* THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION Nos.22692, 23581 and 32655 of 2010, 12581, 12584, 12588, 13458, 13461, 15597, 26176, 26516, and 26518 of 2011 % 20.10.2011 # Union of India, Rep. by its General Manager, East Coast Railway, Bhubaneshwar And others. ... Petitioners VERSUS $ D.V.Ramana Rao And others. ... Respondents < GIST: > HEAD NOTE: ! Counsel for Petitioners: Sri P.Bhaksar and Ms.Pushpender Kaur (for Railways) ^Counsel for Respondents: Sri V.Ravindranath Reddy and Sri Siva ? Cases referred 1. (1974) 3 SCC 220 2. (1991) 3 SCC 47 : AIR 1991 SC 1612 3. (1994) 2 SCC 630 : AIR 1994 SC 1808 4. (2008) 2 SCC 161 5. (2001) 6 SCC 380 : AIR 2001 SC 1851 6. (2005) 3 SCC 618 : AIR 2005 SC 2775 7. (1991) 3 SCC 567 : AIR 1991 SC 1745 8. (1997) 1 SCC 253 : AIR 1997 SC 2131 9. (2010) 2 SCC 637 : AIR 2010 SC 932 THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION Nos.22692, 23581 and 32655 of 2010, 12581, 12584, 12588, 13458, 13461, 15597, 26176, 26516, and 26518 of 2011 20.10.2011 Between: Union of India, Rep. by its General Manager, East Coast Railway, Bhubaneshwar And others. …. Petitioners AND D.V.Ramana Rao And others. … Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION Nos.22692, 23581 and 32655 of 2010, 12581, 12584, 12588, 13458, 13461, 15597, 26176, 26516, and 26518 of 2011 COMMON ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) The inter-related questions involved in this batch of writ petitions are required to be considered and disposed of by a common order. For the sake of convenience, we may divide these twelve matters into three groups. The first group of three writ petitions[1] are filed against the common order dated 01.04.2010 of the Central Administrative Tribunal, Hyderabad Bench (hereafter called, the Tribunal) in O.A.Nos.895 of 2009 and 31 and 33 of 2010. The second group of five cases[2] are filed against another common order dated 01.09.2010 of the Tribunal in O.A.Nos.502, 532, 722, 724 and 735 of 2010. The third group of four writ petitions[3] are filed against the common order dated 09.09.2010 of the Tribunal in O.A.Nos.768, 854 and 856 of 2010. Be it noted that the applicant as well as the Indian Railways have filed separate writ petitions against O.A.No.768 of 2010. Background The following background of these cases is sequential. The sanctioned strength of Cabin Masters (earlier Switchmen) in the East Coast Railway, the first petitioner in all the cases except W.P.No.23581 of 2010, was more than 140. After commissioning of panel interlocking in the railway division, all of them became surplus. In response to the proposal of the Southern Railway for absorption of surplus Cabin Masters, in the posts of Assistant Station Masters (ASMs) and Goods Guards, the Railway Board by a letter No.E(MPP)2004/1/5, dated 15.06.2004 communicated their decision to Southern Railway to “conduct an exclusive selection amongst Cabin Masters for absorbing them as Goods Guards against direct recruitment quota (DR quota) vacancies subject to their being found suitable and passing initial training course”. In accordance therewith, the Chief Personnel Officer (CPO) of the East Coast Railway requested the Divisional Railway Managers (DRM) of three railway divisions including Waltair advising to redeploy the surplus Cabin Masters as ASM or Goods Guards. In obedience thereto, Senior Divisional Personnel Officer (SDPO), Waltair issued a notification dated 16.03.2009 inviting options from Cabin Masters for the posts of Goods Guards by selection; Shunting Master-I by suitability; and Shunting Master-II by redeployment. The staff were required to undergo written examination. As many as 131 Cabin Masters exercised their option. The SDPO then informed the selection/written examination schedule vide communication dated 17.04.2009. Accordingly, the main written examination was held on 17.05.2009 and supplementary written test was held on 23.05.2009. The result of the written test was announced on 01.06.2009. Out of 126 optees who took the written test, 121 Cabin Masters were declared qualified vide communication dated 01.06.2009. Three months thereafter by communication dated 15.09.2009, SDPO cancelled the results of the written examination. A week thereafter, SDPO, Waltair, issued communication dated 23.09.2009 calling for applications from qualified employees of different groups/categories including the Cabin Masters for selection to draw a panel of 132 Goods Guards, against 60% departmental promotion (DP) quota. Being aggrieved four Cabin Masters who were qualified in the written test filed O.A.No.895 of 2009. They prayed for a declaration that the action of the SDPO in cancelling the results of the written examination held in May, 2009 and consequent notification inviting applications to fill up DP quota as illegal and arbitrary and for consequential direction to complete the process of filling up of vacancies of Goods Guards as per notification dated 