Full Judgment Text
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CASE NO.:
Appeal (civil) 92 of 1997
PETITIONER:
Indian Rly. Class II Officers Fedn. & Anr.
RESPONDENT:
Anil Kumar Sanghi & Ors.
DATE OF JUDGMENT: 23/09/2002
BENCH:
S. Rajendra Babu & P. Venkatarama Reddi.
JUDGMENT:
J U D G M E N T
P.Venkatarama Reddi, J.
Aggrieved by the order of the Central Administrative Tribunal
(C.A.T.) Principal Bench, passed on 4.8.1995 in O.A. No. 574 of 1993, the
present appeal has been filed by the second respondent in O.A., which is an
Association of Class II Railway Officers and one of the respondents in the
O.A. The O.A. was filed in the C.A.T. by six Class I Officers working as
Assistant Signal and Telecommunication Engineers (ASTEs), who are
respondents 1 to 6 herein. The appellant-Association is espousing the cause
of Group ’B’ Officers of Indian Railways Services of Signals Engineers
(IRSSE), who were, by an order dated 15.9.1992 issued by the Ministry of
Railways, appointed substantively to the Junior Scale of IRSSE with effect
from 23.7.1992. The Group ’B’ (Class II) posts constitute the base level of
gazetted cadre on the Indian Railways and these posts are filled up by
promotion, from amongst Group ’C’ personnel through the process of
selection. Immediately above Group ’B’ are the Junior Scale Group ’A’
posts. It is a feeding cadre for the Group ’A’ posts at higher level. The
appointments for Group ’A’ Junior Scale posts are made partly by direct
recruitment and partly by promotion from amongst eligible Group ’B’
Officers as per the quotas prescribed in the recruitment Rules. The
incumbents of posts in Group ’A’ Junior Scale and in Group ’B’ are
designated as Assistant Officers and it appears that these posts are operated
inter-changeably. As per the recruitment rules, Group ’B’ Officers who
have rendered three years of non-fortuitous service in the grade are eligible
for consideration for promotion to Group ’A’/Junior Scale. It is common
ground that the 127 Officers covered by the appointment order dated
15.7.1992 were working for nearly 8 to 10 years against regular Group ’A’
vacancies and most of them were promoted to Senior Scale on ad hoc basis
and were working as such for several years. Apparently, the eligible Group
’B’ Officers could not be promoted to Group ’A’ Junior Scale for
administrative reasons viz., delay in recruitment process of Group ’A’
Officers and constitution of DPC. There was virtually stagnation of a
number of Group ’B’ Officers who as already stated were working on ad hoc
basis in Senior Scale vacancies of Group ’A’. With a view to discontinue
the ad hoc arrangements and to give better promotional opportunities to
Group ’B’ Officers who were stagnating without regular promotion, the
Ministry of Railways proposed additional posts in Junior Time Scale not
only in Signal and Telecommunication Department, with which we are
concerned, but also in various other departments of Railways. As against
654 additional posts proposed by the Railways, the UPSC agreed for
creation of 463 posts. Out of these, the allocation for the Signal and
Telecommunication Department was 76. These additional posts (76) were to
be filled by promotion of Group ’B’ Officers in relaxation of the normal
quota and such variation of quota was permissible, according to the
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Railways, under Rule 4(b) of the relevant recruitment Rules. In the reply
filed by the Railways before the Tribunal, it is stated that the appointment of
127 Group ’B’ Officers to Junior Time Scale was made against 153
vacancies in the promotion quota as per the particulars given below:
Recruitment year Direct Recruitment Quota Promotion quota
1989 35 (60%) 23(40%)+2 (Carry forward vacancies)
1990 42(29%) 104(71%)(including additional 76 posts
decided by the Govt. in consultation with
UPSC, for reasons brought out in para-8
to 10 of this counter affidavit.
1991 37(60%) 24(40%)
________
Total 153
________
It is further stated that the DPC recommended the appointment of 146
Officers out of whom 127 were appointed by the order impugned in the O.A.
The Group ’A’ Junior Scale Officers who were apprehensive of
dimunition of their promotional prospects by virtue of weightage in service
which the Group ’B’ Officers would be entitled to, filed the O.A. before the
CAT questioning the appointment of 127 Officers mainly on the ground that
it is in excess of their quota and that the relaxation was not permissible.
