PRABHAT RANJAN SINGH & ANR. versus R.K. KUSHWAHA & ORS.
[2018] 13 S.C.R. 313, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Arguments
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PRABHAT RANJAN SINGH & ANR.
v.
R.K. KUSHWAHA & ORS.
(Civil Appeal No.9176 of 2018)
SEPTEMBER 07, 2018
[MADAN B. LOKUR, S. ABDUL NAZEER AND
DEEPAK GUPTA, JJ.]
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
[2018] 13 S.C.R. 313
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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
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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
PRABHAT RANJAN SINGH   v. R.K. KUSHWAHA
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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.
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Case  Law Reference
[2012] 13 SCR 555
       relied on
Para 8
[1994] 1 Suppl. SCR 127     referred to
Para 32
[2013] 13 SCR 540
       referred to
Para 33
CIVIL APPELLATE/ORIGINAL JURISDICTION : Civil Appeal
No. 9176 of 2018.
From the Judgment and Order dated 12.05.2017 of the High Court
of Judicature at Patna in Civil Writ Jurisdiction No. 10669 of 2016
WITH
Contempt Petition (C) No. 717 of 2018 in SLP (C) No. 22444 of
2017, Contempt Petition (C)  No. 732 of 2018 in SLP (C) No. 22444 of
2017, S.L.P. (C) No.4144 of 2018 and T.C. (C) No. 52 of 2018.
Maninder Singh, ASG, P.S. Patwalia, Guru Krishna Kumar,
Ms. Kiran Suri, Sr. Advs., Vikas Mehta, Ms. Anushree Menon,
Ms. Shashi M. Kapila, Ms. Harshika Verma, Pravesh Sharma, Nikhil
Rohatgi, Shashank Khurana, Ms. Ranjeeta Rohatgi, Ms. Samten Doma,
Ms. Pragya Baghel, R. Balasubramanian,  Ms. Sushma Verma,
Ms. Kanika Saran, Raj Bahadur Yadav, Prabhas Bajaj, Mrs. Anil Katiyar,
Subhro Sanyal, Gaurav Goel, Advs. for the appearing parties.
The Judgment of the Court was delivered by
DEEPAK GUPTA J. 1. Leave granted in appeal arising out of
SLP (C) No(s). 22444 of 2017.
2. This is yet another battle, in the seemingly never ending war
between promotees and direct recruits.
3. In the Indian Railways, there is a service known as the Indian
Railway Service of Signal Engineers (for short ‘the IRSSE’).  This is a
Group-A service.  Recruitment to the service is by two modes – 50% by
direct recruitment and 50% by promotion from
amongst Group-B officers
in the feeder services. The direct recruits are selected through an
examination conducted by the Union Public Service Commission (for
short ‘the UPSC’).
PRABHAT RANJAN SINGH   v. R.K. KUSHWAHA
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4. On 23.10.2007, the Ministry of Railways issued a requisition to
the UPSC for filling up vacancies in the Group-A service.  The test was
to be conducted in the year 2008 and the recruitment was known as the
Engineering Services Examination, 2008.  Shri R.K. Kushwaha,
hereinafter referred to as ‘the direct recruit’, was successful in the said
examination.  He was duly selected and joined service on 14.12.2009.
Some officers, who were working in the Group-B service of the Signal
and Telecommunication Department of the Indian Railways were
promoted vide order dated 12.08.2014 to Group-A service with effect
from 08.05.2014.  These officers were given benefit of weightage of 5
years of service rendered in Group-B service in terms of Rule 334 of
the Indian Railways Establishment Manual (for short ‘the IREM’), Vol.1
and their relevant date for fixation of seniority was fixed as 08.05.2009.
5. The relevant portion of the order dated 12.12.2014 fixing the
seniority of the 87 promotee officers reads as follows:
“2.All the 87 officers will be placed in the seniority list below the
junior most direct recruit (DR) IRSSE officer of Engineering
Service Examination (ESE) 2007 batch (earliest date of joining
15.12.2008), and above the senior most Direct Recruit IRSSE
officers of Engineering Service Examination of 2008 batch (earliest
joining 14.12.2009), whose inter-se seniority has already been
circulated.”
