Central Administrative Tribunal - Delhi
Sh. Ram Shankar Shukla vs Union Of India on 11 October, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No. 2145/2009
Reserved on: 12.09.2013
Pronounced on: 11:10.2013
Honble Shri G George Paracken, Member (J)
Honble Shri Shekhar Agarwal, Member(A)
1. Sh. Ram Shankar Shukla
2. Sh. Rakesh Kumar Sinha
3. Sh. Sunil Bhardwaj
4. Sh. Vidya Dhar Sharma
5. Sh. Bibekananda Rath
6. Sh. Rajesh Kumar
7. Sh. Parveen Kumar
8. Sh. Harish Chander
9. Sh. Sayed Hasan
10. Sh. R.K. Bhandari
11. Sh. Subrata Banerjee
12. Sh. Sanjay Gauri
13. Sh. Devasia Joseph
14. Sh. Sanjay Manocha
15. Sh. Nirbhay Pratap Singh
16. Sh. Umesh Kumar Tiwari Applicants
By Advocate : Sh. C. Hari Shankar
Versus
1. Union of India
Through Secretary,
Ministry of Railways,
Rail Bhavan,
New Delhi.
2. Union of India
Through Secretary,
Department of Personnel & Training,
Ministry of Personnel, Public Grievances & Pensions,
North Block, New Delhi.
3. Union Public Service Commission,
Through Secretary, UPSC,
Dholpur House, Shahjahan Road,
New Delhi.
4. Sh. Paramjit Singh,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi.
5. Ms. Bimla Seth,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi.
6. Sh. A.K. Dewani,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi.
7. Sh. V.K. Mody,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi.
8. Ms. Majinder Kaur,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi.
9. Ms. Janki Ramesh,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi.
10. Ms. Kanchan Bala Jain,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi.
11. Ms. Manmohan Kaur,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi.
12. Sh. A. Gopalakrishnan,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi.
13. Ms. Saroj Bala Gandhi,
Principal Private Secretary,
Railway Board, Rail Bhavan, New Delhi.
14. Ms. Anita Malhotra,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi.
15. Sh. P.K. Vaid,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi.
16. Sh. P.K. Dua,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi.
17. Ms. Veda Thakur,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi.
18. Ms. Usha Gopalakrishnan,
Principal Private Secretary,
Railway Board, Rail Bhavan, New Delhi.
19. Sh. S. Sridhar,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi.
20. Ms. Indu Chopra,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi.
21. Sh. M. Rajagopal,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi.
22. Sh. B. Mohanan,
Principal Private Secretary,
Railway Board, Rail Bhavan,
New Delhi. Respondents
By Advocate : Sh. Shailendra Tiwary and Shri Rajinder
Khattar.
O R D E R
By Honble Mr. G. George Paracken, Member (J) This case was earlier dismissed by this Tribunal vide order dated 22.01.2010. The operative part of the said order reads as under:-
8. They have further explained that consequent upon acceptance of the 4th CPC recommendations by the Government, the pay scale of Grade-A Stenographers of RBSSS (Rs.650-1200) and Grade B (Rs.650-1040) were merged and a common pay scale of Rs.2000-3500 was given to them with effect from 01.01.1986. Thus, from 1.1.1986 both the grades stand merged. The Stenographers working in the revised pay scale of Rs.2000-3500/- i.e. (Grade A & B merged) used to be designated as Sr. Personal Assistant. Subsequent to the revision of the nomenclature of various Grades of RBSSS, the Sr.PA which was equivalent to the Grade A & B merged were revised as Private Secretary. Now the stenographers Grade-C who were earlier promoted to the Grade-B are being promoted to the post of Private Secretary which is equivalent to the Grade A & B merged. Such promotion is made in terms of para 3 of the 5th Schedule to RBSSS Rules, 1971. They have thus stated that private respondents have rightly been included in the eligibility list vide Notification dated 9.7.2007 because Grade-A and B stood merged and they had completed more than 8 years as P.S.
9. Moreover this practice was followed for preparing the panel for the year 2000-01. The list finalized by UPSC contained the name of an officer from RBSSS also, i.e. Smt. Anita Gautam. It is thus clear that even UPSC had agreed to the inclusion of officers of RBSSS in the zone of consideration for being considered for promotion to the Grade-I of RBSS. The same practice was followed this time also, but since large number of representations were received from individuals as well as Association protesting against inclusion of Private Secretary in the zone of consideration of Grade-I of RBSS, the same was examined but no irregularity was found. Accordingly, their representations were rejected. Similarly number of applications under RTI were also received, therefore, a decision was taken to grant exemption to the PSs for being considered for promotion to Grade-I of RBSS. The notings of the file were not provided to the applicants as the said file related to the proposal for finalization of the Grade-I panels with UPSC which is pending. They have stated that in the meantime private respondents from Sl.No.4 to 9 Shri Paramjeet Singh, Ms. Bimla Seth, Shri A K Diwani, Shri V K Modi, Ms. Manjinder Kaur, Ms. Janki Ramesh, Ms. Kanchan Bela Jain & Ms. Manmohan Kaur have been regularly promoted as PPS on the basis of recommendation of the UPSC and the names have been circulated vide O.O. No.49 of 2009 (Annexure-I), as such they are not eligible for being considered for promotion to the Grade-I. Accordingly, UPSC is being requested to delete their names from the zone of consideration. In view of the facts as explained above, they have prayed that the OA may be dismissed.
