Central Administrative Tribunal - Gauhati
Netai Pada Chakraborty And Anr. vs Union Of India (Uoi) And Ors. on 10 May, 2004
Equivalent citations: 2005(1)SLJ191(CAT)
ORDER Mukesh Kumar Gupta, Member (J)
1. Railway Administration took over Demohani Polwhele High School and renamed it as Railway Girls' High School, New Jalpaiguri. While granting recognition to the said school as a X-Class School from January, 1980, West Bengal Board of Secondary Education vide its communication dated 21.2.1980, imposed certain conditions over and above normal conditions, for its recognition, which inter alia, included as under:
"1. Male teachers of the School should be replaced by female ones in phases.
2. A qualified Headmistress should be appointed in the School.
3. Free tuition is to be introduced in all classes (V to X).
4. A list of teachers is to be supplied with whom the Girls' School is to be started at New Jalpaiguri."
2. The Ministry of Railways, Railway Board pursuant to powers conferred by the proviso to Article 309 of the Constitution of India, framed Recruitment Rules and issued Notification dated 17.3.1980, known as "Indian Railways Degree College, Intermediate Collage, Higher Secondary School, Higher Secondary Multipurpose School and High School (Group A and Group B Posts) Recruitment Rules, 1980" (hereinafter referred as "RRs, 1980").
3. Different posts known as Post Graduate Teacher/Headmaster Middle School, Head Master/Head Mistress of High School, Group-B post and Principal (Senior Scale) Gazetted, Group-A post carrying different pay scales, as enumerated herein below, are in existence.
POSTGRADUATE TEACHER/HEADMASTER MIDDLE SCHOOL
(i) Entry scale/Basic grade 6500-10500
(ii) Sr. Scale 7500-12000
(iii) Selection Grade 8000-13500
HEAD MASTER/HEAD MISTRESS OF HIGHSCHOOL GAZETTED, GROUP-B
(i) Basic Grade 7500-12000
(ii) Senior Grade 8000-13500
PRINCIPAL (SENIOR SCALE) GAZETTED, GROUP-A
10000-15200
4. The Post Graduate Teacher (hereinafter referred as PGT)/Head Master Middle School carries three different pay scales i.e. Entry Scale/Basic Grade, Senior Scale and Selection Grade. The post of Head Master/Head Mistress of High School is a Gazetted Group-B post, carrying two pay scales, while the post of Principal (Senior Scale) is a Gazetted Group-A post.
5. Shri Netai Pada Chakraborty and Shri Swapan Kumar Chakraborty were appointed as PGT (Basic grade) w.e.f. 18.9; 1981 and 3.5.1983 respectively and placed in the pay scale of Rs. 1640-2900 (revised to Rs. 6500-10500 w.e.f 1.1,1996). The Railway Administration notified policy and no completion of 12 years of service, the said officials were promoted as PGT (Senior Scale ) w.e.f. 18.9.1993 and 3.5.1995 respectively carrying pay scale of Rs. 2000-3500 (revised to Rs. 7500-12000 w.e.f. 1.1.1996).
6. Smt. Dhriti Roy was appointed as PGT (Basic Grade) w.e.f. 8.9.1989 in the pay scale of Rs. 1640-2900. The post of Head Mistress in Railway Girls' High School, New Jalpai-guri, Group-B post, fell vacant and in terms of the aforenoted conditions laid down by the West Bengal Board of Secondary Education, (Annexure A-2) Smt. Dhriti Roy was appointed as Head Mistress.
7. The combined provisional seniority list of PGTs of North East Frontier Railway which included PGT (Basic Grade), Sr. Scale and Selection Grade, as on 1.4.2001, was issued by the Railways. Shri Netai Pada Chakraborty, Shri Swapan Kumar Chakraborty (hereinafter referred to as NPC and SKC for short respectively) figured therein at Sl. Nos. 8 and 12 while Smt. Dhriti Roy (hereinafter referred as DR) figured at Sl. No. 23.
