Central Administrative Tribunal - Delhi
Shri Anil Kumar vs Union Of India Through on 11 April, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.1248/2010 New Delhi, this the 11th day of April, 2012 Honble Mr. G. George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) 1. Shri Anil Kumar, Aged about 40 years, S/o Late Shri R.S. Yadav, R/o B-142/2, RDSO Colony, Manak Nagar, Lucknow. 2. Shri Abhay Kumar Sinha, Aged about 37 years, S/o Shri S.P. Sinha, R/o B-144/2, RDSO Colony, Manak Nagar, Lucknow. 3. Shri Sanjeev Kumar Tiwari, Aged about 35 years, S/o Shri R.S. Tiwari, R/o A-23/1, RDSO Colony, Manak Nagar, Lucknow. 4. Shri Arsad Hussain, Aged about 38 years, S/o Shri Israr Hussain, R/o D-119, Rajajipuram, Lucknow. 5. Shri Sanjay Gupta, Aged about 38 years, S/o Shri S.P. Gupta, R/o H-19/55, Sec-7, Rohini, Delhi. 6. Shri Sanjiv Kumar, Aged about 42 years, S/o Dr. A.C. Sinha, R/o L-8, Prince Anwar Shah Road, Mecon Tower, Kolkata-68. 7. Shri Mahendra Singh, Aged about 42 years, S/o Shri Ashu Singh, R/o Rajajipuram, Lucknow. 8. Shri Sanjay Kumar Sah, Aged about 39 years, S/o Late Shri B.D. Sah, R/o B-51/4, RDSO Colony, Lucknow. 9. Shri Manish Kumar Srivastava, Aged about 39 years, S/o Shri H.B. Srivastava, R/o H.No.15-E, Sarojini Nagar, Lucknow. 10. Shri M.K. Bharti, Aged about 38 years, S/o Shri R.B. Prasad, R/o H.No.554/37/GI, Pawanpuri, Alambagh, Lucknow. 11. Shri G.K. Goswami, Aged about 38 years, S/o Shri Y. Goswami, R/o B-122/2, RDSO Colony, Lucknow. 12. Shri Birendra Singh, Aged about 34 years, S/o Late Shri T.S. Chilwal, R/o B-151/1, RDSO Colony, Lucknow. 13. Shri Naval Kumar Singh, Aged about 44 years, S/o Shri Bachu Lal Das, R/o B-117/3, RDSO Colony, Lucknow. 14. Shri Brajesh Kumar Pandey, Aged about 37 years, S/o Shri S.R. Pandey, R/o B-48/A, RDSO Colony, Lucknow. 15. Shri Jnan Prakash Majumdar, Aged about 41 years, S/o Shri J.N. Majumdar, R/o 95/C, Shubash Nagar Road, Kolkata. 16. Shri Gautam Biswas, Aged about 47 years, S/o Shri Gobinda Ch. Biswas, R/o Satigacha, Ranaghat, Nadia, West Bengal. 17. Shri Ramesh Chandra Sahoo, Aged about 40 years, S/o Late Shri Jaga Sahoo, R/o C-124/3, RDSO Colony, Lucknow. Applicants. (By Advocates : Shri B.S. Mainee with Ms. Meenu Mainee) Versus 1. Union of India through The Chairman, Railway Board (Ex-Officio Principal Secretary), Ministry of Railways, Railway Board, New Delhi. 2. The Secretary, Railway Board, Ministry of Railways, Rail Bhawan, New Delhi. 3. The Secretary, Ministry of Finance, South Block, Raisiana Marg, New Delhi. 4. The Secretary, Ministry of Personnel, Public Grievances & Pension, South Block, Raisiana Marg, New Delhi. 5. The Director General, RDSO, Ministry of Railways, Manak Nagar, Lucknow. Respondents. (By Advocate : Shri R.L. Dhawan ) O R D E R
Dr. Veena Chhotray, Member (A) The applicants, seventeen in number, had been appointed through the Staff Selection Commission on the basis of open Competitive Examination during the years 1994-99 and allotted to the RDSO (Research Designs & Standards Organization), at that time an attached office of the Ministry of Railways. The applicants were posted as Assistants Group B (Non-Gazetted) in the pay scale Rs.5500-9000. In the year 2003, the status of RDSO was changed from an Attached Office of the Railway Ministry to that of a Zonal Railway. Consequently, there was a restructuring of its Ministerial Cadre (RBE Circular No.208/2003 dated 04.12.2003 (Annexure-I). In course of this restructuring, the existing Assistants were re-designated as Office Superintendents-II in the same pay scale. However, as the posts of OS-II were Group C posts, the existing status of these personnel as Group B (Non-Gazetted) was retained as personal to them. Para 9.1.1 of the Circular also stated that their further promotions would be as Office Superintendent Grade-I (Rs.6500-10500) and Chief Superintendent (Grade Rs.7450-11500) as available in Zonal Railways.
