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 N.R. Parmar case and DOP&T's O.M. 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 N.R. Parmar case and DOP&T's O.M. dated 04.03.2014 Patna High Court CWJC No.10669 of 2016 dt.12-05-2017 3/29 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 DOP&T 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 N.R.Parmar case regarding fixation of inter-se seniority between Direct Recruitees and promotees Officers.

8.4. That the respondents further be directed to 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 N.R. Parmar case and DOP&T's O.M. dated 04.03.2014 as referred to above."

3. The factual background, which led to the present litigation, is that a requisition was sent by the Railway Board dated 23.10.2007 to the Union Public Service Commission (UPSC for short). As a consequence thereof, the private respondent came to be appointed on a Group-A service of Indian Railway Service of Signal Engineers on 01.12.2009 through Engineering Service Examination

- 2008. While the private respondent was working as a Group-A officer of the Signal Engineering Service, vide order dated 12.08.2014 a panel for the year 2012-13 and 2013-14 with effect from 08.05.2014 was drawn-up. The promotee officers were given Patna High Court CWJC No.10669 of 2016 dt.12-05-2017 4/29 benefit of seniority with effect from 08.05.2009, whereas the private respondent despite being a direct recruit, was not given the benefit of seniority w.e.f. 23.10.2007, i.e. the date of requisition for filling up the vacancies of Group-A service despite the decision of the Hon'ble Apex Court rendered in the case of N.R. Parmar (supra).

4. After the decision of the Apex Court in N.R. Parmar's case (supra), the DOP&T, Government of India, issued a OM dated 04.03.2014 for fixation of seniority of direct recruits vis-à-

vis promotees. The private respondent vide order dated 12.12.2014 was placed below the promotees for the panel year 2012-13 and 2013-14, which the private respondent made a grievance of that such a decision was totally illegal, arbitrary, unconstitutional and in teeth of N.R. Parmar's case (supra) as well as the DOP&T OM dated 04.03.2014, which clearly stipulated that the date of sending requisition for filling-up vacancies to the recruiting agency, i.e. the UPSC, in relation to direct recruits will be the date for fixing their seniority and not the date of joining. Since, in the present case, the requisition was sent to the UPSC on 23.10.2007, hence, the relevant date for fixing seniority for the private respondent should have been 23.10.2007, whereas the respondent Railway authorities issued the order dated 12.12.2014 (Annexure-A/4 to O.A.) on the basis of his date of joining, which was 14.12.2009.

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5. The direct appointees coming to know of such decision sent representations individually as well as through their Association for re-determination of seniority in conformity with judicial pronouncement. When nothing came to be done, an O.A. No. 260 of 2015 was filed, which was disposed of on 01.04.2015 with a direction upon the respondent authorities of the Railway, especially the Chairman, Railway Board, to treat the O.A. as a representation and pass a speaking, reasoned order within a month.

6. The representation of the private respondent was rejected vide letter dated 12.06.2015, which was Annexure-A/8 to the O.A. The rejection order gave the reason that N.R. Parmar's case (supra) or the OM dated 04.03.2014 was not applicable to the Railway since they have their own recruitment and seniority rules applicable to Group-A Railway service. The rejection order also quoted part of an earlier DOP&T OM dated 12.12.1959, which, according to the private respondent, had no applicability but was quoted out of context. It was the stand of the private respondent before the CAT that even though the speaking order had accepted that the DOP&T OM dated 04.03.2014 is based on earlier OM dated 22.12.1959, but there was no reference as to deviation from such principles of DOP&T, which laid down that in case any Ministry or Department wanted to follow a different principle with regard to Patna High Court CWJC No.10669 of 2016 dt.12-05-2017 6/29 grant of seniority etc. they had an obligation to consult the UPSC/DOP&T, which was not done in the present case.

7. Even for the sake of argument, if the Railway rules with regard to seniority was contrary to the judgment passed by the Apex Court in N.R. Parmar's case (supra), which is the law of the land as well as DOP&T OM dated 04.03.2014, they had to revert to the UPSC or seek clarification from DOP&T before issuing the promotion orders and altering the seniority of the direct recruits.

