PRABHAT RANJAN SINGH & ANR. versus R.K. KUSHWAHA & ORS.

[2018] 13 S.C.R. 313

PRABHAT RANJAN SINGH & ANR.

R.K. KUSHWAHA & ORS.

(Civil Appeal No.9176 of 2018)

SEPTEMBER 07, 2018

[MADAN B. LOKUR, S. ABDUL NAZEER ANDDEEPAK GUPTA, JJ.]

Service Law – Seniority – Indian Railways EstablishmentManual (IREM) – rr.327-341 – Indian Railway Service of SignalEngineers – Respondent-direct recruit challenged the seniority givento the promotee officers in Railways, as promotee officers wereplaced en bloc senior to all direct recruits – Direct recruit pleadedthat the seniority of the direct recruits should be fixed from the dateof sending of the requisition i.e. 23.10.2007 for the vacanciesrelating to the year 2009 – Plea was rejected by CAT which heldthat provisions of the IREM determining inter-se seniority based on‘date of increment in the time scale (DITS)’ was flawed andarbitrary – High Court further held that circulars of the DoPT werebinding on Railways, and IREM is not statutory in nature and areonly codified set of guidelines – Aggrieved, appellant filed appeal– During the pendency of the appeal in the Supreme Court,Railways amended the IREM rules 327-341 by removing ‘DITS’ andintroduced the concept of ‘year of allotment’ – Direct recruitcontended that action of Railways violated the order issued by theCAT and filed contempt petition before the CAT, which wasdismissed – Writ petition filed by direct recruit – Writ Petitiontransferred to Supreme Court – Held: On perusal of theGovernment of India (Allocation of Business) Rules, 1961 framedu/cl. 3 of Art.77 of the Constitution, it is clear that Railways isspecifically excluded from the ambit of the scope of businessallocated to the DoPT, whether it be for classification of posts,recruitment of ministerial staff etc. and as such the DoPT could nothave issued binding circulars upon Railways – Furthermore, IREMhave statutory force as they are issued in exercise of powers vestedunder the proviso to Art.309 of the Constitution – The action ofRailways in amending rules and bringing them in line with the

Ajudgment of the CAT by removing ‘DITS’ as the determining factorfor fixing seniority and introducing the ‘year of allotment’ ascriteria for determining the seniority was in no manner violative oragainst the order of the CAT – Insofar as seniority of the directrecruits from the date of sending requisition is concerned, inN. R. Parmar case it was laid down that the date of requisition forBfilling up the posts by particular recruitment process could betaken as the year to which seniority could be given to personsrecruited under that process – However, the Court also clearly laiddown that this would apply only if the recruitment year is the sameas the year of vacancy – In the instant case, the requisition of directCrecruits was sent in the year 2007, the vacancies related to the year2009 and therefore, the CAT as well as the High Court rightly heldthat direct recruits were not entitled to promotion from the year2007 – Constitution of India – Arts.77 and 309 – Indian RailwaysEstablishment Code – Government of India (Allocation of Business)Rules, 1961 – cl.3.D

Disposing of the matters, the Court

HELD: 1. perusal of the Government of India (Allocationof Business) Rules, 1961 framed u/cl.3 of Article 77 of theConstitution of India leaves no manner of doubt that the RailwaysEis specifically excluded from the ambit of the scope of businessallocated to the Department of Personnel and Training (DoPT),whether it be for classification of posts, recruitment of ministerialstaff, appointment of non-indians to civil posts, fixing of serviceconditions, including conduct rules, general policy regardingretrenchment and revision of temporary service of the RailwaysFetc., and as such the DoPT cannot issue binding circulars uponthe Railways. However, if the DoPT issues circular and theRailways specifically accepts the circular or makes it applicable,then such circular may apply but if the circular is not madespecifically applicable then it has no force so far as the RailwaysGand its employees are concerned. [Para 20][326-H; 327-A-B]

2. In the same Allocation of Business Rules, 1961 whileallocating business to the Ministry of Railways, power has beengiven to it to deal with all matters including those relating toRevenue and Expenditure. Therefore, the Ministry of Railways

has the power to lay down conditions of service for its employees.[Para 21] [327-C]

3. The Ministry of Railways has set of codified rulesknown as the Indian Railways Establishment Code (IREC). Asfar as the IREC is concerned, the same is notified under theproviso to Article 309 of the Constitution and is statutory innature. It is apparent from bare reading of the Allocation ofBusiness Rules, 1961, that the service conditions of theemployees of the Railways are governed by the rules framed bythe Railways which will not only include the IREC but also theIndian Railways Establishment Manual (IREM). Even the IREMare also issued under the proviso to Article 309 of the Constitutionand as such they have the statutory force. [Paras 22, 23][327-D-G]

