• Seniority matter

Sir,
state govt. announced recruitment of our post 100℅ by direct receuitment.
80℅ by open market and 20℅ by departmental exam.
on [deleted] department publish recruitment advt. for filling 80℅ open market candidate. 
first phase exam :-14-apr-2011
second phase exam 15-may -2011
final result declared on [deleted](list of final selection).
now dept. publish recruitment advt for filling 20℅ depatmental seat.
date of publish advt. :- [deleted]
exam conducted :-09-jun-2011
final selection list declared on [deleted].
and dept give appointment to them on [deleted].
after that dept. give appointment to us on [deleted].
after that department published seniority list on next year. and deptmental candidate become senior ( depend on date of joining).
but rule said 
persons appointed on the result of an 
earlier selection being senior to those appointed on the result of a subsequent selection.
according to this rule we are senior from departmental candidate. because our recruitment advt. publish in finacial year 2010-2011.
and recruitment advt. for departmental candidate publish in financial year 2011-12.
and also our result come first.
in highcourt single bench we win.and judgement is in our favour.but department going to DB, now the matter is pending in DB.
please suggest me such rule and related judgement, so that we produce proof of our seniority.
Asked 4 years ago in Civil Law

13 answers received from multiple lawyers

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13 Answers

A direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date when he was not borne in the service just on bais of publication of notification . This principle is well settled. In N.K.Chauhan v. State of Gujarat, Krishna Iyer, J. stated: Later direct recruit cannot claim deemed dates of appointment for seniority with effect from the time when direct recruitment vacancy arose. Seniority will depend upon length of service. Again, in A. Janardhana v. Union of India, it was held that a later direct recruit cannot claim seniority from a date before his birth in the service or when he was in school or college. Similarly it was pointed out in A.N. Pathak v. Secretary to the Government that slots cannot be kept reserved for the direct recruits for retrospective appointments."

But this the rules of state appointment makes it clear that date of result shall be deemed than these shall be also considered as the service rules makes it clear that date of publication of result is important for seniority so basis of that you can claim seniority the Court otherwise have different views based on state rules.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Dear Sir,

I have read more than 10,000 judgments of different High Courts and prepared Head Notes which are published in different Law Journals. If you can send relevant documents/High Court judgment and appeal memo, to my email I am in a position to advise you with relevant supporting judgments.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

Hi,

Please refer the swami's hand book in this regard

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

1) it is necessary to peruse order passed by single bench of HC to advice

2) kindly enclose copy of impugned order passed by HC

3)T he conferment of seniority would be against the Recruitment Year in which the recruitment process is initiated for filling up of the vacancies,

4) department has wrongly determined seniority of candidates based on date of joining

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

DOPT office memorandum dated 4/3/2014 clarifies that the conferment of seniority would be against the Recruitment Year inwhich the recruitment process is initiated for filling up of the vacancies

2) the said office memorandum has been issued following supreme court judgement in parmar case

3). Recruitment 'with regard to direct recruits would mean the year of initiating the recruitement

process by way of sending the first requisition for filling up of the vacancies made to recruiting agency

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Dear Client,

If the matter is already subjudice before Hon`ble Court and first phase in your favor, than precise can be advise of perusal or petition , order and DB appeal.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Since you have already have a decision in your favor already now you defend the judgment given in your favor.

Your advocate who is handling the issue shall be in regular touch for all such future issues.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Candidates appointed on the basis of result of earlier selection process must rank senior to the candidates who were appointed on the basis of the result of subsequent selection.

The above is a cardinal principal and you'll find several case laws on the above proposition.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

You can argue on the same point before DB as mentioned before single bench as stated above. It's a valid point.

Prashant Nayak
Advocate, Mumbai
27273 Answers
88 Consultations

4.4 on 5.0

Kindly refer the link

N.K. Chauhan & Ors vs State Of Gujarat & Ors on 1 November, 1976

Equivalent citations: 1977 AIR 251, 1977 SCR (1)1037

https://indiankanoon.org/doc/101697/

A. Janardhana vs Union Of India And Others on 26 April, 1983

Equivalent citations: 1983 AIR 769, 1983 SCR (2) 936

https://indiankanoon.org/doc/965502/

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Than show case documents.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Even the single bench judgment is valid, whatever you can fight on this based on the supreme court judgment only since DB is again the high court only.