2. Some of the present applicants had filed the earlier OA No.1010/2008 agitating claims regarding a pay scale not lower than the apex scale of Group C to enable further advancement in Gazetted Group B posts. The OA was decided vide the Tribunals order dated 16.01.2009 (Annexure A/12). Without going into merit of the case, directions were issued to the respondents to treat the pleadings in the OA as a representation by the applicants and consider their demand for placing them in the pay scale of Rs.7450-11500 by a speaking order. In pursuance of these directions, the Chairman, Railway Board has vide the order dated 13.7.2009 considered the claims of the applicants for parity with the Assistants of the Central Secretariat Service and the Railway Board and for grant of apex Group C scale. However, not finding any substance, the claims have not been found as feasible of acceptance. The relevant provisions of the RBs circular dated 4.12.2003 as well as the respondents aforesaid order dated 13.7.2009 are the subject of challenge in the present OA.
3. Against the above background, the OA seeks the following reliefs:-
8.2 That this Honble Tribunal may be further pleased to quash para 9.1.1 of the impugned Railway Boards letter No.PC-III/2003/CRC/7 dated 04.12.2003 (Annexure-1 of this O.A.) in so far as it places the applicants from the post of Assistants Group B Non Gazetted Grade pay Rs.4600/- to Group C post of Office Supdt. Gr.II (Rs.5500-9000) Grade Pay Rs.4200/- w.e.f. 01.01.2003 and to retain their parent service conditions for which they were recruited.
8.3 That this Honble Tribunal may be further pleased to quash the Chairman Railway Boards order dated 13.07.09 issued vide Railway Boards letter No.PC-V/2008/CC/9/RDSO dated 15.07.2009 (Annexure-3 of this O.A.). Besides, awarding any other or further relief as deemed fit and award of costs in favour of the applicants have also been prayed.
No interim relief in this case has been allowed.
4. The applicants would be represented by the learned counsels Shri B.S. Mainee with Ms Meenu Mainee. The learned counsel Shri R.L. Dhawan would appear for the respondents.
5. The order dated 13.7.2009 passed by the Chairman, Railway Board, explaining the background, broadly sums up the respondents stand. It inter alia mentions that as an attached Office of the Ministry of Railways, the ministerial cadre of the RDSO was based on the pattern in the Railway Board and the Central Secretariat Service. It was a 3-tier structure of LDC, UDC and Assistant. The applicants fell in the category of Assistants (Rs.5500-9000). As a result of the change in the status of RDSO to that of a Subordinate Office on the pattern of Zonal Railways, a 6-tier structure came into being in the ministerial cadre i.e. comprising Junior Clerks, Senior Clerks, Head Clerks, Office Superintendent Grade-II, OS Grade-I and the Chief Superintendent. The applicants were placed as OS Grade-II in the scale of Rs.5500-9000. Their further promotional channels were as OS-I (Rs.6500-10500) and Chief Superintendent (Rs.7450-11500).
