Full Judgment Text
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PETITIONER:
H.S.GREWAL
Vs.
RESPONDENT:
UNION OF INDIA & OTHERS
DATE OF JUDGMENT: 27/08/1997
BENCH:
SUJATA V. MANOHAR, M. JAGANNADHA RAO
ACT:
HEADNOTE:
JUDGMENT:
WITH
T.C.(C) No.3/96, SLP(C) No. 7076/95, TC(C) Nos. 9-13/96,
TC(C) No. 41/96 & W.P.(C) No.98/97
J U D G M E N T
M.JAGANNADHA RAO, J.
Leave granted in S.l.P. (C) No. 7076 of 1995.
These cases raise common questions relating to
seniority of officers in the rank of Commandant/Security
Officer/Asstt. Inspector General/Dy.Director/Divisional
Security Officer. The Rules which are relevant are the
Railway Protection Force(Superior Officers) Recruitment
Rules, 1974(hereinafter called the ’1974 rules’) and the
Railway Protection Force(Group A * B Posts) Recruitment
Rules, 1981 (hereinafter called the ’1981 Rules’). Eight
writ petitions filed in various High Courts have been
transferred to this Court and registered as Transferred
Petitions, to be disposed of alongwith Civil Appeal arising
out of the judgment of a Division Bench of the Calcutta High
Court on appeal from the judgment of a learned Single Judge
of the Court. We also have before us an independent Writ
Petition No. 98 of 97 filed under Article 32 of the
Constitution of India.
Before referring to the facts of the cases it will be
necessary to refer to the heirarchy of posts and the mode of
recruitment and promotion under the 1974 rules as well as
under the 1981 rules and the conditions for eligibility for
promotions.
Under the 1974 Rules the hierarchy of posts was as
follows. Initially the recruitment was to the post of
Assistant Commandant/Assistant Security Officer in Class-II
Group-B (hereinafter called generally as assistant
Commandant Cadre for convenience ) in the pay scale of Rs.
350-900. Further promotion from that post was to the post
of Commandant/Assistant inspector General/Security
Officer(Class-I, Group-A) in the pay scale of Rs. 700-1250.
The promotion was by way of selection through the
Departmental Promotion Committee and the condition of
eligibility was that a person should have put in 8 years of
regular service in the post of Assistant Commandant. So far
as the post of Assistant Commandant at lower level is
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concerned, the said cadre was consisting of 30% direct
recruits to that post and 60% promotes from a post which was
below the post of Assistant Commandant and 10% by way of
transfer etc. From the post of Commandant the further
promotion was to the post of Deputy Chief Security Officer
in Class-I, Group-A bearing a pay-scale of Rs.1300-1600.
The promotion was through the DPC and the condition of
eligibility was that a person should have put in 5 years
regular service as Commandant.
Under the 1981 Rules which came into force from 8th
May, 1981, direct recruitment to the post of Assistant
Commandant (Group-B, Class-II) in the pay scale of Rs.650-
1200 was completely stopped and the said post was to be
filled entire by promotes below the post of Assistant
Commandant. From the said post of Assistant Commandant
(Group-B, Class-II) instead direct promotion to the post of
commandant as was obtaining under the 1974 rules, an
intermediate post was created in Class-I in the pay scale of
Rs. 700-1300 but the designation was the same namely
Assistant Commandant/Assistant Security Officer. In the
departmental communications this is described as Group-A,
Class-I Junior Scale post. The recruitment to the
intermediate post was 40% by promotion of Assistant
Commandants who had put in 3 years of regular service. The
promotion being from Class II to Class I the promotes had to
go through the DPC. The remaining 60% in this intermediate
pst was to be filed up by direct recruitment through the
Union Public Service Commission. The next promotion from
this inter mediate post was to the post of
Commandant/Security Officer/Assistant Inspector
General/Deputy Director/Divisional Security Officer
(hereinafter generally called Commandants cadre for
convenience). In the departmental communication this is
described as Group-A, Class-I post Senior Scale.
For promotion as Commandant, assistant Commandants in
Group-A, Class-I are eligible under the 1981 Rules after 5
years of regular service. The promotion being from being
Class I to Class I there is no PDC. From the post of
Commandant, the further promotion is to the post of Deputy
Chief Security Officer in Group-A, Class-I in the pay scale
of Rs.1500-2000. This post is also called a post of Senior
Security Officer. The Commandant who has put in 5 years
regular service is eligible
Under the 1981 Rules which came into force from 8th May,
1981, direct recruitment to the post of Assistant Commandant
(Group-B, Class-II) in the pay scale of Rs.650-1200 was
completely stopped and the said post was to be filled
entirely by promotes below the post of Assistant Commandant.
From the said post of Assistant Commandant (Group-B, Class-
II) instead direct promotion to the post of commandant as
was obtaining under the 1974 rules an intermediate post was
created in Class-I in the pay scale of Rs. 700-1300 but the
designation was the same namely Assistant
Commandant/Assistant Security Officer. In the departmental
communications this is described as Group-a, Class-I Junior
Scale post. The recruitment to the intermediate post was
40% by promotion of Assistant Commandants who had put in 3
years of regular service. The promotions being from Class
II to Class-I the promotes had to go through the DPC. The
remaining 60% in this intermediate post was to be filed up
by direct recruitment through the Union Public Service
Commission. The next promotion from this intermediate post
was to the post of Commandant/Security Officer/Assistant
Inspector General/Deputy Director/Divisional Security
Officer (hereinafter generally called Commandants cadre for
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convenience). In the departmental communication this is
described as Group-A, Class-I post Senior Scale.
