IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 4208 OF 2007 ***** M. BADIUZZAMAN, SON OF MD. ZAFFIRRUZZAMAN, SR. S.E. (P.WAY), UNDER SR. D.E.N. (CO-ORDINATION), E.C. RAILWAY, DANAPUR, RESIDENT OF MOHALLA- DARZITOLA, P.O. BANKIPUR, P.S. PIRBAHORE, DISTT- PATNA. …. …. Petitioner Versus 1. The Union of India through G.M. Eastern Railway, 17, Netajee Subhash Road, Calcutta-1. Now General Manager, E.C. Railway, Hazipur. 2. Chief Personnel Officer, Eastern Railway, 17, Netajee Subhash Road, Calcutta-1. now Chief Personnel Officer, E.C. Railway, Hazipur. 3. Divisional Railway Manager, Eastern Railway, Danapur, Now E.C. Railway, Danapur. 4. Sr. Divisional Personnel Officer, Eastern Railway, Danapur, Now E.C. Railway, Danapur. 5. Sr. Divisional Engineer, Eastern Railway, Danapur, now E.C. Railway, Danapur. …. …. Respondents ----------- For the Petitioner : Mr. M.P.Dixit, Advocate Mr. Nitya Nand Mishra, Advocate For the Respondents : Mr. Rakesh Kumar Tiwary, Advocate ----------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----------- Dated, the 12th November, 2008. The Unsuccessful original applicant has filed this writ petition challenging the order of the Central Administrative Tribunal passed on 16th October, 2000, whereby his original application came to be dismissed. - 2 - 2. The following facts are not in dispute: - (i) That the petitioner was appointed Apprentice Permanent Way Inspector Grade-II in the scale of Rs.550-750/- in the Eastern Railway vide letter dated 6th June, 1985. (ii) That the appointment of the petitioner followed the interview, which was held on 20th October, 1984. (iii) That the panel for appointment was drawn-up after the interview that was held on 20th October, 1984. (iv) That pursuant to the appointment letter dated 6th June, 1985, the petitioner joined as Apprentice Permanent Way Inspector Grade-II (Rs.550-750) on 1st August, 1985. (v) That the petitioner was confirmed after suitability test vide letter dated 14th August, 1986 and provisionally posted as Permanent Way Inspector Grade-II in the scale of Rs.550-750. 3. The case of the petitioner is that after his selection as Permanent Way Inspector Grade-II, he came to know that on 1st of May, 1984, the Railway Board has issued a circular (Scheme) to all the General Managers of the Indian Railways regarding grade review and group structuring of „Group-C‟ cadres, whereby the scale of Rs.550-750 for Engineering Graduates was increased to Rs.700-900. Upon acquiring the said knowledge, the petitioner made a representation to the Chairman, Railway Board on 5th September, 1985 praying therein that he ought to have been recruited to Grade-I - 3 - in the scale of Rs.700-900 in stead of Grade-II having scale of Rs.550- 750. He also made representation to the General Manager, Eastern Railways in this regard in the year 1990. Similar representations are said to have been made by few similarly situated employees. In the month of January, 1991, the petitioner was promoted to the post of Permanent Way Inspector Grade-I on ad hoc basis. He again made representation to the authorities that he should have been granted Permanent Way Inspector Grade-I from the initial date of appointment. However, his representations were not favorably considered. 4. In the year 1993, the petitioner and few others were reverted from the post of Permanent Way Inspector Grade-I to Permanent Way Inspector Grade-II as all ad hoc appointments were cancelled. The petitioner again made a representation to the Senior Divisional Personnel Officer in the month of October, 1993 but that representation, too, remained unheeded. 5. As the grievances raised by the petitioner were not redressed by the authorities, he approached the Central Administrative Tribunal, Patna Bench, Patna by filing Original Application No.191 of 1994. He prayed for the following reliefs: - (i) The applicant be allowed to continue in the post of PWI GR.1 Rs.700-900 to which he has been promoted on 18.1.1991 on Ad-hoc basis. (ii) That the applicant be given seniority in the post of PWI Gr.1 Rs.700-900 from the date of his initial appointment or at least from the date when his name was recommended by the Divisional Railway Manager i.e. from 25.11.1988 and also as per the rules and Circulars - 4 - applicable. (3) The order of Respondent No.4 dated 1.10.1993 demoting the applicant Annexure 8 be not given effect to so far as the applicant is concerned. 6. The respondents contested the original application. 7. The Tribunal after hearing the parties dismissed the original application. Hence the present writ petition. 