4. Insofar as seniority of the direct recruits from the dateof sending requisition is concerned, the judgment in N.R.Parmar’s case dealt with those situations where the process ofeither direct recruitment or promotions takes an unduly long timeand 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 accountof the fortuitous date of appointment. In certain cases, theprocess of recruitment by particular mode would start muchearlier but for extraneous reasons, selection by one mode wouldbe very quick and slow by the other mode. Therefore, toeliminate this anomaly and reduce arbitrariness, this Court laiddown that the date of requisition for filling up the posts by aparticular recruitment process could be taken as the year to whichseniority could be given to persons recruited under that process.However, the Court also clearly laid down that this would applyonly if the recruitment year is the same as the year of vacancy. Itis obvious that neither the promotees nor the direct recruits canbe given seniority from year when such vacancies do not evenexist. The Court also laid down that the administrative authorityshould ensure that recruitment process should be initiated duringthe vacancy year itself. In the present case though the requisitionwas sent in the year 2007, the vacancies related to the year 2009and, therefore, the CAT as well as the High Court rightly held

Athat the direct recruits were not entitled to promotion from theyear 2007. [Paras 29 and 31] [330-H; 331-D]

5. Respondent-direct recruit contended that Railways byamending IREM rules 327-341 had violated the order issued bythe CAT and thus committed contempt of order of the CAT. TheBCAT had only ordered that the arbitrariness which may arise dueto fixation of ‘DITS’ be removed by fixing the ‘year of allotment’as the relevant criteria. It was of the view that the IREMdetermining the inter se seniority based on DITS was clearlyflawed and arbitrary. All that CAT held was that instead of the‘DITS’ being the determining factor to determine the year ofCpromotion, the seniority would be determined with reference tothe ‘year of allotment’ following the principle of IAS Rules. TheCAT rightly dismissed the contempt petition against the Railwaysholding that the entire discussion with reference to N.R. Parmar’scase was regarding removing the arbitrariness due to ‘DITS’ andDbringing it in line with the concept of vacancy year/allotment yearwhich does away with the problem. Thus the CAT itself has clearlyheld that it had not at all dealt with the issue whether promoteeswere not entitled of being granted weightage of 5 years servicefor determining the seniority. This question never arose beforethe Tribunal and as such the action of the Railways in amendingEthe Rules to bring them in line with the judgment of the CAT byremoving ‘DITS’ as the determining factor for fixing seniorityand introducing the ‘year of allotment’ as the criteria fordetermining the seniority can in no manner be said to be violativeor against the order of the CAT. In fact, the said order is totallyFin line with the order of the CAT. [Paras 31, 32] [331-D-F, H;332-A-D]

Union of India v. N.R. Parmar & Ors. (2012) 13 SCC340 : [2012] 13 SCR 555 – relied on.

A. K. Nigam v. Sunil Misra (1994) Suppl. 2 SCCG245 : [1994] 1 Suppl. SCR 127; P. Sudhakar Rao &Ors. v. U. Govinda Rao & Ors. (2013) 8 SCC 693 :[2013] 13 SCR 540 – referred to.

CIVIL APPELLATE/ORIGINAL JURISDICTION : Civil AppealNo. 9176 of 2018.

From the Judgment and Order dated 12.05.2017 of the High Courtof Judicature at Patna in Civil Writ Jurisdiction No. 10669 of 2016

WITH

Contempt Petition (C) No. 717 of 2018 in SLP (C) No. 22444 of2017, Contempt Petition (C) No. 732 of 2018 in SLP (C) No. 22444 of2017, S.L.P. (C) No.4144 of 2018 and T.C. (C) No. 52 of 2018.

Maninder Singh, ASG, P.S. Patwalia, Guru Krishna Kumar,Ms. Kiran Suri, Sr. Advs., Vikas Mehta, Ms. Anushree Menon,Ms. Shashi M. Kapila, Ms. Harshika Verma, Pravesh Sharma, NikhilRohatgi, Shashank Khurana, Ms. Ranjeeta Rohatgi, Ms. Samten Doma,Ms. Pragya Baghel, R. Balasubramanian, Ms. Sushma Verma,Ms. Kanika Saran, Raj Bahadur Yadav, Prabhas Bajaj, Mrs. Anil Katiyar,Subhro Sanyal, Gaurav Goel, Advs. for the appearing parties.

The Judgment of the Court was delivered by

DEEPAK GUPTA J. 1. Leave granted in appeal arising out ofSLP (C) No(s). 22444 of 2017.

2. This is yet another battle, in the seemingly never ending warbetween promotees and direct recruits.

3. In the Indian Railways, there is service known as the IndianRailway Service of Signal Engineers (for short ‘the IRSSE’). This is aGroup-A service. Recruitment to the service is by two modes – 50% bydirect recruitment and 50% by promotion from amongst Group-B officersin the feeder services. The direct recruits are selected through anexamination conducted by the Union Public Service Commission (forshort ‘the UPSC’).