The case of the Group ’A’/Class I Officers (Respondents 1 to 6 in this
appeal) was substantially accepted by the Tribunal and the following
directions were given by the Tribunal in the concluding part of the order :-
i) It is not competent for the Railways to appoint as
many persons by promotions as they like, in
disregard of the provisions of Rule 4 which
stipulates the quota for promotion and direct
recruitment. Repeated violent departures from the
quota rule will lead to collapse of the quota rule
(Direct Recruits’ case supra) and therefore of the
linked seniority rule (B.S. Gupta’s case supra).
ii) The principle of weightage in seniority will be
limited to promotees appointed against their quota.
iii) As the rules stand at present, the maximum quota
for promotees is only 40%. It cannot be raised
further by relaxation, as Government has no such
power.
iv) Vacancies not filled in a year whether in the
direct recruitment quota or promotee quota can
be carried over, but all such vacancies have to be
filled in the subsequent years by both methods on
the basis of the quota mentioned in Rule 4.
v) Out of the 127 appointments made by the
Annexure A-1 order dated 15.9.1993, promotion
should be deemed to have been made to the extent
of 40% of the vacancies in 1992 which have been
computed tentatively at 89 (para 34 supra) subject
to departmental verification. They alone are
entitled to weightage and seniority on the seniority
principle (vii) and (ix).
vi) The remaining 38 persons, subject to departmental
verification, have been promoted in excess of the
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promotion quota and they are not entitled to
weightage in seniority on the basis of the
Annexure A-1 order. Their promotion shall be
treated as ad hoc only. They can be treated as
regularly promoted against the quota for promotees
in 1993 and thereafter. In that case, such
promotees can be given weightage from the dates
their promotions are regularized.
vii) The Annexure A-1 order shall stand modified to
the extent indicated above.
viii) The O.A. is disposed of as above.
The Tribunal was of the view, agreeing with the Jabalpur Bench on
the issue, that the provision authorizing variation of percentage in terms of
concluding part of clause (b) of Rule 4 did not authorize the Government to
exceed the ceiling of 40 per cent of vacancies in relation to departmental
promotees. The Tribunal relied on the expression "not more than" occurring
in clause (b) of Rule 4. The Tribunal further held that power of relaxation in
favour of departmental promotees cannot be spelt out in Rule 4. At the same
time, the Tribunal held that Note 1 to Rule 4 did not preclude carrying
forward of the unfilled vacancies in the promotion quota. The Tribunal
pointed out that if vacancies in the quota for promotees or direct recruits are
not filled up fully, those vacancies can be filled up in the succeeding year.
However, the carried over vacancies will be filled up in the same ratio as is
indicated in clauses (a) and (b) of Rule 4. The Tribunal then examined the
number of vacancies available against the promotee quota pertaining to
years 1989, 1990 and 1991. The Tribunal was of the view that only 40 per
cent of the 76 additional posts created i.e. 30 posts will fall to the share of
the promotees. The Tribunal worked out that promotees could get only 89
against their quota of 40 per cent out of the total vacancies available upto
1992. The Tribunal, therefore, concluded that 38 Group ’B’ officers should
be deemed to have been promoted in excess of quota and those 38 persons
are not entitled to weightage of past service while determining their
seniority. Their promotion should be treated as ad hoc only and they could
be treated as regularly promoted against the quota for promotees available in
1993 and thereafter. In other words, 30 respondents promoted in excess of
quota should be adjusted against future vacancies. The contention that the
seniority rule had collapsed by reason of break down of quota rule was
negatived on the ground that departure from quota rule was only marginal
and it cannot be said that the quota rule had substantially failed. The
Tribunal finally directed that the impugned order of the Railway Ministry
shall stand modified in the light of directions given by it.
The relevant rule dealing with recruitment is as follows :
"Rule 4 Method of Recruitment - Recruitment in
the service shall be by the following methods :
(a) By competitive examination held in
accordance with part II of the rules.
(b) By promotion of Class II officers of the
Signal Engineering Department. Not more
than 40 per cent of the vacancies shall be
filled by departmental promotion. This
percentage is likely to be varied from time to
time, if found necessary.
NOTE : If the quota of 40 per cent reserved for Class II
officers for promotion to Class I is not fully utilized, the
remaining vacancies shall be filled by direct recruitment
under clause (a),
(c) By occasional admission of other qualified
persons appointed by the Government on the
recommendation of the Commission."
