Full Judgment Text
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PETITIONER:
S.B.SARKAR AND ORS.
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT30/04/1990
BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
MISRA RANGNATH
CITATION:
1991 AIR 27 1990 SCR (2) 813
1990 SCC (3) 168 JT 1990 (3) 361
1990 SCALE (1)19
ACT:
Civil Services: Railways--South Eastern--Cadre of
ASM/SM--. Restructuring of--Existence of separate cadres
prior to 1983 and change over to combined system--Not the
same thing--Authorities to grant promotional benefits to SMs
who exercised option prior to 1983.
HEADNOTE:
In the South-Eastern Railway the cadre initially com-
prised of Assistant Station Masters at the bottom and the
Station Masters at the top. Initial appointment of ASM was
made in the scale of Rs.360-540. The promotional ladder
bifurcated into: (i) ASM to SM, and (ii) ASM to SM, both in
the scale of Rs.425-640 (non-selection), and then Rs.455700
(selection); before becoming one common source for promotion
to Deputy Station Superintendent/SM Rs.550-750 (non-selec-
tion) Rs.700800 Station Superintendent (selection), and
Rs.840-1010 Station Superintendent (non-selection). For
moving up the promotional ladder every ASM was required to
opt if he would proceed on the channel of ASM to ASM, or ASM
to SM.
Later, re-structuring was done in ’C’ and ’D’ cadres in
the scales, designation and percentage; in selection and
non-selection posts. Two alternatives were framed described
as alternative ’I’ for the combined cadre, and alternative
’II’ for the separate cadres; which were to be adopted by
the respective zones depending on the prevailing cadre
pattern. For ASM/SM two alternatives were provided to be
adopted by the respective zones depending on whether the
existing cadre was separate or combined. In alternative ’I’
meant for the combined cadre SMs in the scale of Rs.425-640
and Rs.455-700 were designated as Deputy Station Superin-
tendents and Station Superintendents in the scale of
Rs.540-750 and Rs.700-900 respectively.
Pursuant to the re-structuring, the Chief Personal
Officer issued a letter to the Divisional Manager, South
Eastern Railway that it has been decided that alternative
’I’ enunciated by the Board shall be followed on the said
railway, and the existing system of calling for options from
ASMs for the post of SMs/ASMs in the higher grade was being
dispensed with seniority of staff in each grade shall be
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determined on
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the basis of non-fortutious service rendered in such grade.
Since the aforesaid direction of the Chief Personnel
Officer worked to the prejudice of numerous persons who had
exercised their options to the promotional channel of Sta-
tion Master, they approached the High Court/Tribunal by way
of writ petitions/claim petitions but without any success.
Some of these disputes came up in appeal before this
Court which were disposed of on July 30, 1987 by directing
the Railway Board to consider if the Chief Personnel Officer
while implementing its scheme deviated from its terms, and
implemented it to the prejudice of those appellants.
The appellants-Station Masters of South/Eastern Railway
aggrieved by the implementation of the scheme of re-struc-
turing by the Chief Personnel Officer approached the Central
Administrative Tribunal, which rejected their claim, as the
implementation was beneficial to the majority, and further
found that the alternative ’I’ of the scheme meant for the
combined cadre was rightly adopted as the cadre of Assistant
Station Masters and Station Masters in the South-Eastern
Zone was combined before 1983.
The appellants in their appeal to this Court challenged
the correctness of the aforesaid findings and also claimed
that the implementation of the scheme was highly unjust and
inequitable. It was claimed that if alternative ’I’ was
adopted then it should have been given full play and the SMs
should have been placed en bloc in the re-designated posts
without any further process of selection.
