Central Administrative Tribunal - Kolkata
Rakesh Kumar Gupta vs Eastern Railway on 6 March, 2024
s 1 0.A. 350.01900,2022 with M.A.350.269.2023 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA No. 0.A. 350/01900/2022 Heard on 09.01.2024 With M.A.350/00269/2023 Date of order: 69 6- 0% 2O 24- Present: | Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member Hon'ble Mr. Anindo Majumdar, Administrative Member 1. Rakesh Kumar Gupta 2. Indrajeet Kumar Paswan 3, Asit Kumar Ghosh 4, Durgesh Kumar .... Applicants - VERSUS- 1. Union of India service through The General Manager, Eastern Railway, Fairlie Place, 17, N.S. Road, Kolkata -- 700 001. 2. The Principal Chief Personnel Officer, Eastern Railway, Fairlie Place, 17, N.S. Road, Kolkata -- 700 001. 3. The Senior Divisional Personnel Officer, Eastern Railway, Howrah Division, Howrah -- 711 101. 4, The Sr. Divisional Electrical Engineer /OP, Eastern Railway, Howrah Division, Howrah -- 711 101. 5. The Chairman, Railway Board, Room No, 256-A, Rail Bhavan, Raisina Road, New Delhi, Delhi-- 110 001. .. Official Respondents Pradeep Kumar Amit Prakash Vikrant Deependra Kumar Nagmani Kumar fe SO Oo IN 's 2 ~---0..A, 350.01900.2022 with M.A.350.269.2023 10.P.S.K. Prem 11. Mukesh Kumar 12. Bijendra Kumar 13. Pramod Kumar 14. Dinesh Kumar Singh 15. Tarkeshwar Prasad ... Private Respondents For the Applicants : Mr. Arpa Chakraborty, Counsel Mr. T.K. Biswas, Counsel For the Respondents: Mr. 8. Paul, Counsel (Official Respondents) Mr. C. Sinha, Counsel (Private Respondents) ORDER
Per Mr. Jayesh V. Bhairavia, Judicial Member:
The applicants have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking following relief:-
ct7 a. To set aside and quash impugned Office Order dated 9.11.2022 issued by the respondent No. 3 cancelling the Provisional Panel dated 31.8.2022 in connection with selection process for promotion to the post of Loco Pilot Passenger/Motorman in Eastern Railway and thereby praying for direction upon the respondents to proceed with the provisional panel dated 31.8,.2022 in connection with such selection process for promotion to the post of Loco Pilot Passenger/Motorman in Eastern Railway and to extend the benefit of said promotions to the applicants and other candidates figured in such provisional panel dated 31.8.2022 to the post of Loco Pilot Passenger/Motorman under the Eastern Railway at an earliest;
b To set aside and quash impugned Office Order dated 9,11,2022 issued by the respondent No, 3 publishing the draft seniority list of Loco Pilot Cadre both Electrical and Diesel Wing along with Combined Seniority List of Loco Pilot Goods (Diesel & Electrical) with a further direction upon the respondents to re-cast the said seniority list in accordance with law by placing the Loco Pilot Goods (Electrical) over and above the Loco Pilot Goods (Diesel) in the combined seniority list of Loco Pilot Goods both Electrical and Diesel Wing at an earliest; , , c. Liberty may be granted under Rule 4(5)(a) of Central Administrative Tribunal (Procedure) Rules, 1987 to file the Original Application jointly;
a. Any other order or orders as the Hon'ble Tribunal deems fit and proper."
2. M.A. No. 350/00273/2023 has been filed under Section 4(5)(a) of CAT (Procedure) Rules, 1987 for joint prosecution of the O.A. On being satisfied, that the applicants share a common cause of action and common interest, the M.A. No. 350/00273/2023 is allowed and the applicants are allowed to jointly prosecute thisO.A. BE 3 0.A. 350.01900.2022 with M.A.350.269.2023 2.1, M.A. No. 876/2022 filed by the private respondents to be included as a party respondent in the main O.A. since they are affected parties, the same is allowed. The name of the said private respondents are thus mentioned in the Cause Title of this O.A.
3. The facts of the case, in a nut shell, as narrated by the applicants is as under:-
3.1. It is stated that the applicants while working as Loco Pilot Goods (Electrical) under Howrah Division, Eastern Railway, the Railway Board issued RBE No. 29/2022 dated 14.3.2022 (Annexure A/1 collectively) and thereby directed all the Zonal Railways for taking urgent steps for filling up the large number of promotional vacancies in the cadre of Loco Running Staff being Critical Safety Category and also with further instructions for implementation of the Board's directions for merger of cadre/seniority of Loco Pilots (Electrical & Mechanical).
. Further, in terms of aforesaid RBE No. 29/2022, the office of Principal Chief Personnel Officer, Personnel Department, Eastern Railway i.e. Respondent No. 2 vide Srl. Circular No. 33/2022 dated 17.3.2022 (Annexure A/1 collectively) had forwarded copy of the said RBE dated 14.3.2022 to all concerned as per the Standard list and had directed to take further necessary action for its implementation.
3.2. Subsequently, the respondents No. 1 to 4 notified vacancies for the post of Loco Pilot / Motorman and had asked for willingness from the incumbents. Thereafter, the respondents had published a list dated 06.06.2022 of the employee found eligible. The respondents thereafter conducted suitability test and aptitude test in the month of July, 2022 as well the psychology test in which the applicants herein had participated and were declared successful and their names were included in the provisional panel published by the respondents dated 31.8.2022 (Annexure 2 collectively).
3.3. In the meantime, the Office of the respondent No. 2 vide Office Order dated 05.08.2022 directed the Zonal Railway Manager for merger of the cadre/seniority Ae 4 0.A. 350.01900.2022 with M.A.350.269.2023 of Loco Pilots (Electrical & Mechanical) by taking into account the date of entry in the existing grade and circulate the copy of the combined seniority list within a stipulated period and copy of the same should be provided to both the recognized Unions and the Loco Pilots for suggestions, if any. (Annexure A/3 collectively) In the meantime, on receipt of provisional combined seniority list dated 16.08.2022 many incumbents had filed their representations on 22.8.2022 and have ventilated their grievances against such provisional combined seniority list.
Thereafter, the recognized Union i.e. Eastern Railwaymen's Union vide letter dated 31.08.2022 requested the respondent No. 2 to arrange a meeting since their exists confusion among the employees in respect to merger of seniority.
Accordingly, by accepting the request of the recognized Union, the respondents had held a meeting with the representatives of the recognized Unions/employees on 21.09.2022 (Annexure A/3 collectively).