10. Counsel for the private respondents adopted the arguments advanced by the official respondents.
11. We have heard all the counsel and perused the pleadings as well.
12. Since promotion to the post of Under Secretary/Deputy Secretary is governed by Rule 8 (3) of RBSS Rules, it would be relevant to refer to the said rule, which for ready reference reads as under:-
8. Recruitment to selection Grade and Grade-I:- (i) vacancies in the Selection Grade shall be filled by promotion of permanent officers of Grade-I who have rendered not less than 5 years approved service in that grade and are included in the Select List for the selection prepared under sub-rule (5).
xxx xxx xxx xxx xxx xxx $(2) Omitted.
*** (3) Vacancies in Grade-I shall be filled by promotion of permanent officers of the Section Officers Grade who have rendered not less than eight years approved service in that grade and of permanent officers of the Grade-A of the Railway Board Secretariat Stenographers Service who have rendered not less than eight years approved service in that grade and have worked as Section Officers for at least a period of one year in accordance with the proviso to rule 6 and are included in the Select List for Grade-I of the Service prepared under sub-rule (5):
*** Amended vide ERBI/70/9/3 dated 1.12.1973, ERBI/79/37/1 dated 20.4.1979 and ERBI/7937/4 dated 7.4.80.
Provided that an officer of the Grade-A of the Railway Board Secretariat Stenographers Service who has not worked as a Section Officer for the said period of one year shall also be considered for promotion to Grade-I if he is otherwise eligible for such promotion and the Central Government in the Ministry of Railway, for reasons to be recorded in writing, are satisfied that such a person was not appointed to the Section Officers Grade owing to exigencies of service.
13. Perusal of the rule shows that permanent officers of the Section Officers grade in RBSS and Private Secretaries of the Railway Boards Secretariat Stenographers Service (RBSSS), both are eligible to be considered provided RBSSS Officers they have rendered not less than 8 years approved service in that Grade-A and have also worked as Section Officer for one year in accordance with the proviso to Rule 6. However, proviso comes to the rescue of officers of RBSSS as it stipulates that even if an officer of Grade-A of RBSSS has not worked as Section Officer for one year, he can still be considered for promotion to Grade-I if he is otherwise eligible for such promotion provided the Central Government in the Ministry of Railways, for the reasons to be recorded in writing, are satisfied that such a person was not appointed to the SOs Grade due to exigencies of service.
14. In view of above rule, we are called upon to see whether the private respondents had put in 8 years of regular service in Grade-A of RBSSS and whether there was any satisfaction recorded by the Ministry of Railways that these persons could not be posted as SO due to exigencies of service.
15. As far as their appointment to Grade-A Service is concerned, it is correct that initially these private respondents were appointed to Grade-B but respondents have explained that Grade-A and B of RBSSS were merged with effect from 1.1.1986 and were placed in the common pay scale of Rs.2000-3500. There was no distinction between Grade-A and Grade-B thereafter. Not only Grade-A and B were merged as P.S. Moreover, Grade-C Stenographers who were earlier considered for Grade-B are not considered for promotion to Grade-A and B merged. From 1986, Grade-A and Grade-B both are known as Private Secretary. In view of above, it cannot be stated that the private respondents do not fulfill the criteria of having rendered 8 years of approved service in Grade-A.
16. The second requirement as per Rule 8 (3) was that they should have worked as Section Officer for one year but there is exception to this also in the proviso that Grade-A officers of RBSSS would be considered if they could not be posted as SO due to exigency of service. In the instant case, admittedly none of the private respondents had worked as Section Officers. Applicants whole case is that no exemption was granted to the private respondents in writing before issuing the eligibility list whereas respondents have stated that they could not be posted as Section Officer due to exigencies of service. In order to ascertain the facts, we had summoned the records of the Railways. Perusal of the file shows that after the eligibility list was issued, a large number of representations were given by the affected persons which were examined by the authorities and ultimately the Secretary, Railway Board, had recorded as follows on 14.8.2007:-
It is a well known fact due to the administrative compulsions it has not been possible to appoint PS to work as SO for one year. There is nothing fictitious about this real problem of the administration. As is the practice, the names of PSs should be included in the years 2002-03, 2003-04 and 2004-05.
The above said note was approved by the Member (Staff), Railway Board, New Delhi also.
It is thus clear that it was recorded at the level of Secretary that the P.S. of RBSSS, could not be posted as SO due to administrative difficulties. Moreover, while sending proposal to the UPSC, it was certified in the draft letter at para 3 that none of the PSs could be appointed to work as SOs for a period of one year due to exigencies of service. It is thus clear that though on the date when list of eligibility was issued, i.e., 9.7.2007, there was no such recording by the Railway Board, but subsequently after examining the whole issue, it was duly certified that PS could not be appointed to work as SO due to the administrative problems. The private respondents case would thus be covered under the proviso to Rule 8 (3)
17. In these circumstances, since on the date of issuance of eligibility list, the satisfaction was not recorded, we could have quashed the circular dated 9.7.2007 and given liberty to the respondents to issue a fresh eligibility list but that would be a futile exercise in view of the fact that subsequently the issue had gained attention of the authorities and they had in fact certified that these persons could not be appointed as SO for one year due to exigencies of service.