Disposing of the appeal by directing that the respond-
ents shall grant promotional benefit to those 204 SMs who
have exercised option before 1983, this Court,
HELD: 1. It is not disputed that in the South Eastern
Zone the practice of obtaining option by ASM for promotional
channel was in vogue before 1983. The dispute was about the
time when it was exercised. According to the appellant it
was at the time of recruitment and appointment even on pain
of disciplinary action whereas according to the officials it
used to be offered when vacancy arose according to seniori-
ty. Unfortunately, it was accepted by the Tribunal as well
without any foundation in the record by shutting its eyes to
the letters dated 14th May, 1965 and 20th May, 1970, issued
by the Divisional
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Superintendent which shows that options were required to be
exercised by ASMs irrespective of availability of vacancy
before the target date, and if it was not exercised then
they were liable to disciplinary action. [818F-H; 819A]
2. Even the claim of the Administration that cadre of
ASM/SM was combined cadre in South East Railway was not
substantiated by any document, letter or order. On the other
hand, the letter dated 10th May, 1984 issued by Additional
District Pay Commissioner to the General Manager recognises
existence of separate cadre. [819F]
3. Existence of separate cadres prior to 1983 and chang-
ing over to a combined system is not the same thing as
claiming that the cadre which existed prior to 1983 was a
combined cadre. [820C]
4. Since the cadre in South Eastern Railway was a sepa-
rate one, the Chief Personnel Officer deviated from the
scheme by applying alternative ’I’ which was to be adopted
by a zone where combined cadre existed and if alternative
’I’ was adopted then the SMs should have been automatically
designated as Deputy Station Superintendents and they should
not have been subjected to the selection procedure. In
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alternative ’I’ SM in scale of Rs.425-640 automatically
stood redesignated as Deputy Station Superintendents. But
the scale does not find place in alternative II. But- both
the employees unions have accepted the implementation of the
letter of the Chief Personnel Officer as h is beneficial to
a majority of the employees. Therefore, it may not be dis-
turbed. At the same time all those 204 employees who had
opted before 1983 must be entitled to the benefit which
would have been available to them on their options. [820F-H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2054 of
1990.
From the Judgment and Order dated 23.1. 1987 of the
Central Administrative Tribunal, Calcutta in Transfer Appli-
cation No. 1263 of 1986.
A.P. Chatterjee, G.S. Chatterjee (NP) and Ms. Ratna
Bhattacharya for the Appellants.
R.B. Dattar (NP), Anil Dev Singh, B.K. Prasad, C.V.
Subba Rao and R.B. Misra for the Respondents.
816
A. Bhattacharya for the Intervener.
The Judgment of the Court was delivered by
R.M. SAHAI, J. Special leave granted.
Station Masters of South Eastern Railways are aggrieved
by implementation of the scheme of re-structuring by the
Chief Personnel Officer framed by the Railway Board for ’C’
and ’D’ cadre. Their claim was not accepted by the Central
Administrative Tribunal as implementation as such, was
beneficial to the majority. It was further found that alter-
native ’I’ of the scheme meant for the combined cadre was
rightly adopted as the cadre of Assistant Station Master
(ASM) and Station Master (SM) in the South Eastern Zone was
combined before 1983. The appellants have challenged cor-
rectness of these findings. They also claim that implementa-
tion of scheme is highly unjust and inequitable.
Prior to re-structuring the cadre comprised of Assistant
Station Masters at the bottom and Station Superintendent at
the top. Initial appointment of ASM was made in the scale of
Rs.360-540. The promotional ladder bifurcated into (i) ASM
to ASM and (ii) ASM to SM, both in the scale of Rs.425-640
(non-selection) and then Rs.455-700 (selection) before
becoming one common source for promotion to Deputy Station
Superintendent/SM Rs.550-750 (non-selection) Rs.700-800
Station Superintendent (selection) and Rs.840-1010 Station
Superintendent (non-selection). For moving up the promotion-
al ladder every ASM was required to opt if he would proceed
on the channel of ASM to ASM or ASM to SM. Re-structuring
was done in ’C’ and ’D’ cadres in the scales, designation
and percentage in selection and non-selection posts. Two
alternatives were framed described as alternative ’I’ for
the combined cadre and alternative ’II’ for the separate
cadres. They were to be adopted by the respective zones
depending on the cadre pattern prevalent there.
One of the principles visualised for group ’C’ was that
if all posts in an existing grade were en bloc placed in a
higher grade the existing regular incumbents thereof were to
be allowed the higher grade without subjecting them to any
selection. For ASM/SM two alternatives were provided to be
adopted by the respective zones depending on whether the
existing cadre was separate or combined. In alternative ’I’
meant for the combined cadre SMs in the scale of Rs.425-640
and Rs.455-700 were designated as Deputy Station Superin-
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tendents and
817
Station Superintendents in the scale of Rs.550-750 and
Rs.700-900 respectively. Therefore, the appellants claim
that if alternative ’I’ was adopted, then it should have
been given full play and the SMs who were working in the
aforesaid scales should also have been placed en bloc in the
re-designated posts without any further process of selec-
tion.
In pursuance of the re-structuring, the Chief Personnel
Officer issued a letter to the Divisional Manager, South
Eastern Railway that it had been decided that alternative
’I’ enunciated by ’the Board shall be followed on the South
Eastern Railway. It further provided that the existing
system of calling for options from ASMs for the post of SMs/
ASMs in the higher grade was being dispensed with and sen-
iority of staff in each grade shall be determined on the
basis of non-fortuitous service rendered in such grade.