3.4. Thereafter, in respect to cancellation of Motorman promotion panel dated 31.08.2022 the respondent No. 3 i.e. Sr. Divisional Personnel Officer -- III, Howrah, Eastern Railway vide letter dated 30.09.2022 stated to the effect that as per the guidelines contained in letter dated 1.8.2022 issued by CPO/IR/Headquarters to take steps for preparation and publication of combined seniority of Loco Pilots (Electric & Mechanical) at all levels, the draft combined seniority list of Loco Pilots cadre was prepared and provided to both Unions on 16.8.2022 asking for their suggestion/representation, if any. This Division was unable to publish combined final seniority list on receipt of complaints about physical attendance of Loco Pilot of both wings and contradictory claims. Further, the panel in question which was published on 31.08.2022 for 111 no. of Motorman by taking into consideration guidelines issued by CPO/IR.
In the said letter dated 29.09.2022 it is stated that as per the calendar for filling up of different posts in both cadres i.e. Electrical and Mechanical Wing was prepared by the Personnel Branch prior to guidelines of CPOAR. Accordingly, a panel of 99 number of Loco Pilot passenger / Motorman / Mechanical was also fel 5 0.A. 350.01900.2022 with M.A.350.269.2023 prepared on 06.06.2022 as well the panel in question i.e. 111 nos. of Loco Pilot ' (Passenger)/ Motorman (Electrical). Since, the panel in either way would have an impact on the combined seniority list of Loco Pilot (Goods) and Loco Pilot (Passenger) of both wings, no combined seniority list has yet been published. It is also stated. in the said letter that appropriate steps will be taken as per the directions issued in order dated 21.9.2022 in O.A. No. 350/1637/2022 (Annexure A/4 refer).
3.5, Subsequently, the respondent No. 3 vide order dated 9.11.2022 have cancelled the Provisional Panel published on 31.8.2022 for 111 nos. Loco Pilot (Pass)Elect/Motorman (Annexure A/5 refer).
3.6. It is stated that on the very same day, i.e. on 9.11.2022, the respondents have also published the Combined Seniority of LP (Goods) (Diesel & Electrical) in Level 6 (GP Rs. 4200) (Annexure A/5 collectively). 3.7. The applicants have submitted their objections before the respondent No. 3 i.e, Sr. DPO, Howrah, Eastern Railway against the combined seniority list and requested to publish it after filling up the promotional vacancies for which panel was published on 31.08.2022. The said representation of the applicant dated 12.11.2022 (Annexure A/6 collectively) was not considered by the respondents. Hence, being aggrieved with cancellation of provisional panel dated 31.08.2022 vide Office Order dated 09.11.2022), and, publication of combined seniority list notified on 09.11.2022 (Annexure A/5 collectively refer), the applicant has filed the present O.A. | 4, In respect to challenge to the validity of impugned combined seniority list of Loco Pilot Goods (Electrical & Mechanical) dated 9.11.2022, Mr. Arpa Chakraborty with Mr. T.K. Biswas, Ld. Counsel for the applicants mainly has submitted as under:-
4.1. The applicants herein are working as Loco Pilot Goods in Electric Department under Howrah Division, Eastern Railway. 4.2, The placement of Loco Pilot Goods (Diesel) over and above the Loco Pilot Goods (Electrical) vide impugned Combined Seniority List dated 9.11.2022 is not Je 6 0.A. 350.01900.2022 with M.A.350.269.2023 permissible in view of the fact that both the wings are having separate avenue of promotion and Diesel wing having better promotional avenues than the Electrical wing, if considered as per the existing post and grade, they will always remain 'seniors to the applicants and incumbents in Electric Loco Pilot Goods will never get the chance of being extended with further promotion. In this regard, Ld. Counsel would submit that the persons who name appeared at the top of seniority list of Electric Wing have been placed after 150 in the impugned combined seniority list of Loco Pilot cadre both Electric and Diesel Wing.
4.3. It is stated that in Howrah Division, the Diesel Traction is hardly functioning and almost nil passenger train, goods train, mail express are being operated from Diesel traction. Practically, there are surplus staffs in the Diesel Wing because of limited staffs of Diesel Traction. When the authorities decided to merge Diesel Loco Pilot seniority with the Electric Loco Pilot seniority, the authorities ought to have placed the said Diesel Loco Pilot at bottom seniority, below the seniority of LP of Electric Wing, which has not been done in the present case.
4.4. Ld. Counsel submits that the Hon'ble Apex Court in the case of V.K. Dubey & ors. v. Union of India & ors. rendered in (1997) 5 SCC 81 the order passed by CAT Allahabad Bench in O.A. 1024/1995 was impugned. The Hon'ble Apex Court in the said judgment had observed that, "The appellants were initially drafted on the Diesel side of the locomotive operations. Subsequently, on introduction of Electric Engines they were given training and were absorbed on the Electrical locomotive side. The question of inter se seniority of employees already working on the locomotive side and those shifted from the diesel locomotive side to the electrical side had arisen. The Tribunal had held that since the appellant were deployed to the Electrical side for the first time, their seniority was required to be adjudged from the date of their deployment in the Electrical Locomotive operations and the previous service cannot be counted for the purpose of determination of inter se seniority."
Further, Ld. Counsel submits that in the said judgment V.K. Dubey & ors. (supra), the Hon'ble Apex Court had considered the submission of Ld. Counsel for the appellant therein that as per the decision/judgment passed in Ramakant fle 7 0.A. 350.01900.2022 with M.A.350.269.2023 Chaturvedi v. Divisional Superintendent, Northern Railway [(1980) Suppl. SCC 621] and judgment passed by the Hon'ble Apex Court in S.E. Railway through Chief Personnel Officer & ors. v. V. Ramanarain Singh & Ors. etc. (CA No. 2530/81 and batch), decided on July 29, 1988 since the appellant had been working on the Diesel side for a long number of years and merely because they were sent to training for three months to be absorbed in the Electric Locomotive Operations, their entire previous length of service cannot be wiped out causing detriment to their length of service and had not accepted the said submission of the appellant by holding as under:
be ceeeeaneeenenes the appellants, contends that since they had been working on the diesel side for a long number of years, merely because they were sent to training for three months to be absorbed in the electrical locomotive operations, their entire previous length of service cannot be wiped out causing detriment to their length of service and promotional avenues on account of the change in the policy. Therefore, the view taken by this court requires reconsideration. We find no force in the contention. It is seen that the diesel engine drivers and the staff working with them operates in one sector, namely, diesel locomotive sector, while electrical engine drivers and the staff operating on the electrical engines operate on a different sector. Consequent upon the gradual displacement of diesel engines, instead of retrenching them service they were sought to be absorbed by giving necessary training in the trains operating on electrical energy. As a consequence, they were shifted to a new cadre. Under these circumstances, they cannot have a lien on the posts on electrical side nor they be entitled to seniority over the staff regularly working in the electrical locomotives department. Under those circumstances, this court has held that they cannot have a seniority over them. However, the Tribunal in the impugned order has well protected the rights which they had already accrued as under:
"We have been informed by the departmental representative that on such a re-determination of the seniority a large number of controversies who have already advances several steps in the electrical side would face reversion resulting in not only hardship to such individual but also functional problem in running the locomotives. We therefore, provide that on such re-determination of seniority, the persons who have already been promoted to higher grades in the electrical side, shall not be reverted but their subsequent advancement to still higher grades shall be depend on such re-
determined seniority. However, no further promotion shall be made by the respondents, in the electrical side in contravention of the aforesaid principle of seniority.