First allow the department to aproach DB with an appeal, let the matter be discussed on the basis of their grievances, you can present your arguments accordingly.

Moreover it is the duty of your advocate to look for judgments to be produced before court and not the party.

Allow your advocate to do some home work.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Patna High Court

Prabhat Ranjan & Anr vs R. K. Kushwaha & Ors on 12 May, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.10669 of 2016

===========================================================

1. Prabhat Ranjan Singh, son of Late Rajeshwar Singh, resident of 292 A, Haritima Path, Railway Officer colony, Sonpur, District-Saran, presently holding the post of General Secretary, East Central Railway Promotee Officers Association, East Central Railway at Hajipur.

.... .... Petitioner/Applicant in MA/050/00053/2016

2. Girish Kumar, son of Suchendra Prasad Mahto, Senior Signal and Telecommunication Engineer (Works and Design), East Central Railway, Hajipur, resident of Maa Vindhavasini Bhawan, Backside of Sonali Petrol Pump, M.G. Setu Road, Kumhrar, Patna.

.... .... Petitioners Versus

1. R. K. Kushwaha, son of Sri Raj Kishore Kushwaha, Assistant Signal and Telecom Engineer, East Central Railway, Danapur, residing at 899/D, Officer's Rest House, Near DRM Office, Khagaul, District-Patna, PIN 801 105.

.... .... Respondent 1st Set/Applicant in OA

2. The Union of India through the Chairman, Railway Board, Ministry of Railway, Rail Bhawan, New Delhi.

3. The Secretary, Railway Board, Ministry of Railway, Rail Bhawan, New Delhi.

4. The Director (Estt.), Railway Board, Ministry of Railway, Rail Bhawan, New Delhi.

5. The Under Secretary, Railway Board, Ministry of Railway, Rail Bhawan, New Delhi.

.... .... Respondents =========================================================== Appearance :

For the Petitioners : Mr. Jitendra Singh, Senior Advocate Mr. Piyush Lall, Advocate Mr. Mritunjay Kumar, Advocate For the Railways : Mr. D.K.Sinha, Senior Advocate Mr. Bijoy Kumar Sinha, Advocate For the Pvt. Respondents : Mr. P.N.Sahi, Senior Advocate Mr. M.P.Dixit, Advocate Mr. Sanjay Kumar Choubey, Advocate Mr. Sanjay Kumar Dixit, Advocate Mr. Shailendra Kumar, Advocate Mr. Sunil Kumar, Advocate =========================================================== CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI and HONOURABLE JUSTICE SMT. NILU AGRAWAL C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI) Date: -05-2017 Private respondent No. 1 was the applicant before the Patna High Court CWJC No.10669 of 2016 dt.[deleted] Central Administrative Tribunal, Patna Bench, Patna (for short 'CAT'). He filed O.A. No. 050/00460 of 2015. After hearing the parties, the CAT allowed the O.A. application, quashed two impugned orders dated 09/12.06.2015, which was Annexure-A/8, and 12.12.2014, which was Annexure-A/4 to the O.A. application and directed recasting of the inter-se seniority in light of the judgment and decision of the Hon'ble Apex Court rendered in Union of India (UOI) and Ors. etc. etc. Vs. N.R. Parmar and Ors. etc. etc. reported in (2012) 13 SCC 340. Since these petitioners are now directly affected by the decision of CAT, dated 03.05.2016, the writ application has been filed.

2. The private respondent No.1 filed the O.A. seeking following reliefs :

"8.1 That your Lordships may graciously be pleased to quash and set aside the impugned orders dated 09/12.06.2015 passed by the Respondent No.1 together with order dated 12.12.2014 passed by the respondent No.4 as contained in Annexure-A/8 and A/4 respectively which are contrary to the order passed by Hon'ble Supreme Court of India in N.R. Parmar case and DOP&T's O.M. dated 04.03.2014 as referred to above.