Resultantly the
promotee officers were placed en bloc senior to
all the direct recruits.
6. Shri R.K. Kushwaha, a direct recruit, filed O.A. No. 050/00260/
2015 before the Patna Bench of the Central Administrative Tribunal (for
short ‘the CAT’) challenging the seniority given to the promotee officers
vide order dated 12.12.2014.  The petition was disposed of vide order
dated 01.04.2015 directing the Chairman of the Railway Board to consider
the representation of Shri R.K. Kushwaha dated 19.03.2015 within a
period of two months.  The Chairman vide speaking order dated
09.06.2015 rejected the plea of Shri R.K. Kushwaha to fix the seniority
of the direct recruits from the date of sending of the requisition.
According to the Chairman, the seniority of the Junior Scale, Group-A
officers of the eight organised railway services including the IRSSE
was to be fixed in terms of the provisions contained in the IREM Vol-1
which had the approval of the President under Article 309 of the
Constitution of India.
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7. Shri R.K. Kushwaha thereafter filed a fresh O.A. being O.A.
No. 460 of 2015 claiming the following reliefs :
“8.1 That your Lordships may graciously be pleased to quash and
set aside the impugned orders dated 09/12.06.2015 passed by
the Respondent No.1 together with order dated 12.12.2014
passed by the respondent No. 4 as contained in Annexure
A/8 and A/4 respectively which are contrary to the order
passed by Hon’ble Supreme Court of India in NR Parmar
Case and DOPT OM dated 04.03.2014 as referred to above.
8.2 That your Lordships may further be pleased to direct the
respondents to recast the seniority list afresh on the basis of
principle laid down by Hon’ble Supreme Court of India in NR
Parmar Case and DOPT OM dated 04.03.2014 as referred
to above without any further delay.
8.3  That the Respondents further be directed to issue Corrigendum/
amendment/Correction slip in Indian Railway Establishment
Manual Volume-1, henceforth in view of new Guidelines/
directives of DOPT OM dated 04.03.2014 as contained in
Annexure A/11 which is based on the principle/law laid down
by the Hon’ble Supreme Court of India in NR Parmar Case
regarding fixation of inter-se-seniority between Direct
Recruitees and Promotees Officers.
8.4 That the Respondents further be directed grant all consequential
benefits in favour of the applicant including promotion in JA
Grade on the basis of his seniority as per the principle laid
down by Hon’ble Supreme Court of India in NR Parmar
Case
and DOPT OM dated 04.03.2014 as referred to above.
8.5 Any other relief or reliefs including the cost of the proceeding
may be allowed in favour of the Applicant.”
8. It would be pertinent to mention that none of the promotee
officers was made a party in this O.A.. Arguments were heard and
judgment was reserved in the matter.  Thereafter, Shri Prabhat Ranjan,
who was a promotee and also the General Secretary of East Central
Railway Promotee Officers Association, East Central Railway at Hajipur
filed an application for impleadment. The application was taken up on
05.02.2016 and the same was allowed.  The judgment which had been
PRABHAT RANJAN SINGH   v. R.K. KUSHWAHA
[DEEPAK GUPTA, J.]
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reserved for pronouncement was de-reserved and on the same day, the
CAT heard all the parties and again reserved judgment.  Liberty, however,
was given to the parties to file written arguments. The CAT vide its
order dated 03.05.2016 partly allowed the O.A.  It rejected the prayer
of Shri R.K. Kushwaha that the direct recruits were entitled to get
seniority from 23.10.2007 the date on which the requisition for filling up
the direct vacancies was sent, on the ground that the case of Union of
India  vs.  N.R. Parmar & Ors.1 was not applicable in as much as the
reference to the year of requisition is always with reference to the
vacancy year.  If the vacancies are notified well in advance and requisition
made earlier to arising of the vacancies, the direct recruits cannot get or
claim benefit of seniority from the date of requisition.