In view of the above direction, the accrued rights are protected. and being enjoyed by the appellants. The V a
8 0.A. 350,01900.2022 with M.A.350.269.2023 Tribunals orders, therefore, directed to safeguard the rights already had by the appellants. However, future promotions depends upon their inter se seniority that may be determined by the authorities as directed by the Tribunal.
Thus, we find no flow in the order passed by the Tribunal warranting interference. The appeal is accordingly dismissed. No costs."
By relying upon the aforesaid judgment passed by the Hon'ble Apex Court, Ld. Counsel for the applicants herein would argue that the respondents ought not to have placed the LP Goods (Diesel) above the LP Goods (Electrical) in the combined seniority list.
4.5 It is submitted that since in many Railways, the two separate cadres of Electrical and Mechanical were merged earlier and in view of the judgment of the Hon'ble Supreme Court in the matter of V.K. Dubey & ors. (supra), the Railway Board had issued circular dated 2.6.2006 which, inter alia, provides as under:-
bivaes all new entrants recruited directly from open market through Railway Recruitment Boards or by induction by selection from Diesel/Electric Loco Sheds etc, as Asstt. Loco Pilots (Diesel) and Asstt. Loco Pilots (Electric) in grade Rs. 3050-4590/- will be borne in a@ common seniority, after they have passed technical compulsory test for both types of traction. Passing technical tests for both types of traction may be dispensed with on Divisions with only one type of traction or for a temporary period with the personal approval of the General Manager."
Further, it is submitted that when it was detected by the Railway Board that such instructions as contained vide Railway Boards Orders dated 2.6.2006 have not been followed, again the Railway Board vide order dated 14.3.2022 have issued further instructions to implement the instruction as contained in Railway Board's dated 2.6.2006.
Further, it is contended that the Railway Board in their letter dated 14.3.2022 has never asked to implement the instruction dated 2.6.2006 retrospectively or with any modification to merge at all levels instead of entry level of Assistant Loco Pilots for new entrants as the same would be contrary to the judgment delivered by the Hon'ble Supreme Court in the matter of V.K. Dubey & ors. (supra). It is submitted that by giving a total go-bye to the aforementioned judgment, the authorities have decided to merge two separate cadres of Loco Pilots at all levels and to fix seniority taking into account the date of entry in the BO 9 O.A. 350.01900.2022 with M.A.350.269.2023 existing Grade which is not tenable in the eye of law. Therefore, according to the applicant, the impugned combined seniority list dated 9.11.2022 illegal and is required to be quashed and set aside.
5. The applicants are also aggrieved with the impugned order dated 09.11.2022 whereby the respondents have cancelled the provisional panel for the post of LPP (E/Motorman) dated 31.8.2022. In this regard, Ld. Counsel for the applicants would argue that said impugned order dated 09.11.2022 has been passed by the respondents by depriving the applicants of their legitimate claim to be considered for the promotional post since their name already figured in the provisional panel dated 31.8.2022. The reason assigned by the respondents for cancellation of the provisional panel that same was not prepared on the basis of Railway Board's instructions contained in letter dated 2.6,2006 and 14.03.2022 whereby the all the zones of Railway were directed to merge the cadre of LPP (Diesel) with LPP (Electrical) and publish a combined seniority list.
5.1. According to Ld. Counsel for the applicant, the said action of the respondents is in total violation of the settled seniority of the applicants in the Electric Wing and as such depriving the applicant of their legitimate expectation for better prospect of promotion. .
§.2. It is stated that since the respondents had already published the vacancy notice for the promotional post and adherence to the terms for appointment the requisite test was held and names of successful candidates were enlisted in the panel for grant of benefit of promotion to the post of LPP (Electric/Motorman), the respondents ought not to have cancelled the said panel. Therefore, the respondents are required to be directed to proceed with the provisional panel dated 31.8.2022 for grant of promotion to the post of LPP Motorman in Eastern Railway.
5.3. It is submitted that even otherwise, the applicants, who are undisputedly working in the Electric department and are entitled to be promoted by considering their seniority position in the Electric Wing, the respondents ought not to have disturbed their settled seniority. According to the fe 10 0.A. 350.01900.2022 with M.A.350.269,.2023 applicants, upon merger of the two wings they should not be placed below the new entrants i.e. Loco Pilot Goods (Diesel) in the Combined Seniority List which tantamounts to depriving them of their legitimate promotional prospects.
6. On the other hand, the official respondents have filed their reply and denied the claim of the applicants. Mr. S. Paul, Ld. Counsel for the official respondents mainly submitted as under:-
6.1. The Railway Board in continuation to the Ministry's letter dated 22.09.2004 had issued clear instructions way back in its letter dated 02.06.2006 ie. RBE No. 69/2006 that the cadre / seniority of Loco Pilots (Electric/Mechanical) (Annexure R/1) were required to be merged.
6.2. However, from the position advanced by the Zonal Railways it is noticed that the instructions issued by the Railway Board have not been complied by some of the Zonal Railways. | 6.3. In the month of January, 2016, the Eastern Railway had issued circular dated 15.1.2016 for dual training and common seniority for ALP (Electrical & Diesel) and further their seniority may be determined based on inter se seniority following the guidelines of 303 (a) and 304 of IREM Vol. I. Further the Divisions were directed to finalise the issue of common seniority list in consultation with the local recognized Unions (Annexure R/2 refer).
6.4. It is stated that prior to 11.1.2016, the Railway authorities had issued circular for completion of nomination of Diesel LPS and ALPS for conversion course from Diesel to Electric.
6.5. It is stated that vide circular dated 14.03.2022 i.e. RBE No. 29/2022, the Railway Board had issued instructions / guidelines to the Zonal Manager of all Zonal Railways to the effect that the instructions contained in Railway Board's letter dated 02.06.2006 for merging of the cadre/seniority of the Loco Pilot (Electrical & Mechanical) has not been complied with and same should be immediately complied with fully across all Divisions under advice of Board.
tL 11 0.A. 350,01900.2022 with M.A.350.269.2023 (Annexure R/3 refer), The said RBE No. 29/2022 dated 14.3.2022 was communicated by the Office of Respondent No. 2 to all the concerned in the Eastern Railway vide Srl. Circular No. 33/2022 dated 17.3.2022 for necessary action as contained in said RBE No. 29/2022 and Railway Board's letter dated ~ 2.6.2006.