8.2 That your Lordships may further be pleased to direct the respondents to recast the seniority list afresh on the basis of principle laid down by Hon'ble Supreme Court of India in N.R. Parmar case and DOP&T's O.M. dated 04.03.2014 Patna High Court CWJC No.10669 of 2016 dt.[deleted] as referred to above without any further delay.

8.3 That the Respondents further be directed to issue corrigendum/amendment/correction slip in Indian Railway Establishment Manual Volume-1, henceforth in view of new Guidelines/directives of DOP&T OM dated 04.03.2014 as contained in Annexure-A/11 which is based on the principle/law laid down by the Hon'ble Supreme Court of India in N.R.Parmar case regarding fixation of inter-se seniority between Direct Recruitees and promotees Officers.

8.4. That the respondents further be directed to grant all consequential benefits in favour of the applicant including promotion in JA Grade on the basis of his seniority as per the principle laid down by Hon'ble Supreme Court of India in N.R. Parmar case and DOP&T's O.M. dated 04.03.2014 as referred to above."

3. The factual background, which led to the present litigation, is that a requisition was sent by the Railway Board dated 23.10.2007 to the Union Public Service Commission (UPSC for short). As a consequence thereof, the private respondent came to be appointed on a Group-A service of Indian Railway Service of Signal Engineers on 01.12.2009 through Engineering Service Examination

- 2008. While the private respondent was working as a Group-A officer of the Signal Engineering Service, vide order dated 12.08.2014 a panel for the year 2012-13 and 2013-14 with effect from 08.05.2014 was drawn-up. The promotee officers were given Patna High Court CWJC No.10669 of 2016 dt.[deleted] benefit of seniority with effect from 08.05.2009, whereas the private respondent despite being a direct recruit, was not given the benefit of seniority w.e.f. 23.10.2007, i.e. the date of requisition for filling up the vacancies of Group-A service despite the decision of the Hon'ble Apex Court rendered in the case of N.R. Parmar (supra).

4. After the decision of the Apex Court in N.R.

Parmar's case (supra), the DOP&T, Government of India, issued a OM dated 04.03.2014 for fixation of seniority of direct recruits vis-à-

vis promotees. The private respondent vide order dated 12.12.2014 was placed below the promotees for the panel year 2012-13 and 2013-14, which the private respondent made a grievance of that such a decision was totally illegal, arbitrary, unconstitutional and in teeth of N.R. Parmar's case (supra) as well as the DOP&T OM dated 04.03.2014, which clearly stipulated that the date of sending requisition for filling-up vacancies to the recruiting agency, i.e. the UPSC, in relation to direct recruits will be the date for fixing their seniority and not the date of joining. Since, in the present case, the requisition was sent to the UPSC on 23.10.2007, hence, the relevant date for fixing seniority for the private respondent should have been 23.10.2007, whereas the respondent Railway authorities issued the order dated 12.12.2014 (Annexure-A/4 to O.A.) on the basis of his date of joining, which was 14.12.2009.

Patna High Court CWJC No.10669 of 2016 dt.[deleted]

5. The direct appointees coming to know of such decision sent representations individually as well as through their Association for re-determination of seniority in conformity with judicial pronouncement. When nothing came to be done, an O.A. No. 260 of 2015 was filed, which was disposed of on 01.04.2015 with a direction upon the respondent authorities of the Railway, especially the Chairman, Railway Board, to treat the O.A. as a representation and pass a speaking, reasoned order within a month.

6. The representation of the private respondent was rejected vide letter dated 12.06.2015, which was Annexure-A/8 to the O.A. The rejection order gave the reason that N.R. Parmar's case (supra) or the OM dated 04.03.2014 was not applicable to the Railway since they have their own recruitment and seniority rules applicable to Group-A Railway service. The rejection order also quoted part of an earlier DOP&T OM dated 12.12.1959, which, according to the private respondent, had no applicability but was quoted out of context. It was the stand of the private respondent before the CAT that even though the speaking order had accepted that the DOP&T OM dated 04.03.2014 is based on earlier OM dated 22.12.1959, but there was no reference as to deviation from such principles of DOP&T, which laid down that in case any Ministry or Department wanted to follow a different principle with regard to Patna High Court CWJC No.10669 of 2016 dt.[deleted] grant of seniority etc. they had an obligation to consult the UPSC/DOP&T, which was not done in the present case.