For promotion as Commandant, assistant Commandants in
Group-A, Class-I are eligible under the 1981 Rules after 5
years of regular service. The promotion being from being
Class I to Class I there is no DPC. From the post of
Commandant, the further promotion is to the post of Deputy
Chief Security Officer in Group-A, Class-I in the pay scale
of Rs. 1500-2000. This post is also called a post of Senior
Security Officer. The Commandant who has put in 5 years
regular service is eligible for promotion to this post and
the promotion is through DPC. The further promotion is to
the post of Deputy Inspector General/Chief Security Officer
and finally to the post in Inspector General. For
convenience we are setting out a tabular statement of the
hierarchy of posts under the 1974 and 1981 Rules.
RECRUITMENT RULES 1974 RECRUITMENT RULES 1981
INSPECTOR GENERAL INSPECTOR GENERAL
DY. INSPECTOR GENERAL/ DY. INSPECTOR GENERAL/
CHIEF SECURITY OFFICER CHIEF SECURITY OFFICER
DY. CHIEF SECURITY OFFICER DR, CHIEF SECURITY OFFICER
COMMANDANT/AIG/ COMMANDANT/SECURITY OFFICER/
SECURITY OFFICER AIG/DEPUTY DIRECTOR
ASSTT. COMMANDANT/
ASSTT. SECURITY OFFICER
ASSTT. COMMANDANT/ ASSTT.SECURITY OFFICER/
ASSTT. SECURITY OFFICER ASSTT. COMMANDANT
It is also necessary to note the number of posts in as
much as that has some bearing on the issues in the case.
Under the 1974 Rules there were 138 posts in the cadre of
Assistant Commandant, 48 posts in the cadre of Commandant
and 6 temporary posts of Deputy Chief Security Officer.
Under the 1981 Rules the posts of Assistant Commandant Group
B Class II are reduced to 56 while 85 posts are allocated to
the intermediate post of Assistant Commandant Group A Class
I(Junior Scale). The number of posts of Commandant remained
as 48 while posts of Deputy Chief Security Officer are 7.
After the recommendation of the 4th Pay Commissions a
policy decision was taken to disband the intermediate
category of Assistant Commandant Group-A Class-I(Junior
Scale) and the result was that those in Assistant Commandant
Group-B Class-II stood equated w.e.f. 1.1.1986 as Assistant
Commandants Group-A Class-I Junior Scale.
Facts and contentions raised by group B (Class II)
Officers:
The dispute is between two groups of officers. One
group consists of officers who were recruited prior to the
introduction of 1981 Rules (i.e. before 8.5.1981) to the
post of Assistant Commandant Class-II Group-B and who by the
time the rules of 1981 came into force on 8.5.1981 had
completed several years of service as Assistant Commandant
Class-II Group-B and were awaiting further promotion as
Commandant Class-I Group, Regular promotions were not made
because no DPC was held from 1981. Some of these officers
who had been promoted on adhoc basis as Commandants had even
completed 5 years of adhoc service in that cadre and were
expecting promotion as Deputy Chief Security Officer. Even
after the new rules came into force on 85.1981, and even
after 1.1.1986, since no Departmental Promotion Committee
met for more than 15 years, the result was that these
officers working in higher posts but who were recruited
before 1981 had still to reckoned as belonging regularly to
the cadre of Assistant Commandant, now described under the
1981 Rules as Class-II Group-B, However, notifications were
issued in 1990 first promoting some of them to the
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intermediate post created in 1981, namely, Assistant
Commandant Group-A Class-I Junior Scale and then promoting
them as Commandants in Class-I Group-A on an adhoc basis.
These officers in Asst. Commandant, Group B, Class-I
recruited before 1981 contend that there is no difference
between them and those officers who were directly recruited
to the newly created intermediate post of Assistant
Commandants, Class-I (Group A) after the 1981 rules inasmuch
as the examination which they passed before 1981 was the
same as the one passed by these direct recruits after 1981
and that the duties and responsibilities are same for both
for Assistant Commandants Group-B Class-II and for the
intermediate post of Assistant Commandants Group-A Class-I
(Junior Scale). They further contend that under the 1974
Rules which were in force at the time of their appointment,
they had a vested right to be promoted as Commandant (Class-
I)(Group-A) and the 1981 Rules would not affect their vested
rights for promotion after 8 years of service as Asst.
Commandant and thus the introduction of an intermediate post
in group A (Class I) (Junior Scale) is violative of Article
16 of the Constitution of India. They also contend that
this amounts to giving retrospective effect to the 1981
Rules. They further say that the new direct recruits after
1981 in group A (Class I) have no right to be placed above
them in the seniority list and that they were entitled by
virtue of their seniority to be promoted as Commandants in
Group-A Class-I in preference to these direct recruits. The
above contentions are raised by the petitioners in
Transferred Case Nos. 2,13 & 41 of 1996 and the writ
petitioners who filed the writ petition in the Calcutta High
Court out of which Civil appeal arises and also by the
petitioners in Writ Petition No.98 of 1997 filed in this
Court. We shall briefly refer to the grievances of this
group of officers from their writ petitions. The petitioner
in T.P.No.2 of 1996 initially joined the Army as
Commissioned Officer on 27.9.1963 and after being discharged
from there on 1.11.1967, appeared before the U.P.S.C. for
selection as Assistant Commandant and he was appointed on
14.3.1975 in Class-II Group-B as Assistant Commandant in the
scale of Rs.350-900. He was confirmed in the post w.e.f.