6.6. In pursuance of the aforesaid instructions, the Office of Respondent No. 2 have issued circular dated 5.8.2022 and directed all the Zonal Managers of Eastern Railway including Howrah, Sealdah, Asansol and Malda Division for taking expeditious steps to merge the seniority of Loco Pilots (Electrical & Mechanical) at all levels with immediate effect and a Combined Seniority list of Loco Pilots (El & Mech.) should be drawn taking into account the date of entry in the existing grade and on publication of the said Combined Seniority List as per extant rules and representation on the same would be invited for the next 15 days as also by providing copy of the said seniority list to the recognized Unions for suggestions, if any. By keeping the suggestions in mind, the Divisions would publish combined seniority list as per extant rules.
Further, it was stated in the said letter dated 5.82022 that selection/suitability for which notification has already been issued should be completed as per criteria mentioned in that notification.
6.7. It is stated by the respondents that the concerned Division i.e. Howrah had published the result of Aptitude Test for the post of Loco Pilot Passenger Motorman (Electrical) on 13.07.2022. Thereafter, had also published provisional panel dated 31.8.2022 in view of earlier notification.
6.8. Ld. Counsel also submits that in the meantime the Combined Seniority list of Loco Pilot Electrical & Mechanical) was provided to both recognized Unions on 16.8.2022 asking for suggestions / representation, if any.
6.9. It is stated that one O.A. being O.A. No. 1910/2021 filed by Loco Pilot Goods (Diesel) with a prayer of direction upon the respondent Railway authority to merge the cadre of LPG (Diesel) with LPG (Electrical) and publication of poe 12 0.A. 350.01900.2022 with M.A.350.269.2023 combined seniority list and their inter se seniority be considered with effect from the date of entry into the grade of LPG. The said O.A. was disposed of by this Tribunal with the direction upon the respondents to dispose of the pending representation of the applicants dated 18.10.2021 and 19.5.2021 within a stipulated 4 weeks time and till such time retrained the respondents to grant any promotion to the post of LPG (Electric), further it was directed that the protection shall continue for a further period of one week. Accordingly, the respondents have not proceeded with the panel prepared for grant of promotion to LP (Electrical).
Further, it is stated that again Loco Pilot Goods (Diesel) working in the Howrah Division filed another O.A. No. 1637/2022 with a prayer to set aside the provisional panel dated 31.8.2022 as well as the result of aptitude test published on 13.7.2022 and also prayed for a direction to be issued upon the respondents to finalize the Provisional Combined Seniority list published on 16.8.2022. | In the said O.A., the applicants therein had prayed for consideration and re- examination of their representation dated 05.09.2022 and 07.09.2022. This Tribunal vide order dated 21.9.2022 directed the respondent authorities to consider the representation of the applicants as per the individual service record and finally determine the seniority, till then it is expected that the respondents shall not process or operate the provisional panel for the post of Loco Pilot dated 31.8.2022. 6.10. It is stated that on 09.11.2022, Sr. Divisional Personnel Officer, Howrah, respondent No. 3 herein had issued a letter intimating that since the final seniority list could not be published due to ongoing litigation against the publication of panel for 111 nos. of Loco Pilot (Passenger) (Electrical Motorman) dated 31.8.2022 and after series of correspondence with the HQ and against the said provisional panel, the CPO had also objected for it vide letter dated 15.9.2022, thus due to various procedural lacunae in the said provisional panel, the same was subsequently cancelled vide order dated 9.11.2022 which is impugned in the present O.A. y) 7 13°. «O.A. 350,.01900.2022 with M.A.350.269.2023 6.11. Further, it is stated that combined seniority list dated 09.11.2022 has been published after consultation with recognized Union and __ their suggestion/representation. It is stated that the respondents have also taking into consideration the provision of para 320 of IREM Vol. I as advised by the PCPO / Eastern Railway vide letter dated 29.9.2022 (Annexure R/4) for preparation of Combined Seniority List.
6.12. Ld. Counsel for the respondents further submits that the order under challenge cancelling the suitability test result and the provisional panel published 'on 31.08.2022 as well publishing a draft Combined Seniority List as per provision contained in para 320 of Chapter III of IREM Vol. I in terms of letter dated 29.9.2022 is the steps towards implementation of Railway Board's letter dated 2.6.2006 and the subsequent instructions for merger of the cadre/seniority of Loco Pilots (Electrical & Mechanical) when some of the Zonal Railways have not complied with the same. In this regard, Ld. Counsel further submits that the respondents have followed the instructions contained in IREM Vol. I for determining the inter se seniority of two wings of the similar cadre of Loco Pilot ie. Electrical and Mechanical, more particularly, on their merger the Combined Seniority List has been prepared accordingly.
6.13. The respondents have also stated that this matter was discussed with the recognized Unions, who agreed to the method of drawing combined seniority list of Loco Pilots (Electric and Diesel) shall be taking into account the date of entry in the existing cadre communicated vide PCPO/ER's L.No. E.839/ALP(DSL)/Dual Training dated 29.9.2022.
6.14. In sum, Ld. Counsel for the respondents submits that the order for cancellation of provisional panel which is impugned in the present O.A. and publication of Combined Seniority List of Loco Pilot Goods (Electrical & Mechanical) are just and proper and the same are as such in consonance with the directions issued by Railway Board time and again as well the said inter se seniority has been determined in terms of the provisions contained in Para 320 of ee 14 0.A. 350.01900.2022 with M.A.350.269.2023 TREM Vol. I. Therefore, the applicants are not entitled to any relief as claimed for by them in the O.A.
7. The applicants have filed rejoinder and reiterated their submission as made in the O.A. Additionally, Ld. Counsel for the applicant submits that while complying with the instructions regarding preparation of the combined seniority list, the respondents have also issued instructions vide letter dated 5.8.2022 to complete the selection process in respect to selection/suitability test had already been held as per the notification issued earlier and by following the criteria mentioned in the said notification. Therefore, the respondents ought not to have cancelled the panel published for filling up the promotional post based on the aptitude test. Ld. Counsel reiterated that the respondents ought to have considered the claim of the applicant in light of the judgment passed by the Hon'ble Apex Court in the case of V.K. Dubey & ors. (supra). 7.1. Ld. Counsel by relying upon the judgment passed by the Hon'ble Apex Court in the case of Cyril Lasrado (Dead} by LRS and ors. v. Juliana Maria Lasrado & anr. reported in (2004) 7 SCC 431 and submits that the Hon'ble Apex Court held that the reasons introduced clarity in an order. The absence of reasons has rendered the High Court's order not sustainable. Even in respect of administrative order, the giving of reasons is one of the fundamentals of good administration. Failure to give reasons amounts to denial of justice. Further, it is held that reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that in absence of valid reasons, it is impossible for the Courts to perform their Appellate function or exercise the power of judicial review in adjudging the validity of the decision.
By referring to the said judgment, Ld. Counsel would argue that in the present case, the respondents in the impugned order dated 9.11.2022 have not.assigned any reason for cancellation of the panel dated 31.8.2022.
Therefore, it is not clear on what pretext the panel was cancelled by the fp 15 0.A. 350.01900.2022 with M.A.350.269.2023 respondent authorities. Thus, the impugned order is not tenable in the eye of law and same is required to be quashed and set aside.