A4. On 23.10.2007, the Ministry of Railways issued requisition tothe UPSC for filling up vacancies in the Group-A service. The test wasto be conducted in the year 2008 and the recruitment was known as theEngineering Services Examination, 2008. Shri R.K. Kushwaha,hereinafter referred to as ‘the direct recruit’, was successful in the saidexamination. He was duly selected and joined service on 14.12.2009.BSome officers, who were working in the Group-B service of the Signaland Telecommunication Department of the Indian Railways werepromoted vide order dated 12.08.2014 to Group-A service with effectfrom 08.05.2014. These officers were given benefit of weightage of 5years of service rendered in Group-B service in terms of Rule 334 ofCthe Indian Railways Establishment Manual (for short ‘the IREM’), Vol.1and their relevant date for fixation of seniority was fixed as 08.05.2009.5. The relevant portion of the order dated 12.12.2014 fixing theseniority of the 87 promotee officers reads as follows:

“2.All the 87 officers will be placed in the seniority list below theDjunior most direct recruit (DR) IRSSE officer of EngineeringService Examination (ESE) 2007 batch (earliest date of joining15.12.2008), and above the senior most Direct Recruit IRSSEofficers of Engineering Service Examination of 2008 batch (earliestjoining 14.12.2009), whose inter-se seniority has already beenEcirculated.”Resultantly the promotee officers were placed en bloc senior toall the direct recruits.

6. Shri R.K. Kushwaha, direct recruit, filed O.A. No. 050/00260/2015 before the Patna Bench of the Central Administrative Tribunal (forFshort ‘the CAT’) challenging the seniority given to the promotee officersvide order dated 12.12.2014. The petition was disposed of vide orderdated 01.04.2015 directing the Chairman of the Railway Board to considerthe representation of Shri R.K. Kushwaha dated 19.03.2015 within aperiod of two months. The Chairman vide speaking order datedG09.06.2015 rejected the plea of Shri R.K. Kushwaha to fix the seniorityof the direct recruits from the date of sending of the requisition.According to the Chairman, the seniority of the Junior Scale, Group-Aofficers of the eight organised railway services including the IRSSEwas to be fixed in terms of the provisions contained in the IREM Vol-1which had the approval of the President under Article 309 of theHConstitution of India.

7. Shri R.K. Kushwaha thereafter filed fresh O.A. being O.A.No. 460 of 2015 claiming the following reliefs :

“8.1 That your Lordships may graciously be pleased to quash andset aside the impugned orders dated 09/12.06.2015 passed bythe Respondent No.1 together with order dated 12.12.2014passed by the respondent No. 4 as contained in AnnexureA/8 and A/4 respectively which are contrary to the orderpassed by Hon’ble Supreme Court of India in NR ParmarCase and DOPT OM dated 04.03.2014 as referred to above.

8.2 That your Lordships may further be pleased to direct therespondents to recast the seniority list afresh on the basis ofprinciple laid down by Hon’ble Supreme Court of India in NRParmar Case and DOPT OM dated 04.03.2014 as referredto above without any further delay.

8.3 That the Respondents further be directed to issue Corrigendum/amendment/Correction slip in Indian Railway EstablishmentManual Volume-1, henceforth in view of new Guidelines/directives of DOPT OM dated 04.03.2014 as contained inAnnexure A/11 which is based on the principle/law laid downby the Hon’ble Supreme Court of India in NR Parmar Caseregarding fixation of inter-se-seniority between DirectRecruitees and Promotees Officers.

8.4 That the Respondents further be directed grant all consequentialbenefits in favour of the applicant including promotion in JAGrade on the basis of his seniority as per the principle laiddown by Hon’ble Supreme Court of India in NR Parmar Caseand DOPT OM dated 04.03.2014 as referred to above.

8.5 Any other relief or reliefs including the cost of the proceedingmay be allowed in favour of the Applicant.”

8. It would be pertinent to mention that none of the promoteeofficers was made party in this O.A.. Arguments were heard andjudgment was reserved in the matter. Thereafter, Shri Prabhat Ranjan,who was promotee and also the General Secretary of East CentralRailway Promotee Officers Association, East Central Railway at Hajipurfiled an application for impleadment. The application was taken up on05.02.2016 and the same was allowed. The judgment which had been

Areserved for pronouncement was de-reserved and on the same day, theCAT heard all the parties and again reserved judgment. Liberty, however,was given to the parties to file written arguments. The CAT vide itsorder dated 03.05.2016 partly allowed the O.A. It rejected the prayerof Shri R.K. Kushwaha that the direct recruits were entitled to getseniority from 23.10.2007 the date on which the requisition for filling upBthe direct vacancies was sent, on the ground that the case of Union ofIndia vs. N.R. Parmar & Ors.[1] was not applicable in as much as thereference to the year of requisition is always with reference to thevacancy year. If the vacancies are notified well in advance and requisitionmade earlier to arising of the vacancies, the direct recruits cannot get orCclaim benefit of seniority from the date of requisition.

