Central Administrative Tribunal - Delhi
Manoj Kumar vs M/O Railways on 15 September, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1106/2014
MA-991/2014
Reserved on : 09.09.2015.
Pronounced on : 15.09.2015.
Hon'ble Sh. G. George Paracken, Member (J)
Hon'ble Sh. Shekhar Agarwal, Member (A)
1. Sh. Manoj Kumar,
S/o Sh. L.K. Jha,
R/o Flat No.62, Block-E-1, Pkt-11,
Sector-15, Rohini, Delhi-89.
2. Sh. Sudhir Kumar,
S/o Late Sh. K.N. Prasad,
R/o K-55/H, Sheikh Sarai,
Phase-II, New Delhi-17.
3. Sh. T. Srinivas,
S/o Sh. T. Rajamouli,
R/o Flat No. 691, Pocket-E,
Mayur Vihar Phase-II,
Delhi-91. .... Applicants
(through Sh. A.K. Behera with Sh. Yogesh Sharma, Advocates)
Versus
1. Union of India through the Secretary,
Railway Board, Ministry of Railway,
New Delhi.
2. The Joint Secretary (G),
Railway Board, Ministry of Railway,
New Delhi.
3. The Secretary,
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi-1.
4. Smt. Sukhendar Kaur,
Grade-I, RBSS through the
Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi.
5. Miss. Manju,
Grade-I, RBSS through
the Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi.
2
OA-1106/2014
6. Sh. M.C. Rastogi,
Grade-I, RBSS through the
Joint Secretary (G),
Railway Board,
Ministry of Railway,
Rail Bhawan, New Delhi.
7. Ms. Sashi Sood,
Grade-I, RBSS through
the Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi.
8. Sh. P.D. Jacob,
Grade-I, RBSS through
the Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi.
9. Sh. A. Gopalakrishnan,
Grade-I, RBSS through
the Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi.
10. Ms. Saroj Bala Gandhi,
Grade-I, RBSS through
the Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi.
11. Ms. Anita Malhotra,
Grade-I, RBSS through
the Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi.
12. Sh. P.K. Vaid,
Grade-I, RBSS,
Through the Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi.
13. Sh. Prem Kumar Dua,
Grade-I, RBSS
Through the Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi.
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OA-1106/2014
14. Ms. Veda Thakkur,
Grade-I, RBSS,
Through the Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi.
15. Ms. Usha Gopalkrishnan,
Grade-I, RBSS,
Through the Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi.
16. Sh. S. Sridhar,
Grade-I, RBSS,
Through the Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi.
17. Ms. R. Shyamala,
Grade-I, RBSS,
Through the Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi.
18. Ms. Indu Chopra,
Grade-I, RBSS,
Through the Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi.
19. Sh. R.S. Sharma,
Grade-I, RBSS,
Through the Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi.
20. Sh. B.K. Mallik,
Grade-I, RBSS,
Through the Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi.
21. Smt. Purnima Maity,
Grade-I, RBSS,
Through the Joint Secretary (G),
Railway Board, Ministry of Railway,
Rail Bhawan, New Delhi. .... Respondents
(through Sh. Shailendra Tiwari and Sh. R.V. Sinha, Advocates)
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OA-1106/2014
ORDER
Mr. Shekhar Agarwal, Member (A) Applicant No.1 was appointed as Section Officer in Railway Board Secretariat Service (RBSS) through Civil Services Examination, 1996. Applicants No. 2 & 3 were so appointed through Civil Services Examination, 1997. Presently, they are working as Under Secretary on ad hoc basis. As per Rule-8(3) of RBSS Rules, 1969 the next promotion for the post of Section Officer is to the post of Grade-I (Under Secretary/Deputy Director). Section Officers with 08 years of approved service in that grade are eligible for promotion. On 12.02.1997, a proviso was inserted in Rule-8(3) by which it was directed that if a junior was being considered for promotion to Grade-I then a senior, who has rendered not less than 06 years approved service in that grade, shall also be considered even if he does not have the requisite 08 years of service. On 07.02.2000 this proviso was, however, deleted with retrospective effect. In an explanatory Note given below such deletion it was certified that interest of no one shall be pre-judicially affected by giving retrospective effect to this deletion. On 29.06.2011, the Railway Board have issued panels for the years 2002-03, 2003-04 and 2004-05 for promotion of 90 Section Officers of RBSS as Under Secretary. The names of the applicants did not figure in these panels despite the fact that several juniors