Central Administrative Tribunal - Ernakulam
A V Sreekumar vs M/O Railways on 26 September, 2017
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00878/2016
__,]i;'""""€/:,~day~--' this the J6 t-h day of September, 2017
CORAM:.
Hon'ble Mr. U. Sarathchandran, Judicial Member
Hon'ble Mr. E.K. Bharat Bhushan, Administrative Member
1. Southern Railway Promotee Officers' Association, Trivandrum
Division (Affiliated to the Indian Railway Promotee Officers'
Federation) (Recognised by the Government of India, Ministry of
Railways), represented by its Divisional Secretary A.V. Sreekurhar,
aged 50 years, S/o. N. Appukuttan Pillai (late) Divisional Executive
Engineer/Southern Railway/Trivandrum Division, Residing at :
No. TC.l 0/212, Sreelakshmi, Peroorkada, Trivandrum - 695 005.
2. S. Shanmugham, aged 51 years, S/o. Sachidanandan (late),
Assistant Executive Engineer/Southern Railway/Construction/
Trivandrum, Residing at: No. DN.201-C, lind Land, Darshan Nagar,
Kudappanakunnu, Trivandrum- 695 043.
3. Promodh P. Shenoi, aged 45 years, S/o. L. Pandureng,
Station Manager/Southern Railway/Trivandrum,
Residing at: JPN-43, TC No. 36/1448-1, J.P. Nagar,
West Fort, Trivandrum- 69:5 023. Applicants
(By Advocate : Mr. T.C. Govindaswamy)
Versus
1. Union of India, represented by the Secretary to the Government of
India, Ministry of Railways and Chairman, Railway Board,
Rail Bhavan, New Delhi- 110 001.
2. The General Manager, Southern Railway, Headquarters Office,
Park Town PO, Chennai- 600 003.
3. The Member Staff, Railway Board, Rail Bhavan,
New Delhi- 110 001'.
4. Southern Railway Officers Association, Trivandrum Division
(affiliated to Southern Railway Officers Association, recognized by
·Government of India, Ministry of Railways), represented by its
Divisional Secretary Prem Chandra Harijan, Senior Divisional
Signal & Telecom Engineer, Trivandrum Division, Southern Railway,
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aged 38 years, S/o. Late Sri Ram Karan, residing at address 114-F,
Anwar Garden, Railway Quarters, Poojappura, Trivandrum- 695 0.12.
5. Hari Krishnan R., aged 28 years, S/o. S. Rama Krishnan Nair,
Assistant Operations Manager, Trivandrum Division, Southern
Railway, residing at address 114-C, Anwar Garden, Railway Quarters,
Poojappura, Trivandrum- 695 012. Respondents
[By Advocates : Mr. S. Radhakrishnan (Rl-3) &
Mr. Elvin Peter P.J. (R4&5)]
This application having been heard 9n 19.09.2017, the Tribunal on
c)G ... O~~JOI7 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member-
A practice has been in vogue in the Indian Railway to promote Group- B officers on ad hoc basis to the vacancies of Senior Scale( for short, 'SS') of Group-A officers. In this regard the Railway Board has issued Annexure A3 letter dated 31.12.1985 (hereinafter referred to as '1985 letter of the Railway Board') instructing the mode by which SS of Group-A service has to be filled up on ad hoc basis. In Annexure A3 it was instructed that when eligible Junior Scale ( for short,'JS') officers of Group-A are not available for filling up the SS posts of Group.: A, JS officers of minimum of three years service can be considered for 'looking after duties' in SS on payment of a special pay of Rs. 150/- per month in preference to Group-B officers and failing the above, Group-B officers who have rendered not less than three years in Group-B and adjudged suitable by a Committee of Head of Departments (HODs) can be considered for such ad hoc appointments against SS vacancies in Group-A. Annexure A3 1985 letter of Railway Board was further modified vide Annexure A4 letter dated 14.7.1990 of the •
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3 Railway Board (hereinafter referred to as '1990 letter of the Railway Board') wherein it was instructed that, as a temporary measure, in the absence of eligible JS officers of Group.-A and in the absence of JS officers of Group-A having completed four years of service, Group-B officers who have rendered not less than six years in Group-B and have been adjudged by Committee of HODs can be considered for ad hoc promotion against SS vacancies and if no such Group-B officers is available then JS officers in Group-A with minimum three years service in JS could be considered for looking after the SS, failing which Group-B officers who have rendered not less than three years could be considered. Thus, by Annexure A4 1990 letter of the Railway Board Group-B officers having more than six years service were given priority for ad hoc promotion to SS Group-A post over Group- A JS officers having three years experience and the Group-B officers having three years service. Annexure A4 1990 letter of the Railway Board Group-B was followed by Annexure AS clarification directing to ensure that while Group-B officers with six years service are promoted toSS on ad hoc basis, adequate number of vacancies in SS would be available for promotion of Group-A JS officers to SS soon after they complete four years service.
