Service Law – Seniority – Indian Railways Establishment Manual (IREM) – rr.327-341 – Indian Railway Service of Signal Engineers – Respondent-direct recruit challenged the seniority given to the promotee officers in Railways, as promotee officers were placed en bloc senior to all direct recruits – Direct recruit pleaded that the seniority of the direct recruits should be fixed from the date of sending of the requisition i.e. 23.10.2007 for the vacancies relating to the year 2009 – Plea was rejected by CAT which held that provisions of the IREM determining inter-se seniority based on ‘date of increment in the time scale (DITS)’ was flawed and arbitrary – High Court further held that circulars of the DoPT were binding on Railways, and IREM is not statutory in nature and are only 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’ and introduced the concept of ‘year of allotment’ – Direct recruit contended that action of Railways violated the order issued by the CAT and filed contempt petition before the CAT, which was dismissed – Writ petition filed by direct recruit – Writ Petition transferred to Supreme Court – Held: On perusal of the Government of India (Allocation of Business) Rules, 1961 framed u/cl. 3 of Art.77 of the Constitution, it is clear that 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 etc. and as such the DoPT could not have issued binding circulars upon Railways – Furthermore, IREM have statutory force as they are issued in exercise of powers vested under the proviso to Art.309 of the Constitution – The action of Railways in amending rules and bringing 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 criteria for determining the seniority was in no manner violative or against the order of the CAT – Insofar as seniority of the direct recruits from the date of sending requisition is concerned, in N. R. Parmar case it was 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 – In the instant case, the requisition of direct recruits 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 direct recruits were not entitled to promotion from the year 2007 – Constitution of India – Arts.77 and 309 – Indian Railways Establishment Code – Government of India (Allocation of Business) Rules, 1961 – cl.3.
Disposing of the matters, the Court
HELD: 1. A perusal of the Government of India (Allocation of Business) Rules, 1961 framed u/cl.3 of Article 77 of the Constitution of India leaves no manner of doubt that the Railways is specifically excluded from the ambit of the scope of business allocated to the Department of Personnel and Training (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. However, 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. [Para 20][326-H; 327-A-B]
2. 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. [Para 21] [327-C]
3. The Ministry of Railways has a set of codified rules known as the Indian Railways Establishment Code (IREC). 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. 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 Indian Railways Establishment Manual (IREM). Even the IREM are also issued under the proviso to Article 309 of the Constitution and as such they have the statutory force. [Paras 22, 23] [327-D-G]
4. Insofar as seniority of the direct recruits from the date of sending requisition is concerned, the judgment in N.R. Parmar’s case dealt with those situations where the process of either direct recruitment or promotions takes an unduly long time and 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. 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. [Paras 29 and 31] [330-H; 331-D]
5. Respondent-direct recruit contended that Railways by amending IREM rules 327-341 had violated the order issued by the CAT and thus committed contempt of order of the CAT. The CAT had 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. It was of the view that the IREM determining the inter se seniority based on DITS was clearly flawed and arbitrary. All that CAT held was that instead of the ‘DITS’ being the determining factor to 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 against the Railways holding that the entire discussion with reference to N.R. Parmar’s case 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. [Paras 31, 32] [331-D-F, H; 332-A-D]
Union of India v. N.R. Parmar & Ors. (2012) 13 SCC
340 : [2012] 13 SCR 555 – relied on.
A. K. Nigam v. Sunil Misra (1994) Suppl. 2 SCC
245 : [1994] 1 Suppl. SCR 127; P. Sudhakar Rao & Ors. v. U. Govinda Rao & Ors. (2013) 8 SCC 693 : [2013] 13 SCR 540 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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