18. We, therefore, find no good ground to interfere in the matter. The OA is accordingly dismissed. No costs.
2. Applicants challenged the aforesaid order before the Honble High Court of Delhi vide Writ Petition No.3280/2010 and the Honble High Court, vide its judgment dated 01.09.2010, set aside the aforesaid order of this Tribunal and remanded the OA with a direction to decide it afresh. The operative part of the said order reads as under:-
15. The question which arose before the Tribunal was whether without carrying out the necessary amendments in the RBSSS Rules 1971 in respect whereof it was cautioned vide office order dated 18.6.1991 (vide last paragraph thereof) that the rules need to be amended. Additionally the question whether merely because Stenographers Grade B and Grade A were merged in the same pay-scale which happened to be the pay-scale applicable to Grade A posts could it be said that Stenographers Grade B (till 4th Pay Commission Recommendations were implemented) could be treated as having approved service in the grade (the requirement of Rule 8(3) of the RBSS Rules) by reckoning their service rendered as Stenographers Grade B prior to 1.1.1986. This was the first question which arose and in respect thereof we note that the Tribunal has noted the contention of the petitioners in para 4 as under:-
4. They have specifically stated that the private respondents were appointed as Grade B? in the RBSSS. In order to substantiate his arguments, learned counsel for the applicants invited our attention to page 95 at 112 to show that as per the Railway Board Secretariat Stenographers Service Rules, 1971, under the 5th Schedule para 3 deals with only maintenance of Select List of Grade-B. The private respondents were appointed as per the select list of Private Secretaries in terms of clause (a) of sub-para (1) of Regulation 3 of Fifth Schedule to the Railway Board Secretariat Stenographers Service Rules, 1971 (page 136). They have thus submitted that since the private respondents were appointed against Rule 3(1)(a) of the Fifth Schedule to the RBSSS Rules 1971, it is clear that the respondents were promoted only to Grade-B.
16. The Tribunal has simply held that with the recommendations of the 4th Central Pay Commission being implemented, Stenographers were placed in the pay-scale of Rs.2000-3500 and hence would be treated as in Grade A.
17. Learned counsel for respondents No.1 to 3 conceded that the Tribunal has twisted the submission urged by the petitioners who were the applicants before the Tribunal and has ignored the legal position noted by us in paras 2 to 6 above and with reference to the same we find that the Tribunal has just not decided what would have to be treated as rendering approved service in the Grade. Further, the Tribunal has not dealt with the consequence of the RBSSS Rules not being amended as was required to be done in terms of the office order dated 18.6.1991.
18. Since we are remanding the matter to the Tribunal with a direction to deal with the issues which arise for consideration and as noted by us herein above, we speak no further except to note as aforesaid to bring out the legal issue No.1.
19. The second issue which arose for consideration before the Tribunal was whether the Proviso to Rule 8(3) of the RBSS Rules stood complied with. As noted above, Stenographers Grade A were eligible to be inducted in Grade I if they had worked for one year as Section Officer which could be waived upon proof of a person otherwise eligible, not having worked as a Section Officer on account of exigencies of service.
20. The Tribunal has returned a finding in favour of the private respondents and we find that in so doing, the Tribunal has ignored a plethora documents and especially the office note dated 30.7.2007 which the petitioners obtained through an RTI query which shows that the office was aware that as a ritual it was being treated that Stenographers were not being posted as Section Officers and was being so recorded.
21. The Tribunal has gone by a note dated 14.8.2007 penned by the Secretary Railway Board, in respect whereof there is a controversy for the reason the Secretary Railway Board has referred to the exigencies of service with reference to a quota available for Stenographers to be promoted as Section Officers which issue became redundant when the quota was abolished in the year 1971.
22. We do not know what would be the corresponding pages of the record of OA before the Tribunal, but we note that there are serious issues relating to the factual situation arising out of the notings from page No.407 to 436 of the record of the instant writ petition and in respect whereof it needs to be adjudicated whether there was any basis for the respondents No.1 to 3 to enblock record that on account of exigencies of service Stenographers could not be posted as Section Officers. It be noted that the Tribunal has not noted any objected fact with respect whereto it could be said that on account of exigencies of service Stenographers could not function as Section Officers.
23. Like on the first issue, we speak no more on the second issue for the reason we find that the Tribunal has not adverted to the factual matrix before it and has rendered a perfunctory finding.
24. We dispose of the writ petition by setting aside the impugned order dated 22.1.2010 and remand the matter before the Tribunal with a direction that OA No.2145/2009 shall be decided afresh.
25. At the remanded stage the Tribunal would settle the issues required to be adjudicated upon and after noting the relevant rules applicable, the facts which stand attracted thereto and culling out the legal norm applicable giving reasons for the same, would thereafter decide the matter with logical reasoning.
26. No costs.
3. We have, therefore, re-heard this OA in great detail as the Honble Members who heard this case have already demitted their office.
4. The main contention of the Applicants is two-fold. According to them, the following 2 conditions prescribed in the Recruitment Rules have not been fulfilled by the private Respondents for their consideration for promotion to the post of Under Secretary/Deputy Director in the RBSS:-
8 years of approved service in Grade A of RBSSS.
1 years working as SO in the RBSS as per proviso to Rule 6.