to the applicants were included in the same. According to the applicants they were not included on the ground that they had not completed 08 years of service required for such promotion. The applicants then made a representation on 16.07.2011 for including their names in the panels for the years 2003-04 & 2004-05 stating therein that as per proviso inserted in Rule-8(3) on 12.02.1997 they were eligible to be considered since they had completed 06 years of service and that the certificate given on 07.02.2000 to the effect no body‟s interest would be prejudicially affected while deleting the aforesaid 5 OA-1106/2014 proviso retrospectively was incorrect. Their representation was considered by the competent authority in the Railway Board and on 16.01.2012 a request was made by the Board to UPSC to conduct a review DPC to consider inclusion of the names of the applicants for the panel year 2004-05. UPSC first sought some information from the Railway Board on 07.02.2012 but later on vide their letter dated 15.03.2012 refused to conduct a review DPC. The Railway Board again requested UPSC on 19.04.2012 to agree to their request for conducting a review DPC. However, on 15.05.2012, the UPSC reiterated their stand. The applicant then filed OA-3496/2012 before this Tribunal. This was disposed of on 16.10.2012 with the following directions:-
"3. In view of the above, we find it appropriate to dispose this OA in limine by directing the UPSC, respondent No.3 to conduct the Review DPC, as per the proposal by the Railway board within two months. In case any difficulty is found, they would be bound to communicate it to the respondent no. 1&2 within the said period itself. Further, after the conduct of the Review DPC, the respondent Nos. 1 & 2 would also take necessary follow up action within one month thereafter. In any event, the applicants would be kept informed of the action taken in this matter."
2. When the aforesaid order of the Tribunal was not being complied with, the applicants filed CP-186/2013. Thereafter on 20.11.2012, the UPSC passed the impugned order rejecting the proposal of the Railway Board for conducting review DPC. The CP was closed by the Tribunal on 03.03.2014 with liberty given to the applicant to challenge the aforesaid order of UPSC through separate original proceedings. Accordingly, the applicants have filed this O.A. before us seeking the following relief:-
"(i) That the Hon‟ble Tribunal may graciously be pleased to pass an order of quashing the impugned order/letter dated 20/23.11.2012 (Annex.A/1), declaring to the effect that the whole action of the UPSC not conducting the review DPC for considering the cases of the applicants for their regular promotion to the post of grade-I of RBSS i.e. the grade of Under Secretary/Deputy Director as per the decision taken by the Railway Board as per the Railway Board proposal dated 16.01.2012 is illegal, arbitrary, against the rules and against the law on the land. It is further prayed that the Hon‟ble Tribunal may graciously be pleased to 6 OA-1106/2014 pass an order directing the UPSC to conduct a review DPC immediately as per the Ministry of Railway‟s proposal contained in their letter dated 16.01.2012 and consider the cases of the applicants for their regular promotion to the post of Grade-I of RBSS in the panel of 2003-04 and 2004-
05 with all consequential benefits from the due date. It is also prayed that the Hon‟ble Tribunal may graciously be pleased to pass an order directing the respondents to further promote the applicants to the posts of Joint Director/Deputy Secretary from the date of promotion of junior persons within a specific time frame.
(ii) That the Hon‟ble Tribunal may further graciously be pleased to pass an order of quashing the impugned order of Ministry of Railways dated 29.06.2011 only to the extent by which the applicants have not been considered for their regular promotion to the post of grade-I of RBSS and consequently pass an order directing the respondents to consider the cases of the applicants for their promotion to the post of Grade-I RBSS in the select panel 2003-04/2004-05 and for their further promotion to the grade of Joint Director/Dy. Secretary with all consequential benefits, alongwith the arrears of difference of pay and allowances.
(iii) Any other relief which the Hon‟ble Tribunal deem fit and proper may also be granted to the applicant with the cost of litigation."