7. Even for the sake of argument, if the Railway rules with regard to seniority was contrary to the judgment passed by the Apex Court in N.R. Parmar's case (supra), which is the law of the land as well as DOP&T OM dated 04.03.2014, they had to revert to the UPSC or seek clarification from DOP&T before issuing the promotion orders and altering the seniority of the direct recruits.

8. The respondents before the CAT, i.e. Railway, took a plea that it was not for the Tribunals to issue directions and advisories with respect to the areas and spheres which is within the domain of the executive since the order under challenge in the O.A.

that was Annexure-A/4 and Annexure-A/8, was in accordance with Rule 334(2)(ii) of the Indian Railway Establishment Manual (in short 'IREM')Vol.-I framed by the competent authority after taking into consideration the material facts. There was no occasion for the Tribunal to interfere with the decision of the Railway. It was also their stand that as per Rule 330 of the Indian Railway Establishment Manual Vol.-I, Officers appointed to Indian Railway service Group-

A, on the basis of examination held by the UPSC with effect from 1986 examination batch, shall count their service for seniority from the date they commenced earning increments in the regular scale as Patna High Court CWJC No.10669 of 2016 dt.[deleted] Junior Scale Officers in Group-A. It was also the stand of the respondent Railway authorities that since they had their own set of rules for fixation of seniority with regard to promotion of direct recruits and since the N.R. Parmar's case (supra) was in context of Income Tax Department, the same will have no applicability.

Therefore, the seniority of the private respondent was rightly fixed under the promotees and O.A. was fit to be dismissed.

9. The stand of the Railway was seriously contested by the private respondent that the DOP&T OM dated 04.03.2014 was universally followed by all Departments of the Central Government, Railway should have either amended their rules or fallen in line and applied the OM dated 04.03.2014 if not the ratio of the decision of N.R. Parmar's case (supra).

10. Since the CAT Bench by and large crystallized the arguments in following terms, they are reproduced hereinbelow for ready reference :

"5. We have heard both the parties. The main dispute In this case is whether the principle laid down in N. R. Parmar's case [supra] followed by the DOPT circular dated 04.03.2014, is applicable in the case of Railway employees or not and, if applicable, whether Rules contrary to that can prevail or not. We have perused the impugned order dated 09.06.2015 wherein the respondents have stated as follows:-

"1. I find that the DOP&T's OM No. 9/11/55-RP dated 22.12.1959 is the base instruction on fixation of inter-se seniority of direct recruits and Patna High Court CWJC No.10669 of 2016 dt.[deleted] promotees. Subsequent instructions of DOP&T including that of 04.03.2014, issued in pursuance of N.R. Parmar are clarificatory instructions, supplementing the base instructions of 22.12.1959. The DOP&T's OM dated 22.12.1959 categorically states that "These principles shall apply for the determination to Inter-se seniority in Central Civil Services and Civil post except such posts and services for which separate principles have already been issued or may be issued hereafter by the Government."

There are clear and specific instructions in IREM Vol.1, on the Inter-se-seniority of direct recruit Junior Scale Group-A officers of the eight organized Railway services including IRSSE, to which the applicant belongs. Their seniority is fixed in terms of provisions contained in- IREM [Vol.1] which has the approval of the President under Article 309 of Indian Constitution.

As per the Rule 328 of the IREM-I, the seniority of officers appointed to various Indian Railway Services in Gr. A Junior Time Scale shall be determined on the basis of Date of Increment in time scale [DITS], which is the date of joining service for direct recruits and is arrived at for Promotees after their induction in Gr. A by giving weightage in seniority. As per Rule 336 pf the IREM-1, officers permanently appointed to Group 'A' Junior Scale [Promotees] against the quota of vacancies reserved for them shall be placed below or above a particular batch of direct recruits accordingly as their DITS are earlier or later than the earliest date on which any one of the direct recruits in a particular batch joins service.