8. The respondents before the CAT, i.e. Railway, took a plea that it was not for the Tribunals to issue directions and advisories with respect to the areas and spheres which is within the domain of the executive since the order under challenge in the O.A. that was Annexure-A/4 and Annexure-A/8, was in accordance with Rule 334(2)(ii) of the Indian Railway Establishment Manual (in short 'IREM')Vol.-I framed by the competent authority after taking into consideration the material facts. There was no occasion for the Tribunal to interfere with the decision of the Railway. It was also their stand that as per Rule 330 of the Indian Railway Establishment Manual Vol.-I, Officers appointed to Indian Railway service Group-

A, on the basis of examination held by the UPSC with effect from 1986 examination batch, shall count their service for seniority from the date they commenced earning increments in the regular scale as Patna High Court CWJC No.10669 of 2016 dt.12-05-2017 7/29 Junior Scale Officers in Group-A. It was also the stand of the respondent Railway authorities that since they had their own set of rules for fixation of seniority with regard to promotion of direct recruits and since the N.R. Parmar's case (supra) was in context of Income Tax Department, the same will have no applicability.

Therefore, the seniority of the private respondent was rightly fixed under the promotees and O.A. was fit to be dismissed.

9. The stand of the Railway was seriously contested by the private respondent that the DOP&T OM dated 04.03.2014 was universally followed by all Departments of the Central Government, Railway should have either amended their rules or fallen in line and applied the OM dated 04.03.2014 if not the ratio of the decision of N.R. Parmar's case (supra).

10. Since the CAT Bench by and large crystallized the arguments in following terms, they are reproduced hereinbelow for ready reference :

There are clear and specific instructions in IREM Vol.1, on the Inter-se-seniority of direct recruit Junior Scale Group-A officers of the eight organized Railway services including IRSSE, to which the applicant belongs. Their seniority is fixed in terms of provisions contained in- IREM [Vol.1] which has the approval of the President under Article 309 of Indian Constitution.

As per the Rule 328 of the IREM-I, the seniority of officers appointed to various Indian Railway Services in Gr. A Junior Time Scale shall be determined on the basis of Date of Increment in time scale [DITS], which is the date of joining service for direct recruits and is arrived at for Promotees after their induction in Gr. A by giving weightage in seniority. As per Rule 336 pf the IREM-1, officers permanently appointed to Group 'A' Junior Scale [Promotees] against the quota of vacancies reserved for them shall be placed below or above a particular batch of direct recruits accordingly as their DITS are earlier or later than the earliest date on which any one of the direct recruits in a particular batch joins service.

2. The contention of the applicant and figures of the Promotees officers inducted against the relevant year 2001 to 2007 are incorrect. Only 22, 8, 12, 12, 24, 26 and 45 promotees officers, respectively, have been inducted against the promotion quota vacancies for the year 2001 to 2007, after dividing the available vacancies of the Junior Scale in the ratio of 50:50 between the direct recruits and promotees. The indent for direct recruit during the relevant year was curtailed by 2/3rd in terms of Governments instructions to optimize direct recruitment to 1/3rd of the direct recruitment vacancies for five years from the vacancy year 2001-02, which was subsequently extended till 2009. While there was restriction on recruitment from open market against the Direct Recruit Quota there was no corresponding restrictions on induction of Promotees to the Group 'A' Junior Scale against the corresponding promote quota vacancies.

3. The contentions made that the DPC for two vacancy year 2012-13 and 2013-14, of the Patna High Court CWJC No.10669 of 2016 dt.12-05-2017 9/29 Promotees was held together in violation of the guidelines of DOP&T is, not correct. The two panels were finalized strictly in terms of Government instructions and guidelines laid down by DOP&T in terms of para 6.4.1 of Department of Personnel and Public Grievances OM dated 10.04.1989.

