The aforesaid direction is issued by the High Court considering the fact that as far back in 2003, vide OM dated 20-11-2003, “in principle” decision was taken by the DoPT to constitute the RPF as an Organised Group A Central Civil Service and thereafter, even in the year 2005, draft Service Rules were prepared by the Ministry of Railways after doing the exercise of gradewise cadre structure and, despite the above, no final decision was taken to constitute the RPF as an Organised Group A Central Civil Service. Under the circumstances, as such, the impugned judgment and order passed by the High Court does not call for any interference by this Court.

11. Even on merits also, the appellants have no case.

11.1. According to the appellants, the OM dated 20-11-2003 cannot be said to be “in principle” approval granted by the DoPT to constitute the RPF as an Organised Group A Central Service and the proposal will have to be placed before the Cadre Review Committee for its approval. However, reading OM dated 20-11-2003, the High Court is justified in treating and/or considering the same as “in principle” approval by the DoPT to the proposed constitution of the RPF as an Organised Group A Central Service. However, Para (2) of the said OM stated that the proposal will have to be placed before the Cadre Review Committee for its approval, just like a normal cadre review proposal for the department for further processing. Merely because the “in principle” decision was to be placed before the Cadre Review Committee, it cannot be said that the “in principle” decision contained in the OM dated 20-11-2003 was subject to the further approval and/or no “in principle” decision was taken. The said “in principle” decision was to be placed before the Cadre Review Committee for its approval just like a normal cadre review proposal for further processing. It is required to be noted that while issuing the OM dated 20-11-2003, the DoPT did consider the Ministry of Railways' OM dated 8-5-2003 by which the Ministry of Railways by a detailed note has opined to constitute the RPF as an Organised Group A Central Service. Therefore, the submission on behalf of the appellants and the DoPT that OM dated 20-11-2003 of the DoPT cannot be said to be “in principle” decision by the DoPT to the proposed constitution of the RPF as an Organised Group A Central Service, cannot be accepted. At the cost of repetition, it is to be noted that the High Court was made to believe by all, including the Ministry of Railways and DoPT that the OM dated 20-11-2003 is the “in principle” approval by the DoPT to the proposed constitution of the RPF as an Organised Group A Central Service.

12. One of the grievances of the Department seems to be, which is the competent authority so far as the RPF is concerned on the issue, namely, whether the Ministry of Railways and/or the Ministry of Home Affairs and/or DoPT. It is required to be noted that, right from the beginning, the Ministry of Railways has opined and proposed and/or considered the RPF as an Organised Group A Central Service, which is evident from their correspondences right from 2001 onwards. Even considering the Government of India (Allocation of Business) Rules, the DoPT would have jurisdiction on the general questions relating to recruitment, promotion and seniority pertaining to Central Services, except the Railway Services. The DoPT would have authority on the appointment of non-Indians to civil posts under the Government of India, except the posts under the Department of Railways. It also further provides that the Ministry of Railways has the authority on all matters, including those relating to Railway revenues. Therefore, the DoPT and/or the Ministry of Home Affairs would not have any authority to deal with the subject with respect to services of RPF.

12.1. Another thing which is required to be noted is and it is evident from the correspondences between the Ministry of Railways and DoPT and other authorities that, right from the beginning, as such, the Ministry of Railways opined to constitute the RPF as an Organised Group A Central Service.

13. One of the objections against treating/constituting the RPF as an Organised Group A Central Services is that one of the attributes i.e. Attribute (iv), namely, all the posts from JTS to SAG level should be filled by promotion, is not satisfied as there is a provision for deputation in Recruitment Rules of the RPF to the posts of DIG and IG. At this stage, it is required to be noted that, except the post of IG (RPF), other posts are to be filled in by promotion or on deputation. Therefore, merely because some posts can be filled in by way of deputation also, and otherwise, if the posts are required to be filled in by promotion also, it cannot be said that Attribute (iv) is not satisfied. However, unfortunately, the posts are filled in by way of deputation only resulting in stagnation so far as the officers belonging to RPF are concerned and they are waiting since a number of years for their promotion. Neither are they getting promotion nor are they considered as Ogacs and, as such, they are denied the benefits.

