IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present:-

The Hon’ble Justice Madhuresh Prasad And The Hon’ble Justice Prasenjit Biswas MAT 406 of 2020 CAN 1 of 2020 (Old No. CAN 2831 of 2020)

CAN 2 of 2020 Union of India & Ors.

Vs.

Atul Kumar Sarkar & Ors.

For the Petitioner : Mr. S. N. Dutta For the Respondents. : Mr. Achin Kr. Majumder, Ms. Ananya Adhikary Judgment on : 5th March, 2026 Madhuresh Prasad, J.:

1. We have heard the learned counsels representing the parties.

2. A list of eligible Sub-Inspectors as on 13.06.2018 for participating in a process of promotion to the post of Inspector was published under a communication dated 23.08.2018. The petitioners’ names did not figure in the list. They thus approached the Writ Court seeking directions to allow them to participate in the process of promotion taking into consideration the fact that they had rendered the requisite qualifying (8 years service) for being considered in the promotional process.

3. The petitioners put to challenge the list of Sub-Inspectors found eligible for the promotion process, wherein they were excluded. The writ petitioners contended before the Writ Court that since they possessed the requisite qualification (8 years’ service as Sub-Inspector). Thus, there was no basis for excluding them from the process of promotion.

4. The Railways, on the other hand tried to justify the exclusion of the petitioners from the list of eligible candidates by placing reliance on Rule 99.2 of the Railway Protection Force Rules, 1987 (hereinafter referred to as the 1987 Rules for short) read with Schedule IV of the Rules. They have also relied upon the communication dated 01.01.2018 issued by the DIG of the Force in the Railway Board.

5. The Railways were respondents before the writ court and preferred the present intra court appeal. It was contended before the Hon’ble Single Judge as has been canvassed before this Court, that the writ petitioners voluntarily sacrificed their seniority when they were transferred on request to the Eastern Railway.

6. From a combined reading of the provisions contained in the Rules and the communications noted above the effect of a transfer on request; or a mutual transfer is a loss of seniority. The transferred officer is required to be placed below the persons already serving substantively or in officiating capacity in the transferred place.

7. In view of the unambiguous provision contained in the Rule, schedule and the communications, the petitioners were placed below the 14 Sub-

Inspectors already posted at the transferred place. Therefore, the 14 sub- inspectors were declared eligible for promotion in the impugned notification dated 23.08.2018. The petitioners, have no sustainable claim. They were placed at the bottom of seniority due to their transfer on request; or mutual transfer to the transferred post. The judgment of the Hon’ble Single Judge, dated 24.12.2019, allowing the writ petition, therefore, is unsustainable in as much as it has found the petitioners eligible for participation in the process of promotion conducted under the notification dated 23.08.2018 and directed for consideration of their claim for promotion to the rank of Inspector, ignoring their place in the seniority list, if they were otherwise eligible as per notification dated

23.08.2018.

8. The writ petitioners participated in the subsequent recruitment process conducted in the year 2021. Therefore, there is no scope for giving any benefit of the promoted post (Inspector) prior to their being declared successful in a promotion process conducted in the year 2021.

9. The learned advocate representing the writ petitioners on the other hand submits that the impugned list of eligible candidates published by the authorities is unsustainable. It is founded on a misreading of the Rules and the notifications issued thereunder. When the petitioners sought transfer on request or mutual basis, the only thing they sacrificed under the Rule was seniority. Suc