It is stated that because of these structural changes in the ministerial cadre of the RDSO there have been changed channels of progression and redistribution of the duties and responsibilities among the posts pertaining to various grades. Under the changed pattern the posts of Assistants (new OS-II) in the RDSO remain no more comparable to the Assistants in the Central Secretariat/ the Railway Board.
Emphasizing that the channel of progression and nature of duties and responsibilities are among the prime determinants for grant of pay scale to a category, the law laid by the Apex Court in the Judgment in S.C. Chandra & Ors. Versus State of Jharkhand & Ors. [JT-2007 (10) 4SC 272) of the prerequisite of complete and wholesale identity between two groups for a sustainable claim of pay parity has been invoked.
It is also stated that the applicants have been allowed to retain Group-B Non-Gazetted classification on personal basis; hence it is not a case of any anomaly as such. For these reasons, the claims of the applicants for parity with CSS/RBSS Assists and for grant of Apex Group C scale have been viewed to be without any substance.
6. In the instant OA, the thrust of the applicants arguments is on the loss of status and adverse impact on the promotional prospects. Shri B.S. Mainee, the learned counsel for the applicants would particularly advert to the averments in para 4.7 of the OA. It inter alia states that due to the unilateral changes in their service conditions since 2003 so many anomalies had arisen. The applicants who had initially been appointed to Group B Non-Gazetted status, had been forcibly clubbed with the Group C staff. The grant of Group-B Non-Gazetted status in personem is stated to be a sheer mirage. The placement of the applicants in Group C is also contended to be a reversion in terms of the provisions of para 211(i) of IREM (Vol.I) which inter alia includes promotions from lower grade to higher grade, one class to another class and one group to another group. It is contended that such a reversion could not be inflicted upon an employee except as a major penalty.
The learned counsel Shri B.S. Mainee would argue that whereas under the original scheme the next step of promotion for the applicants was to a Gazetted Group B post, and thereafter to a Group A post; quite to the contrary under the new scheme the further promotion of the applicants could only be to intermediate Group C posts before they could ever hope to become Gazetted Group B officers, least of all aspire for Group A.
It has also been argued that as a result of the new dispensation, the applicants have been made to suffer in the matter of ACP. Since the benefits under the ACP are in the next higher grade in the hierarchy, the colleagues of the applicants have been placed in higher scales as compared to them.
The learned counsel for the applicants would seek to project the present case as one of apparent injustice and arbitrariness as the applicants who had been selected as Assistants on the basis of some open Competitive Examination have been made to suffer adversely in service conditions as also in future promotional prospects as compared to their counterparts selected much later and posted in Central ministries and attached offices. The placement of the applicants in the RDSO - after its being declared a subordinate office like the Zonal Railways is stated to be without inviting any option from the applicants and having been done unilaterally by the respondents. A contention of their initial allotment to the RDSO having been done on the basis of merit in the Competitive Exam would also be made. Shri B. S. Mainee would raise the legal plea of decisions of Government - even when they are policy decisions being challengeable in judicial review, in cases they are arbitrary and violative of Article -14. In support the following dicta of the Apex Court in Dr. V.K. Kashyap Versus Union of India & Ors. [OA No.1896/2008] would be referred by the learned counsel.
30. What is permissible to be interfered in a policy decision is only the decision making process, as ruled by the Apex Court in Reliance Energy Limited & Anr. V. Maharashtra State Road Development Corporation Limited & Ors., (2007) 8 SCC 1 that an act of the Administrative Authority amenable to be interfered when it suffers from illegality, irrationality and procedural impropriety.
7. On the other hand, the case of the respondents would be strongly defended by the learned counsel Shri R.L. Dhawan. The decision to change the status of RDSO from an attached office of the Railway Ministry to that of a Zonal Railways would be submitted to be a policy decision not within the purview of the judicial review. Further it would be submitted that majority of the staff of the RDSO were unhappy with the attached office status and wanted according of the Zonal Railway Status.