13.1. At this stage, it is required to be noted that even the Ministry of Railways also prepared the draft Rules in the year 2005 after undertaking the exercise of gradewise cadre structure.

13.2. Considering the aforesaid submissions and facts and circumstances and the material on record, when the High Court has issued the mandamus considering and/or treating the OM dated 20-11-2003 as “in principle” decision/approval of the DoPT to constitute the RPF as an Organised Group A Central Services and thereby directing the appellants to take further steps for cadre structure of the RPF and finalise the Service Rules with reference to the RPF being an Organised Group A Central Civil Service, it cannot be said that the High Court has committed any error. The RPF is rightly treated and considered as an Organised Group A Central Service.

14. In view of the above and for the reasons stated hereinabove, the present appeal arising out of SLP (C) No. 12393 of 2013 deserves to be dismissed and is accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs.

Civil appeals arising out of SLPs (Civil) Nos. 35548-554 of 2015 and 13937 of 2016

15. Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the High Court of Delhi dated 3-9-2015 in G.J. Singh v. Union of India 2015 SCC OnLine Del 11803 and other allied writ petitions and the judgment and order dated 15-12-2015 passed in Karuna Nidhan v. Union of India 2015 SCC OnLine Del 14535, by which the High Court has allowed the same preferred by the private respondents herein and has quashed and set aside the OM dated 28-10-2013 and all other letters, whereby the original writ petitioners' request for grant of Non-Functional Financial Upgradation (hereinafter referred to as “NFFU”) was rejected and by which the High Court has also directed the respondents therein to issue requisite notification granting the benefits of NFFU, as recommended by the 6th Central Pay Commission to the original writ petitioners, the original respondents, Union of India and others have preferred the present appeals.

16. The facts leading to the present appeals in a nutshell are as under: that the original writ petitioners were serving in CRPF. All of them were denied NFFU as applicable to other Group A Officers of the Central Government. Therefore, they approached the High Court challenging the decision of the original respondents, the appellants herein, whereby their request for the grant of NFFU as applicable to other Group A Officers of the Central Government, was rejected.

16.1. It appears that during the pendency of proceedings before the High Court, vide an order dated 26-9-2013 2013 SCC OnLine Del 6490, the High Court directed the appellants herein, the original respondents to re-examine the issue regarding grant of NFFU to Group A Officers of CRPF, BSF and Indo-Tibetan Border Police. However, vide an OM dated 28-10-2013 issued by the Ministry of Home Affairs, the issue was decided against the original writ petitioners. Therefore, the original writ petitioners amended the writ petitions and challenged the subsequent OM dated 28-10-2013.

16.2. Before the High Court, the original writ petitioners, inter alia, prayed for the following reliefs:

(1) A writ of mandamus to grant them i.e. Executive Group A Officers of CAPFs the benefit of NFFU with effect from 1-6-2006, as given to other Officers of Group A Service under PB-3 and PB-4, as issued vide OM dated 24-4-2009.

(2) That they be formally declared as an Organised Group A Service with effect from 1-1-2006 with all consequential benefits.

17. It was the case on behalf of the original writ petitioners before the High Court that all the original writ petitioners, as such, belong to Central Services Group A. It was the case on behalf of the original writ petitioners before the High Court that, all throughout, right from 1986, CRPF, BSF, etc. were declared and considered as Organised Group A Services. It was also the case on behalf of the original writ petitioners that in the Monograph/Monographs on “Cadre Management of Group A Central Services”, the BSF and CRPF are included in the list of Central Services (Group A). [1986 Monograph, 1993 Monograph].

