Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL NO(S). 9176 OF 2018
(@ SLP (C) NO(S).22444 OF 2017)
Prabhat Ranjan Singh & Anr. …. Appellant(s)
Versus
R.K. Kushwaha & Ors. … Respondent(s)
WITH
CONTEMPT PETITION (C) NO. 717 OF 2018
IN SLP (C) NO(S).22444 OF 2017
CONTEMPT PETITION (C) NO. 732 OF 2018
IN SLP (C) NO(S).22444 OF 2017
SLP (C) NO(S). 4144 OF 2018
T.C. (C) No. 52 OF 2018
J U D G M E N T
Deepak Gupta J.
Signature Not Verified
Digitally signed by
SANJAY KUMAR
Date: 2018.09.07
14:12:03 IST
Reason:
1. Leave granted in appeal arising out of SLP (C) No(s).
22444 of 2017.
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2. This is yet another battle, in the seemingly never ending
war between promotees and direct recruits.
3. In the Indian Railways, there is a service known as the
Indian Railway Service of Signal Engineers (for short ‘the
IRSSE’). This is a GroupA service. Recruitment to the
service is by two modes – 50% by direct recruitment and 50%
by promotion from amongst GroupB officers in the feeder
services. The direct recruits are selected through an
examination conducted by the Union Public Service
Commission (for short ‘the UPSC’).
4. On 23.10.2007, the Ministry of Railways issued a
requisition to the UPSC for filling up vacancies in the GroupA
service. The test was to be conducted in the year 2008 and
the recruitment was known as the Engineering Services
Examination, 2008. Shri R.K. Kushwaha, hereinafter referred
to as ‘the direct recruit’, was successful in the said
examination. He was duly selected and joined service on
3
14.12.2009. Some officers, who were working in the GroupB
service of the Signal and Telecommunication Department of
the Indian Railways were promoted vide order dated
12.08.2014 to GroupA service with effect from 08.05.2014.
These officers were given benefit of weightage of 5 years of
service rendered in GroupB service in terms of Rule 334 of
the Indian Railways Establishment Manual (for short ‘the
IREM’), Vol.1 and their relevant date for fixation of seniority
was fixed as 08.05.2009.
5. The relevant portion of the order dated 12.12.2014 fixing
the seniority of the 87 promotee officers reads as follows:
“2.All the 87 will be placed in the seniority list
officers
below the junior most direct recruit (DR) IRSSE
officer of Engineering Service Examination (ESE) 2007
batch (earliest date of joining 15.12.2008),
and above
the senior most Direct Recruit IRSSE officers of
Engineering Service Examination of 2008 batch
(earliest joining 14.12.2009), whose interse seniority
has already been circulated.”
Resultantly the promotee officers were placed en bloc senior
to all the direct recruits.
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6. Shri R.K. Kushwaha, a direct recruit, filed O.A. No.
050/00260/2015 before the Patna Bench of the Central
Administrative Tribunal (for short ‘the CAT’) challenging the
seniority given to the promotee officers vide order dated
12.12.2014. The petition was disposed of vide order dated
01.04.2015 directing the Chairman of the Railway Board to
consider the representation of Shri R.K. Kushwaha dated
19.03.2015 within a period of two months. The Chairman
vide speaking order dated 09.06.2015 rejected the plea of Shri
R.K. Kushwaha to fix the seniority of the direct recruits from
the date of sending of the requisition. According to the
Chairman, the seniority of the Junior Scale, GroupA officers
of the eight organised railway services including the IRSSE
was to be fixed in terms of the provisions contained in the
IREM Vol1 which had the approval of the President under
Article 309 of the Constitution of India.
7. Shri R.K. Kushwaha thereafter filed a fresh O.A. being
O.A. No. 460 of 2015 claiming the following reliefs :
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“8.1 That your Lordships may graciously be pleased
to quash and set aside the impugned orders
dated 09/12.06.2015 passed by the Respondent
No.1 together with order dated 12.12.2014
passed by the respondent No. 4 as contained in
Annexure A/8 and A/4 respectively which are
contrary to the order passed by Hon’ble
Supreme Court of India in NR Parmar Case and
DOPT OM dated 04.03.2014 as referred to
above.