2. The applicants, Group-B promotee officers, have approached this Tribunal when the Railway Board issued the impugned Annexure A1 letter dated 11.8.2016 (hereinafter referred to as 'the impugned Annexure Alletter'), more or less restoring the directions contained in Annexure A3 1985 letter of the Railway Board, doing away with the priority given to Group-B officers with six years service for ad hoc promotion to SS over and • 4 above the JS officers of Group-A with three years service and limiting- the opportunity of such Group-B officers for ad hoc promotions and giving preference to JS officer of Group-A with three years service. According to the applicants the withdrawal of the long practice which existed for more than 25 years giving priority to Group-B officers with six years service in the matter of ad hoc promotion toSS over and above the JS Group-A officer with three years has prejudicially affected the rights of such Group-B officers. According to them the impugned Annexure A1 order was passed by the Railway Board in an arbitrary, discriminatory and unreasonable manner and hence the same is unconstitutional and violative of Articles 14 & 16 of the Constitution of India. They allege that the impugned order has been issued as a result of the concerted efforts by a set of directly recruited Group-A officers for depriving Group-B officers of their career prospects. It is contended by the applicants that placing of Group-B officers with six years service equal to Group-A JS officers with four years service and below amounts to treating of un-equals as equals and is a clear case of discrimination and negation of the equality principles contained in Articles 14 & 16 of the Constitution of India. The applicants argue that the long practice in terms of 1990 letter of Railway Board (Annexure A4) which remained in force for so many years has matured into a right and deprivation of such right without any valid reason is also opposed to the norms of equity, justice and fair play.
3. Respondents 1 to 3 filed a detailed reply contending that revising the priority for ad hoc promotion toSS as contained in the impugned Annexure • 5 AI letter is a policy decision within the competence of the Railway Board and is a part of its power to frame rules/policies, to amend/revise the regulations, the conditions of service of its employees. They point out that vacancies arising in the SS posts should be filled with JS officers Group-A eligible for appointment to SS and as such Group-B officers have no claim to apply for promotion for the vacancies in SS even on ad hoc basis. All the SS posts are in Group-A. Therefore, Group-B officers irrespective of their length of service can have no claim of promotion to SS even on ad hoc basis. According to the respondents Annexure A4 1990 Railway Board letter changing the priority in favour of Group-B officers with six years service was a temporary measure as indicated in Annexure A4 itself and later, by way of policy decision, the Railway Board decided to restore the instructions in the Annexure A3 1985 letter of the Railway Board vide the impugned Annexure A1 communication. Respondents point out that in terms of Rule 214 of the Indian Railway Establishment Code (for short, IREC), Volume-! the General Manager has the power to make officiating promotion and he may appoint a Group-B officer to officiate in Group-A SS on ad hoc basis for a period not exceeding one year on each occasion. In the 1985 letter of the Railway Board (Annexure A3) the order of priority for promotion to SS was (i) filling up Group-A SS with Group-A JS officers eligible for appointment to SS, (ii) if no such Group-A officer are eligible for regular promotion,JS officers of Group-A with minimum of three years will be posted to 'look after the duties' in the SS on payment of a special pay ofRs. 150/- and failing (i) and (ii) above Group-B officers with three years service and have been adjudged suitable by the Committee o HODs were • 6 considered for ad hoc promotion in the SS. Later, the 1990 letter of Railway Board was issued on an overall administrative interest directing that (i) in