17.1. It was also the case on behalf of the original writ petitioners that, as such, the word “organised” has no legal status apropos identification of Central Group A Services and, at best, the word has been introduced by someone over a period of time for administrative convenience which has resulted in confusion. It was submitted that the list in the Monograph includes 58 services which have been categorised as Non-Technical Services, Technical Services, Health Services and other services i.e. ITBP, CISF, BSF and CRPF at Sl. Nos. 50, 51, 52 and 53 thereof.

17.2. It was also the case on behalf of the original writ petitioners that they meet all the attributes of an Organised Service, including Attribute (iv). It was submitted that insofar as Attribute (iv) is concerned, a deputationist can only come against ex-cadre posts, by virtue of their own Cadre Rules, therefore, all the vacancies from JTS to SAG levels are only filled by promotion from the cadre officers. It was further the case on behalf of the original writ petitioners that, as such, in order to overcome the stagnation problems, the 6th Pay Commission recommended NFFU to all Group A Officers in various Organised Group A Services. It was submitted that the purpose of granting NFFU was to give relief to Group A Officers facing the problem of stagnation as a fallback option when regular promotions do not come due to various factors. It was submitted that, therefore, the benefit of NFFU is required to be given to organisation/cadres facing the problem of acute stagnation. It was submitted that CPMFs are facing huge problem of stagnation and thus non-grant of NFFU is most arbitrary.

18. All these aforesaid writ petitions were opposed by the Union of India. It was submitted that OM dated 28-10-2013 has been issued after careful consideration of the submissions and the case on behalf of the original writ petitioners and therefore a conscious decision was taken that the original writ petitioners who belong to CRPF cannot be termed as Organised Group A Services.

18.1. It was submitted on behalf of the Union of India that six attributes are to be fulfilled before CRPF and BSF are considered as Organised Group A Services. It was submitted that, as such, though the original writ petitioners, personnel of CRPF are meeting all first three attributes, however, they do not meet with the fourth and sixth attributes. It was submitted that even if the six attributes are met, it has to meet certain other criteria, for which reliance placed was on the OM dated 19-11-2009/20-11-2009.

18.2. That, thereafter, the High Court having considered the submissions made on behalf of both the parties and considering the material on record, more particularly, the Monographs published by the DoPT from time to time, came to the conclusion that the CPMFs have been shown as a part of the Central Group A Services and that they meet the condition of being organised. The High Court opined that the Government had itself admitted way back that BSF and CRPF are Organised Services and have, in fact, used them as examples of Organised Services. On considering 1986, 1993 and 2010 Monographs, the High Court observed that CMPFs have been shown as part of Group A Central Civil Services. Having observed and coming to the above findings, the High Court by the impugned judgment and order has quashed and set aside the OM dated 28-10-2013 and other allied letters, whereby the original writ petitioners request for grant of NFFU was rejected and consequently directed the appellants, the original respondents to issue requisite notification granting the benefit of NFFU to the original writ petitioners as recommended by the 6th Central Pay Commission.

18.3. Feeling aggrieved and dissatisfied by the impugned judgments and orders, the Union of India and others have preferred the present appeals.

19. Shri Lekhi, learned ASG has vehemently submitted that, by passing the impugned judgments and orders, the High Court has materially erred in holding that the CMPFs were consciously constituted as Ogacs and thereby has materially erred in directing the issuance of notification to grant benefit of NFFU to CRPF.

19.1. It is submitted by the learned ASG that, before any services can be included in Ogacs, six attributes are required to be fulfilled, as has been noted in the Monograph of 1993, as well as in the OM dated 19-11-2009/20-11-2009. He submitted that, in the present case, CRPF does not fulfil the 4th attribute, namely, all the vacancies above JTS and up to SAG levels are filled up by promotion from the next lower grade. It is further submitted that, even in the OM dated 19-11-2009/20-11-2009, in Para 2, it has been specifically provided that even if the services/cadres fulfil the above criteria, six attributes, automatically they cannot be conferred the status of Ogacs. It is submitted that it further provides that an Organised Group A Service is one which is constituted consciously, as such, by the Cadre Controlling Authorities and such a service shall be constituted only through the established procedures. It is submitted that, therefore, six attributes are “basic attributes” which need to be fulfilled.

