Paragraph numbers below are the court’s original numbering, recovered from the source text.
20. A perusal of the Allocation of Business Rules, 1961, especially the highlighted portion leaves no manner of doubt that the Railways is specifically excluded from the ambit of the scope of business allocated to the DoPT, whether it be for classification of posts, recruitment of ministerial staff, appointment of non-indians to civil posts, fixing of service conditions, including conduct rules, general policy regarding retrenchment and revision of temporary service of the Railways etc., and as such the DoPT cannot issue binding circulars upon the Railways. We may make it clear that if the DoPT issues a circular and the Railways specifically accepts the circular or makes it applicable, then such a circular may apply but if the circular is not made specifically applicable then it has no force so far as the Railways and its employees are concerned.
21. In the same Allocation of Business Rules, 1961 while allocating business to the Ministry of Railways power has been given to it to deal with all matters including those relating to Revenue and Expenditure. Therefore, the Ministry of Railways has the power to lay down conditions of service for its employees.
22. The Ministry of Railways has a set of codified rules known as the Indian Railways Establishment Code (IREC). It is not disputed before us that as far as the IREC is concerned the same is notified under the proviso to Article 309 of the Constitution and is statutory in nature. However, it has been urged on behalf of the direct recruits that IREM does not have any statutory force. It would also be pertinent to mention that the DoPT itself has issued a office memorandum dated 16.02.2018 stating that the matters relating to recruitment, promotion & seniority in respect of Ministry of Railways do not fall within the jurisdiction of the DoPT. We need not refer to all the documents referred to because it is apparent from a bare reading of the Allocation of Business Rules, 1961, that the service conditions of the employees of the Railways are governed by the rules framed by the Railways which will not only include the IREC but also the IREM.
23. Even with regard to the IREM it has been urged by the learned ASG that these rules and the various modifications/amendments issued from time to time to the IREM are also issued under the proviso to Article 309 of the Constitution and as such they have the statutory force.
24. We have gone through the various communications with regard to the IREM and find that all of them make a mention that they have been issued in exercise of powers conferred by proviso to Article 309 of the Constitution. We may specifically refer to only one document, i.e., PRABHAT RANJAN SINGH v. R.K. KUSHWAHA [DEEPAK GUPTA, J.] amendment to the IREM Rules 327 to 341 made in pursuance to the judgment delivered by the CAT on 03.05.2016. The relevant portion of the communication reads as follows:- “……… In exercise of the powers conferred by the proviso to Article 309 of the Constitution the President have further decided that principles for inter-se-seniority of Direct Recruit Group ‘A’ officers and promotee Group ‘B’ officers inducted into Group ‘A’ Junior Scale effective from the panel year 2012-13, stands modified/ amended as per Annexure-I. ………” This leaves no manner of doubt that the rules under IREM Vol.1 are also statutory rules.
25. In view of the above, there can be no manner of doubt that the Railways is not bound by the memorandum issued by the DoPT and are empowered to frame its own rules to lay down the service conditions of its employees. We also hold that the IREM has statutory force and has been issued in exercise of powers vested under the proviso to Article 309 of the Constitution. II Whether Shri R.K. Kushwaha, the direct recruit had laid challenge to the rules, which provide for giving weightage in the seniority to the promotee officers?
26. As far as the second question is concerned we may note that we have already quoted the prayer clause of OA No.460 of 2016 filed before the CAT. In the said OA there is not even a whisper of a challenge to the policy of giving weightage to the promotees. In fact that issue was not raised before the CAT. The case set up by the direct recruits before the CAT was that since the requisition for recruitment had been issued on 23.10.2007, they should be granted seniority from that date in view of the judgment rendered by this Court in N.R. Parmar’s case (supra) read with DoPT OM dated 04.03.2014. It has been urged by Shri Guru Krishna Kumar, learned senior counsel appearing for the direct recruit that prayer 8.3 in which it is prayed that corrigendum/amendment/ corrections slip be issued in IREM Volume-I is itself a prayer to quash the said IREM. We are unable to accept this contention. If the direct recruit wanted to lay challenge to the policy of giving weightage to promotees then the basis for the challenge had to be made in the original application and the rule granting such weightage had to be specifically challenged in the prayer clause. The promotees who were liable to be affected should have been arrayed as respondents. Such a challenge cannot be entertained from the back door by merely alleging that corrigendum/ amendments/corrections to the IREM be issued. Neither the corrigendum, nor the amendment or the corrections could result in the quashing of rule granting weightage. Furthermore, if prayer 8.3 is read as a whole, what is prayed is that the correction be made with a view to bring the IREM in line with DoPT OM dated 04.03.2014, which is based on the principle of law framed in N.R. Parmar’s case (supra).