The counter affidavit also avers in detail about the decision being a well considered one. After the Central Government Notification dated 11.10.2002 (Annex.-A5) regarding the change of status of the RDSO, a Committee had considered the effect of the change over. Taking into account the recommendations made by the Vth CPC, it had been decided by the Ministry of Railways that the categories being operated on the pattern different from the pattern prevailing in Zonal Railways/Production Units should be brought at par with the pattern existing for the corresponding categories in the Zonal Railways. Further, it was decided that the categories which are unique to RDSO should be operated as per the revised structure indicated in Railway Boards letter dated 04.12.2003 (Annexure-A1). Accordingly, the existing Assistants in grade Rs.5500-9000 were decided to be re-designated as Office Superintendent-II in the same grade as Group B (Non Gazetted) as personal to them retaining their existing status.
The learned counsel Shri R.L. Dhawan would submit about RDSO cadre being a separate cadre and refer to the R.B. circular dated 04.12.2003 (Annex.-I) Shri Dhawan would also produce a copy of a communication dated 16.2.2012 with reference to a Legal Cells note in the context of the present OA. It inter alia reiterates, Accordingly, the present status of all applicants who were recruited as Assistant (Group B Non-Gazetted) may be considered to be Group B (Non-Gazetted) for al purposes till they are promoted to Group B Gazetted posts.
The respondents learned counsel would seek to rebut the rival contentions of the applicants having been allotted to the RDSO by virtue of their merit in the open Competitive Examination. By referring to the RTI information to the applicant No.2 vide letter dated 21.7.2009 (Annex-A-4), it would be sought to be driven home that as per the merit position and order of preference in the Assistant Grade Exam, 1995, he had been selected in the last category (D) and also called under the category of Other Offices to Lucknow Office of RDSO keeping in view the fact of his hailing from Lucknow.
As per the respondents, even the promotional prospects of the applicants had been well taken care of. Para 1.2 of the counter reply submits details about better promotional avenues being available post 2003 scenario as compared to the pre-change status. The following averment is made :-
A: Post available for promotion prior to 01.01.2003 when RDSO was attached office of Ministry of Railways :
S.No. Category No. of Post
(i) Section Officer in grade of Rs.6500- 25
10500 (Rs.7500-12000 provisional).
(ii) Deputy Director in scale of Rs.10,000- 3
15,200/-
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28
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B. Post available for promotion in changed set up from 01.01.2003
Category No. of Post
(i) OS-I (Rs.6500-10500) = 20 posts
(ii) Chief OF (Rs.7450-11500) = 10 posts
(iii) APO (Rs.7500-12000) = 05 posts
(iv) SPO (Rs.10000-15200) = 01 posts
(v) Dy. CPO (Rs.12000-165000/ = 02 posts
14300-18300)
Total = 38 posts
NOTE :1
Now as per 6th Central Pay Commissions recommendations, 20 posts of OS-I (Rs.6500-10500) has been merged with the scale of Rs.7450-11500 making a total of 30 posts in Rs.7450-11500. Even the rival contention of the applicants being deterred from promotions in Group B Gazetted posts has been rebutted. In their Additional Reply, it is submitted that the applicants are eligible for selection for promotion as Assistant Personnel Officers (Group B Gazetted) both in the 70% selection Quota as well as 30% LDCE quotas. In fact respectively 7 and 6 applicants, out of the present lot, had actually appeared in these Selection Exams held in April & May, 2010; and two applicants (No.14 and 17) had even qualified in the selection for promotion as APO.