8. Ld. Counsel for the applicant has also filed written notes of arguments by reiterating the contention and submission as referred hereinabove.
9. The private respondents have also filed their reply and by referring to the same, Mr. C. Sinha, Ld. Counsel on behalf of the private respondents would submit that vide letter dated 16.12.2022 the official respondents had decided to fill up vacancies for the post of Loco Pilot (Pass)/Dsl/Elect (Motor man) from the Combined Seniority list through seniority-cum-suitability. It has further been mentioned that vide letter dated 16.1.2023 that the Diesel and Electric cadres were merged in terms of letters dated 29.11.2022 and 06.12.2022 and pursuant to such merger the panel of 111 Loco Pilots in Electric side was cancelled vide letter dated 9.11.2022.
Thereafter, a modified Combined seniority list of Loco Pilot Passenger and Loco Pilot Goods was issued vide letter dated 23.3.2023. The said seniority list was also revisited and thereafter a combined seniority list dated 12.7.2023 has been published but the same is also not under challenge in any of the aforementioned O.A.s. (Annexure R/20 & 21 of reply filed by the private respondents refer).
10. | Heard the Ld. Counsel for the parties and perused the material on record.
11. It can be seen that applicants of both the O.A.s are working as Loco Pilot Goods (Electric), Howrah Division, Eastern Railway and their main grievance is related to the seniority assigned to them in the Combined Seniority List dated 09.11.2022 and subsequent modified Combined seniority list of Loco Pilot Goods (Diesel & Electrical) on merger of both wing i.e. Loco Pilot Diesel Mechanical and Electrical of Howrah Division, Eastern Railway. According to the applicants, on merger of the cadre of two wings i.e. Loco Pilot Goods (Diesel / Mechanical) into Loco Pilot Goods (Electrical), and on publication of combined seniority list of both the wings, the respondents have assigned higher seniority to the Loco Pilot Goods (Diesel) than the applicants who are Vika working in the Electrical Wing as LPG of Howrah Division.
16 0.A, 350.01900.2022 with M.A.350.269.2023 11.1. Since the respondents by following the guidelines / instruction contained in Railway Board's letter dated 02.06.2006 as well in RBE No. 29 of 2022 dated 14.03.2022 for merger of both the cadre of Loco Pilot Goods (Diesel & Electrical), Howrah Division, Eastern Railway and consequently cancelling the provisional panel of Loco Pilot Goods (Electrical) for filling up promotional post to LPP (Electrical), the applicants herein have challenged the said action of the respondents in the present O.A. as noted hereinabove.
11.2. At this stage, it is apt to mention that similarly placed Loco Pilots Goods (Electrical) of another Division of Eastern Railway i.e. Asansol Division had approached this Tribunal being aggrieved with the publication of Combined Seniority List of Loco Pilots Goods (Electrical & Mechanical), Asansol Division, Eastern Railway whereby the Railway authorities in compliance of the Railway Board's letter dated 02.06.2006, RBE No. 29 of 2022 dated 14.3.2022 and Office Orders issued in compliance to the said guidelines of Railway Board had approached this Tribunal by way of filing O.A. No. 348/2023 and this Tribunal while dealing with the grievance against the publication of combined seniority list and legality of Railway Board's letter dated 02.06.2006, RBE No. 29/2022 and Office Order issued by the Eastern Railway dated 05.08.2022 as well the Combined Seniority List in respect to Loco Pilot Goods (Electrical) of Asansol Division had occasion to deal with identical submission as advanced in the present group of O.A.s.
11.3. Therefore, we deem it appropriate to refer and quote the observation and finding recorded by this Tribunal in an identical O.A. 348/2023 decided on 01.02.2024 which reads as under:-
"9, It is noticed that due to electrification of Locomotives at large scale in Indian Railway, the diesel tractions are being progressively converted into electrified Sections. Thus, it becomes important for the Railway authorities to cope up with the advanced technology as well to have suitable work force for smooth functioning of the Railways which includes management of Loco Running Staff (Diesel & Electric).
gf"17
9.3.
9.4
0.A. 350.01900.2022 with M.A.350.269.2023 9.1. Accordingly, in order to have adequate number of Loco Running Staff, the competent authority i.e. Ministry of Railways have taken a policy decision vide RBE No. 69/2006 dated 2.6.2006 (Annexure A/2 refer) that wherever separate cadres exists, their merger may be considered applying analogy of sub-para (i) of the Ministry's letter dated 22.9.2004. In addition to it, it has also been decided by the Railway Board that all new entrants recruited directly from open market through Railway Recruitment Board or by induction by selection from Diesel / Electrical Loco Sheds etc. as Assistant Loco Pilots (Diesel) and Assistant (Loco) Pilots (Electric) in grade Rs. 3050-4590/- will be born in common seniority, after they have passed technical compulsory test for both types of traction, passing technical tests for both types of traction may be dispensed with on Divisions with only one type of traction or for temporary period with personal approval of the General Manager.
It can be seen that the Railway Board had decided that wherever separate cadre exists their merger may be done by considering the analogy as stipulated in sub-para (i) of Ministry of Railway/Railway Board letter dated 22.9.2004. On perusal of the said instruction stated in letter dated 22.9.2004 at Divisional level the command structure of Loco Running Staff were ordered to be under Sr. DME/Sr. DEE ie. for Diesel Locomotive under Sr. DME and for Electric Locomotive under Sr. DEE. The administrative control of the respective running staff will be under Sr. DME/Sr. DEE and depending upon the strength of Diesel/Electric Loco Running Staff / unification of administrative control also be considered, and the proportion at which the switching over shall be made, will be decided by the General Managers. At the same time, while authorizing the CME/CEE for technical control of Loco Running Staff at Zonal/Headquarter level depending upon the type of traction, as well as the administrative control of all drivers has been directed to be under the CMO/COM at Zonal Level. The said COM will be assisted by officers from Electrical and Mechanical department.
It can be seen that the competent authority has authorised to merge the existing cadre of Loco Running Staff of Diesel & Electric Wing at all Zonal & Divisions of Railways in India, which includes Eastern Railway and its Divisions. Further, for the management of Loco Running Staff (including the existing cadre) have authorized General Manager and others Senior Officers of the concerned Zones & Divisions. In other words, the competent authority had taken a policy decision to merge the existing cadres of Loco Running Staff (Diesel & Electrical) and for the said management of staff, including separate existing cadre at the Zonal Headquarter level/Division level, General Manager and other senior officers of the Railway has been authorized by the competent authority. It is also noticed that in order to implement the decision of merger of separate existing cadre and publishing of combined seniority of both the cadres, the Railway authorities had also issued subsequent direction in this regard vide RBE No. 29/2022 dated 14.3.2022 (Annexure A/5 refer) At this stage, it is required to mention that an employer has a right to merge or integrate different cadres into one single cadre or to split a single cadre into different cadres for rationalizing administration as held by Hon'ble Apex Court in catena of judgments [Reserve Bank of India v. N.C. Paliwal (1976) 4 SCC 838, S. Murugan v. Union of Delhi (2002) 10 SCC 96 referred]. Further, whether there should be merger or not is a matter which is exclusively within the domain of executive policy [K. Rabindranath Pai v. State of Karnataka (1995) SCC 18 95, 9.6.
