ivil Appeal No 2054 of 1990
From the Judgment and Order dated 231
1987 of the Central Administrative Tribunal Calcutta in Transfer Appli cation No 1263 of 1986
AP Chatterjee GS Chatterjee NP and Ms Ratna Bhattacharya for the Appellants
RB Dattar NP Anil Dev Singh BK Prasad CV Subba Rao and RB Misra for the Respondents
816 A Bhattacharya for the Intervener
The Judgment of the Court was delivered by RM SAHAI J
Special leave granted
Station Masters of South Eastern Railways are aggrieved by implementation of the scheme of re structuring by the Chief Personnel Officer framed by the Railway Board for C  and D  cadre
Their claim was not accepted by the Central Administrative Tribunal as implementation as such was beneficial to the majority
It was further found that alter native I  of the scheme meant for the combined cadre was rightly adopted as the cadre of Assistant Station Master ASM and Station Master SM in the South Eastern Zone was combined before 1983
The appellants have challenged cor rectness of these findings
They also claim that implementa tion of scheme is highly unjust and inequitable
Prior to re structuring the cadre comprised of Assistant Station Masters at the bottom and Station Superintendent at the top
Initial appointment of ASM was made in the scale of Rs360 540
The promotional ladder bifurcated into i ASM to ASM and ii ASM to SM both in the scale of Rs425 640 non selection and then Rs455 700 selection before becoming one common source for promotion to Deputy Station SuperintendentSM Rs550 750 non selection Rs700 800 Station Superintendent selection and Rs840 1010 Station Superintendent non selection
For moving up the promotion al ladder every ASM was required to opt if he would proceed on the channel of ASM to ASM or ASM to SM
Re structuring was done in C  and D  cadres in the scales designation and percentage in selection and non selection posts
Two alternatives were framed described as alternative I  for the combined cadre and alternative II  for the separate cadres
They were to be adopted by the respective zones depending on the cadre pattern prevalent there
One of the principles visualised for group C  was that if all posts in an existing grade were en bloc placed in a higher grade the existing regular incumbents thereof were to be allowed the higher grade without subjecting them to any selection
For ASMSM two alternatives were provided to be adopted by the respective zones depending on whether the existing cadre was separate or combined
In alternative I  meant for the combined cadre SMs in the scale of Rs425 640 and Rs455 700 were designated as Deputy Station Superin tendents and 817 Station Superintendents in the scale of Rs550 750 and Rs700 900 respectively
Therefore the appellants claim that if alternative I  was adopted then it should have been given full play and the SMs who were working in the aforesaid scales should also have been placed en bloc in the re designated posts without any further process of selec tion
In pursuance of the re structuring the Chief Personnel Officer issued a letter to the Divisional Manager South Eastern Railway that it had been decided that alternative I  enunciated by the Board shall be followed on the South Eastern Railway
It further provided that the existing system of calling for options from ASMs for the post of SMs ASMs in the higher grade was being dispensed with and sen iority of staff in each grade shall be determined on the basis of non fortuitous service rendered in such grade
Other paragraphs of the letter are not relevant for the resolution of the present controversy
Since the direction of the Chief Personnel Officer worked to prejudice of numer ous persons who had exercised their options to the promo tional channel of Station Master they approached the High Court or Tribunal by way of Writ Petition or Claim Petition but without any success
Some of such disputes came up for disposal before this Court in Civil Appeal Nos
1536 41 of 1987 which were disposed of by order dated 30th July 1987 directing the Railway Board to consider if the Chief Person nel Officer while implementing the scheme deviated from its terms and implemented it to the prejudice of those appel lants
Since it was conceded that the scheme did not affect present status and emoluments this Court then made it clear that implementation should not be done to prejudice of appellants
It further protected the interests of those who due to wrong implementation might have got benefit by di recting that they shall not be disturbed
The direction given by this Court was not complied with therefore con tempt proceedings were filed the hearing of which was de ferred till the disposal of the present appeals
When these appeals were taken up for hearing it tran spired that total number of employees of the appellants  category were not more than 206
Therefore the Court passed the order on 26th JUly 1989 that if relief was granted to these 206 employees
by implementing the scheme in the manner indicated in the earlier order of 1987 they shall be satisfied and the litigation shall come to an end
But nothing more was done and on 8th September 1989 this Court after heating learned counsel for the parties at great length recorded that two questions were required to be looked into i if the cadre of ASM and SM was common or different and ii if alternative I  was adopted then why 818 the SMs could not be re designated and Deputy Station Super intendents and wanted response of the Administration about them
On both these aspects an affidavit was filed by the Chief Personnel Officer
Regarding the first it is stated that cadre of ASM and SM before restructuring was a common one in South Eastern Railway for all intents and purposes 
It is explained that separate cadre meant that the ASMs and SMs would have sought their advancement separately in a way different from them in the entire non gazetted cadre 