27. We may also note that before us the original application filed by Shri R.K. Kushwaha has been produced in which the main case set up was that in view of the law laid down in N.R. Parmar’s case (supra) the date of sending requisition for filling up the vacancies is the date from which the direct recruits should be granted their seniority. The following averments made by Shri Kushwaha in para 4.3. of his OA are relevant:- “……… 4.3 That in this regard it is submitted that while the applicant was working in Group-A service of IRSSE, several Group-B officers i.e. 87 in number has been promoted/inducted in Group-A service of IRSSE vide order dated 12.08.2014 for the panel year 2012-13 and 2013-14 w.e.f 08.05.2014, hence such promote officers are entitled to get the benefit of seniority w.e.f 08.05.2009 after giving weightage of 05 years whereas the applicant being Direct Recruitee is entitled to get the benefit of seniority w.e.f 23.10.2007 i.e. from the date of requisition for filling up the vacancies of Group-A service in view of the decision given by the Hon’ble Supreme Court of India in the case of Union of India Vs NR Parmar in which the issue of seniority in between Direct Recruitee and Promotees have been settled on 27.11.2012 against which the Union of India has also filed Civil Review and the same has been dismissed on 07.08.2013. ………” PRABHAT RANJAN SINGH v. R.K. KUSHWAHA [DEEPAK GUPTA, J.]
28. This leaves no manner of doubt that the only case set up by the direct recruit was that he was entitled to seniority from 23.10.2007, the date on which requisition for filling up the direct recruit posts was sent and the promotees after being given due weightage of 05 years were entitled to seniority w.e.f. 08.05.2009. Therefore, he cannot now urge that he had laid challenge to the rule providing for grant of weightage to the promotees. III Whether the findings of the CAT in respect of N.R. Parmar’s case (supra) was limited to removing the arbitrariness only in respect of ‘DITS’?
29. Before dealing with this issue we may note that we are not at all in agreement with the interpretation sought to be given by the direct recruits to the decision rendered in N.R. Parmar’s case (supra), that they are entitled to seniority from the date of requisition. On a perusal of the judgment in N.R. Parmar’s case (supra), we find that in that case this Court was dealing with those situations where the process of either direct recruitment or promotions takes an unduly long time. As per the then existing rules, the persons so appointed/promoted would get seniority from the date when they joined. This Court found that this could lead to arbitrariness on account of the fortuitous date of appointment. In certain cases, the process of recruitment by a particular mode would start much earlier but for extraneous reasons, selection by one mode would be very quick and slow by the other mode. Therefore, to eliminate this anomaly and reduce arbitrariness, this Court laid down that the date of requisition for filling up the posts by a particular recruitment process could be taken as the year to which seniority could be given to persons recruited under that process. However, the Court also clearly laid down that this would apply only if the recruitment year is the same as the year of vacancy. It is obvious that neither the promotees nor the direct recruits can be given seniority from a year when such vacancies do not even exist. The Court also laid down that the administrative authority should ensure that recruitment process should be initiated during the vacancy year itself.
30. In this behalf, we may make reference to the following observations of this Court in the case of N.R. Parmar (supra) : “34.1. If the process of recruitment has been initiated during the recruitment year (in which the vacancies have arisen) itself, even if the examination for the said recruitment is held in a subsequent year, and the result is declared in a year later (than the one in which the examination was held), and the selected candidates joined in a further later year (than the one in which the result was declared), the selected candidates will be entitled to be assigned seniority, with reference to the recruitment year (in which the requisition of vacancies was made). The logic and reasoning for the aforesaid conclusion (expressed in the ON dated 2-2-2000) is, if the process of direct recruitment is initiated in the recruitment year itself, the selected candidate(s) cannot be blamed for the administrative delay, in completing the process of selection. 34.2. The words “initiation of action for recruitment”, and the words “initiation of recruitment process”, were explained to mean, the date of sending the requisition to the recruiting authority.”
31. In the present case though the requisition was sent in the year 2007, the vacancies related to the year 2009 and, therefore, the CAT as well as the High Court rightly held that the direct recruits were not entitled to promotion from the year 2007. The CAT only ordered that the arbitrariness which may arise due to fixation of ‘DITS’ be removed by fixing the ‘year of allotment’ as the relevant criteria. IV Whether by issuing the memorandum dated 05.03.2018 amendment/modifying rules 327-341 the Railways have violated the order issued by the CAT?