8.2 That your Lordships may further be pleased to
direct the respondents to recast the seniority list
afresh on the basis of principle laid down by
Hon’ble Supreme Court of India in NR Parmar
Case and DOPT OM dated 04.03.2014 as
referred to above without any further delay.
8.3 That the Respondents further be directed to
issue Corrigendum/amendment/Correction slip
in Indian Railway Establishment Manual
Volume1, henceforth in view of new
Guidelines/directives of DOPT OM dated
04.03.2014 as contained in Annexure A/11
which is based on the principle/law laid down
by the Hon’ble Supreme Court of India in NR
Parmar Case regarding fixation of interse
seniority between Direct Recruitees and
Promotees Officers.
8.4 That the Respondents further be directed grant
all consequential benefits in favour of the
applicant including promotion in JA Grade on
the basis of his seniority as per the principle laid
down by Hon’ble Supreme Court of India in NR
Parmar Case and DOPT OM dated 04.03.2014
as referred to above.
8.5 Any other relief or reliefs including the cost of
the proceeding may be allowed in favour of the
Applicant.”
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8. It would be pertinent to mention that none of the
promotee officers was made a party in this O.A.. Arguments
were heard and judgment was reserved in the matter.
Thereafter, Shri Prabhat Ranjan, who was a promotee and
also the General Secretary of East Central Railway Promotee
Officers Association, East Central Railway at Hajipur filed an
application for impleadment. The application was taken up
on 05.02.2016 and the same was allowed. The judgment
which had been reserved for pronouncement was dereserved
and on the same day, the CAT heard all the parties and again
reserved judgment. Liberty, however, was given to the parties
to file written arguments. The CAT vide its order dated
03.05.2016 partly allowed the O.A.. It rejected the prayer of
Shri R.K. Kushwaha that the direct recruits were entitled to
get seniority from 23.10.2007 the date on which the
requisition for filling up the direct vacancies was sent, on the
ground that the case of vs.
Union of India N.R. Parmar &
1
Ors. was not applicable in as much as the reference to the
1
(2012) 13 SCC 340
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year of requisition is always with reference to the vacancy
year. If the vacancies are notified well in advance and
requisition made earlier to arising of the vacancies, the direct
recruits cannot get or claim benefit of seniority from the date
of requisition.
9. The case of the direct recruit was that the principle laid
down in case (supra) had been recognized and
N.R. Parmar’s
implemented by the Department of Personnel and Training
(for short ‘the DoPT’) in its circular dated 04.03.2014. As per
him, since requisition was issued on 23.10.2007, he should
be granted seniority from the said date. The CAT held that
the case of the direct recruit that he should be given seniority
from 23.10.2007 is not acceptable.
10. In our view, this was, in fact, the only relief claimed by
the direct recruit in his O.A. and the matter should have
ended there. However, the CAT went on to examine the
speaking order passed by the Chairman, Railway Board dated
8
09.06.2015 and examined the same in the context of the
DoPT circular dated 04.03.2014 and the judgment of this
Court passed in the case (supra).
N.R. Parmar’s
11. The case of the Railways as well as the present
appellant, who was the intervener in the O.A. was that their
seniority had to be fixed in terms of the IREM Vol1, which
provided that the promotees were to be given a maximum of 5
years weightage in terms of Rules 327 to 341. It is not
necessary to extract all the rules. It would suffice to note that
Rule 328 provided that the seniority of officers appointed to
various GroupA services in the Indian Railways shall be
determined on the basis of ‘date of increment in the time scale
(DITS)’ which is to be determined in accordance with certain
laid down principles. In the case of direct appointment,
pursuant to an examination conducted by the UPSC, the
DITS is to be reckoned from the date of commencement of
earning increments in the regular scale. Rule 334 provides
that in case of GroupB officers permanently promoted to
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GroupA services, the DITS of the above officers would be
determined by giving weightage. The said rule reads as
follows:
“334 In the case of Group ‘B’ officers permanently
promoted to Junior Scale of Group ‘A’ services:
(1) xxx xxx xxx
(2) If two or more than two officers are promoted on
the same date, the following method shall be
followed to determine their interse seniority
within the Railway:
(i) The relative seniority of officers of each Railway
shall be in the order of their position in the
panel for that Railway.