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case where Group-A JS officers eligible for regular promotion is not available, Group-B officers who have six years service could be considered for ad hoc promotion for SS and if no such Group-B officers are available sub paragraphs (ii) and (iii) of 1985 letter of the Railway Board would continued to be followed and the position contained in 1985 letter of the Railway Board remained unchanged. By the impugned Annexure A1 letter order of priority for promotion to SS as contained in the 1985 letter of the Railway Board was restored. According to the respondents the 1990 letter of the Railway Board (Annexure A4) which changes the priority was a temporary measure and was not intended to have a long term standing and was issued in the exigencies of work and as a measure to benefit Group-B officers in Railway who had put in long years of service in Group-B. _But such promotions of Group-B officers were purely on ad hoc basis.
4. The official respondents state that several Group-A direct recruit officers who have rendered three years of service in JS made representations to the Railway Board claiming precedence over Group-B officers of six years on the plea that the instructions contained in the 1990 letter of the Railway Board (Annexure A4) was in violation of the Codal provision and that the Codal provision which is statutory in nature will prevail. The Railway Board after considering the views of both the Unions representing the direct recruits and the Group-B promotees, after proper deliberations, took a conscious decision to adopt the revised policy containe_ in Annexure • 7 A1 letter to bring back and restore the 1985 letter of Railway Board (Annexure A3) which is in consonance with Rule 214(b) of IREC, Volume-I.
5. In the rejoinder the applicants while refuting the contentions of the official respondents 1 to 3 Annexures A10 to A12 documents were produced. Thereafter, they produced Annexure A13 copy of the file notings leading to the issuance of Annexure A1 impugned order.
6. We have heard Shri T.C. Govindaswamy, learned counsel for the applicants for a considerable length of time. Thereafter he was permitted to file a detailed argument note also. He has filed an exhaustive argument note producing copies of the relevant portion of the IREC, Volume-! and the judgments relied on by the applicants. We have heard Shri S. Radhakrishnan, learned Standing Counsel for the respondents Nos. 1-3 in detail. Shri Elvin Peter P.J. appeared for respondents Nos 4 & 5. Perused the record.
7. The undisputed fact pivotal to the issue involved in this case is resting ) on the codal provision that regular promotion to SS post in Group-A is from the eligible JS officers of Group -A. The channel of promotion of Group B officers is to Group A, but first to the Junior Scale in Group A. The relevant provisions ofiREC Vol. I are as follows:
"205. Method of Recruitment. -Recruitment to Group A Service in the various departments of Railways shall be made through-
(a) Competitive Examination held by the Union Public Service Commission;8
(b) Promotion of officers in Group B Service including officiating Group B Railway officers of the service or department;
(c) By appointment of candidates initially recruited as Special Class Apprentices on the results of the examination conducted by U.P.S.C. in accordance with the rules for recruitment to Indian Railway Service of Mechanical Engineers.
(d) By transfer of an officer in service of the Government provided the recruitment rules include a provision to this effect;
(e) By occasional admission of other qualified persons in consultation with the U.P.S.C.