16.03.2009. O.A.Nos.31 and 33 of 2010 were also filed for similar relief. The Cabin Masters contended that the cancellation of result of written examination is arbitrary and illegal; the issue of notification to fill up the DP quota without empanelling the Cabin Masters who opted for the posts of Goods Guards is illegal and arbitrary and that the cancellation is contrary to the instructions issued by the CPO on 28.11.2007. The Railways justifying cancellation of results of examination, opposed the relief contending that the earmarking of the posts of Goods Guards for Cabin Masters is against paragraph 124 of the Indian Railways Establishment Manual (IREM) Volume I; that out of 60% DP quota of Goods Guards, Cabin Masters are entitled only for 10%; the post of Goods Guard is not equivalent to Cabin Master which is feeder post, and therefore, redeployment as guards is against the Rules. The learned Tribunal framed two issues concerning the validity of the cancellation of the results of the written examination and the issue of a fresh notification for selection to the posts of Goods Guards against 60% DP quota. The first issue was held in favour of the Cabin Masters and the learned Tribunal did not find any illegality in issuing a notification to fill up 60% DP quota vacancies. By order dated 01.04.2010, the Tribunal directed the Railway Authorities to complete the process of preparation of panel based on the results of the written examination published on 01.06.2009 and fill up direct recruitment (DR) quota vacancies from among those who were empanelled as per their turn. A further direction was issued to keep the panel alive till it is exhausted. The Railways were also permitted to go ahead with the selection to fill up 132 vacancies against 60% DP quota as notified on 23.09.2009. The Railways filed review application in O.A.No.895 of 2009. The same was disposed of 16.07.2010 modifying the order dated 01.04.2010. The Railways were directed to keep the panel alive for a period of two years or till it is exhausted which ever is earlier. Being aggrieved, the Railways filed first group of writ petitions. This Court while admitting the writ petition, suspended the order dated 01.04.2010 in O.A.No.895 of 2009. In the meanwhile, on 30.04.2010, the Railways announced the results of the written examination for filling up 132 vacancies of Goods Guards against 60% DP quota. Some of the Cabin Masters then filed second group of original applications being O.A.Nos.502, 532, 722, 724 and 735 of 2010 etc., challenging the action of the Railways declaring the result of the examination to fill up DP quota vacancies. Relying on Railway Board Establishment communication No.E(MPP)96/1/28 (RBE No.251 of 1999) dated 29.09.1999, they contended that the Railways are bound to complete the preparation of panel for the posts of Goods Guards out of surplus Cabin Masters and fill up the posts on priority basis over DP quota; the notification for redeployment of surplus Cabin Masters on priority basis having been issued earlier; the selection for DP quota cannot be allowed to be proceeded with without completing the process of redeployment; all the surplus Cabin Masters are senior to the candidates who appeared for the examination for Goods Guards under DP quota; and that the announcement of results of the examination for DP quota is illegal and arbitrary. The Railways opposed the applications contending that the redeployment of surplus staff can only be against DR quota vacancies; the Cabin Masters in the Grade of Rs.4000- 20,200 plus Grade Pay (GP) of Rs.2,400/- are not entitled for redeployment as Goods Guards in the higher grade; the Railway Board communication dated 15.06.2004 to Southern Railway is not a general instruction; and that the Cabin Masters who are entitled to 10% out of 60% DP quota cannot have any grievance with the selection to fill up DP quota vacancy. Whether the Cabin Masters should be redeployed as Goods Guards on priority basis; whether the Railways are justified in contending that the Cabin Masters cannot be redeployed as Goods Guards with higher pay; and whether the Railways were justified in filling up DP quota vacancies. These are the three issues addressed by the learned Tribunal. Placing reliance on their order in O.A.No.895 of 1999 etc., the learned Tribunal while holding against the Railways on all the issues passed orders directing the Railways to fill up the DR quota immediately within the specified time limit as per the order in review application in O.A.No.895 of 1999 and then to give posting orders to those who were qualified in the DP quota and underwent training. Being aggrieved, as noticed supra, Railways filed second group of writ petitions being W.P.No.32655 of 2010 etc. This Court while admitting these writ petitions on 20.07.2011 ordered interim suspension. The SDPO vide communication dated 15.07.2010 again notified 176 vacancies of Goods Guards against 60% DP quota. In this, 28 