(ii) The DITS of the above officers, shall be
determined by giving weightage based on:
(a) the year of service connoted by the initial
pay on permanent promotion to Group ‘A’
service; or
(b) half the total number of years of
continuous service in Group ‘B’, both officiating
and permanent;
whichever is more, subject to a maximum of 5
years; provided that the weightage so assigned
does not exceed the total nonfortuitous service
rendered by the officer in Group ‘B’.”
12. Before the CAT, it was urged by the Railways and the
intervener that N.R. Parmar’s case (supra) was not
applicable because weightage of 5 years, as additional years of
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seniority was to be given to the promotees and in this behalf
reference was also made to the Indian Administrative Service
(IAS) (Regulations of Seniority) Rules, 1987 wherein also State
Civil Service Officers who are inducted into the IAS are given
some weightage while fixing their ‘year of allotment’. The CAT
held that in the scheme of IAS any vagaries or arbitrariness
due to the date when the recruitment process is completed is
removed whereas in the railways reference to seniority and
inter se seniority on the basis of DITS is subject to
unintended delays in the completion of one recruitment
process or the other and this may even be due to human
manipulation. The relevant portion of the order dated
03.05.2016 of the CAT reads as follows:
“19…….Therefore, the basic philosophy of NR Parmar
of removing arbitrariness because of date on which an
action is completed with respect to the two streams
holds good in this case also. Policy making is within
the domain of the Executive, but this has to be
reasonable and rational. Since there is obvious scope
for arbitrariness in the Railways policy, we have to
intervene in judicial review. The Railways must align
their policy in consonance with this fundamental
philosophy of N.R. Parmar.
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20. Another serious anomaly we find from the
respondents action is that while the ratio described for
the DR and the promotees is 50:50, they have over the
years inducted promotees about three times the
number of direct recruits. In the representation before
the Chairman, Railway Board, the applicant has
shown that from the year 2001 to 2007 against 95
direct recruits, 376 promotees have been inducted.
The chairman, railway Board has justified this on the
ground that as per the government instructions, direct
recruitment was curtailed to onethird for those years.
Such government instructions cannot alter the basic
principle of laid down ratio between the DR and
promotes. If downsizing was the objective, this has to
be done keeping the ratio between DR and promotees
intact. ……..
21. xxx xxx xxx
22. Thus, the provisions of the IREM determining
inter se seniority based on DITS are clearly flawed and
arbitrary. Accordingly, we quash and set aside the
impugned orders dated 9/12.6.2015 (Annexure A/8)
and date 12.12.2014 (Annexure A/4) being contrary to
the underlying principle emerging from the Hon’ble
Apex Court judgment in N.R. Parmar case as well as
DOPT guidelines in this regard, which mandate that
wherever it is considered necessary to follow different
principles for inter se seniority, consultation should be
made with the DOPT. The respondent are directed to
recast the seniority afresh and take necessary action
to make corrections in the IREM in the light of the
aforesaid observations within a period of four months
from the date of receipt/production of a copy of this
order.”
13. Shri Prabhat Ranjan Singh challenged the order of the
CAT before the Patna High Court by filing Writ Petition No.
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10669 of 2016 along with one Shri Girish Kumar. This
petition was dismissed vide order dated 12.05.2017 and one
of the main grounds for dismissal of the petition was that the
circular of the DoPT dated 04.03.2014 was binding on the
Railways. The Patna High Court went on to hold that the
IREM is not statutory in nature and is only a codified set of
guidelines. It further went on to hold that the power of the
Railways to frame rules under Rule 201 of the Indian Railway
Establishment Code (for short ‘IREC’), which is statutory in
nature, is only confined to GroupC and GroupD posts.
Therefore, the Railways are bound by the OM issued by the
DoPT. This judgment has been challenged by Shri Prabhat
Ranjan Singh.