8. The counsel for the petitioner submitted that the reliefs claimed by the petitioner are based on the scheme framed by the Railway Board and circulated to the General Managers on 1st May, 1984, whereby cadre review and restructuring of „Group-C‟ cadres was done. He heavily relied upon the decision of the Supreme Court in the case of Rasheed Khan Vs. Union of India & Ors., (Civil Appeal No. 6609 of 1997) given on December 11, 2003 in support of his contention that right from inception, the petitioner was entitled to the scale of Rs.700-900. 9. The scheme framed by the Railway Board on 1st May, 1984 has been placed on record as Annexure-2. The relevant portion of the scheme reads thus: - “Arising out of a demand made by the Staff side in the Departmental Council (Railways) of the Joint Consultative Machinerys the Mintry of Railways have decided that following Group `C‟ Categories should be restructured as indicated in Annexure `A‟ with effect from 1-1-84. 1) Technical Supervisors in the Production Units open Line including open Line Workshop of the Civil, Mechanical, Electrical and Signal & Telecommunication - 5 - Departments. a) Scientific staff of the CMT under the Mechanical Engineering Department. 2) For this purpose of restructuring, the cadre strength as on 1-1-84 will be taken into account and will include Rest Giver and leave Reserve Posts. 3) Staff selected and posted against the additional higher grade posts as a result of restructuring will have their pay fixed under rule 2018-B(PR-22G)RII with effect from 1-1-84. The benefit of fixation effective from 1-1-84 also be applicable to the chain/resultant vacancies. In effect, the benefit of fixation from 1-1-84 should be given against all vacancies which arise from restructuring. 4.1) The exiting classification of the posts covered by those restructuring orders, as “Selection” and “non selection” as the case may be, remains unchanged. However, for the purpose of implementation of these orders, if an individual railway servant becomes due for promotion to the only one grade above the grade of the post held by him, at present, on a railway basis, and such higher grade post is classified as a “Selection” post, the existing selection procedure will stand modified in such a case to the extent that the selection will be based only on Scrutiny of service records without holding any written and/or vice-voce test. Naturally, under this procedure, the categorization as “outstanding” will not exist. 4.2 ) In case, however, as a result of these restructuring order, an individual railway servant becomes due for promotion to a grade more than one grade above that of the post held by him at present on a regular basis, the benefit of the modified procedure of selection as a aforesaid will be applicable only to the first such promotion (if that post happens to be a “selection post), the second and subsequent promotions, if any, will be based only on the normal rules relating to filling in of “selection” or “non-selection” posts (as the case may be). 4.3) Vacancies existing on 1-1-84 and those arising on that date from this cadre restructuring should be filled in the following sequence: i) from panels approved on or before 30-4-84 and - 6 - current on that date; and ii) Balance in the manner indication in paras 4.1 and 4.2 above 5.1) The extent Orders regarding recruitment of Engineering Graduates to grade Rs.55-750 will stand modified in that i) 20% of vacancies arising after 1-1-84 in grade Rs.700-900 in the category of technical supervisors of all Departments will be filled by direct recruitment of Engineering Graduates through Railway Service Commissions. ii) There will be no direct recruitment in future in the grade of Rs.550-750 except that where a panel of candidates for direct recruitment in this grade has already been received by a Railway Administration from the Railway Service Commissions, appointments therefrom (subject to usual formalities) will be made to the grade Rs.550-750. 5.2) Specific qualifications prescribed for Engineering Graduates for recruitment currently to grade Rs.550-750 now automatically apply to grade Rs.700- 900.” 