209.(A)Promotions to Railway Services, Group A.-
(1) All substantive promotions to Railway Services Group 'A' shall be made by the President; and (2) No officer shall be eligible for promotion to and within the service, unless the Government is satisfied that the officer is suitable for promotion in all respects. (B) Promotion from Group 'B' to Group 'A' (Junior Scale).- ( 1) Appointments to the posts in the junior scale shall be made by selection on merit from amongst Group 'B' officers of the departments concerned with not less than 3 years of non-fortuitous service in the grade. (2) · If the quota reserved for Group 'B' Officers for promotion to junior scale is not fully utilised, the remaining vacancies may be filled by Government in accordance with the recruitment rules and in consultation with the UPSC; and (3) The Departmental Promotion Committee for this purpose shall consist of a representative of the Union Public Service Commission as Chairman and two representatives ofthe Ministry of Railways as Members.
(C) Promotion from junior scale to senior scale.-
(I) Appointment to the posts in the Senior scale shall be made by promotion
in the order of seniority, subject to rejection of the unfit, of officers with ordinarily not less than 4 years service in the junior scale.
(D) "
· 8. The controversy in this case is centered on the priority in making officiating I ad hoc promotions to SS posts in Group-A from the Group-B officers. Rule 214 ofiREC, Volume-1 gives powers to the General Manager in making such officiating promotions. Rule 214 ofiREC, Volume-I reads:
"214. Powers of General Managers in making officiating promotions.-The General Manager may appoint-
(a) a Group C railway servant to officiate in Group B cadre.
(b) a Group B officer to officiate in Group A, Senior Scale on ad-hoc basis for a continuous period not exceeding one year on each occasion when circumstances warrant such course except to the posts of Security Officer, Law Officer, Hindi Officer, Chemist and Metallurgist, Public Relations Officer and · Superintendent (Printing & Stationery)." ~ 9
9. It is worth noting that the practice of making officiating promotions have been a practice prevailed in the Indian Railways for a very long time which, according to the officialese, has become necessary on account of the exigency of service. 1985 Railway Board letter (Annexure A3) contains the administrative instructions on the order in which ad hoc promotions are to be made to SS posts in Group-A. Those instructions have been subsequently modified by the 1990 letter of the Railway Board (Annexure A4). After nearly 25 years by the impugned Annexure AI letter the Railway has restored the instructions contained in the Annexure A3 1985 Railway Board letter.
10. Rule 208 ofiREC, Volume-! deals with the manner in which Group-
A and B vacancies are filled particularly in the open line and construction. It reads:
"208. Officiating promotions.-
(1) An officiating arrangement made in the place of a permanent open line Group A or B officer deputed to fill a post temporarily sanctioned for a survey or construction shall continue to be permissible during leave taken from the survey or construction by the Railway officer so deputed, provided that such leave does not exceed four months and the head of the construction department certifies that the officer is expected to return to that survey or construction on expiry of the leave.
(2) Officiating arrangement in the leave vacancies of Group 'A' or Group 'B' officers is allowed if the vacancy is for 30 days and above on the Zonal Railways, Production Units and other railway units and for 46 days and above in the Railway Board and Research, Design and Standardisation Organisation."
11. It can be seen from the above that often there has been shortage of man power to hold the higher posts of SS of Group-A. As the direct recruit officers of Group-A who are posted in the JS initially takes a long time ie. 4 years' service in the JS to get qualified for SS of Group-A post. At the same • 10 time, Group-B officers who have more familiarity and acquaintance with the Railway administration are available in abundance. Therefore, by way of a pragmatic decision to meet the exigencies of service to fill up the vacant SS posts in Group-A, the Group-B officers with three years service adjudged eligible to be promoted were given ad hoc promotions. The records reveal that the earlier practice of giving such ad hoc promotions to Group-B officers had been in consultation with the Union Public Service Commission (UPSC). Consultation with UPSC for ad hoc promotions to Gr. B was later dispensed with by adjudging such Group-B eligible officers by a Committee of HODs. The ad hoc appointments given to Group-B officers .were for a period of one year and the extension of such ad hoc appointments were, made initially with the consultation ofUPSC.