9. The case of the direct recruit was that the principle laid downin N.R. Parmar’s case (supra) had been recognized and implementedby the Department of Personnel and Training (for short ‘the DoPT’) inits circular dated 04.03.2014. As per him, since requisition was issuedDon 23.10.2007, he should be granted seniority from the said date. TheCAT held that the case of the direct recruit that he should be givenseniority from 23.10.2007 is not acceptable.

10. In our view, this was, in fact, the only relief claimed by thedirect recruit in his O.A. and the matter should have ended there.EHowever, the CAT went on to examine the speaking order passed bythe Chairman, Railway Board dated 09.06.2015 and examined the samein the context of the DoPT circular dated 04.03.2014 and the judgmentof this Court passed in the N.R. Parmar’s case (supra).

11. The case of the Railways as well as the present appellant,Fwho was the intervener in the O.A. was that their seniority had to befixed in terms of the IREM Vol-1, which provided that the promoteeswere to be given maximum of 5 years weightage in terms of Rules 327to 341. It is not necessary to extract all the rules. It would suffice tonote that Rule 328 provided that the seniority of officers appointed tovarious Group-A services in the Indian Railways shall be determined onGthe basis of ‘date of increment in the time scale (DITS)’ which is to bedetermined in accordance with certain laid down principles. In the caseof direct appointment, pursuant to an examination conducted by theUPSC, the DITS is to be reckoned from the date of commencement ofearning increments in the regular scale. Rule 334 provides that in caseH1(2012) 13 SCC 340

of Group-B officers permanently promoted to Group-A services, theDITS of the above officers would be determined by giving weightage.The said rule reads as follows:

“334 In the case of Group ‘B’ officers permanently promoted toJunior Scale of Group ‘A’ services:

(1) xxxxxx xxx

(2) If two or more than two officers are promoted on the samedate, the following method shall be followed to determine theirinter-se seniority within the Railway:-

(i) The relative seniority of officers of each Railway shall be inthe order of their position in the panel for that Railway.

(ii) The DITS of the above officers, shall be determined by givingweightage based on:

(a) the year of service connoted by the initial pay on permanentpromotion to Group ‘A’ service; or

(b) half the total number of years of continuous service inGroup ‘B’, both officiating and permanent;

whichever is more, subject to maximum of 5 years; providedthat the weightage so assigned does not exceed the totalnon-fortuitous service rendered by the officer in Group ‘B’.”

12. Before the CAT, it was urged by the Railways and theintervener that N.R. Parmar’s case (supra) was not applicable becauseweightage of 5 years, as additional years of seniority was to be given tothe promotees and in this behalf reference was also made to the IndianAdministrative Service (IAS) (Regulations of Seniority) Rules, 1987wherein also State Civil Service Officers who are inducted into the IASare given some weightage while fixing their ‘year of allotment’. TheCAT held that in the scheme of IAS any vagaries or arbitrariness due tothe date when the recruitment process is completed is removed whereasin the railways reference to seniority and inter se seniority on the basisof DITS is subject to unintended delays in the completion of onerecruitment process or the other and this may even be due to humanmanipulation. The relevant portion of the order dated 03.05.2016 of theCAT reads as follows:

“19…….Therefore, the basic philosophy of NR Parmar ofremoving arbitrariness because of date on which an action iscompleted with respect to the two streams holds good in this casealso. Policy making is within the domain of the Executive, but thishas to be reasonable and rational. Since there is obvious scopefor arbitrariness in the Railways policy, we have to intervene injudicial review. The Railways must align their policy in consonancewith this fundamental philosophy of N.R. Parmar.

20. Another serious anomaly we find from the respondents actionis that while the ratio described for the DR and the promotees is50:50, they have over the years inducted promotees about threetimes the number of direct recruits. In the representation beforethe Chairman, Railway Board, the applicant has shown that fromthe year 2001 to 2007 against 95 direct recruits, 376 promoteeshave been inducted. The chairman, railway Board has justifiedthis on the ground that as per the government instructions, directrecruitment was curtailed to one-third for those years. Suchgovernment instructions cannot alter the basic principle of laiddown ratio between the DR and promotes. If downsizing wasthe objective, this has to be done keeping the ratio between DRand promotees intact. ……..

21.xxx

xxxxxx

22. Thus, the provisions of the IREM determining inter se senioritybased on DITS are clearly flawed and arbitrary. Accordingly, wequash and set aside the impugned orders dated 9/12.6.2015(Annexure A/8) and date 12.12.2014 (Annexure A/4) beingcontrary to the underlying principle emerging from the Hon’bleApex Court judgment in N.R. Parmar case as well as DOPTguidelines in this regard, which mandate that wherever it isconsidered necessary to follow different principles for inter seseniority, consultation should be made with the DOPT. Therespondent are directed to recast the seniority afresh and takenecessary action to make corrections in the IREM in the light ofthe aforesaid observations within period of four months fromthe date of receipt/production of copy of this order.”