9. The case of the direct recruit was that the principle laid down
in N.R. Parmar’s case (supra) had been recognized and implemented
by the Department of Personnel and Training (for short ‘the DoPT’) in
its circular dated 04.03.2014.  As per him, since requisition was issued
on 23.10.2007, he should be granted seniority from the said date.  The
CAT held that the case of the direct recruit that he should be given
seniority from 23.10.2007 is not acceptable.
10. In our view, this was, in fact, the only relief claimed by the
direct  recruit in  his O.A. and  the matter  should  have ended
there.
However, the CAT went on to examine the speaking order passed by
the Chairman, Railway Board dated 09.06.2015 and examined the same
in the context of the DoPT circular dated 04.03.2014 and the judgment
of this Court passed in the N.R. Parmar’s case (supra).
11. The case of the Railways as well as the present appellant,
who was the intervener in the O.A. was that their seniority had to be
fixed in terms of the IREM Vol-1, which provided that the promotees
were to be given a maximum of 5 years weightage in terms of Rules 327
to 341.  It is not necessary to extract all the rules.  It would suffice to
note that Rule 328 provided that the seniority of officers appointed to
various Group-A services in the Indian Railways shall be determined on
the basis of ‘date of increment in the time scale (DITS)’ which is to be
determined in accordance with certain laid down principles.  In the case
of direct appointment, pursuant to an examination conducted by the
UPSC, the DITS is to be reckoned from the date of commencement of
earning increments in the regular scale. Rule 334 provides that in case
1(2012) 13 SCC 340
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of Group-B officers permanently promoted to Group-A services, the
DITS of the above officers would be determined by giving weightage.
The said rule reads as follows:
“334 In the case of Group ‘B’ officers permanently promoted to
Junior Scale of Group ‘A’ services:
(1)    xxx
xxx
       xxx
(2)  If two or more than two officers are promoted on the same
date, the following method shall be followed to determine their
inter-se seniority within the Railway:-
(i)   The relative seniority of officers of each Railway shall be in
the order of their position in the panel for that Railway.
(ii)  The DITS of the above officers, shall be determined by giving
weightage based on:
(a)  the year of service connoted by the initial pay on permanent
promotion to Group ‘A’ service; or
(b)  half the total number of years of continuous service in
Group ‘B’, both officiating and permanent;
whichever is more, subject to a maximum of 5 years; provided
that the weightage so assigned does not exceed the total
non-fortuitous service rendered by the officer in Group ‘B’.”
12. Before the CAT, it was urged by the Railways and the
intervener that N.R. Parmar’s case (supra) was not applicable because
weightage of 5 years, as additional years of seniority was to be given to
the promotees and in this behalf reference was also made to the Indian
Administrative Service (IAS) (Regulations of Seniority) Rules, 1987
wherein also State Civil Service Officers who are inducted into the IAS
are
given some weightage while fixing their ‘year of allotment’.  The
CAT held that in the scheme of IAS any vagaries or arbitrariness due to
the date when the recruitment process is completed is removed whereas
in the railways reference to seniority and inter se seniority on the basis
of DITS is subject to unintended delays in the completion of one
recruitment process or the other and this may even be due to human
manipulation.  The relevant portion of the order dated 03.05.2016 of the
CAT reads as follows:
PRABHAT RANJAN SINGH   v. R.K. KUSHWAHA
[DEEPAK GUPTA, J.]
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“19…….Therefore, the basic philosophy of NR Parmar of
removing arbitrariness because of date on which an action is
completed with respect to the two streams holds good in this case
also.  Policy making is within the domain of the Executive, but this
has to be reasonable and rational.  Since there is obvious scope
for arbitrariness in the Railways policy, we have to intervene in
judicial review.  The Railways must align their policy in consonance
with this fundamental philosophy of N.R. Parmar.