The Additional Reply avers that the applicants having availed of the channel of promotion as APO which is available to them as Office Suptd II are stopped to challenge cadre restructuring orders dated 4.12.2003 by which they have been re-designated as OS-II. As regards the allegedly adverse impact on ACP/MACP, it is submitted in the Respondents Additional Reply that after the change of status of the RDSO and consequent cadre restructuring the, concerned staff are entitled for the benefit of ACP as per the hierarchy available in the Zonal Railways. It is further stated that after the introduction of the 6th CPC under the MACP scheme, the hierarchy has no relevance. The following averment is made :-
Moreover after the introduction of 6th CPC the scheme of ACP is now replaced by MACP (Modified Assured Career Progression Scheme) in which financial up-gradation is given as per the table notified by the Pay Commission viz. from Grade Pay 4200 -> 4600 -> 4800 ->5400 and this has no relevance with the hierarchy of the cadre/post and as such now all the staff are at par (irrespective of the fact whether they are working in Zonal Railways/Railway Board/Central Secretariat) in so far as MACP is concerned. By way of legal grounds the learned counsel Shri R.L. Dhawan would raise the issue of Limitation as well as delay and latches, since the applicants were agitating certain grievances arising out of restructuring of RDSO undertaken in the year 2003. The learned counsel would also contend that the employees plea about the service conditions remaining static was not tenable in law. The following extracts from the CAT common order in the OA No.1234/2006 and OA No.1868/2006 decided on 23.8.2007 would be cited in support. :-
21. Further, we have to take note of the circumstances that it is not as if service conditions of Government employees remain static, and the Government is not within its powers to change them, in line with their thinking. Once a person joins service under the Government, the relationship between him and the Government is in the nature of status rather than contractual and terms of service while he is in employment are governed by statutory rules, which could be unilaterally altered without the consent of the employees concerned (See 1997 SCC L&S 1527 Constitution Bench). To the same lines are observations made by the Supreme Court again in Govt. of A.P. & Ors. Vs. Syed Yousuddin Ahmed (1997 SCC (L&S) 1587) where Court had gone to the extent of observing that such changes could be brought about unilaterally and even retrospectively Railway Boards orders are recognized as statutory in nature by virtue of the powers that had been conferred on them, and we have to notice the submissions of Mr. Dhawan that the orders relating to restructuring had been arrived with a consensus, after discussions with the recognized Unions. The learned counsel Shri Dhawan would also rely upon the CAT order dated 07.03.2006 in the OA No.1861/2004 and OA No.1982/2004 to contend that a policy decision of the Government cannot be challenged before the Court on the ground of affecting or reducing promotional avenues. The following extracts would be referred :-
9. We have heard the learned counsel of the parties and perused the pleadings carefully.
The first and foremost question which needs determination is whether the Circular dated 9.10.2003 is a policy decision of the Ministry of Railways (Railway Board). If it is a policy decision, law is well settled as noticed in Balco Employees Union case (supra), that Court cannot struck down the policy decision of the Government merely because a different policy would have been fairer or more scientific or more logical. We may note at the outset that Shri G.D. Bhandari, learned counsel appearing for the applicants has not questioned that the decision taken vide impugned Circular dated 9.10.2003 is in the realm of a Policy Decision. When such are the undisputed facts, we need not to go into this issue further.
Shri R.L. Dhawan, learned counsel appearing for the respondents relying upon the judgment of Calcutta Bench in TA No.1840/1986 Somnath Mukhopadhyaya & Ors. V. UOI & Ors. decided on 30.11.1991 contended that change in promotional policy cannot be challenged before the Court on the ground of affecting or reducing promotional avenues. Merely because the rule affects the chances of promotion could not be regarded as varying conditions of service. A right to be considered for promotion is a term of service but mere chances of promotion are not. Our attention was drawn on the settled law on this aspect by the Apex Court in Mohd. Shujat Ali & Ors. v. UOI & Ors. (AIR 1974 SC 1631), State of Maharashtra & Anr. v. Chanderkant Anant Kulkarni & Ors. (AIR 1981 SC 1990) K. Jagdeesan v. UOI (1990 Lab. IC 839) and Union of India & Ors. v. S.L. Dutta & Anr. (AIR 1991 SC 363).
8. After careful consideration of the respective submissions, the material on record and the law on the subject, the claims in the OA are not found to be tenable. The reasons are stated below.