16.11.1978 and was later promoted on adhoc basis on
27.12.1980 as Commandant. He put in more than 5 years
experience as Commandant and was expecting further promotion
as Deputy Chief Security Officer in the scale of Rs. 1300-
1600 after completion of 5 years by 27.1.1986 but in view of
the scheme of the 1981 rules which introduced the
intermediate post above-mentioned, the authorities issued a
notification dated 10.8.1990 promoting him as Assistant
Commandant Group-A Class-I in the Junior Scale of Rs.2200-
4000 w.e.f. 1.1.1986 (the previous scale was Rs. 700-1300).
The petitioner submitted a representation on 15.7.1991
contending that he ought to have been confirmed as
Commandant in Class-I Group-A and also promoted as Deputy
Chief Security Officer in preference to the direct recruits
to the post of Assistant Commandant Group-A Class-I
introduced in the 1981 rules. He then filed a writ
petition C.W.P. No.294 of 1991 in the High Court of Punjab &
Haryana for quashing the notification dated 10.8.1990 and
for giving him the further promotion in preference to the
direct recruits in Group-A Class-I. The writ petitioner in
the writ petition which is the subject matter of Civil
Appeal who was in similar post, had filed writ petition
No.493 of 1988 in the Calcutta High Court. He was appointed
as Assistant Commandant Group-B Class-II in 1979. In the
writ petition the "added respondents" were the direct
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recruits recruited subsequent to 1981 in Group-A Class I
Junior Scale. In Transferred Case No.13 of 1996 the
petitioner had filed Writ Petition No.2883 of 1994 in the
Rajasthan High Court. He was also appointed as Assistant
Commandant Class-II Group-B on 13.3.1979. He has also
raised a grievance about appropriate weightage not having
been given to him for the service rendered in Group-B Class-
II from May 1979 to 31.12.1985. He further mentioned that
in the seniority list prepared on 8.4.1993 his name was
shown higher up by giving him weightage but that several
direct recruits Assistant Commandants Group-A Class-I were
shown above him and this was not permissible. He was
entitled to be promoted in preference to these direct
recruits to the post of Commandant as well as to the higher
post of Deputy Chief Security Officer/Senior Security
Officer. In T.C. No.41 of 1996, the petitioner filed writ
petition No.2235 of 1988 in the Madras High Court. He was
appointed as Assistant Commandant on 24.6.1980 in Class-II
Group-B. His grievance is also similar. He prayed that the
order dated 4.2.1986 rejecting his representation be
quashed. In Writ Petition No.98 of 1997 filed under Article
32 of the Constitution of India in this Court, the
petitioner appeared for the Civil Services Examination in
1978 and was appointed in 1980 as Assistant Commandant
Class-II Group-B. His grievance is also similar.
Facts and contentions of group A Class I (Junior Scale)
Officers.
Coming to the second group of officers namely the
direct recruits in the intermediate category of Assistant
Commandant Group-A Class-I Junior Scale. their grievance is
that after the abolition of the distinction between group-A
& Group-B w.e.f. 1.1.1986 pursuant to the recommendations of
the 4th Pay Commission, the Assistant Commandants of Group-B
are being unduly favoured and that those officers ought not
to have been equated with them nor given any seniority above
them. The retrospective seniority given to some of the
Assistant Commandants Group-B Class-II with added weightage
under a weightage formula had suddenly pushed up the
Assistant Commandants Group-B Class-II above them and has
affected their seniority in group A. They contend that it
is wrong on the part of the department to straightway
promote the Assistant Commandants Group-B Class-II as
Commandants in Group-A Class-I Senior Scale without first
promoting them as Assistant Commandants Group-A Class-I
through DPC. In fact no DPC was held after 1981, i.e. for
more than 15 years. They contend that even assuming these
officers can be treated as Assistant Commandants in Group-A
Class-I within the promotion quota of the 40% from group B
to group A, it was wrong to give them weightage without
going into the question whether they were eligible i.e.
whether they had 3 years of regular service as Assistant
Commandant Group-B Class-II. They could not be given any
promoting in group A from a date which was within a period
of cars of their regular service in group B. These points
are raised by the writ petitioner in Transferred Case nos.
10 of 1996, 9 of 1996 and 12 of 1996 and the "added
respondents" in the writ petition filed in the Calcutta High
Court out of which Civil appeal arises. For example, seven
petitioners in T.P. 10/96 namely Premjit Singh Rawal & Other
(who filed Matter No.2276/89 in the Calcutta High Court)
contend that they were recruited as Group-A Class-I officers
(junior Scale) by the Civil Services Examination held in
different years during 1980& 1982 and were already promoted
to the Senior Scale post of Commandant. Although the 1981
Rules introduce 85 pots in Group-A (Class-I) Junior Scale
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only a few have been so filled and the rest were being held
by group-B officers. Uptill 1989, only 28 posts of direct
recruits Group-A (Class-I) have been filled out of 51.