We are concerned here with Clause (b) and the Note thereto. As
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noticed earlier, 76 additional posts were created in S&T department in order
to facilitate the absorption of Group ’B’ (Class II Officers) in Group ’A’
Junior Time Scale. It also transpires from the pleadings that the induction of
Group ’B’ officers to the extent of vacancies falling within their quota could
not take place on account of administrative delays in constituting the DPC
and moreover on account of linking up the promotional quantum to the
number of direct recruits inducted during the year. The extent of intake of
direct recruits fell short of the requisite available number of vacancies as a
result of which there was corresponding reduction in the number of officers
appointed to Group ’A’ Jr. scale against promotion quota. That there was
ample justification for remedying the injustice done to the Group ’B’
officers who were manning the posts in Group ’A’ (Jr. scale) on ad hoc posts
since considerable time and to put an end to the long time ad hoc
arrangements is amply clear from the pleadings and the correspondence
forming part of the record. Though the Tribunal conceded the power to
carry forward the vacancies, the Tribunal was of the view that having regard
to the rule position, it was not possible to allocate all the newly created posts
to Group ’B’ officers awaiting promotion. The learned members of the
Tribunal held that the carry forward vacancies have to be filled up in
subsequent years on the basis of the quota i.e. 60 : 40 per cent. In other
words, the Tribunal was of the view that the direct recruits too have their
share in the 76 newly created posts and they cannot be exclusively filled by
promotees.
Let us see how far Rule 4 (b) and the Note thereto stands in the way
of allocation of additional posts exclusively to Group ’B’/Class II officers in
order to compensate the deficiency in the intake of promotee officers into
Group ’A’/Class I during the preceding years. The answer depends on the
proper construction of the Rule.
No doubt the second sentence in clause (b) places a ceiling of 40
per cent on the vacancies to be filed up by departmental promotion. The
Note reinforces this mandate by providing that in case of shortfall in the
promotional quota of 40 per cent, those vacancies remaining should be
allocated to direct recruits. That means, in a given year, the direct recruits
can go beyond 60 per cent, if sufficient number of promotee officers are not
available. It is a different thing that it had never happened and the direct
recruitment could not be made in some years even to the full extent of 60
per cent. But, that is what the Rule provides. However, the rule in so far as
it operates against the promotee officers has been diluted to a certain extent
by reserving the power to vary the percentage allocated to promotees. The
variation, in our view, could be both downward and upward, depending
upon the exigencies of service and the march of events. Going by the plain
language, the variation could be either way. If the variation was
intended only to curtail but not to enhance the promotion quota
of 40 per cent, suitable language could have been employed. That apart, the
word ’not more than’ itself would have provided some flexibility to the
appointing authority to reduce the promotee quota in a given year for good
and relevant reasons. Hence, it is not appropriate and proper to limit the
ambit of variation to the reduction of percentage. If the last sentence in
Clause (b) is to be read subject to the preceding sentence with the appended
note, the very purpose for which such power is reserved to the Government
will be lost. A reading of the Rule so as to confine the variation of
percentage to impinge on the normal promotee quota but not vice-versa is
clearly unwarranted either on the plain language of the provision or its
intendment. There is nothing which precludes the Government of India to
take a policy decision that the percentage should be so varied so as to give
the benefit to the stagnating promotee officers. When once such policy
decision is taken, the normal rule that 40 per cent is the maximum for
departmental promotees would stand protanto modified for the time being.
Of course, such variation, either upward or downward should be based on
rational basis and relevant considerations. When once such test is satisfied,
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there is no difficulty in giving effect to the variation of percentage so as to
operate in favour of promotee officers. The Tribunal harped on the fact that
there is no power of relaxation under the rules such as the one provided for
by the Indian Railway Traffic Service Rules. The provision for variation of
percentage from time to time in case of necessity is for all practical purposes
equivalent to the power of relaxation. There is no particular reason why
the Class II promotee office of S&T department should be treated differently
from the same category in Traffic department. The application of such
different standards could very well be avoided by giving a wider meaning to
the expression "varied from time to time". Whether it be variation or
relaxation, it is meant to provide a leeway for adjustment in exigencies of
service which is very much necessary in administrative interest and to cope
up with unforeseen contingencies.
Therefore, we are of the view that no illegality has been committed by
the Union of India in appointing 127 Group ’B’ officers of S&T department
of Railways to the junior scale of Group ’A’ by the impugned order dated
15.9.1992. The Central Administrative Tribunal has committed an error of
law in interpreting the relevant rule and holding that 38 Group ’B’ (Class II
officers) promoted in excess of normal quota of 40 per cent have to be
promoted on regular basis against future vacancies. The impugned order of
the Tribunal is, therefore, set aside and the appeal is allowed. We make no
order as to costs.