ition Civil No 11704 of 1985 etc
Under Article 32 of the Constitution of India
RP Gupta for the Petitioners
VC Mahajan Ms A Subhashini BK Prasad C Ramesh and Hemant Sharma for the Respondents
The Judgment of the Court was delivered by RANGANATHAN J
These two writ petitions were filed as 452 early as 1985 but they are still at the admission stage
However notices have been issued to the respondents and we have heard counsel on both sides
As both the writ petitions relate to the same subject matter it will be convenient to dispose of them by a common order and we proceed to do so
The controversy in these writ petitions is as to the proper principle for determination of seniority in the Transportation Traffic Department of the Indian Railways
Though the petitioners in Writ Petition No 11704 of 1985 belong to the Central Railways the principle to be deter mined will have application over all nine Railways in the country and is being agitated in Writ Petition No 12802 of 1985 by the All India Train Controller s Association
The officials with whom we are concerned in these writ petitions occupy Group C Class III posts in the above department
The question of their inter se seniority has become material for their promotion to Group B Class II posts which really form the lowest rung of the management cadre
75 of the vacancies arising in Group B Class II posts in each de partment are filled in by promotion on selection from among Group C Class III employees of the department on the basis of seniority cum merit
The difficulty in determination of the inter se seniority arises because there are different streams of eligible Group C Class III employees occupying posts with different scales of pay who have to be consid ered for selection to Group B posts
As only those employees from the different streams can be considered as fail within the zone of consideration as per seniority and as the zone of consideration is determined with reference to the number of vacancies in Group B for which the selection is held at any point of time the position of an employee in the com bined seniority list of all the streams assumes great impor tance
We are concerned with the selections for appointment to three Group B posts in the Operating Branch of the Traffic and Transportation Department
These are Assistant Operat ing Superintendent Assistant Traffic Superintendent and Station Superintendent
The four Group C streams which have the avenue of promotion to the above group B posts are 1 The Control Stream which consists of the Chief Controller the Deputy Chief Controller and the Section Controller 2 The Traffic Stream which comprises of the Station Master the Yard Master Traffic Inspector and Signaller 3 The Ministerial Stream consisting of office staff and 4 The Running Stream consisting of Guards
We are here concerned only with the question of inter se seniority between the employees in the Control 453 Stream and those in the Traffic Stream
As mentioned earlier there are several grades and scales of pay prevailing in each of these streams
It will be helpful to tabulate them here for convenient reference Control Stream Post Scale of Pay Pre 1931 I Pay II Pay III Pay Commission Commission Commission Chief Controller360 500 450 575 450 575 85010401200 Deputy Chief 400 500 300 400 370 475 700 900 Controller Section Con troller Grade I 300 350 260 350 335 425   470 750 Grade II 200 300 200 300 270 380  Traffic Stream Post Scale of Pay Pre 1931 I Pay II Pay III Pay Commission Commission Commission Station Supdt120 165 Jn
SMCYM80 160 300 400 450 575 700 900 TI Higher 200 300  Stn
Master Higher Dy
Supdt
80 160 300 400 370 475 550 750 YMTI Lower SM Lower 60 65 80 170 130 225 330 560 Grade and others 80 120 100 185 205 330 425 640 150 225 200 300 250 380 455 700 260 350 335 425 550 750 The zone of consideration of the employees for promotion is fixed in the order of the combined seniority of the employees from the 454 different streams
In each of the streams seniority depends on the grade
Normally employees working in a higher grade on a regular basis are senior to those working in the lower grade
To illustrate the highest Group C grade was Rs450 575 followed by the grades Rs370475 Rs335 485 Rs335 425 and so on
We are referring here to the old pay scales which have since been revised
The employees working in the grade Rs450 575 were therefore placed on the top followed by those in the grades of Rs370 475 Rs335 485 and Rs335 425
This principle for determination of inter se seniority worked very well till 311272 as the higher scales of pay in both the streams was the same
According to the department it became difficult to follow this principle when consequent on the acceptation and implementation of the recommendations of the Third Pay Commission with effect from 11
1973 higher or lower scales of pay came to be fixed in respect of certain posts which were having the same scale of pay upto 31121972