Petitioner No.1 has been promoted as Commandant after
completion of 5 years regular service in Group-A(Class-I)
while petitioners Nos. 2 to 7 who were promoted before
completion of 5 years regular service have since completed
that period of service. While so, rule were made in 1987
prescribing the principles of seniority of superior officers
(vide Rules 95.1 and 95.2). They point out that Group-A
officers were drawing in the scale of Rs.700-1300 while
Group-B were drawing in the scale of Rs.650-1200. The IVth
Pay Commission recommended one pay-scale of Rs.2200-4000 to
Assistant Commandants a equivalent posts w.e.f. 1.1.1986, in
Group-A and Group-B. But the rules were not amended and this
was clear from the orders promotion dt. 15.2.1989 given to
Group-B Class-II officers as Commandant(Senior Scale) on an
adhoc basis. This, according to them, was arbitrary and
illegal. This was done by way of circular of the Railway
Board dt. 31.12.1985 which permitted group-A officers
(Junior Scale) with 5 years (or 3 years) to be promoted as
Commandant(Senior Scale). The circular also said that
Group-B Class-II officers could be promoted, if they had
more than 3 years service in Group-B and have been adjudged
suitable by a Committee for appointment regarding Commandant
(Senior Scale) vacancies for adhoc promotion. But the
promotion of Group-B officers was being made even though
Junior Scale Group-A officers (direct recruits) were
available. This happened when orders of promotion
dt.15.2.1989 and 6.1.1989, were passed. Thus even the
circular dated 31.12.1989 was being violated by making
direct promotions from Group-B Class-II to Commandant
(Senior Scale) skipping over Group-A(Junior Scale). At the
moment in 1989, out of 60 posts of Commandant (Senior
Scale), only 7 were from Class-I(Group-A/Junior Scale) while
53 were from Class-II Group-B. No DPC was held after 1980
for promotion from Group-B to Group-A. Non filling of
Group-A Class-I Junior Scale by direct recruitment was
deliberate. Yet another circular dated 21.8.1987 was issued
by the Railway Board that before promotion of Group-B
officers for Group-A as on 31.12.1985, on a regular basis,
they should be ’screened’ w.e.f. 1.1.1986 and pending such
screening, promotion to Group-A in scale f Rs. 2200-4000
would be treated as adhoc. This circular also showed that
there could be no automatic promotion from Group-B to the
post of Commandant (Senior Scale) without first being
appointed to Group-A, Class-I(Junior Scale). The proposals
sent to U.P.S.C. to promote Group-B officers as Group-A with
retrospective effective from 1.1.1986 are therefore bad.
Such a procedure would make Group-A Junior Scale recruited
after 1.1.1986 juniors to Group-B officers in service as on
1.1.86. This was also in violation of the quota rule
because for the post of Asstt. Commandant Senior group A
(Junior Scale) only 40% Group-B Officers could be promoted.
Therefore from group-A to the post of Commandant also, not
more than 40% could come from group-B. Under 1981 Rules, a
promoted officer to the post of Group-A is not entitled to
count his service for seniority if his promotion is beyond
the quota prescribed from Group-B to Group-A. The further
decision to give weightage to the promoted officers on
promotion to Group-A (w.e.f. 1.1.1986) to the extent of half
of the gazette years of service in Group-B (subject to a
maximum of 5 years) - for the purpose of counting their
seniority in Group-A Junior Scale, was also bad for that
would make them steal a march over other directly recruited
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Group-A officers recruited before 1.1.1986. Most of the
Group-B officers were likely to get weightage of 5 years to
4 1/2 in Group-A. This was likely to place all Group-B
officers so promoted as Commandant (Senior Scale) above such
of the Group-A officers who were yet to be promoted as
Commandants(Senior Scale). 60 Group-B officers would go
above 1st petitioner, 104 above 2nd & 3rd petitioners and
125 officers above petitioners 4 to 7, in the category of
Commandants(Senior Scale). They prayed, therefore, that all
these policies by which Group-B officers were being favoured
should be struck down. the case of the petitioners in
T.P.No.9/96 (by W.P. Matter 2410/89) filed in the Calcutta
High Court by Shashikanta and others and in T.P. No.12/96
(W.P. 8129/94) filed by P.K.Agarwal in the Allahabad High
Court and of the "added respondents" in the Writ Petition
from the Calcutta High Court out of which the Civil appeal
has arisen, is the same.
Orders Passed by the Calcutta High Court in the matter
Under Civil Appeal
Before referring to the points arising in these cases,
it is necessary to refer to Civil Appeal and to the orders
passed by the learned Single Judge of the High Court of
Calcutta and the orders of the Division Bench in appeal, to
the extent relevant. As already stated, the writ petitioner
there Rajeev Kumar Sharma was a Group-B (Class-II) officer
appointed in 1979 while the ’added respondents" were Group-A
officers(Junior Scale) recruited after 1981. Petitioner was
promoted as Commandant on 20.8.90 alongwith 1985 Group-A
officers. The learned Single Judge by his order in Matter
No.493 of 1988 by judgment dated 4.3.94 rejected the plea of
the petitioner and held that a person specifically selected
into Group-B in 1979 could not claim seniority over Group-A
officers who were directly recruited to the intermediate
post of Group-A officer. But having done so, the learned
Judge dealt with the grievance of the "added respondents"
Group-A officers, namely, that the Union of India was
favouring the Group-B officers and held that the
petitioner’s promotion as Commandant on 20.8.1990 alongwith
1985 Group-a officers was by way of ’frog leap’ while the
"added respondents" promoted as Commandants from Group-A
post were from the 1983 batch of group A officers, that the
latter were promoted as Commandants on 29.4.88 and
therefore, the petitioner from group B could not become
senior to them in the category of Commandants. Learned
Judge further noticed that the promotion of the "added
respondents" on 29.4.88 as Commandants was ’adhoc’ instead
of on regular basis and this was because of the interim
order obtained by the petitioner in the Writ petition and
with a view to rectify the same, the learned Judge directed
the department
"to treat the period of adhoc
promotion of the added respondents
from 29th April, 1988 till date
i.e...as regularise and consider
them for promotion to the next
higher post...."
The Union of India filed an Appeal in 1994 and the
Division Bench held that the direction given by the learned
Single Judge were only intended to remove the injustice done
to Group-A officers because of interim order passed in that
very writ petition in favour of Group-B
officers(Petitioners) and there was nothing wrong in the
order of the learned Single Judge. The Court, however,
noticed that there was also another writ petition filed by
group A officers pending in the Court and in that petition
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by Premjit Singh Rawal the grievance of Group-A officers was
against the policies of the government in favour of Group-B
officers. The policies of government have not reached a
stage of finality and hence they were not pronouncing
anything on the validity of the promotional policies in
favour of Group-B officers, including the question of
weightage and the notifications dated 10.8.1990 by which
Group-B officers were promoted into a group-A scale w.e.f.