In view of above, it is my considered view that the applicant is governed by recruitment/seniority rules applicable to Group A Railway Services laid down in IREM Vol.1 and his seniority, as well as the seniority of promote officers of 2012-13 and 2013-14 has been fixed strictly in terms of these Rules. Therefore, the order dated 12.12.2014, which has been issued in terms of these laid down Rules, stands good."

6. However, from perusal of the DOP&T circular dated 22.12.1959, it transpires that the said circular stipulates general principles for determination of seniority in government service, wherein it is specifically observed as under:-

7. The said principle/OM dated 22.12.1959 was followed from time to time and ultimately vide OM dated 04.03.2014, it has been stipulated as under :-

11. Their Lordships have later analysed and summarized their own reasoning in which in sub-para [b] of the same para, they have observed "it would suffice if action has been initiated for DR vacancies within the recruitment year in which the vacancies had become available."

12. Finally, the Parmar's judgment led to DOPT OM dated 04.03.2014, in which the concluding para 7 is as follows :-

13. Thus, the issue of initiating the process [i.e. sending the requisition to recruiting agency] always envisages initiation in the vacancy year itself. It is quite possible for an organization to initiate action a year prior to the vacancy year in case of direct recruitment knowing yhat the process takes at least a year. That would not confer the direct recruitees seniority with reference to the date of requisition. The seniority has to be with reference to the vacancy year." Patna High Court CWJC No.10669 of 2016 dt.12-05-2017 13/29

11. The respondent Railway authorities, in addition to the plea that they have own set of guidelines or rules for grant of promotion, also took an alternative plea that award of additional weightage to promotee officers because of their long experience in similar post is not unknown in service jurisprudence. Reliance was placed in the case of A. K. Nigam and Ors. Vs. Sunil Misra and Anr. , reported in 1994 (Supp. 2) SCC 245. The CAT considered the stand of the respondents with regard to grant of weightage to the promotee officers and replied in the following terms :

12. The Tribunal, therefore, felt that the anomalous situation has arisen because the Railway failed to consult the DOP&T, which was a mandatory requirement. If the Railway wanted to have a separate set of Rules or guidelines for grant of promotion, a divergent policy cannot be taken by any department without due approval of the UPSC/DOP&T and there is an object behind such a requirement that is to instill reasonableness and rationality which are the basic principles which govern inter-se seniority.

13. The Tribunal, therefore, set aside the impugned orders dated 09/12.06.2015 (Annexure-A/8 of the OA) as well as Patna High Court CWJC No.10669 of 2016 dt.12-05-2017 16/29 order dated 12.12.2014 (Annexure-A/4 of the OA) since it was in teeth of the Hon'ble Apex Court judgment as well as the DOP&T OM and guidelines. A direction was issued to rework the seniority list in conformity with what the CAT had decided.

14. The present set of petitioners while assailing the order and decision of the CAT took a plea that Rule 334 to 341 of the Indian Railway Establishment Code was not taken into consideration. Such a Code is law by itself. The N.R. Parmar's decision (supra) or DOP&T OM have no applicability. The Railway is an independent organization and since they have their own set of rules in terms of the allocation of business rules of Government of India, the judgment and order of the CAT is flawed and required to be set aside. The statutory rules must prevail over executive instruction and since the Indian Railway Establishment Manual had been given a kind of statutory status, holding the same to be violative of OM dated 04.03.2014, has caused a serious illegality, which has a direct fall out upon the status and seniority position of the private respondents.

15. It was also urged on behalf of the petitioners that the Tribunal was in a kind of hurry. They were not given a fair opportunity of hearing and this too has affected their right of proper hearing and adjudication.

Patna High Court CWJC No.10669 of 2016 dt.12-05-2017 17/29

16. Before dealing with the other aspect of the matter, the private respondents have filed a reply to the supplementary affidavit of respondent No.1, where they have said in paragraph 3 that these petitioners have not approached the High Court with clean hands. They have suppressed material facts in the writ application.

O.A. application of the private respondent was heard on 08.12.2015.

