Central Administrative Tribunal - Delhi
N K Sharma vs M/O Railways on 14 February, 2019
Central Administrative Tribunal
Principal Bench
OA No.2278/2018 With
OA No.4309/2017 and
CP No.657/2017 in OA No.591/2009
New Delhi, this the 14th day of February, 2019
Hon'ble Sh. Justice L. Narasimha Reddy, Chairman
Hon'ble Sh. Mohd. Jamshed, Member (A)
OA No.2278/2018
1. Mr. N.K. Sharma
S/o Late Shri Roshan Lal
r/o 21/99
Lodhi Colony, New Delhi-110003
Age 59 years, Designation Director
Estt (GP) Railway Board
Group „A‟.
2. Mr. Parvez, S/o Late Shri Roshan Lal
R/o A-31, Pandara Road
New Delhi-110003
Age 57 years, Designation Director Estt.(GR)
Group „A‟. ... Applicants
(By Advocate: Shri N.K. Bhatnagar )
Vs.
Through
1. The Secretary, Railway Board
Ministry of Railways, Rail Bhawan
Raisina Road, New Delhi-110001.
2. The Secretary, UPSC
Dholpur House
Shahjahan Road
New Delhi-110011. ...Respondents
(By Advocates: Shri V.S.R. Krisha, Shri Shailendra
Tiwari, Shri Sunil Kumar(Private Respondent in person)
2
OA No.2278/18, OA No.4309/17 &
CP No.657/17 in OA No.591/09
OA No.4309/2017
1. Mr. Sanjay Gauri
S/o Late Shri Baldev Raj
R/o C-4/27 DDA MIG Flats
East of Kailash, New Delhi-110065.
Designation-Deputy Director
Estt (G), Railway Board, Group A
2. Mrs. Suman Sharma
W/o Mr. V.K. Sharma
R/o D2/C-29, Moti Bagh-1, New Delhi
Age 56 years, Designation Director
Vigilance(Stores)
3. Mr. D. Joseph, S/o Mr. N.D. Joseph
R/o B-114, Pandara Road
Age 54 years, Deputy Director Estt.(G)III
4. Mr. Suvomoy Pal, Age 60 years
S/o Late Mr. Saurav Pal
R/o Flat No.85D, AC Block
Shalimar Bagh, New Delhi-110088
Designation - Joint Director, E(G)
5. Mrs. Anita Gautam
W/o Shri N.K. Gautam
R/o 109A/1, 2nd Floor, Street No.5
Krishna Nagar, Near Safdarjang Enclave
New Delhi-110029
Age 55 years
Designation Joint Director (P.G.) . ... Applicants
(By Advocate: Shri N.K. Bhatnagar )
Vs.
Through
1. The Member(Staff), Railway Board
Ministry of Railways, Rail Bhawan
Raisina Road, New Delhi-110001.
2. The Secretary, Railway Board
3
OA No.2278/18, OA No.4309/17 &
CP No.657/17 in OA No.591/09
Ministry of Railways, Rail Bhawan
Raisina Road, New Delhi-110001
3. Under Secretary (ERB-1)
Ministry of Railways, Rail Bhawan
Raisina Road, New Delhi-110001.
4. Chairman, UPSC
Dholpur House, Shahjahan Road
New Delhi-110011. ...Respondents
(By Advocates: Shri V.S.R. Krisha, Shri Shailendra
Tiwari, Shri Sunil Kumar(Private Respondent in person)
CP No.657/2017 in OA No.591/2009
1. S. Kameshwar
2. N.K. Sharma ...Applicants
(By Advocate: Shri N.K. Bhatnagar)
Vs.
Through
1. Mr., Ashwani Lohani, Chairman Railway Board
Ministry of Railways, Rail Bhawan
Raisina Road, New Delhi-110001.
2. Mr. Ravinder Gupta
Member Rolling Stock, Officiating as Member Staff
Ministry of Railways, Rail Bhawan
Raisina Road, New Delhi-110001.
3. Mr. R.K. Verma, Secretary Railway Board
Ministry of Railways, Rail Bhawan
Raisina Road, New Delhi-110001.
4. Mr. Chetan Prakash Jain, Ex. Dir. (Estt.) (GC)
Ministry of Railways, Rail Bhawan
Raisina Road, New Delhi-110001.