For example the scale of pay of Rs450 575 held by Station Masters and Traffic Inspectors in the Traffic Stream upto 311272 was upgraded to the scale Rs700 900 with effect from 1173
On the other hand in the case of Chief Controllers of the Control Stream the same scale of Rs450 575 was replaced by a scale of Rs840 10401200
Similarly in the case of Station Masters and Inspectors in the grade of Rs370 475 in the Traffic Stream the replacement was by the scale of RS550 750 while in the case of Deputy Chief Controllers on the scale Rs370 475 the replacement scale was Rs700 900
Thus the Control Stream gained an upper hand in the matter of seniority and consequently of promotions
In an attempt to restore some balance and parity between the employees of the different streams the Railway Board issued certain instructions on 26th October 1976
As per these instructions the inter se seniority of the staff working in the grade of Rs700 900 and the gradesabove it in the different streams was to be based on the total length of service rendered by an employee in all the grades
This did not satisfy all sections of the staff and difficulties were also experienced in applying the instructions
For example a Deputy Chief Controller who had been in the grade of Rs370 475 upto 311272 and was placed on Rs700 900 from 1173 gained an advantage over his collegues in the other stream viz the Station Masters and Traffic In spectors
The matter was therefore reconsidered and modified instructions were issued on 11777
According to these instructions for purposes of drawing out the combined seniority of Group C employees from different streams the services rendered in the top most scale in one stream would be considered equivalent to the service rendered in the 455 top most scale in the other streams even though the top most scale in the two streams might be different
This rule also produced anomalies
For example if in one stream the top most scale was Rs700 900 in another Rs550 750 and in yet another Rs840 1040 the length of service rendered in all these grades by the employees was stated to be the basis to determine the combined seniority
Thus an employee having ten years of service in the top most scale of Rs550 750 in one stream would rank senior to another having slightly less than ten years of service in the top most scale of Rs700 900 in another stream
The Department therefore issued revised instructions in August 78 February 79
As per these instructions where the top most scale prior to 111973 has been replaced by two different scales after 1173 one higher and the other lower service rendered in the lower scale will be notionally stepped up as if the service had been rendered in the higher scale
For example the grade of Rs450 575 was replaced by Rs8401040 for the Controllers and Rs700 900 for Station Masters and Traffic Inspectors
While drawing up the combined seniority the service ren dered in the grade of Rs700 900 by the Station Masters and Traffic Inspectors was to be treated as service rendered in the grade Rs840 1040
Similarly the pre revised grade of Rs370 475 had given rise to two scales namely Rs700 900 and Rs550 750 and in that case the service rendered in the grade Rs550 750 was notionally treated as rendered in grade Rs700 900 for drawing up the combined seniority
This principle did not work well either
It seems the circulars of 11777 and August 78 were quashed by the Bombay High Court in WP No 55 of 1980 by its order dated 141283
In the meantime detailed consideration of the issues was undertaken in consultation with the federations of organised labour and it was finally decided that the combined seniori ty for purposes of Group B selection should be determined on the basis of the total length of service rendered by employ ees in any or in all the grades commencing from Rs700 900 and above and these instructions were issued on 5383
In January 1984
further instructions were issued which while maintaining the principles laid down on 5383 provided protection to senior employees who got superseded in a stream for promotion to the higher nongazetted grade in that stream
For example if an employee in grade of Rs700 900 supersedes one of his seniors in promotion to the grade of Rs840 1040 within the stream he would control the seniori ty of the employee whom he had superseded
Such a superseded employee would be put to hardship when the combined seniori ty is drawn up along with employees from the other streams for purposes of selection to Group B
In order to avoid the situation of a senior employee being subjected to such disability instructions were issued on 61
1984 that 456 an employee who supersedes his senior will be credited with the service of the senior whom he had superseded