8. Vide communication dated 3.4.2001, the Railways directed five lady PGTs to appear for interview for selection to the post of Head Mistress, Railway Girls' High School, New Jalpaiguri. Smt. D.R. appeared at Sl. No. 2 in the said communication. NPC and SKC, despite being senior to Smt. D.R. were not called for interview and did not find a place in the said communication. Accordingly, they submitted their representation dated 9.4.2001 and requested the authorities to keep the said selection of Head Mistress in abeyance or to consider all her seniors for promotion to the said post. Without examining the said representation, Smt. D.R. was appointed as Head Mistress, Railway Girls' High School, New Jalpaiguri, vide communication dated 28.5.2001. Since no action had been taken by the Railways on their representations, a reminder was submitted on 6.7.2001. Immediately thereafter, the Railway Administration decided to conduct the selection for filling up three unreserved vacancies in the next grade of Principal (Senior Scale), Railway Higher Secondary Schools, and vide communication dated 26.4.2002 directed ten Head Mistresses and Grade-I Teachers (PGT) of Railway High and Higher Secondary Schools, to appear for viva-voce test, which included the name of Smt. D.R. also. Being aggrieved with the said communication NPC and SKC submitted their representations dated 10.5.2002 followed by reminder dated 24.6.2002 and sought deletion of name of said Smt. D.R., from the eligibility zone for the post of Principals. The basic grievance of NPC and SKC had been that Smt. D.R., had been benefited by promotion in the grade of Head Mistress, Railway Girls' High School, New Jalpaiguri and accordingly she cannot be granted second and further benefit because of said promotion.
9. Finding no response to their representation, submitted by NPC and SKC, instituted O.A. No. 215/2002, on 10.7.2002, and prayed for the following reliefs:
"8.1. Direct the official respondents to make the post of Head Teacher of Railway Girls' High School, New Jalpaiguri open for selection for all the eligible male and female teachers of Northeast Frontier Railway and declare the arrangement/agreement arrived at between the West Bengal Authority and the North-East Frontier Railway Administration for reserving the post of Head Teacher of the Railway Girls' High School, New Jalpaiguri, exclusively for Lady Post Graduate Teachers as unconstitutional.
8.2. Quash and set aside the Office Order No. 019/2001(Schools dated 28.5.2001 issued by the office of the General Manager (P), Northeast Frontier Railway, Maligaon, Guwahati-11.
8.3 In the alternative direct the official respondents to ex cadre the post of Headmistress of Railway Girls' High School, New Jalpaiguri, and to ensure that the holder of such a post does not get the out of the turn benefit for promotion to the higher post superseding the senior male Post Graduate teachers.
8.4 Direct the official respondents to strike off the name of respondent No. 4 from the Notification dated 26.4.2002.
8.5 Pass such order or orders as the Tribunal may deem fit and proper in the facts and circumstances of the case.
8.6 Cost of the application."
The said O.A. was admitted by this Tribunal on 15.7.2002.
10. While the O.A. 215/2002 was pending before this Tribunal, Railway Administration issued order dated 3.3.2003 communicating the decision of the Competent Authority to treat the posting of Smt. Dhriti Roy as Head Mistress (Group-B), Railway Girls' High School, New Jalpaiguri as "Ex-cadre" posting and further stating that:
"no overriding priority in the combined seniority position of male and female PGTs with 10 years regular service in posts of Headmistress and PGTs (Gr. I), shall accrue for the purpose of any weightage in connection with selection for the post of Principal (Sr. Scale)/Railway Higher Secondary School on ad hoc basis."
11. Consequently, communication dated 20.3.2003 the Railway Authorities called upon the candidates passed on inter-se-seniority of combined regular service in the post of Head Master/Head Mistress (Group-B) with less than 5 years in the grade as well as PGTs/ Grade-I for considering them to the post of Principal. The said communication dated 20.3.2003 also indicated that all the three existing vacancies of Principal (Sr. Scale) would be filled on ad hoc basis. Selection test for the same was fixed for 26.3.2003. As the said memorandum dated 3.3.2003 had the effect of imposing severe civil and penal consequences besides changing terms and conditions of service of Smt. D.R., she instituted O.A. No. 54/ 2003 and prayed for the following reliefs:
"8.1 The Hon'ble Tribunal may be pleased to direct that the applicant may be allowed to appear before the selection process and applicant may be afforded opportunity to appear before the selection process for the post of Principal for which selection process will be held on 26.3.2003 and official respondent be directed to allow the applicant to appear before the selection process as she is holding cadre post of Headmistress in New Jalpaiguri Girls' High School.
8.2 That the impugned order dated 3.3.2003 issued by the official respondent declaring the post of lady Headmistress (Group-B) at New Jalpaiguri should be set aside and quashed taking into consideration that the post of Headmistress of New Jalpaiguri Girls' High School is a cadred one.
8.3 That the respondent authority pleased be directed to follow the procedure in terms of the agreement arrived at the time of recognition of the school with the Govt. of West Bengal on 21.2.1980 and the procedure which was followed by the department for the last 20 years shall not be by-passed in whimsical manner during the pendency of the application before the Hon'ble Tribunal.
8.4 That your applicant be allowed to participate in the selection process of the Principal which is to be held on 26.3.2003.
8.5. That the impugned order dated 3.3.2003 is liable to be set aside on the count of principal of natural justice as well as non-application of mind as the matter is subjudiced before this Hon'ble Tribunal. Hence the impugned order is liable to be set aside and liable to be quashed."
12. O.A. No. 54/2003 was admitted vide order dated 25.3.2003 with direction to Railway authorities to consider Smt. D.R. for the said post and also not to finalise the selection until further orders. Subsequently, Railway Administration filed Misc. Petition No. 1 19/2003 seeking modification/vacation of the said interim order.
13. When such was the position, Railway Administration vide memo dated 24/ 25.7.2003 conveyed adverse remarks to Smt. Dhriti Roy for the period ending 31.3.2003 and also conveyed that:
"She has filed a case in CAT without exhausting administrative channel of appeal on 24.3.2003 which is serious act of indiscipline. She is only for this reason considered only as "Good" but unfit for promotion."
14. It is stated that Smt. D.R. submitted representation/appeal against the said adverse remarks on 16/19.8.2003 which was rejected hurriedly on 21.8.2003. In the meantime, Railway Administration vide communication dated 7.8.2003 directed eleven officials to appear for selection test to fill three vacancies of Principal (Sr. Scale), including Smt. D.R. at Sl. No. 11, with a remark that she was called for the test in addition to ten candidates pursuant to direction issued by this Tribunal.
15. Smt. D.R. filed another O.A. No. 201/2003 challenging the aforesaid adverse remarks communicated to her vide communication dated 24/25.7.2003, as well as the validity of communication dated 7.8.2003, and prayed for the following reliefs:
"8.1. The Hon'ble Tribunal may be pleased to direct the Railway respondent authority to put her name in the list of candidates at Sl. No. 2 for appearing before the interview as she being the holder of Group-B (Gazetted post) for which selection of Principalship is proposed to be held on 3.9.2003.
8.2. That the impugned order dated 24.7.2003 putting the adverse remarks in the ACR for the year ending 31.3.2003 should be suspended and set aside and quashed with the order dated 21.8.2003 issued by the office of the General Manager (Personnel) N.F. Railway/Maigaon should be kept in abeyance and should not give any effect thereto.
8.3. That the Railway Authority may be directed to follow the procedure in terms of Railway Board's Notification for holding the interview and selection for the post of Principal (Sr. Scale) and also be directed not to resort any ad hoc selection for the post of Principal (Sr. Scale) which is proposed to be held on 3.9.2003 as the same is illegal against the statutory rules of Railway Authority should be postponed and to be kept in abeyance and proposed interview for the selection of ad hoc Principal (Sr. Scale) without considering the right and privilege of your applicant should be stayed till the disposal of this application and if any selection is to be held your applicant should be included and should be given priority according to her seniority in Group 'B' (Gazetted post)."
16. We heard Mr. P.K. Tiwari, learned Counsel appearing for Shri NPC and SKC, Mr. B. Sarma, learned Counsel appearing for Smt. D.R. and Shri S. Sharma, learned Counsel appearing for Railway Administration at length and perused the pleadings.
17. Mr. P.K. Tiwari, learned Counsel vociferously contended that communication dated 21.2.1980 which reserves the post of Head Mistress, Railway Girls' High School, New Jalpaiguri, only for lady teachers created gender bias, which is antiethical to the Constitutional provisions as well as equality clause under Article 14 and therefore the same is liable to be quashed and declared void ab-initio. Under no circumstance Smt. D.R. who had been junior to NPC and SKC could be allowed to supersede seniors based on gender discrimination. Further, that the Recruitment Rules of 1980, which governs the appointment/ promotion to the post of Principal as well as Head Master/Head Mistress of Railway High School do not make such provision of reservation in favour of female teacher. The said rules do not keep any post of Head Master/Head Mistress of High School reserved for lady teacher and no separate rules have ever been notified by the Railway Administration governing promotion/recruitment for the post of Head Master/Head Mistress of Railway Girls' High School, New Jalpaiguri. PGT is a common cadre irrespective of male or female teacher. As per the said rules, the post of Principal/Head Master/Head Mistress of a school is a selection post and to be filled by promotion, failing which by transfer on deputation and failing both by direct recruitment. Permanent teaching staff working as teachers Grade-1, Lecturers or Headmasters in the pay scale of Rs. 550/900 with three years service in the grade of regular post is eligible for consideration. Failing above, PGTs and other teachers in the pay scale of Rs. 440-750 with ten years service in the grade on regular basis are also made eligible for consideration for promotion. There is no logic and object in following the conditions prescribed under communication dated 21.2.1980 particularly when the statutory rules framed under provision to Article 309 of Constitution of India, notified on 17.3.1980, do not provide for such reservation. In support of the said contention, reliance was placed on S.K. Chakraborty and Ors. v. Union of India and Ors., 1989 (1) SLJ 106 (SC) wherein in Para 6 it was observed that; "Administrative re-organisation is permissible and as a result of the same rights may be effected but the vested rights could not be taken away."
18. Mr. B. Sarma, learned Counsel appearing for Smt. D.R., strenuously opposed the above mentioned claim and contended that Smt. D.R. was promoted as Head Mistress, Group-B post carrying the pay scale of Rs. 7500-12000 in terms of the RRs 1980 and the challenge made to the said promotion vide order dated 28.5.2001 is beyond the limitation period in as much as the O.A. 215/2002 was instituted on 10.7.2002, which was beyond the limitation period of one year prescribed under Section 21 of the Administrative Tribunals Act, 1985. Further the said promotion was accorded in consonance with the conditions laid down by the West Bengal Board of Secondary Education as well as the practice followed by the Railway Administration, which tantamount to policy decision. Further, there were precedence when in the past the said post of Headmistress was filled by promotion of Smt. Uttara Sen vide Order dated 26.3.1982 and subsequently Smt. Gita Baruah vide order dated 3.2.1989. Therefore, the principles of estoppel applies in the present case and the challenge made to the promotion granted to Smt. D.R. vide order dated 28.5.2001 is also without any merits. It was also urged that when such was the position, there was no justification in issuing the order dated 3.3.2003 and treating the said post of Head Mistress, Railway Girls' High School, New Jalpaiguri as an ex-cadre post. The said order dated 3.3.2003 affected civil rights and terms and conditions of Smt. D.R., prejudicially. It was also urged that the said order dated 3.3.2003 passed by the Railway Administration was not a fair exercise of power. Once the Railway Administration had invited applications and directed Smt. D.R. to appear for the test for promotion to the post of Principal, Group-A post on 20.3.2003, there was no justification in issuing another order dated 7.8.2003. Moreover, the name of Smt. D.R., who was at Sl. No. 2 in the communication dated 20.3.2003 was relegated to Sl. No. 11 in communication dated 7.8.2003 with further rider that she was to be called for test pursuant to interim order passed by this Tribunal on 25.3.2003. Further, there was no justification in the decision taken by the Railway Administration to fill the said three posts of Principals (Senior Scale) onadhoc basis particularly when the said decision was contrary to the guidelines issued by the Railway Board's dated 23.2.1974 and 1.4.1981, wherein it is prescribed that normally noadhoc promotion should be made against a regular vacancy. Since the vacancy in the cadre of Principal were regular in nature, respondents cannot fill the vacancy on ad hoc basis.
19. It was also contended that there was no reason much less than just and tenable reason to convey adverse remarks vide communication dated 24/25.7.2003. Approaching this Tribunal for redressal of grievance is not a crime but a legal right available to an official. Based on the said adverse remarks Smt. D.R. was declared unfit for promotion, which cannot be sustained. Smt. D.R. submitted representation dated 16/19.8.2003 against the said adverse remarks, which was rejected without any application of mind. Allegations of bias, arbitrariness and mala fide on the part of Railway Administration were also made. No show cause notice was issued prior to issuing communication dated 3.3.2C03 affecting civil rights of Smt. D.R., No seniority list in Group-B of Headmistress had ever been published and issued by the Railway Administration. Further, there cannot be comparison between NPC/ SKC, who were never promoted to Group-B post vis-a-vis Smt. D.R., who was promoted as Headmistress, Group-B post vide order dated 28.5.2001.
20. In support of the aforementioned contentions, strong reliance was placed on 2003(2) SCC 604, State of West Bengal and Ors. v. Manas Kumar Chakraborty and Ors. to contend that the post of Headmistress as well as Principal (Sr. Scale) being selection posts were to be filled on merit-cum-seniority basis and not on the basis of seniority alone. (1996) 8 SCC 637, Pitta Sitaram Patrudu and Ors v. Union of India and Ors., particularly paragraph 3 was pressed to contend that when joining of an official selected based on direct recruitment was delayed for no fault of the candidate but due to laches on the part of the Administration, an official would be entitled to count the experience for the purpose of determining eligibility from the date of his appointment and not from the date of joining. Reliance was also placed on 2002 (3) SCC 182, Ran Singh Malik v. State of Haryana and Ors., to contend that to determine whether a particular post is an ex-cadre or not, in the absence of documents creating the said post, other contemporaneous documents could also be looked into, 2001 (1) GLT 599, Rakeshpal Rana v. Union of India and Ors. was also relied to suggest that the adverse remarks in the Confidential Roll cannot be acted upon to deny promotional opportunities unless, the same was communicated to the person concerned.
21. Reliance was also placed on 1990 (Supp.) SCC 738, State of Madhya Pradesh v. Bani Singh to contend that when representation against the adverse remarks is pending, the same cannot be treated as final and should not had been taken into consideration by the Screening Committee. Further reliance was placed on AIR 2003 SC 3331, Vijaya Lakshmi v. Punjab University and Ors. to contend that the communication dated 21.2.1980 did not suffer from any arbitrariness or illegality in reserving the post of Head Mistress, Railway Girls' High School, New Jalpaiguri, only for lady teachers. In Para 5 of the said judgment, after noticing provisions of Articles 14, 15and 16of the Constitution of India besides the judgment reported in (1992) 1 SCC 559, St. Stephen's College v. University of Delhi, Hon'ble Supreme Court observed as follows :
"In the light of the aforesaid principles, on the concept of equality enshrined in the Constitution, it can be stated that there could be classification between male and female for certain posts. Such classification cannot be said to be arbitrary or unjustified. If separate colleges or schools for girls are justifiable, rules providing appointment of lady principal or teacher would also be justified. The object sought to be achieved is a precautionary, preventive and protective measure based on public morals and particularly in view of the young age of the girl students to be taught. One may believe in absolute freedom, one may not believe in such freedom but in such case when a policy decision is taken by the Stale and rules are framed accordingly, it cannot be termed to be arbitrary or unjustified. Hence, it would be difficult to hold that rules empowering the authority to appoint only a lady Principal or a lady doctor or a woman Superintendent, are violative of Article 14 or 16 of the Constitution."
(Emphasis supplied).
It was also contended that in terms of Indian Railway Establishment Manual, Vol. I, Para-215, the selection for promotion to a selection post is primarily based on merits and therefore, Group 'B' and 'C posts could not have been clubbed together. In other words, it was suggested that there cannot be any comparison between Smt. D.R. who has been promoted as Head Mistress, Group 'B' gazetted post vis-a-vis NPC and SKC who have never been promoted to Group 'B' post. Moreover, Smt. D.R. is holding Ph.D besides Master Degree, while NPC and SKC were not holding such educational qualification.
Further reliance was placed on 2003(2) SCC 632, P.U. Joshi and Ors. v. Accountant General Ahmedabad and Ors., to contend that by amendment of rules, conditions of service cannot be allowed to change.
22. Mr. Siddharth Sarma, learned Counsel appearing for the Railways contended that the recruitment to the post of Head Mistress, New Jalpaiguri Railway Girls' High School was governed by Recruitment Rules framed by the authorities. There was no procedural lapse and the promotion of Smt. D.R. was based on conditions laid down by the West Bengal Board of Secondary Education. However, the Railway Authorities took policy decision to treat the filling of the said post as an ex cadre basis by transferring the Lady Head Mistress from other Railway High Schools. As on date, out of total 14 Teachers in existence, 10 are Lady Teachers and 4 are Male Teachers. As per procedure laid down for Group 'B' selection post the criteria was seniority of candidates coming within the zone of consideration based on their placement in the grade of Rs. 6500-10000. In terms of Para-306 of IREM, Vol. I, candidates selected for appointment in an earlier selection remains senior to those selected later irrespective of their date of posting. The Railways have also taken a policy decision that all posts of Principal (Senior Scale) shall be filled on adhoc basis and zone of eligibility shall be limited to combined eligibility of Head Master/Head Mistress and further the fitness shall be adjudged based on overall merit and not merely seniority. There was no procedural lapse for calling upon Lady Post Graduate Teachers for the post of Head Mistress/ New Jalpaiguri Railway High School including Smt. D.R. However, to prevent any chaos in the matter of common seniority of eligible male teachers vis-a-vis female teachers, the Railway Administration has decided to regulate the posting of Head Mistress (Group-B) at Railway Girls High School/NJP by treating the posting of Smt. D.R us ex cadre and also to fill up the future vacancy only as an ex cadre one. Further, in view of the decision taken on 3rd March, 2003, the O.A. No. 215/2002 has become infructuous. Moreover, with the issuance of further order dated 7th August, 2003, the relief claimed by NPC and SKC that Smt. D.R. be deleted from notification dated 26.4.2003 also stands granted. As far as the communication of adverse remarks on 25th March, 2003 is concerned, it is contended that the applicant being the 11th candidate for consideration of 3 posts and being the juniormost, in the combined seniority list could not supercede her senior and the said adverse remarks in any case has no relation as far as her unfitness for promotion is concerned. We may note that no reply was filed to O.A. No. 201/2003 by the Railways.
23. It is vehemently urged that the respondents have rectified the administrative mistake by issuing communication dated 3rd March, 2003 and the same did not affect the posting of Smt. D.R. as Head Mistress and therefore, no prejudice has been caused to her. The intention of the authority was not to deprive Smt. D.R the benefit of posting as Head Mistress, New Jalpaiguri Railway Girls High School. As no date, the North Frontier Railways have got 7 Railway High Schools and all of them are unmanned by the Principal. In other words, all 7 posts of Principal are vacant. Therefore, the Railway Administration filed M.P. 119/2003 in O.A. No. 54/03 seeking modification of the interim order dated 25.3.2003. It was contended that it would be in the interest of justice to allow to fill the said 3 post of Principal (Senior).
24. The basic question which needs determination in the present case is whether the Railway Authorities could ignore the mandate of statutory Recruitment Rules notified on 17th March, 1980. The contention of Smt. D.R. basically is that she was entitled to be promoted as Head Mistress, Railway Girls High School, New Jalpaiguri, based on West Bengal Board of Secondary Education communication dated 22nd February, 1980 reserving the said post only for Female Teacher. It is well settled law that when there is conflict between statutory Recruitment Rules and administrative instructions, the statutory RRs must prevail. On the face of the Recruitment Rules which we have perused carefully, we are unable to hold in her favour. The Recruitment Rules were framed under the power conferred by proviso to Article 309 of the Constitution. No distinction is made under the said RRs by the Railways amongst the teachers based on their gender. We have not been shown any other Recruitment Rules governing the appointment/promotion of post of Principal/Head Mistress of the said High School.
25.ThepostofPrincipal/HeadMaster/HeadMistressofHighSchool,whichisaGroup 'B' post, is required to be filled based on selection by promotion failing which by transfer on deputation and failing both by direct recruitment. In terms of column-12, permanent teaching staff working as Teacher Gr. I or Lecturer or Head Master in the pay scale of Rs. 550-990 (Pre-revised) with 3 years experience in the grade is eligible for consideration. The said RRs nowhere makes any separate provisions for filling the post of Head Master/Head Mistress of Railway Girls High School. New Jalpaiguri exclusively from female Teachers. It is not in dispute that the provisional seniority list issued on 1st April, 2001 placed NPC and SKC at Sl. Nos. 8 & 9, while Smt. D.R. was placed at Sl. No. 23. Based on the aforesaid Recruitment Rules, we have no hesitation to conclude that the promotion of Smt. D.R. vide order dated 28th May, 2001 could not have been made ignoring consideration of her seniors and the same was not in accordance with the RRs of 1980. Be that as it may, as the Railway authorities subsequently decided her posting vide order dated 3rd March, 2002 as an ex cadre posting, the said posting order dated 28th May, 2001 does not require any further consideration.
26. As per the Schedule attached to the Recruitment Rules 1980, the post of Principal/ Head Master/Head Mistress of Degree/Intermediate/Higher Secondary School is a selection post and is required to be filled by promotion failing which by transfer on deputation or by direct recruitment. As per column-12, (i) Principal or Head Master or Head Mistress of High School (Rs. 650-1200) (pre-revised) with 5 years regular service in the respective grade is eligible for promotion, (ii) Failing (i) above, 10 years combined regular service in the post of Principal, Head Master or Head Mistress (Rs. 650-1200) (pre-revised) and teaching staff working as Teacher Grade I or Lecturer or Head Master are eligible, (iii) Failing both, teaching staff working as Teacher Grade I or Lecturer or Head Master with 10 years regular service are made the feeder category. As we have already noticed that the post of Principal (Senior Scale) as well as Head Master/Head Mistress being the selection post, the mandate of DOP&T O.M. dated 10th April, 1989 which deals with constitution of DPCs as well as prescribe other guide lines like zone of consideration, is required to be followed. As per the said O.M., if there were 3 vacancies, the zone of consideration is only 10 officials. Seniority in such circumstances e.g. a selection post has a major role to play. The aforesaid combined seniority list as on 1st April, 2001 has not been challenged by Smt. D.R. We find no illegality in placing her name at Sl. No. 11 vide communication dated 7th August, 2003. She was considered for the post of Principal, Railway High School pursuant to the order passed by this Tribunal on 25th March, 2003 in O.A. No. 54/2003.
27. We have carefully perused the judgments cited by the learned Counsel Mr. B. Sarma appearing for Smt. D.R. and find that none of the judgments cited are relevant and applicable in the facts and circumstances of the present case. As per the settled law the statutory Recruitment Rules have to be operated and cannot be ignored. The communication dated 21st February ,1980 from West Bengal Board of Secondary Education under no circumstances could be equated as prescribing the mode of Recruitment to the post of Headmistress in question. Moreover, in our considered view the condition prescribed therein, which we have already noticed herein above, were in relation to the recognition granted to the said School only and the same cannot be read for any other purpose. The subject matter of the said communication also stated in clear terms that; "Recognition of Girls High School and shifting of the Railway High School from Domohani to New Jalpaiguri." When a statutory rule is in existence whether framed immediately after the said communication or prior to it, the said communication dated 21st February, 1980 which at the most could be described as administrative instructions cannot be allowed to operate particularly when it is in contradiction to the statutory Recruitment Rules notified on 17th March, 1980.
28. This being the position, we find justification in the Railway authorities stand to treat the promotion of Smt. D.R. to the Railway Girls High School, New Jalpaiguri as ex cadre posting. The action to treat the said promotion as a regular promotion could not have been justified in terms of Recruitment Rules, 1980. It is well settled law that no one can be promoted in disregard to the mandate of statutory Recruitment Rules otherwise it would be void. From this angle also, we are of the considered opinion that no conditions of service of Smt. D.R. has been prejudicially affected vide Railway Authorities communication dated 3rd March, 2003.
29. As far as the communication dated 24/25th July, 2003 conveying adverse remarks to Smt. D.R. is concerned, we find no justification in the said adverse remarks for the simple and plain reasons that approaching Tribunal/Court for redressal of his/her grievance is a legal right available to an official and on that basis their conduct cannot be censured. Under no circumstances, approaching Tribunal/ Court for redressal of grievance could be treated as an act of indiscipline, what to talk of serious act of indiscipline. No doubt for the aforesaid adverse remarks, Smt. D.R. was considered only 'Good' by the Selection Committee and thereby treated as unfit for promotion but said view could neither be a material infirmity or illegality particularly when Smt. D.R. was 11th candidate called for consideration for filling 3 posts of Principal (Senior Scale) in Railway Girls High School, and was not eligible for consideration. As per Para 6.1.1 of O.M. dated 10th April, 1989 as available in Swamy's Complete Manual of Establishment and Administration 2003 edition, for 3 vacancies the zone of consideration prescribed is 10. Viewed the present case from this angle, Smt. D.R. could not have been considered for filling 3 vacancies of Principal, Railway Higher Secondary School. Therefore, even if Smt. D.R. was accorded 'Good' and consequently not promoted as noticed in impugned communication dated 24/25th July, 2003 it would not be of any consequence.
30. As far as the question of filling the post of Principal (Senior Scale), whether by regular basis or ad hoc is concerned, this being a policy decision remains within the domain of Railway Authorities. Moreover, the reliance placed by Mr. B. Sarma on Railway Board's letter dated 11.6.1965, 23.2.1974 and 1.4.1981 is only in the nature of guidelines and not the Recruitment Rules. As already noticed, learned Counsel for the Railways, pointed out that in all 7 Railway High Schools, the post of Principal remains unfilled as on date. Therefore, we would impress upon the authorities concerned to fill up the said post at the earliest, particularly in the interest of Childrens' education.
31. It is undisputed fact that SKC and NPC were granted PGT senior scale in the pay scale of Rs. 7500-12000, which is also the scale attached to the post of Head Master/ Head Mistress gazetted Group 'B' post. Rulc-6 of CCS (CCA) Rules, 1965 deals with classification of posts. In terms of the DOPT O.M. dated 20th July, 1988 issued by the Central Civil Services Rules, under the said rule, post carrying a pay scale or a scale of pay with the maximum of not less than Rs. 9000 but less than 13500 has been classified as Group 'B' post. It is an admitted fact on all sides that all the officials were placed in the pay scale of Rs. 7000-12000. In terms of the aforementioned rule as well as notification we have no hesitation to conclude that all of them have to be treated as belonging to Group 'B' posts. Therefore, the contention that the Group 'B' and 'C cannot be clubbed and also that there cannot be any comparison between Smt. D.R. on the one hand and NPC and SKC on the other hand is misplaced and rejected.
32. In view of the discussion made hereinabove, we pass the following orders :
(i) Original Application No. 215/2003 as well as Original Application No. 54/ 2003 arc dismissed;
(ii) Original Application No. 201/2003 is partly allowed. The impugned order dated 25.7.2003 is quashed and set aside to the extent which communicated the adverse remarks to the applicant merely on her approaching the Tribunal, which is a judicial remedy available under the law;
(iii) As far as Misc. Petition No. 119/2003 filed by the official respondents in O.A. 52/2003 seeking recall/modifying the order dated 25.3.2004 in O.A. No. 54/2003 is concerned, since the said O.A. has been dismissed, no further order is required;
(iv) No costs.