Sanjay Prakash vs Union Of India

INTERLOCUTORY APPLICATION NO. 16706 OF 2021

IN

PETITION FOR SPECIAL LEAVE TO APPEAL(C) NO. 12158 OF 2020

SANJAY PRAKASH & ORS. …PETITIONER(S)

VERSUS

UNION OF INDIA & ORS. …RESPONDENT(S)

WITH

INTERLOCUTORY APPLICATION NO.11014 OF 2021

IN

PETITION FOR SPECIAL LEAVE TO APPEAL (C) NO. 12505 OF 2020

WITH

INTERLOCUTORY APPLICATION NO.11786 OF 2021

IN PETITION FOR SPECIAL LEAVE TO APPEAL (C) NO. 12503 OF 2020 Signature Not Verified

Digitally signed by SATISH KUMAR YADAV Date: 2021.07.06 15:49:58 IST Reason: WITH

INTERLOCUTORY APPLICATION NO.7477 OF 2021 Page | 1 IN

PETITION FOR SPECIAL LEAVE TO APPEAL (C) NO. 12466 OF 2020

WITH

INTERLOCUTORY APPLICATION NO.11026 OF 2021

IN

PETITION FOR SPECIAL LEAVE TO APPEAL (C)NO.12570 OF 2020

ORDER

Five sets of officers belonging to the Indian

Police Service (IPS) have applied for being impleaded

in this set of petitions for special leave to appeal

(SLPs). These proceedings arise from a common

Judgment delivered by a Division Bench of the Delhi

High Court in five writ petitions brought by Group A

officers of the Central Industrial Security Force

(CISF), Central Reserve Police Force (CRPF), Indo

Tibetan Border Police (ITBP), Border Security Force

(BSF) and Sashastra Seema Bal (SSB). These forces are

collectively referred to as the Central Armed Police

Force(s). In course of hearing, intervention has also

been asked for by the Central Indian Police Service Page | 2 Association on the strength of caveat applications

lodged by them.

2. The scope of dispute involved in the writ

petitions out of which these proceedings arise have

been summarised in the first paragraph of the

Judgment under appeal. This paragraph reads:-

“These five petitions, by personnel of different services viz. Central Reserve Police Force (CRPF), Border Security Force(BSF), Sashastra Seema Bal (SSB), Indo Tibetan Border Police(ITBP), and Central Industrial Security Force (CISF), collectively known as Central Armed Police Forces (CAPFs), (i)impugn the direction of each of the said services, for filling up of the additional posts created pursuant to the Cadre Review (CR)of the year 2016, as per existing Recruitment Rules (RRs), which provide for certain percentage of posts at each level upto Senior Administrative Grade (SAG) being filled up by deputation; and,

(ii) seek mandamus directing the respondents to amend the RRs of each service, by including various attributes, as required by Department of Personnel and Training (DoPT) Office Memorandums (OMs)dated 20th November, 2009, 15th December, 2009, 24th March 2009, 24th April 2009 and 8th May, 2018, particularly to the extent provide for all posts upto SAG level being filled up by promotion only and not by deputation, and to thereafter conduct CR of Group ‘A’ Officers of each cadre, by treating each service as Organised Group ‘A’ Service (OGAS), as held by this Court in G.J.Singh Vs. Union of India 2015 SCC online Del 11803 and affirmed by the Supreme Court in Union of India Vs. Harananda (2019) 14 SCC 126.”

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3. The writ petitions were disposed of in the

following terms by the High Court:-

“We thus dispose of these petitions:

(I) By permitting the members of each Central Armed Police Force to, if so desire, make comprehensive representation(s) to the Ministry of Home Affairs, for amendment of the respective Recruitment Rules of each Central Armed Police Force including qua Cadre Structure, Residency, Deputation etc. (II) By directing the Ministry of Home Affairs to, in compliance of the DoPT OMs dated 31st December, 2010 and 8th May, 2018, immediately undertake the exercise for review of existing Recruitment Rules of each Central Armed Police Force, also taking into consideration the representation(s), if any, received from the members of the Central Armed Police Forces and after giving them an opportunity of being heard and to place its decision in this regard before the Department of Personnel and Training.