5. As regards the first condition of 8 years approved service in Grade A of the RBSSS is concerned, they have stated that the appointment orders of the Private Respondents, copies of which are annexed with this OA, show that they were appointed as Grade B and not Grade A Officers. Later in their service also, they have never been appointed on Grade A. Further, the order dated 18.06.1991 on which the Respondents rely cannot apply as it has been stated in its foot note that necessary amendments in RBSSS Rules would be issued separately but admittedly no such amendments have been carried out till date. Therefore, no merger of Grades A and B of the RBSSS have actually taken place. Moreover, the RBSSS Rules, 1971 themselves continue to show PSs in Grade B. Therefore, the inclusion of their names in the zone of consideration was violative of sub-rule (i), sub-rule (iii) and proviso of Rule 8 of the Railway Board Secretariat Service Rules, 1969. In other words, in the face of the aforesaid statutory rules, mere revision of the nomenclature of various grades of Secretariat Stenographers Service by the executive order dated 18.06.1991 of the Railway Board has no consequence particularly when the provision contained in the said order that the necessary amendment in the RBSSS Rules would be made in due course itself has not been carried out and the Respondents themselves have admittedly that no such amendment has been carried out. The said order is reproduced as under:-
GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD) RB90G1/2RB-2 New Delhi, Dt:18.06.1991 ORDER Sub: Revision of nomenclature of various grades in Railway Board Secretariat Stenographers? Service.
The question of revision of the existing designation of the four grades of Central Secretariat Stenographers Service (CSSS) as they do not truly represent the functions and status of the posts have been under consideration of the Ministry of Personnel, Public Grievances & Pension (Department of Personnel & Training) for some time past. The matter has also been raised by the staff side before the Departmental Council (JCM) and discussed in its meeting.
The matter has been considered carefully in the Deptt. of Personnel and Training in the light of discussions held in the meetings of the Departmental Council and other relevant material.
Based on the above decision of the Department of Personnel and Training, it has been decided that the revised designation of the four grades of RBSSS will be as follows:
________________________________________ No. Grade & Scale Existing Revised of Pay Designation Designation P.S. Grade Private Secretary Principal Private (Rs.3000-4500) Secretary Gr.A&B (Merged) Sr.Personal Assistant Private Secretary (Rs.2000-3500).
Assistant. Gr. C? Personal Assistant Personal Assistant (Rs.1640-2900) Gr. D? Stenographer Stenographer (Rs.1200-2040) _______________________________________________________________
The necessary amendment in the RBSSS Rules would be made in due course. The above decision will be effective from the date of issue of DOP?s OM No.20/32/89-CS.II) dt. 15.5.91. Sd/-
(O.P. Khanna).
6. In this regard, they have relied upon the judgment of the Honble High Court of Delhi dated 10.09.2010 in W.P. ( C) 2623-29/2004 Director of Accounts and Others VS. Anil Kumar Mehra and Others wherein it has been held that without framing the appropriate rules, merging and de-merging of the cadre cannot be given effect to. The relevant part of the said order reads as under:-
17. In the decision reported as 2003 (2) SCC 632 P.U.Joshi & Ors. Vs. Accountant General Ahmedabad & Ors. it was held:-
The State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing the existing cadres/posts and creating new cadres/posts.
18. Suffice would it be to state that none can dispute the power of the Government to bifurcate a cadre as also amalgamate departments and cadres, posts etc. but by and under appropriate rules.
19. The reason why appropriate rules have to be framed is that mergers and de-mergers of cadre affect the rights of the employees concerned and these rights are governed by the Rule of Law. As in the instant case, some employees on the cadre strength of the Cabinet Secretariat would be de-merged from their cadre and then would be amalgamated in the cadre under the Ministry of Home Affairs. The necessity of the Rules would be in light of the law laid down by the Supreme Court reported as 1981 (4) SCC 130 State of Maharashtra Vs. Chandrakant Anant Kulkarni, wherein pertaining to merger of cadres it was held that the principles for effecting integration would be requiring equation of posts on the principles:-
(1) where there were regularly constituted similar cadres in the different integrating units the cadres will ordinarily be integrated on that basis but (2) where there were no such similar cadres, the following factors will be taken into consideration in determining the equation of posts: (a) Nature and duties of a post; (b) Powers exercised by the officers holding a post, the extent of territorial or other charge held or responsibilities discharged; (c) The minimum qualifications, if any, prescribed for recruitment to the post and; (d) The salary of the post."
20. In the decision reported as 1987 (Supp) SCC 257 Inder Singh & Ors. Vs. Vyas Muni Misgra & Ors. it was held:-
Merger or bifurcation of a cadre is an executive act and normally the Court does not deal with it. It is for the State to consider whether two groups of persons working under two distinct posts perform the same kind of duties or not and whether in implementing the directive principle, as contained in Article 39(d) of the Constitution, it is necessary to merge these two posts into one cadre or post. If the State Government is of the view that it is necessary that there should be a merger of the two posts into one post, the State Government has to take steps in that regard by framing proper rules with regard to seniority, promotions, etc. But, when two groups of persons are in the same or similar posts performing same kind of work, either in the same or in the different Government departments, the Court may in suitable cases direct equal pay by way of removing unreasonable discrimination and treating the two groups, similarly situated, equally.
21. In the decision reported as 1998 (4) SCC 598 S. P . Shivprasad Pipal Vs. Union of India & Others, it was held:-
Under Article 309 of the Constitution the legislature is empowered to regulate the recruitment and conditions of service of persons appointed to public post in connection with the affairs of the union or State. The proviso to Article 309, however, empowers the President, in the case of services and posts in connection with the affairs of the union to make rules regulating the recruitment and conditions of services of persons appointed to such services and posts until provision in that behalf is made or under an Act of the appropriate legislature. The power to regulate recruitment and conditions of service is wide and would include the power to constitute a new cadre by merging certain existing cadres.