14. It would also be pertinent to mention that pursuant to
the direction issued by the CAT on 03.05.2016, the Railways
amended Rules 327 to 341 of the IREM Vol1 by removing
reference to ‘DITS’ and introduced the concept of ‘year of
allotment’. According to the Railways, as per the amended
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rules inter se seniority between direct recruits and promotees
shall be determined and fixed on the basis of ‘year of
allotment’ and not on the basis of ‘DITS’. The amendment is
applicable in all cases of fixation of inter se seniority of
promotee officers from the panel of 20122013 onwards and
for Direct Recruit 2006 examination onwards. Thereafter, the
seniority has been refixed and only the promotee officers,
who have been allotted 2008 as the ‘year of allotment’ have
been given seniority over the direct recruits and those
promotee officers who have been allotted 2009 as the year of
allotment have been ranked en bloc junior to the direct
recruits of the year 2009. Thus, the anomaly pointed out by
the CAT has been removed and the system which is followed
in the IAS is being applied even in the Railways.
15. This development took place on 05.03.2018, during the
pendency of this petition. According to the direct recruits, the
action of the Railways in placing some of the promotee officers
above the direct recruits was violative of the order of the CAT
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and they, accordingly filed contempt petition no.
050/00070/17 before the CAT which was dismissed vide
order dated 02.04.2018. The CAT held that in its order the
reference to case (supra) was regarding
N.R. Parmar’s
removing the arbitrariness due to ‘DITS’ and bringing it in line
with the concept of ‘vacancy year/allotment year’, which does
away with the problem and the revised policy after
amendment fixes the ‘allotment/vacancy year’ for fixing the
seniority and not ‘DITS’. It also held that since this Court is
seized of the matter, the parties can place their grievance
regarding the legality of the revised policy before us. The
contempt petition was dismissed.
16. Aggrieved by the order of the CAT, the direct recruit filed
writ petition being CWJC No. 6489 of 2018 (R.K. Kushwaha v.
Union of India & Ors.) before the Patna High Court for
quashing/setting aside the order dated 02.04.2018 passed in
the contempt petition. Vide order dated 03.05.2018, we have
transferred the aforesaid writ petition to this Court.
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17. We have heard learned counsel for the parties. Before
us Shri P.S. Patwalia, learned senior counsel for the appellant
(Prabhat Ranjan Singh) submitted that the petition has been
rendered infructuous in view of the amendment to Rules 327
to 341 of the IREM Vol1. He, however, submitted that the
observations made by the CAT and the High Court that the
DoPT circulars are binding on the Railways and that the
observations of the Patna High Court that IREM has no
statutory force are wrong and are liable to be set aside. On
the other hand, Shri Mukul Rohatgi and Shri Guru Krishna
Kumar, learned senior counsel appearing for the direct
recruits submitted that the IREM, which provided for giving
weightage in seniority to the promotees, was set aside by the
CAT. Therefore, by still continuing to give weightage to the
promotees the contemnors have committed contempt of order
of the CAT. It has also strenuously been urged before us that
the rules which provide for giving weightage to the promotee
officers are totally illegal and arbitrary. Shri Maninder Singh,
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learned Additional Solicitor General submitted that the
Railways are empowered to frame their own rules. According
to him, even the IREMs are issued with the concurrence of
the President of India in terms of Article 309 of the
Constitution of India and framed under the Constitution of
India.
18. In our view, the following issues arise for decision:
I Whether the Railways is bound by the rules framed by
the DoPT or it can frame its own rules and whether the IREM
has statutory force?
II Whether Shri R.K. Kushwaha, the direct recruit had laid
challenge to the rules, which provide for giving weightage in
the seniority to the promotee officers?
III Whether the findings of the CAT in respect of
N.R.
Parmar’s case (supra) was limited to removing the
arbitrariness only in respect of ‘DITS’?
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IV Whether by issuing the memorandum dated 05.03.2018
amendment/modifying rules 327341 the Railways have
violated the order issued by the CAT?
I Whether the Railways is bound by the rules framed
by the DoPT or it can frame its own rules and whether the
IREM has statutory force?