vacancies were earmarked for Cabin Masters. Assailing the same, some of the Cabin Masters filed three original applications before the learned Tribunal seeking invalidation of the said notification and for a consequential direction to the Railways not to give further notification and for further direction until all the DR quota vacancies are filled with qualified surplus Cabin Masters. By a common order dated 09.09.2010, while holding that the action of the Railways in issuing notification to fill up 176 DP quota vacancies is unfair, unreasonable and illegal, the learned Tribunal allowed these applications and directed to fill up 49 DR quota vacancies first, then fill up 132 DP quota vacancies and thereafter to initiate action to fill up 176 DP quota vacancies along with corresponding DR quota vacancies. The Railways filed writ petitions being W.P.No.16176 of 2011 and two other cases against this order. The standing counsel for Railways Sri P.Bhaksar and Ms.Pushpender Kaur for petitioners and the counsel for the respondents/applicants (Cabin Masters) M/s.V.Ravindranath Reddy and Siva made their submissions. They also placed reliance on precedents. We will refer to these at appropriate place infra. Point No.1 Whether R.B.E.No.251/99 is binding on the East Coast Railway? The petitioners (Railways) would contend that the communication dated 15.06.2004 of the Railway Board to Southern Railway is not a general instruction; it was in response to a specific request made by Southern Railway and therefore, it cannot be made applicable in the case of redeployment of Cabin Masters in East Coast Railways. This submission is made presumably for the reason that in the letter dated 28.11.2007 addressed to the Divisional Managers (P) of East Coast Railway, the CPO referred to the Railway Board communication dated 15.06.2004 and advised the DRMs to redeploy the Cabin Masters as ASMs or Goods Guards. In their orders, the learned Tribunal referred to R.B.E.No.251/99 and came to the conclusion that the intention of the Railway Board is to give highest priority to the redeployment of surplus staff by considering them against DR quota vacancies giving priority. This conclusion is based on the instructions of the Railway Board in R.B.E.No.251/99. It can never be an error much less an error which warrants any cure. When the Tribunal considers the binding (on Railways) instructions giving plain meaning, we fail to understand or appreciate the argument that the Railway Board’s letter dated 15.06.2004 addressed to the General Manager of Southern Railway has no application. Indeed, the instructions to Southern Railway were themselves based on R.B.E.No.251/99. It was issued in the wake of adverse comments by Parliamentary Forums and workmen/ employees federation expressing anguish for the delay in redeployment of surplus staff due to change over from steam engines to electrical/diesel engines, use of all advanced technologies in operations and maintaining the railway network. So as to accord highest priority to the absorption of surplus staff by redeploying them, the Railway Board directed to give precedence over all the other modes of recruitment. For the sake of ready reference, we quote hereunder the entire R.B.E.No.251/99. Railway Administrations are aware that instructions have been issued from time to time regarding early redeployment of surplus staff by according highest priority to their absorption by giving it precedence over all other modes of recruitment. 2. However, a significant number of surplus staff including steam surplus both from the maintenance and running streams still continue to be placed against special supernumerary posts in absence of their gainful redeployment. 3. This aspect has been adversely commented upon by varius parliamentary forums in the recent past as well as the Federations who have expressed anguish for the delay in redeployment of surplus staff on Railways. After careful consideration of the matter, the following guidelines are herewith emphasized for implementation by the Railway Administration:- (i) Each Railway Administration shall draw out a time bound action plan for redeployment of surplus staff and advise Board the results thereof. (ii) Surplus staff should be considered on priority basis for redeployment in any department, by imparting necessary retaining as required and without insisting on the prescribed educational qualifications as applicable to these posts. It may, however, be noted that this relaxation will not apply for surplus stream maintenance staff for their absorption/redeployment in running categories. (iii) Surplus staff working against grades in which an element of direct recruitment exists, should be straight away re-deployed against Direct Recruitment vacancies including those in other departments after necessary screening. (iv) Wherever it is not possible to re-deploy surplus staff as indicated in para (i) to para (iii) of Board’s letter No.E(NG)II-84/RE/1/10 