12. The historical reasons for making ad hoc appointments of Group-B have been stated in the Annexure A6 copy of the file notings relating to the 1985 letter of the Railway Board (Annex4re A3). The relevant portions of Annexure A6 reads:
"3. The Group 'A' cadre includes a large number of temporary Senior Scale posts and the number of Junior Scale officers becoming available for appointment to Senior Scale at any point of time is for less than the requirement. This is due to the reason that direct recruitment and absorption of Group 'B' officers are done at the level of Junior Scale against permanent vacancies, assessment of vacancies being based on the Group 'A' cadre strength taking only posts in Senior Scale and above into account. Thus a practice came to be established in the late '50s and followed thereafter, to promote Group 'B' offices straightaway to Senior Scale even before they had entered Group 'A'. Till the end of 1977, such promotions were made on the basis of selections done by the DPCs convened by UPSC, Officers recommended by DPCs for officiating promotion to Senior Scale being included in a panel commonly referred to as the 'B' list. Appointment of Group 'B' officers directly to the Senior Scale on the basis of selection not being covered by the provisions of Recruitment Rules, the procedure of selection was dispensed with from the end of 1977, on the advice of the UPSC. Instead, the procedure of adhoc appointment of Group 'B' officers in Senior Scale as per seniority-cum-fitness, adjudged by a Committee of three departmental HODs without associating the Commission, was introduced from • 11 1978.
4. A minimum ofthree years of non-fortuitous service in Group '8' has been prescribed as necessary for Group '8' officers to be considered as eligible for adhoc appointment in Senior Scale. Where officers with three years of non- fortuitous service are not available, officers who have rendered a total of three years of service, both fortuitous and non-fortuitous periods put together, have also been made eligible for consideration for adhoc posting in Senior Scale on payment of a charge allowance ofRs. 150/- p.m. 4.1 The continuance of adhoc appointment in Group 'A' post beyond the first year requires the approval of the UPSC. Cases of ad hoc appointment of Group 'B' officer in Senior Scale were being referred to the Commission from time to time for approval for their continuance beyond the first year. And the Commission had been conveying approval to the continuance, after conveying approval to the to the continuance of the adhoc appointment upto the end of 1984 in respect of cases referred to them, the Commission has declined to consider any more cases. Instead the Commission has asked for steps being taken to provided for regular arrangements. The Department of Personnel has also supported the views of the Commission.
4.2 With almost all the Group '8' officers placed on the erstwhile 'B' lists having either retired or been absorbed in Group 'A', Group '8' officers working in Senior Scale today are those who have been appointed on adhoc basis as per seniority-cum-fitness. Thus their basic status is in Group 'B'."
13. The history of ad hoc promotions has been once again succinctly stated in the file notings in relation to the impugned Annexure A1 Railway Board letter. The copy of the aforesaid file notings was produced by the applicants as Annexure A13. The relevant portion of it is extracted below:
"4. GENESIS OF THE POLICY INSTRUCTIONS OF 17.04.90
i) The policy adopted vide Board's letter dated 31.12.85 apparently had arisen from the view that a Group 'B' officer had no claim for regular promotion to Sr. Scale unless selected for absorption in Group 'A'. This view had to be tempered by the fact that, as and when such Group 'B' officers got selected to Group 'A', they got an ante-dating of seniority equal to the year of service connoted by initial pay fixation in Group 'A', or Yz the years of service in Group 'B', whichever was greater, subject to a maximum of 5 years. It appeared that most Group 'B' officers, on absorption in Group 'A', did not get an ante-dating of 5 years. If that be so, it did not appear rational that a Group 'B' officer with, say 6 years' service in Group '8', should not be taken at par with, if not better than a Group 'A' officer with 3 years' service.
ii) Group 'A' officers at 3 years were hardly fit for promotion to Sr. Scale, as they lacked in working knowledge and experience and confidence arising out of both. Hence they should not have any priority over Group 'B' officers who had the required experience & suitability, especially those who would, in any case, become Group 'A" in due course and got up to 5 years' ante-dating of seniority.