2. The contention of the applicant and figures of the Promotees officers inducted against the relevant year 2001 to 2007 are incorrect. Only 22, 8, 12, 12, 24, 26 and 45 promotees officers, respectively, have been inducted against the promotion quota vacancies for the year 2001 to 2007, after dividing the available vacancies of the Junior Scale in the ratio of 50:50 between the direct recruits and promotees. The indent for direct recruit during the relevant year was curtailed by 2/3rd in terms of Governments instructions to optimize direct recruitment to 1/3rd of the direct recruitment vacancies for five years from the vacancy year 2001-02, which was subsequently extended till 2009. While there was restriction on recruitment from open market against the Direct Recruit Quota there was no corresponding restrictions on induction of Promotees to the Group 'A' Junior Scale against the corresponding promote quota vacancies.

3. The contentions made that the DPC for two vacancy year 2012-13 and 2013-14, of the Patna High Court CWJC No.10669 of 2016 dt.[deleted] Promotees was held together in violation of the guidelines of DOP&T is, not correct. The two panels were finalized strictly in terms of Government instructions and guidelines laid down by DOP&T in terms of para 6.4.1 of Department of Personnel and Public Grievances OM dated 10.04.1989.

In view of above, it is my considered view that the applicant is governed by recruitment/seniority rules applicable to Group A Railway Services laid down in IREM Vol.1 and his seniority, as well as the seniority of promote officers of 2012-13 and 2013-14 has been fixed strictly in terms of these Rules. Therefore, the order dated 12.12.2014, which has been issued in terms of these laid down Rules, stands good."

6. However, from perusal of the DOP&T circular dated 22.12.1959, it transpires that the said circular stipulates general principles for determination of seniority in government service, wherein it is specifically observed as under:-

"[I] These principles shall apply to the determination of seniority in Central Civil Services and Civil posts except such services and posts for which separate principles have already been issued or may be issued hereafter by Government. Ministries or Departments which have made separate rules or issued instructions on the basis of instructions contained in the Ministry of Home Affairs, OM No. 30/44/48- Apptts. Dated the 22nd June, 1949, are requested to consider modification of these rules or instructions on the basis of these general principles. However, whenever, it is considered necessary to follow principles different from those laid down in this Memorandum, a specific reference should be made to the Ministry of Home Affairs will consult the UPSC. As regards individual cases, the Ministry of Home Affairs will decide the cases on which the advice of the Commission should be obtained."

7. The said principle/OM dated 22.12.1959 was followed from time to time and ultimately vide OM dated 04.03.2014, it has been stipulated as under :-

"5[e] Initiation of recruitment process against a vacancy year would be the date of sending of requisition of filling up of vacancies to the recruiting agency in the case of direct recruits; in the case of promotees the date on which a proposal, complete in all respects, is sent to UPSC/Chairman-DPC for Patna High Court CWJC No.10669 of 2016 dt.[deleted] convening of DPC to fill up the vacancies through promotion would be the relevant date."

This OM was issued to all Ministries/Departments of Govt. of India. Therefore, though the Respondent Railways have their own sets of rules but as the Railway is one of the Ministries of Central Government, they should follow the general principle laid down by DoP&T or to make specific reference to them. Moreover, the principles of determination/fixation of seniority has been settled down by the Apex Court in the case of N.R.

Parmar[supra], which has to be followed by each and every ministry as per the DOP&T. Even if we accept that the Railways have other reasons to deviate from the general principles laid down by the DoP&T, in that case also it was the duty on the part of the Railways to refer the same for concurrence of the DOP&T and UPSC and to take their advice as per the OM dated 22.12.1959, which has not been done admittedly by the Railways as it transpires from the communication received under RTI from the UPSC as well as Railways own speaking orders.