20. Another serious anomaly we find from the respondents action
is that while the ratio described for the DR and the promotees is
50:50, they have over the years inducted promotees about three
times the number of direct recruits.  In the representation before
the Chairman, Railway Board, the applicant has shown that from
the year 2001 to 2007 against 95 direct recruits, 376 promotees
have been inducted.  The chairman, railway Board has justified
this on the ground that as per the government instructions, direct
recruitment was curtailed to one-third for those years.  Such
government instructions cannot alter the basic principle of laid
down ratio between the DR and promotes.  If downsizing was
the objective, this has to be done keeping the ratio between DR
and promotees intact. ……..
21.
xxx
xxx
xxx
22. Thus, the provisions of the IREM determining inter se seniority
based on DITS are clearly flawed and arbitrary.  Accordingly,
we
quash and set aside the impugned orders dated 9/12.6.2015
(Annexure A/8) and date 12.12.2014 (Annexure A/4) being
contrary to the underlying principle emerging from the Hon’ble
Apex Court judgment in N.R. Parmar case as well as DOPT
guidelines in this regard, which mandate that wherever it is
considered necessary to follow different principles for inter se
seniority, consultation should be made with the DOPT.  The
respondent are directed to recast the seniority afresh and take
necessary action to make corrections in the IREM in the light of
the aforesaid observations within a period of four months from
the date of receipt/production of a copy of this order.”
13. Shri Prabhat Ranjan Singh challenged the order of the CAT
before the Patna High Court by filing Writ Petition No. 10669 of 2016
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along with one Shri Girish Kumar.  This petition was dismissed vide
order dated 12.05.2017 and one of the main grounds for dismissal of the
petition was that the circular of the DoPT dated 04.03.2014 was binding
on the Railways.  The Patna High Court went on to hold that the IREM
is not statutory in nature and is only a codified set of guidelines. It further
went on to hold that the power of the Railways to frame rules under
Rule 201 of the Indian Railway Establishment Code (for short ‘IREC’),
which is statutory in nature, is only confined to Group-C and Group-D
posts.  Therefore, the Railways are bound by the OM issued by the
DoPT.  This judgment has been challenged by Shri Prabhat Ranjan Singh.
14. It would also be pertinent to mention that pursuant to the
direction issued by the CAT on 03.05.2016, the Railways amended  Rules
327 to 341 of the IREM Vol-1 by removing reference to ‘DITS’ and
introduced the concept of ‘year of allotment’.  According to the Railways,
as per the amended rules inter se seniority between direct recruits and
promotees shall be determined and fixed on the basis of ‘year of allotment’
and not on the basis of ‘DITS’.  The amendment is applicable in all
cases of fixation of inter se seniority of promotee officers from the
panel of 2012-2013 onwards and for Direct Recruit 2006 examination
onwards.  Thereafter, the seniority has been re-fixed and only the
promotee officers, who have been allotted 2008 as the ‘year of allotment’
have
been given seniority over the direct recruits and those promotee
officers who have been allotted 2009 as the year of allotment have been
ranked en bloc junior to the direct recruits of the year 2009.  Thus, the
anomaly pointed out by the CAT has been removed and the system
which is followed in the IAS is being applied even in the Railways.
15. This development took place on 05.03.2018, during the
pendency of this petition.  According to the direct recruits, the action of
the Railways in placing some of the promotee officers above the direct
recruits was violative of the order of the CAT and they, accordingly filed
contempt petition no. 050/00070/17 before the CAT which was dismissed
vide order dated 02.04.2018.  The CAT held that in its order the reference
to N.R. Parmar’s case (supra) 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 and the revised
policy after amendment fixes the ‘allotment/vacancy year’ for fixing the
seniority and not ‘DITS’. It also held that since this Court is seized of
PRABHAT RANJAN SINGH   v. R.K. KUSHWAHA
[DEEPAK GUPTA, J.]
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the matter, the parties can place their grievance regarding the legality of
the revised policy before us. The contempt petition was dismissed.