3. The contention of the applicants is that the stand taken by UPSC was illegal and against the provisions of Recruitment Rules/DoP&T‟s Instructions as well as the law laid down by Hon‟ble Supreme Court. When the Ministry of Railways had themselves decided that there was merit in the contention of the applicants and had requested UPSC to conduct review DPC, the UPSC was bound to consider their cases and had no authority to deny such consideration. 3.1 Applicants have further submitted that to avoid situations where juniors are considered for promotion and seniors are not on account of not possessing the requisite eligibility service, DoP&T have been issuing instructions from time to time. The proviso dated 12.02.1997 was incorporated in RBSS Rules, 1969 on account of instructions conveyed by DoP&T vide their O.M. No. AB-14017/12/88- Estt.(RR) dated 25.03.1996. While the Railway Board subsequently deleted this proviso on 07.02.2000 retrospectively, they wrongly certified that nobody‟s 7 OA-1106/2014 interest would be pre-judicially affected by giving retrospective effect to this deletion. Since this proviso had been inserted in compliance of DoP&T‟s Instructions dated 25.03.1996, which have again been reiterated in DoP&T‟s O.M. dated 31.12.2010, this deletion itself was unwarranted. In fact, as mentioned by Railway Board in their clarification to UPSC dated 12.06.2012, the aforesaid OMs of DoP&T are still in force and in fact Recruitment Rules of sister service, namely, AFHQ Civil Services have been amended to insert the same provision.
3.2 The Railway Board have also quoted the judgment of Constitution Bench of Hon‟ble Supreme Court in the case Chairman, Railway Board Vs. CR Rangdhamiya, (1997) 6 SCC 623, the relevant part of which reads as follows:-
"In many of these decisions the expressions „vested rights‟or accrued rights‟ have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 & 16 of the Constitution."
Ministry of Law & Justice have also given the same advice regarding non- operation of amendments in the Rules with retrospective effect when the matter of ad hoc promotion of the applicants was referred to them. 3.3 The applicants have relied on the judgment of Hon‟ble Supreme Court in the case of UOI Vs. Smt Sadhana Khanna, (Civil Appeal No. 8208/2001) dated 14.12.2007 in which it was held that senior should also be considered when juniors are considered for promotion otherwise a very incongruous situation would arise. The applicants have also relied on the judgment of Full Bench of 8 OA-1106/2014 this Tribunal in OA-3278/2010 in the case of Ms. Garima Singh Vs. UOI & Ors. dated 09.05.2011. During the course of the arguments, it was mentioned that UOI had earlier challenged this judgment in the Hon‟ble High Court of Delhi vide Writ Petition Nos. 7619/2011, 2176/2012, 2523/2012, 2524/2012, 2525/2012, 2526/2012, 2527/2012, 5857/2012, 5858/2012 and 5859/2012. However, subsequently all these Writ Petitions have been withdrawn and Hon‟ble High Court vide their order dated 29.05.2015 have dismissed the aforesaid Writ Petitions as withdrawn. However, two Writ Petition Nos. 6597/2012 and 3003/2012 filed by direct recruits are still under consideration of Hon‟ble High Court.
4. In their reply, UPSC have stated the facts of this case as narrated above. They have further stated that the applicants herein joined as Section Officers on the basis of the results of Civil Services Examination held in 1996 and 1997 and their approved service is counted from 01.07.1997 and 01.07.1998. Thus, on the date when the proviso to Rule-8(3) of RBSS Rules, 1969 was deleted on 07.02.2000 with retrospective effect, applicant No.1 had completed only 02 years and 07 months of approved service whereas applicant Nos. 2 & 3 had completed 01 year and 07 months service. Therefore, the contention of the Ministry as well as the applicants that their interest had been pre-judicially affected by the deletion of the aforesaid proviso was not correct and not legally sustainable. They were rightly not included in the eligibility list submitted by the Ministry of Railways as they did not possess the requisite 08 years of service and the relevant Recruitment Rules at that time did not contain the provision that the senior should be considered even with 06 years of approved service. UPSC have further stated that as per DoP&T O.M. No. 22011/5/86- 9 OA-1106/2014 Estt.(D) dated 10.04.1989, review DPC can be convened only under the following circumstances:-
"18.1. The proceedings of any DPC may be reviewed only if the DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of the DPC or if there have been grave errors in the procedure followed by the DPC. Thus, it may be necessary to convene Review DPCs to rectify certain unintentional mistakes e.g.
a) where eligible persons were omitted to be considered; or
b) where ineligible persons were considered by mistake; or
c) where the seniority of a person is revised with retrospective effect resulting in a variance of the seniority list placed before the DPC; or
d) where some procedural irregularities was committed by the DPC; or
e) where adverse remarks in the CRs were toned down or expunged after the DPC had considered the case of the officer."