13. Shri Prabhat Ranjan Singh challenged the order of the CATbefore the Patna High Court by filing Writ Petition No. 10669 of 2016

along with one Shri Girish Kumar. This petition was dismissed videorder dated 12.05.2017 and one of the main grounds for dismissal of thepetition was that the circular of the DoPT dated 04.03.2014 was bindingon the Railways. The Patna High Court went on to hold that the IREMis not statutory in nature and is only codified set of guidelines. It furtherwent on to hold that the power of the Railways to frame rules underRule 201 of the Indian Railway Establishment Code (for short ‘IREC’),which is statutory in nature, is only confined to Group-C and Group-Dposts. Therefore, the Railways are bound by the OM issued by theDoPT. This judgment has been challenged by Shri Prabhat Ranjan Singh.

14. It would also be pertinent to mention that pursuant to thedirection issued by the CAT on 03.05.2016, the Railways amended Rules327 to 341 of the IREM Vol-1 by removing reference to ‘DITS’ andintroduced the concept of ‘year of allotment’. According to the Railways,as per the amended rules inter se seniority between direct recruits andpromotees shall be determined and fixed on the basis of ‘year of allotment’and not on the basis of ‘DITS’. The amendment is applicable in allcases of fixation of inter se seniority of promotee officers from thepanel of 2012-2013 onwards and for Direct Recruit 2006 examinationonwards. Thereafter, the seniority has been re-fixed and only thepromotee officers, who have been allotted 2008 as the ‘year of allotment’have been given seniority over the direct recruits and those promoteeofficers who have been allotted 2009 as the year of allotment have beenranked en bloc junior to the direct recruits of the year 2009. Thus, theanomaly pointed out by the CAT has been removed and the systemwhich is followed in the IAS is being applied even in the Railways.

15. This development took place on 05.03.2018, during thependency of this petition. According to the direct recruits, the action ofthe Railways in placing some of the promotee officers above the directrecruits was violative of the order of the CAT and they, accordingly filedcontempt petition no. 050/00070/17 before the CAT which was dismissedvide order dated 02.04.2018. The CAT held that in its order the referenceto N.R. Parmar’s case (supra) was regarding removing the arbitrarinessdue to ‘DITS’ and bringing it in line with the concept of ‘vacancy year/allotment year’, which does away with the problem and the revisedpolicy after amendment fixes the ‘allotment/vacancy year’ for fixing theseniority and not ‘DITS’. It also held that since this Court is seized of

CDE

Athe matter, the parties can place their grievance regarding the legality ofthe revised policy before us. The contempt petition was dismissed.

16. Aggrieved by the order of the CAT, the direct recruit filedwrit petition being CWJC No. 6489 of 2018 (R.K. Kushwaha v. Unionof India & Ors.) before the Patna High Court for quashing/setting asideBthe order dated 02.04.2018 passed in the contempt petition. Vide orderdated 03.05.2018, we have transferred the aforesaid writ petition to thisCourt.

17. We have heard learned counsel for the parties. Before usShri P.S. Patwalia, learned senior counsel for the appellant (PrabhatCRanjan Singh) submitted that the petition has been rendered infructuousin view of the amendment to Rules 327 to 341 of the IREM Vol-1. He,however, submitted that the observations made by the CAT and theHigh Court that the DoPT circulars are binding on the Railways and thatthe observations of the Patna High Court that IREM has no statutoryforce are wrong and are liable to be set aside. On the other hand, ShriDMukul Rohatgi and Shri Guru Krishna Kumar, learned senior counselappearing for the direct recruits submitted that the IREM, which providedfor giving weightage in seniority to the promotees, was set aside by theCAT. Therefore, by still continuing to give weightage to the promoteesthe contemnors have committed contempt of order of the CAT. It hasEalso strenuously been urged before us that the rules which provide forgiving weightage to the promotee officers are totally illegal and arbitrary.Shri Maninder Singh, learned Additional Solicitor General submitted thatthe Railways are empowered to frame their own rules. According tohim, even the IREMs are issued with the concurrence of the Presidentof India in terms of Article 309 of the Constitution of India and framedFunder the Constitution of India.

18. In our view, the following issues arise for decision:

I Whether the Railways is bound by the rules framed by theDoPT or it can frame its own rules and whether the IREM hasstatutory force?

II Whether Shri R.K. Kushwaha, the direct recruit had laidchallenge to the rules, which provide for giving weightage inthe seniority to the promotee officers?

III Whether the findings of the CAT in respect of N.R. Parmar’scase (supra) was limited to removing the arbitrariness only inrespect of ‘DITS’?

IV Whether by issuing the memorandum dated 05.03.2018amendment/modifying rules 327-341 the Railways have violatedthe order issued by the CAT?

I Whether the Railways is bound by the rules framed bythe DoPT or it can frame its own rules and whether theIREM has statutory force?