19.2. It is further submitted by Shri Lekhi, learned ASG that even as per the Recruitment Rules, namely, IPS (Cadre) Rules, 1954, the vacancies above JTS up to SAG level are not wholly filled up by promotion from the next lower grade, but by deputation of IPS Officers. It is submitted that there is no challenge to the relevant Rules. It is submitted that, therefore, Attribute (iv) has not at all been satisfied.

19.3. It is further submitted by the learned ASG that, as such, NFFU was granted only to Ogacs pursuant to the recommendation of 6th CPC. It is submitted that the Commission specifically recommended against the constitution of CAPFs as Ogacs as they do not specifically fulfil the requirement that all posts from JTS to SAG level should be filled by promotion. It is submitted that a conscious decision has been taken not to grant NFFU to CRPF as CRPF/CAPF cannot be treated as Ogacs.

19.4. It is further submitted by the learned ASG that, even otherwise, the High Court has erred in interfering with the conscious decision contained in the OM dated 28-10-2013, that too, in exercise of the powers under Article 226 of the Constitution of India. It is submitted that, after careful consideration and considering the pros and cons of the matter, a conscious decision was taken contained in OM dated 23-10-2013. He submitted that, therefore, the impugned orders of the High Court are completely unwarranted in law as it is a settled principle that the proceedings in judicial review deal not with merits of decision making, but with the method by which the decision is taken. It is submitted that there was no warrant for the High Court while exercising jurisdiction in judicial review to substitute its view with the discretion exercised by an expert authority which was hearing the parties concerned.

20. Making the above submissions, it is prayed to allow the present appeals and quash and set aside the impugned judgments and orders passed by the High Court.

21. The present appeals are vehemently opposed by the learned counsel appearing on behalf of the original writ petitioners.

21.1. It is vehemently submitted by the learned counsel appearing on behalf of the respondents, original writ petitioners that the impugned judgments and orders passed by the High Court do not call for any interference by this Court, as the High Court has passed the impugned judgments and orders considering the relevant material on record and considering the fact that, right from 1986, CRPF, etc. are treated and considered as Group A Organised Services.

21.2. It is submitted on behalf of the original writ petitioners that, as such, right from the beginning of Civil Service System in India, the services fulfilling the essential requirements were recognised and treated as Organised Services. It is submitted that, as such, there are no statutory provisions for formally declaring Group A Service to be an Organised Service. He submitted that, even as per the record of DoPT, it is admittedly prepared after observing due formalities, the Central Paramilitary Forces formally stand to be the Organised Services since 1986. It is submitted that the isolated posts are those posts which do not have proper gradation, hierarchy, recruitment plan, recruitment rules, etc. and, on the contrary, the Organised Services are those services which have proper recruitment plan, quota fixed direct entry, quota fixed for promotion and deputation, etc., which fact is evident from the Cadre Management Monograph issued by DoPT in 1986. It is vehemently submitted that, in the list given in the Monograph, the names of BSF and CRPF can be seen. It is submitted that it was only in the OM dated 20-11-2009, a doubt has been created solely on the ground that one of the attributes out of six attributes has not been fulfilled. It is submitted that OM dated 20-11-2009 specifying the six attributes cannot apply to these Forces as they have been treated and declared as Organised Services by the DoPT time and again through their own Monographs and various other correspondence. It is submitted that, as such, BSF, CRPF and ITBP were brought into the category of regularly constituted Organised Services on fulfilling the essential requirements of an Organised Service and the same is also referred to in the Note of DoE dated 21-10-1986.