0.A. 350.01900.2022 with M.A.350.269,.2023 (L&S) 792. It is apt to mention that the merger results in fusion of the two cadres into one single cadre as held by the Hon'ble Apex Court in the case of State of West Bengal v. Subal Chandra Das. [(1996) SCC (L&S) 486].
In the present case, it is noticed that in light of policy decision as contained in RBE No. 69/2006 and 29/2022 to merge the existing cadre of Loco Running Staff (including Loco Pilots (Diesel) with Loco Pilots (Electric), the respondent No. 4 ice. Chief Personnel Officer, Eastern Railway vide impugned orders including order dated 5.8.2022 directed the DRMs of various Divisions including Asansol Division of Eastern Railway for merger of two existing cadres and in this connection vide letter dated 29.9.2022, the respondent No. 4 had also directed the DRMs of the Division that the method of drawing combined seniority list of Loco Pilots (Electrical & Mechanical) shall be by taking into to account the date of entry in the existing cadre and the conditions stipulated in Srl. No. 320 of IREM Vol. I be followed for drawing the combined seniority of each category of Loco Pilots. In our considered opinion, the said decision of merger of the two existing cadres of Loco Pilots (Diesel & Electrical) in Eastern Railway, undisputedly being a policy decision, is within the domain of the Railway administration. We, thus, hold that the decisions of merger of the two cadres of Loco Running Staff (Diesel & Electrical) of Asansol Division, Eastern Railway issued in terms of RBE No. 69/2006, RBE No. 29/2022 and the order dated 5.8.2022 & 29.9.2022 in this regard being the policy decisions of the Railway authorities and same is within their domain.
Further, in our considered opinion, the decision of merger of both the cadres which has already been implemented in most of the Zones of Railways that too with due consultation with the recognized Trade Unions cannot be said to be arbitrary and dehors the rules. Even otherwise, in light of the dictum laid down by the Hon'ble Apex Court, we deem it fit not to interfere with the said policy decision of the Railway authorities.
Therefore, the chailenge to the legality of decision of merger of cadre of Loco Running Staff including Loco Pilot (Diesel) with Loco Pilot (Electrical) at Asansol Division, Eastern Railway is not tenable,
10. It also emerges from record that on merger of cadre of Loco Running Staff (Diesel & Electrical) of Asansol Division of Eastern Railway, the respondent No. 6 herein had published the combined seniority list of the merged cadre and had invited suggestions /representations from the concerned staff. The respondents have received representation from the concerned staff as well the Recognised Ratlway Employees Unions. In connection to it, a joint meeting with the two Recognised Unions of Eastern Railway was also held on 21.9.2022. As per the decision arrived during the said meeting with the recognized Employees Union, the respondent No. 4 vide his letter dated 29.9.2022 (Annexure R/6), informed the DRMs of all four Divisions of Eastern Railway including Asansol Division and copy marked to General Secretary of both the recognized Railway Unions to the effect that "during the joint meeting on the subject of merger of cadre and seniority of Loco Pilots (Electrical & Mechanical, which includes Diesel) it was decided that the method of drawing of combined seniority list of Loco Pilots (Electrical & Mechanical) shall be done by taking into account the date of entry in the existing cadre".
Further, it is also stated in the said letter dated 20.9.2022 that "while drawing the combined seniority for each category of Loco fe 19
0.A. 350.01900.2022 with M.A.350.269.2023 Pilots the provisions contained in Srl. No. 320 of Chapter Wi of IREM (Vol.D) be followed." (Annexure R/6 refer) 10.1.
11.
12. At this stage, it is apt to mention that according to the official respondents the impugned combined seniority list i.e. inter se seniority of two different Units, Loco Running Staff (Diesel & Electrical) has been prepared and notified by following the provisions stipulated in Rule as well as per the decision agreed upon in the joint meeting with Railway Employees' Union. Therefore, we deem it appropriate to refer to the relevant provisions of Srl. No. 320 of Chapter III of IREM (Voi. D which reads as under:-
"320. RELATIVE SENIORITY OF EMPLOYEES IN AN INTERMEDIATE GRADE BELONGING TO DIFFERENT SENIORITY UNITS APPEARING FOR A SELECTION/NON-SELECTION POST IN HIGHER GRADE When a post (selection as well as non-selection) is filled by considering staff of different seniority units, the total length of continuous service in the same or equivalent grade held by the employees shall be the determining factor for assigning interse seniority irrespective of the date_of confirmation of an employee with lesser length of continuous service as compared to another unconfirmed employee with longer length of continuous service. This is subject to the proviso that only non-fortuitous service should be taken into account for this purpose.
Note :--Non-fortuitous service means the service rendered after the date of regular promotion after due process, It can be seen that while assigning inter se seniority of the staff of different seniority unit it has been stipulated in the aforesaid rule that the total length of continuous service in the same or equivalent grade held by the employees shall be the determining factor irrespective of the date of confirmation of an employee with lesser length of continuous service as compared to another unconfirmed employee with longer length of continuous service. Accordingly, the respondents have taken into consideration the date of approval of the panel as the date of entry into the cadre and have fixed the inter se seniority to the Loco Pilots (Diesel & Electric) as is evident from the Combined Seniority list published by the respondents on 12.8.2022.
In the said Combined Seniority List the name of private respondent No. 7 herein namely Alok Tiwari has been placed at Srl. No. 177 since his name figured in the approved panel for the post of Loco Pilot (Goods) (Diesel) on 20.12.2011 whereas the name of applicant No. 1 herein ie. Shri Ram Pratap Ray, his name figured at Srl. No, 211 in the combined seniority list since his name figured in the approved panel dated 2.1.2012 of Loco Pilot (Goods) (Electrical). In the same manner, the inter se seniority of LP (Diesel & Electrical) has been assigned in' the impugned combined seniority list. It is reiterated that in the said combined seniority list, the respondents have categorically mentioned the date of approval of the panel of respective Loco Running Staff.
In our considered view, for determining inter se seniority of the applicants herein as well the private respondents as well other similarly placed Loco Running Staff of Asansol Division, the respondents have followed the rules as stipulated in Srl. 320 of 20 0.A. 350,01900.2022 with M.A.350.269.2023 IREM Vol. I as well as decision taken in the joint meeting held ~ with the recognized Unions of Eastern Railway. Further, upon merger of the cadre, the inter se seniority is required to be determined in terms of provisions of the Rules. Since, both the cadres are merged the seniority of the Loco Running Staff has been determined by the respondents in terms of the rules and the combined seniority list has been published including the existing Loco Running Staff which also includes the applicants, as well the private respondents. Therefore, in our considered view, the respondents, have adopted the balance between both the cadres to protect their inter se seniority and their prospects to be considered for further promotion, the action of the respondents to merge the cadres cannot be said to be in violation of the policy of administration and as such the action of publication of the Combined Seniority list is in consonance with terms of the policy decision as well the rules prescribed in IREM.