10. The scheme relating to the cadre review and restructuring of Group-C cadres is effective from 1st January, 1984. It further provides that for the purpose of restructuring, the cadre strength as on 1st January, 1984 will be taken into account. It is also provided that the benefit of fixation effective from 1st January, 1984 will be applicable to the chain/resultant vacancies. In other words, it has been clarified that the benefit of fixation from 1st January, 1984 should be given against all vacancies, which arises from restructuring. As per Clause 4.3, vacancies existing on 1st January, 1984 and those arising on the date from the cadre restructuring should be filled in - 7 - from the panels approved on or before 30th April, 1984 and current on the date. Clause 5.2 provides that specific qualifications prescribed for Engineering Gradates for recruitment currently to grade Rs.550-750 now automatically apply to grade Rs.700-900. Since it is admitted case of the petitioner that he was interviewed on 12th October, 1985, obviously, he was not empanelled on or before 30th April, 1984. Even if we assume that the recruitment of the petitioner was against the vacancies existing on or before 1st January, 1984, in our considered view, since the petitioner was not empanelled on or before 30th April, 1984, the scheme dated 1.5.1984 is not applicable to him. 11. In the case of Rasheed Khan, the Supreme Court considered the aforesaid scheme. It was held thus: - “The Tribunal while arriving at the conclusion indicated above, simply ignored the relevant provisions of the scheme. The scheme of cadre review and restructuring of Group C cadre is dated 1.5.1984. It says that looking to the demand made by the staff side and in the Departmental Council (Railways) of the Joint Consultative machinery, it was decided that group C categories should be restructured w.e.f. 1.1.1984. Clause 2 of the scheme says that for the purpose of restructuring, the cadre strength as on 1.1.1984 will be taken into account. Clause 3 of the scheme provides that the staff selected and posted against the additional higher grade posts as a result of restructuring will have their pay fixed w.e.f. 1.1.1984 and this benefit shall also be available to chain/resulted vacancies. We may now refer to clause 4.3. of the scheme which reads as under: “vacancies existing on 1.1.1984 and those arising on the date from this cadre restructuring should be filled in the following sequence: (i) from panels approved on or before 30.4.84 and current on the date; and (ii) ………………….. - 8 - From the provisions of the scheme quoted above there is no scope to think that the benefit of the scheme would be admissible to those who were already in service on 1.1.1984. Rather it is made clear that it would also be applicable to those who are in the panel approved on or before April 30,1984. There is no denial of the fact that the appellant was empanelled as a selected candidate in the panel declared on April 30,1984 and that he was appointed on a vacancy existing on 1.1.1984. That being the position his case is clearly covered under the provisions of clause 2 and clause 4.3 of the scheme. It is fallacious to contend that the benefit of the scheme could be extended to those alone who were already in service prior to the scheme came into force or to those who were selected under the scheme in question as observed by the Central Administrative Tribunal. The Tribunal seems to be a bit emphatic about the fact that the appellant was not selected under the scheme. The scheme itself does not provide so.” 12. It would be, thus, seen that Rasheed Khan was empanelled as a selected candidate vide empanelment declared and approved on April 30, 1984. In other words, he was empanelled on or before April 30, 1984. In the present case, as noticed, above, although the exact date of empanelment is not stated by the petitioner, in view of the admitted position that he was interviewed on 20th October, 1984, obviously, he was not empanelled as a selected candidate prior to April 30, 1984. In this view of the matter, Clause 2 and Clause 4.3 of the Scheme are not attracted in the present fact- situation. 13. In so far as para 5.2 of the scheme is concerned, we may observe that the petitioner is not covered by that category as it was applicable to the current recruitees. - 9 - 14. The fact that the petitioner was appointed, as Permanent Way Inspector Grade-II (Rs.550-750), initially vide appointment letter dated 6th June, 1985 and that he was confirmed as such after suitability test on 14th August, 1986, his claim that he ought to have been appointed as Permanent Way Inspector Grade-I (Rs.700- 900) from the initial date of appointment is wholly misconceived. 15. All in all, the consideration of the matter by the Tribunal cannot be said to suffer from any legal flaw, justifying interference by us in writ jurisdiction. 16. Resultantly, writ petition has to be dismissed and is dismissed with no order as to cost. R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-