dated 21.4.89 or as indicated above, in such cases surplus staff should be redeployed in alternative activities against vacant posts, even if these vacancies are in the lowest grades. Vacant posts in the lowest grade, set aside for the purpose should be frozen and kept unfilled till the Cadre Balancing is achieved. (v) While ordering manning of post at new locations, Railway Administration may ensure posting of a mix of direct recruits, experienced staff of the department and surplus staff from other departments so that within the mixed group transfer of skills is smooth and each member mutually benefits from such an association. (vi) Each Railway should maintain a surplus employee data bank indicating inter-alia: (i) Name of the employee; (ii) Educational qualification including special qualification (if any); (iii) Date of Birth; (iv) Last pay drawn on being declared surplus; (v) Preference of posting in various departments (order of preference of employees may be obtained including for a particular category); (vi) Medical history of the employee including medical classification of fitness; (vii) Date of superannuation. 4. This data should be made use of frequently to fill up various posts including those created against new assets. 5. Railways are directed to suitably act upon the above guidelines and devise suitable monitoring machinery to ensure that surplus staff are gainfully re-deployed in the quickest possible time. Board may be kept informed of the progress of redeployment of surplus staff through a column in the monthly PCDO from CPO to Board (MS). This was communicated to all the General Managers of Indian Railways for information, guidance and necessary action vide Estt.Srl.No.289/99, dated 03.12.1999. Therefore, the purpose behind the issue of R.B.E.No.251/99 is to give highest priority for redeployment of surplus staff and a direction was issued to the absorption of surplus staff by giving precedence over all modes of recruitment. There is no dispute that the instructions issued by the Railway Board are binding on all the General Managers of all the Zonal Railways. The mere reference to Railway Board’s letter dated 15.06.2004 in CPO communication dated 28.11.2007 does not in any manner dilute R.B.E.No.251/99 nor the petitioners feign ignorance and take a plea which is wholly unsustainable. We, therefore, reject the contention. Point No.2 Whether redeployment against DR quota contravenes paragraph 124 of IREM Volume I? The standing counsel for Railways would contend that the redeployment of surplus staff by absorption can be made only against equivalent cadre post; and that the post of Cabin Master being one of the feeder posts, the surplus Cabin Masters cannot be appointed as Goods Guards against the DR quota. According to them, it would contravene the recruitment rule i.e., paragraph 124 of IREM Volume I. As per paragraph 124 of IREM Volume I, the vacancies of Goods Guards in the Grade of Rs.5200-20200 plus GP Rs.2,800/- are filled up by selection through calling options from different groups i.e., 60% DP quota; 15% by limited departmental competitive examination (LDCE) (plus shortfall if any against 60% DP quota) and 25% by direct recruitment through Railway Recruitment Board (RRB) (plus short fall if any against 15% LDCE quota). There is no dispute about the rule position. Also, there cannot be any dispute that as per paragraph 3(iii) of R.B.E.No.251/99, the surplus staff working against grades in which element of direct recruitment exists should be straightaway redeployed against DR vacancies including those in other departments after necessary screening. In paragraph 12 of the affidavit of SDPO accompanying W.P.No.22692 of 2010, it is admitted that out of cadre strength of 475, there are 338 vacancies of Goods Guards; Out of this, 176 are meant for DP quota and 162 are DR quota. In view of this, steps taken by the petitioners to go in for selection of Cabin Masters of Waltair Division for the purpose of redeployment of Surplus staff does not in any manner violate paragraph 124 of IREM. As per the notification dated 16.03.2009, the surplus Cabin Masters of Waltair Division were invited to exercise option for being considered to the post of Goods Guards, Shunting Master-I, and Shunting Master-II. The scale of Cabin Masters (Rs.4000- 20200 plus GP Rs.2,400) and the Scale of Shunting Master-II is the same. Therefore, direct redeployment was proposed. It only means that if the Cabin Master opts for Shunting Master-II without any written examination, he would be posted as Shunting Master-II subject however to undergoing necessary training. The scale of Goods Guard and Shunting Master-I (Rs.5000-34800 plus GP Rs.4200) is however higher to that of scale of Cabin Master. Therefore, it was proposed to appoint the surplus Cabin Masters as Goods Guards by selection and as Shunting Master-I by suitability. Paragraph 215 of IREM is to the effect that “selection” post