32. We have quoted the order of the CAT hereinabove and what the CAT ordered was that the IREM determining the inter se seniority based on DITS was clearly flawed and arbitrary. The order dated 09.06.2015 and 12.12.2014 were quashed and set aside being violative of the judgment of this Court in N.R. Parmar’s case (supra) and the DoPT guidelines. As held above there was no challenge to Rule 334 which provides for giving weightage to the promotees. This Rule was not challenged directly or indirectly and the CAT has not at all dealt with this Rule. We may add that an identical rule has been held to be valid by this Court in A.K. Nigam vs. Sunil Misra2. This judgment has been noted by the CAT and yet the CAT did not discuss this judgment. It is obvious that the CAT did not go into the validity of Rule 334. All that the CAT held was that instead of the ‘DITS’ being the determining factor to 2(1994) Supp.2 SCC 245 PRABHAT RANJAN SINGH v. R.K. KUSHWAHA [DEEPAK GUPTA, J.] determine the year of promotion, the seniority would be determined with reference to the ‘year of allotment’ following the principle of IAS Rules. The CAT rightly dismissed the contempt petition holding that the entire discussion with reference to N.R. Parmar’s case (supra) was regarding removing the arbitrariness due to ‘DITS’ and bringing it in line with the concept of vacancy year/allotment year which does away with the problem. Thus the CAT itself has clearly held that it had not at all dealt with the issue whether promotees were not entitled of being granted weightage of 5 years service for determining the seniority. This question never arose before the Tribunal and as such the action of the Railways in amending the Rules to bring them in line with the judgment of the CAT by removing ‘DITS’ as the determining factor for fixing seniority and introducing the ‘year of allotment’ as the criteria for determining the seniority can in no manner be said to be violative or against the order of the CAT. In fact, the said order is totally in line with the order of the CAT.
33. We may add that lengthy arguments have been addressed on behalf of the direct recruits contending that the rule which provides that weightage be given to the promotees is arbitrary and in this regard reference has been made to the judgment of this Court in P. Sudhakar Rao & Ors. vs. U. Govinda Rao & Ors3 and it is urged that in view of this judgment the decision of this Court in A.K. Nigam’s case (supra) is no longer good law. On the other hand both the learned ASG and the senior counsel for appellants have urged that A.K. Nigam’s case (supra) still holds the field as P. Sudhakar Rao’s case (supra), was a case decided in a fact scenario where there was no provision for granting such weightage. It was also urged that the practice of giving weightage to the promotees in the Railways has been in vogue since 1955 and the railways has justified its action of giving weightage to the promotees by urging that the promotees are doing the same work in the lower post as is being done by them after promotion. Therefore, there is no change in the nature of their work after promotion and the benefit of weightage is given for the experience which they have got for doing such work. It has also been urged that most of the promotees are already getting higher emoluments than are payable to the direct recruits on their induction and this is also a factor taken into consideration for granting this weightage. We are not going into these questions. We have clearly held that there 3(2013) 8 SCC 693 was no challenge to Rule 334 in the original application and such a challenge cannot be countenanced or entertained either in contempt proceedings or on behalf of the respondents while defending the appeal in this Court. We make it clear that we have not expressed any opinion on the rival contentions of the parties on this issue.
34. The situation as on date is that rules have been amended. These rules have to be implemented. Neither the promotees nor the direct recruits have challenged these rules. We are therefore not going into other issues raised by the parties.
35. We dispose of the appeal by holding that the CAT had only directed that instead of ‘DITS’, the ‘year of allotment’ should be the determining factor/criteria for determining the inter se seniority. We further hold that there was neither any challenge to Rule 334 of the IREM Vol. 1 in the original application nor did the CAT go into this issue. We, accordingly uphold the order dated 02.04.2018 passed by the CAT, Patna Bench dismissing the contempt petition filed by the direct recruit Mr. R.K. Kushwaha. Consequently, the Transferred Case No. 52/2018 i.e. Writ Petition being CWJC No. 6489/2018 before the Patna High Court is dismissed.
36. Applications for intervention/impleadment are rejected.
37. The contempt petitions and all pending applications shall also stand disposed of. SLP (C) NO(S). 4144 OF 2018
38. This petition is directed against the interim order dated 29.01.2018 passed by the High Court of Madhya Pradesh, Principal Bench at Jabalpur in Writ Petition No. 299 of 2018. The petition itself has been finally disposed of by the High Court vide order dated 20.03.2018 and, therefore, this petition is rendered infructuous and disposed of as such. Ankit Gyan Matters disposed of. PRABHAT RANJAN SINGH . v. R.K. KUSHWAHA [DEEPAK GUPTA, J.]