5. Mr. Shekha Kashyap
Under Secy. (E)
Ministry of Railways, Rail Bhawan
Raisina Road, New Delhi-110001. ...Respondents
(By Advocates: Shri V.S.R. Krishna and Sh. Shailendra Tiwari)
4
OA No.2278/18, OA No.4309/17 &
CP No.657/17 in OA No.591/09
ORDER (ORAL)
Justice L. Narasimha Reddy:-
These two OAs and the CP arise under certain peculiar circumstances. Briefly stated, the facts are as under:
2. Section Officer (SO) is one of the posts in the Railway Board Secretariat Service (RBSS). The cadre was constituted in the year 1970. Appointment to that is partly through direct recruitment, and partly through other methods such as promotion on the basis of seniority from the feeder category through Limited Departmental Competitive Examination (LDCE) and from the category of Stenographers.
3. OA No.591/2009 was filed by Shri N.K. Sharma, and Shri Parvez, the applicants in OA No.2278/2018, along with others, complaining that the direct recruits were being assigned seniority beyond their entitlement and that has worked out to their detriment. On the other hand, the directly recruited SOs filed OA No.2981/2009 stating that they were not being 5 OA No.2278/18, OA No.4309/17 & CP No.657/17 in OA No.591/09 assigned the seniority, which they are otherwise entitled to, in law.
4. Through a common judgment dated 31.05.2016, which runs into 130 pages, this Tribunal issued certain directions that have far reaching consequences. It was directed that the seniority list for each year, commencing from 1970 must be prepared afresh and depending upon the place assigned to the incumbents, whether direct recruits or promotees, their subsequent promotions also shall be reworked.
5. The Railways seems to have pleaded that such an exercise would lead to devastating consequences. The Tribunal, however, observed that even if mayhem happens, that should be permitted and directions issued by it must be complied with, at any cost.
6. The Railways filed a Review which, in turn, was dismissed by this Tribunal and thereby, the judgment in the two OAs became final. Stating to be in compliance with the judgment of the Tribunal, the respondents have undertaken an exercise to refix the seniority of the SOs commencing from the year 1970. The 6 OA No.2278/18, OA No.4309/17 & CP No.657/17 in OA No.591/09 methodology to be followed in this behalf was prescribed in detail, through a circular dated 29.08.2017. Annexure-II thereof, indicated the steps adopted for this purpose. The resultant seniority list was appended thereto.
7. As a result of the implementation of the judgment in OA No.591/2009, the places of the applicants herein in the seniority list were substantially changed. For example both the applicants in OA No.2278/2018 were selected by the UPSC for the post of SO under the LDCE category and they were appointed on substantive basis, against the vacancies of the year 1987.
However, in the process of the implementation of the judgment, they have been assigned the years of 1996 and 1997, respectively.
8. Feeling aggrieved by the seniority list which is appended to Circular dated 29.08.2017, both of them filed Writ Petition No.1059/2017 before the Hon‟ble Delhi High Court. In the Writ Petition it was canvassed that, had the applicants been not parties to OA No.591/2009, they would have filed a separate OA challenging the seniority list and since the seniority list 7 OA No.2278/18, OA No.4309/17 & CP No.657/17 in OA No.591/09 was the result of the implementation of the OA filed by them, they are compelled to file a Writ Petition.
9. By that time, Shri Sanjay Gauri, who too is a promotee Section Officer, but was not a party to OA No.591/2009, filed OA No.4309/2017 before this Tribunal.
10. The Hon‟ble Delhi High Court disposed of the Writ Petition through Order dated 05.04.2018, leaving it open to the applicants to approach the Tribunal to ventilate their grievance. The Hon‟ble High Court directed that the OA which may be filed by Shri N.K. Sharma and Shri Parvez shall be heard along with OA No.4309/2017. That is how, both the OAs are before us. It was observed that the entire issue can be examined comprehensively by the Tribunal, being the court of first instance.
11. One of the applicants in OA No.591/2009 by name, Shri S. Kameshwar filed CP No.657/2017. According to him, the directions issued by the Tribunal for convening a Review DPC, consequent upon the alteration of the seniority list, has not taken place and 8 OA No.2278/18, OA No.4309/17 & CP No.657/17 in OA No.591/09 there is a lapse on the part of the respondents. Therefore, he filed the contempt case.