16. Aggrieved by the order of the CAT, the direct recruit filed
writ petition being CWJC No. 6489 of 2018 (R.K. Kushwaha v. Union
of India & Ors.) before the Patna High Court for quashing/setting aside
the order dated 02.04.2018 passed in the contempt petition.  Vide order
dated 03.05.2018, we have transferred the aforesaid writ petition to this
Court.
17.  We have heard learned counsel for the parties.  Before us
Shri P.S. Patwalia, learned senior counsel for the appellant (Prabhat
Ranjan Singh) submitted that the petition has been rendered infructuous
in view of the amendment to Rules 327 to 341 of the IREM Vol-1.  He,
however, submitted that the observations made by the CAT and the
High Court that the DoPT circulars are binding on the Railways and that
the observations of the Patna High Court that IREM has no statutory
force are wrong and are liable to be set aside.  On the other hand, Shri
Mukul Rohatgi and Shri Guru Krishna Kumar, learned senior counsel
appearing for the direct recruits submitted that the IREM, which provided
for giving weightage in seniority to the promotees, was set aside by the
CAT.  Therefore, by still continuing to give weightage to the promotees
the contemnors have committed contempt of order of the CAT.  It has
also strenuously been urged before us
that the rules which provide for
giving weightage to the promotee officers are totally illegal and arbitrary.
Shri Maninder Singh, learned Additional Solicitor General submitted that
the Railways are empowered to frame their own rules.  According to
him, even the IREMs are issued with the concurrence of the President
of India in terms of Article 309 of the Constitution of India and framed
under the Constitution of India.
18. In our view, the following issues arise for decision:
I
 Whether the Railways is bound by the rules framed by the
DoPT or it can frame its own rules and whether the IREM has
statutory force?
II  Whether Shri R.K. Kushwaha, the direct recruit had laid
challenge to the rules, which provide for giving weightage in
the seniority to the promotee officers?
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III  Whether the findings of the CAT in respect of N.R. Parmar’s
case (supra) was limited to removing the arbitrariness only in
respect of ‘DITS’?
IV Whether by issuing the memorandum dated 05.03.2018
amendment/modifying rules 327-341 the Railways have violated
the order issued by the CAT?
 I  Whether the Railways is bound by the rules framed by
the DoPT or it can frame its own rules and whether the
IREM has statutory force?
19. The CAT, in its order, held that the Railways are bound by the
DoPT circulars.  The High Court of Patna has gone further and has
come to the conclusion that the Railways have no jurisdiction to frame
rules for Group A & B services.  The High Court has further held that
the IREM rules are not statutory in nature and are only guidelines having
no binding force.  On the other hand learned senior counsel for the UOI
has drawn our attention to the Government of India (Allocation of
Business) Rules 1961 framed under Clause 3 of Article 77 of the
Constitution of India.  Under these Rules business has been allocated to
different departments. As far as the DoPT is concerned the relevant
portion reads as under:-
“I. RECRUITMENT, PROMOTION AND MORALE OF
SERVICES
1.  ........
2. General questions relating to recruitment, promotion and
seniority pertaining to Central Services except Railways Services
and services under the control of the Department of Atomic Energy,
the erstwhile Department of Electronics, the Department of Space
and the
Scientific and Technical Services under the Department
of Defence Research and Development.
3.  ...........
4.  General policy matters regarding classification of posts and
grant of gazetted status in relation to Services other than Railway
Services.
PRABHAT RANJAN SINGH   v. R.K. KUSHWAHA
[DEEPAK GUPTA, J.]
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5. Recruitment of ministerial staff for the Government of India
Secretariat and its attached offices except that for the
Department of Railways, the Department of Atomic Energy, the
erstwhile Department of Electronics, and the Department of
Space.
6.  Appointment of non-Indians to Civil posts under the Government
of India except posts under the Department of Railways, the
Department of Atomic Energy, the erstwhile Department of
Electronics and the Department of Space.
xxx                 xxx
xxx
IV.
SERVICE CONDITIONS
21. General questions (other than those which have a financial
bearing including Conduct Rules relating to All India and Union
Public Services except in regard to services under the control
of the Department of Railways, the Department of Atomic
Energy, the erstwhile  Department of Electronics and the
Department of Space).