21.3. It is further submitted that, in fact, the DoPT, while issuing the OM dated 20-11-2009 had by laying down the six attributes, clearly stated that the existing Ogacs which have evolved over a period of time may have minor deviations owing to their functional requirements and, therefore, clarified that such services already declared need not be reviewed. It is further submitted that, as such, the attributes mentioned in OM dated 20-11-2009 are only basic requirements and not preconditions for service to be called an Organised Service.

21.4. The learned counsel appearing on behalf of the original writ petitioners has brought the attention of this Court to the Monographs of 1986 and 1993 from the Cadre Management of Group A Central Services and has vehemently submitted that the cadre reviews were done only after in-depth research work by study teams and are based on recommendations of Administrative Reforms Commission. It is submitted that, in the aforesaid Monographs, CRPF, BSF, etc. are held to be and considered as an Organised Group A Services. It is submitted that, therefore, thereafter it is not open for the DoPT and/or others not to treat CRPF as a Central Service Group A and thereby to deny NFFU.

21.5. It is further submitted on behalf of the original writ petitioners that, even otherwise, there is a clear hierarchy of posts in the three Forces which have sufficient cadre strength with promotional avenues and, therefore, they meet all the necessary requisites of an Organised Service, including the fourth attribute by filling all vacancies in Senior Administrative Grade (SAG) post on which they have right to hold.

21.6. It is further submitted on behalf of the original writ petitioners that even Non-functional Selection Grade was granted to all CAPFs and, as per the DoPT own admission, Non-functional Selection Grade is granted only to Organised Group A Services.

21.7. It is further submitted on behalf of the original writ petitioners that even after issuance of the OM dated 20-11-2009, the Monograph published in the year 2010, while referring to the consolidated guidelines dated 14-12-2010, makes specific reference to the list of existing Central Group A Services annexed to the OM. It is submitted that in the said list, ITBP, BSF and CRPF appear at Sl. Nos. 50, 52 and 53 respectively.

21.8. It is further submitted on behalf of the original writ petitioners that, as such, the plea of the appellants that the respondents do not fulfil Attribute (iv) overlooks the fact that Attribute (iv) refers to filling of vacancies and not posts. It is submitted that, in fact, there are large stagnations in CPMF cadres at the level of posts wherever deputation quota for IPS Officers has been fixed. It is submitted that, on one hand, they fix the quota for IPS Officers at SAG level and then claim that vacancies are not being filled by cadre officers. It is submitted that, in all the three Forces, a number of officers in Group A Services are available and, in fact, eligible for promotion at various levels, but they are in fact stagnating for a prolonged period even after meeting the requisites of the Promotion Rules. It is submitted that, in fact, noting of the Government in one of their files, bearing No. P-I-1/2012 Pers-DA-Pa notices that fact that non-fulfilling Attribute (iv) cannot be attributed to the CAPFs and it is not as if the Force is short of officers to fill up the vacancies up to the IG rank. It is submitted that, in fact, the note also records that the cadre officer should not be in disadvantageous position in terms of delay in promotional avenues.

21.9. It is further submitted on behalf of the original writ petitioners that, as such, pursuant to the recommendations of the 4th Pay Commission, DoPT has introduced financial benefit called Non-functional Selection Grade way back in 1990. It is submitted that perusal of the list of services upon whom the said benefit was applicable would show that the names of CRPF, BSF and ITBP are mentioned therein. It is submitted that CAPFs were granted the benefit which is only granted to the Organised Group A Services and, therefore, it clearly proves that CPMFs were treated as Organised Group A Services.

21.10. It is further submitted on behalf of the original writ petitioners that the 6th Central Pay Commission is only recommendatory and it does not grant an organisation the status of organised or non-organised upon various services. It is submitted that it is the DoPT, which is a nodal agency to declare the services under a particular group. It is submitted that, as such, the DoPT in its various Monographs has referred to the procedures for conducting cadre review and to show that the Cadre Review Exercise is done of a regularly constituted Service (Organised Services). It is further submitted that, as per the DOPT Monographs, the Cadre Review Exercise is done only for the Organised Group A Services and a list of services whose cadre was reviewed by DoPT was also attached with the said Monographs, which bears the name of CAPFs. It is submitted that, therefore, the submission on behalf of the appellants that CAPFs was not recommended by the 6th Central Pay Commission and therefore not entitled to NFFU, is contrary to the procedures and the delegation of power.

21.11. It is further submitted on behalf of the original writ petitioners that, as such, there are promotion avenues and hierarchy of posts and merely because some posts are filled up on deputation cannot be a ground to deny the status of Organised Group A Services to CRPF, etc., and on the ground that Attribute (iv) has not been satisfied and/or fulfilled. It is submitted that there are number of many other organisations/services, including the Indian Audit and Accounts Services, Central Health Services, Indian Legal Services, etc. which have a number of deputationists and still they are granted the benefits treating them as Organised Group A Services. It is submitted that, therefore, even otherwise, the action of the appellants in denying the benefit of NFFU to the CAPFs is illegal, arbitrary and violative of Article 14 of the Constitution of India.

22. Making the above submissions, it is prayed to dismiss the present appeals.

23. Heard the learned counsel appearing on behalf of the respective parties at length.

23.1. At the outset, it is required to be noted that the issue in the present appeals is non-grant of NFFU to the officers/employees like the original writ petitioners serving in CRPF. CRPF in the present case is denied NFFU solely on the ground that CRPF is not an Organised Group A Service and, therefore, they are denied the benefits of NFFU as recommended by the 6th Pay Commission as granted to other services.

23.2. That, while considering the aforesaid issue, the object of grant of NFFU is required to be considered. In order to overcome the stagnation problems, the 6th Pay Commission recommended NFFU to all Group A Officers in various Organised Group A Services. The purpose of granting NFFU was to give relief to Group A Officers facing the problem of stagnation as fallback option when regular promotions do not come into various factors. It has come on record that CPMFs are facing huge problem of stagnation, more particularly, on one hand, they are not being granted the promotion as most of the promotional posts are filled in by deputation and, on the other hand, they are denied NFFU.

23.3. As observed hereinabove, CMPFs are not granted the benefit of NFFU on the ground that they are not categorised as Organised Group A Services. As noted hereinabove, it is the case on behalf of the appellants that, out of six attributes which are required to be considered for treating and/or considering an organisation as an Organised Group A Services, CRPF does not satisfy Attributes (iv) and (vi) and also on the ground that the 6th Pay Commission did not recommend grant of NFFU to CAPFs.

23.4. Considering the material on record, more particularly, the Monographs published by the DoPT right from 1986 till date, CAPFs have been shown to be a part of the Central Group A Services. CAPFs have been shown as a part of the Central Group A Services after conducting the exercise of cadre review, etc. by the DoPT. Therefore, all throughout from 1986 till date, in the Monographs published by the DoPT, CAPFs have been shown to be a part of Central Group A Services. Therefore, thereafter it would not be open for the DoPT not to consider and/or treat the CAPFs as an Organised Group A Services.

23.5. So far as the submission made on behalf of the appellants that CAPFs are not an Organised Group A Services as they do not satisfy two attributes out of six attributes is concerned, it is required to be noted that the OM dated 19-11-2009 specifically notes that there may be certain “minor deviations” from the attributes listed therein and also to the extent wherein it states that even if the listed criteria are fulfilled, the same would not automatically confer the status of an Organised Group A Service. Thus, as rightly observed by the High Court in the impugned judgment and order, fulfilling/compliance of the attributes shall not be given too much weightage while deciding on the status of CAPFs.