It is also important to mention that it is settled principle of law that the inter se seniority between the two group of employees of the department will have to be determined in accordance with the Rules. Thus, the impugned order and the seniority list cannot be termed to be arbitrary and violative of Article 14 & 16 of the Constitution of India contrary to the applicable extent rules. Thus, the submission of the applicants that the respondents have not followed the guidelines contained in RBE No. 69/2006 in respect to maintaining the combined seniority of existing cadre is not tenable.
13. The judgment relied upon by the Ld. Counsel for the applicant in our considered view, same does not come to the aid of the applicants. It can be seen that the Railway Board vide their policy decision dated 2.6.2006 had decided to frame a policy for merger of both the cadres of Loco Running Staff (Diesel & Electrical) and had decided to maintain a combined seniority list in terms of conditions stipulated in Rule 320 of IREM Vol. I and that too by taking into consideration the relevant date of entry into the cadre. Therefore, the submission of Ld. Counsel that in order to merge both the cadres in light of RBE No. 69/2006 and the judgment relied upon, the Loco Pilots (Diesel) ought to have been declared surplus and then assigned bottom seniority while preparing the combined seniority list is also not acceptable.
14, In light of what has been discussed above as also taking into consideration the dictum laid down by the Hon'ble Apex Court in respect to limited scope of judicial review in policy matters of the employer and in absence of any evidence of arbitrary decision on the part of the respondents, we restrain ourselves from interfering with the action of the respondents in determining the relative inter se seniority of Loco Running Staff (Diesel & Electrical) and publishing a combined seniority of Loco Pilot (Goods) (Diesel & Electrical), Asansol Division of Eastern Railway upon merger of both the existing cadres.
15. Thus, the OA lacks merit and is accordingly dismissed. It is open for the respondents to act upon the combined seniority list of Loco Running Staff of Asansol Division.
Interim relief, if any, stands vacated.
M.A No. 915/2023 is for vacating the interim order dated 18.3.2023 stands allowed."
11.4. From the above, it can be seen that this Tribunal after taking into consideration the provision of relevant rules in respect to fa 11.5.
11.6.
21 0.A. 350.01900.2022 with M.A.350.269,2023 determination of inter se seniority on merger, instructions contained in Railway Board's letter as well the subsequent development have come to the conclusion that the decisions of merger of the two cadres of Loco Running Staff (Diesel & Electrical) of Asansol Division, Eastern Railway issued in terms of RBE No. 69/2006, RBE No. 29/2022 and the order dated 5.8.2022 & 29.9.2022 in this regard being the policy decisions of the Railway authorities and same is within their domain.
Further it was held therein that the decision of merger of both the cadres which has already been implemented in most of the Zones of Railways that too with due consultation with the recognized Trade Unions cannot be said to be arbitrary and dehors the rules. Even otherwise, in light of the dictum laid down by the Hon'ble Apex Court, we deem it fit not to interfere with the said policy decision of the Railway authorities. Therefore, the challenge to the legality of decision of merger of cadre of Loco Running Staff including Loco Pilot (Diesel} with Loco Pilot (Electrical) at Asansol Division, Eastern Railway is not tenable. --
As noted hereinabove, in the case in hand, identically situated employees of Howrah Division of Eastern Railway have approached this Tribunai challenging the legality of the policy decision of the Railway authorities as contemplated in Railway Board's letter dated 02.06.2006 i.e. RBE No. 69/2006, letter dated 14.03.2022 i.e. RBE No. 29/2022, letter issued by Eastern Railway dated 05.08.2022 as well other correspondences in respect to preparation and publication of Combined Seniority list dated 9.11.2022 for Loco Pilot Goods (Electrical & Mechanical) Howrah Division, Eastern Railway.
Further, it can be seen that identical set of arguments as referred oe 22 0.A. 350,01900.2022 with M.A.350.269.2023 hereinabove in this O.A. was also advanced in O.A. No. 348/2023 by the similarly placed Loco Pilot Goods (Electrical) of Asansol Division, Eastern Railway which has been dealt with by this Tribunal and vide order dated 1.2.2024 in O.A. No. 348/2023 had arrived at a conclusion that the action of respondents for merger of two wings of Loco Pilot Goods i.e. Electrical & Mechanical and preparation of Combined Seniority List has been held to be valid. Therefore, we are of the considered opinion that the same logic is squarely application to the facts and circumstances of the present case in hand.
12. Accordingly, we hold that the decision of the respondents to publish a Combined Seniority List of Loco Pilot Goods (Electrical & Mechanical), Howrah Division, Eastern Railway cannot be said to be arbitrary and dehors the rules. Therefore, the challenge to the legality of decision of merger of cadre of Loco Running Staff including Loco Pilot Goods (Electrical & Diesel) at Howrah Division is not tenable in light of discussion made hereinabove. The impugned combined seniority list dated 09.11.2022 which was published by the respondents in consonance with the policy decision of the Railway authorities and by following the principles of natural justice. Further, as noted hereinabove, it has been brought to the notice of this Tribunal that subsequently the respondents have modified the said combined seniority list by taking into considerations the representation/objections and have published modified Combined Seniority List on 12.07.2023 and the said modified combined seniority list is not under challenged in this OA. Thus, the prayer sought by the applicants to quash and set aside the Combined Seniority List dated 09.11.2022 as well the Railway Board letter dated 02.06.2006, letter dated 14.03.2022, letter dated 05.08.2022 issued by the Eastern Railway is hereby declined.
13. So far, the grievance of the applicant against the decision of respondents for cancellation of provisional panel dated 31.08.2022 for filling up promotional post of LPP (Electrical) is concerned, the same is also not tenable for the reason that the respondents er 23 0.A. 350.01900,2022 with M.A.350.269.2023 have taken a conscious policy decision to implement the Railway Board's instructions issued time and again for merger of two cadres ic. Loco Pilot Goods (Diesel & Electrical) and preparation of their combined seniority list that too by taking into consideration the provisions of mandatory rule 320 of the IREM Vol. I.
14. At this stage, it is profitable to mention that the Hon'ble Apex Court in the case of State of West Bengal v. Subal Chandra Das. [(1996) SCC (L&S) 486] held that "the merger results in fusion of the two cadres into one single cadre." It is noticed that upon merger of two cadres of Loco Pilot Goods (Electrical) & Loco Pilot Goods (Diesel), evidently it result in a single cadre i.e. Leco Pilot Goods (Electrical & Mechanical). Accordingly, one Combined Seniority List of the said cadre is required to be prepared and for the purpose of grant of promotional benefit, the said combined seniority list is required to be considered and operated. Accordingly, the action of the respondents to fill up the promotional post of LPP by operating the Combined Seniority list of LPG (Diesel _ & Electrical) in level 6 cannot be said to suffer from any legal infirmities.