Aggrieved by these experiments which according to them only resulted in chaos and confusion 45 employees of the Control Stream filed WP 1170485 when on the issue of a list published by the administration on the basis of these instructions on 15685 they found themselves excluded from the panel of staff to be taken into consideration for promotion to Group B They prayed that the circular of 6 184 and the follow up action culminating in the Selection List be also set aside
The petitioners are also aggrieved by a different set of steps initiated by the Railway Board
A further discrimina tion against the control stream it is alleged has resulted from two circulars issued by the Board one on 29783 and the other on 261283
These circulars envisaged what the petitioners call mass upgradations and what the circulars call a restructuring of the cadres
The earlier of the two circulars applied to the traffic stream
In so far as is relevant for our present purposes the upgradation was on the following lines Name of Existing Revised Revised Percentage Rema post scale Designation Scale of posts marks Yard Masters 455700 Dy
Chief 700 900 20 Asst
Yard Yard Masters Masters Yard Masters 550 750 Chief Yard 840 1040 10 of Masters post in scale of 700 900 Station 455 750 Station 700 900 10 Master Supdt
Station 350 750 Station 840 1040 10 of Supdt Supdt
posts in Station scale of Master Rs700 900 2 Separate 700 900 435 This we Cadre of 10 of told has Station these ll not been 457 Masters carry scale given Asstt
of Rs840 effect Station 1040 to
Superin tendants The circular stated that this restructuring will be with reference to the sanctioned strength as on 1883
The staff who will be placed in the revised grade in terms of these orders will be eligible to draw pay on the higher grades from 1883 with benefit of proforma promotion from 1882
It was made clear that the benefit of proforma fixation will be admissible only to the staff who are placed in the vacancies arising directly as a result of these restructuring orders
The date of proforma fixation has later been shifted from 1882 to 1883 by a circular dated 137
The second circular dated 20121983 pertained to the control stream
The restructuring was on the basis of the cadre strength as on 1184 and the revision of scales was also to be effective from 1184
The pattern of restruc ture in so far as it is relevant for our present purposes is set out thus in the schedule Existing Grade  Posts Existing Revised percentage percentage i 470 750 Not laid 15 Section Controllers down ii 700 900  58  Dy
Chief Controllers     iii 340 1040  23  85 Chief Controller  Gr II    iv 840 1200  4  Chief Controller Gr
II 458 It was made clear that the cadre has been restructured keeping in view additional duties responsibilities and heavier workload in some of the charges and that the revised grades were to be given to employees eligible therefore on such considerations in their existing positions
Reference must be made to two more circumstances before we deal with the contentions urged before us
The first is that the circular of 6184 referred to above which accord ing to the counsel for the petitioner introduced the princi ple of chance seniority was quashed by the Central Admin istrative Tribunal by its order dated 521988
A copy of this order has not been made available to us
Secondly consequent on the said decision of the Tribunal the Railway Board issued certain instructions on 221288 which reads thus Consequent upon the judgment given by the Central Adminis trative Tribunal in connection with the above matter has been reviewed in consultation with the representatives of the recognised organised federations and it has been decided in partial modification of the orders contained in Railway Board s letters   dated 28583 and 61184 that the integrated seniority of group C employees for promotion to group B posts should be determined on the basis of con solidated length of non fortuitous service rendered in the grade of Rs700 9002000 3200 and above ignoring promotions to the grade of Rs840 104023753500   It may be mentioned that the petitioners were fully satisfied with the circular of 5383 which according to them gave effect to rule 321 of the Indian Railway Estab lishment Manual
According to them this equilibrium was unjustifiably disturbed by the circulars issued subsequent ly
The principal grievance urged before us by learned counsel for the petitioner was that as a result of the restructuring orders read with the order reckoning all persons working in salary grades of Rs700 900 and above as one group for determining seniority the control stream staff has been adversely affected to a considerable extent
He points out that persons in the Traffic Stream who entered the supervisory grade of Rs470 750 were placed in the grade of Rs700 900 much later than the dates when those in the control stream entered the corresponding scale of Rs455 700 will gain seniority over the latter
He asks us to compare for this purpose the positions of officers in the control stream with seniority positions Nos 90 to 190 with those occupying seniority positions Nos