Other paragraphs of the letter are not relevant for the
resolution of the present controversy. Since the direction
of the Chief Personnel Officer worked to prejudice of numer-
ous persons who had exercised their options to the promo-
tional channel of Station Master, they approached the High
Court or Tribunal by way of Writ Petition or Claim Petition
but without any success. Some of such disputes came up for
disposal before this Court in Civil Appeal Nos. 1536-41 of
1987 which were disposed of by order dated 30th July, 1987,
directing the Railway Board to consider if the Chief Person-
nel Officer while implementing the scheme deviated from its
terms and implemented it to the prejudice of those appel-
lants. Since it was conceded that the scheme did not affect
present status and emoluments, this Court then made it clear
that implementation should not be done to prejudice of
appellants. It further protected the interests of those who
due to wrong implementation might have got benefit by di-
recting that they shall not be disturbed. The direction
given by this Court was not complied with; therefore, con-
tempt proceedings were filed the hearing of which was de-
ferred till the disposal of the present appeals.
When these appeals were taken up for hearing, it tran-
spired that total number of employees of the appellants’
category were not more than 206. Therefore, the Court passed
the order on 26th JUly, 1989 that if relief was granted to
these 206 employees. by implementing the scheme in the
manner indicated in the earlier order of 1987, they shall be
satisfied and the litigation shall come to an end. But
nothing more was done and on 8th September, 1989 this Court
after heating learned counsel for the parties at great
length recorded that two questions were required to be
looked into: (i) if the cadre of ASM and SM was common or
different and (ii) if alternative ’I’ was adopted, then why
818
the SMs could not be re-designated and Deputy Station Super-
intendents and wanted response of the Administration about
them. On both these aspects an affidavit was filed by the
Chief Personnel Officer. Regarding the first, it is stated
that cadre of ASM and SM before restructuring was a common
one in South Eastern Railway for all ’intents and purposes’.
It is explained that separate cadre meant that the ASMs and
SMs would have sought their advancement separately, ’in a
way different from them in the entire non-gazetted cadre’.
And then ASM and SM had to combine again to work as Deputy
Station Superintendent/SM. In respect of automatic re-desig-
nation, the explanation is that eight different scales of
pay existing before re-structuring were reduced to six and
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designation of ASM in the scale of Rs.455-700 and SM in
scale of Rs.425-640, were abolished and the post belonging
to six revised designations have been distributed on the
prescribed percentage basis. It is further stated that
incumbents of the existing grades were promoted according to
their positions of seniority against the posts which were
available on percentage basis distribution. Therefore, the
contention of the petitioners that the Station Masters
should be automatically designated as Deputy Station Super-
intendent was not correct. According to the Chief Personnel
Officer the appellants along with’ others in accordance with
their seniority were required to be subjected to the proce-
dure of selection/suitability test as per procedure envis-
aged in the re-structuring scheme. The affidavit also at-
taches a letter from the Railway Board addressed to the
General Manager, reiterating that the implementation of the
scheme by the Chief Personnel Officer was as intended by the
Board.
Facts as they ultimately emerge do not appear to have
been adequately indicated in the affidavit of the senior
officer even when the aspects were pointedly indicated by
this Court. It is not disputed that in the South Eastern
Zone the practice of option by ASM for promotional channel
was in vogue before 1983. Dispute is about the time when it
was exercised. According to appellant it was at the time of
recruitment and appointment even on pain of disciplinary
action. And option once exercised was irrevocable. Whereas
according to officials it used to be offered when vacancy
arose according to seniority. Unfortunately it was accepted
by the Tribunal as well without any foundation in the record
by shutting its eyes to various letters which clinch the
issue in favour of the appellants, for instance the letter
dated 14th May, 1965, and 20th May, 1970, issued by the
Divisional Superintendent Railway filed before Tribunal,
produced along with supplementary affidavit shows that
options were required to be exercised by ASMs irrespective
of availability of vacancy before the target
819
date and if it was not exercised then they were liable to
disciplinary action. And options, for or against could not
be changed when once exercised. Where it was not exercised
on or before the date it was deemed to have been opted for
ASM to SM. No effort was made to meet these letters; yet an
affidavit was filed that option was exercised when vacancy
arose.