8.1 The grievances of the applicants are essentially arising out of the restructuring of the ministerial cadre of the RDSO in the wake of the change in its status. The cause of action thus, pertains to the 04.12.2003 Circular. Hence, the appropriate time for agitating such claims was in 2003 or soon thereafter. The piecemeal raising of the grievances i.e. first about the pay scale and now about the promotional prospects would not help the applicants cross the hurdle of delay and latches as also limitation, by which the OA suffers. As was observed by the Honble Apex Court in Union of India & Ors vs M.K. Sarkar {2010 (1) SCC (L&S) 1126}:
Issue of limitation or delay and latches has to be considered with reference to original cause of action and not with reference to the date on which an order is passed in compliance with a Courts direction.
8.2 In the first OA (No.1010/2008) where the applicants were common to some of the ones in the instant OA (though less in number) the grievance was confined to grant of the Apex pay scale in Group C to facilitate future advancement. The claims in the present form were not agitated. This itself makes the OA suffer from the infirmity of constructive res judicata. In The Workmen of Cochin Port Trust vs The Board of Trustees of the Cochin Port Trust & Anr {AIR 1978 SC 1283, elaborating the scope of the principles of res-judicata and constructive res-judicata, the Honble Apex Court had observed as follows:-
.. If by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res-judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties. The principle of res-judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication; then also the principle of res-judicata, on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eyes of law, to avoid multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and, therefore, is taken as decided.
8.3 Taking necessary steps for improvement of the organization, as also determining service conditions of its employees has been held to be within the legitimate domain of the executive. In its judgment in Union of India vs Pushpa Rani & Ors {(2008) 2 SCC (L&S) 857}, the Honble Apex Court had observed:
Matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of employees fall within the exclusive domain of the employer. What steps should be taken for improving the efficiency of the administration is also the preserve of the employer.
Further, as the limited scope of judicial intervention, it was stated:
Power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or vitiated by malafide.
The present case is one such instance. The applicants are challenging certain decisions i.e. in the nature of policy decisions taken in the overall organizational interest. As is revealed from the respondents submissions, majority of the employees in the RDSO wanted the change of status. The claims being agitated through the instant OA for retention of the service conditions of the applicants at the time of the recruitment, in disregard of the changes in the governing Rules brought about in the meanwhile, would not be in consonance with law. The coordinate Benchs exposition on the subject relying upon the Apex Courts judgment in its order in OA No.1234/2006 and OA No.1868/2006, referred by the respondents, reinforces the settled proposition of law on the subject.
8.4 Even if within its limited scope judicial intervention in policy decisions has been held to be permissible, the case in hand is clearly not one in that category. Considering the entire gamut of facts i.e. re-designation in the same pay scale; retention of Group B Non Gazetted status in personem till their promotion to Group B Gazetted; acceding to the demand for the higher pay scale (Rs.6500-10500 instead of 5500-9000) after the VIth CPC the plea of arbitrariness is not found to be tenable.
8.5 The two fold main planks of the applicants claims i.e. loss in status and adverse impact on promotional prospects have been effectively rebutted by the respondents by factual submissions. Even accepting the applicants contentions about adverse impact on promotional prospects at its face value, the law would not be in their form. The settled proposition of law as reiterated by the Apex Court in its recent judgment in Registrar General, High Court of Judicature of Madras Vs R. Perachi & Ors ({2011) 2 SCC (L&S) 643:
32. Besides, there is no right of promotion available to an employee. He has a right to be considered for promotion which has been held to be a fundamental right (see para 13 of S.B. Bhattacharjee v. S.D. Majumdar; (2007) 10 SCC 513). However, though a right to be considered for promotion is a condition of service, mere chance of promotion is not (see para 15 of the Constitution Bench Judgment in Mohd. Shujat Ali v. Union of India; (1975) 3 SCC 76}
9. To conclude, neither on facts nor on law the case goes in favour of the applicants. The OA is therefore, found to be bereft of merits and dismissed with no orders of costs.
( Dr. Veena Chhotray ) ( G. George Paracken )
Member (A) Member (J)
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