61 to 208 in the traffic 459 stream
He contends that the staff employed in the control stream lose both monetarily as well as in terms of seniority by being placed in the scale of Rs700 900 only wef 1184 as compared to those of the traffic stream who re ceive such promotions and pay scales wef 1883
Leaving aside the question of monetary benefits for the time being the submissions are i that seniority should be determined on the total length of service as envisaged in rules 202 and 321 of the Indian Railways  Establishment Manual which read thus 202 For selection to class II posts or Civil Engg
Trans portation power and Mechanical Branch Transportation traffic and Commercial Signal and Telecommunication Electric and Stores Department
i Only permanent staff will be eligible ii all staff in grade Rs335 425 and above provided they have rendered a minimum of 3 years non fortuitous service after reaching the stage of Rs335 either in those grades or in a lower grade
321 Relative Seniority of employees in an intermediate grade belonging to different seniority units appearing for a selectionnon selection post in higher grade When a post selection as well as non selection is filled by considering staff of different seniority units the total length of continuous service in the same or equivalent grade held by the employee shall be determining factor for assign ing inter seniority irrespective of the date of confirmation of an employee with lesser length of continuous service as compared to another unconfirmed employees with longer length of continuous service
This is subject to the proviso that only non fortuitous service should be taken in account for this purpose ii that if all the grades in the eligible groups are to be clubbed together the seniority should be reckoned as and from the date of entry into the lowest of the grades in Group C  class III viz Rs470 750455 700 460 iii that even if the mass upgradations are to be upheld on principle they must be directed to be made effective from the same date whether it be 1883 or 1184 in respect of both the streams and should not be on different dates
iv that the whole object and purpose of these circulars is to obliterate the effect of the recommendations of the Third and even the Fourth Pay Commissions after assessing the duties and responsibilities of the staff in both streams that the staff on the control stream deserve higher scales although these recommendations have been duly accepted and implemented by the Government
According to the learned counsel the traffic stream has a huge strength and a powerful union and pressurised by their numbers the Railway Board is attempting to take away indirectly the benefits given to the control stream by the Pay Commission s recommendations and that too at a point of time when a fresh Pay Commission was in the process of being constituted
Counsel also alleged that the All India Con trollers  Association which has filed writ petition No 12802 on similar lines has not been consulted at any stage and these circulars are being issued at the behest of the unions of the traffic staff and despite the representations and protests of the comparatively weaker union of the con trol staff
On the other hand Sri VC Mahajan learned counsel for the Union of India submitted that the petitioners have not placed any data before the Court to make out a case of discrimination
He submits that after the Writ Petitions were filed in 1985 the Department has issued a circular dated 271288 and a combined seniority list in March 1989
The petitioners have not taken any steps to amend the Writ Petition to challenge this circular or this list or to show in what respect and to what extent the rights of the peti tioners have been prejudiced by the restructuring orders
Turning to the restructuring circulars counsel points out that in this case the Government has been hard put to evolve an equitable formula for fair promotional chances to the two sets of people in question
Various attempts had been made earlier but they were not successful
Finally the present formula has been evolved after consulting all the concerned unions
It is not correct he says to say that the deci sions have been taken without consulting the representatives of the Controlling Stream
It is submitted that having regard to the few posts at the top of the scale the Traffic Stream had been complaining of inadequate promotional oppor tunities
The 461 Government has tried to solve the problem as best as it could and counsel refers to the following basic features behind the restructuring i The date of entry into grades Rs700 900 above will be taken as the starting point to reckon seniority
This is the effect of the circular of 222288 the validity of which has not been challenged in the petition
ii Considering the large strength of employees in the Traffic Stream viz 4430 about 10 of the posts have been upgraded which will mean that about 443 persons will be in the above grades