19. The CAT, in its order, held that the Railways are bound
by the DoPT circulars. The High Court of Patna has gone
further and has come to the conclusion that the Railways have
no jurisdiction to frame rules for Group A & B services. The
High Court has further held that the IREM rules are not
statutory in nature and are only guidelines having no binding
force. On the other hand learned senior counsel for the UOI
has drawn our attention to the Government of India (Allocation
of Business) Rules 1961 framed under Clause 3 of Article 77 of
the Constitution of India. Under these Rules business has
been allocated to different departments. As far as the DoPT is
concerned the relevant portion reads as under:
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“I. RECRUITMENT, PROMOTION AND MORALE OF
SERVICES
1. ........
2. General questions relating to recruitment,
promotion and seniority pertaining to Central Services
and services under the control
except Railways Services
of the Department of Atomic Energy, the erstwhile
Department of Electronics, the Department of Space and
the Scientific and Technical Services under the
Department of Defence Research and Development.
3. ...........
4. General policy matters regarding classification of
posts and grant of gazetted status in relation to Services
other than Railway Services.
5. Recruitment of ministerial staff for the
Government of India Secretariat and its attached offices
except that for the Department of Railways , the
Department of Atomic Energy, the erstwhile Department
of Electronics, and the Department of Space.
6. Appointment of nonIndians to Civil posts under
the Government of India except posts under the
Department of Railways, the Department of Atomic
Energy, the erstwhile Department of Electronics and the
Department of Space.
xxx xxx xxx
IV. SERVICE CONDITIONS
21. General questions (other than those which have
a financial bearing including Conduct Rules relating to All
India and Union Public Services except in regard to
services under the control of the Department of
the Department of Atomic Energy, the
Railways,
erstwhile Department of Electronics and the Department
of Space).
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22. Conditions of service of Central Government
employees (excluding those under the control of the
Department of Railways, the Department of Atomic
Energy, the erstwhile Department of Electronics, the
Department of Space and the Scientific and Technical
personnel under the Department of Defence Research and
Development, other than those having a financial bearing
and in so far as they raise points of general service
interest).
23(a) – (d) …............
24. ................
25. ................
26. ................
27. General policy regarding retrenchment and
revision of temporary Government servants except those
”
under the Department of Railways.
xxx xxx xxx
20. A perusal of the Allocation of Business Rules, 1961,
especially the highlighted portion leaves no manner of doubt
that the Railways is specifically excluded from the ambit of
the scope of business allocated to the DoPT, whether it be
for classification of posts, recruitment of ministerial staff,
appointment of nonindians to civil posts, fixing of service
conditions, including conduct rules, general policy regarding
retrenchment and revision of temporary service of the
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Railways etc., and as such the DoPT cannot issue binding
circulars upon the Railways. We may make it clear that if
the DoPT issues a circular and the Railways specifically
accepts the circular or makes it applicable, then such a
circular may apply but if the circular is not made
specifically applicable then it has no force so far as the
Railways and its employees are concerned.
21. In the same Allocation of Business Rules, 1961 while
allocating business to the Ministry of Railways power has
been given to it to deal with all matters including those
relating to Revenue and Expenditure. Therefore, the
Ministry of Railways has the power to lay down conditions of
service for its employees.
22. The Ministry of Railways has a set of codified rules
known as the Indian Railways Establishment Code (IREC).
It is not disputed before us that as far as the IREC is
concerned the same is notified under the proviso to Article
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309 of the Constitution and is statutory in nature.
However, it has been urged on behalf of the direct recruits
that IREM does not have any statutory force. It would also
be pertinent to mention that the DoPT itself has issued a
office memorandum dated 16.02.2018 stating that the
matters relating to recruitment, promotion & seniority in
respect of Ministry of Railways do not fall within the
jurisdiction of the DoPT. We need not refer to all the
documents referred to because it is apparent from a bare
reading of the Allocation of Business Rules, 1961, that the
service conditions of the employees of the Railways are
governed by the rules framed by the Railways which will not
only include the IREC but also the IREM.