12. The applicants in the OAs contend that in its judgment dated 31.05.2016 in OA No.591/2009, the Tribunal in clear and categorical terms, held that the rota quota system has collapsed in the RBSS and despite that, in the name of implementation of the judgment, the respondents have resurrected the same by allocating the vacancies for each category. It is also stated that whatever be the mechanism or process involved, the question of an officer who is appointed in a substantive capacity in a particular year, being pushed down to a subsequent stage, does not arise. Other contentions are also urged.
13. On behalf of respondents detailed counter affidavits are filed. They submit that in OA No.591/2009 filed by these very applicants, it was pleaded that the recasting of the seniority list from 1970 would lead to disastrous consequences and despite that it is the applicants, who insisted upon that very exercise being undertaken. They contend that once the applicants have brought into existence, a 9 OA No.2278/18, OA No.4309/17 & CP No.657/17 in OA No.591/09 judgment with certain directions, they cannot escape from the consequences which flow from the implementation thereof.
14. We heard Shri N.K. Bhatnagar, learned counsel for the applicant and Shri V.S.R. Krishna and Shri Shailendra Tiwari, learned counsel for the respondents, in detail.
15. It is not uncommon that the discrepancies arise in the context of fixation of seniority wherever there are multiple source of appointment to a particular post. Such discrepancies are rectified or corrected by taking recourse to the procedure indicated in the relevant service rules or by applying the principles that govern the situation. Added to that, the issues are addressed individually or to the extent they concern the aggrieved persons; instead of making an overall exercise destabilizing the entire administration or establishment.
16. In OA No.591/2009, there were only five applicants, including both the applicants herein, and there should not have been any difficulty in addressing their grievance. Even if the plea of the applicants was 10 OA No.2278/18, OA No.4309/17 & CP No.657/17 in OA No.591/09 to be accepted, it would have affected only about ten persons who figured as respondent Nos.4 to 13 therein. The applicants, however, wanted a comprehensive relief to the extent of overhauling the entire cadre of SO in the RBSS, spread over about half a century.
17. On its part the Railway Administration pleaded that revision of seniority list from the year 1970 onwards would lead to several disastrous consequences, particularly in view of the fact that several persons have earned number of promotions or may have retired from service and it would lead to the reversions or other similar consequences. The applicants were vehement in their approach and the Tribunal was also convinced by that. The result was that the OAs were disposed of with a set of directions. The operative portion of the judgment is contained in paragraph numbers 181 to 183. They read as under:-
"181. Under the law as laid down by the Hon‟ble Apex Court in its order dated 16.02.2006 in Civil Appeal No. 8568 of 2002 Union of India & Anr. vs. I.P. Awasthi & Ors., this Tribunal does not have the power to order only for prospective operation of its orders, which power is available only to the Hon‟ble Apex Court, and, therefore, all the above directions and determinations of the 11 OA No.2278/18, OA No.4309/17 & CP No.657/17 in OA No.591/09 principles of law applicable in respect of these two cases covered by this Common Order would operate in the RBSS from the very inception of the RBSS as a separate service.
