Union Of India & Anr. vs Sudershan Kumar & Ors.
2011 Latest Caselaw 2083 Del

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P.(C) No.18032-33/2005

%                          Date of Decision: 19.04.2011

Union of India & Anr.                                     ...... Petitioners

                         Through Mr.Kumar Rajesh Singh, Advocate.

                                   Versus

Sudershan Kumar & Ors.                                  ...... Respondents

                         Through Ms.Meenu Mainee, Advocate.



CORAM:
HON'BLE MR.JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE SUDERSHAN KUMAR MISRA

1.        Whether reporters of Local papers may             YES
          be allowed to see the judgment?
2.        To be referred to the reporter or not?            NO
3.        Whether the judgment should be                    NO
          reported in the Digest?


ANIL KUMAR, J.

*

1. The petitioners, the Union of India through the General Manager,

Northern Railway and another have challenged the order dated 31st

May, 2005 passed by Central Administrative Tribunal, Principal Bench

in O.A No.2065/2004 titled as "Sudershan Kumar & Ors. v. Union of

India & Anr." allowing the original application filed by the respondents

and setting aside the panel and promotion order issued by letter dated

3rd December, 2004 and directing the petitioners to restructure the

panel in the light of the notification dated 8th April, 1988 and the

clarification accorded by the Headquarter on 10th April, 2001 and 2nd

December, 2004 and to consider the case of promotion of the

respondents along with the persons who have already been promoted

from the booking cadre.

2. Brief facts to comprehend the controversy between the parties are

that the respondents belong to the cadre of parcel clerks and have been

given promotions as senior parcel clerks, thereafter head parcel clerks

and thereafter as parcel supervisors.

3. The respondents were initially appointed as booking clerks in the

year 1967-78 and were absorbed in the cadre of parcel clerks. Under

the petitioners the cadre of parcel clerks was distinct from booking

clerks. Parcel clerks deals with booking and delivery of parcels whereas

booking clerks are those who are book and issue tickets for passengers.

Cadre of both categories used to be separate and the staff working in

both the cadres had to be promoted in their own cadres.

4. At the time of filing the original application in 2004 the

respondents disclosed that they were working as head parcel

clerks/parcel supervisors in the grade of Rs.5000-8000/- and Rs.5500-

9000/- respectively. The respondents were eligible for promotion to the

post of Chief Parcel Supervisor in the grade of Rs.6500-10500/-. The

grievance of the respondents was that selection for the post of Chief

Parcel Supervisor in the grade of Rs.6500-10500/- was sought to be

done by merging the seniority of both the distinct cadres i.e. booking

clerks with the parcel clerks. According to the respondents this was

contrary to the decision of the Railway Board given in 1993 where it

was decided that those parcel clerks who have been appointed prior to

1993, their cadre will continue to be separate, however, the cadre of

those who were appointed after 1993, will be merged with the booking

clerks.

5. The respondents contended that when the selection for the post of

Chief Parcel Supervisor was initiated, it transpired that the eligibility

criterion considered by the petitioners was contrary to the rules as large

number of booking clerks had been placed senior to the respondents

perhaps because of merging of cadres and as the cadre of parcel clerks

was much smaller. The respondents, therefore, made a representation

to the petitioners contending that though merging of seniority of two

cadres, of parcel clerks and booking clerks will not annihilate the

careers of the booking clerks who are junior to the respondents.

However it will give a march to the booking clerks over the parcel clerks.

6. Despite a categorical and detailed representation dated 18th

December, 2000 against merging of the cadres of parcel clerks and

booking clerks who were employed prior to 1993 contrary to policy of

the petitioners, no response was received by those who had made the

representation entailing filing of an original application being O.A

No.19/2001 before the Central Administrative Tribunal, Principal

Bench for a direction to the petitioners to consider their representation

dated 18th December, 2000 before declaring the result of selection for

the post of Chief Booking Supervisor. The said original application was

disposed of by order dated 3rd January, 2001 by giving directions to the

petitioners to consider the representation dated 18th December, 2000

and to pass a speaking and reasoned order and to intimate those who

had made the representation.

7. Pursuant to the order of the Tribunal, petitioner No.1 issued an

order to Divisional Railway Manager, Northern Railway, Firozpur,

Punjab stipulating that instructions dated 8th April, 1988 have not been

implemented at Ferozpur Division leading to the problem as

propounded by the respondents. It was stated that neither cadres have

to be separate or joint at all levels and the cadres of parcel clerks and

booking clerks cannot be separate upto the level of Grade Rs.1600-

2660/- and then merging at the level of CBS/CPS grade Rs.2000-

3200/- which would result in bias in favour of one of the categories.

Consequent to the order dated 10th April, 2001 the petitioner No.2

cancelled the selection which was held in the year 2000 for the post in

the grade of Rs.6500-10500/- by combining the seniority of parcel

clerks with booking clerks.

8. By that time as number of booking clerks had already been

promoted/selected over the respondents, they submitted a

representation to revert those booking supervisors who had been

promoted as Chief Parcel Supervisor. Instead of reverting these booking

supervisors who had been promoted as Chief Parcel Supervisors

contrary to petitioners instructions dated 8th April, 1988, the Railway

Board in the meantime issued a restructuring order by notification

dated 9th October, 2003 restructuring various cadres in group „C‟ and a

number of posts were upgraded. As the implementation of notification

dated 9th October, 2003 was to be carried out by merging the seniority

of parcel supervisors and booking supervisors to upgrade the post of

Chief Parcel Supervisor/Chief Booking Supervisors in the grade of

Rs.6500-10500/-, a representation was made. The respondents also

relied on the order of petitioner No.1 dated 10th April, 2001 whereby the

headquarter office had given clear directions that the cadres have to be

either separate or combined at all levels and the cadres could not be

separate at some levels and combined at other levels. The respondents

also represented that restructuring by combing seniority of parcel

supervisors and booking supervisors will be detrimental to the careers

of parcel clerks especially as a number of booking supervisors had

already been promoted contrary to the seniority of parcel clerks on

account of merging of two cadres.

9. On the representation of the respondents the matter was referred

to the headquarter office by DRM Northern Railway, Firozpur by letter

dated 21st May, 2004. The respondents had contended that due to lack

of specific directions by the headquarter, petitioner No.2 was

constrained to refer the matter again to the headquarter. It was pointed

out that it is a fact that parcel clerks are senior in the initial grades but

due to small cadre they remain backward till reaching grade 1600 -

2660/5500 - 9000 and as a result they become very junior to the

booking clerks appointed later on. Reliance was placed on the order of

the board whereby booking clerks appointed after 1st November, 1993

had been designated as commercial clerk and the seniority had been

clubbed at all levels. The petitioner no.2, however, admitted that there

are no specific instructions regarding those persons who had been

appointed prior to 1st November, 1993.

10. The headquarter despite the earlier directions did not respond to

the letter dated 21st May, 2004 whereby the representation of the

respondents was forwarded to petitioner No.1. The respondents,

therefore, filed an original application being O.A No.2065/2004 titled as

"Sudershan Kumar & Ors v. Union of India through General Manager,

Northern Railway & Anr." contending inter-alia that despite the

instructions dated 8th April, 1988 and the letter dated 10th April, 2001

of the petitioner No.1, the cadres of parcel clerks and booking clerks

have been merged by the petitioner No.2 for promotion to the post of

Chief Parcel Supervisor and Chief Booking Supervisor. It was also

asserted that petitioner No.2 is in a hurry to implement the

restructuring orders on the basis of combined seniority contrary to

instructions dated 8th April, 1988 and clarification dated 10th April,

2001.

11. The petition was contested by the petitioners contending inter-

alia that the Railway Board vide their policy instructions dated 6th

August, 1993 circulated under printed serial No.10841 formulated a

scheme to merge all the cadres of goods, booking and parcel clerks into

common cadre of „Commercial Clerks‟. It was contended that this

scheme came into force on 1st November, 1993 and no appointments

were to be made to the lowest grades in any of the three cadres by

direct recruitment and promotion had to be made only to the unified

cadre. The scheme contemplated that all employees on regular basis to

any of the three existing cadres upto 31st October, 1993, however, will

continue therein and would progress in their respective cadre. The

scheme also contemplated giving option to the employees in the three

existing cadres to come over to the new unified cadre which option had

to be exercised within two months from the date of issue of

corresponding instructions and the option was deemed to be effective

from 1st November, 1993.

12. The petitioners, however, categorically admitted that in Ferozpur

division all booking and parcel staff who joined prior to 1st November,

1993 would continue to be promoted in all grades separately but to the

grade of Rs.6500-10500/- the seniority of booking supervisors and

parcel supervisors in grade of Rs.5500-9000/- would be merged and

common selection would be held. The petitioners contended that in

respect of Ferozpur division it was decided in consultation with both

recognized labour federations that Railway Board‟s instructions dated

6th August, 1993 circulated under printed serial No.10841 would be

followed and a joint agreement in this regard was relied on. It was also

contended that the Railway Board in consultation and agreement with

both the recognized labour federations and with the approval of the

President decided for restructuring of Group „C‟ and „D‟ cadre which

included the cadre of commercial clerk.

13. The petitioners contested the original application of the

respondent on the ground that the sanctity of policy instructions in

selection and in agreement with the recognized labour unions have been

upheld in a number of judgments passed by Tribunals and the High

Court. The petitioners also contested the original application filed by the

respondents on the ground that Principal Bench of the Tribunal has no

territorial jurisdiction to entertain the application. It was also pleaded

that the application of the respondents was premature and not

maintainable under Section 21 of the Administrative Tribunals Act,

1985 and the application was barred by limitation as the respondents

were aggrieved by order dated 30th July, 2001 and they have not filed

the original application after exhausting all the departmental remedies.

14. The Tribunal considered the pleas and contentions of the parties

and allowed the original application and set aside the panel of booking

clerks and parcel clerk for promotion and promotion order dated 3rd

December, 2004 and the petitioners were directed to restructure the

panel, directly in light of notification dated 8th April, 1988 and the

clarification accorded by petitioner No.1, headquarter on 10th April,

2001 and 2nd December, 2004. The petitioners were also directed to

consider the case of the promotion of the respondents as also the case

of the other persons who had already been promoted from the cadre of

booking clerks, however, the Tribunal also directed the petitioners that

before passing any adverse order against any of the employees already

promoted, he or she must be put to notice.

15. The Tribunal repelled the objection regarding respondents not

impleading all those who would be in joint panel of booking clerks and

parcel clerks at the level of Rs.6500-10500/- for those employed prior to

1.11.1993, as it was found to be against the Railway Board‟s letter

dated 8th April, 1988. It was held that at the time original application

was filed, there was no proposal to form the panel for implementing the

restructuring by the Railways. Panel was made during the pendency

and promotion order dated 3.12.2004 was passed. Reliance was also

placed by the Tribunal on A.Janardhana v. UOI, 1983 (3) SCC 601

holding that where the proceedings are analogous to those in which the

constitutionality of a statutory rule regulating the seniority of

Government servants is assailed, then in such proceedings the

necessary parties to be impleaded are those against whom the relief is

sought, and in whose absence no effective decision can be rendered by

the Court. It was held that in such cases, relief is sought only against

the Union of India and the concerned Ministry and not against any

individual nor is any seniority claimed by any individual against

another particular individual and, therefore, the petition is not to fail for

not implementing some of the recruits and not representing against

such an illegality. In para 21 of the impugned order the Tribunal had

held as under:-

"As regards preliminary objection of non-making of a representation, applicants have approached this Tribunal against merging the cadres at the level of Rs.6500-10500 for consideration of restructuring the benefit, which is against the Railway Board‟s letter dated 8.4.1988. At the time when this application was filed, no proposal was there to form the panel for implementing the restructuring order by the Railways. It is during the pendency that the restructuring was effected to but as in the order dated 3.12.2004, the orders which not only included formation of panel but promotion as provisional and is liable to be cancelled as per the directions of the Courts, this empanelment and promotion has been made subject to the outcome of the OA. As such, we do not find this infirmity as effect of dismissal of OA. Moreover, the Apex Court in A.Janardhana vs. UOI, 1983 (3) SCC 601, observed as under:-