19. The CAT, in its order, held that the Railways are bound by theDoPT circulars. The High Court of Patna has gone further and hascome to the conclusion that the Railways have no jurisdiction to framerules for Group & services. The High Court has further held thatthe IREM rules are not statutory in nature and are only guidelines havingno binding force. On the other hand learned senior counsel for the UOIhas drawn our attention to the Government of India (Allocation ofBusiness) Rules 1961 framed under Clause 3 of Article 77 of theConstitution of India. Under these Rules business has been allocated todifferent departments. As far as the DoPT is concerned the relevantportion reads as under:-

“I. RECRUITMENT, PROMOTION AND MORALE OFSERVICES

1. ........

2. General questions relating to recruitment, promotion andseniority pertaining to Central Services except Railways Servicesand services under the control of the Department of Atomic Energy,the erstwhile Department of Electronics, the Department of Spaceand the Scientific and Technical Services under the Departmentof Defence Research and Development.

3. ...........

4. General policy matters regarding classification of posts andgrant of gazetted status in relation to Services other than RailwayServices.

5. Recruitment of ministerial staff for the Government of IndiaSecretariat and its attached offices except that for theDepartment of Railways, the Department of Atomic Energy, theerstwhile Department of Electronics, and the Department ofSpace.

B6. Appointment of non-Indians to Civil posts under the Governmentof India except posts under the Department of Railways, theDepartment of Atomic Energy, the erstwhile Department ofElectronics and the Department of Space.

xxx xxxxxx

IV.SERVICE CONDITIONS

21. General questions (other than those which have financialbearing including Conduct Rules relating to All India and UnionPublic Services except in regard to services under the controlof the Department of Railways, the Department of AtomicEnergy, the erstwhile Department of Electronics and theDDepartment of Space).

22. Conditions of service of Central Government employees(excluding those under the control of the Department ofRailways, the Department of Atomic Energy, the erstwhileDepartment of Electronics, the Department of Space and theEScientific and Technical personnel under the Department ofDefence Research and Development, other than those having afinancial bearing and in so far as they raise points of general serviceinterest).

23(a) – (d) …............

F24.................

25.................

26.................

27. General policy regarding retrenchment and revision oftemporary Government servants except those under theGDepartment of Railways.”

xxx xxx xxx

20. perusal of the Allocation of Business Rules, 1961, especiallythe highlighted portion leaves no manner of doubt that the Railways is

specifically excluded from the ambit of the scope of business allocatedto the DoPT, whether it be for classification of posts, recruitment ofministerial staff, appointment of non-indians to civil posts, fixing of serviceconditions, including conduct rules, general policy regarding retrenchmentand revision of temporary service of the Railways etc., and as such theDoPT cannot issue binding circulars upon the Railways. We may makeit clear that if the DoPT issues circular and the Railways specificallyaccepts the circular or makes it applicable, then such circular mayapply but if the circular is not made specifically applicable then it has noforce so far as the Railways and its employees are concerned.

21. In the same Allocation of Business Rules, 1961 while allocatingbusiness to the Ministry of Railways power has been given to it to dealwith 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 set of codified rules known asthe Indian Railways Establishment Code (IREC). It is not disputed beforeus that as far as the IREC is concerned the same is notified under theproviso to Article 309 of the Constitution and is statutory in nature.However, it has been urged on behalf of the direct recruits that IREMdoes not have any statutory force. It would also be pertinent to mentionthat the DoPT itself has issued office memorandum dated 16.02.2018stating that the matters relating to recruitment, promotion & seniority inrespect of Ministry of Railways do not fall within the jurisdiction of theDoPT. We need not refer to all the documents referred to because it isapparent from bare reading of the Allocation of Business Rules, 1961,that the service conditions of the employees of the Railways are governedby the rules framed by the Railways which will not only include theIREC but also the IREM.23. Even with regard to the IREM it has been urged by the learnedASG that these rules and the various modifications/amendments issuedfrom time to time to the IREM are also issued under the proviso toArticle 309 of the Constitution and as such they have the statutory force.

24. We have gone through the various communications with regardto the IREM and find that all of them make mention that they havebeen issued in exercise of powers conferred by proviso to Article 309 ofthe Constitution. We may specifically refer to only one document, i.e.,

Aamendment to the IREM Rules 327 to 341 made in pursuance to thejudgment delivered by the CAT on 03.05.2016. The relevant portion ofthe communication reads as follows:-

“.........

In exercise of the powers conferred by the proviso to ArticleB309 of the Constitution the President have further decided thatprinciples for inter-se-seniority of Direct Recruit Group ‘A’ officersand promotee Group ‘B’ officers inducted into Group ‘A’ JuniorScale effective from the panel year 2012-13, stands modified/amended as per Annexure-I.

C.........”

This leaves no manner of doubt that the rules under IREM Vol.1are also statutory rules.

25. In view of the above, there can be no manner of doubt thatthe Railways is not bound by the memorandum issued by the DoPT andDare empowered to frame its own rules to lay down the service conditionsof its employees. We also hold that the IREM has statutory force andhas been issued in exercise of powers vested under the proviso to Article309 of the Constitution.

II Whether Shri R.K. Kushwaha, the direct recruit hadElaid challenge to the rules, which provide for giving weightage inthe seniority to the promotee officers?

26. As far as the second question is concerned we may note thatwe have already quoted the prayer clause of OA No.460 of 2016 filedbefore the CAT. In the said OA there is not even whisper of challengeFto the policy of giving weightage to the promotees. In fact that issuewas not raised before the CAT. The case set up by the direct recruitsbefore the CAT was that since the requisition for recruitment had beenissued on 23.10.2007, they should be granted seniority from that date inview of the judgment rendered by this Court in N.R. Parmar’s caseG(supra) read with DoPT OM dated 04.03.2014. It has been urged byShri Guru Krishna Kumar, learned senior counsel appearing for the directrecruit that prayer 8.3 in which it is prayed that corrigendum/amendment/corrections slip be issued in IREM Volume-I is itself prayer to quashthe said IREM. We are unable to accept this contention. If the direct

recruit wanted to lay challenge to the policy of giving weightage topromotees then the basis for the challenge had to be made in the originalapplication and the rule granting such weightage had to be specificallychallenged in the prayer clause. The promotees who were liable to beaffected should have been arrayed as respondents. Such challengecannot be entertained from the back door by merely alleging thatcorrigendum/ amendments/corrections to the IREM be issued. Neitherthe corrigendum, nor the amendment or the corrections could result inthe quashing of rule granting weightage. Furthermore, if prayer 8.3 isread as whole, what is prayed is that the correction be made with aview to bring the IREM in line with DoPT OM dated 04.03.2014, whichis 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 filedby Shri R.K. Kushwaha has been produced in which the main case setup 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 datefrom which the direct recruits should be granted their seniority. Thefollowing averments made by Shri Kushwaha in para 4.3. of his OA arerelevant:-

“.........

4.3 That in this regard it is submitted that while the applicant wasworking in Group-A service of IRSSE, several Group-B officersi.e. 87 in number has been promoted/inducted in Group-A serviceof IRSSE vide order dated 12.08.2014 for the panel year 2012-13and 2013-14 w.e.f 08.05.2014, hence such promote officers areentitled to get the benefit of seniority w.e.f 08.05.2009 after givingweightage of 05 years whereas the applicant being DirectRecruitee is entitled to get the benefit of seniority w.e.f 23.10.2007i.e. from the date of requisition for filling up the vacancies ofGroup-A service in view of the decision given by the Hon’bleSupreme Court of India in the case of Union of India Vs NRParmar in which the issue of seniority in between Direct Recruiteeand Promotees have been settled on 27.11.2012 against whichthe Union of India has also filed Civil Review and the same hasbeen dismissed on 07.08.2013. .........”

A28. This leaves no manner of doubt that the only case set up bythe 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 wassent and the promotees after being given due weightage of 05 yearswere entitled to seniority w.e.f. 08.05.2009. Therefore, he cannot nowurge that he had laid challenge to the rule providing for grant of weightageBto the promotees.

III Whether the findings of the CAT in respect of N.R.Parmar’s case (supra) was limited to removing the arbitrarinessonly in respect of ‘DITS’?

C29. Before dealing with this issue we may note that we are not atall in agreement with the interpretation sought to be given by the directrecruits to the decision rendered in N.R. Parmar’s case (supra), thatthey are entitled to seniority from the date of requisition. On perusalof the judgment in N.R. Parmar’s case (supra), we find that in thatcase this Court was dealing with those situations where the process ofDeither direct recruitment or promotions takes an unduly long time. Asper the then existing rules, the persons so appointed/promoted would getseniority from the date when they joined. This Court found that thiscould lead to arbitrariness on account of the fortuitous date of appointment.In certain cases, the process of recruitment by particular mode wouldEstart much earlier but for extraneous reasons, selection by one modewould be very quick and slow by the other mode. Therefore, to eliminatethis anomaly and reduce arbitrariness, this Court laid down that the dateof requisition for filling up the posts by particular recruitment processcould be taken as the year to which seniority could be given to personsrecruited under that process. However, the Court also clearly laid downFthat this would apply only if the recruitment year is the same as the yearof vacancy. It is obvious that neither the promotees nor the directrecruits can be given seniority from year when such vacancies do noteven exist. The Court also laid down that the administrative authorityshould ensure that recruitment process should be initiated during theGvacancy year itself.

30. In this behalf, we may make reference to the followingobservations of this Court in the case of N.R. Parmar (supra) :

“34.1. If the process of recruitment has been initiated during therecruitment year (in which the vacancies have arisen) itself, even

if the examination for the said recruitment is held in subsequentyear, and the result is declared in year later (than the one inwhich the examination was held), and the selected candidatesjoined in further later year (than the one in which the result wasdeclared), the selected candidates will be entitled to be assignedseniority, with reference to the recruitment year (in which therequisition of vacancies was made). The logic and reasoning forthe aforesaid conclusion (expressed in the ON dated 2-2-2000)is, if the process of direct recruitment is initiated in the recruitmentyear itself, the selected candidate(s) cannot be blamed for theadministrative delay, in completing the process of selection.