Since the case of the applicants is not covered by any of the circumstances mentioned above, review DPC cannot be convened.
5. Ministry of Railways have also filed reply in which they have stated that though the Ministry had earlier recommended the case of the applicants to UPSC for holding a review DPC, after re-examination of the matter in the light of the grounds put forth by UPSC, they have also decided to accept the stand taken by UPSC. They have further stated that promotions are to be made on the basis of Recruitment Rules, which were in force at the time of occurrence of vacancies. For the panel year 2004-05 this crucial date was 01.07.2004. On this date, the Recruitment Rules, which were in force did not contain any junior/senior clause for promotion to the post of Under Secretary on the basis of 06 years of approved service. Thus, the applicants cannot claim the said benefit.
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OA-1106/2014 5.1 Junior senior clause was deleted with retrospective effect because it was found to be in contravention of the judgment of Hon‟ble Supreme Court in the case of R. Prabha Devi and Others Vs. Government of India and Others, 1988 AIR
902. This was done on the basis of advice given by DoP&T themselves. Even during the period between 1997-2000 when this clause was in operation, no Section Officer with 06 years of approved service had been promoted as Under Secretary on regular basis under this clause. Moreover, when this clause was deleted, the applicants, who were well in service at that time did not represent against the said deletion.
6. We have heard both sides and have perused the material on record. We have also seen the original record of the Ministry of Railways in which this issue was dealt with.
6.1 Learned counsel for the applicants argued that DoP&T vide O.M. dated 25.03.1996 had directed all the Ministries to insert a clause at relevant position in the Recruitment Rules for consideration of seniors for promotion when their juniors are being considered even if they are short of eligible service provided such shortage is not more than a half of qualifying/eligibility service or two years, whichever is less (referred to as junior/senior clause hereafter). The said O.M. is reproduced here for the sake of convenience:-
"Sub: Revision of guidelines for framing/amendment/relaxation of recruitment rules-consideration of seniors in cases where juniors are considered.
The undersigned is directed to refer to para 3.1.2 of part.III in this Department‟s O.M. No. AB 14017/12/87-Estt.(RR) dated 18th March, 1988 wherein it was suggested that a suitable "Note" may be inserted in the Recruitment Rules to the effect that seniors who have completed the probation period may also be considered for promotion when their juniors who have completed the requisite service are being considered.11
OA-1106/2014
2. In the light of the Supreme Court judgement in R. Prabha Devi and others versus Government of India and others in Civil Appeals Nos. 2040-42 of 1987 decided on March 8, 1988 on the judgement and order dated Feb.11,1986 of the Central Administrative Tribunal, New Delhi and in continuation of O.M. of even no. Dated 23.10.1989, Government have decided to amend para 3.1.2 of Part III in this Department‟s O.M. No. AB 14017/12/87-Estt.(RR) dated 18th March, 1988. Accordingly, the last sentence of para 3.1.2 will stand amended to read as under:-
"To avoid such a situation the following note may be inserted below the relevant service rules/column in the schedule to the Recruitment Rules.
Where juniors who have completed their qualifying/eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade alongwith their juniors who have already completed such qualifying/eligibility service."
3. Consequent para 2.1.2 of this Department‟s O.M. No. AB 14017/12/87-Estt.(RR) dated the 18th March, 1988 will also be amended with the addition of the following sentence after 3rd sentence of para 2.1.2 ibid.
"The administrative Ministries/Departments are also empowered to amend all the service rules/recruitment rules to incorporate the "Note"as amended above."