182. With these directions, these two connected OAs are disposed of, and the impugned Memorandum dated 22.12.2008 issued by the Secretary Railway Board, is set aside, and he is directed to issue fresh year- wise Seniority Lists of Section Officers from 1970 onwards, taking into account the above principles. The Respondent No.1 is, therefore, directed to re-cast the entire year-wise Seniority Lists of the RBSS at the level of Section Officers, from the very beginning of the RBSS as a Service, on the basis of principles as have been explained above, which may again be summarised as below:-
"i) The latin maxims fiat justitia et pereat mundus or fiat justitia ruat caelum, commonly ascribed to Ferdinand I, Holy Roman Emperor, and roughly meaning "let there be justice, though the world perish" , or "let justice be done, though the heavens fall" would apply, and, justice must be done, regardless of the result otherwise, and the law of the land shall be applied, and the plea of the official respondents that there would be chaos or mayhem, if the practice and system of assigning inter-se seniority of SOs as had been adopted by them is ordered to be changed is rejected outright. Let chaos and mayhem prevail once, so that inter-se seniority of the respective sides are fixed in a legal manner, once and for all, and in future also.12
OA No.2278/18, OA No.4309/17 & CP No.657/17 in OA No.591/09
ii) Each and every person can claim seniority in the cadre of Section Officers only from the date of his substantive appointment in that cadre, irrespective of the year during which the vacancy which he came to substantively occupy had arisen earlier;
iii) This proposition would apply to all categories of Section Officers, whether they were Direct Recruits nominated by UPSC, or Departmental Promotees, through any of the routes of (i) seniority-cum-merit-based promotion after 8 years‟ of continuous service, or (ii) accelerated promotion through LDCE route, after completion of 4 years‟ of service as Assistants, or (iii) through promotion of the Stenographers in respect of the two earmarked vacancies, which continued to be so earmarked till the promulgation of the RBSS Amendment Rules of 2004;
iv) No weightage whatsoever can be, or shall be given to anybody in respect of any In- charge, or ad hoc, or officiating basis appointment as Section Officers, even if he had been included in the Select List of SOs by the DPC already, before his assuming charge as such, or had qualified for accelerated promotion being granted to him through the LDCE route, before his assuming charge as such, until such a person comes to substantively occupy the post of SO either in the regular DP quota, or the DR quota transferred to the DP mode after having remained unfilled for two years.
v) The seniority in the cadre of Section Officers at level-3 of RBSS so determined, in the manner as indicated above, shall alone be taken into consideration of further 13 OA No.2278/18, OA No.4309/17 & CP No.657/17 in OA No.591/09 promotions to level-2 and level-1 of RBSS thereafter.
vi) The Respondent No.1 shall, after finalization of the SOs‟ level Seniority List, convene DPCs or Review DPCs, for considering year-wise further promotions of all the incumbent SOs in that seniority list as Under Secretaries and Deputy Secretaries etc., and so on.
183. However, it is further made clear that after undertaking such proper promotions, if any individual is found to have already enjoyed higher emoluments fortuitously in the meanwhile, in view of his having been wrongly so promoted to the promotional posts concerned earlier than when it actually became due to him, as per law, and as per the Review DPCs etc., no recoveries in respect of the excess salary and emoluments, paid already to him in such promotional posts, due to erroneous promotions having been granted earlier to any individual incumbent, before they became due to such individual, no recoveries of any amounts already disbursed due to the fault of the official respondents shall be effected.
18. It is clear that the applicants were aware that it is going to result in „chaos or mayhem‟ and they did not mind it. They should have realized that they would be the first ones to be drowned in the chaos or mayhem. Strategically, the Railway Administration did not choose to file a writ petition in the High Court. It would not 14 OA No.2278/18, OA No.4309/17 & CP No.657/17 in OA No.591/09 have been difficult for any superior forum to limit the scope of the judgment to the extent of granting reliefs to the applicant therein, instead of unsettling the affairs that took place in 4½ decades. Added to that, the affected parties were not before the Tribunal.
19. In the process of implementation, the respondents have undertaken a perfect and precise exercise by issuing Circular dated 29.08.2017. It is relevant to note that methodology of implementation was formulated in Annexure-II of this Circular. It reads as under:
"(4) The DRs have been allotted seniority only from their recruitment year. The unfilled DRs vacancies in a year have been carried forward only up to the next two years. If these vacancies still remained unfilled, they have been diverted to DP quota for the next year in accordance with the provision of RBSS Rules 19(39. DPs' adjustment in their Quota has been further restricted to the number of confirmation up to that year up to vacancy year 1986 (the year up to which the DPs were confirmed against a substantive post) in order to ensure that no DP gets ante-dated seniority prior to his confirmation. Further, in order to ensure that lawful DP quota does not get abolished as a result of such restriction, the unfilled DPs vacancies of a year have been carried forward in the DP stream itself beyond two years for adjustment of DPs.
(8) After determining the year wise quota of DRs and DPs in such a manner, the DRs and DPs have been interpolated within their lawful quota of every year in the ratio of 5 DPs :1 DR 15 OA No.2278/18, OA No.4309/17 & CP No.657/17 in OA No.591/09 up to 1987 and then 4 DPs : 1 DR from 1988 onwards. This interpolation has been done in accordance with the illustration of assigning inter-se seniority between DRs and DPs as available in RBSS Rules 1969.