Options was thus exercised by appellants at the stage of
appointment and recruitment. But it appears to have resulted
in dissatisfaction because even though the pay scales were
identical those who became SM were entrusted with superviso-
ry control and administrative responsibility. For this the
ASM recruited in the same batch must have been unhappy. And
the SM must, also, have had the grievance as promotion in
higher scale was obviously delayed because the post of SM
must have been fewer in number as compared to ASM. There-
fore, it was rightly abolished and was hailed by the two
unions of employees. But what happened to those who due to
irrevocable option exercised prior to 1983 had been waiting
for moving up and due to abolition of option and implementa-
tion of the alternative ’I’ lost the opportunity while ASMs
junior to them availed it? No provision for them was made.
Even in this Court despite repeated directions, the Chief
Personnel Officer or the Administration instead of resolving
it have taken an uncharitable stand by asserting that those
who opted for promotional channel of SM having enjoyed
benefit of day duty and supervisory control on their own
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volition cannot be compared with ASMs whose working condi-
tions were different. That is a person who worked with
greater responsibility, and under strain must suffer. What
is surprising is that such unreasonable stand is supported
even by the Board by relying on ’intents and contents’.
Even the claim of the Administration that cadre of
ASM/SM was combined cadre in South East Railway was not
substantiated by any document, letter or order. On the other
hand, from letter dated 10th May, 1984 issued by Additional
District Pay Commissioner to General Manager recognises
existence of separate cadre:
"It is evident from the details furnished in the enclosure
to your above quoted letter that your Railway had a separate
cadre for ASMs/SMs and a decision had been reached prior to
the issue of the restructuring orders No. PC. III/80/ UPG/19
dated 29.7.83 to switch over to a combined cadre, except
where in respect of any cadre or cadres avenues of advance-
ment have been prescribed by this Ministry, laying
820
down avenues of promotion in respect of non-gazetted Railway
staff, is within the competence of the General Managers of
the zonal railways. Since the matter has been processed on
your railway in consultation and agreement of the two recog-
nised Trade Unions in the permanent Negotiating Machinery,
the action by your Railway to switch over to a combined
percentages scheme is within your powers. ’ ’
Existence of separate cadres prior to 1983 and changing over
to a combined system is not the same thing as claiming that
the cadre which existed prior to 1983 was a combined cadre.
Explanation in the affidavit while replying to the issue as
to whether the cadre of ASM and SM was common or a different
cadre is given thus:
"The Railway Board’s letter dated 10.8.84 refers to only
merging these two grades which should not mean that the
cadre was separate. In other words, the Railway Board’s said
letter means that the action of the Railway to combine the
two grades also is in order and it does not imply that the
entire cadre was separate."
It cannot be accepted either as correct or satisfactory.
Cadres of ASM/SM before 1983 was separate and different.
With abolition of option it has become one. The letter of
the Railway Board required revised percentages prescribed
for the category depending on whether the existing cadre
structure was a combined one or a structured one. Since the
cadre in South Eastern Railway was a separate one, the Chief
Personnel Officer deviated from the scheme by applying
alternative ’I’ which was to be adopted by a zone where
combined cadre existed.And if alternative ’I’ was adopted
then the SMs should have been automatically designated as
Deputy Station Superintendents and they should not have been
subjected to the selection procedure.The explanation in the
affidavit of Chief Personnel Officer that the grade Rs.
425-640 having been abolished as a consequence of restruc-
turing is not acceptable. In alternative ’I’ SM in scale of
Rs.425-640 automatically stood redesignated as Deputy Sta-
tion Superintendent. But the scale does not find place in
alternative ’II’. But both the employees unions have accept-
ed the implementation of the letter of Chief Personnel
Officer as it is beneficial to a majority of the employees.
Therefore, it may not be disturbed. At the same time all
those 204 employees who had opted before 1983 must be enti-
tled to the benefit which would have been available to them
on theft options.
821
In the result this appeal is disposed of by directing
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that the respondent authorities shall grant promotional
benefit to those 204 SMs who had exercised options before
1983 in the same manner as it would have been if option had
not been abolished in accordance with the earlier procedure
provided they fulfilled the other requirements. While doing
so those who had been promoted shall not be disturbed as
directed by this Court on 30th July, 1987. Further if as a
result of this exercise posts in higher grade fall short,
the respondents shall create adequate number of additional
posts to overcome the difficulty. The respondents are fur-
ther directed to complete all this exercise within six
months. Persons promoted in pursuance of this order shall be
entitled to all consequential benefits from the due dates.
Appellants shall be entitled to consolidated costs which are
assessed at Rs.5,000 to be payable by respondent No. 2.
N.V.K Appeal disposed
of.
822