8. The prayer of the applicant in the present case is based on the foundation of the principles laid down in the N.R. Parmar case. Thus, it is important to examine the context and the judgment of the N. R. Parmar case. The brief fact in N.R. Parmar case is that in the policy laid down in the circular dated 22.12.1959 referred to above for determining inter-se seniority between direct recruits and promotees, it was later found that there was a serious anomaly in that if some vacancy meant for Direct Recruits in a particular year remained unfilled, that vacancy was still counted in that year and even if Direct Recruits became available in subsequent years, they were treated against unfilled vacancy of the earlier year giving them unintended seniority over promotees/who might have been already working for a number of years. This was addressed by modifying the policy Patna High Court CWJC No.10669 of 2016 dt.[deleted] by DOPT OM dated 07.02.1986 (which provided that unfilled vacancies of Direct Recruits would be carried forward to the next year. The second ambiguity, which was addressed by the modification in 1986 was regarding uncertainty in the completion of the process of the selection from the two streams. In order to remove any arbitrariness or any unintended advantage or disadvantage to any stream because of procedural delays, it was provided that the vacancy year will be the relevant criteria for consideration. Once the process for DR was initiated in the vacancy year, no matter when the candidates became available, they will be counted against that vacancy year and rotation in the ratio of quota would be applicable with reference to the vacancy year. The policy also gave detailed illustration of slotting P1 [i.e. promotees], D1[DRs], P2, D2, etc. The 1959 policy as modified by 7.2. 1986 OM was consolidated into one circular dated 03.07.1996.

9. Thereafter, it so happened that a 'clarificatory' circular was issued on 03.03.2008, which created confusion. It was observed that this 'Clarification' nullified the main policy of 1959 as amended in 1986. In that context, the Hon'ble Supreme Court ruled in N. R. Parmar that a circular which is meant to 'clarify' a provision cannot abrogate or nullify the main instrument. Therefore, the circular dated 03.03.2008 was held to be non est to the extent that the same was in derogation of earlier OMs dated 07.02.1986 and 03.07.1986.

10. Thus, it is important to understand that N. R. Parmar affirms a policy made by the government intended to remove arbitrariness on account of the date, when completion of the process of either direct recruitment or promotion takes place. The reference to the year of requisition is always with reference to the vacancy year. This would be clear from para 22 of the Parmar's judgment, in which their Lordships have quoted the DOPT's O.N. dated Patna High Court CWJC No.10669 of 2016 dt.[deleted].12.1999 as follows :

"It is not necessary that the DR for 1987 vacancy should join in 1987 itself. It would suffice if action has been initiated for 1987 DR vacancies in 1987 itself. This is because, in a case of direct recruitment, if the administrative action in filing up the post by DR takes more than a year or so, the individual cannot be held responsible for such administrative delay and hence it would not be appropriate to deprive him of his due seniority for delay on the part of administration in completing this selection by Direct Recruitment."

11. Their Lordships have later analysed and summarized their own reasoning in which in sub-para [b] of the same para, they have observed "it would suffice if action has been initiated for DR vacancies within the recruitment year in which the vacancies had become available."

12. Finally, the Parmar's judgment led to DOPT OM dated 04.03.2014, in which the concluding para 7 is as follows :-

"7. As the conferment of seniority would be against the Recruitment Year in which the recruitment process is initiated for filling up of the vacancies, it is incumbent upon all administrative authorities to ensure that the recruitment process is initiated during the vacancy year itself. While requisition for filling up the vacancies for direct recruitment should be sent to the recruiting agency, complete in all respects, during the vacancy year itself, the timelines specified in the Model Calendar for DPCs contained in DoPT O.M. No. 22011/9/98-Estt[E] dated 08.09.1998 and the Consolidate Instructions on DPCs contained in O.M. No. 22011/5/86- Estt[E] dated April 10, 1989 should be scrupulously adhered to, for filling up the vacancies against promotion quota."

13. Thus, the issue of initiating the process [i.e.

sending the requisition to recruiting agency] always envisages initiation in the vacancy year itself. It is quite possible for an organization to initiate action a year prior to the vacancy year in case of direct recruitment knowing yhat the process takes at least a year. That would not confer the direct recruitees seniority with reference to the date of requisition.