23. Even with regard to the IREM it has been urged by the
learned ASG that these rules and the various
modifications/amendments issued from time to time to the
IREM are also issued under the proviso to Article 309 of the
Constitution and as such they have the statutory force.
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24. We have gone through the various communications
with regard to the IREM and find that all of them make a
mention that they have been issued in exercise of powers
conferred by proviso to Article 309 of the Constitution. We
may specifically refer to only one document, i.e.,
amendment to the IREM Rules 327 to 341 made in
pursuance to the judgment delivered by the CAT on
03.05.2016. The relevant portion of the communication
reads as follows:
“.........
In exercise of the powers conferred by the
proviso to Article 309 of the Constitution the President
have further decided that principles for interseseniority
of Direct Recruit Group ‘A’ officers and promotee Group ‘B’
officers inducted into Group ‘A’ Junior Scale effective from
the panel year 201213, stands modified/amended as per
.
AnnexureI
.........”
This leaves no manner of doubt that the rules under
IREM Vol.1 are also statutory rules.
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25. In view of the above, there can be no manner of doubt
that the Railways is not bound by the memorandum issued
by the DoPT and are empowered to frame its own rules to
lay down the service conditions of its employees. We also
hold that the IREM has statutory force and has been issued
in exercise of powers vested under the proviso to Article 309
of the Constitution.
II Whether Shri R.K. Kushwaha, the direct recruit had
laid challenge to the rules, which provide for giving
weightage in the seniority to the promotee officers?
26. As far as the second question is concerned we may
note that we have already quoted the prayer clause of OA
No.460 of 2016 filed before the CAT. In the said OA there is
not even a whisper of a challenge to the policy of giving
weightage to the promotees. In fact that issue was not
raised before the CAT. The case set up by the direct recruits
before the CAT was that since the requisition for
recruitment had been issued on 23.10.2007, they should be
24
granted seniority from that date in view of the judgment
rendered by this Court in N.R. Parmar’s case (supra) read
with DoPT OM dated 04.03.2014. It has been urged by Shri
Guru Krishna Kumar, learned senior counsel appearing for
the direct recruit that prayer 8.3 in which it is prayed that
corrigendum/amendment/corrections slip be issued in
IREM VolumeI is itself a prayer to quash the said IREM.
We are unable to accept this contention. If the direct recruit
wanted to lay challenge to the policy of giving weightage to
promotees then the basis for the challenge had to be made
in the original application and the rule granting such
weightage had to be specifically challenged in the prayer
clause. The promotees who were liable to be affected should
have been arrayed as respondents. Such a challenge
cannot be entertained from the back door by merely alleging
that corrigendum/ amendments/corrections to the IREM be
issued. Neither the corrigendum, nor the amendment or the
corrections could result in the quashing of rule granting
weightage. Furthermore, if prayer 8.3 is read as a whole,
25
what is prayed is that the correction be made with a view to
bring the IREM in line with DoPT OM dated 04.03.2014,
which is based on the principle of law framed in
N.R.
Parmar’s case (supra).
27. We may also note that before us the original
application filed by Shri R.K. Kushwaha has been produced
in which the main case set up was that in view of the law
laid down in N.R. Parmar’s case (supra) the date of sending
requisition for filling up the vacancies is the date from
which the direct recruits should be granted their seniority.
The following averments made by Shri Kushwaha in para
4.3. of his OA are relevant:
“.........
4.3 That in this regard it is submitted that while the
applicant was working in GroupA service of IRSSE,
several GroupB officers i.e. 87 in number has been
promoted/inducted in GroupA service of IRSSE vide
order dated 12.08.2014 for the panel year 201213 and
201314 w.e.f 08.05.2014, hence such promote officers
are entitled to get the benefit of seniority w.e.f 08.05.2009
after giving weightage of 05 years whereas the applicant
being Direct Recruitee is entitled to get the benefit of
seniority w.e.f 23.10.2007 i.e. from the date of requisition
for filling up the vacancies of GroupA service in view of
the decision given by the Hon’ble Supreme Court of India
26
in the case of Union of India Vs NR Parmar in which the
issue of seniority in between Direct Recruitee and
Promotees have been settled on 27.11.2012 against which
the Union of India has also filed Civil Review and the same
has been dismissed on 07.08.2013. .........”