22. Learned counsel for the petitioners did not dispute that no rules have been framed to effect de-merger within the Cabinet Secretariat and further, no rules have been framed for the merger of the staff under the Cabinet Secretariat in the cadre under the Ministry of Home Affairs. Further, learned counsel conceded that no options were sought from the respondents of the three captioned writ petitions before they were transferred under the Ministry of Home Affairs.
23. What has happened is, as noted in para 7 above, the respondents, in the absence of any rules, are being treated as the junior most officers against the respective posts held by them under the Ministry of Home Affairs. This brings out the facet that unless appropriate rules are framed the transfer of the respondents would be in violation of their Constitutional Rights guaranteed under Article 14 and 16 of the Constitution of India.
24. The writ petitions are accordingly dismissed.
25. The petitioners shall pay costs to the respondents of the three writ petitions which we quantify to be Rs.5,000/- in each writ petition.
7. As regards the second condition of one years working as SO in the RBSS is concerned, the Applicants have argued that the position of the Official Respondents that they have been granted exemptions under the proviso to Rule 8 of the RBSS Rules is contrary to the facts. They have further stated that the notings in the file reveals that, the official Respondents have granted the benefit of the Proviso to Rule 8 (3) of the RBSS Rules in a fraudulent manner. The Respondents have suppressed the aforesaid vital facts with regard to the condition of eligibility of the RBSS for inclusion of their names in the zone of consideration prescribed in proviso to Rule 6 of the RBSSS. It was only later that the Applicants could get the information under Right to Information Act, 2005 and as per the said information now made available to them, it has been revealed that the Secretary, Railway Board observed vide his notings dated 14.8.2007 that the Respondent-Railways have given fictitious statement of exigency for inclusion of their names in the Zone of Consideration which is a matter of serious concern. In this regard, following notings in the departmental file are relevant:-
4. The other issue is relating to inclusion of Private Secretaries in the Zone of Consideration, which has been vehemently opposed by the Association and the officers. We have included the PSs in the ZOCs as per the practice followed in the past. In this regard, we have received some time back an important letter from Secretary, DOP&T addressed to Chairman, Railway Board dated 04.01.2007 (S.N.31). If this letter is perused and the relevant RBSS rules (which are exact replica of CSS Rules) are read carefully, an entirely different scenario emerges and our practice of including the PSs in the ZOCs for their promotion to Grade-I(US/DD) becomes contrary to the practice being followed in CSS. 5. The Railway Board Secretariat Service (RBSS) and Railway Board Secretariat Stenographer Service (RBSSS) are two distinct services with different Recruitment Rules (i.e. RSBB Rules, 1969 and RBSSS Rules, 1971) and having different hierarchy/avenue channel of promotion (AVC). In RBSS Rules, 1969, the prescribed AVC is Assistant - Section Officer Grade-I (UD/DD) Selection Grade (DS/JD). Further grades are not yet part of Rules. In RBSSS Rules, 1971, the present AV is Stenographer Grade D Grade C Grade B Grade A. From 4th CPC, i.e., from 01.01.986, the Grade B and Grade A got merged and called as PS. Subsequently, further grades, i.e, PPS Sr. PPS were created. The new grades and new designations are not yet part of the Rules.
XXX XXX XXX 6. However, as per the practice followed in Railway Board, the Grade A (now Grades A and B merged as PS) were included in the ZOC for promotion to Grade-I(US/DD) even though they were never posted as Section Officer for a period of one year, which is a mandatory eligibility condition. On perusal of the past records, it is found that while sending the proposals to UPSC for formation of the Grade-I(US/DD) regular panel, a sentence was mentioned on the covering letter stating none of the Private Secretaries included in the ZOC could be posted as Section Officers due to exigencies of work in the cadre of PS. Such sentence was mentioned to make the PSs eligible in terms of proviso to Rules 8(3) which states that an officer of Grade A of RBSSS who has not worked as SO for the said period of one years shall also be considered for promotion to Grade-I(US/DD), if he is otherwise eligible and the Ministry of Railways, for reasons to be recorded in writing, are satisfied that such person was not appointed to the Section Officers Grade owing to exigencies of service. In this proviso kind attention is drawn towards the term not worked as SO for a period of one year. This term is with reference to posting of Grade A Steno as SO under Rule 6. The term not appointed to SO Grade is with reference to their permanent appointment to the post of SO against Stenographers quota under Rule 9(3), when he was in Grade B. Thus, a RBSSS Grade A Officer with 8 years of approved service in this grade who could not be posted as SO for one year and if the same officer, when he was working in Grade B post of RBSSS, could not be appointed as SO under Rule 9 (3), due to exigencies of service, can only be made eligible for promotion to Grade-I(US/DD) under this proviso.
7. After the RBSSS Rues, 1971 came into being, the Stenographers quota of two posts in SO Grade stood de-reserved. Thereafter the question of non-appointment of Steno B as SO, against steno quota owing to exigencies of service, can never occur as the Steno quota itself got deserved. Hence, the proviso under Rule 8 (3) became redundant after the Steno quota got dereserved. The rule position that remains thereafter is that Grade A RBSSS Officers (now PS) to become eligible for being considered for inclusion in the ZOC for Grade-I (US/DD) should have worked as Section Officer for a period of one year, besides having 8 years of approved service in Grade A (PS). In para 3 of the letter of Secretary, SOP&T the similar position obtaining in CSS is mentioned and in order to make the PSs eligible for being considered for their promotion to Grade-I (US/DD), it has been requested in the letter that the PSs may be posted as Section Officer. This Condition of one year experience as SO cannot be waived off by making a fictitious statement of exigency which in fact was related to their permanent appointment as SO against Steno quota, abolished long ago, and not related to their posting as SO for one year. However, Grade A (PS) without having the experience as SO for one year continued to be included in the ZOC for promotion to US/DD by using this fictitious sentence on exigency on the cover letter sent to UPSC.