(III) By directing the Department of Personnel and Training to, immediately on receipt of decision from the Ministry of Home Affairs qua review of Recruitment Rules of respective Central Armed Police Forces, take necessary action thereon;

(IV) By permitting the petitioners to make comprehensive representation(s) qua each Central Armed Police Force to the Department of Personnel and Training, qua the Cadre Review due in the year 2021 including as to the terms of reference if any thereof. (V) By directing the Department of Personnel and Training to ensure timely commencement of Cadre Review exercise due in the year 2021 and to, in the terms of reference qua Cadre Review for Central Armed Police Forces, consider incorporating the representation(s), if any, made by the members of each Central Armed Police Force, and the decision of the Ministry of Home Affairs qua the review of Recruitment Rules of each Central Armed Police For.

(VI) By directing that the entire exercise aforesaid be concluded on or before 30th June, 2021.”

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4. The applicants want to be impleaded on the basis

of their apprehension that posts in the five CAPFs

kept for being filled up by deputation by the

officers from the Indian Police Service might get

diluted in the event the main plea of the petitioners

is accepted. Their prayer for impleadment, however,

has been strongly resisted by the petitioners, inter-

alia on the ground that barring one, Jitender Rana,

who is the first applicant in two impleadment

applications, being Interlocutory Application No.7477

of 2021 (relating to SSB) and Interlocutory

Application No.11026 of 2021 (relating to CRPF), none

of the applicants is posted in any of the CAPFs as a

deputationist. Interlocutory Application No. 11014 of

2021 is in relation to proceedings instituted by the

ITBP, Interlocutory Application No.11786 of 2021

relates to petition for Special Leave to Appeal

instituted by the officers of BSF, whereas

Interlocutory Application No. 16706 of 2021 arises

out of proceedings pertaining to CISF. Said Jitender

Rana appears to have been posted on deputation in

CISF as a DIG. He, however, has not applied for being

impleaded in the proceedings arising out of the writ Page | 5 petition filed by the senior officers of CISF. It has

also been contended on behalf of the petitioners that

the applicants have not been empanelled for central

deputation and no legal right of the applicants can

be said to have been created or could taken away by

the ultimate outcome in the present set of SLPs, if

the stand of the petitions is upheld. It is also

argued on behalf of the petitioners that the

deputationists or potential deputationists do not

have any vested legal right to any post in the senior

cadre of the CAPFs. Mainly on these grounds, it is

submitted that the applicants are neither necessary

nor proper party in SLPs. My attention has also been

drawn to paragraph 13 of the impugned judgment. It

has been recorded therein that the impleadment

application of IPS officers were not allowed. I find

from the said paragraph that the High Court had

assured them of hearing and the counsel for the IPS

officers was heard before the Bench of the Delhi High

Court.

5. Submission on behalf of the applicants, on the

other hand, has been that the Indian Police Service

Page | 6 is an All-India Service under Article 312 of the

Constitution of India. As per IPS (Cadre Rules) 1954,

every State has a central deputation reserve not

exceeding 40% of the total senior duty posts. It is

pointed out on behalf of the applicants that

deputation is an integral part of the constitutional

scheme under Article 312 of the Constitution of

India. Learned counsel appearing for the applicants

has pointed out that the individual service rules of

each of the five forces provide for deputation in

senior posts and the IPS officers’ right to get

impleaded in these five proceedings flow from such

provisions also. It is urged on behalf of the

applicants that the object of the petitioners is to

do away with deputation in the CAPFs by IPS officers

altogether and fill up all the senior administrative

grade posts of the respective forces from within the

service only. This would impact the IPS officers’

career prospect. On the point as to whether the

applicants are necessary or proper parties, the case

of Prabodh Verma And Ors. vs State of Uttar Pradesh &

Ors.[1984 (4) SCC 251] has been relied upon. In this

Judgment, it has been, inter-alia held:-

Page | 7 “The real question before us, therefore, is the correctness of the decision of the High Court in the Sangh Case. Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable defects. The first defect was that of non-joinder of necessary parties. The only respondents to the Sangh’s petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties-not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh’s writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties.”

6. Similar view has been expressed by this Court in

the case of A. Janardhana vs Union of India [1983 (3)

SCC 601], though, in this case, a slightly different

approach has been taken. It has been held in this

authority:-

“It was contended that those members who have scored a march over the appellant in 1974 seniority list having not been impleaded as Page | 8 respondents, no relief can be given to the appellant. In the writ petition filed in the High Court, there were in all 418 respondents. Amongst them, first two were Union of India and Engineer-in-Chief, Army Headquarters, and the rest presumably must be those shown senior to the appellant. By an order made by the High Court, the names of Respondents 3 to 418 were deleted since notices could not be served on them on account of the difficulty in ascertaining their present addresses on their transfers subsequent to the filing of these petitions. However, it clearly appears that some direct recruits led by Mr Chitkara appeared through counsel Shri Murlidhar Rao and had made the submissions on behalf of the direct recruits. Further an application was made to this court by nine direct recruits led by Shri T. Sudhakar for being impleaded as parties, which application was granted and Mr P.R. Mridul, learned Senior Counsel appeared for them. Therefore, the case of direct recruits has not gone unrepresented and the contention can be negatived on this short ground. However, there is a more cogent reason why we would not countenance this contention. In this case, appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents. We may in this connection refer to G.M., South Central Railway, Secundrabad v. A.V.R. Siddhanti. Repelling a contention on behalf of the appellant that the writ petitioners did not implead about 120 employees who were likely to be affected by the decision in the case, this court observed that [SCC para 15, p. 341 : SCC (L&S) p. 296] the respondents (original petitioners) are impeaching the validity of Page | 9 those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of government servants is assailed. In such proceedings, the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the court.

Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by anyone individual against another particular individual and therefore, even if technically the direct recruits were not before the court, the petition is not likely to fail on that ground. The contention of the respondents for this additional reason must also be negatived.”

7. In a subsequent authority, Mukul Kumar Tyagi vs

State of Uttar Pradesh and others [2020 (4) SCC 86],

it has been observed by this Court:-

“The present is a case where the writ petitioners had not raised any challenge to a particular qualification of any individual candidate rather their challenge was that without scrutiny large number of candidates, who were claiming qualification equivalent to CCC Certificate have been included without there being any scrutiny and without they fulfilling the qualification. The case of the writ petitioners was that the computer certificate issued by the private organisations and unregistered societies, who neither were recognised by the State Government or the Central Government or by any statutory body could not issue any certificate. We may further notice that the Division Bench also noticed the above argument of non-impleadment of all the selected candidates in the writ petition but the Division Bench has not based its judgment on the above argument. When the inclusion in the select list of large number of candidates Page | 10 is on the basis of an arbitrary or illegal process, the aggrieved parties can complain and in such cases necessity of impleadment of each and every person cannot be insisted. Furthermore, when select list contained names of 2211 candidates, it becomes unnecessary to implead every candidate in view of the nature of the challenge, which was levelled in the writ petition. Moreover, few selected candidates were also impleaded in the writ petitions in representative capacity.”

8. While dealing with the present set of

applications, I am not examining the legality of the

judgment assailed on the ground of non-joinder of

necessary parties. The applicants have approached

this Court for being heard on the conflict points

involved in these petitions. Thus the question I

will have to examine is as to whether they can be

given access to this set of petitions as parties. I

shall be addressing only the plea for impleadment or

intervention of the applicants.

9. In the event the petitions for Special Leave to

Appeal are allowed and the plea of the petitioners

for excluding deputationists from the senior

administrative posts of the respective CAPFs

eventually come to be accepted, it would obviously

have an impact on the upper reaches of the service

avenues of the IPS officers. The prayers made in Page | 11 SLP(C) No. 12158 of 2020 is quoted below for proper

understanding of the scope of the petitions for

Special Leave to Appeal:-

“Main Prayer It is therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:

a) Grant Special Leave to Appeal to the petitioner against the impugned judgment and final order dated 27.07.2020 passed by the Hon’ble High Court of Delhi at New Delhi in W.P.(C) No. 12751/2019; and

b) Pass any other and further order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

Prayers for Interim Relief:

It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:

a. Grant stay of appointment of persons by way of deputation to any of the cadre posts of CISF Group A Executive Cadre; b. Grant ad interim ex-parte stay of the impugned judgment and final order dated 27.07.2020 passed by the Hon’ble High Court of Delhi at New Delhi in W.P.(C) No. 12751/2019; and c. Pass any other and further order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”

Similar are the prayers in the other petitions for

special leave to appeal. Before the High Court, the

petitioners had mainly relied on an earlier decision

of this Court in the case of Union of India vs

Harananda [(2019) 14 SCC 126]. In this judgment,

inter-alia, it was held that Railway Protection Force

Page | 12 was to be constituted as Organised Group A Civil

Service.

10. Argument advanced on behalf of the petitioners

is that the applicants are not necessary or proper

parties in this set of proceedings. The petitioners

are seeking directions for amendments of a set of

existing Rules and office memoranda, which provide

for, inter-alia, filling up of certain percentage of

senior administrative grade posts by deputation.

Relief is sought here against the concerned arm of

the Union Government over framing of service rules

that would have the effect of, among other change in

service structure, entail IPS officers from holding

the senior positions of the respective Forces on

deputation. But as I have already observed, by filing

these applications, the applicants are volunteering

their participation in these petitions to highlight

their grievances. Thus the ratio of A. Janardhana

(supra), which dealt with the aspects of leaving out

a set of persons from whose interest could be

affected by the outcome of a case, cannot be applied

in this set of proceedings. The applicants’ claim

for entry to these proceedings is founded on their Page | 13 possibility of being engaged on deputation to the

senior administrative posts of CAPFs being adversely

affected. Objections to their presence in these

proceedings are mainly on two grounds. First is that

the petitioners are questioning certain actions of

the Government pertaining to clogging of promotional

avenues of in-service officers of the CAPFs. In the

event such plea of the petitioners is accepted by

this Court, then the right of an IPS Officer to be in

deputation will lapse or be largely impaired. Such

deputation provisions do not originate from general

principles of being placed on deputation, which is a

recognized practise guiding organized services.

Placing an IPS Officer on deputation in these Forces

are integrally linked to the service rules of the

respective Forces. Moreover, there is provision for

deputation of IPS Officers as per the IPS Cadre

Rules, 1954. Reference has been made to the schedule

to Central Industrial Security Force (Group ‘A’

Executive Cadre) Recruitment Rules, 2002, Rule 13 of

the SSB Rules, 2009, schedule to the Central Reserve

Police Border Force Group “A” General Duty Officers

Recruitment Rules and Section 12 of ITBP Act, 1992 Page | 14 and schedule to the Border Security Force (Seniority,

Promotion and Superannuation of Officers) Rules,

1978. These instruments provide for recruitment by

deputation to the senior administrative posts of the

CAPFs. In the given facts in my opinion, Jitender

Rana, first applicant in Interlocutory Application

Nos. 7477 and 11026 of 2021 ought to be impleaded in

the respective petitions for Special Leave to Appeal

in connection with which these applications have been

taken out. He is an IPS Officer on deputation in a

CAPF and has direct and subsisting interest in the

subject controversy. The two petitions in which he

seeks to be impleaded however do not relate to the

Force in which he is on deputation. But considering

the fact that these proceedings are being heard

together and arise out of a common judgment, I do not

consider this factor should determine his plea of

being impleaded to these proceedings. I am of the

opinion that he fulfils the requirement of being

impleaded as a proper party and direct him to be

added as a respondent in Petition for Special Leave

to Appeal (Civil) No. 12466 of 2020 and Petition for

Special Leave to Appeal (Civil) No. 12570 of 2020.

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11. Rest of applicants also have been able to

demonstrate sufficient interest on the ultimate

outcome of the five petitions for special leave to

appeal. Under these circumstances, I allow them to

intervene in these proceedings.

12. Objection was made as regards as intervention of

the Indian Police Service Central Association. The

Association have not filed any application for

impleadment or intervention before the High Court. I

have referred to paragraph 13 of the impugned

judgment in this regard. Their intervention was not

allowed but they were heard. I further find from the

judgment that they were actually heard. They have

argued before me on the point of impleadment on the

basis of having filed caveat application. But while

as caveators they have the right of being notified of

the lodging of the SLPs in terms of Clause 2 of Order

XV of the Supreme Court Rules, 2013, mere filing of

caveat application cannot grant them an entry into a

Petition for Special Leave to Appeal. Filing of

Caveat by itself does not entitle them to be treated

as a party to the proceeding. I accordingly grant

them leave to apply for being impleaded before the Page | 16 appropriate Bench of this Court. Questions were

raised before me on legitimacy of such an

Association. But that question I am not determining

in this order, having regard to my observation as

regards their right of participation in relation to

the present set of applications.

13. These five applications are disposed of

accordingly.

14. Let necessary amendments and alteration of

records be carried out on the basis of this order.

15. There shall be no order as to costs.

………………………….J (ANIRUDDHA BOSE)

New Delhi Dated: 28th June, 2021

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