28. This leaves no manner of doubt that the only case set
up by the direct recruit was that he was entitled to seniority
from 23.10.2007, the date on which requisition for filling up
the direct recruit posts was sent and the promotees after
being given due weightage of 05 years were entitled to
seniority w.e.f. 08.05.2009. Therefore, he cannot now urge
that he had laid challenge to the rule providing for grant of
weightage to the promotees.
III Whether the findings of the CAT in respect of
N.R.
Parmar’s case (supra) was limited to removing the
arbitrariness only in respect of ‘DITS’?
29. Before dealing with this issue we may note that we are
not at all in agreement with the interpretation sought to be
given by the direct recruits to the decision rendered in N.R.
27
Parmar’s case (supra), that they are entitled to seniority
from the date of requisition. On a perusal of the judgment
in case (supra), we find that in that case this
N.R. Parmar’s
Court was dealing with those situations where the process
of either direct recruitment or promotions takes an unduly
long time. As per the then existing rules, the persons so
appointed/promoted would get seniority from the date when
they joined. This Court found that this could lead to
arbitrariness on account of the fortuitous date of
appointment. In certain cases, the process of recruitment
by a particular mode would start much earlier but for
extraneous reasons, selection by one mode would be very
quick and slow by the other mode. Therefore, to eliminate
this anomaly and reduce arbitrariness, this Court laid down
that the date of requisition for filling up the posts by a
particular recruitment process could be taken as the year to
which seniority could be given to persons recruited under
that process. However, the Court also clearly laid down that
this would apply only if the recruitment year is the same as
28
the year of vacancy. It is obvious that neither the
promotees nor the direct recruits can be given seniority from
a year when such vacancies do not even exist. The Court
also laid down that the administrative authority should
ensure that recruitment process should be initiated during
the vacancy year itself.
30. In this behalf, we may make reference to the following
observations of this Court in the case of N.R. Parmar
( ) :
supra
“ 34.1. If the process of recruitment has been initiated
during the recruitment year (in which the vacancies
have arisen) itself, even if the examination for the said
recruitment is held in a subsequent year, and the
result is declared in a year later (than the one in which
the examination was held), and the selected
candidates joined in a further later year (than the one
in which the result was declared), the selected
candidates will be entitled to be assigned seniority,
with reference to the recruitment year (in which the
requisition of vacancies was made). The logic and
reasoning for the aforesaid conclusion (expressed in
the ON dated 222000) is, if the process of direct
recruitment is initiated in the recruitment year itself,
the selected candidate(s) cannot be blamed for the
administrative delay, in completing the process of
selection.
The words “initiation of action for recruitment”,
34.2.
and the words “initiation of recruitment process”, were
29
explained to mean, the date of sending the requisition
to the recruiting authority.”
31. In the present case though the requisition was sent in
the year 2007, the vacancies related to the year 2009 and,
therefore, the CAT as well as the High Court rightly held
that the direct recruits were not entitled to promotion from
the year 2007. The CAT only ordered that the arbitrariness
which may arise due to fixation of ‘DITS’ be removed by
fixing the ‘year of allotment’ as the relevant criteria.
IV Whether by issuing the memorandum dated
05.03.2018 amendment/modifying rules 327341 the
Railways have violated the order issued by the CAT?
32. We have quoted the order of the CAT hereinabove and
what the CAT ordered was that the IREM determining the
inter se seniority based on DITS was clearly flawed and
arbitrary. The order dated 09.06.2015 and 12.12.2014 were
quashed and set aside being violative of the judgment of this
Court in N.R. Parmar’s case (supra) and the DoPT
30
guidelines. As held above there was no challenge to Rule
334 which provides for giving weightage to the promotees.
This Rule was not challenged directly or indirectly and the
CAT has not at all dealt with this Rule. We may add that an
identical rule has been held to be valid by this Court in
A.K.
2
Nigam vs. Sunil Misra . This judgment has been noted
by the CAT and yet the CAT did not discuss this judgment.
