Gujarat High Court
Dedicated Freight Corridor ... vs Jai Singh S/O.Mehar Singh on 25 October, 2019
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A. P. Thaker
C/LPA/241/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 241 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 50 of 2013
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2019
In
R/LETTERS PATENT APPEAL NO. 241 of 2019
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 7 of 2019
In
R/LETTERS PATENT APPEAL NO. 241 of 2019
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 8 of 2019
In
R/LETTERS PATENT APPEAL NO. 241 of 2019
With
R/LETTERS PATENT APPEAL NO. 697 of 2019
With
R/LETTERS PATENT APPEAL NO. 688 of 2019
In
SPECIAL CIVIL APPLICATION NO. 50 of 2013
With
R/LETTERS PATENT APPEAL NO. 689 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9563 of 2013
With
R/LETTERS PATENT APPEAL NO. 686 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9563 of 2013
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 6 of 2019
In
R/LETTERS PATENT APPEAL NO. 686 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9563 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
Page 1 of 52
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C/LPA/241/2019 CAV JUDGMENT
and
HONOURABLE DR.JUSTICE A. P. THAKER
================================================================
1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
================================================================
DEDICATED FREIGHT CORRIDOR CORPORATION OF INDIA LTD
Versus
JAI SINGH S/O.MEHAR SINGH
================================================================
Appearance:
MR KAMAL TRIVEDI SENIOR ADVOCATE WITH MR RAMNANDAN
SINGH(1126) for the Appellant(s) No. 1,2,3
for the Respondent(s) No. 10,4,5,6,7
MR GM JOSHI(370) for the Respondent(s) No. 1,2,3
MR KAUSHAL D PANDYA(2905) for the Respondent(s) No.
100,101,102,103,104,105,106,77,78,79,80,81,82,83,84,85,86,87,88,89,90,91,
92,93,94,95,96,97,98,99
MR PRASHANT DESAI SENIOR ADVOCATE WITH MR RUTUL P
DESAI(6498) for the Respondent(s) No.
11,12,13,14,15,16,17,18,19,20,21,22,23,24,25,26,27,28,29,30,31,32,33,34,35
,36,37,38,39,40,41,42,43,44,45,46,47,48,49,50,51,52,53,54,55,56,57,58,59,6
0,61,62,63,64,65,66,67,68,69,70,71,72,73,74,75,76,9
MS ARCHANA U AMIN(2462) for the Respondents No.
107,108,109,110,111,112,113,114,115,116,117,118,119,120,121,122,123,12
4,125,126,127,128,129,130,131,132,133,134,135,136,137,138,139,140,141,1
42,143,144,145,146,147,148,149,150,151,152,153,154,155,156,157,158,159,
160,161,162,163,164,165,166,167,168,169,170,171,172,173,174,175,176,17
7
RULE UNSERVED(68) for the Respondent(s) No. 8
================================================================
CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE DR.JUSTICE A. P. THAKER
Page 2 of 52
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C/LPA/241/2019 CAV JUDGMENT
Date : 25/10/2019
CAV JUDGMENT
(PER : HONOURABLE DR.JUSTICE A. P. THAKER)
1. All these Letters Patent Appeals have filed under Clause 15 of the Letters Patent Appeal against the common judgment and order dated 26.10.2018 passed by the learned Single Judge in Special Civil Application No.50 of 2013 with Special Civil Application No.9563 of 02013, whereby the learned Single Judge has quashed and set aside Clause 8(b) of the Promotion Policy of 2012 contained in the Circular No.HQ/HR/3/Prom.Pol./13 dated 24.04.2012 by which Dedicated Freight Corridor Corporation of India Limited (hereinafter be referred to as "the Corporation") has decided to count "residency period" for promotion by taking into account the deputation period rendered in the organization followed by permanent absorption and directed the said Corporation to consider the case of the original petitioners by holding a review departmental promotion committee and grant promotion to the petitioners to the post of Managers w.e.f. 19.11.2012 / 01.01.2013 as the case may be with all consequential benefits.
2. Being aggrieved and dissatisfied with the impugned judgment and order 26.10.2018 passed by the learned Single Judge, the Corporation has preferred Letters Patent Appeal No. 241 of 2019 in Special Civil Application No. 50 of 2013 and Letters Patent Appeal No. 686 of 2019 in Special Civil Application No. 9563 of 2013. Whereas, the original respondents No.5 to 7 have preferred Letters Patent Appeal No.688 of 2019 in Special Civil Application No.50 of 2013 and original respondents No.3 to 4 have preferred Letters Patent Page 3 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT Appeal No.689 of 2019 in Special Civil Application No.9563 of 2013. Whereas, persons who have not been shown as party respondents in main petition being Special Civil Application No.9563 of 2013 have preferred Letters Patent Appeal No.697 of 2013 in Special Civil Application No.9563 of 2013.
3. Considering the facts that the learned Single Judge has passed the common judgment and order in Special Civil Application No.50 of 2013 with Special Civil Application No.9563 of 02013, all these appeals are arising out the same common judgment and order, all these appeals are being heard jointly and are being disposed of by this common order.
4. Considering the fact that the controversy in the matters are the same, the facts of Letters Patent Appeal No.241 of 2019 arising out of Special Civil Application No.50 of 2013 are taken as lead matter. It is pertinent to note that pending these appeals, the concerned appellants have moved applications for interim stay of the impugned judgment and order of the learned Single Judge. After hearing both the sides, this Court vide order dated 18.03.2019 has passed the order staying the operation of the impugned judgment and order, wherein, the observation was made to the effect that it would open for all those, who are likely to be affected, on account of the consideration and decision of these matters, to come forward being heard in the present proceedings and appellant was directed to circulate this order and place it on the notice board so that all interested persons are likely to affect may note of it and take steps for joining. On such direction, number of persons have come forward for joining party and accordingly, in each of the petition, the persons, who are likely to be affected to the decision, approached this Page 4 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT Court and all the applications have been allowed and, therefore, all the cases, certain more other persons have joined as party respondents.
5. Heard Mr.Kamal Trivedi, learned senior counsel with Mr.Ramnandan Singh, learned counsel for the appellants in Letters Patent Appeal No.241 of 2019 in Special Civil Application No.50 of 2013 and Letters Patent Appeal No.686 of 2019 in Special Civil Application No.9563 of 2013, Mr.K. K. Shah, learned senior counsel for the appellants in Letters Patent Appeal No.688 of 2019 and Letters Patent Appeal No.689 of 2019, Mr.G. M. Joshi, learned counsel with Mr.I. G. Joshi, learned counsel for respondents No.1 to 3, Mr.Prashant Desai, learned senior counsel with Mr.Rutul Desai, learned counsel for respondents No.11 to 76, Mr.Kaushal Pandya, learned counsel for respondents No.77 to 106 and Ms.Archana Amin, learned counsel for respondents No.107 to
177. Perused the materials placed on record and the impugned judgment and order.
6. Mr.Kamal Trivedi, learned senior counsel with Mr.Ramnandan Singh for the appellants has submitted that the Promotion Policy which was framed by the Corporation is not statutory policy and it is not framed under Article 309 of the Constitution of India and it is not justiciable. He has submitted that by framing of policy sometime one class person may be heard but does not mean that policy is vague. He has submitted that there cannot be same criteria for the promotion and seniority. That separate condition may be prescribed and seniority by the competent authority.
6.1 While referring to the HR Policy of the Corporation, Mr.Trivedi, learned senior counsel has submitted that for Page 5 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT promotion, all clauses are to be considered which includes Clause 5, 8(b) and 10(b). While referring to Clause 5, Mr.Trivedi, learned senior counsel has submitted that for promotion, Clause 5 is material one. According to him, the residency period is to be completed before any one can get promotion in higher post. While referring to Clause 8(b), learned counsel has submitted that while deciding the promotion, the period spent by the employee in the Corporation have been considered for absorption on permanent basis in the Corporation, which fact has not affected anybody's right as they were working since their inception. The petitioners have been employed by immediate absorption policy. But for getting promotion, they have to satisfy the condition of residency for respective period. Mr.Trivedi, learned senior counsel has also submitted that Clause 8(b) has, now, been amended by the Corporation by inserting Clause 8(b)(i) and 8(b)(ii) on 18.07.2017. While referring to the original petitions of the respondents, Mr.Trivedi, learned senior counsel has submitted that they have challenged the old Clause 8(b) and only that clause was under consideration before the learned Single Judge. He has submitted that Clause 5 of the policy has not been challenged by the petitioners and even not stayed by the learned Single Judge. While assailing the impugned judgment and order, Mr.Trivedi, learned senior counsel has also submitted that the learned Single Judge has decided the matter on the basis of analogy of other Corporations' policy. While assailing the impugned judgment and order, Mr.Trivedi, learned counsel has also submitted that the decision based on the policy of the Konkan railway is not legal and valid. While reading the policy of the Corporation as well as Konkan railway policy, he has submitted that there is no similarity in the rules and the reliance placed on the Ministry of Railway Page 6 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT Policy, Clause 203(2) cannot be said to be equal to all the independent establishment. He has also referred to the policy of the Railway Nigam and has submitted that the Corporation has followed the policy of the Railway Nigam considering the peculiar facts and circumstances of the present Corporation and the fact that at the initial stage of the inception of the Corporation, the persons, who have helped in creating the Corporation and have spent their long service in the Corporation, to recognization of their long service Clause 8(b) was added and it was provided that the time spent by deputationists, who have been made absorb in permanent, may be considered for residency period for getting promotion.
6.2 Mr.Trivedi, learned senior counsel has submitted that comparison of Rule 10(b) and Rule 8(b) by the learned Single Judge does not sound proper as both are applicable in different area. According to him, Rule 10(b) is pertaining to the seniority, whereas, Rule 8 is pertaining to the area of promotion. It is his contention that for getting promotion, one has to fulfill the condition of Clause 5. It is his contention that the comparison with the Rules of policy of other Corporations by the learned Single Judge is not proper.
6.3 Mr.Trivedi, learned senior counsel has also submitted that the matter pertains to the policy matter and the recruitment to the Corporation was made by direct recruitment or by deputation from the railway and other Government organization. He has submitted that as per the HR Manual of the Corporation is (i) deputation of absorption and (ii) to direct recruitment. While referring to Clause 8, Mr.Trivedi, learned senior counsel has submitted that eligibility criteria for promotion is four years residency period in a given lower Page 7 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT grade post out of which Rule 8(b) is under challenge, whereas, Clause 10 refers to the seniority amongst the employees. Mr.Trivedi, learned senior counsel has also submitted that there was no cause of action arisen when the petition was filed as the petitioners therein have not completed four year residency period in lower grade post. He has submitted that there is no reference of the deputation in Clause 5 and the word "residency" is not defined. While referring the judgment and order of the learned Single Judge, Mr.Trivedi, learned senior counsel has also submitted that the learned Single Judge has struck down the Rule 8(b) with Rule 10 which is not permissible. According to him, Rule 8(b) is now amended in 2017. According to him, all the rules are framed by the Corporation under exercise of its exigency power and this is a policy matter and it is under domain of the Corporation. It is submitted that the same cannot be justiciable under Article 226 of the Constitution. That there is no ground of substitute the policy if the better policy may have framed. It is his contention that it is the jurisdiction of the organization to frame its HR policy for the particular institutions and no one can dictate the authority to frame particular form of service policy.
6.4 Mr.Trivedi, learned counsel has submitted that for getting promotion, the condition precedent is four years residency period, which is not fulfilled by the original petitioners. He has submitted that Clause 5 and 8(b) have to be read together and cannot be read in isolation. He has submitted that Clause 5 does not deal with the deputation. Learned counsel has submitted that for deciding impact of Rule 8(b), certain points have to be considered which includes "whether it is objectionable or whether it is wrong either on morality or propriety or whether it is not legal. It is his contention that Page 8 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT Rules are just directions and it is not justiciable and Rule 5 of the policy has not been challenged by the petitioners. According to him, before getting promotion, the petitioners have to cross hurdle of the residency period of four years.
6.5 While referring to the date of entries of the contesting respondents, whose promotions have been sanctioned under Rule 8(b), Mr.Trivedi, learned senior counsel has submitted that they have joined the Corporation in the year 2007-2008, whereas, the original petitioners have entered in the Corporation in the year 2011-2012. He has submitted that the date of promotion of the deputationists is 19.11.2012. He has submitted that original petitioners have joined in the same cadre as direct recruit, whereas, the promotees are absorbed on 19.11.2012 and considering Rule 8(b) of the policy, the promotion to the higher post has been granted to them considering their deputation period. According to him, the directions of the learned Single Judge if incorporated, then very rule of Clause 5 of the policy, the rules would become redundant. It is submitted that there is different yardstick for seniority and for promotion. While assailing the impugned judgment and order, Mr.Trivedi, learned counsel has submitted that the approach of learned Single Judge in considering the policy Rules of other organization is not proper as there may be different rules for different organizations, even if, they are established by the same ministry. According to him, there is no any enactment that the rules of two organizations must be similar. While referring to the Railway Board Rules and Railway Vikas Nigam Rules, he has submitted that both are under the Ministry of Railway and yet there are different set of rules prevailing therein. He has submitted that when the condition precedent of four years residency period is not fulfilled by the original Page 9 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT petitioners, they cannot claim for promotion in the line of Rule 8(b). He has submitted that if the direction of the learned Single Judge is maintained then within a period of one year of their recruitments as a direct recruit, the petitioners will get promotion and in such event there is no compliance of Clause 5 of the policy. He has submitted that Rule 10 is pertaining to the seniority and it has been very well settled that Rules for promotion and seniority may be different. While relying upon the following decisions, he has prayed to set aside the impugned judgment and order of the learned Single Judge.
1. Chief Commercial Manager, South Central Railway, Secunderabad and others, (2007) 8 SCC 212;
2. K. A. Nagamani Vs. Indian Airlines and others, (2009) 5 SCC 515;
3. State of Himachal Pradesh and others Vs. Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh, (2011) 6 SCC 597;
4. P. U. Joshi and others Vs. Accountant General, Ahmedabad and others, (2003) 2 SCC 632;
5. Tamil Nadu Electricity Board and another Vs. Tamil Nadu Electricity Board Thozhilalar Aykkiya Sangam, (2008) 3 SCC 359;
6. R. Prabha Devi and others Vs. Government of India and others, (1988) 2 SCC 233;
7. S. K. Mathur and others Vs. Union of India and others, (1998) 4 SCC 134;
8. I. k. Soni and others Vs. State of Gujarat and others, 1989 (1) GLH 1;
9. Palure Bhaskar Rao and others Vs. P. Ramaseshaiah and others, (2017) 5 SCC 783;
Page 10 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT7. Mr.K. K. Shah, learned senior counsel for the appellants has supported the arguments advanced by Mr.Kamal Trivedi, learned counsel and has submitted that though the original petitioners have challenged Rule 8(b) and 10, they have not joined third party and added respondents, who are going to be affected by any decisions by this Court in their petitions. According to him, all these persons have not heard of before passing of such order. He has submitted that all the petitioners of the main petitions have got promotion in 2016 and this fact has been suppressed by them, while hearing of the main petitions by the learned Single Judge. While referring to the impugned judgment and order especially paras 2.2, 2.3 and 3.2, he has submitted that the observations made against one P. K. Rao, who has not been joined and he has submitted that the petitioners have got promotion under Rule 8(b), whereas, new Rule 8(b) has been enacted during the pendency of the original petitions, however, they have not amended their plaint and even at the time of pronouncement of the judgment, old Rule 8(b) was not in existence. He has submitted that both the sides have not argued on Clause 5 of the policy before the learned Single Judge. While referring to page-34 which is reply to the representations made against some clauses of absorption / promotion policy by the DGM/HR of the Corporation dated 03.07.2012, he has submitted that proper reply has been given to the petitioners, which has referred to the decision of the Apex Court in the case of R. Prabhadevi Vs. GOI. While referring to the impugned judgment and order, he has submitted that there is no mentioned of the discussion of the judgment cited by the parties. He has submitted that one set of Rules cannot be applied to the other set of organization and due to impugned judgment and order, the persons who have earlier got the promotion on the basis of Rule 8(b) will Page 11 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT be seriously effected who are not joined as party in the original petitions and yet in their absence, the learned Single Judge has passed the impugned judgment and order which is contrary to the law. While relying on the following decisions, he has prayed to allow all the Letters Patent Appeals and to set aside the impugned judgment and order of the learned Single Judge.
7.1 Mr.K. K. Shah, learned counsel has relied upon the decision of the Apex Court in the case of S. K. Mathur and others Vs. Union of India and others, (1998) 4 SCC 134.
8. Ms.Archana Amin, learned counsel for the respondents No.107 to 177 has also adopted the submissions advanced by Mr.Trivedi, learned senior counsel and Mr.Shah, learned counsel and has submitted that when these persons have joined the Corporation, initially, there was no promotion avenue and, thereafter, due to Clause 8(b), they were benefited and this is due to their long attachment with the Corporation which ought not to have been interfered with by the learned Single Judge. She has submitted that the impugned judgment and order affects rights of the several persons who have joined the Corporation at initial stage and have left their original department and they have absorbed in the Corporation. She has submitted that there is need to interfere with the impugned judgment and order of the learned Single Judge.
9. Per contra, Mr.Pranav Desai, learned counsel with Mr.Rutul Desai, learned counsel for the contesting respondents has submitted that the Corporation - DFCCIL is functioning under the law of Ministry of Railway. He has submitted that the structure of the company is government company and as the Page 12 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT company is PSU under the Railway Ministry, it has to follow the constitutional provision and if there is promotion policy, it should be constitutionally valid and if there is breach, Articles 14, 16 and 309 of the Constitution of India then the writ would be maintainable. While referring to page No.176 which is copy of the compliance of the minutes of 30 th meeting of the Board of Directors of the company especially page Nos.179 and 180, Mr.Desai, learned counsel has vehemently submitted that the provisions made therein clearly suggests that they followed Government Rules regarding deputation and there is mentioned that whenever DPE guidelines are available and the same was to be followed in absence of the DPE guideline on any aspect, the instructions of DOP&T, MoR and the policies of other PSUs are being followed. Mr.Desai, learned counsel has submitted that therefore, the Corporation has to follow the Rules of the Ministry of Railways. He has submitted that without following that Rules, the Corporation has framed Rule 8(b) with an intention only to give extra benefit to the deputationists which is against the basic manual and the direction of the DOPT.
9.1 While referring to Clause 3.10 at page No.102 of the policy of Konkan Railway Corporation, he has submitted that this organization is also under the Railway Ministry and specifically made provisions that if an executive is absorbed in KRCL in the same grade of parent departments, the service rendered, on a regular basis in that grade in the parent department shall be considered and if an executive is absorbed on a higher grade in KRCL, his date of seniority will be counted from the date of his absorption in the particular grade and shall be eligible for promotion as applicable to other KRCL executives in that particular grade/post, is required to be followed by the present Corporation - DFCCIL.
Page 13 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT9.2 He has submitted that the petitioners have joined the Corporation on the promises given to them in advertisement which specifically states that the engineers are the core category of the company and given promotion to the higher grades and, therefore, there was acceptance on the part of the petitioners from the Corporation there will be higher promotion in the Corporation but by passing Rule 8(b), the promotion avenue of the petitioners have been adversely affected. Mr.Desai, learned counsel has also submitted that when the petitioners have joined in the Corporation there was no any rule applicable for promotion and after leaving their past job in the railway, the petitioners have, on the basis of the promises given in the advertisement by the Corporation, joined the Corporation and after they joining the Corporation, the Corporation has changed the policy which is adversely affecting the career of the petitioners, they have to challenge only that Rule which was against their interest i.e. Rule 8(b). While referring to Clause 10(b), Mr.Desai, learned counsel has submitted that this Rule provides regarding seniority and Clause 10(b) thereof, clearly suggests that a person absorbed in a particular grade on a particular date would rank senior to the ones who are absorbed at a later date. According to him, in view of this provision, as the petitioners have permanent absorbed in Corporation and they are senior to the persons who are on deputation in the Corporation and were not absorbed on that day and later on absorbed they would be junior to the petitioners, however, by virtue of Rule 8(b) promotional post they are senior to the permanent absorbed persons who are directly recruited and this is against Clause 10(b) of the policy. According to him, Clause 8(b) and 10(b) are contrary to each other. He has submitted that there was no Rule 8(b) in the policy, when the Page 14 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT petitioners have joined the Corporation and that clause has been amended only with a view to help the deputationists, which is against the violation of the promotion given by the Corporation to the original petitioners and, therefore, the petitioners have to challenge only Rule 8(b) and accordingly, they have challenged the same. He has submitted that there is no need for the petitioners to challenge Rule 5 as specifically has not affected their career.
9.3 While referring to the case of one Palure Bhaskar Rao, Mr.Desai, learned counsel has submitted that to protect him, he has been given retrospective absorption which is clearly cured out from the seniority list. This fact shows that the discriminatory treatment has been given to the deputationists and direct recruitee. He has submitted that the deputationists, ordinarily, willing for three years and, thereafter, their period was extended and then they have absorbed and to give benefit to the deputationists as Rule 8(b) has been added.
9.4 Regarding amendment in Rule 10(b) in April 2017, he has submitted that the deputationists have been granted double benefit as initially they have appointed for SSC post to the Assistant Manager. He has submitted that the petitioners have left their railway job considering the prospective of higher promotion in the department, whereas, the deputationists have not left their job from the parent department i.e. Railway Corporation and were getting benefit of original department as well as benefits from the Corporation.
9.5 While referring to the decisions cited by the appellants side, he has submitted that those cases are based on the factual Page 15 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT aspect and those cases especially in the case of S. K. Mathur and others Vs. Union of India and others, (1998) 4 SCC 134, the employees were different and the word was used is identical post and not promotional post. He has submitted that the learned Single Judge has rightly considered the HR policy of other organization which are established under the same railway ministry and discrimination found in Rule 8(b) and 10(b) and has rightly upheld the contention of the petitioners and has properly passed the impugned judgment and order and the same does not warrant any interference by this Court.
9.6 Mr.Desai, learned counsel has relied on the affidavit of Vikas son of Gopichand Makhijani filed in the case of Patel Pashabhai Amabhai and others Vs. Union of India and others rendered in Special Civil Application No.12438 of 2012 wherein the deponent has stated that he has Deputy Director / Infrastructure Cell in Railway Board (Ministry of Railways), Government of India and has stated that DFCCIL which is under the Ministry of Railway Board of India and company was incorporated only to make construction, maintenance and management and designing of heavy haul freight railway infrastructure for Ministry of Railways and that company is wholly owned Public Sector Undertaking under Ministry of Railways and that company is wholly board company, for his submissions that the company has to follow the office MOM and the railways of Rules of Ministry of law.
10. Mr.Desai, learned counsel has relied upon the following decisions.
1. T. Sridhar Vs. A. P. State Electricity Board, Hyderabad, ALD 1996 3 1040 of High Court of Andhra Pradesh;
Page 16 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT2. Bal Kishan Vs. Delhi Administration, 1989 (Supp 2) SCC 351 = AIR 1990 SC 100;
3. Union of India Vs. Omkar Chand, (1998 (9) SCC 298 = AIR 1998 SC 945;
4. Panchraj Tiwari Vs. Madhya Pradesh State Electricity Board, 2014 (5) SCC 101;
5. S. P. Shivprasad Pipal Vs. Union of India, (1998) 4 SCC 598 = AIR 1998 SC 1882;
11. Mr.G. M. Joshi, learned counsel with Mr.I. G. Joshi, learned counsel for respondents No.1 to 3 has vehemently submitted that the appellant - Corporation is under the Ministry of Railway and it is fully owned by the Government and it being instrumentality of the State, is amenable to writ jurisdiction of the Court. He has submitted that any administration action which infringes the rights of the petitioners, such action of the appellant could be challenged under the provisions of the Constitution. He has submitted that by way of filing the petitions, the petitioners have challenged only the term of "residency" and not challenged all rules. He has submitted that the original petitioners are the employees, who are senior to the respondents in different parent departments and, therefore, they are also entitled to get seniority over them in the appellant - Corporation. He has submitted that at the time of advertisement of the posts, there was no such policy of residency period and the policy has been changed after recruitment of the present petitioners in the department which has affected the valuable rights of the petitioners and they have now been placed as junior to the respondents. According to him, to such policy, the deputationists would get seniority over the service of the petitioners. It is submitted that all the petitioners are the same employees. He has submitted that eligibility of promotion cannot be changed by Page 17 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT merely coining if as "residency".
11.1 Mr.Joshi, learned counsel has also submitted that at the time of direct recruitment, the deputationists have also given chance, but they have not opted for the same and after inducement of the petitioners as direct recruit, the policy of promotion has been changed only with an intention to give benefits to the deputationists on the terms of residency period. He has also submitted that one cannot have employee of two different employer at a time. He has submitted that the deputationists have got benefits from the original employers i.e. department of Ministry of Railway for the service and simultaneously, they have also got benefits from the present appellant - Corporation. According to him, no double benefit can be granted to such employees. He has submitted that the learned Single Judge has considered all these facts while setting aside the impugned Rules and directing the appellants to give promotion to the original petitioners. Regarding decisions cited by the appellants side, Mr.Joshi, learned counsel has submitted that those decisions are tendered in specific factual aspect thereof and the principles enumerated therein are helpful to the original petitioners and not the appellants. According to him, Clause 8(b) of the policy has no nexus with the object sought to be achieved which is so canvassed by the appellant to protect the initial constitution of the cadre particularly when such a policy has been framed six years after the organization has come into force and particularly when the petitioners themselves were so absorbed looking to the experience on hand. While referring to the Indian Railway Establishment Manual, Vol 1, Clause No. 203.2, he has submitted that this policy keeps in mind the spirit of seniority and requires all persons who are senior and eligible to be considered for Page 18 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT promotion. According to him, Clause 8(b) of the policy of the appellants herein is illegal as held by the learned Single Judge. According to him, the impugned judgment and order of the learned Single Judge is proper and no interference is warranted in such decision.
11.2 Mr.Joshi, learned counsel has also submitted that at the initial stage, the petitioners were willing to offer themselves to serve the appellant - organization on deputation basis, however, their applications were not accepted and persons junior to them were sent on deputation. He has submitted that thereafter, the organization framed policy on 30.06.2010 and communication dated 28.07.2010 was issued suggesting that all those who had completed two years of deputation on 30.09.2010 were open to submit their willingness for permanent absorption under the organization. He has submitted that as the poor response was received from the deputationists, an advertisement being Advertisement No. 02/2010 appeared in the Employment News of 14-20 August, 2010 whereby the organization invited applications from willing and experienced Civil, Electrical and Signal & Telecommunication Engineers working in the Railways for the recruitment on immediate absorption basis. He has submitted that the petitioners that since they were given to understand that till the date of the said advertisement, there were no recruitment rules or promotion policy and at that point of time there were many deputationists in the Railways serving on deputation basis who were not willing to be permanently absorbed, the petitioners on such assurance submitted their applications on the pretext that they were promising opportunities for promotion to the higher grades. He has submitted that the petitioners were directly appointed in the year 2011. He has submitted that thereafter, the Page 19 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT Promotion Policy of 2012 was implemented and therein, Clause 8(b) was inserted which includes counting residency period for promotion and the eligibility criteria of promotion to the post of Managers, the minimum residency period is prescribed as four years. He has submitted that Clause 8(b) is framed in such a manner that the deputationists who were subsequently absorbed though junior to the petitioners promoted as Managers because their 'residency period' on which they have worked on deputation basis under the organization has been considered. According to him, it is against the rights of the original petitioners. According to him, no such policy ought to have been framed by the organization and this fact has affected the civil rights of the petitioners and, therefore, they have filed the petitions which have been rightly allowed by the learned Single Judge. Mr.Joshi, learned counsel has submitted that the other organizations which are under the umbrella of the Ministry of Railway have framed rules in such a manner that seniority of the persons who are joined service directly have been protected which rules have taken into consideration by the learned Single Judge by passing the impugned judgment and order. He has submitted that as Rules 8(b) and 10(b) are affecting the rights of the petitioners, they have challenged those rules, whereas, the "residency period" is concerned, they are not affecting them and, therefore, Rule 5 has not been challenged and there is no need to challenge the said rule of "residency period". He has prayed to dismiss the present Letters Patent Appeals and confirm the impugned judgment and order of the learned Single Judge.
12. In rejoinder, Mr.Kamal Trivedi, learned counsel has submitted the detailed written submissions which are as under:-
Page 20 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT(i) Prior to 01.01.2006, in Railways, there were two different posts of "Section Engineer" (SE) and "Senior Section Engineer") (SSE). The persons holding posts of Section Engineer were drawing pay in CDA (Central Dearness Allowance) i.e. pay scale of Rs.6500-10500 and the persons holding the posts of Senior Section Engineer were drawing pay in CDA pay scale of Rs.7450-11500.
(ii) With the implementation of the 6th Pay Commission in the month of August, 2008 with effect from 01.01.2006, there took place a merger of the aforesaid two pay-scales in Railways in Pay Bank 2 i.e. Rs.8300-34800, along with the Grade Pay of Rs.4600, with the result, there remained only one post of Senior Section Engineer in Railways.
(iii) So far as Petitioner No.1 - Shri Jai Singh; Petitioner No.2 - Shri Shailesh Upadhyay; Petitioner No.3 - Shri Anil Kumar Gupta;
and Petitioner No.4 - Shri Sanjeev Kumar Saxena are concerned, they all were working with Railways in the post of 'Senior Section Engineer', with the aforesaid pay scale in Pay Bank - 2.
(iv) Post of "Assistant Manager" in DFCCIL is in the IDA pay-scale of Rs.24,900-50,500/- in Grade - E 3 which is not the post of promotion as compared to the post of "Senior Section Engineer" in Railways, which is in the CDA of Rs.9300 - 34800/- plus Grade pay of Rs.4600/- in Pay Bank - 2, as indicated hereinabove.
(v) All the petitioners after completing the requisite period of service for pension, complimentary passes, medical facilities, etc. in Railways, came to be recruited for the first time in Page 21 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT DFCCIL in the year 2011-2012 under the 'Immediate Absorption Policy' and started working as 'Assistant Manager' in E-3 Grade.
(vi) As against the above, Respondent Nos.5 to 7 i.e. Shri P. M. Asai, Shri P. K. Rai, Shri O. P. Srivastava and Shri Pawan Kumar were originally working in the Railways in the following positions:
(i) Respondent No. 5 - Shri P. M. Asai - Senior Section Engineer (SSE)
(ii) Respondent No.6 - Shri P. K. Rai - Senior Section Engineer (SSE)
(iii) Respondent No.7 - Shri O. P. Srivastava - Section Engineer (SE) / Design Assistant
(iv) Respondent No.1 - Shri Pawan Kumar (LPA No.697 of 2019) - Section Engineer (SE) Pertinently, the above named Mr. Pawan Kumar even without completing the requisite period of service for the pension and other benefits in Railways, decided to be permanently absorbed in DFCCIL while he was a deputationist, without there being any benefits from Railways.
Further, when the offer for morning on deputation to DFCCIL was available to all the permanent employees of Railways, only Respondent Nos.5 to 7 and such other similarly situated persons chose to come to work as deputationists in DFCCIL, whereas the petitioners were rather fence-sitters and testing the depth of the water and only after completing the qualifying service in Railways for pension and other benefits, decided to come in DFCCIL, subsequent to the above referred Respondents. Therefore, it does not lie in their mouth to Page 22 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT allege any discrimination or disadvantage to them with reference to Respondent Nos.5 to 7.
(vii) Reliance placed on behalf of the Respondent Nos.9 to 76 on the extracts of Chapter-III of HR Manual (as on 24.04.2012) of DFCCIL is to mislead while alleging that the persons originally working in Railways in the Pay Scale of PB-2 of Rs.9300- 34800/- with Grade Pay of Rs.4600 were initially taken in DFCCIL on deputation in Higher Grade pay of Rs.5400/- and thereafter, when the said deputationists were absorbed permanently as Assistant Manager in DFCCIL, they were given further Higher Grade i.e. E-3 of Rs.24900-50500/-, whereas the Petitioners were given such Higher Grade only once at the time of they were recruited for first time in DFCCIL.
The aforesaid misconception on the part of the Petitioners is totally misplaced inasmuch as the original five petitioners and the original Respondent Nos.5 to 7 in the captioned appeal had come to DFCCIL before the commencement of new Promotion Policy dated 24-04-2012 as contained in clause Nos.5 and 8(b) of Chapter-IV of HR Manual. At that time, Senior Section Engineer / Section Engineer in Railways were working in P.B. - 2 i.e. Rs.9300-34800/- with Grade Pay of Rs.4600/- which was equivalent to IDA Scale of Rs.24900- 50500/- applicable to the post of Assistant Manager in DFCCIL.. Thus, it is not true that the deputationists were given Higher Grade twice as compared to the Petitioners.
(viii) It is also one of the contentions raised on behalf of the petitioners to the effect that the deputationists i.e. Respondent No.5 to 7 and other such similarly situated persons cannot be allowed to have dual benefits, viz. (i) Page 23 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT qualifying service for pension, privilege passes, etc. from Railway, and at the same time, (ii) residency period of 4 years put in by them in DFCCIL. According to the Petitioners, this is discriminatory inasmuch as the Petitioners having been recruited for the first time in DFCCIL, do not get any benefits available to the railways employees, apart from having been absorbed permanently in the service of DFCCIL earlier than the Respondent Nos. 5 to 7. Such a plea on the part of the Petitioners is totally misconceived and devoid of any substance. Pertinently, the deputationists while working with DFCCIL are not entitled to the benefits like LTC, which are otherwise available to persons like the Petitioners, in the employment of DFCCIL.
(ix) It is also the averments of the petitioners that the Respondent No.6 - Mr.P. K. Rai, having initially come in DFCCIL as deputationist, came to be permanently absorbed with retrospective effect, which is the extra favour by DFCCIL. In this regard, it is submitted that the said averment of the petitioners is factually incorrect inasmuch as, in case of Respondent No.6 - Shri P. K. Rai, he tendered his resignation from Railways on 19.06.2010, however, it was only on 10.01.2012 that Railways accepted the said resignation of Mr.P. K. Rai with effect from 22.06.2010. In view of this, DFCCIL issued an order dated 16.01.2012, permanently absorbing Mr.P. K. Rai as Assistant Manager in IDA pay-scale of Rs.24,900-50,500 (E3) w.e.f. 23.06.2010 i.e. the date following the date of acceptance of his resignation by his parent department. Thus, there was a mistake on the part of the Railways as the resignation dated 19.06.2010 of Respondent No.6 came to be accepted by the Railways only on 10.01.2012, but with effect from 22.06.2010 and that was how, DFCCIL issued an order dated 16.01.2012, permanently Page 24 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT absorbing him with effect from 23.06.2010. Hence, there is no substance in the aforesaid averments of the petitioners.
(x) It may be appreciated that DFCCIL does not want to belittle the experience on the part of the petitioners, which is of longer nature as compared to that of respondent No.5 to 7. However, by considering residency period of 4 years in the DFCCIL as the eligibility condition for being promoted to the higher post, the emphasis of consideration by DFCCIL is on the organizational experience within DFCCIL, which should be taken into account in case of any employee, regardless of the fact as to whether he was initially a deputationist and then absorbed as employee of DFCCIL, or he is permanently absorbed as employee of DFCCIL right from the beginning. In other words, it has been the attempt on the part of DFCCIL to recognize the hard work rendered by the deputationists for the development of DFCCIL at the initial stage.
(xi) It was also contended that the concerned Respondents were shown at Sr.Nos.13 to 21 in the Seniority List of Assistant Manager as on 30.06.2013 and thereafter, came to be pushed down to Sr.No.22 to 30, because of operation of clause 8(b).
Unfortunately, what is lost sight of is the fact that the Seniority List as on 30.06.2013 is for the post of 'Assistant Manger', where the concerned Respondents were shown at Sr.Nos. 13 to 21. As against this, second Seniority List cited on behalf of Respondent Nos.9 to 76 was not the Seniority List for the post of 'Assistant Manager' but was for the post of 'Manager' and that too as on 27.06.2018. It is in the said list that the concerned Respondents on promotion came to be adjusted from Sr.Nos.22 to 30, whereby they cannot be said Page 25 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT to be pushed down, as sought to be alleged.
(xii) Amendment in the erstwhile clause 8(b) by inserting clause 8(b)(i) and 8(b)(ii) with effect from 18.04.2017 is admittedly not retrospective in nature but it clearly says that the same will be applicable from the date of issue of Notification, i.e. from 18.04.2017.
(xiii) Further there was no question of realisation of alleged mistake with reference to the original clause 8(b) that amendment was effected therein with effect from 18.04.2017. In fact, it was nothing but a change in the policy decision prospectively.
(xiv) Each Public Sector Undertaking / Establishment of the Central Government is distinct and independent of each other and there is no mandate of whatsoever nature that they all should have uniform policy of service condition in the matter of eligibility criteria relating to promotion and seniority. In view of this, DFCCIL has never been obliged to follow what other Public Section Undertakings like - (i) Konkan Railway Corporation Ltd; (ii) Railway Board or (iii) Railway Vikas Nigam Ltd.
Pertinently, Rule 11 of the Recruitment and Promotion Rules, 2010 of Rail Vikas Nigam Ltd. does provide that the residency period of a deputationist prior to the permanent absorption shall be taken into account for the purpose of promotion to the higher post.
(xv) When the captioned writ petition was filed on 20.12.2012, there was no cause of action for the petitioners to file the said writ petition challenging the validity of Clause 8(b) of Page 26 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT Promotion Policy, 2012. Since the petitioners having been recruited in the year 2011-12 under "Immediate Absorption Scheme", had not completed minimum 4 years period of residency as per the requirement of Clause 5 of the said Promotion Policy, 2012 and that therefore, the said petition was not maintainable at the threshold and therefore, the learned Single Judge could not have entertained the said writ petition.
(xvi) One is required to read and operate Clause 5 and Clause 8(b) of Promotion Policy, 2012, contained in the HR Manual of DCCIL, together and that, therefore, the challenge against Clause 8(b) in isolation could not have been entertained so long as Clause 5 of the policy holds the field, which though does not speak about deputation, mandatorily requires completion of minimum period of residency of 4 years for claiming the promotion.
(xvii) The learned Single Judge should not have drawn contradistinction between Clause 8(b) on one hand and Clause 10(b) of th HR Manual of DFCCIL, on the other and should not have held that 'the aspect of seniority which is the prime consideration for the purpose of promotion'. In fact, what is lost sight of by the learned Single Judge is the hard fact that in DFCCIL, the aspect relating to 'Eligibility for promotion' as contained in Clause 5 of the HR Manual and the aspect relating to 'Seniority' as contained in Clause 10(b) of HR Manual, are two different aspects. In this behalf, reliance is placed on the decision of the Apex Court in the case of Shiba Shankar Mahapatra Vs. State of Orissa, reported in (2010) 12 SCC 471, wherein the Apex Court, inter alia, observed in para 17 as under:
Page 27 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT"17. One must not lost sight that seniority and eligibility for promotion are two different concepts altogether......"
(xviii) In furtherance of the above, it is submitted that the difference between the seniority and eligibility for promotion is very well brought about by the Apex Court in the following decisions;
(i) (1988) 2 SCC 233
(ii) (2017) 5 SCC 783
(iii) 1989 (1) GLH 1
In the aforesaid judgments, it has been clearly observed to the effect that "seniority cannot be substituted for eligibility nor it can overwrite it in the matter of promotion to the next higher post and the rule which prescribes an uniform period of service for the purpose of promotion, cannot be said to be arbitrary or unjust, violative of Article 14 or 16 of the Constitution of India and that there is no law which lays down that a senior in service would automatically be eligible for promotion."
(xix) There is no right in any employee to claim that rules governing the grant of promotion and the rules governing the seniority should be in a particular form, i.e. in synk of each other inasmuch as the question relating to the criteria for determining seniority and the criteria to be fulfilled for promotions, pertain to the field of policy, which is within the exclusive discretion and jurisdiction of the employer and this Court would not like to impose the said criteria on DFCCIL by substituting its views for that of DFCCIL, merely because some other policy in this behalf sounds wiser and better.
Page 28 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT(i) (2003) 2 SCC 632; (ii) (2008) 3 SCC 359; (iii) (2011) 6 SCC 597; (iv) (2017) 3 SCC 504;
(xx) In view of the above, the direction issued by the learned Single Judge as contained in para 8 of the impugned judgment is not capable of being implemented inasmuch as what is directed is to hold a review DPC and to grant promotion to the petitioners to the post of Manager w.e.f. 19.11.2012 / 01.01.2013, which are the dates on which, the mandatory eligibility criterion of having completed minimum residency period of 4 years as provided in Clause 5 was admittedly not complied with by the petitioners.
(xxi) Interestingly, all the petitioners had subsequently got the promotion in the year 2015/16 on completion of minimum residency period of 4 years as per Clause 5 of the Promotion Policy and that, therefore, the aforesaid direction issued by the learned Single Judge in the impugned judgment dated 26.10.2018, deserves to be quashed and set aside.
(xxii) Having observed in para 7.2 of the judgment under challenge the effect that "though it may be in the domain and discretion of the organisation to frame such a policy......", the learned Single Judge erred in suggesting DFCCIL to have followed the promotion policy prevalent in Konkan Railway Corporation Ltd and Indian Railway Establishment Manual (Railway Board), more particularly when all the Public Sector Undertakings even under the Ministry of Railways, are distinct and independent of each other and that all such Public Sector Undertakings shall have uniform policy of service condition in the matter of eligibility criteria relating to promotion and seniority.
Page 29 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT(xxiii) Without prejudice to what is mentioned hereinabove, it is submitted that Clause 8(b) of HR Manual of DFCCIL relating to 'promotion policy', is neither framed under any statute nor under Article 309 of the Constitution and that, therefore, the same does not have any statutory or constitutional flavour, whereby it may become susceptible to the writ jurisdiction of this Court. The said clause merely reflects the policy decision of DFCCIL in the matter of grant of promotion and that, therefore, such a policy decision cannot be challenged by showing some better and wiser policy relating to service conditions of the employees. In this behalf, reliance is placed on the decisions reported in (i) (2007) 8 SCC 212 and (2009) 5 SCC 515.
13. In the case of Chief Commercial Manager, South Central Railway, Secunderabad and others (supra), the Apex Court has held and observed in paras-19 and 20 that -
"19........ the administrative rules, regulations and instructions, which have no statutory force, do not give rise to any legal right in favour of the aggrieved party and cannot be enforced in a court of law against the administration. The executive orders appropriately so-called do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued. Such an order would confer no legal and enforceable rights on the delinquent even if any of the directions is ignored no right would lie. Their breach may expose the subordinate authorities to disciplinary or other appropriate action, but they cannot be said to be in the nature of statutory rules having the force of law, subject to the jurisdiction of certiorari.
20. It is well settled that the Central Government or the State Government can give administrative instructions to its Page 30 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT servants how to act in certain circumstances; but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules, it must be shown that they have been issued either under the authority conferred on the Central government or the State Government by some statute or under some provision of the Constitution providing therefor. Therefore, even if there has been any breach of such executive instructions that does not confer any right on any member of the public to ask for a writ against the Government by a petition under Article 226 of the Constitution of India.
14. In the case of K. A. Nagamani (supra), the Apex Court has held and observed in para-23 as under:-
23. The Indian Airlines Corporation Employees Service Regulations, 1955 which are made in exercise of the powers conferred upon the Corporation by the Act are undoubtedly statutory in nature but the Recruitment and Promotion Rules are not statutory in their nature. These Rules are not framed in exercise of any Rule Making Power. Mere administrative rules are not legislation of any kind. They are in the nature of statements of policy and the practice of government departments, statutory authorities, whether published or otherwise. Statutory rules, which are made under the provisions of any enactment and regulations, subject to Parliamentary approval stand on entirely different footing.
The administrative rules are always considered and have repeatedly been held to be rules of administrative practice merely, not rules of law and not delegated legislation and they have no statutory force. Mere description of such rules of administrative practice as "rules" does not make them to be statutory rules. Such administrative rules can be modified, amended or consolidated Page 31 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT by the authorities without following any particular procedure. There are no legal restrictions to do so as long as they do not offend the provisions of the Constitution or statutes or statutory rules as the case may be.
14. In the case of State of Himachal Pradesh and others (supra), the Apex Court has held and observed in paras-21 and 22 that -
"21......It is the responsibility of the State to provide good education, training and employment, it is best suited to frame a policy or either modify / alter a decision depending on the circumstance based on relevant and acceptable materials. The courts do not substitute their views in the decision of the State Government with regard to policy matters. In fact, the court must refuse to sit as appellate authority or super legislature to weigh the wisdom of legislation or policy decision of the Government unless it runs counter to the mandate of the Constitution.
22 With regard to the importance of human resources, especially manpower requirement in various professional and technical fields, the Government is free to frame its policy, alter or modify the same as to the needs of the society......"
16. In the case of Union of India and others (supra), the Apex Court has held and observed in para-47 that -
"47...... It is not in the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether better policy could be evolved. The Court can only interfere if the policy framed is absolutely capricious and non-informed by reasons, or totally arbitrary, offending the basic requirement of Article 14 of the Constitution."Page 32 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT
17. In the case of P. U. Joshi and others (supra), the Apex Court has held and observed in para-10 that -
"10...... 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 police is 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 any rate, 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........ 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 except 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 rules relating to even an existing service."
18. In the case of Tamil Nadu Electricity Board and another (supra), the Apex Court has held and observed in para-10 as under:-
"10. This is a policy decision taken by the Board and it has been incorporated in the Service Regulations. Therefore, the candidates were recruited on the post of Helper possessing this qualification, their channel of promotion is only to technical post and there cannot be any doubt about it. This was a categorical policy decision taken by the Board and, therefore, the channel of Page 33 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT promotion of these persons now will be only to the technical post and not to the administrative post. Therefore, this provisions which has been made in the service condition cannot be said to be discriminatory or arbitrary or violative of Article 19(1)(g) in any manner. This is a policy decision of the Board and it is the Board which has to decide that who will be suitable for the post and what should be the channel of promotion for such post. It is not for the incumbent serving as a Helper to insist that the Board should amend the regulation which suits him. It is the prerogative of the Board to decide that what shall be the channel of promotion for technical and for non-technical persons. In this case the Board has decided on a rational basis that the channel of promotion of technical persons will be on technical side and not on the administrative side."
19. In the case of R. Prabha Devi and others (supra), the Apex Court has held and observed in paras-15 and 16 as under:-
15. The rule-making authority is competent to frame rules laying down eligibility condition for promotion to a higher post.
When such an eligibility condition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority. The amended rule in question has specified a period of eight years' approved service in the grade of Section officer as a condition of eligibility for being considered for promotion to Grade I post of C.S.S. This rule is equally applicable to both the direct recruit Section officers as well as the promotee Section officers. The submission that a senior Section officer has a right to be considered for promotion to Grade I post when his juniors who have fulfilled the eligibility condition are being considered for promotion Page 34 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT to the higher post, Grade I, is wholly unsustainable. The prescribing of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule-making authority.
This eligibility condition has to be fulfilled by the Section officers including senior direct recruits in order to be eligible for being considered for promotion. When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the 158 post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can over- ride it in the matter of promotion to the next higher post. The rule in question which prescribes an uniform period of qualified service cannot be said to be arbitrary or unjust violative of Articles 14 or 16 of the Constitution. It has been rightly held by the Tribunal:
"When certain length of service in a particular cadre can validly be prescribed and is so prescribed, unless a person possesses that qualification, he cannot be considered eligible for appointment. There is no law which lays down that a senior in service would automatically be eligible for promotion. Seniority by itself does not outweight experience."
16. It has also been observed:
"In any event, the appropriate Rule making Authority is the best judge in this regard. The Rule making Authority is certainly competent to amend the Rule and extend the period from 6 years to 8 years so as to make the direct recruits more experienced Page 35 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT and suitable for the higher post. That is a matter for the Rule making Authority; the Tribunal cannot sit in judgment over the opinion of the Rule making Authority. No Court or Tribunal can substitute its own view in a matter such as this. Such a Rule framed by a competent Authority cannot be struck down unless it is shown to be violative of any Fundamental Right guaranteed to a citizen under the Constitution."
20. In the case of S. K. Mathur and others (supra), the Apex Court has held and observed in paras-15 and 16 as under:-
"In absence of statutory rules made under Article 309 of the Constitution, appointments and other conditions of service can be regulated by administrative orders or executive instructions."
21. In the case of S. K. Mathur and others (supra), the Apex Court has further held and observed in paras-22, 23, 24 and 25 as under:-
22. This Court in S. S. Moghe v. Union of India, (1981) 3 SCC 271 : (AIR 1981 SC 1495) has already held that when a new service is proposed to be constituted by the Government, it is fully within the competence of the Government to decide as a matter of policy the sources from which the personnel required for manning the service are to be drawn.
23. In this decision, it was also laid down that the deputationists, who had already put in a number of years of service in their parent department, were to be given seniority over the direct recruits for purposes of promotion.
24. Again, in K. Madhavan v. Union of India, (1987) 4 SCC 566 : (AIR 1987 SC 2291) while considering the question of seniority of a deputationist, who was subsequently Page 36 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT absorbed on permanent basis in the new department, it was observed as under (at p.
2299 of AIR) :
"We may examine the question from a different point of view. There is not much difference between deputation and transfer. Indeed, when a deputationist is permanently absorbed in the CBI, he is under the rules appointed on transfer. In other words, deputation may be regarded as a transfer from one government department to another. It will be against all rules of service jurisprudence, if a government servant holding a particular post is transferred to the same or an equivalent post in another government department, the period of his service in the post before his transfer is not taken into consideration in computing his seniority in the transferred post. The transfer cannot wipe out his length of service in the post from which he has been transferred. It has been observed by this Court that it is a just and wholesome principle commonly applied where persons from different sources are drafted to serve in a new service that their pre-existing total length of service in the parent department should be respected and presented by taking the same into account in determining their ranking in the new service cadre."
25. We are in respectful agreement with the above view. We are of the opinion that where recruitment is made from two different sources and an integrated seniority list is prepared of the persons so recruited, the benefit of service already rendered on a similar post in a similar organisation under the same employer will have to be given to the person appointed on the new post. We are also of the opinion that in the particular facts and circumstances of the present case benefit of service rendered by the appellants on the post of Inspector (Control) in the parent department could not have been legally denied to them, particularly as there were no rules of seniority made under Article 309 of the Constitution providing specifically Page 37 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT that benefit of past service would not be allowed. The Tribunal was not justified in allowing seniority to respondents 3 to 9 on the basis of continuous officiation on the post of Inspector (Control) even though appellants had been appointed earlier. The Tribunal was in error in treating the appellants to have joined the department only from the date of their substantive absorption. By treating respondents 3 to 9 as senior to the appellants, the Tribunal acted contrary to the basic tenets of service jurisprudence discussed above.
22. In the case of I. K. Soni and others (supra), this Court has held and observed in para-5 as under: -
"5. The Corporation is a wholly owned Government Company incorporated under the Companies Act, 1956. The Corporation can as a matter of policy decided how its establishment will be manned. It is within the powers and authority of the Corporation to take a policy decision to man its establishment by taking services of the Government employees on loan from the Government or to make direct recruitment. It can also decide to absorb deputationists or repatriate them to their parent departments of the government. The fixation of percentage of deputationists vis- a-vis direct recruits is an administrative or managerial policy matter, which the Corporation is free to decide according to its needs and exigencies....... Absorption of deputationists in the service of the Corporation and the dates from which such absorption should be made effective are also matters of policy, which the Corporation is free to decide, without being told or advised by its own employees......."
23. In the case of Palure Bhaskar Rao and others (supra), the Apex Court has held and observed in paras-16 and 17 as under:-
Page 38 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT16. Seniority and eligibility are also distinct concepts. As far as promotion or recruitment by transfer to a higher category or different service is concerned if the method of promotion is seniority-cum-merit or seniority per se, there is no question of eligible senior being superseded. Other things being equal, senior automatically gets promoted. But in the case of selection based on merit-cum-
seniority, it is a settled principle that seniority has to give way to merit. Only if merit being equal senior will get the promotion.
17. Merely because a person is senior, if the senior is not otherwise eligible for consideration as per the rules for promotion, the senior will have to give way to the eligible juniors.
The Apex Court has also referred its own decision in the case of R. Prabha Devi v.
Union of India, (1988) 2 SCC 233 wherein in para-4, it was observed that " the prescribing of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule-making authority. This eligibility condition has to be fulfilled by the Section Officers including senior direct recruits in order to be eligible for being considered for promotion. When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can override it in the matter of promotion to the next higher post."
24. In the case of T. Sridhar (supra) wherein the petitioners have challenged the promotion of the unofficial Respondents Page 39 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT to the post of Assistant Executive Engineers (Civil) as illegal and violative of Articles 14 and 16 and for consequential direction to the respondent Board to promote them as Assistant Executive Engineers by relaxing the requirement of service experience. The petitioners were initially appointed as Draftsmen in the Board service and their services were regularised. Whereas, the contesting respondents were appointed as Additional Assistant Engineers (Civil) in the Irrigation Department of Government of Andhra Pradesh and they were sent on deputation to the Board and they have been making representation to the Board to absorb them in the Board services. Thereafter, they were absorbed. The grievance of the petitioners was that by virtue of the orders of the absorption issued by the Board, all the unofficial respondents who were working in the Board on deputation are placed below the petitioners in the seniority list of Additional Assistant Engineers. But, yet ignoring the seniority of the petitioners, the unofficial respondents have been illegally promoted to the post of Assistant Executive Engineers by proceedings dated 03.08.1991. The learned Single Judge dismissed the petition against which the Letters Patent Appeal was filed before the Division Bench of this Court. According to the petitioners thereof, the unofficial respondents cannot be recognised as employees of the Electricity Board till such time they are absorbed in the services of the Board and that their seniority has to be reckoned only from the date of their absorption and not from the date they were holding the post in the Government. The contention of the unofficial respondents was that they have been working in the Board for several years and that they are Additional Assistant Engineers in their parent department and, therefore, once on their absorption in the Board the service rendered by them as Additional Assistant Engineers in Page 40 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT the parent department or on deputation, will have to be taken into account for the purpose of promotion. While dealing with Rules of the Board, it was observed that unofficial respondents became the employees of the State Electricity Board only from the date of their absorption. Considering the terms and conditions of absorption which contains that their seniority is fixed below the junior most regular Additional Assistant Engineer (Civil) of the Board. The services rendered by the unofficial respondents in the Government would only count for terminal and other benefits in the A. P. State Electricity Board. It was observed that mere fact that the petitioners have been working on deputation basis in the Board, would not confer any better benefits than those enumerated in the memo and they have accepted to forego the lien and services in the Government, they have voluntarily chosen to be junior to the junior most departmental Additional Assistant Engineer irrespective of their service as deputationists in the Board itself. It was observed that they became juniors foregoing their previous service, the very service cannot be counted for the purpose of reckoning 10 years of Additional Assistant Engineers. It was also observed that unofficial respondents can be said to have become the employees of the Board only from the date of absorption and the said date is the relevant criteria for the purpose of seniority and promotion to the higher post. If the service rendered by the unofficial respondents on deputation is reckoned for the purpose of promotion, then the very purpose of placing the unofficial respondents below the junior most departmental Additional Assistant Engineers would be frustrated. Mere fact that the Departmental Officers did not possess the requisite experience of 10 years would not empower the Board to consider the cases of the unofficial respondents for promotion by taking the services rendered Page 41 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT by them as deputationists.
25. In the case of Bal Kishan (supra), the apex Court has held and observed in para-10 as under:-
"10. In service, there could be only one norm for confirmation or promotion of persons belonging to the same cadre. No junior shall be confirmed or promoted without considering the case of his senior, any deviation from this principle will have demoralising effect in service apart from being contrary to Article 16(1) of the Constitution."
26. In the case of Union of India Vs. Onkar Chand (supra), the dispute was concerning the seniority and promotions between the departmental candidates and deputationists, who had subsequently consented to be permanently absorbed in the Department of Intelligence Bureau. The undisputed fact was that Onkar Chand was a deputationist and he was permanently absorbed as JIO-I. Though, he was promoted to officiate in the rank of ACIO-II in the deputation quota by an order dated 11.10.1977, he joined that post on 02.01.1978. It was found that separate lists were prepared for departmental candidates, permanently absorbed candidates and deputationists, seniority among the different categories were also fixed in the list. It was not in dispute that the deputationists have got certain percentage of quota for promotion. The said Onkar Chand was promoted to officiate in the rank of ACIO-II only against the deputationist quota was not in dispute. In view of Recruitment Rules thereof, when Onkar Chand was permanently absorbed (by transfer) in the cadre of JIO-I on that date. One more relevant factor will be that a person in the cadre of JIO-I has to put in a minimum years of service before aspiring for promotion as Page 42 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT ACIO-II. It was held that earlier ad-hoc promotion as ACIO-II being against the deputation quota that service cannot be claimed by a deputationist once he opted for permanent absorption in the Department. If he wanted to continue the seniority in the deputation quota by running the risk of being repatriated to his parent department, he ought not to have opted for permanent absorption. After opting for the permanent absorption, he cannot claim the benefits of absorption as well as the service put in by him in the deputation quota as ACIO-II.
27. In the case of Panchraj Tiwari (supra), the Apex Court has held and observed in paras-16 and 17 as under:-
"16. Chances of promotion are not conditions of service, but negation of even the chance of promotion certainly amounts to variation in the conditions of service attracting infraction of Articles 14 and 16 of the Constitution of India. No employee has a right to particular position in the seniority list but all employees have a right to seniority since the same forms the basis of promotion.
17. An employee has always an interest to seniority and a right to be considered for promotion. If after integration, only the chances of promotion are affected, it would have been only a case of heartburn of an individual or a few individuals which is only to be ignored, as held by this Court in Tamil Nadu Education Department Ministerial and General Subordinate Services Association and others v. State of Tamil Nadu and others, (1980) 3 SCC 97. "
28. In the case of S. P. Shivprasad Pipal (supra), the merger of three existing cadres under the the Ministry of Labour, it was felt that the constitution of an independent cadre was in Page 43 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT public interest and, therefore, the merger took place. The Apex Court has observed that since this was essentially a matter of policy, the scope of review by the Court is limited. However, the Court can examine the grievance relating to unequals being treated as equals and the grievance relating to losing promotional avenues.
29. Considering the submissions made on both the sides and the materials placed on record, following facts are undisputed:-
(a) The Dedicated Freight Corridors Corporation Limited (DFCCIL i.e. appellants herein and original respondents No.1 to 4 in the petition) came to be registered under the Companies Act, 1956 on 30.10.2006 to be engaged in railway planning, designing and creating freight railway infrastructure as a special purpose vehicle to undertake planning, development etc., for the operation of Dedicated Freight Corridor -
presently Western and Eastern Corridors. During 2006 to 2010, several employees of the railway came to be engaged / inducted for working in DFCCIL as deputationists. The respondents No.5 to 7 originally working in Railways started working on the post of Assistant Manager as "deputationists" in DFCCIL w.e.f. 20.08.2007, 22.06.2007 and 16.05.2008 respectively. Till June 2010, the Corporation has declared 'Permanent Absorption Policy' for the persons working on deputation, the Corporation or their permanent absorption.
(b) In June, 2010, the Corporation has also declared "Immediate Absorption Policy" for absorption of outsiders restricted to Railways, PSUs and other Central Government Departments.
(c) Pursuant to the aforesaid 'Immediate Absorption Policy', the Corporation issued a public notice i.e. ADVT No.02/2010 Page 44 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT inviting applications from the willing and experienced Civil, Electrical and Signal and Telecommunication Engineers working in Railways / PSUs for their recruitment in their respective cadres in DFCCIL on immediate absorption basis. The petitioners No.1, 2 3 and 4, who were formerly working in Railways, came to be absorbed under Immediate Absorption Policy under the Corporation w.e.f. 11.11.2011, 31.10.2011, 15.11.2011 and 16.01.2012 respectively.
(d) On 24.04.2012, the Corporation announced "Promotion Policy" along with other revised policies under the revised HR Policies / Rules and incorporated in HR Manual for the grant of promotion at the end of every four years of residency period, except in case of promotion from Senior Executive to Assistant Manager, where residency period of six years is required.
(e) Clause 5 of the aforesaid Promotion Policy lays down minimum period of four years which an employee is supposed to put in before he becomes eligible for being promoted. There is no reference about 'deputation' in the said Clause 5.
(f) Clause 10(b) of the said policy provides that a person absorbed in a particular grade of particular date, would rank senior to one who is absorbed at a later date.
(g) The petitioners made representations on 25.04.2012, 28.07.2012 and 30.04.2012 to DFCCIL by informing inter alia that the aforesaid Promotion Policy has been formulated only with a view to benefit the deputationists and that therefore the same needs to be modified in such manner that permanent cadre of organisation of DFCCIL may not be Page 45 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT adversely affected.
(h) The respondents No.9 to 76, who have joined in these appeals, came to be engaged in Corporation by way of direct recruitment from open market / immediate absorption from Railways / PSUs and Central Government Departments under the revised HR Policies / Rules and the same are incorporated in HR Manual from May, 2012 onwards.
(i) The Corporation has responded to the aforesaid representations by giving its reply stating inter alia that as regards counting of services rendered by the deputationists prior to permanent absorption, the underlying idea is to encourage them to seek permanent absorption without loss of services which they have already rendered in Corporation during deputation tenure and, therefore, the said provision has been kept at the initial constitution of the cadres of Corporation.