22. Conditions of service of Central Government employees
(excluding those under the control of the Department of
Railways, the Department of Atomic Energy, the erstwhile
Department of Electronics, the Department of Space and the
Scientific and Technical personnel under the Department of
Defence Research and Development, other than those having a
financial bearing and in so far as they raise points of general service
interest).
23(a) – (d)   …............
24.
................
25.
................
26.
................
27. General policy regarding retrenchment and revision of
temporary
Government servants except those under the
Department of Railways.”
 xxx               xxx                xxx
20.   A perusal of the Allocation of Business Rules, 1961, especially
the highlighted portion leaves no manner of doubt that the Railways is
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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, 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.  We may make
it clear that 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.
21. 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.
22. The Ministry of Railways has a set of codified rules known as
the Indian Railways Establishment Code (IREC).  It is not disputed before
us that 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.
However, it has been urged on behalf of the direct recruits that IREM
does not have any statutory force.  It would also be pertinent to mention
that the DoPT
itself has issued a office memorandum dated 16.02.2018
stating that the matters relating to recruitment, promotion & seniority in
respect of Ministry of Railways do not fall within the jurisdiction of the
DoPT.  We need not refer to all the documents referred to because 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 IREM.
23. Even with regard to the IREM it has been urged by the learned
ASG that these rules and the various modifications/amendments  issued
from time to time to the IREM are also issued under the proviso to
Article 309 of the Constitution and as such they have the statutory force.
24. We have gone through the various communications with regard
to the IREM and find that all of them make a mention that they have
been issued in exercise of powers conferred by proviso to Article 309 of
the Constitution.  We may specifically refer to only one document, i.e.,
PRABHAT RANJAN SINGH  v. R.K. KUSHWAHA
[DEEPAK GUPTA, J.]
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amendment to the IREM Rules 327 to 341 made in pursuance to the
judgment delivered by the CAT on 03.05.2016.  The relevant portion of
the communication reads as follows:-
“.........
In exercise of the powers conferred by the proviso to Article
309 of the Constitution the President have further decided that
principles for inter-se-seniority of Direct Recruit Group ‘A’ officers
and promotee Group ‘B’ officers inducted into Group ‘A’ Junior
Scale effective from the panel year 2012-13, stands modified/
amended as per Annexure-I.
.........”
This leaves no manner of doubt that the rules under IREM Vol.1
are also statutory rules.
25. In view of the above, there can be no manner of doubt that
the Railways is not bound by the memorandum issued by the DoPT and
are empowered to frame its own rules to lay down the service conditions
of its employees.  We also hold that the IREM has statutory force and
has been issued in exercise of powers vested under the proviso to Article
309 of the Constitution.
II  Whether Shri R.K. Kushwaha, the direct recruit had
laid challenge to the rules, which provide for giving weightage in
the seniority to the promotee officers?
26. As far as the second question is concerned we may note that
we have already quoted the prayer clause of OA No.460 of 2016 filed
before the CAT.  In the said OA there is not even a whisper of a challenge
to the policy of giving weightage to the promotees.  In fact that
issue
was not raised before the CAT.  The case set up by the direct recruits
before the CAT was that since the requisition for recruitment had been
issued on 23.10.2007, they should be granted seniority from that date in
view of the judgment rendered by this Court in N.R. Parmar’s case
(supra) read with DoPT OM dated 04.03.2014.  It has been urged by
Shri Guru Krishna Kumar, learned senior counsel appearing for the direct
recruit that prayer 8.3 in which it is prayed that corrigendum/amendment/
corrections slip be issued in IREM Volume-I is itself a prayer to quash
the said IREM.  We are unable to accept this contention.  If the direct
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recruit wanted to lay challenge to the policy of giving weightage to
promotees then the basis for the challenge had to be made in the original
application and the rule granting such weightage had to be specifically
challenged in the prayer clause.  The promotees who were liable to be
affected should have been arrayed as respondents.  Such a challenge
cannot be entertained from the back door by merely alleging that
corrigendum/ amendments/corrections to the IREM be issued.  Neither
the corrigendum, nor the amendment or the corrections could result in
the quashing of rule granting weightage.  Furthermore, if prayer 8.3 is
read as a whole, what is prayed is that the correction be made with a
view to bring the IREM in line with DoPT OM dated 04.03.2014, which
is based on the principle of law framed in N.R. Parmar’s case (supra).
27. We may also note that before us the original application filed
by Shri R.K. Kushwaha has been produced in which the main case set
up was that in view of the law laid down in N.R. Parmar’s case (supra)
the date of sending requisition for filling up the vacancies is the date
from which the direct recruits should be granted their seniority.  The
following averments made by Shri Kushwaha in para 4.3. of his OA are
relevant:-
“.........
4.3 That in this regard it is submitted that while the applicant was
working in Group-A service of IRSSE, several Group-B officers
i.e. 87 in number has been promoted/inducted in Group-A service
of
IRSSE vide order dated 12.08.2014 for the panel year 2012-13
and 2013-14 w.e.f 08.05.2014, hence such promote officers are
entitled to get the benefit of seniority w.e.f  08.05.2009 after giving
weightage of 05 years whereas the applicant being Direct
Recruitee is entitled to get the benefit of seniority w.e.f 23.10.2007
i.e. from the date of requisition for filling up the vacancies of
Group-A service in view of the decision given by the Hon’ble
Supreme Court of India in the case of Union of India  Vs  NR
Parmar in which the issue of seniority in between Direct Recruitee
and Promotees have been settled on 27.11.2012 against which
the Union of India has also filed Civil Review and the same has
been dismissed on 07.08.2013.  .........”
PRABHAT RANJAN SINGH  v. R.K. KUSHWAHA
[DEEPAK GUPTA, J.]
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28. This leaves no manner of doubt that the only case set up by
the direct recruit was that he was entitled to seniority from 23.10.2007,
the date on which requisition for filling up the direct recruit posts was
sent and the promotees after being given due weightage of 05 years
were entitled to seniority w.e.f. 08.05.2009.  Therefore, he cannot now
urge that he had laid challenge to the rule providing for grant of weightage
to the promotees.
III  Whether the findings of the CAT in respect of N.R.
Parmar’s case (supra) was limited to removing the arbitrariness
only in respect of ‘DITS’?
29. Before dealing with this issue we may note that we are not at
all in agreement with the interpretation sought to be given by the direct
recruits to the decision rendered in N.R. Parmar’s case (supra), that
they are entitled to seniority from the date of requisition.  On a perusal
of the judgment in N.R. Parmar’s case (supra), we find that in that
case this Court was dealing with those situations where the process of
either direct recruitment or promotions takes an unduly long time.  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.
30. In this behalf, we may make reference to the following
observations of this Court in the case of N.R. Parmar (supra) :
“34.1. If the process of recruitment has been initiated during the
recruitment year (in which the vacancies have arisen) itself, even
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if the examination for the said recruitment is held in a subsequent
year, and the result is declared in a year later (than the one in
which the examination was held), and the selected candidates
joined in a further later year (than the one in which the result was
declared), the selected candidates will be entitled to be assigned
seniority, with reference to the recruitment year (in which the
requisition of vacancies was made). The logic and reasoning for
the aforesaid conclusion (expressed in the ON dated 2-2-2000)
is, if the process of direct recruitment is initiated in the recruitment
year itself, the selected candidate(s) cannot be blamed for the
administrative delay, in completing the process of selection.
34.2. The words “initiation of action for recruitment”, and the
words “initiation of recruitment process”, were explained to mean,
the date of sending the requisition to the recruiting authority.”
31. 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.  The CAT 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.
IV  Whether by issuing the memorandum dated 05.03.2018
amendment/modifying rules 327-341 the Railways have violated
the order issued by the CAT?
32.  We
have quoted the order of the CAT hereinabove and what
the CAT ordered was that the IREM determining the inter se seniority
based on DITS was clearly flawed and arbitrary.  The order dated
09.06.2015 and 12.12.2014 were quashed and set aside being violative
of the judgment of this Court in N.R. Parmar’s case (supra) and the
DoPT guidelines.  As held above there was no challenge to Rule 334
which provides for giving weightage to the promotees.  This Rule was
not challenged directly or indirectly and the CAT has not at all dealt with
this Rule.  We may add that an identical rule has been held to be valid by
this Court in A.K. Nigam  vs.  Sunil Misra2.  This judgment has been
noted by the CAT and yet the CAT did not discuss this judgment.  It is
obvious that the CAT did not go into the validity of Rule 334.  All that the
CAT held was that instead of the ‘DITS’ being the determining factor to
2(1994) Supp.2 SCC 245
PRABHAT RANJAN SINGH   v. R.K. KUSHWAHA
[DEEPAK GUPTA, J.]
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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 holding that the entire
discussion with reference to N.R. Parmar’s case (supra) 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.
33. We may add that lengthy arguments have been addressed on
behalf of the direct recruits contending that the rule which provides that
weightage be given to the promotees is arbitrary and in this regard
reference has been made to the judgment of this Court in P. Sudhakar
Rao & Ors. vs. U. Govinda Rao & Ors3 and it is urged that in view of
this
judgment the decision of this Court in A.K. Nigam’s case (supra) is
no longer good law.  On the other hand both the learned ASG and the
senior counsel for appellants have urged that A.K. Nigam’s case (supra)
still holds the field as P. Sudhakar Rao’s case (supra), was a case
decided in a fact scenario where there was no provision for granting
such weightage.  It was also urged that the practice of giving weightage
to the promotees in the Railways has been in vogue since 1955 and the
railways has justified its action of giving weightage to the promotees by
urging that the promotees are doing the same work in the lower post as
is being done by them after promotion.  Therefore, there is no change in
the nature of their work after promotion and the benefit of weightage is
given for the experience which they have got for doing such work.  It
has also been urged that most of the promotees are already getting higher
emoluments than are payable to the direct recruits on their induction and
this is also a factor taken into consideration for granting this weightage.
We are not going into these questions.  We have clearly held that there
3(2013) 8 SCC 693
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was no challenge to Rule 334 in the original application and such a
challenge cannot be countenanced or entertained either in contempt
proceedings or on behalf of the respondents while defending the appeal
in this Court.  We make it clear that we have not expressed any opinion
on the rival contentions of the parties on this issue.
34. The situation as on date is that rules have been amended.
These rules have to be implemented.  Neither the promotees nor the
direct recruits have challenged these rules.  We are therefore not going
into other issues raised by the parties.
35. We dispose of the appeal by holding that the CAT had only
directed that instead of ‘DITS’, the ‘year of allotment’ should be the
determining factor/criteria for determining the inter se seniority.  We
further hold that there was neither any challenge to Rule 334 of the
IREM Vol. 1 in the original application nor did the CAT go into this issue.
We, accordingly uphold the order dated 02.04.2018 passed by the CAT,
Patna Bench dismissing the contempt petition filed by the direct recruit
Mr. R.K. Kushwaha.  Consequently, the  Transferred Case
No. 52/2018 i.e. Writ Petition being CWJC No. 6489/2018 before the
Patna High Court is dismissed.
36. Applications for intervention/impleadment are rejected.
37. The contempt petitions and all pending applications shall also
stand disposed of.
SLP (C) NO(S). 4144 OF 2018
38. This petition is directed against the interim order dated
29.01.2018 passed by
the High Court of Madhya Pradesh, Principal
Bench at Jabalpur in Writ Petition No. 299 of 2018.  The petition itself
has been finally disposed of by the High Court vide order dated 20.03.2018
and, therefore, this petition is rendered infructuous and disposed of as
such.
Ankit Gyan
                                         Matters disposed of.
PRABHAT RANJAN SINGH . v. R.K. KUSHWAHA
[DEEPAK GUPTA, J.]