34.2. The words “initiation of action for recruitment”, and thewords “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 year2007, the vacancies related to the year 2009 and, therefore, the CAT aswell as the High Court rightly held that the direct recruits were notentitled to promotion from the year 2007. The CAT only ordered thatthe arbitrariness which may arise due to fixation of ‘DITS’ be removedby fixing the ‘year of allotment’ as the relevant criteria.

IV Whether by issuing the memorandum dated 05.03.2018amendment/modifying rules 327-341 the Railways have violatedthe order issued by the CAT?

32. We have quoted the order of the CAT hereinabove and whatthe CAT ordered was that the IREM determining the inter se senioritybased on DITS was clearly flawed and arbitrary. The order dated09.06.2015 and 12.12.2014 were quashed and set aside being violativeof the judgment of this Court in N.R. Parmar’s case (supra) and theDoPT guidelines. As held above there was no challenge to Rule 334which provides for giving weightage to the promotees. This Rule wasnot challenged directly or indirectly and the CAT has not at all dealt withthis Rule. We may add that an identical rule has been held to be valid bythis Court in A.K. Nigam vs. Sunil Misra[2]. This judgment has beennoted by the CAT and yet the CAT did not discuss this judgment. It isobvious that the CAT did not go into the validity of Rule 334. All that theCAT held was that instead of the ‘DITS’ being the determining factor to

Adetermine the year of promotion, the seniority would be determined withreference to the ‘year of allotment’ following the principle of IAS Rules.The CAT rightly dismissed the contempt petition holding that the entirediscussion with reference to N.R. Parmar’s case (supra) was regardingremoving the arbitrariness due to ‘DITS’ and bringing it in line with theconcept of vacancy year/allotment year which does away with theBproblem. Thus the CAT itself has clearly held that it had not at all dealtwith the issue whether promotees were not entitled of being grantedweightage of 5 years service for determining the seniority. This questionnever arose before the Tribunal and as such the action of the Railwaysin amending the Rules to bring them in line with the judgment of the CATCby removing ‘DITS’ as the determining factor for fixing seniority andintroducing the ‘year of allotment’ as the criteria for determining theseniority can in no manner be said to be violative or against the order ofthe CAT. In fact, the said order is totally in line with the order of theCAT.D33. We may add that lengthy arguments have been addressed onbehalf of the direct recruits contending that the rule which provides thatweightage be given to the promotees is arbitrary and in this regardreference has been made to the judgment of this Court in P. SudhakarRao & Ors. vs. U. Govinda Rao & Ors[3] and it is urged that in view ofthis judgment the decision of this Court in A.K. Nigam’s case (supra) isEno longer good law. On the other hand both the learned ASG and thesenior counsel for appellants have urged that A.K. Nigam’s case (supra)still holds the field as P. Sudhakar Rao’s case (supra), was casedecided in fact scenario where there was no provision for grantingsuch weightage. It was also urged that the practice of giving weightageFto the promotees in the Railways has been in vogue since 1955 and therailways has justified its action of giving weightage to the promotees byurging that the promotees are doing the same work in the lower post asis being done by them after promotion. Therefore, there is no change inthe nature of their work after promotion and the benefit of weightage is

given for the experience which they have got for doing such work. ItGhas also been urged that most of the promotees are already getting higheremoluments than are payable to the direct recruits on their induction andthis is also 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 693H

was no challenge to Rule 334 in the original application and such achallenge cannot be countenanced or entertained either in contemptproceedings or on behalf of the respondents while defending the appealin this Court. We make it clear that we have not expressed any opinionon 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 thedirect recruits have challenged these rules. We are therefore not goinginto other issues raised by the parties.

35. We dispose of the appeal by holding that the CAT had onlydirected that instead of ‘DITS’, the ‘year of allotment’ should be thedetermining factor/criteria for determining the inter se seniority. Wefurther hold that there was neither any challenge to Rule 334 of theIREM 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 recruitMr. R.K. Kushwaha. Consequently, the Transferred CaseNo. 52/2018 i.e. Writ Petition being CWJC No. 6489/2018 before thePatna High Court is dismissed.

36. Applications for intervention/impleadment are rejected.

37. The contempt petitions and all pending applications shall alsostand disposed of.

SLP (C) NO(S). 4144 OF 2018

38. This petition is directed against the interim order dated29.01.2018 passed by the High Court of Madhya Pradesh, PrincipalBench at Jabalpur in Writ Petition No. 299 of 2018. The petition itselfhas been finally disposed of by the High Court vide order dated 20.03.2018and, therefore, this petition is rendered infructuous and disposed of assuch.

Ankit Gyan

Matters disposed of.