The intervention petition, which was M.A. No. 53 of 2016, was filed by these petitioners, which was allowed on 05.02.2016. The order was de-reserved and the O.A. was heard at length on 05.02.2016.

The Tribunal granted one week time to file written argument. These petitioners filed their written and detailed arguments beyond the period fixed by the Tribunal on 18.02.2016. All this was considered by the Tribunal and the judgment was rendered on 03.05.2016, but they have tried to create an impression as if the Tribunal was unfair to them and did not give them appropriate opportunity to assist and plead their case.

17. The argument on behalf of the private respondent is that proper legal provisions have not been brought to the notice of the Court. Rule 123 of the Railway Establishment Code, which is statutory in nature, and not Indian Railway Establishment Manual grants power to the Railway Board for recruitment etc. of Group-C and D posts. Rule 201 deals with appointment relating to Group-A, Patna High Court CWJC No.10669 of 2016 dt.12-05-2017 18/29 which is required to be carried out by the UPSC. Rule 205 lays down the method of recruitment. Rule 209 deals with promotion. Rule 219 deals with recruitment and Rule 217 deals with Group-C and D posts. The status of Indian Railway Establishment Code being statutory in nature can be culled out from the decision rendered in the case of The General Manager, South Central Railway, Secunderabad and Anr. Vs .A. V. R. Siddhantti and Ors. , reported in AIR 1974 SC 1755, paragraph 31, being relevant, is reproduced hereinbelow:

These are not statutory provisions (emphasis supplied). Even so, there is nothing in them to show that a person selected for a permanent department, by the Selection Board or Commission, gets a right to be appointed merely because of such selection and placement of his name on the select-list. He gets only a spec i.e. bare chance of appointment and that too if Patna High Court CWJC No.10669 of 2016 dt.12-05-2017 19/29 the appointing authority so desires and a vacancy is available for him. All that the said provisions say, in substance, is that after their appointment, their inter se seniority will be fixed with reference to their positions in the merit list prepared by the Selection Board."

18. Reliance in this regard was also placed to the case of Union of India (Railway Board) and others Vs. J.V. Subhaiah and others etc. etc., reported in (1996) 2 SCC

19. The arguments made, therefore, on behalf of the private respondent, is that the Railway Board has absolutely no power to make rules with regard to Group-A posts, the guidelines of the DOP&T with regard to Group-A are applicable. Therefore, there was obligation upon the Railway authorities to change the rules and the policy to bring it in conformity with OM dated 04.03.2014.

20. It is also urged on behalf of the private respondent that the distinction, which is sought to be drawn both by the petitioners and the Railway that the N.R. Parmar 's case (supra) was a case arising out of a dispute relating to the Income Tax Department is wholly erroneous because one has to read the judgment in right perspective and totality. It is the principle laid down therein by the Apex Court which is of relevance and not whether it relates to Department A or B. Patna High Court CWJC No.10669 of 2016 dt.12-05-2017 20/29

21. There are certain significant observations, which the Hon'ble Apex Court has made in paragraphs 34.1 and 34.2, which reads as under :

22. The above quoted paragraph itself indicates as to the status and what the relevant year for recruitment would mean for the appointed candidates. The Hon'ble Apex Court further brought more clarity to such issue by what it had to say with regard to the claim of Patna High Court CWJC No.10669 of 2016 dt.12-05-2017 21/29 the promotees to be placed above direct recruits on the basis of actual date of appointment in following terms :

We are of the view that the aforesaid observations are fully applicable to the present controversy. We may add that various ONs and letters issued by the DOPT (referred to above) do not leave room for any ambiguity.