10. In the above back ground, the file is submitted for a decision on the following:-
(a) As per RBSS Rules, the experience of working as Section Officer for a period of one year is a mandatory eligibility condition for inclusion of PSs in the ZOC for their promotion to Grade-I (US/DD). Since none of the Private Secretaries, included in the ZOCs circulated for the year 2002-2003, 2003-04 and 2004-05, have the requisite experience of working as SO, we may remove their names from ZOCs. OR
(b) We may continue with the past practice according to which the names of PSs have been included in the ZOCs for the year 2002-03, 2003-04 and 2004-05 already circulated. In that case we have to certify the exigencies, though non-existent while sending the proposals to UPSC.
XXX XXX XXX The PSs were made eligible in the past for lateral induction by making a statement to the UPSC that they could not be appointed as Section Officer due to exigency of services. This action was not in consonance with the extant rule. The provision for exigency in the rules was not relevant to their posting as Section Officer for one year rather it was related to their permanent appointment as Section Officer against Stenographers quota, which had already been abolished sometime in 1971 (Pl. refer to Rule 9(3) of RBSS Rule, 1969).
From the letter of Secretary, DOP&T dated 04.01.2007 it is clear that in CSS, Private Secretaries are not considered for induction into Grade-I unless they were posted as Section Officer for the requisite period. As such we may implement RBSS Rules/Regulations mentioned above meticulously, in letter and spirit so as to obviate any misinterpretation of the same and its implementation at a subsequent stage. This will ensure dispensation of justice to all by the Administration.
With reference to item (iv) of para 1 above, the issue has already been resolved and revised procedures effective from 1.1.1989 have made the term substantive appointment redundant and all regular promotions are made against regular vacancies only.
In regard to item (v) of para 1 above, it has already been decided to pend the formation of regular panels from 2005-2006 onwards. As and when these panels are formed, the reserved candidates if eligible, will be considered against unfilled vacancies for reserved category.
Item (vi) of para 1 is being taken care of from records available in ERB-I section.
May kindly see and approve.
Sd/-
JS(G) 08.08.07 Secretary, RB: It is most unfortunate to observe that the note of the section and that of JS(G) are a complete distortion of the rules and also betray a pronounced bias in favour of one group. Is this dispensation of justice to all by the administration?. I am afraid that such a biased approach can only lead to miscarriage of justice.
In order to justify inclusion of PS, from the ZOC, the sections note has wrongly stated that the _______(not legible) under section 8(3) has become defunct after the Steno quota got de-reserved. This is a complete misinterpretation. An objective reading of Rule 9(3) and Rule 8(3) would show that whereas 9(3) relates to the two permanent posts reserved for the RBSSS, Rule 8(3) spells out the procedure for filling up the duty posts for Grade I. I sincerely hope that the gross misinterpretation of the rules elaborated in para 6 of the sections note is a genuine mistake and not anything else.
I also take strong objection to the observation that the administration had resorted to a fictitious statement of exigency. It is a well know fact that due to the administrative compulsions, it has not been possible to appoint PSs to work as SOs for one year. There is nothing fictitious about this very real problem of the Administration.
As is the practice hitherto, the names of PSs should be included in the ZOCs for the years 2002-03, 2003-04 and 2004-05.
Sd/-
14.08.07.
8. Further, they have relied upon the various Railway Boards Office Orders issued on 21.12.1993, 25.3.1994 and 05.04.1994 to show that the private respondents have been included in the select list of Private Secretaries grade of RBSSS only in the year 1994. In terms of Rule 11(4) of the Railway Board Secretariat Stenographers Service (Second Amendment) Rules, 1977, the procedure for preparing and revising the select list for Grade A or Grade B of the service has been set out in 5th Schedule thereof and its relevant part reads as under:-
Maintenance of Select List for Grade B (1) Additions to the Select List after its constitution under paragraph 1 shall be made in such numbers as the Central Government in the Ministry of Railways may determine, from time to time, keeping in view the existing and anticipated vacancies, and in equal proportion from -
(a) Grade C officers who have rendered not less than 8 years approved Service in the Grade in the order of their seniority in that Grade subject to the rejection of the unfit; and
(b) Grade C officers selected on the results of the limited departmental competitive examinations held by the commission for this purpose from time to time, in the order of their merit, persons of the two categories being included in the Select List by taking alternately one person from category (a) and the other from category (b) and so on in that order.