1.1.1986 and further promoted on 20.8.1990 as Commandants,
within 10 days They pointed out that the notification dated
10.8.1990 clearly stipulated that it would not prejudice the
rights of group-A officers. The Division Bench, however,
’modified’ the direction issued by the learned Single Judge
stating that the said direction would be subject to the
result of the judgment in the Writ petition filed by Mr.
Premjit Singh Rawal and others (Now T.P. 10\1996). They
made it clear they were not suspending the order dated
10.8.1990 and 20.8.1990 which were in favour of the Group-B
officers.
Against this order the Union of India has filed the
Special leave Petition No.7076 of 1995 in which special
leave has been granted. The writ petition filed by Mr.
Premjit Singh Rawal & Others in the Calcutta High Court is
now transferred to this Court and numbered as T.P.(Civil)
No.10 of 1996.
Merits of the contentions of group. B (Class II)
Officers.
Having stated the facts and import of the 1981 Rules
etc. we shall now deal with the validity of the contentions
raised by the officers. We shall take up the batch of cases
filed by the Assistant Commandants, Group-B officers (Class-
II) recruited prior to 1981 Rules. They contended that the
introduction of the post of Group-A(Junior Scale) of
Assistant Commandant as an intermediate post was illegal and
that the procedure of promotion of Group-B officers to
Group-A and then to the post of Commandant under the 1981
Rules amounted to interference with vested s with
retrospective effect to and that all recruitees into group B
prior to the 1981 Rules should be governed by the 1974
rules. It is also argued that the Group-A officers passed
the same examination as the Group-b officers and were having
the same powers and duties. No principle for fitment of
existing group-B officers as on the date when the 1981 rules
came into force was specified in the rules.
In our view, there is no merit in these contentions.
There is no question here of giving retrospective effect to
1981 Rules. It is, in our opinion, open to the employer,
namely, Union of India and it is its prerogative, as a
matter of policy, to introduce an intermediate post and lay
down the conditions of eligibility of Group-B officer in
Class-II for promotion to such intermediate post of Group-A
in Class-i(Junior Scale). Such an introduction of an
intermediate post does not, in our opinion, amount to
interfering with any vested rights cannot be interfered
with, is to be accepted as correct. What all has happened
here is that an intermediate post has been created
prospectively for future promotions from Group-B Class-II to
Group-A Class-I. If, before these rules of 1981 came into
force, these officers were eligible to be directly promoted
as Commandant under the 1974 rules but before they got any
such promotions, the 1981 Rules came in obliging them to go
through an intermediate post, this does not amount to
interfering with any vested rights. Further before 1981
among the Group-B officers in Class-II, there were direct
recruits upto 30% and promotees upto 60% and transferees
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upto 10%. It would not be correct to permit the direct
recruits in class-B to be governed by the 1974 Rules for
direct promotion to the post of Commandant leaving the
promotees and transferees to go by the 1981 Rules and
through the intermediate post. Further, these officers were
specifically recruited to Group-B as they came lower in the
merit list at the time of their appointment prior to 1981
while those recruited after the 1981 Rules were persons who
were specifically recruited for the intermediate post in
Group-A. Further there is no difficulty with regard to
fitment of the existing Assistant Commandants (Class II) on
the coming into force of the Rules of 1981 for all those who
were Asstt. Commandants or of equal grade came to be
designated as group B (Class II) officers. For the
aforesaid reasons, there is no merit in these contentions of
group B Officers.
Merits of contentions of second Batch - group A (Class
I) (Junior Scale Officers:
We shall now deal with the writ petitions filed by the
group A (Class-I) officers. We may first refer to the
T.P.No.10/96, being the Writ petition filed by Premjit Singh
Rawal & others in the Calcutta High Court, the result in
which is to govern the civil Appeal. In that writ petition,
there is an order dt 28.8.89 of another learned Single Judge
of the Calcutta High Court as follows:
"....the interim order already
passed is modified to the extent
that the respondent shall prepare a
fresh promotion policy of the Asst.
Security Commissioners which the
respondent says has not yet done
but there should not be adverse
affection of the position of the
present writ petitions "till the
disposal of the writ petition and
without leave of this Court."
Therefore a ’fresh promotion policy’ was to be prepared
and placed before Court.
Pursuant to the above direction of the Calcutta High
Court, fresh policy decisions have since been taken and
placed before this Court. The U.P.S.C. has written to the
Government of India on 10.12.1991 indicating the "promotion
polices" requesting the Government to place the same before
the Court. It wrote another letter dated 3.8.1993 after
’re-examining’ the question of weightage given to group-B
officers. A letter of the Union of India dated 30.11.76
which laid down principles of ’weightage’ applicable in all
departments of Railways(except the Medical department) has
also been placed before us as being the basis for the policy
in the above letters so far as weightage is concerned.
Further a combined provisional seniority list of Junior
Scale Group-A officers in position as on 8.4.1993 has been
placed before us in W.P. 98/97. It however appeared that
this was prepared without fully giving effect to the
principles stated in the above letters dated 10.12.1991 and
3.8.1992.