52. Having interpreted the effect of the OMs dated 7.2.1986 and 3.7.1986 (in paragraphs 25 and 29 hereinabove), we are satisfied, that not only the requisition but also the advertisement for direct recruitment was issued by the SSC in the recruitment year in which direct recruit vacancies had arisen. The said factual position, as confirmed by the rival parties, is common in all matters being collectively disposed of. In all these cases the advertised vacancies were filled up in the original/first examination/selection conducted for the same. None of the direct recruit Income Tax Inspectors herein can be stated to be occupying carried forward vacancies, or vacancies which came to be filled up by a "later" examination/selection process. The facts only reveal, that the examination and the selection process of direct recruits could not be completed within the recruitment year itself. For Patna High Court CWJC No.10669 of 2016 dt.12-05-2017 23/29 this, the modification/amendment in the manner of determining the inter-se seniority between the direct recruits and promotees, carried out through the OM dated 7.2.1986, and the compilation of the instructions pertaining to seniority in the OM dated 3.7.1986, leave no room for any doubt, that the "rotation of quotas" principle, would be fully applicable to the direct recruits in the present controversy. The direct recruits herein will therefore have to be interspaced with promotees of the same recruitment year."

23. Since the declaration of law by the Hon'ble Supreme Court had a major significance on the issue vexing inter-se seniority of direct recruits versus promotees, the Government of India, Ministry of Personnel, Public grievances and Pension, and the Department of Personnel and Training, had to issue office memorandum dated 04.03.2014 so that there may not be any kind of ambiguity wherever the issue of deciding inter-se seniority emerge.

Since the Central Administrative Tribunal has also come to the opinion that besides N.R. Parmar 's case (supra), the follow up OM dated 04.03.2014 also has vital significance. The OM is reproduced for ready reference :

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d) Recruitment Year would be the year of initiating the recruitment process against a vacancy year;

e) Initiation of recruitment process against a vacancy year would be the date of sending of requisition for filling up of vacancies to the recruiting agency in the case of direct recruits; in the case of promotees the date on which a proposal, complete in all respects, is sent to UPSC/Chairman-DPC for convening of DPC to fill up the vacancies through promotion would be the relevant date.

f) The initiation of recruitment process for any of the modes viz. direct recruitment or promotion would be deemed to be the initiation of recruitment process for the other mode as well;

determined from the appointments made against the first attempt for filling up of the vacancies for a Recruitment Year;

h) The above principles for determination of inter se seniority of direct recruits and promotees would be effective from 27.11.2012, the date of Supreme Court Judgment in Civil Appeal No. 7514-7515/2005 in the case of N.R. Parmar Vs. U01 & Ors ). The cases of seniority already settled with reference to the applicable interpretation of the term availability, as contained in DoPT O.M. dated 7.2.86/3.7.86 may not be reopened.

7. As the conferment of seniority would be against the Recruitment Year in which the recruitment process is initiated for filling up of the vacancies, it is incumbent upon all administrative authorities to ensure that the recruitment process is initiated during the vacancy year itself. While requisition for filling up the vacancies for Patna High Court CWJC No.10669 of 2016 dt.12-05-2017 27/29 direct recruitment should be sent to the recruiting agency, complete in all respects, during the vacancy year itself, the timelines specified in the Model Calendar for DPCs contained in DoPT O.M. No.22011/9/98-Estt(D) dated 8.9.98 and the Consolidated Instructions on DPCs contained in O.M. No.22011/S/86-Estt(D) dated April 10, 1989 should be scrupulously adhered to, for filling up the vacancies against promotion quota.

2. The Vice-President's Sectt, New Delhi

3. The Prime Minister's Office, New Delhi.

4. The Cabinet Secretariat, New Delhi.

5. The Rajya Sabha Secretariat, New Delhi.

6. The Lok Sabha Secretariat, New Delhi.

7. The Comptroller and Audit General of India, New Delhi.

8. The Secretary, Union Public Service Commission, New Delhi

9. The Secretary, Staff Selection Commission, New Delhi.

10. All attached offices under the Ministry of Personnel, Public Grievances and Pensions.

11. All Officers and Sections in the Department of Personnel and Training.

12. Establishment(D) Section, DoP&T (10 copies)

13. NIC for updation on the website.

(Mukta Goel) Director Tele: No. 23092479"