9. The Respondents in their reply have submitted that before adjudicating on the two issues raised by the Applicants in their submissions, there are other relevant facts which are also required to be considered. According to them, the grievance raised by the Applicants in the OA against the induction of the PSs in the select list for Grade-I RBSS of the year 2004-05 is misconceived as the difference of Grade A and Grade B was eliminated w.e.f. the implementation of 4th CPC when the pay scale of both the grades were merged into a common grade designated as Grade (A and B merged) and since then no distinction has been made while posting them with the officers. Therefore, no distinction can be made with respect to the experience/service rendered by such stenographer as Grade A stenographer or Grade B stenographer. Considering the above facts, all the promotions to the post of Under Secretary/Deputy Director has been accorded after their inclusion in the Select List prior to 2004. They have also stated that the Applicants have accepted similar induction of PSs for Select Lists for Grade-I for all the years prior to 2004-05 and none of them have challenged the aforesaid induction. Further, the persons inducted in the select list year 2004-05 are ranked junior to the US/Dy. Director who were stenographers prior to their promotion and appointed in earlier years. As a result, the PSs who were appointed as Under Secretary/Deputy Directors in earlier years would rank senior to those appointed in the present case. By not challenging the appointments of PSs as Under Secretary/Deputy Director, the Applicants have clearly accepted appointment of PSs as Under Secretary/Dy. Director and they are thus barred from raising the very same cause of action against PSs for their inclusion in the Select List of the year 2004-05. In this regard, they have also relied upon the judgment of the Apex Court in Union of India and Ors. vs. Alok Kumar and Ors. AISLJ 2010 (3) 1 wherein it has been held as under:-
42. A practice adopted for a considerable time, which is not violative of the Constitution or otherwise bad in law or against public policy can be termed good in law as well. It is a settled principle of law, that practice adopted and followed in the past and within the knowledge of the public at large, can legitimately be treated as good practice acceptable in law. What has been part of the general functioning of the authority concerned can safely be adopted as good practice, particularly, when such practices are clarificatory in nature and have been consistently implemented by the concerned authority, unless it is in conflict with the statutory provisions or principal document. A practice which is uniformly applied and is in the large public interest may introduce an element of fairness. A good practice of the past can even provide good guidance for future. This accepted principle can safely be applied to a case where the need so arises, keeping in view the facts of that case. This view has been taken by different High Courts and one also finds glimpse of the same in a judgment of this Court in the case of Deputy Commissioner of Police & Ors. v. Mohd. Khaja Ali, 2000(2) SLR 49.
10. The learned counsel for the Respondents has also submitted that the Office Memorandum dated 18.6.1991 was issued as an executive instruction and same has all along been followed by the Respondents. Therefore, it has attained the status of the Recruitment Rules itself and thus it cannot be faulted. In this regard he has relied upon a judgment of the Honble Supreme Court of India in the case of Chandigarh Administration through the Director Public Instructions (Colleges), Chandigarh Vs. Usha Kheterpal Waie and Others 2012 (1) ALSLJ (SC) 19 wherein it has been held that in the absence of rules, the Government can issue administrative instructions. The relevant part of the said order reads as under:-
14. The Tribunal and High Court were not justified in holding that 1976 Punjab Rules were not applicable on the ground that no material had been placed to show that they were followed while appointing a principal in the past. The fact that the appellant had issued a notification dated 13.1.1992 adopting the corresponding Punjab Rules governing the conditions of service of its employees, is not disputed. Therefore when appellant acted in accordance with the said directions, it is not necessary to consider whether there were any occasion between 1992 to 2001 to invoke the said rules or whether they were in fact invoked. The notification dated 13.1.1992 could not have been brushed aside in the manner done by the Tribunal and the High Court.
11. They have also stated that similar issues are pending before the Honble High Court of Delhi in W.P. ( C) No.7899/2011 N.K. Sharma Vs. U.O.I. and Others and also in W.P. ( C) No.171/2012 Manoj Kumar and Others Vs. U.O.I. & Others filed by two streams of Section Officers grade, i.e., Direct Recruits and Promotees. While the promotee officers have challenged the placement of Direct Recruits in the seniority list with a prayer to bring them down in seniority list with consequent enhancement of their position in the seniority list leading to reorganization of promotions, the Direct Recruits have challenged the treatment of promotees appointed in excess of the quota as Section Officers with the prayer that the promotees in excess of quota be reverted and be treated as regular only from those years in which vacancies within the quota became available. The learned counsel for the Respondents has, therefore, submitted that this OA should await for final outcome of the Writ Petitions.
12. As stated earlier, we are rehearing this OA on the directions of the Honble High Court of Delhi. While directing to do so, the High Court referred to following two questions framed by this Tribunal:-
(i) whether without carrying out the necessary amendments in RBSSS Rule 1971 in respect whereof it was cautioned vide office order dated 18.06.1991 that the said Rules needed to be amended; and
(ii) whether merely because Stenographers Grade B and Grade A were merged in the same pay scale which happened to be the pay scale applicable to Grade A posts, could it be said that Stenographers Grade B (till 4th Pay Commission Recommendations were implemented) could be treated as having approved service in the grade (the requirement of Rule 8(3) of the RBSS Rules) by reckoning their service rendered as Stenographer Grade B prior to 01.01.1986.
13. As regards the first question is concerned, according to the High Court, this Tribunal noted the contention of the Applicants that private Respondents were appointed as Grade B in the RBSSS and in order to substantiate the said contention they have relied upon para 3 of the 5th Schedule of RBSSS Rules, 1971 which dealt with only maintenance of select list of grade B. However, the private Respondents were appointed as Private Secretaries in terms of clause (a) of sub para (1) of Regulation 3 of the 5th Schedule to RBSSS, Rules 1971. Thus, they have been promoted only as Grade B. But thereafter this Tribunal has simply held that with the recommendations of the 4th Central Pay Commission being implemented, Stenographers were placed in the pay-scale of Rs.2000-3500 and hence would be treated as in Grade A. But this Tribunal has not decided what would have to be treated as rendering approved service in the grade and also not dealt with the consequence of the RBSSS Rules not being amended as was required to be done in terms of the office order dated 18.6.1991.