6.2 Consequently, Railway Board issued a Notification on 12.02.1997 in which the following was provided:-
"Provided further that if any person appointed to the Section Officers‟ Grade is considered for promotion to Grade-I under this sub-rule, all persons senior to him in Section Officer‟s Grade who have rendered not less than six years‟ approved service in that Grade, shall also be considered for promotion notwithstanding the fact that they may not have rendered eight years approved service in that Grade; provided that the aforesaid condition of six years‟ approved service shall not apply to an officer belonging to the Scheduled Castes or the Scheduled Tribes."
Vide their O.M. dated 24.09.1997 DoP&T further clarified that this senior/junior clause as mentioned above would be applicable for both direct recruits as well as promotes. However, later on this clause was deleted vide Railway Board‟s Notification dated 07.02.2000. Learned counsel for the Railways Sh. Shailendra 12 OA-1106/2014 Tiwari argued that this was done on the basis of advice received from the DoP&T in which it was mentioned that in case the Railway Board does not delete the aforesaid clause from their Recruitment Rules, it will be their sole responsibility and risk to defend the action before the Hon‟ble Supreme Court if Contempt Petition is filed in the case of R. Prabha Devi (supra). 6.3 In order to understand why this advice was given by DoP&T, we have perused the judgment of Hon‟ble Supreme Court in the case of R. Prabha Devi's case (supra). Briefly, the facts of this case were that recruitment to the post of Section Officers in CSS was being made both by direct recruitment as well as promotion. Inter-se seniority of the two was fixed on the basis of rota quota rule. As far as promotion was concerned, it was provided in Rule-12 of CSS Rules, 1962 that 10 years of service in Grade-I of CSS was required for promotion to the next grade. The Rules also provided that whenever juniors were being considered, senior would also be considered even if he does not have requisite 10 years of service. The promotees had grievance that this gave undue advantage to the direct recruits, who were getting enhanced seniority due to rota quota rule and were getting promoted with very few years of service whereas the promotees were required to render 10 years of service before promotion. An amendment was, therefore, carried out in the Rules vide Notification No. 5/9/80 CS.I dated 29.12.1984 by which 08 years of approved service as Section Officer was prescribed as a necessary condition for being considered for promotion. This amendment was challenged before this Tribunal. The Tribunal dismissed the challenge on the ground that such a provision was not ultra vires of the Constitution. The direct recruits then approached the Hon‟ble Supreme Court. The Hon‟ble Supreme Court upheld the orders of this Tribunal. While doing so, they observed that rule making authority had every right to prescribe eligibility 13 OA-1106/2014 conditions for promotion to the next grade and such conditions cannot be held to be ultra vires of the Constitution until and unless they were violative of Fundamental Rights of any of the affected parties. Hon‟ble Supreme Court also held that once such conditions were prescribed they had to be strictly followed and could not be overlooked on the ground of seniority.
6.4 From a mere reading of this judgment, it is clear that Hon‟ble Supreme Court had upheld the right of the rule making authority to frame rules prescribing eligibility conditions for promotion. They had also laid down that such rules would remain valid as long as they were non discriminatory. Nowhere had they prescribed that the executive could frame rules prescribing different length of service for seniors in case their juniors were being promoted. In fact junior/senior clause was not discussed in the aforesaid judgment at all. Such a rule according to Hon‟ble Supreme Court would have remained valid as long as it was non discriminatory i.e. it was same for both direct recruits as well as promotees. The essence of Hon‟ble Supreme Court‟s order is very well captured in the O.M. dated 24.09.1997 issued by DoP&T in which not only a reference has been made to O.M. dated 25.03.1996 but it has also been clarified that the senior/junior clause directed to be inserted by the aforesaid O.M. would apply to both direct recruits as well as promotees. It is also mentioned in the OM that this was being done for maintaining seniority. The said O.M. is reproduced here for the sake of convenience:-
"Subject:- Consideration of seniors in cases were juniors are considered- revision of guidelines for framing/amendment/relaxation of Recruitment/Service Rules-Clarification regarding-
The undersigned is directed to refer to this Department‟s Office Memorandum of even number dated March 25, 1996 on the above- mentioned subject. The question whether the benefit of shortfall in qualifying service should be applicable to promotees also was under
consideration in consultation with the Union Public Service Commission. The matter has since been decided and it is clarified that the "Note"to be 14 OA-1106/2014 incorporated in the relevant Recruitment Rules/Service Rules is for maintaining the seniority in an Organised Service/Post as far as possible. Thus, the invocation of the provision can be at the entry level or even at a higher level and would apply in cases of both direct recruits and promotees, who are included in the Eligibility List as distinct from Seniority List.
