Calcutta High Court (Appellete Side)
For The vs Union Of India on 11 January, 2010
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1
11.01.2010
W.P.C.T. 208 of 2009
Mr. Sarojit Sen
Mr. Tapas Singha Roy
... For the petitioner
Mr. S. Samanta
Mr. B. Samanta
... For the added party
Mr. R. N. Das, Senior Advocate
Mr. Yatindra Nath Gupta
... For the respondents
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Pratap Kumar Ray, J. (Oral)
Re: C.A.N. 9160 of 2009 Heard the learned Advocates appearing for the parties.
This is an application filed by the Indian Railway Services of Mechanical Engineers Association for brevity referred to as I.R.S.M.E. Association, a society registered under Societies Registration Act, 1860 for being added as a party in this writ proceeding.
The writ petitioner in his individual capacity irrespective of his membership in the applicants' association moved an application before the Tribunal assailing the selection rule for the post of General Manager on the premises that the predominance rule is ultra vires to the Constitution of India. To appreciate the predominance rule, factual matrix is required to be dealt with. In fact, in the Indian Railways there are eight organised Group "A" services which are as follows:-
i) Indian Railway Service of Engineers (IRSE)
2
ii) Indian Railway Service of Mechanical Engineers (IRSME)
iii) Indian Railway Service of Electrical Engineers (IRSEE)
iv) Indian Railway Service of Signal Engineers (IRSSE)
v) Indian Railway Stores Service (IRSS)
vi) Indian Railway Traffic Service (IRTS)
vii) Indian Railway Accounts Service (IRAS)
viii) Indian Railway Personnel Service (IRPS)
The post of General Manager is not within any cadre of those services and it is a selection grade post. There are total 26 General Managers post in the organisation at the present moment. By predominance rule under the scheme of 1986 which subsequently got amended in 2001, it was specified that there must not be more than nine General Managers out of said 26 General Manager posts from any specific group of services under Group "A" service which are total eight in numbers as already discussed.
The learned Tribunal relying upon the Judgment of Supreme Court as mentioned in the order did not interfere with the issue on the reasoning that Apex Court has already decided the matter. The writ petitioner herein has challenged such decision of the Tribunal on the premises that the Tribunal did not consider by scanning the Judgment of the Apex Court the issue, namely, the ultra vires point as clearly dealt with in the application by contending inter alia that even a candidate is meritorious from any of the said groups and acquires higher position in the panel as being prepared, would be denied of appointment in the post of General Manager, in view of the predominance formula and thereby a junior in the panel would be entitled to get the service. The writ petitioner lost his case before the Tribunal and assailing that this writ application. The present 3 applicant is the association of one such category of Group "A" service, namely, IRSME Association. The writ petitioner is also a member of this association. It is the contention of the applicant before us that any decision in this writ proceeding would affect the interest of the other members of the association and as such association has a say in this proceeding. On that ground this application has been filed seeking a prayer for addition of the association as a party respondent in this writ application.
Having regard to the points involved, we are of the view that for effective adjudication of the lis so that it is binding upon all members of the association, association should be added as a party in this writ application.
Considering that and having regard to the opposition filed by the writ petitioner contending no objection for allowing this application and in view of the fact that the respondents did not file any affidavit-in-opposition opposing this application despite the direction, this application is allowed by adding the association, namely, the Indian Railway Service of Mechanical Engineers Association as a party respondent in this proceeding.
The application is thus allowed.
The writ application is also taken up for hearing as on day's list. Assailing the Order date 5th May, 2009 passed in O.A. No. 112 of 2009 by the Central Administrative Tribunal, Calcutta Bench, this writ application has been filed. The impugned order of the writ application reads such:-
"In this application the applicant who is a Chief Mechanical Engineer from the Indian Railway Services of Mechanical Engineers (IRSME in short) in the South Eastern Railway has challenged the Scheme for appointment to the posts of General Managers and equivalent 1986 with all amendments with particular 4 reference to its provisions of 'predominance' as ultra vires of the Constitution of India.
2. The fact of the case are briefly as follows:-
3. The applicant has been denied promotion to the post of the General Manager and equivalent in the Indian Railway with reference to the year 2008-2009. The applicant is serving as a Chief Mechanical Engineer in the Higher Administrative Grade in the South Eastern Railway. He belongs to the Indian Railway Services of Mechanical Engineers.
4. The case of the applicant is that a panel was prepared for appointment of General Managers in accordance with the Scheme for appointment to the post of General Manager and equivalent 1986 for the year 2008-09. The applicant's position in the panel was at Sl. No. 17. the case of the applicant is that Pvt. Respondent Nos. 5, 6 & 7 in the instant application who featured at Sl. Nos. 21. 22 & 23 and thus below him in the panel for General Managers in 2008-09 had been posted as General Managers which he had been not. He has thus been superseded which was violative of natural justice as well as Art. 14 of the Constitution. His legitimate expectations had been belied.
5. He had represented numerous times to the authorities regarding the legality of the provisions of 'pre-dominance' in the scheme of 1986. He had represented to the authorities on 3.10. 2008 and 10.10.08 and lastly to the Cabinet Secretary on 29.12.2008 but had not been provided any relief. On 12.1.2009 he had represented to the Secretary, Railway Board. He was not given any hearing. It is the contention of the applicant that the main object of the 1986 Scheme and its underlying classification has no rational relationship. The main object of the Scheme is to prepare a list of suitable and meritorious officers to be appointed as General Manager. The criteria of 'pre-dominance' does not fit into any logical relationship with the overall objective of providing suitable meritorious officers to be appointed as General Managers.
6. The applicant joined the Railways in 1974. Thereafter he held several posts moving to posts of higher responsibility. Finally he became Chief 5 Mechanical Engineer in the Higher Administrative Grade in October, 2007 currently in the South Eastern Railway.
7. The scheme of 16.7.1986 for appointment to the post of General Managers has been amended from time to time, the latest being the amendment of 2001. Para 4.1 of the Scheme lays down that the Selection Committee consisting of Chairman, Railway Board, Secretary, DOP&T and another Member of the Railway Board would prepare a panel based on merit of eligible officers for appointment to the post of General Manager. Eight organized railway services would be considered by the Committee for preparation of the panel. The applicant is a member of one of these organized services viz. IRSME (Annuxure-A/1).
8. The Scheme has to be equitable to all services and lays down that there should no undue 'predominance' of any one's service. Originally the Scheme had laid down that not more than six posts of G.Ms could be manned by a member of any one service. In 1978 this was replaced by the provision of 37.5%. A panel as prepared by the Committee would be for one year starting from 1st July of the year for which the panel was prepared and lasting upto 30th June of the year following.
9. The panel as prepared by the Selection Committee would be approved by the Appointments Committee of the Cabinet and from out of the approved panel, persons would be appointed to the post of G.M.
10. The case of the applicant is that juniors in the panel viz. Pvt. Respondent Nos. 5, 6 and 7 have been promoted as G.M ahead of him although they are juniors in the panel prepared for 2008-09. In giving such appointment to juniors, the respondents had erred violating the principle of inter-se seniority and the provisions of 'pre-dominance' provided for in the Scheme was ultra vires of the Constitution. Besides there was no rational relation with the Scheme of 1986 for meritorious officers to be appointed as General Manager and the criteria of predominance for appointment as General Managers experience and efficiency should be the criteria simultaneously with seniority. The applicant had suffered since these conditions had been breached by the respondents.
11. The applicant has also stated that as a result of this injustice he would be deprived of higher posts in the Railway Board such as Member, Railway 6 Board, Chairman Railway Board and such like. The applicant has stated that the scheme of 1986 with the provision of predominance was also in violation of twin principles of reasonable classification and rational principle laid down by the Hon'ble Supreme Court in the case D. S. Nakara -Vs.- Union of India, 1983(1) SCC
305.
12. The provisions of pre-dominance was not rational and the G.M.'s appointment should be based on the principles of inter-se seniority. The present scheme with the provision of pre-dominance crushed merit and, therefore, was ultra vires and against logic. The applicant has also stated that the amendment brought in the scheme in 1988 vide para 7.3 of the scheme that to be appointed as General Manager a person had to have two years remaining service was also bad and unequal. He has also stated that he will be hit by two years limit as on 31.3.2009 beyond which date he would have less than two years service.
13. In reply the respondents have first of all stated that there was a jurisdictional problem as the applicant was currently posted in Patiala and, therefore, was outside the jurisdiction of the Calcutta Bench of the Tribunal.
14. The respondents have then gone on to state that the present application was hit by limitation. The scheme came into being in 1986 and the applicant could not challenge the provisions of this Scheme at this stage.
15. The respondents have also stated that Supreme Court had already settled the issue in the case of Indian Railway Service of Mechanical Engineers Association and others -Vs.- Indian Railway Traffic Service Association and Another, 1994 (26) ATC 352 and had upheld the provision of pre-dominance. Since the Apex Court had already ruled in the matter there was no scope for this Tribunal to further go into it.
16. It has also been stated that the posts of General Manager were not included in any cadre and as such the applicant had no legal claim to the post. It was pointed out that the General Manager's post is not a promotional post where criteria like seniority etc. would apply. Persons were appointed to the post of General Manager and, therefore, other considerations would apply. It was also mentioned that mere empanelment confers no right. The Supreme Court had ruled on this in the 7 case of B. K. Kaul -Vs.- Union of India, JT 1991 (5) SC 21. It was also stated that Supreme Court in its ruling in the case of Indian Railway Service of Mechanical Engineers Association and Other -Vs.- Indian Railway Traffic Service Association and Another, 1994 (26) ATC 352 had inter alia ruled that courts should not interfere in matters of policy.
17. Heard counsel for the applicant and the respondents.
18. Counsel for the applicant argued with vehemence that the applicant had been put into the panel for appointment to the post of General Manager by a Selection Committee which was subsequently approved by the Appointments Committee of the Cabinet. Juniors to him had been promoted as General Manager while his case had been ignored. This was violative of natural justice. Being in the panel inter se seniority should be the determining criteria. The criteria of 'pre-dominance' went against natural justice. The provisions of 'pre- dominance' meant that all other things being equal juniors from other services would be promoted ahead of the applicant although the applicant was senior to them in the panel. The provisions of pre-dominance was thus liable to be struck down.
19. Counsel for the applicant referred to the case of A Satyanarayan and Ors. -Vs.- S. Purushotham and Others, 2008 (5) SCC 416 where the Apex Court had held that in administrative law policy decision would be subject to judicial review on the ground of arbitrariness, irrationality and unreasonableness or nexus with the object sought to be achieved. In the same case the Apex Court had held that a person had a right to be considered for promotion in that right implies that promotion chances cannot be foreclosed forever. Statutory rules also had to be in consonance with the constitutional scheme in that it would have to be reasonable and not arbitrary.
20. Counsel also referred to the case of Civil Appeals Nos. 6934- 46/2005, 2008(9) SCC 242 where the Apex Court has held that promotion should be understood in a wider sense. It covers not only advancement to higher position or rank but also advancement to higher grade. Judicial review would come into play only if State action is contrary to constitutional or statutory provisions, or is patently arbitrary. It was argued that the factor for pre-dominance under the scheme for 1986 8 attracted this provision and, therefore, should be subject to review. Reference was also made to the case of State of Rajasthan -Vs.- Fateh Chand Soni, 1996 (1) SCC 562 where the Apex Court had gone into details where appointments amounts to promotion.
21. Counsel for the respondents argued that the provision of pre- dominance had to be seen in the context of the 8 services whose members were considered by the selection committee for appointment to the post of General Manager. The applicant had no right to be promoted as General Manger even though he was empanelled. Hon'ble Supreme Court has held in the case of B. K. Kaul (supra) that since the General Manager's post was by way of appointment and not by promotion and was not included in a cadre, the applicant had no legal claim to the same. In any case, the Scheme came into being in 1986 and the applicant was barred by limitation in challenging this at this late stage.
22. He also stated that officers senior to the applicant had not been appointed as General Manager. Finally counsel also stated that the Supreme Court has settled this issue in the case cited above 1994 (26) ATC 352. Counsel also cited the case of Suganthi Suresh Kumar -Vs.- Jagdeshan, 2002 (2) SCC 420 where inter alia the Apex Court had held that legal proposition laid down by the Supreme Court cannot be bypassed by the High Court on grounds that the attention of Supreme Court had not been drawn to a specific statutory provision.
23. Counsel for the respondents pointed out that Supreme Court had already decided this issue and had upheld the criteria of 'pre-dominance' and had inter alia ruled that there should not be any interference in government's policy in that case. The applicant had no legal right as the General Manager's post was not included in any cadre and was not a promotional post. Also being empanelled did not confer any legal right to the applicant.
24. We have given this matter our careful consideration.
25. It has to be mentioned that the scheme of 1986 provides for inclusion in a panel between members of 8 Railway services. The scheme, therefore, has to strike a balance between an individual's expectation and equity between members of 8 services keeping in view the larger good of the railway system as a 9 whole. It has also been made very clear that the General Manager's post is not a promotional post hence the criteria of seniority would not apply as would be applicable to promotional posts. In any case Supreme Court has ruled on the issue in 1994 (26) ATC 352. Once the Supreme Court has ruled on the issue which covers the criteria of pre-dominance it has become the law of the land under Art. 141 of the Constitution. Under the circumstances the O.A. lacks merit and is, therefore, dismissed. No cost."
Having regard to the impugned order, this Court is of the view that the learned Tribunal below did not scan the issue, namely, whether the predominance formula is contrary to the Constitutional provision of the law or that should be a proper policy decision. Since the association has been added as a party in this proceeding, we are of the view that the association should be given an opportunity to represent their case before the learned Tribunal below, so that the Tribunal may pass a reasoned decision on the issue on hearing association also, who has now been added as a party in this proceeding.
Considering that the impugned decision under challenge before us is set aside and quashed, not on the ground of merit as has been advanced by the learned Tribunal below or by deciding the issue on merit, but only on the ground that for effective adjudication the association should be added as a party in the proceeding to agitate the issue in different angle so that any order if is passed may have a binding effect upon all the members of the said association. Considering that, impugned order is set aside and quashed with a direction for hearing the original application de novo. The added respondent is now added as a party respondent in the original application by this order. The Tribunal will direct the respective parties to file their rejoinders and thereby dispose of the matter as expeditiously as possible preferably within a period of four months from the communication of this order.
10It is made clear that this Court has not gone into the merits of this case. Further it is made clear that this Court has not gone into the issue as to whether the Apex Court has dealt with the issue involved herein the predominance scheme.
Mr. R. N. Das, learned Senior Advocate, appearing for the respondents has submitted that the association who now has been added, agitated the issue before the Apex Court by challenging the predominance formula unsuccessfully in the case Indian Railway Service of Mechanical Engineers Association & Ors -Vs.- Indian Railway Traffic Service Association & Ors and in the case Union of India -Vs.- Indian Railway Traffic Service Association & Ors both reported in 1994(26) ATC 352 and further raising of the said issue, is attracted by the principal of res judicata.
Having regard to such submission, this Court is of the view that this point also could be agitated before the learned Tribunal below as already we have mentioned that we have not gone into the issue and all points are kept open for adjudication by the learned Tribunal below. On scanning the Judgment delivered by the Apex Court.
The writ application is accordingly allowed on the aforesaid terms and conditions.
(Pratap Kumar Ray, J.) I agree, (Mrinal Kanti Sinha, J.)