So far as the Control Stream is concerned the percentage of posts in the above zone has been increased to about 35 of the 270 posts available with the result that about 211 people will be in the above grades
As a result of the mass upgradation a large percentage of people in the Control Stream immediately derive monetary benefits
They have accepted these benefits and have been occupying the upgraded position since 1984 onwards
iii The date of the upgradation in both the streams cannot be the same for the result of it would be that all the upgraded personnel will have seniority reckonable from the same date
This being the position their seniority will have to be based on the length of their services in the immediately lower scales or reckoned as from the date of their entry into the lowest of the Group C grades and this would have revived the same problem which the Government was trying to solve
That is why the Government fixed dif ferent dates for the two streams separated only by a short span of five months and this was neither unreasonable nor discriminatory
Counsel submits that the Government was trying to forge out a solution that will be fair to both the streams and that the attempt of the petitioners to accept the upgrada tions of the scales in their stream but objecting to the other part regarding date of fixation should not be allowed to succeed
He submits that if the petitioners were prepared to accept the same percentage of upgradation as the Traffic Stream persOnnel and give up the extra benefits received the Government could reconsider the whole question afresh
After hearing both counsel we have reached the conclu sion that the materials before us are totally inadequate to come to any conclusion on the true impact of the circulars In fact to start with we were 462 of the view that in a matter like this the proper remedy of the petitioners is to approach the Central Administrative Tribunal which has been set up for that very purpose
But since counsel for the petitioners pleaded that the writ petitions have been pending here since 1985 and it would not be fair to the petitioners to sent them now to pursue that remedy we heard the petitioners and the opposite parties at some length but as will emerge from the above discussion the exact position and impact of the circulars is very nebulous
As pointed out by Sri Mahajan the Department is trying to cope with the problem of giving fair promotional opportunities to two different streams which become eligible for promotion to Group B posts
Since the counsel for the petitioner has stated that he has no quarrel with the circu lars of 5383 and 221288 and since the circular of 6184 already stands quashed by the Central Administrative Tribu nal the only grievance of the petitioners that survives is against the upgradation circulars
Apart from the merits there are three difficulties in considering the plea of the petitioners that the part of the two circulars fixing dif ferent dates of upgradation should alone be set aside a The plea of the petitioners if accepted will affect a large number of persons in the traffic stream and even result in a number of reversions in all the Railways
Though the petitioners have made some persons in the traffic stream working in the Central Railway parties neither the persons likely to be affected in other parts of the country nor their union have been made parties
b As discussed above the circular of 201283
confers substantial benefits on members of the control stream
A large number of them have been able to secure an upgradation to the scale of Rs700 900 which otherwise may not have come to them for sometime and they may or may not all be affected adversely by the date of upgradation
It is also pointed out that upgradation in the traffic stream are subject to selection on the basis of a written test and viva voce while the upgradations in the control stream are automatic based on seniority cum suitability
It is there fore not clear even whether the All India Controller s Union is speaking in one voice for all its members either for or against the circular of 201283
c As pointed out by Sri Mahajan the Department has issued a seniority list in pursuance of its circular
No attempt has been made to substantiate the grievances of the peti tioners by pointed factual references to that list
463 Coming to the merits again the inequity is not appar ant
Having to deal with two different streams differently placed the Government has to find out an equitable solution and it has been groping towards it
One method would perhaps have been to have fixed quotas for promotion from each of the streams but that is not necessarily the only method
An alternative method is being attempted here and the princi ple that grades of Rs700 900 and above should be considered together being conceded the Department is trying to give some weightage by granting upgradation to each stream based on its total strength in order to balance the promotional chances in both the streams
It is possible that some indi vidual cases may be affected but no answer to the question whether any class discrimination has resuited can be given unless fuller details are available and the practical impact of the latest position is placed before us
If a good number of persons in the control stream are benefitted monetarily despite the disadvantage to a few in the matter of promo tion it may be a question how far the Association of the Controllers will be able to make out a case of class dis crimination
Even if we assume that the entire control stream would be adversely affected the question will still remain whether the basis of differentiation is justified in the circumstances or amounts to arbitrary discrimination
We express no opinion on these questions at this stage
We would only say that in the absence of adequate material before us we are unable to reach any conclusion on the plea of discrimination
We therefore dismiss the writ petition but we will leave it to the petitioners if so advised to move the Central Administrative Tribunal with fuller facts and in the light of the latest developments for appropriate relief after impleading all affected parties or their repre sentatives so that the entire picture may emerge and a just conclusion arrived at
Y Lal Petition dis missed


Summary:
These are Writ Petitions under Article 32 of the Consti tution of India and a Special Leave Petition against the Judgment of the Karnataka High Court filed by two trade unions and a Society formed by law students of the Universi ty College and two individuals asking for quashing the Karnataka Government s Notification dated 12th March 1982 and for directions to confirm the daily rated and monthly rated employees as regular government servants and for payment of normal salary and service benefits as applicable to the appropriate categories of the government servants
Nearly 50000 such persons are employed in different Government establishments though many of them have put in 15 to 20 years of continuous service
They have not been regu larised in their service and are not being paid equal pay for equal work as has been mandated by this Court by way of implementation of the Directive Principles of State Policy
Pursuant to the directions of this Court the State of Karnataka filed a draft Scheme
The Court considering both the aspects of equal pay for equal work  and continuing casual employment for too long re affirmed the view that the principle of equal pay for equal work  is not an abstract doctrine instead it is vital and vigorous doctrine accepted throughout the world
While accepting the petitions the Court HELD That equal pay for equal work  and providing security for service by regularising casual employment within a reasonable period have been unanimously accepted by this Court as a constitutional goal of our socialist polity
While giving directions to the State for giving final shape to the Scheme the Court further held that under the 545 scheme of the Constitution the purse remains in the hands of the Executive
The Legislature of the State controls the consolidated Fund out of which the expenditure to be in curred in giving effect to the scheme will have to be met
553F 559H 560A The flow into the Consolidated Fund depends upon the policy of taxation depending perhaps on the capacity of the payer
Therefore unduly burdening the State for implementing the constitutional obligation would create problems which the State may not be able to stand
Directions have there fore been made with judicious restraint with the hope and trust that both parties would appreciate and understand the situation
The instrumentality of the State must realise that it is charged with a big trust
560B C The casualdaily rated employees appointed on or before 171984 shall be treated as monthly rated establishment employees at the fixed pay of Rs780 pm without any allow ances with effect from 11
558H The scheme which has been finalised is not the ideal one
It is the obligation of the Court to individualise justice to suit a given situation in a set of facts that are placed before it
559H Randhir Singh vs Union of India  Ors
   Dhirendra Chamoli  Anr
vs State of UP  Surinder Singh  Ant
vs Engineer in Chief CPWD  Ors
  Kishori Mohanlal Bakshi vs Union of India AIR 1962 SC 1139 DS Nakara vs Union of India   RC Gupta  Ors
vs Lt Governor Delhi Admn
 Ors
   Bhagwan Dass  Ors
vs State of Haryana  Ors
  Jaipal  Ors
vs State of Haryana  Ors
 1988 3 SCC 354 Daily Rated Casual Labour employed under P  T Department Contingent Paid Staff Welfare Association vs Union of India  Ors 1987 Suppl
SCC 658 State of U P  Ors
vs JP Chaurasia  Ors   Kesavananda Bharati vs State of Kerala 1973 4 SCC 225 and Bhagwan Sahai Carpenter  Ors
vs Union of India  Anr
   referred to