(9) Those DR who were selected against carried forward vacancies, they have been placed en bloc below the last person (DR or DP as the case may be) of the year in accordance with the provision of RBSS Rules 1969.
(10) The DPs of a particular Select List year who were found working in excess of their lawful quota of that year, have been treated as ad-hoc and have accordingly been pushed down and adjusted in their quota of DPs for the next subsequent years."
20. The applicants are not able to point out as to which aspect of this methodology is contrary to the judgment in OA 591/2009. As a matter of fact, one cannot contemplate anything different.
21. The applicants got hurt, in the process of fixation of the number of vacancies for each category, for every year.
22. The cadre strength of any particular post remains constant, unless it is revised at a particular point of time. The number of vacancies to be filled at a given point of time in that cadre would depend upon the 16 OA No.2278/18, OA No.4309/17 & CP No.657/17 in OA No.591/09 number of retirements or the promotions that take place from that post during that period. Once the vacancies available for a particular year are determined, the allocation for direct recruitment on the one hand and promotion under various categories, on the other hand, as mentioned in the Recruitment Rules, needs to be worked out. Such a fixation cannot be treated as implementation of rota quota. It is fairly well known that rota quota is a process in which, the places in a roster for various categories are fixed. Determination of the number of posts to be filled through direct recruitment and other methods is a different exercise altogether.
23. It appears that on account of delay in direct recruitment, the vacancies meant for that were also filled and occupied by promotees, year after year. With the directions issued by the Tribunal and the methodology adopted by the respondents, the entitlement of promotees was re-determined as provided under the Recruitment Rules. That naturally led to the shifting of promotees who were appointed in excess of their entitlement, to the subsequent years. Since it has cumulative and cascading effect, the 17 OA No.2278/18, OA No.4309/17 & CP No.657/17 in OA No.591/09 applicants herein were pushed down, virtually by one decade.
24. It is true that date of substantive appointment of an employee cannot be shifted to later date to his detriment, except by way of punishment. In the instant case, if at all anyone is to be blamed for the startling disadvantage that has occurred to the applicants, it is only the applicants, and nobody else. The administration was not only forced to create and bring about a very complicated situation affecting the rights of many persons but also was whipped by the applicants by filing a Contempt case and other exhortations. Left with no alternative, the respondents have implemented the judgment in the OA through the impugned order.
25. To a specific question as to which part of Annexure-II runs contrary to the judgment of the Tribunal in OA 591/2009, the learned counsel of applicants is not able to give a specific and definite answer. Though, learned counsel for the applicants placed reliance upon the judgment of the Hon‟ble Supreme Court in Direct Recruit Class II v. State of 18 OA No.2278/18, OA No.4309/17 & CP No.657/17 in OA No.591/09 Maharashtra and Ors. dated 02.05.1990, 1990 AIR 1607, we are of the view that it has no immediate relevance to the facts of the present case.
26. The applicants in OA 2278/2018 may in a way be precluded or stopped to plead contrary to the judgment in OA 591/2009 to which they are parties. However, the applicant in OA 4309/2017 stands at a different footing since he was not party to the judgment. Though it would have been otherwise competent for us to grant relief to him in terms of the settled principles of law, we are handicapped on account of the judgment in OA No.591/2009. If he is so advised, he can file a writ petition challenging the judgment in OA No.591/2009, before the Hon‟ble High Court by seeking leave and depending upon the outcome thereof, he can pursue the further remedies.
27. We, therefore, dismiss OA 2278/2018. We dispose of OA 4309/2017, leaving it open to the applicant therein to file a writ petition before the Hon‟ble High Court against the judgment in OA No. 591/2009 by seeking leave, in accordance with law. 19
OA No.2278/18, OA No.4309/17 & CP No.657/17 in OA No.591/09
28. Coming to the Contempt case, we find that the respondents have complied with the judgment of the Tribunal in OA No.591/2009 by issuing Circular dated 29.08.2017. However, if the applicants in OA No.2278/20018 are of the view that the respondents have not followed the correct methodology, it shall be open to them to make representation in this behalf. CP is accordingly closed.
29. There shall be no order as to costs.
(Mohd. Jamshed) (Justice L. Narasimha Reddy) Member(A) Chairman /vb/