14. As regards the second issue is concerned, the High Court observed that Stenographer Grade A were eligible to be inducted in Grade I if they had worked for one year as Section Officer which could be waived upon proof of a person otherwise eligible, not having worked as a Section Officer on account of exigencies of service. But this Tribunal has returned a finding in favour of the private Respondents and in so doing, the Tribunal has ignored a plethora documents and especially the office note dated 30.7.2007 which the petitioners obtained through an RTI query which shows that the office was aware that as a ritual it was being treated that Stenographers were not being posted as Section Officers and was being so recorded. But the Tribunal has gone by a note dated 14.8.2007 penned by the Secretary Railway Board, in respect whereof there is a controversy for the reason the Secretary Railway Board has referred to the exigencies of service with reference to a quota available for Stenographers to be promoted as Section Officers which issue became redundant when the quota was abolished in the year 1971 and not gone into the serious issues relating to the factual situation arising out of the notings on record whereof it needs to be adjudicated whether there was any basis for the respondents No.1 to 3 to enblock record that on account of exigencies of service Stenographers could not be posted as Section Officers. The High Court has, therefore, while remanding the case directed this Tribunal to settle the issues required to be adjudicated upon and after noting the relevant rules applicable, the facts which stand attracted thereto and culling out the legal norm applicable giving reasons for the same, would thereafter decide the matter with logical reasoning.
15. We have reconsidered the aforesaid issues untrammeled by the earlier observations/findings of coordinate Bench of this Tribunal. In our considered view, without carrying out the necessary amendments in the RBSSS Rules, 1971, the executive instructions to that effect will only remain as executive instructions and it will not partake the character of statutory rules. By the executive order dated 18.06.1991, the Respondent-Railways has only revised existing four designations of some of the grades RBSSS w.e.f. 15.05.1991. Thus, the existing designation of Private Secretary in the scale of pay of Rs.3000-4500 has been changed to Principal Private Secretary. As regards grade A and grade B Stenographers are concerned, their pre-revised pay scales of Rs.650-1200 and Rs.650-1040 were merged in the new pay scale of Rs.2000-3500 w.e.f. 01.01.1996 and their designation was changed from Senior Personnel Assistant to Private Secretary. Other two grades, namely, Grade C and Grade D remained unchanged. Earlier finding of this Tribunal was that with the aforesaid merger of grade A and grade B by way of Executive Order, on completion of eight years service in the merged scale w.e.f. 01.01.1986, they became eligible for inclusion in the zone of consideration for promotion to Grade-I of RBSSS. This Tribunal has also noted that same practice was being followed in earlier promotions also. However, law laid down by the Apex Court in the case of Inder Singh Vs. Vyas Muni Mishra and Ors. 1987 (Supp.) SCC 257 is different. In the said judgment the Apex Court held that while merger or bifurcation of a cadre is an executive act, the Govt. has to take steps for framing proper rules. Again, when the conditions of service are changed, the proviso to Article 309 of the Constitution would be attracted and accordingly necessary rules have to be framed, as held by the Apex Court in S.P. Shiv Prasad Pipal Vs. Union of India and Ors. 1998 (4) SCC 598. Thus, the power of the Govt. to merge or demerge various posts/cadres, can be exercised only through appropriate rules. In R.N. Nanjundappa Vs. T. Thimmaiah and Another 1972(1) SCC 409, the Apex Court held that the method of recruitment and qualifications for each State Civil Service was to be set forth in the rules of recruitment of such service specifically made in that behalf. Admittedly, vide order dated 18.06.1991, the Respondent-Railway has only merged two scales attached to the grade A and grade B Stenographers to a common scale and redesignated those posts with the nomenclature as Private Secretary. But no consequential amendments in the RBSSS Rules have never taken place. In the absence of any such amendment, as stated earlier, the merger of the said posts cannot bring out any automatic change in the method of recruitment of Grade-I officers having its own separate and specific Recruitment Rules.
16. We have also seen that contention of the Official Respondents that the PSs in the RBSSS were granted exemption under Rule 8 (3) of the RBSS Rules was fallacious. Their statement that the PSs have fulfilled the condition prescribed in the said rule that they should have worked as Section Officer for one year or in the absence of such work, it was certified that they could not be posted as SOs due to contingency of work was also wrong. In fact, the Tribunal had gone by the note of the Secretary, Railway Board that there was nothing fictitious about the real problem of the administration and it was due to the administrative compulsion that it was not possible to appoint the PSs as SOs for one year. But the actual facts revealed in the reply to the information sought under the RTI Act were different. In fact, the official records show that there was no such exigencies of service by reason whereof the PSs in the RBSSS could not be posted as SOs in the RBSS and no exceptions had been granted to the PSs in their individual capacity. Therefore, PSs in the RBSSS could not have been included in the zone of consideration for Under Secretary/Deputy Secretary in the RBSS.
17. In the above background of the case, we are constrained to observe that the earlier order of this Tribunal dated 22.01.2010 was not based on the actual facts in the case and the law laid down by the Apex Court on the relevant issues. We, therefore, allow this OA and quash and set aside the circular No.ERB-1/2005/14/28 dated 09.07.2007 so far as it includes officers holding the post of PS in the RBSSS in the zone of consideration for appointment to Grade-I (Under Secretary/Deputy Director) in the RBSS. Consequently, appointment of the respondent No.4 to 22 or other similarly placed PSs in the RBSS as grade-I (US/DD) made pursuant to the aforesaid circular are also quashed and set aside.
18. The respondents 1 to 3 shall pass appropriate orders in compliance of the aforesaid directions within a period of two months from the date of receipt of a copy of this order. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh