Dinesh Kumar Upadhyaya & Others vs C.A.T., Allahabad & Others
2017 Latest Caselaw 3298 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 37
 
A.F.R.
 
Judgment Reserved on 3.8.2017
 
Judgment Delivered on 17.8.2017
 
Case :- WRIT - A No. - 27488 of 2000    
 
Petitioner :- Dinesh Kumar Upadhyaya & Others
 
Respondent :- C.A.T., Allahabad & Others
 
Counsel for Petitioner :- Pranav Ojha,A.K. Goyal,Sanjay Kumar Om
 
Counsel for Respondent :- Lal Ji Sinha,Deepak Verma,P.K. Misra,S.C.,Suresh Singh
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Rajiv Lochan Mehrotra,J.

(Delivered by Hon'ble Rajiv Lochan Mehrotra,J.)

1. For quashing the notification dated 21.10.1998 for Limited Departmental Competitive Examination (LDCE) by which petitioners were not permitted to participate in it on the ground of not having requisite eligibility, clarification letter dated 9.2.1999 correcting para 203.2 of Indian Railway Establishment Manual (IREM), order dated 2.6.2000 passed by the Central Administrative Tribunal, Allahabad, Recruitment Rule dated 26.8.1982 and the order dated 2.3.1998 of respondent no. 3 thereby rejecting the representation of the petitioners for change in the cut of date of the eligibility, the present writ petition has been preferred by the petitioners under Article 226 of the Constitution of India.

2. The brief facts of the case are that the petitioners were appointed as inspectors in the month of July, 1992 in the pay-scale of 2000-3200 which was subsequently revised as 6500-10500/-. Presently the petitioners are working in the pay-scale of 7450-11500/-. In the railway department the vacancies in Group B were to be filled up by promotion on the basis of seniority cum suitability of eligible Group C employees and also on the basis of Limited Departmental Competitive Examination also known as LDCE. A notification dated 18.3.1997 was issued by respondent No. 3 General Manager for selection on the post of Assistant Engineers (Group 'B') under 70% of the vacancies which was subsequently modified by the notification dated 1.9.1997. Remaining 30% vacancies were to be filled up through LDCE from all those who were in the pay-scale of 1400-2300 and above. The condition of service eligibility were given as per para 203.1 and 203.2 of the Indian Railway Establishment Manual (IREM).

3. Another notification dated 16.2.1998 was issued by respondent no. 3 for preparing the panel against 30% vacancies of Assistant Engineers (Group 'B') on the basis of referred LDCE. In the said notification the date of eligibility was fixed as 18.3.1997. As per this notification Group C employees working in the grade the minimum of which is Rs. 1400 and have five years of non fortuitous service on 18.3.1997 were made eligible for LDCE.

4. Petitioner No. 1 submitted his application for LDCE on 19.2.1998 as the last date for submitting these applications was fixed as 20.3.1998.

5. Petitioner no. 1 also submitted a representation dated 19.2.1998 to respondent no. 2 Union of India through the Secretary, Department of Railways, New Delhi for change of the cut of date from 18.3.1997 to 1.9.1997, the date on which the notification for promotion on the post of Asstt. Engineer (Group 'B') against 70% of the vacancies was issued alongwith corrected final list of the candidates. But the respondents vide their order dated 2.3.1998 refused to change the eligibility date on the ground that as per rules the date of eligibility to be fixed for LDCE should be the same as the one fixed for selection against 70% of the vacancies. The notification dated 21.10.1998 issued by the respondents contained a list of 253 candidates declared eligible for written examination of LDCE but the names of the petitioners were not shown in it whereas the names of many juniors to the petitioners have found place in it. The Central Administrative Tribunal vide order dated 4.3.1993 in O.A. 995/92 Mateshwari Prasad Mishra Vs. Union of India and others observed that by virtue of the provisions of para 203.2 of IREM the applicants Mateshwari Prasad and others are eligible for appearing in LDCE and directed the respondents to consider their candidature. Union of India preferred a Civil Appeal against order of the Tribunal which was dismissed by the Apex Court on 23.1.1998. The petitioners on the same footing have filed the Original Application 1267/1998 Dinesh Kumar Upadhyay and 12 others Vs. Union of India and others before the Central Administrative Tribunal, Allahabad for quashing the notification dated 21.10.1998. Petitioners have also requested for a direction to the respondents for including their names in the list of eligible candidates called to participate in the written examination of LDCE for promotion to the post of Assistant Engineer (Group B). A copy of the order passed by the Apex Court was also placed before the Tribunal but the Tribunal has mis-interpreted the law laid down by the Apex Court in the similar matter and has dismissed the Original Application filed by the petitioners vide order dated 2.6.2000. The order of the Tribunal is unsustainable in the eyes of law and is liable to be set aside.

6. The respondents have contested the case and pleaded that LDCE against 30% is governed with the provisions of the Recruitment Rules which have statutory force. In the relevant Recruitment Rules of AE (Group B) no provision has been made to the effect that if a junior candidate satisfying the minimum service conditions, is called for appearing in the LDCE, a senior to him should also be called for. The criteria for eligibility in both types of selections are totally different. For selection against 70% quota seniority is the criteria while in case of LDCE it is the merit. The minimum length of service for LDCE is five years non fortuitous service while in the other esteem it is no less than three years. The provisions in para 203.2 IREM can not go against the provisions made in the Recruitment Rules which have statutory force. The Railway Board vide its letter dated 9.2.1999 have further clarified that paragraph 203.1 and 203.2 of IREM relate to the promotion of 70% quota and not for LDCE. Moreover, para 3 of IREM clearly says that the provisions of its manual do not supersede the Rules contained in any of Indian Railway Codes and in case of a conflict the latter should prevail. For preparing the panel against 30% vacancies for LDCE a notification dated 16.2.1998 was issued by the respondents and the cut of date for eligibility was fixed as 18.3.1997 which was also the date of selection for 70% quota. As per order of Railway Board the date of eligibility of both these esteems would be the same.

7. The notification for selection to the post of AE (Group B) against 70% was issued on 18.3.1997. The list of eligible candidates was circulated and willingness/unwillingness of the candidates enlisted for 70% were obtained by 25.4.1997. Some candidates have represented against this list, therefore, corrected list was issued on 1.9.1997 and newly added candidates were given an opportunity to furnish their willingness or unwillingness by 25.9.1997 but the date of eligibility was kept intact as 18.3.1997.

8. The first issue that has to be examined is as to what was the cut of date fixed by the respondents regarding eligibility for filling up 30% vacancies through LDCE.

9. Railway Board by its letter dated 18.6.1985 has already incorporated instructions in sub para III of para 2 of IREM which is as under:-

"The date of eligibility to be fixed for the LDCE should be the same as the one fixed for selection against 75% (in the present case 70%) of the vacancies."

10. Notification dated 18.3.1997 was issued by the respondents for selection under 70% of the vacancies which was subsequently modified by the notification dated 1.9.1997. A perusal of the notification dated 1.9.1997 makes it clear that this notification was not issued after cancellation of the previous notification but was issued in furtherance to it with a final list of eligible candidates. Moreover, the candidates enlisted for 70% were given an opportunity to provide their willingness/unwillingness for appearing in the competitive list by 25.4.1997, therefore, corrected list could have been published only on 1.9.1997 but the date of eligibility has not been changed in it. Moreover, as per letter dated 2.3.1998 issued on behalf of the General Manager, Railways, filed as Annexure No. 9 to the writ petition, it was further clarified that date of eligibility as fixed for 70% quota as 18.3.1997 shall remain intact also for the vacancies to be filled up through LDCE.

11. Notification dated 16.2.1998 was issued by the respondents for preparing the panel against 30% vacancies to be filled up through LDCE. While issuing this notification it was further made clear that the date of eligibility of this examination is still 18.3.1997 which is in consonance with the date of notification of 70% quota in terms of Railway Board direction dated 18.6.1985.

12. Thus it is clear that cut of date for both the streams was fixed as 18.3.1997.

13. The next question is as to whether para 203.2 as mentioned in the petition is applicable to LDCE also.

Para 203.2 of Rules governing promotion of subordinate staff is as under:-

"In case a junior employee is considered for selection by virtue of his satisfying the relevant minimum service conditions all person senior to him shall be held to be eligible, notwithstanding the position that they do not fulfil the requisite minimum service conditions."