The seniority has to be with reference to the vacancy year." Patna High Court CWJC No.10669 of 2016 dt.[deleted]

11. The respondent Railway authorities, in addition to the plea that they have own set of guidelines or rules for grant of promotion, also took an alternative plea that award of additional weightage to promotee officers because of their long experience in similar post is not unknown in service jurisprudence. Reliance was placed in the case of A. K. Nigam and Ors. Vs. Sunil Misra and Anr., reported in 1994 (Supp. 2) SCC 245. The CAT considered the stand of the respondents with regard to grant of weightage to the promotee officers and replied in the following terms :

"19. The applicant has in para 8.3 of his 'Reilef sought for' asked for direction to issue corrigendum/amendment/correction slip in the IREM Volume 1. Therefore, we feel obliged to examine the concerned provisions relation to inter-se seniority between DR and promotees from Group 'B'. The respondents have quoted the provisions of IAS [Regulation of Seniority] Rules, 1987 to draw a parallel. We cannot help observing that there is one obvious anomaly in the Railway policy, which can be a source of arbitrariness. In the IAS Regulations the reference is to 'year of allotment'. It is clearly defined that a direct recruit is given 'year of allotment' as the year following the competitive examination. When a State Civil Service Officer is promoted to lAS, he is given some weightage according to some formula and then assigned a 'year of allotment'. Thereafter, the promote officers en bloc rank below the direct recruits according to the 'year of allotment'. In this Scheme any vagaries or arbitrariness due to the date, Patna High Court CWJC No.10669 of 2016 dt.[deleted] when a process is completed is removed. In Railways, on the other hand, the reference to seniority and inter se seniority is on the basis of DITS. This is clearly subject to unintended delays in completion of the process of one stream or the other, or in the worst case, human manipulation. For example, in the present case the DITS of the direct recruits of IRSSE 2008 batch is 14.12.2009. The corresponding Group 'B' Officers were inducted into Group 'A' on 08.05.2014. After giving them five years' seniority, their DITS became 05.05.2009 and these 87 Group 'B' Officers en bloc are placed above the IRSSE 2008 Batch. These dates are fortuitous and subject to procedural delays or human intervention. If the policy in IAS Regulations cited by the respondents themselves in their WS is considered as the model, the IRSSE 2008 Examination batch will be given 2009 as the 'Year of Allotment'. The Group 'B' promotees of 2014, after giving five years seniority, would get 2009 as the 'Year of Allotment'. Accordingly, they would be paced en bloc below the DR of the IRSEE 2008 Examination. In this Scheme, there is no room for uncertainties when the DR recruits join, or when the promotion order of Group 'B' officers is issued. Therefore, the basic philosophy of N.R. Parmar of removing arbitrariness because of date on which an action is completed with respect to the two streams holds good in this case also. Policy making is within the domain of the Executive, but this has to be reasonable and rational. Since there is obvious scope for arbitrariness in the Railways policy, we have to intervene in judicial review. The Railways must align their policy in consonance with this fundamental philosophy of N.R. Parmar.

20. Another serious anomaly we find Patna High Court CWJC No.10669 of 2016 dt.[deleted] from the respondents' action is that while the ratio described for the DR and the promotees is 50:50, they have over the years inducted promotees about three times the number of direct recruits. In the representation before the Chairman, Railway Board, the applicant has shown that from the year 2001 to 2007 against 95 direct recruits, 376 promotees have been inducted. The Chairman, Railway Board has justified this on the ground that as per the government instructions, direct recruitment was curtailed to one-third for those years. Such government instructions cannot alter the basic principle of laid down ratio between the DR and promotees. If downsizing was the objective, this has to be done keeping the ratio between DR and promotees intact. To that extent, their decision runs counter to the underlying philosophy of N.R. Parmar."

12. The Tribunal, therefore, felt that the anomalous situation has arisen because the Railway failed to consult the DOP&T, which was a mandatory requirement. If the Railway wanted to have a separate set of Rules or guidelines for grant of promotion, a divergent policy cannot be taken by any department without due approval of the UPSC/DOP&T and there is an object behind such a requirement that is to instill reasonableness and rationality which are the basic principles which govern inter-se seniority.

13. The Tribunal, therefore, set aside the impugned orders dated 09/12.06.2015 (Annexure-A/8 of the OA) as well as Patna High Court CWJC No.10669 of 2016 dt.[deleted] order dated 12.12.2014 (Annexure-A/4 of the OA) since it was in teeth of the Hon'ble Apex Court judgment as well as the DOP&T OM and guidelines. A direction was issued to rework the seniority list in conformity with what the CAT had decided.

14. The present set of petitioners while assailing the order and decision of the CAT took a plea that Rule 334 to 341 of the Indian Railway Establishment Code was not taken into consideration. Such a Code is law by itself. The N.R. Parmar's decision (supra) or DOP&T OM have no applicability. The Railway is an independent organization and since they have their own set of rules in terms of the allocation of business rules of Government of India, the judgment and order of the CAT is flawed and required to be set aside. The statutory rules must prevail over executive instruction and since the Indian Railway Establishment Manual had been given a kind of statutory status, holding the same to be violative of OM dated 04.03.2014, has caused a serious illegality, which has a direct fall out upon the status and seniority position of the private respondents.

15. It was also urged on behalf of the petitioners that the Tribunal was in a kind of hurry. They were not given a fair opportunity of hearing and this too has affected their right of proper hearing and adjudication.

Patna High Court CWJC No.10669 of 2016 dt.[deleted]

16. Before dealing with the other aspect of the matter, the private respondents have filed a reply to the supplementary affidavit of respondent No.1, where they have said in paragraph 3 that these petitioners have not approached the High Court with clean hands. They have suppressed material facts in the writ application.

O.A. application of the private respondent was heard on 08.12.2015.

The intervention petition, which was M.A. No. 53 of 2016, was filed by these petitioners, which was allowed on 05.02.2016. The order was de-reserved and the O.A. was heard at length on 05.02.2016.

The Tribunal granted one week time to file written argument. These petitioners filed their written and detailed arguments beyond the period fixed by the Tribunal on 18.02.2016. All this was considered by the Tribunal and the judgment was rendered on 03.05.2016, but they have tried to create an impression as if the Tribunal was unfair to them and did not give them appropriate opportunity to assist and plead their case.

17. The argument on behalf of the private respondent is that proper legal provisions have not been brought to the notice of the Court. Rule 123 of the Railway Establishment Code, which is statutory in nature, and not Indian Railway Establishment Manual grants power to the Railway Board for recruitment etc. of Group-C and D posts. Rule 201 deals with appointment relating to Group-A, Patna High Court CWJC No.10669 of 2016 dt.[deleted] which is required to be carried out by the UPSC. Rule 205 lays down the method of recruitment. Rule 209 deals with promotion. Rule 219 deals with recruitment and Rule 217 deals with Group-C and D posts. The status of Indian Railway Establishment Code being statutory in nature can be culled out from the decision rendered in the case of The General Manager, South Central Railway, Secunderabad and Anr. Vs .A. V. R. Siddhantti and Ors., reported in AIR 1974 SC 1755, paragraph 31, being relevant, is reproduced hereinbelow:

"31. But what has been said above in regard to category (i) does not hold good in the case of the other two categories. Excepting that they were recruited by two different methods, in all other respects, these two categories were similarly situated. The mere fact that the names of persons in category

(ii) were borne on a list of candidates prepared by the Selection Board for recruitment to regular Departments, did not give them a right to preferential treatment qua those in category (iii) in the matter of absorption and seniority in such departments. We have perused Paras 302, 303 and 304 of the Indian Railway Establishment Manual, Chapter III, 2nd Edition, relied upon by Mr. Sanghi.

These are not statutory provisions (emphasis supplied). Even so, there is nothing in them to show that a person selected for a permanent department, by the Selection Board or Commission, gets a right to be appointed merely because of such selection and placement of his name on the select-list. He gets only a spec i.e. bare chance of appointment and that too if Patna High Court CWJC No.10669 of 2016 dt.[deleted] the appointing authority so desires and a vacancy is available for him. All that the said provisions say, in substance, is that after their appointment, their inter se seniority will be fixed with reference to their positions in the merit list prepared by the Selection Board."

18. Reliance in this regard was also placed to the case of Union of India (Railway Board) and others Vs. J.V. Subhaiah and others etc. etc., reported in (1996) 2 SCC

258.

Ajay Sethi
Advocate, Mumbai
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