23.6. At this stage, it is required to be noted that while considering the case of ITBP, the Department of Expenditure, Ministry of Finance, Government of India, it has been referred to in the additional affidavit of the Director, DoPT that since ITBP has no proper structure it is not possible to compare it with other Organised Services like BSF, CRPF. Thus, the Government itself has itself admitted way back on 21-10-1986 that BSF and CRPF are Organised Services and have, in fact, used them as examples of Organised Services. At the cost of repetition, it is to be noted that thereafter the Government has, through its own process, classified the BSF, CRPF and ITBP as being on a par with each other in the 1986, 1993 and 2010 Monographs, wherein the aforesaid CAPFs have been shown as a part of the same Group A Central Civil Services.

23.7. From the impugned judgments and orders passed by the High Court, it appears that by passing the impugned judgments and orders and holding that CAPFs are Organised Group A Central Civil Services, the High Court has considered the report of the Second Administrative Reform Committee which included in Table 4.1 a list of all Organised Group A Central Services in the Government of India in which the Paramilitary Forces such as BSF, CISF, SRPF and ITBP are shown at Sl. Nos. 22 to 25 respectively and the source at the bottom of the Table is stated to be the DoPT itself.

23.8. Considering the aforesaid facts and circumstances and the material on record, which came to be considered by the High Court in detail, it cannot be said that CAPFs do not constitute Organised Group A Central Civil Services/Group A Central Civil Services.

24. Now, so far as another ground on which CRPF are denied NFFU that the 6th Central Pay Commission did not grant NFFU to CAPFs is concerned, it is required to be borne in mind that the Central Pay Commission, as such, is not authorised to define “Organised Services” or to grant such status to any service. The recommendations would be made by the Central Pay Commission on the basis of the information submitted to it by the various Departments. It appears from the material on record that right from 1986 onwards, in various Monographs CAPFs were included in the list of Group A Central Civil Services. The Government took “U” turn and a stand was taken that CAPFs are not Organised Group A Central Services and, therefore, on the basis of such a stand, the Department must have given the information to the Central Pay Commission and, therefore, the 6th Pay Commission did not recommend NFFU to CAPFs. Therefore, merely because the 6th Pay Commission did not recommend to grant NFFU to CAPFs — Group A Officers in PB-III and PB-IV, the Group A Officers in PB-III and PB-IV cannot be denied NFFU, which otherwise is granted to all the Officers of Group A Central Civil Services.

24.1. It is also required to be noted that, as such, the CAPFs were granted the benefit of recommendations of 4th Pay Commission, more particularly, the Modified Assured Career Progression Scheme which was given to the Central Group A Civil Services.

24.2. Considering the aforesaid facts and circumstances and the objects and reasons of the grant of NFFU as recommended by the 6th Pay Commission, when the High Court has observed and consequently directed that the officers in PB-III and PB-IV in the CAPFs are Organised Group A Service and, therefore, entitled to the benefits recommended by the 6th Pay Commission by way of NFFU and thereby has directed the appellants to issue a requisite notification granting the benefits of NFFU as recommended by the 6th Central Pay Commission, it cannot be said that the High Court has committed any error which calls for the interference by this Court. We are in complete agreement with the view taken by the High Court.

25. In view of the facts and circumstances, the present appeals arising out of SLPs (Civil) Nos. 35548-554 of 2015 and 13937 of 2016 deserve to be dismissed and are accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs.

SLPs (C) Nos. … (CCs Nos. 5735-38, 5740, 5742-43 of 2016)

26*. So far as these petitions seeking permission to file the special leave petitions are concerned, in view of the reasons stated in the civil appeal arising out of SLPs (C) Nos. 35548-554 of 2015, and as we concur with the impugned judgment and order passed by the High Court, and even otherwise considering the fact that by granting CAPFs under the Ministry of Home Affairs as an Organised Group A Central Services, the rights of IPS, if any, for their appointment on deputation on some of the posts in CAPFs cannot be said to have been affected and merely because some posts in the CAPFs might have been required to be filled in by way of deputation also, grant of status of Organised Group A Central Services to CAPFs shall not affect IPS, the applications for permission to file the special leave petitions deserve to be declined and are accordingly declined.