2. It is further clarified that in its judgement of March 8, 1998 in the case of R. Prabhadevi and others vs Union of India and others the Supreme Court has specifically held as follows:-
"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 person eligible. Seniority cannot be substituted for eligibility nor it can over-ride it in the matter of promotion to the next higher post."
3. Ministry of Finance etc. Are, therefore, requested to make a conscious decision to amend the relevant Recruitment Rules/Service Rules where such a provision has not been incorporated in the light of the foregoing clarification(s). This would help in the maintenance of proper cadre management and obviate the need for seeking relaxation of Recruitment Rules/Service Rules."
It will be observed form the above that while reiterating these instructions notice has once again been taken of the judgment in R. Prabha Devi's case (supra) as was done while issuing O.M. dated 25.03.1996.
6.5 From the above, it is clear that DoP&T had themselves directed insertion of senior/junior clause vide their O.M. dated 25.03.1996. Moreover, such directions were given in the light of Hon‟ble Supreme Court judgment in R. Prabha Devi's case (supra) as is evident from the O.M. itself. These directions were further reiterated by Clarificatory O.M. dated 24.09.1997 in which it has been laid down that these directions were applicable to both direct recruits as well as promotees. In this O.M. the directions of Hon‟ble Supreme Court in R. Prabha Devi's case (supra) have also been reproduced. These OMs were never withdrawn. In fact, as late as the year 2010 when the DoP&T issued 15 OA-1106/2014 consolidated instructions on 31.12.2010 on the issue of guidelines for framing/amendment/relaxation of Recruitment Rules, these instructions were reiterated. Thus, it is obvious that the stand taken by DoP&T was always in favour of retention of senior/junior clause in the Recruitment Rules. It is, therefore, beyond comprehension as to why DoP&T vide their Diary No. 891/DS/RR/99 dated 30.08.199 advised Railways to delete such a clause from their Recruitment Rules, which Railway Board had incorporated pursuant to the advice given to DoP&T themselves. It is also beyond comprehension as to how it was felt in the advice given by DoP&T on 21.09.199 that failure to delete such a clause would invite contempt action from Hon‟ble Supreme Court when both DoP&T OMs dated 25.03.1996 and 24.09.1997 were issued after taking note of Hon‟ble Supreme Court‟s judgment in R. Prabha Devi's case. Clearly, this advice given to Railways was at variance with the standing instructions of DoP&T. It is also note worthy that during this period Service Rules of various other services were amended to insert the senior/junior clause. Thus, Service Rules of Indian Revenue Service and Indian Ordnance Factory Services were amended as has been noted by this Tribunal in its judgment in Garima Singh's case (supra). Similarly, the Service Rules of AFHQ Civil Service, which is sister service of RBSS was also amended as brought out by Railway Board in their communication to UPSC dated 12.06.2012. Thus, we find that while on the one hand DoP&T directives for insertion of senior/junior clause in the Recruitment Rules remained in operation and were being implemented by various Ministries, DoP&T themselves without withdrawing their Standing Instructions advised Railways to delete such a clause from their Recruitment Rules.