iii) The provisions, vide para 3.1 of Dec., 85 letter, were patently unfair both to Group 'A' officers in the 3-4 years' range and to Group '8' officers who were in the range of 6 to 8 years and above, as it insisted on promotion of the former in preference to the latter. ~ • 12 Accordingly, priorities set out in Board's letter dated 31.12.85 were modified only to the extent that Group 'B' officers with not less than 6 years of service were given preference over Group 'A'/Jr. Scale officers with 3 years of service for promotion to Sr. Scale on ad-hoc basis. The revised instructions were issued on 17.04.90 which were to be adhered to with a rider issued vide Board's letter No. E(GP) 89/1/8 dated 22.08.90 that while empanelling Group 'B' officers for adhoc promotion to Senior Scale that the criteria followed are such that there may be no likelihood of such officers not getting empanelled for regular appointment to Group 'A' -at a later date by the DPC constituted by the UPSC and also adequate number of vacancies in Senior Scale are available for promotion of Group 'A'/Junior Scale officers to Senior Scale soon after they complete 4 years' service, so that there may be no reasonable chance of Group 'B' officers having to be reverted once they are promoted to Senior Scale even on adhoc basis. The instructions of 17.04.90 primarily gave precedence to Group 'B' officers with 6 years' of service or more over Group 'A'/Jr. Scale officers with 3 years' service, in the matter of promotions to Sr. Scale on ad-hoc basis. However, contents of Rule 214(b) of IREC under the caption "Railway Ministry's Decision" as reproduced in para 2 above continued to be the same and no corresponding corrections were incorporated in IREC commensurate to the revised instructions of 17.04.90."
14. In the matter of ad hoc promotions to SS in Group-A, the JS officers of Group-A who have not qualified for regular promotion to SS are also considered provided such JS Group-A officers have rendered three years service. It is significant to note that such officers are not posted on ad hoc basis to man the SS vacancies but they are posted "for looking after the duties in Senior Scale" on payment of special pay ofRs. 150/- in ad~ition to their pay in JS subject to the condition that the pay plus special pay does not exceed the pay admissible on regular promotion to the SS on completion of the year of service prescribed for JS. This means that Group-A JS officers are always preferred for filling up of the vacancies, even on temporary basis, for manning the vacancies of SS, because SS in Group A is. the natural and inevitable destination in the course of their career pr~gression. JS position in Group A is in fact a provenance or cradle for the junior direct recruits to grow up to take charge of the higher responsibilities of the SS in Group A cadre. That is the reason why they are given a small charge allowance and posted for 'looking after: the SS post. On the other hand, • 13 when Group-B officers are promoted on ad hoc basis they are given the benefits of ad hoc promotion including fixation of pay in the scale of SS Group-A. This was to the chagrin of JS officers in Group-A because of the fact that Group-B officers who are given preference for promotion- though on ad hoc basis - are in reality stealing a march over them. It appears that the long practice of promoting Group-B officers on ad hoc basis was inevitable in the special nature and functioning of the Railway administration. However, because of such long practice the Group-B officers who are promoted on ad hoc basis began to nurture the belief that it their natural right to get posted into Group-B in preference to the JS Group- A officers, pointing out that the direct recruit JS officers in Group-A are less experienced than the seasoned doyens of Group-B who had long innings in the Railway administration. However, as rightly pointed out by the respondents, such claim by the Group-B officers to have priority over the JS Group-A officers is against the Codal provisions in Rule 214(b) of the IREC, Volume-!.
15. It is settled position that the right to promotion is not a fundamental right guaranteed under Article 16 of the Constitution of India but it is only the right to be considered for promotion that constitutes a fundamental right. Mere chance of promotion also is not a right. Ad hoc promotions are resorted to only in exigencies and such promotions are made to facilitate the smooth administrative functioning and for not keeping the senior level posts vacant for long as qualified persons are not available immediately. Railways , contend that in such cases Gr.B officers with six years' service were given 14 preference in the 1990 letter of the Railway Board because it would give some relief to the Gr. B officers who were languishing for want of opportunities for promotion. Ad hoc promotions given to Gr.B officers will enure service benefits like fixation of pay in higher scale and reckoning of 5 years service in GrB for seniority in the higher post on regularisation.
16. In this case one can see the interplay of two competing rival positions in relation to the 1990 Railway Board letter (Annexure A4) viz (i) the pragmatic and prudential decision of the administration to use the long experience of the Group-B officials for granting ad hoc promotions as SS in Group-A in preference to JS officers of Group-A and (ii) the prospects of natural career progression of JS officers with four years service for promotion to SS in Group-A. In this context it is pertinent to note the concern expressed by the Railway establishment Annexure Nos A, A2 to AS to ensure that the Group-B officers so selected are not immediately reverted. 1 However, in terms of 1985 letter of the Railway Board in the event of a reversion it is the Group-B officers in the ad hoc positions in the SS are the first to go back.
17. It was already pointed out that it is on account of exigencies of service that ad hoc promotions are made. Applicants have now set forth a claim contending that such long practice has matured into a legal right which ought to have been translated into the Codal provision by amending Rule 214 or other rules in the IREC.
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18. We note that the 1985 Railway Board's letter (Annexure A3) and the impugned Annexure A1 administrative instructions are in tune with the basic Codal provision that promotion to Group-A SS is the right of JS Group-A officer in preference to Group-B officers. Preference given to the Group-B officers with six years over JS Group-A officers with three years service in the 1990 letter of the Railway Board (Annexure A4) for ad hoc promotion was a temporary measure which in fact had recognised the preceding claim of qualified JS officers Group-A for posting as SS officer. Thus we see that the 1985 Railway Board letter (Annexure A3), 1990 Railway Board letter (Annexure A4) and the impugned Annexure A1 restoring Annexure A3 are dovetailed and woven into each other, based on the exigencies of service. All such adjustments done within the scope of statutory provisions in the IREC are policy matters falling within the administrative discretion. Leaving administrative discretion to the administration itself is a trajectory of the theory of separation of powers and is perfectly in tune with the inter-branch equity envisaged in . the Constitutional scheme. It appears to us th(;lt it was on account of their sheer numerical strength over the directly recruited Group-A officers the Group-B officers braved to claim for according p~rmanency to the arrangement in the 1990 letter of the Railway Board which in fact was an undue preference given to them, though temporarily, contrary to the Codal provisions. The respondent Railway was in fact walking on slippery slopes when they gave such undue preference to Group-B officers. We feel that this in fact is a reflection of the poor cadre management by the Railway administration.
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19. Shri Govindaswamy, learned counsel. for the applicant argued that the decision in the impugned Annexure A1 communication was taken in an arbitrary and unreasonable manner and that treating the Gr.B officials with service of six years or more with JS officers of Gr.A with 3 years service . Amounts to treating of unequals as equals. We see from Annexure A13 copy of the file notings produced by the applicants that the Railway Board has taken Annexure A1 decision after proper deliberation and in consultation with the federation of the applicants' association and also the federation of the association representing the direct recruit JS Group-A officers. Therefore, it cannot be said that the Railway was arbitrary while taking Annexure A 1 decision.