Learned counsel for the group-A officers submitted
before us that the fresh draft policy letters of the Union
of India dated 10.12.1991 and 3.8.1992, read with the
weightage principles laid down in the earlier dated
30.11.1976 of the Railway Board offend the rights of the
Group-A Class-I officers in as much as Group-B officers are
retrospectively promoted into Group-A w.e.f. 1.1.1986
without a DPC and they were in addition given weightage for
the said promotion in respect of 50% of their service in
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Group-b. They could not, in any event, be promoted to
Group-A posts from a date anterior to the very date of
creation of Group-A posts under the 1981 Rules. The entire
exercise was violative of the 1981 Rules relating to
promotion. The promotion of eligible officers from Group-B
to Group-A as per the 1981 Rules can be only for 40% of the
85 posts in Group-A(Junior Scale) the rest 60% in Group-A
are to be filled by direct recruitment. It is only after
the promotion to group A through DPC is completed, that too
in respect of Group-B officers having 3 years regular
service, that their promotion from Group-A(Junior Scale) to
the Commandants category could be considered. The letters
of the UPSC dated 10.8.1990 and 20.8.1990 amounted to giving
double promotion to Group-B officers and were illegal. To
the extent the draft new policy dated 10.12.1991 and
3.8.1992 read with the weightage principles dt. 30.11.1976
were applied to group B Officers, there was clear is clear
violation of the Rules. It was also submitted that the
proceedings dated 30.11.1976 were not applicable to the
Group-B officers appointed under the R.P.F. Act.
On the other hand, the learned counsel for the Union of
India and the counsel for Group-B officers contended that
the quota rule had broken down because of want of
recruitment to all posts in Group-A, and hence thee is no
question of applying the 40% quote rule for promotion from
Group-B to Group-A. The UPSC and the Government of India
took into consideration that the IVth Pay Commission
recommendations have virtually withdrawn the distinction
between Group-B and Group-A w.e.f. 1.1.86. Further, from
1981 there was no DPC for promotion from Group-B to Group-A
and therefore UPSC and the Union of India have now come
forward with an equitable solution which is fair to both
groups. The weightage principles dt. 30.11.1976 are clearly
applicable to these Class I officers. These Rule have been
upheld by this Court in A.K.Nigam Vs. Sunil Misra 1994 (2)
Suppl. SCC 245
Counsel for group B officers raised an extra point that
under these two letters of the UPSC, to the extent the
provisional seniority list does not give the benefit of the
60% direct recruit quota in Group-A to the promotees from
Group-B, the list is bad. Counsel also stated that the
provisional list before Court does not show that it was
prepared giving effect to the letters dated 10.12.1991 and
3.8.1992.
The point that arises for consideration is whether the
principles laid down in the draft policy of the Union of
India as prepared by the UPSC in its letter dated 10.12.1991
and as modified by the letter dated 3.8.1992 is fair and
equitable for reckoning the inter se seniority between the
group B and group A officers for purpose of higher
promotion?
In our view, these two letters contain very fair
proposals by the UPSC which take into account all aspects of
the case both on facts and on law and these proposals are
liable to be accepted. We shall briefly refer to the
principles recommended by the UPSC in these two letters.
The proposal of the UPSC dated 10.12.1991 communicated to
the Union of India is as follows: It states that there wee
85 posts of post commandant(Group-A) initially during the
period 1981 to 1985 and were required to be filled 40% by
promotion of Group-B officers and 60% by direct recruitment.
Promotion of Group-B officers was after they had put in 3
years regular service into Group-B, So far as direct
recruitment for 48 posts under 60% quota was concerned,
although 48 candidates were selected. Only 26 joined and
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even out of them, 9 left the service leaving on 17. There
was, therefore, a shortfall of 31 (48-17) Group-A Junior
Scale officers in the direct recruitment quota of 48. So
far as the promotion quota of 32 posts was concerned, no DPC
was held from 1981. Thus a total of 63 posts(31 & 32) were
vacant in Group-A Junior Scale. "The letter says that the
Service Commission has approved that all these posts may be
filled by promotion by holding yearwise DPC." The yearwise
details from 1981-85 regarding the number of vacancies
falling under direct recruitment quota, promotion quota,
number intended, number recommended, number proposed to be
diverted from direct recruitment to promotion quota are as
follows:
Year No of No. in Vaca- Short No. No. Total
vacan- tended ncies fall of of no. of
cies for in pr-in dir- vac- vacanc-
direct motion D.R. etc anc ies to
recrtt. quota quota recr-ies be filled
uit to be by promo-
left dive- tion.
during rted
the from
year. Dr quota
to promo-
tion quota
------------------------------------------------------------
1981 13 8 5 4 - 4 9
1982 14 8 6 4 2 6 12
1983 20 12 8 3 3 6 14
1984 13 8 5 6 2 8 13
1985 20 12 8 5 2 - 15
------------------------------------------------------------
TOTAL 80 48 32 22 9 24 63
It is was stated that the proposed diversion of
vacancies from the direct recruitment quota was being
suggested in view of the fact that the offices coming in the
yearwise eligibility zones had completed more than 10 years
of service in Group-B as against the requirement of 3 years
service, to become eligible for promotion to Group-A. It was
also stated that promotion would be based on merit-cum-
seniority. The procedure to be followed is indicated in
para-3 of the said letter as follows:
(i) The number of officers to be considered in the
eligibility zone would be calculated with reference to the
number of vacancies to be filled up in each year. 5 officers
would be considered against one vacancy and 8 officers would
form the zone of consideration for 2 vacancies and 10 for 3
vacancies. Thereafter the eligibility zone would be twice
the number of vacancies plus. 4 Officers finding a place in
the eligibility zone as stated above would be considered for
promotion senioritywise on the basis of their ACRs for
previous 5 years with regard to the year of the vacancy.
While assessing ARCs, gradings will be assigned to each
officers such as ’Outstanding’. ’Very Good’, ’Good’,
’Average’ and ’Unfit’. All officers assessed ’Outstanding’
would be placed enblock above officers categorised as ’Very
Good’ and similarly those who are categorised as ’Very Good’
would be placed above those who are categorised as ’Good’
and those who are categorised as ’Good’ would be placed
above those categorised as ’Average’. Officers in the list
so prepared would be recommended for promotion based on the
number of vacancies. Only those who were graded as ’Good’
and above would be recommended for promotion.
(ii) The officers promoted as mentioned above would also be
eligible to the advantage of ante-dated seniority to the
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extent of 50% of the total service rendered in Group-B
subject to a maximum of 5 years. However, this ante-dated
seniority would not go beyond 1.6.1981 i.e. date from which
the group A junior time scale was introduced in RPF.
(iii) Officers not recommended against vacancies of 1981
to 1985 would be placed in Group-A w.e.f. 1.1.1986 on the
basis of screening which has already been conducted by the
UPSC. Such placement will not entitle them to any benefit
of weighted seniority and they will be placed below the 17
direct recruit officers of Group-A who were in service on
1.1.1986.
(iv) Inter-se seniority of direct recruits vis-a-vis
promotees would be in accordance with the number of
vacancies in each year and the quota for direct recruits and
promotees.
The further letter of the U.P.S.C. dated 3.8.1992
modifies the policy in the above letter in regard to
weightage. It says that the U.P.S.C. has re-examined the
question of weightage in the seniority to be given to the
promotees Group-B officers. In order to protect the
interests of Group-A officers and to be fair to Group-B
officers also, the Commission proposed the following
equalable criteria:
(a) Only 82 promotees who are to be recommended to the
actual promotion quota vacancies, should get the weightage
in seniority.
(b) All the other 31 vacancies decided to be diverted
yearwise from 1981 onwards from direct recruitment quota
should be clubbed together and treated as vacancies of 1985.
The officers to be promoted against these 31 vacancies need
not be given any weightage in seniority and they should be
placed enblock below the direct recruits of 1985.
Accordingly the formulation contained in paras 3(ii) and
3(iv) of office letter of even number dated 10.12.1991 was
to be treated as modified to the above extent.
In other words, weightage was given to some extent and
the breaking down of the quota rule was also taken into
account but both these principles were balanced against each
other. Finally the letter dated 3.8.1992 further states
that on the basis of above criteria, it would be necessary
to prepare separate yearwise panels i.e. one for the 32
promotion quota vacancies of 1981 to 1985 and another for
the 31 diverted vacancies being treated as that of 1985.
The panels for the 31 diverted vacancies would be prepared
from amongst the left over officers after preparation of the
panels for the 32 vacancies falling in actual promotion
quota. As such the Ministry was requested to intimate the
break-up of reservation for the 32 actual promotion quota
vacancies and 31 diverted vacancies separately, so that the
proposed DPC for the vacancies of 1981 to 1985 could be held
at the earliest.
So far as 50% weightage given to group B officers is
concerned it is based on an earlier letter dated 30.11.1976
issued by the Railway Board. That letter deals with the
grant of weightage to promotees to all Class I posts in
regard to half of their service rendered in the post from
which they are promoted. It deals with the principles for
determining seniority of Class-I officers in the Indian
Railways. The contents of the letter read as follows:
"Consequent on the deletion of para
8 of Appendix I to Indian Railway
Service of Engineers, Indian
Railway Service or Signal
Engineers, Indian Railway Service
of Electrical Engineer Recruitment
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Rules, 1962, paragraph 9 of the
Appendix I of the Indian Railway
Service of Mechanical Engineers
Recruitment Rules, 1968 and the
I.R.S.S. Recruitment Rules, 1969
for determining seniority of
officers on their appointment to
Class I Service, Board have decided
to circulate the principles, laid
down for determining the seniority
of officers, appointed to various
Class services from different
sources, specified in the various
Recruitment Rules except officers
of the Medical Deptt. and other
misc, categories. These are
enclosed as an Appendix to this
letter."
So far as Appendix is concerned, we are concered here,
with principles (i) and (vii):
"Principle (i) - The seniority of
officers, appointed to various
Indian Railway Services (Class I)
shall be determined on the basis of
the "date for increment on time
scale" to be specifically
determined in each case in
accordance with these principles.
Principle(vii) - In the case of
Class II officers permanently
promoted to Class i Services, if
two or more than two officers ar
promoted on the same date their
relative seniority will be in the
order of selection. Subject to the
aforesaid provision the seniority
of officers, permanently promoted
from Class II to Class I Services,
shall be determined by giving
weightage based on:
(a) the year of service connoted by
the initial pay on permanent
promotion to Class I Service; or
(b) half the total number of years
of continuous service in Class II,
both officiating and permanent;
Whichever is higher, subject to a
maximum weightage of five years."
Identical principles of weightage were upheld in
A.K.Nigam’s case - 1994 Supple (2) SCC 245. This Court
observed as follows:
"One thing may be noticed that the
seniority in IRPS is not governed
by the date of joining. If one look
at the Principles, as approved by
the President, Principle (i) is -
"the seniority of officers,
appointed to various Indian Railway
Services (Class I) shall be
determined on the basis of the
’date for increment on time scale’
to be specifically determined in
each case in accordance with these
principles." It is no an
invariable rule that seniority
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should be determined only on the
basis of the respective dates of
appointment to the post and that
any departure from it would be
unreasonable and illegal. It is
open to the rule making authority
to take a note of the relevant
circumstances obtaining in relation
to each department and determine
objectively the rule that should
govern the inter se seniority and
ranking. The dates of increment of
the appellants in time scale having
been specifically determined by the
authorities before respondent No.1
joined service, he has to rank
junior to the appellants."
Thereafter, this Court further observed as follows;
"The principle of granting
seniority on the basis of weightage
of past service and lower service
to the category of promoting
officers is well known and well
recognised in the service
jurisprudence."