shall be filled by a positive act of selection consisting of written test and/or viva voce test, subject to further condition that the staff in the immediate lower grade with minimum of two years service in that grade will only be eligible for promotion. The submission of the Railways that the redeployment can only be in the equal post in the background; does not merit any consideration. Consciously, the petitioners proposed to conduct selection test only to surplus Cabin Masters for appointment as Goods Guards which are the posts in higher grade of scale. That East Coast Railway decided to fill up 48 vacancies of DR quota by redeployment of surplus Cabin Masters; 22 vacancies of DP quota by redeployment exclusively of the Cabin Masters as one time exception stands concluded by communication dated 12.10.2009 from the office of the DRM to the CPO. In the said communication, the DRM, Waltair brings out admitted factual position. It is apt - aspects and for ready reference; to quote below the letter No.WPY/413/06/Gr.I & Gr.II, dated 12.10.2009 of the DRM, Waltair. Consequent upon commissioning of panel/RR1 in Waltair division, 143 Cabin Masters in scale of Rs.4000-6000/5200- 20200 PB 1 with grade pay of Fs.2400/- were rendered surplus and they need to be redeployed. The division is finding difficulty to redeploy large number of Cabin Masters because of lack of sufficient vacancies in the equivalent grade in operating and other departments. As per the avenue of promotion, the Cabin Masters can be promoted as ASM/Goods Guard in scale Rs.5200-20200 PB 1 with grade pay of Rs.2800/-. As on date; there are 210 vacancies of Goods Guards in the division which need to be filled up expeditiously to manage train operations smoothly. In terms of the extant provision, 25% of the vacancies of Goods Guard are to be filled through Direct Recruitment from RRB, 60% through departmental and 15% through LDCE. Of the 60% Departmental quota, the quota for Cabin Masters for promotion as Goods Guard is only 10% which works out to 6% of the total vacancies of Goods Guards. For the existing vacancies of 210 Goods Guards in the division, the departmental quota for Cabin Masters is 22 whereas there are 143 surplus Cabin Masters. The Direct Recruitment Quota for Goods Guard has been estimated at 48. Since redeployment of large number of surplus Cabin Masters is not possible, it is proposed that the Direct Recruitment Quota for Goods Guard may be earmarked exclusively for the surplus Cabin Masters as one time exception. This will take care of 70 i.e., (48+22) out of 143 surplus Cabin Masters. It is thus clear that as one time exception, 48 DR quota vacancies of Goods Guards and 22 vacancies of DP quota earmarked for Cabin Masters were exclusively kept apart for the redeployment of the surplus Cabin Masters by conducting selection. In the face of this communication, any plea that the redeployment of surplus Cabin Masters against DR quota to the extent of the quota, would contravene the relevant recruitment rule cannot be countenanced. In O.A.No.895 of 2009, the learned Tribunal directed to complete the process of preparation of panel based on the results of the written examination published on 01.06.2009; keep the said panel valid for a period of two years or till it is exhausted whichever is earlier. The Railway were permitted to fill up 132 posts of Goods Guards against 60% DP quota as notified on 23.09.2009. The order was latter modified in the Review in R.A.No.18 of 2010 directing the Railways to prepare the panel to fill up only 49 DR quota vacancies within two weeks from the date of receipt of copy of the said order. It was not done. Instead the results of the DP quota examination were announced which was assailed in the second group of cases. In their order in O.A.No.502 of 2010 and batch, the Tribunal therefore came to the conclusion that the Railways selectively implemented order in O.A.No.885 of 2009 by giving preference to filling up of DP quota vacancies ignoring the other direction to fill up 49 DR quota vacancies for the purpose of redeploying surplus Cabin Masters. This is not specifically denied before us. We are, therefore, convinced that the plea raised before us cannot be accepted and we do not find any error in the orders passed by the Tribunal insofar as this aspect is concerned. Point No.3 Whether cancellation of results of written examination is valid? The next issue to be addressed is whether cancellation of results of written examination by communication dated 15.09.2009 is sustainable. A subsidiary issue that needs to be addressed is whether the Cabin Masters who opted and appeared for written examination for redeployment as Goods Guards have any vested right to seek the redressal from the Tribunal. The law is fairly well settled. A citizen who participates in the selection to a public post cannot have any legal right to compel the public authority to take the selection process to the logical