20. Shri Govindaswamy referred to decisions of the apex court in S. G. Jaisinghani v. Union of India- AIR 1967 SC 1427, E.P. Royappa v. State of Tamil Nadu & Anr. - AIR 1974 SC 555, Aeltemesh Rejin v. Union of India- AIR 1988 SC 1768, K. Neelima Misra v. Dr. Harinder Kaur Paintal & Ors.- AIR 1990 SC 1402, Mahesh Chandra v. Regional Manager, UP. Financial Corporation & Ors.- AIR 1993 SC 935, Smt. Maneka Gandhi v. Union of India & Anr. -AIR 1978 SC 597, Ramana Dayaram Shetty v. The International Airport Authority of India & Ors. - AIR 1979 SC 1628, Sharma Transport represented by D.P. Sharma v. Government of A.P. & Ors.- AIR 2002 SC 322 and A.P. Aggarwal v. Govt. of NCT of Delhi & Ors. - AIR 2000 SC 205 which were mostly dealing with the Constitutional abhorrence to arbitrary action antithetical to the ~~ equality regime. y-
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21. On the other hand the thrust of the arguments of Shri Radhakrishanan was on the power of the official respondents to take policy decisions. Referring to the decisions of the apex court in Commissioner, Corporation of Madras v. Madras Corporation Teachers Mandram & Ors. - (1997) 1 SCC 253, P. U Joshi & Ors. v. Accountant General- (2003) 2 SCC 632, Union of India v. Pushpa Rani & Ors. - (2008) 9 SCC 242 and Tamil Nadu Electricity Board v. Tamil Nadu Electricity Board Thozhilalar Aykkiya Sangham - (2008) 3 SCC 359 he submitted that there is no right for the applicants and for that matter to any employee of the Railway to claim that rules governing conditions of his service should be forever be the same as the one when he entered service for all purposes and expect for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time. In P. U Joshi's case (supra) the apex court categorically held:
"1 0. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at anyrate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, 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 existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and expect for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new r u l 7an existing service. "
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22. In the light of the above discussion we are of the view that the applicants could not establish a convincing case that there was violation of Articles 14 and 16 of the Constitution when the Railway took Annexure A1 decision. They could not establish that the benefit they have enjoyed under the 1990 letter of Railway Board (Annexure A4)for nearly 25 years has given a vested right to them over and above the Codal provisions.
23. In the result, the Original Application is dismissed. Parties shall suffer their own osts.
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(E.K. Blf~. T BHUSHAN) (U. SARATHCHANDRAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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Original Application No. 180/00878/2016
APPLICANT'S ANNEXURES
Annexure Al- True copy of the Railway Board order bearing No.
E(GP)2016/119 dated 11.8.2016.
Annexure A2 - True copy of the Railway Board order bearing RBE No.
72/2003 dated 30.4.2003.
Annexure A3 - True copy of the Railway Board order Bearing No.
E(CP)/85/1/48 dated 31.12.1985.
Annexure A4 - True copy of the Railway Board order bearing No.
E(GP)89/l/8 dated 17.4.1990.
Annexure AS- True copy of the Railway Board order bearing No.
E(Gp )89/1/8 dated 22/23.08.1990.
Annexure A6 - True copy of the file notings issued under letter bearing
No. RB/RTI/2015/010058311/CPI0-31 dated
22/25.04.2016 from the Railway Board.
Annexure A7 - True copy of the extract of Rule 214 as contained in
Chapter II of Indian Railway Establishment Code Vol.I. Annexure AS - True copy of the representation dated 31.8.2016 submitted to the 3rct respondent.
Annexure A9 - True copy of the representation submitted to the Hon'ble Minister for State for Railways dated 23.9.2016.
Annexure AlO- True copy of the extract of Rules 332, 333 and 334 of Chapter III of the Indian Railway Establishment Manual, Vol.l.
Annexure All - True copy of the minutes of the informal meeting of IRPOF with Additional Member (Staff) on 18.3.2016.
- Annexure Al2- True copy of the written comments as promised in All, was submitted by the IRPOF, dated 21.3.2016.
Annexure A13 - True copy of the file notings leading to the issue of impugned order A1 dated 11.8.2016 in File No. E(GP)/20 16/1/9.
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... RESPONDENTS'ANNEXURES Annexure Rl(a)- True copy of the Railway Board's letter bearing No. E(GP)75/1158 dated 9.1.1979.
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