15. Further, it is not open for the respondents to continue with the selection process when the competent authority had time and again issued instruction to merge both the cadres and to fill up the vacancies in the promotional post by preparing a Combined Seniority list of Loco Pilot Goods (Electrical & Mechanical). It is noticed that the provisional panel dated 31.08.2022 impugned herein was prepared in contravention to the Railway Board's policy decision dated 02.06.2006 as well 14.03.2022.
16. In our considered view, any instruction contrary to the directions and guidelines as contained in RBE 29/2002 dated 14.03.2022 and Railway Board's letter dated 02.06.2006 in respect to filling up the promotional post is not sustainable. Therefore, the submission of Ld. Counsel for the applicant that the respondent No. 3 had issued instructions to continue with the selection process which was notified earlier is also not tenable.
17, We do not find any legal infirmity in the impugned decision dated 9.11.2022 of respondents for cancellation of the provisional panel dated 31.08.2022 since the said impugned decision is as such in consonance with the Railway Board's instructions.
Vn a 24 0.4, 350,01900,2022 with M.A.350.269.2023
- At this stage, it is apt to mention that the submission of Ld, Counsel for the applicant that due to impugned policy decision of preparing a Combined Seniority List and assigning seniority which may jeopardize the promotion prospect of the applicants herein is also not tenable as the said inter se seniority of Loco Pilot Goods (Diesel & Electrical) has been prepared in terms of provisional of Para 320 of IREM Vol. IL. Further, the submission of the applicants that being lower in Combined Seniority list, their chances of promotion have been affected and their conditions of service have been changed to their disadvantage. This issue has already been dealt with by the Hon'ble Apex Court in the judgement passed in AIR COMMODORE NAVEEN JAIN VERSUS UNION OF INDIA & ORS. Civil Appeal No. 3019 of 2017 decided on 03.10.2019 wherein the Hon'ble Apex Court had referred to the following judgments which read as under:-
"In State of Mysore & Anr. v. G.B. Purohit & Ors. this Court held that a right to be considered for promotion, is a condition of service but mere chances of promotion are not. The rule which merely affects the chances of promotion cannot be regarded as varying a condition of service. The said judgment was quoted with approval _ in later judgment reported as Ramchandra Shankar Deodhar & Ors. v. State of Maharashtra & Ors. wherein this Court held as under:
"15..,...All that happened as a result of making promotions to the posts of Deputy Collectors division wise and limiting such promotions to 50 per cent of the total number of vacancies in the posts of Deputy Collector was to reduce the chances of promotion available to the petitioners. It is now well settled by the (1998) 6 SCC 720 decision of this Court in State of Mysore v. G.B. Purohit [CA No. 2281 of 1965, decided on January 25, 1967] that though a right to be considered for promotion is a condition of service, mere chances of promotion are not. A rule which merely affects chances of promotion cannot be regarded as varying a condition of service. In Purohit's case the district wise seniority of sanitary inspectors was changed to State wise seniority, and as a result of this change the respondents went down in seniority and_became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to Section 115, sub-section (7). This contention was negatived and Wanchoo, J. (as he then was), speaking on behalf of this Court observed: "It is said on behalf of the respondents that_as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service....."
(emphasis supplied) Via 25 0.A. 350.01900.2022 with M.A.350.269.2023
- 18. Further, the Hon'ble Apex Court in the said judgment has also referred to the judgment passed in Hardev Singh v. Union of India & anr. wherein it was held that:
"no employee has a right to get promotion but only a right to be considered for promotion. The Tribunal found that the Prometion Policy is based on the principle of "seniority-cum-merit" and not "merit-cum-seniority" as the ultimate promotions are based on seniority. This Court in Hardev Singh held as under:-
"25. In our opinion, it is always open to an employer to change its policy in relation to_giving promotion to the employees. This Court would normally not interfere in such policy decisions. We would like to quote the decision of this Court in Virender S. Hooda v. State of Haryana [999) 3 SCC 696 : 1999 SCC (L&S) 824] where this Court had held in para 4 of the judgment that: (SCC_p.
699) "4. ... When a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to_time_and so long as these instructions are not contrary to the rules, the respondents ought to follow the same."
26. Similarly, in Balco Employees' Union v. Union of India [(2002) 2 SCC 333] it has been held that a court cannot strike down a policy decision taken by the Government merely because it feels that another policy would have been fairer or wiser or more scientific or logical. It is not within the domain of the court to weigh the pros and cons of the policy or to test the degree of its beneficial or equitable disposition.
27. For the aforestated reasons, we are of the view that no injustice had been caused to the appellant as his case was duly considered for promotion to the rank of Lieutenant-General by the SSB twice but as other officers were found better than the appellant, he could not be promoted. In the circumstances, we do not find any substance in the appeal and, therefore, the appeal deserves to be dismissed." 5 Writ Petition (C) No. 18935 of 2006 decided on August 24, 2007 6 (2011) 10 SCC 121
19. Thus, in light of the dictum laid down by the Hon'ble Apex Court as laid down hereinabove, the grievance of the applicants against cancellation of provisional panel list fer dated 31.8.2022 has no force and same is also not tenable.
26 0.A. 350.01900.2022 with M.A.350.269.2023
20. The judgment relied upon by the Ld. Counsel for the applicant in our considered view, same does not come to the aid of the applicants. It can be seen that the Railway Board vide their policy decision dated 2.6.2006 had decided to frame a policy for merger of both the cadres of Loco Running Staff (Diesel & Electrical) and had decided to 'maintain a combined seniority list in terms of conditions stipulated in Rule 320 of IREM Vol. I and that too by taking into consideration the relevant date of entry into the cadre. Therefore, the submission of Ld. Counsel that in order to merge both the cadres in light of RBE No. 69/2006 and the judgment relied upon, the Loco Pilots (Diesel) ought to have been declared surplus and then assigned bottom seniority while preparing the combined seniority list is also not acceptable.
21. In light of what has been discussed above as also taking into consideration the dictum laid down by the Hon'ble Apex Court in respect to limited scope of judicial review in policy matters of the employer and in absence of any evidence of arbitrary decision on the part of the respondents, we restrain ourselves from interfering with the action of the respondents in determining the relative inter se seniority of Loco Running Staff (Diesel & Electrical) and publishing a combined seniority of Loco Pilot (Goods) (Diesel & Electrical), Howrah Division of Eastern Railway upon merger of both the existing cadres.
22. Thus, the OA lacks merit and is accordingly dismissed. It is open for the respondents to act upon the combined seniority list of Loco Running Staff of Howrah Division for filling up promotional post.
Interim relief, if any, stands vacated, M.A., if any, stands disposed of accordingly.
There shall be no orders as to costs.
(Anindo | (Jayesh V. Bhairavia) Administrative Member Judicial Member Sp/