This Court also referred to an earlier judgment in
State of Andhra Pradesh & Another Vs. K.S. Muralidhar and
others [1992 (2) SCC 241] where weightage formula was
accepted.
In view of the above-said judgment of this Court, It is
clear that the principle of weightage proposed to be applied
in these letters of the UPSC is unassailable.
The other contention raised by learned counsel for the
Class-A officers was that a reading of the opening paragraph
of the letter dated 30.11.1976 of the Railway Board (already
extracted) shows that the said principles were not intended
to be applied to a statutory service like the one governed
by the Railway Protection Force Act, 1957. This contention,
in our view, is not correct. We have examined this aspect in
depth and we are convinced that letter dated 30.11.1976 was
intended to apply to these Class-1 officers in RPF as well.
The opening paragraph of the letter in fact says that
principles in the Appendix thereto are applicable to the
officers except those in the Medical Department. In fact
the decision of Supreme Court in A.K.Nigam’s case related to
Indian Railway Personnel Services Officers.
Further, it is not as if these group B officers are
being given promotion in group A from a date when group A
posts were not created. It is specifically made clear that
in spite of weightage, none will be given a date anterior to
1.6.81, the date of creation of these group A posts. Nor is
the extent of weightage unrestricted. It is provided that
it will not exceed 5 year in any case. Interse-se seniority
is to be based on vacancies in each year and on the quota
for direct recruits and promotees. The point that group B
officers cannot be given promotion to group B from a date on
which they are not eligible as per 1981 rules is also taken
care not eligible as per 1981 rules is also taken care of.
DPC panels are to be prepared yearwise as stated in the two
letters. Weightage is confined to the promotion quota.
Again while recommending that unfilled vacancies in direct-
recruitment quota are to be diverted it is stated that for
such promotees, no weighate is to be given while promoting
to them into the diverted vacancies.
We are of the view that a fair and proper balancing of
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the rights of group A and group B officers has been made in
these draft policies. The contentions of group A officers
as well as of group B officers against these draft policies
are therefore rejected. Thus the new policy has our full
acceptance and the authorities, can take further steps on
the basis.
Implementation of the Policy:
It will now be for the department to implement the
above said policy and after taking the various steps
indicated therein, publish a provisional seniority list of
Asstt. Commandants, etc. (group A officers) (Class I).
invite objections and upon finalising the same , after
disposal of objections (restricted only to the manner of
implementation of the fresh policy), proceed to issue a
final seniority list of group A Class I Officers.
Thereafter respondents will publish a provisional seniority
list in the category of Commandant and equivalent posts
again after following such steps required in law, invite
objections and dispose of the same and finalise the
seniority in that category. This procedure can then be
carried upwards.
Having regard to the long litigation in the matter, we
are of the view that within four months from now, the steps
required for implementation of the policy will be completed,
and a provisional list of Asstt. Commandants, etc. group A
officers (Class I) will be issued and the final list be
prepared within three months thereafter after disposing of
objections. Then for the regular promotions to the post of
Commandants, etc. provisional list of Commandants etc.
category could be issued within four months of the
publication of the final list of Asstt. Commandants group A
(Class I), invite objections, dispose them of and finalise
the list. The same procedure could be followed upwards
expeditiously.
The above directions will dispose of all the matters
before us subject to certain specific directions which are
necessary in two matters, namely, T.P. 3\96 and t.P. 11\76
which we are being taking up separately. T.P. 3 of 1996:-
The petitioner filed the writ petition in the Allahabad High
Court in 1991 (W.P. 736\91). Petitioner passed the Civil
Services (Main Examination) 1979 and was appointed as Asstt.
Commandant Cadre on 6.6.1981. He joined on 22.6.81. The
1974 Rules were replaced by the 1981 Rules w.e.f. 8.5.81 in
650.1200 scale. The grievance of the petitioner is that the
1981 Rules were applied to him and he has treated as
belonging to group B (Class II), even though his appointment
letter says in para 1 that he will be governed, in respect
of matters not specifically referred to in the order, by
various other provisions, including the Railway Protection
Force (superior officers) Recruitment Rules 1974 and,
therefore he cannot be governed by the 1981 Rules. In that
writ petition, two officers who were appointed in 1985 in
group A filed impleadment application dated 10.5.91 and got
themselves impleaded application dated 10.5.91 and got
themselves impleaded as respondents 4,5.
Now the 1981 Rules clearly mention that Assistant
Commandant group A will be in scale 700-1300 and that the
Assistant Commandant group B will be in scale 650-1200.
From the order of appointment of the petitioner it is clear
that he was put in the scale of Rs. 650-1200 i.e. group B
Class II as per new Rules of 1981 and, therefore, it is
clear, he accepted the appointment in group B as per 1981
Rules. Petitioner cannot therefore rely on the clause
’1974’ Rules in the appointment order.
Learned counsel made a submission that the notification
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in which 1981 Rules were published used the words "except in
respect of things done or omitted to be done" and that he
was therefore governed by the 1974 Rules in respect of the
examination conducted in 1979 by virtue of the
advertisement. We are unable to agree. We do no have the
date of publication f the results etc. In out view, the
offer of appointment in the scale of Rs. 650-1200 is very
clear and was made on 6.6.81 and it was accepted by
petitioner without demur. We, therefore, do not find any
merit in this writ petition. In other petitioners
grievances have not been redressed and no DPCs were
conducted. It was suggested to counsel that the petitioner
could submit a fresh representation within one month and the
respondents could dispose of the same as early as possible.
We direct accordingly. In other respects the directions
given in the main judgment, to the extent relevant, apply.
All the matter are disposed of accordingly.