14. Ministry of Railway vide advance correction slip dated 5.8.1998 has directed to amend the Indian Railway Establishment Manual Volume-I and this amendment dated 9.2.1999, which is filed as Annexure 4 to the counter affidavit, is as under:-

"Attention in this connection is invited to Recruitment Rules for appointment of Asstt. Officers (Group B) in various Departments of Railways. In these Rules the provision of seniors becoming eligible irrespective of the minimum service condition in case a junior is called for selection by virtue of his satisfying the relevant minimum service condition, is laid down only in respect of 70% selections.

Further para 201.1 of the IREM has been amended vide Advance Correction slip No. 28 (copy enclosed). In view of the said amendment, provisions of para 203.2 are not applicable to LDCE for 30% vacancies."

15. Para 3 of prefactory note of Indian Railway Establishment Manual, in short IREM, runs as under:-

"In this revised edition of the Manual, chapters of the 1968 edition have been rearranged after incorporating the present day position. The provisions and chapters included in this edition supersede those on the subjects contained in the 1968 edition to the extent these have been revised and incorporated in this volume. For Labour Laws, the rules contained in the original Acts, as amended from time to time, will hold good and may be used for reference. It must be noted that provisions of this Manual do not supersede the rules contained in any of the Indian Railway Codes, and in case of conflict the latter should prevail."

16. Otherwise also as the Recruitment Rules have been framed under Article 309 of the Constitution of India, therefore, these Rules shall prevail over the provisions of IREM.

17. Now, it is quite evident from the perusal of Recruitment Rules that the relevant provision of para 203.2 of IREM to the effect that in case a junior employee is considered for selection by virtue of his minimum service conditions all persons senior to him shall also be held to be eligible is applicable only in the case of 70 % vacancies to be filled up by promotion. Now, after the amendment in rules there is no such relaxation available against 30% vacancies to be filled up through LDCE. Definitely the Rules framed under provisions of article 309 of Constitution of India have statutory force and the executive instructions received in this regard cannot have overriding effect on the Recruitment Rules.

18. So far as validity of rule is concerned, it is manifest that Central Government has framed these rules under Article 309 of Constitution of India. Central Government is competent to frame rules with regard to public services contemplated under Article 309. Thus, this rule has statutory force. Petitioner have failed to show that the impugned rule violates any of the fundamental rights contained in part-III of the Constitution of India. Burden to establish discrimination has not been discharged at all by the petitioners. Rules have been enacted with a salutory purpose and cover a particular class of the employees.

19. We do not find any ground to question the validity of this rule. Consequently the submission of the petitioner to the effect that the said rule is ultra-vires is rejected.

20. As both the streams of promotions / selections were conducted as per rules laid down by the department, therefore, in the above circumstances there appears to be no violation of Articles 14 and 16 of the Constitution of India in case of the petitioners.

21. One more contention has been raised on behalf of petitioners to the effect that when the Apex Court vide order dated 13.1.1998 has provided the benefit of para 203.2 of IREM to the candidates appeared in LDCE in the year 1992, the same should also be provided to petitioners in the present case. The argument of learned counsel is not tenable because vide amendment dated 9.2.1999 it has been made clear that now provisions of para 203.2 are not applicable to LDCE against 30% vacancies.

22. Learned counsel for the petitioner has relied upon the following case laws:-

      		1.  Ashok Kumar Sonkar Vs. Union of India and others, 		     (2007) 4 SCC 54
 
   		2.  Alka Ojha Vs. Rajasthan Public Service Commission 		     and another, (2011) 9 SCC 438
 
 		3.  Bhupinder Singh and others Vs. State of Punjab and  			      others, 2000 AIR SCW 1888
 
  		4.  Rekha Chaturvedi (Smt) Vs. University of Rajasthan 		     and others, 1993 Supp (3) SCC 168
 

 

All these case laws are not applicable in the facts and circumstances of the present writ petition because as per facts of these case laws, posts were advertised for direct recruitment & not for departmental promotion. The dates of eligibility in these cases were also under question while in the present case the employees already working in the department were tested for promotion either by virtue of their seniority cum suitability or through LDCE. Moreover, in the case at hand the cut off date for eligibility was also fixed and advertised by the department through notifications.

23. On the basis of above discussion it is clear that the cut off date for both the streams was fixed as 18.3.1997. It is also clear that the petitioners were not found eligible for consideration against 30% vacancies on account of not fulfiling the minimum eligibility criteria on the cut off date therefore, the petitioners are not entitled to any relief. The impugned order of the Tribunal does not call for any interference. The writ petition is, therefore, dismissed.

Order Date: 17.8.2017

BKM/-