It is obvious that the CAT did not go into the validity of Rule
334. All that the CAT held was that instead of the ‘DITS’
being the determining factor to determine the year of
promotion, the seniority would be determined with reference
to the ‘year of allotment’ following the principle of IAS Rules.
The CAT rightly dismissed the contempt petition holding
that the entire discussion with reference to
N.R. Parmar’s
case (supra) was regarding removing the arbitrariness due
to ‘DITS’ and bringing it in line with the concept of vacancy
year/allotment year which does away with the problem.
Thus the CAT itself has clearly held that it had not at all
2
(1994) Supp.2 SCC 245
31
dealt with the issue whether promotees were not entitled of
being granted weightage of 5 years service for determining
the seniority. This question never arose before the Tribunal
and as such the action of the Railways in amending the
Rules to bring them in line with the judgment of the CAT by
removing ‘DITS’ as the determining factor for fixing seniority
and introducing the ‘year of allotment’ as the criteria for
determining the seniority can in no manner be said to be
violative or against the order of the CAT. In fact, the said
order is totally in line with the order of the CAT.
33. We may add that lengthy arguments have been
addressed on behalf of the direct recruits contending that
the rule which provides that weightage be given to the
promotees is arbitrary and in this regard reference has been
made to the judgment of this Court in P. Sudhakar Rao &
3
Ors. vs. U. Govinda Rao & Ors and it is urged that in
view of this judgment the decision of this Court in
A.K.
3
(2013) 8 SCC 693
32
Nigam’s case (supra) is no longer good law. On the other
hand both the learned ASG and the senior counsel for
appellants have urged that case (supra) still
A.K. Nigam’s
holds the field as P. Sudhakar Rao’s case (supra), was a
case decided in a fact scenario where there was no provision
for granting such weightage. It was also urged that the
practice of giving weightage to the promotees in the
Railways has been in vogue since 1955 and the railways has
justified its action of giving weightage to the promotees by
urging that the promotees are doing the same work in the
lower post as is being done by them after promotion.
Therefore, there is no change in the nature of their work
after promotion and the benefit of weightage is given for the
experience which they have got for doing such work. It has
also been urged that most of the promotees are already
getting higher emoluments than are payable to the direct
recruits on their induction and this is also a factor taken
into consideration for granting this weightage. We are not
going into these questions. We have clearly held that there
33
was no challenge to Rule 334 in the original application and
such a challenge cannot be countenanced or entertained
either in contempt proceedings or on behalf of the
respondents while defending the appeal in this Court. We
make it clear that we have not expressed any opinion on the
rival contentions of the parties on this issue.
34. The situation as on date is that rules have been
amended. These rules have to be implemented. Neither the
promotees nor the direct recruits have challenged these
rules. We are therefore not going into other issues raised by
the parties.
35. We dispose of the appeal by holding that the CAT had
only directed that instead of ‘DITS’, the ‘year of allotment’
should be the determining factor/criteria for determining
the inter se seniority. We further hold that there was
neither any challenge to Rule 334 of the IREM Vol. 1 in the
original application nor did the CAT go into this issue . We,
34
accordingly uphold the order dated 02.04.2018 passed by
the CAT, Patna Bench dismissing the contempt petition filed
by the direct recruit Mr. R.K. Kushwaha. Consequently, the
Transferred Case No. 52/2018 i.e. Writ Petition being CWJC
No. 6489/2018 before the Patna High Court is dismissed.
36. Applications for intervention/impleadment are
rejected.
37. The contempt petitions and all pending applications
shall also stand disposed of.
SLP (C) NO(S). 4144 OF 2018
38. This petition is directed against the interim order dated
29.01.2018 passed by the High Court of Madhya Pradesh,
Principal Bench at Jabalpur in Writ Petition No. 299 of
2018. The petition itself has been finally disposed of by the
35
High Court vide order dated 20.03.2018 and, therefore, this
petition is rendered infructuous and disposed of as such.
………………………..J.
(Madan B. Lokur)
………………………..J.
(S. Abdul Nazeer)
…………………………J.
(Deepak Gupta)
New Delhi
September 07, 2018