And then ASM and SM had to combine again to work as Deputy Station SuperintendentSM
In respect of automatic re desig nation the explanation is that eight different scales of pay existing before re structuring were reduced to six and designation of ASM in the scale of Rs455 700 and SM in scale of Rs425 640 were abolished and the post belonging to six revised designations have been distributed on the prescribed percentage basis
It is further stated that incumbents of the existing grades were promoted according to their positions of seniority against the posts which were available on percentage basis distribution
Therefore the contention of the petitioners that the Station Masters should be automatically designated as Deputy Station Super intendent was not correct
According to the Chief Personnel Officer the appellants along with  others in accordance with their seniority were required to be subjected to the proce dure of selectionsuitability test as per procedure envis aged in the re structuring scheme
The affidavit also at taches a letter from the Railway Board addressed to the General Manager reiterating that the implementation of the scheme by the Chief Personnel Officer was as intended by the Board
Facts as they ultimately emerge do not appear to have been adequately indicated in the affidavit of the senior officer even when the aspects were pointedly indicated by this Court
It is not disputed that in the South Eastern Zone the practice of option by ASM for promotional channel was in vogue before 1983
Dispute is about the time when it was exercised
According to appellant it was at the time of recruitment and appointment even on pain of disciplinary action
And option once exercised was irrevocable
Whereas according to officials it used to be offered when vacancy arose according to seniority
Unfortunately it was accepted by the Tribunal as well without any foundation in the record by shutting its eyes to various letters which clinch the issue in favour of the appellants for instance the letter dated 14th May 1965 and 20th May 1970 issued by the Divisional Superintendent Railway filed before Tribunal produced along with supplementary affidavit shows that options were required to be exercised by ASMs irrespective of availability of vacancy before the target 819 date and if it was not exercised then they were liable to disciplinary action
And options for or against could not be changed when once exercised
Where it was not exercised on or before the date it was deemed to have been opted for ASM to SM
No effort was made to meet these letters yet an affidavit was filed that option was exercised when vacancy arose
Options was thus exercised by appellants at the stage of appointment and recruitment
But it appears to have resulted in dissatisfaction because even though the pay scales were identical those who became SM were entrusted with superviso ry control and administrative responsibility
For this the ASM recruited in the same batch must have been unhappy
And the SM must also have had the grievance as promotion in higher scale was obviously delayed because the post of SM must have been fewer in number as compared to ASM
There fore it was rightly abolished and was hailed by the two unions of employees
But what happened to those who due to irrevocable option exercised prior to 1983 had been waiting for moving up and due to abolition of option and implementa tion of the alternative I  lost the opportunity while ASMs junior to them availed it No provision for them was made
Even in this Court despite repeated directions the Chief Personnel Officer or the Administration instead of resolving it have taken an uncharitable stand by asserting that those who opted for promotional channel of SM having enjoyed benefit of day duty and supervisory control on their own volition cannot be compared with ASMs whose working condi tions were different
That is a person who worked with greater responsibility and under strain must suffer
What is surprising is that such unreasonable stand is supported even by the Board by relying on intents and contents 
Even the claim of the Administration that cadre of ASMSM was combined cadre in South East Railway was not substantiated by any document letter or order
On the other hand from letter dated 10th May 1984 issued by Additional District Pay Commissioner to General Manager recognises existence of separate cadre It is evident from the details furnished in the enclosure to your above quoted letter that your Railway had a separate cadre for ASMsSMs and a decision had been reached prior to the issue of the restructuring orders No PC
III80 UPG19 dated 29783 to switch over to a combined cadre except where in respect of any cadre or cadres avenues of advance ment have been prescribed by this Ministry laying 820 down avenues of promotion in respect of non gazetted Railway staff is within the competence of the General Managers of the zonal railways
Since the matter has been processed on your railway in consultation and agreement of the two recog nised Trade Unions in the permanent Negotiating Machinery the action by your Railway to switch over to a combined percentages scheme is within your powers   Existence of separate cadres prior to 1983 and changing over to a combined system is not the same thing as claiming that the cadre which existed prior to 1983 was a combined cadre
Explanation in the affidavit while replying to the issue as to whether the cadre of ASM and SM was common or a different cadre is given thus The Railway Board s letter dated 10884 refers to only merging these two grades which should not mean that the cadre was separate
In other words the Railway Board s said letter means that the action of the Railway to combine the two grades also is in order and it does not imply that the entire cadre was separate
 It cannot be accepted either as correct or satisfactory
Cadres of ASMSM before 1983 was separate and different
With abolition of option it has become one
The letter of the Railway Board required revised percentages prescribed for the category depending on whether the existing cadre structure was a combined one or a structured one
Since the cadre in South Eastern Railway was a separate one the Chief Personnel Officer deviated from the scheme by applying alternative I  which was to be adopted by a zone where combined cadre existed
And if alternative I  was adopted then the SMs should have been automatically designated as Deputy Station Superintendents and they should not have been subjected to the selection procedure
The explanation in the affidavit of Chief Personnel Officer that the grade Rs 425 640 having been abolished as a consequence of restruc turing is not acceptable
In alternative I  SM in scale of Rs425 640 automatically stood redesignated as Deputy Sta tion Superintendent
But the scale does not find place in alternative II 
But both the employees unions have accept ed the implementation of the letter of Chief Personnel Officer as it is beneficial to a majority of the employees
Therefore it may not be disturbed
At the same time all those 204 employees who had opted before 1983 must be enti tled to the benefit which would have been available to them on theft options
821 In the result this appeal is disposed of by directing that the respondent authorities shall grant promotional benefit to those 204 SMs who had exercised options before 1983 in the same manner as it would have been if option had not been abolished in accordance with the earlier procedure provided they fulfilled the other requirements
While doing so those who had been promoted shall not be disturbed as directed by this Court on 30th July 1987
Further if as a result of this exercise posts in higher grade fall short the respondents shall create adequate number of additional posts to overcome the difficulty
The respondents are fur ther directed to complete all this exercise within six months
Persons promoted in pursuance of this order shall be entitled to all consequential benefits from the due dates
Appellants shall be entitled to consolidated costs which are assessed at Rs5000 to be payable by respondent No 2
NVK Appeal disposed of


Summary:
The appellant filed a writ petition before the High Court challenging the detention order passed against him under Section 31 of the  alleging that his representation was dealt with in a cavalier manner resulting in undue delay in its disposal
Refuting the allegation it was contended on behalf of the respondents that the representation received on 23889 was forwarded to the sponsoring authority for comments on 25889 and the comments were received only on 11989 and orders rejecting the representation were issued on 19989 after obtaining the orders of the appropriate authorities
The High Court rejected the petition as devoid of any merit
In the appeal before this Court on behalf of the appel lant it was contended that the offices of the detaining authority and the sponsoring authority were within the same city and there was absolutely no explanation for the delay on the part of the sponsoring authority in sending the comments till 11989 though the representation dated 18889 was sent for comments to the said authority even on 25889 thus vitiating the order of detention and that in view of the inordinate and unexplained delay in considering and disposing of the representation the continued detention of the appellant was impermissible and unconstitutional as being violative of the mandatory provisions of Article 225 of the Constitution of India
Allowing the appeal this Court 980 HELD 11 A representation of a detenu whose liberty is in peril and deprived should be considered and disposed of as expeditiously as possible otherwise the continued deten tion will render itself impermissible and invalid as being violative of the constitutional obligation enshrined in Article 225 of the Constitution and if any delay is occurred in the disposal of a representation such delay should be explained by the appropriate authority to the satisfaction of the Court
985A B Rama Dhondu Borade vs
VK Saraf Commissioner of Police Bengal 1969 II Supreme Court Weekly Reports 529 Jayana rayan Sukul vs State of West Bengal  Shaik Hanif Ors
vs State of W B   Raisuddin vs State of UP  and Frances Coralic Muffin vs
WC Khambra and Ors
   relied on
12 Inspite of the weighty pronouncements of this Court making the legal position clear it is still disquieting to note that on many occasion the appropriate authorities cause considerable delay in considering and disposing of represen tations and also exhibit culpable indifference in explaining such delay
In case the appropriate authority is unable to explain personally the delay at various stages then it will be desirable indeed appropriate for the concerned author ity or authorities at whose hands the delay has occured to individually explain such delay
985C D 13 The Court in the absence of any explanation cannot wink at or skip over or ignore such an infringement of the constitutional mandate and uphold an order of detention merely on the ground that the enormity of allegations made in the grounds of detention is of very serious nature as in the present case
985D El Prabhu Dayal Deorah vs The District Magistrate Kamrup  Ors   relied on
In the instant case except merely mentioning that the representation was forwarded to the concerned sponsoring authority on 25889 and the comments from the sponsoring authority were received by the Department on 11989 there is absolutely no explanation as to why such a delay had occured
This undue and unexplained delay is in violation of the constitutional obligation enshrined in Article 225 of the Constitution of India rendering the order invalid
986B C 981 Rama Dhondu Borade vs
VK Saraf Commissioner of Police  Ors  relied on