6.6 Be that as it may, the Ministry of Railways vide their Notification dated 07.02.2000 deleted the aforesaid clause from their Recruitment Rules. Learned 16 OA-1106/2014 counsel for the applicants argued that even after deletion of the aforesaid clause the case of the applicants would be covered by the judgment of Full Bench of this Tribunal in Garima Singh's case (supra). The controversy involved in this case was whether Mrs. Garima Singh, who was a direct recruited Section Officer belonging to the CSS should be considered for promotion as Under Secretary having put in 06 years of eligible service (as against requirement of 08 years) on the ground that her juniors were being so considered. This Tribunal while adjudicating the aforesaid issue had opined that DoP&T vide their O.M. dated 25.03.1996 had directed the Ministries to insert the senior/junior clause in their Recruitment Rules at relevant places. If the Ministries have not complied with these directions, the applicant cannot be made to suffer on this account. It was held that such directions issued by DoP&T may be regarded as issued under the executive powers of the Union as provided under Article-73 of the Constitution and would have to be read along with the Recruitment Rules. 6.7 Learned counsel for the applicants argued that the case of the applicants was squarely covered by this judgment. We have considered the aforesaid submission. We are in agreement with him because after deletion of the senior/junior clause vide Notification dated 07.02.2000, the position of Railways had become akin to those Ministries who had not inserted such a clause in the Recruitment Rules despite directives from DoP&T. Hence, the directives of DoP&T were required to be read alongwith Recruitment Rules and consequently if the applicants had put in 06 years of service they would become eligible for consideration for promotion if their juniors were being so considered. Since eligible officers were excluded from consideration, a review DPC needs to be held. 6.8 It was also argued before us that retrospective deletion of the senior/junior clause was prejudicial to the interest of the applicants. Hence, while ordering 17 OA-1106/2014 deletion of this clause retrospectively the Railway Board could not have certified that interest of no one would be adversely affected by giving retrospective effect to such deletion. Learned counsel for the applicants argued that the senior/junior clause was inserted in the Recruitment Rules on 12.02.1997. The service of the applicants started after that, their approved service being counted from 01.07.1997 and 01.07.1998. Thus, on the relevant date i.e. 07.02.2000 when this provision was deleted, the applicants were holding feeder post and were adversely affected by the aforesaid deletion. Learned counsel argued that in the case of CRB Vs. CR Rangdhamiya, (1997) 6 SCC 623 Hon‟ble Supreme Court has held that such action, which has the effect of taking away benefit already available to the employee under existing rule was arbitrary, discriminatory and violative of the rights guaranteed under the Constitution. Moreover, the Railway Board themselves in their letter dated 16.01.2012 addressed to UPSC (Annexure A/10) have mentioned that such an action was contrary to the guidelines issued by DoP&T vide their O.M. No. AB-14017/12/87- Estt.(RR) dated 18.03.1988, in para 3.1.3 of which the following is provided:-
"Where the eligibility service for promotion prescribed in the existing rules is being enhanced (to be in conformity with the guidelines issued by this Department) and the change is likely to affect adversely some persons holding the feeder grade posts on regular basis, a note to the effect that the eligibility service shall continue to be the same for persons holding the feeder posts on regular basis on the date of notification of the revised rules, could be included in the revised rules."
6.9 In their reply, Railway Board have mentioned that when this Notification dated 07.02.2000 was issued the applicants had barely put in one or two years of service and were nowhere near consideration for promotion. Moreover, promotions are made on the basis of Recruitment Rules which are in force at the time of occurrence of vacancies as laid down by Hon‟ble Supreme Court in the case of Y.V. Rangaiah And Ors. vs J. Sreenivasa Rao And Ors., AIR 1983 SC 852.. 18
OA-1106/2014 For the panel year 2004-05 this crucial date would be 01.07.2004 whereas the senior/junior clause had been withdrawn much before this date. Consequently, the applicants cannot claim the benefit of the same.
6.10 We have considered the aforesaid submission. In our opinion, the action of the Railways in deleting the aforesaid clause did prejudice to the rights of the applicants as they were holder of feeder posts and as a consequence of this Notification their eligibility service for promotion got enhanced from 06 years to 08 years. Under such circumstances, it was incumbent on the Ministry of Railways to protect the interest of the applicants by inserting a suitable clause to the effect that eligibility service for them would remain the same as before, as has been advised by DoP&T in their guidelines.
7. Thus, we find merit in the arguments advanced by the applicants. Consequently, this O.A. succeeds. We, therefore, quash and set aside the letter dated 20/23.11.2012 of UPSC by which they had declined to hold review DPC. We also quash the order of Ministry of Railways dated 29.06.2011 to the extent that applicants have not been considered for promotion to the Grade-I of RBSS. We further direct that review DPC be conducted for considering the applicants for promotion as Under Secretary from the earliest panel year in which they had completed 06 years of approved service and in which any of their juniors were so considered. In case they are found fit they will be so promoted and shall also be entitled to consequential benefit of pay fixation and seniority as well as consideration for further promotion commensurate with their seniority. The entire exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/