(j) On 19.11.2012, respondents No.5 to 7, had come to the Corporation as deputationists in grade of Assistant Manager from 20.08.2007, 22.06.2007 and 16.05.2008 respectively and who have permanently absorbed in Corporation in the same grade of Assistant Manager w.e.f. 28.03.2012, 23.06.2010 and 11.01.2012 respectively came to be promoted to the post of Manager by taking into consideration their deputation period as residency period. On 20.12.2012, the petitioners No.1 to 4 have filed the petition before this Court.
(k) The original petitioners No.1 to 4 came to be promoted to the post of Manager w.e.f. 01.01.2016 and 01.07.2016 respectively. During the pendency of the matter, the Page 46 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT Corporation has amended Rule 8(b) of Promotion Policy and added new Clause 8(b)(1) and 8(b)(2) to the effect that as per new Clause 8(b)(1), if the employee gets permanently absorbed in DFCCIL in higher grade, then in that case, the services rendered as deputationist prior to absorption, will not be considered for promotion and his date of seniority would be considered from the date of absorption. As per new Clause 8(b)(2), if the employees gets permanently absorbed in DFCCIL in the same grade in which he was working on the date of absorption, then in that case, the services rendered as deputationist prior to absorption will be taken into consideration as 'minimum residency' for promotion and his seniority would be considered from the date of being placed as deputationist.
(l) On 26.10.2018, the learned Single Judge rendered the judgment under challenge allowing the captioned writ petitions, while quashing and setting aside Clause 8(b) of the Promotion Policy with a direction to conduct review DPC for granting promotion to the petitioners No.1 to 4 referred to above, to the post of Managers w.e.f. 19.11.2012 / 01.01.2013 as the case may be with all consequential benefits.
30. It is pertinent to note that in the case of Patel Pashabhai Amabhai Vs. Union of India rendered in Special Civil Application No.12438 of 2012, additional affidavit has been filed by one Vikas son of Gopichand Makhijani, who was holding the post of Deputy Director / Infrastructure Cell, Railway Board (Ministry of Railways), Government of India has on behalf of DFCCIL has averred that the DFCCIL is a wholly owned Public Sector Undertaking under Ministry of Railways, Government of India and the land if ultimately Page 47 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT acquired is vested by the Ministry of Railway which will be given to the company for execution, maintenance, management and operation of special railway project, while the ownership will only vest in the Ministry of Railways and not in the company though the company is wholly owned Government Company. It is an admitted fact that the Corporation is a company owned by the Ministry of Railway and it is working under the control of the Railway Ministry. This being the position though the promotion policy is made by the Corporation, the same is justiciable and it is amenable to the judicial review. Therefore, the submissions of the appellants that the Court cannot adjudicate on the policy decision of the Corporation is devoid of merits. However, the jurisdiction of this Court regarding review of the policy decision is very much limited.
31. In this case, it is an admitted fact that according to the policy, for getting promotion, minimum period has been prescribed under Clause 5. It is also admitted fact that while assailing Clause 8(b)(1) of the Promotion Policy, the petitioners have not challenged Clause 5 of the Policy which prescribed minimum residency period for promotion. It is pertinent to note that the petitioners No.1 to 4 have joined the Corporation in the year 2011-2012 under the 'Immediate Absorption Policy'. As such, in view of Clause 5, they are entitled to be promoted after completion of four years residency period i.e. 2015-2016. Whereas, the respondents No.5 and 7 have rendered their service in the Corporation as deputionists during the year 2007 as Assistant Manager. Therefore, considering Clause 5, they are entitled to be absorbed and they are entitled to be promoted after completion of residency period of four years after they are absorbed in the Corporation. It also appears from the record Page 48 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT that the petitioners have been absorbed in the cadre of Assistant Manager w.e.f. 28.03.2012, 23.06.2010 and 11.01.2012 respectively while taking into consideration their deputation period as residency period.
32. The added Clause 8(b) which provides for eligibility and for the purposes of zone of consideration for promotion is as under:-
"8(b) For the purpose of counting residency period for promotion, the deputation period rendered in DFCCIL followed by permanent absorption, at the initial constitution of the Cadres, shall be taken into account"
33. Now, considering the said provisions, the period of deputation period as residency period, if considered cannot be said to be illegal. Whereas, Clause 10 is regarding seniority. Clause 10(b) thereof reads as under:-
"10(b) The relative seniority of employees appointed by permanent/immediate absorption shall be determined in accordance with the date of their permanent/immediate absorption in DFCCIL. A person absorbed in a particular grade on a particular date would rank senior to the ones who are absorbed at a later date. However, if the date of absorption of two or more persons in a particular grade is same, their inter-se seniority will be based on the length of service in the substantive grade in their parent cadres I.e. the employee with longer length of service in the parent grade will rank senior to those with lesser length of service on the date of absorption."
34. Thus, for the purpose of seniority, specific rule for promotion criteria is also made. Now, in this case, the original petitioners have heavily relied on the provisions contained in Page 49 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT other Corporations, which are working under the Ministry of Railway and which are independent entities. The learned Single Judge has also relied on the provisions of those Corporations. But, it is an admitted fact that all such Corporations are independent Corporations. Of course, they are under the control of the Ministry of Railway, but they are independent authorities. It is not necessary that each Corporation should have identical and similar provisions regarding qualification, entry in the service, promotion, seniority etc. Every independent entity may have their different rules. It is not a legal preposition that the entity working in the same field should have similar set of rules for its management / administration.
35. It is pertinent to note that the seniority cannot be substituted for eligibility nor it can overwrite it in the matter of promotion to the next higher post and the rule which prescribes an uniform period of service for the purpose of promotion, cannot be said to be arbitrary or unjust, and violative of Article 14 or 16 of the Constitution of India. It is well settled that there is no legal preposition which lays down that a senior in service would automatically be eligible for promotion. There is no right in any employee to claim that rules governing the grant of promotion and the rules governing the seniority should be in a particular form. It is within the exclusive discretion and jurisdiction of the employer to decide the criteria to determine the seniority and criteria to be fulfilled for promotion. It pertains to the rule of policy of the concerned employer.
36. The condition of four years of residency period for promotion cannot be termed as a breach of Articles 14 and 16 of the Constitution. It is pertinent to note that this rule has not been challenged by the petitioners in the captioned writ petition Page 50 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT and only challenged is Clause 8(b). In absence of challenge to Rule 5, the eligible criteria cannot be held to be violative of the constitutional right of the petitioners. As Rule 5 has not been challenged, it is necessary for the petitioners to fulfill the criteria of four years residency period of a particular post. Now, admittedly, in the year 2012-2013, when respondents No.5 to 7 were promoted considering their residency period and subsequent absorption, the petitioners were not eligible for promotion as they have not completed residency period of four years. When the essential criteria of residency period is not fulfilled, the promotion may not granted to the petitioners merely because they were senior in the parent department over the persons who have employee in the Corporation earlier and they have been absorbed after the petitioners being absorbed permanently as without fulfilling the criteria of residency period no one can get promotion under Rule 8(b). The seniority could be decided only after the promotion to a particular cadre. But for that purpose, one has to get the post after fulfilling the essential criteria relating to get the promotion. In the present case, the petitioners have not fulfilled the criteria of four years residency period and, therefore, at the relevant time when the respondents No.5 to 7 in the original petitions got the promotion and absorbed they were not entitled to get the promotion. This very fact has not been considered by the learned Single Judge. Therefore, the learned Single Judge has erred in granting the promotion to the petitioners with consequential reliefs to the petitioners. The same deserves to be set aside.
37. In view of the above, the present Letters Patent Appeals are liable to be allowed. Accordingly, the Letters Patent Appeals are allowed. The judgment and order dated 26.10.2018 passed by the learned Single Judge in Special Civil Page 51 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019 C/LPA/241/2019 CAV JUDGMENT Application No.50 of 2013 with Special Civil Application No.9563 of 2013 are hereby quashed and set aside. Both the petitions being Special Civil Application No.50 of 2013 and Special Civil Application No.9563 of 2013 are hereby dismissed. No order as to costs.
38. In view of the order passed in Letters Patent Appeals, all the Civil Applications are disposed of, accordingly.
Sd/-
(S.R.BRAHMBHATT, J) Sd/-
(A. P. THAKER, J) FURTHER ORDER
40. Learned counsel, Mr.G.M.Joshi and Mr.Rutul Desai, appearing for the respondents made a request for staying this order for enabling them to approach the Supreme Court. Looking to the reasoning adopted by this Court and the other side having strong objection, as according to them promotions have been stalled since long, we are unable to accede to the request made by the learned counsel for the respondents and the same is refused.
Sd/-
(S.R.BRAHMBHATT, J) Sd/-
(A. P. THAKER, J) V.R. PANCHAL Page 52 of 52 Downloaded on : Sat Oct 26 03:02:16 IST 2019