"In this case, appellant does not claim seniority over particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing-up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents. We may in this connection refer to General Manager, South Central Railway, Secunderabad and Anr. etc. v. A.V.R. Sidhanti and Ors. etc.: (1974)ILLJ312SC at 212. Repelling a contention on behalf of the appellant that the writ petitioners did not implead about 120 employees who were likely to be affected by the decision in this case, this Court observed that the respondents (original petitioners) are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating the seniority of government servants is assailed. In such proceedings, the necessary parties to be impleaded are these against

whom the relief is sought, and in whose absence no effective decision can be rendered by the Court. Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by anyone individual against another particular individual and therefore, even if technically the direct recruits were not before the Court, the petition is not likely to fail on that ground. The contention of the respondents for this additional reason must also be negatived."

16. Regarding not filing of the representation it was held that filing of

representation would be a useless formality as the respondents had

approached the Tribunal on an action to fill up the upgraded post of

Chief Booking Supervisors/Chief Parcel Supervisors on the basis of

combined seniority and not taking a decision on the clarifications given

by the Headquarter and had even filed a detailed reply where the

reasons were already assigned to have adopted such a procedure. In

any case it was held that in exceptional circumstances nothing

precludes the Tribunal to entertain the application without exhausting

the available remedy of filing representation in consonance with Section

20 of the Administrative Tribunal Act, 1985 and, therefore, this plea of

the petitioners was repelled.

17. The plea of the petitioners regarding limitation was also rejected

on the ground that the action of the petitioner is null and void keeping

in view the earlier decisions and on account of various panels formed

and promotions accorded on the basis of combined seniority which gave

a continuing cause of action.

18. With regard to the plea of the petitioner that the policy decision of

the petitioners‟ could not be interfered with by way of judicial review,

the Tribunal has held that if the policy decision is taken in blatant

infraction of statutory provisions or guidelines laid down and the action

is arbitrary, malafide and the same cannot stand the scrutiny of

principle of equality enshrined under Article 14 & 16 of the

Constitution, the Tribunal shall be entitled to interfere with such policy

decision. Reliance was placed by the Tribunal on BALCO Employees‟

Union (Regd.) v. union of India, 2002 (2) SCC 333. Regarding the

merger of the cadre of parcel clerks and the booking clerks at the level

of Rs.6500-10500/- it was held that it is contrary to petitioners own

policy decision dated 8th April, 1988 and clarification given by the

headquarter on 10th April, 2001 and 2nd December, 2004. The Tribunal

also observed that the petitioners could not adopt different yardstick for

combining the cadres, as in some of the divisions the cadres of booking

clerks and parcel clerks were kept separate pursuant to notification

dated 8th April, 1988 and the clarifications issued by the Headquarter

on 10th April, 2001 and 2nd December, 2004, while on the other hand in

complete contravention of these notifications the cadres were merged at

the level of Rs.6500-10500/- and a combined seniority list was issued

in the Ferozpur division. It was held that either the combination of

cadre should have been at all levels or the cadre should have been

treated separately at all levels and that as this had not been done, the

panel created by merging the cadre would be in violation of the policy of

the petitioners and also contrary to the clarifications made by the

headquarter and thus, for the Ferozpur division no exception could be

carved on any ground. The Tribunal had also adversely commented on

the undue haste shown by the Ferozpur division, as even though

clarification was sought by letter dated 21st May, 2004 from the

Headquarter but the petitioner no.2 did not wait for the clarification

and the panel was finalized on 17th November, 2004, which was

contrary to the clarification sent by the Headquarter to Ferozpur

division on 2nd December, 2004. Despite this order was passed by the

petitioners on 3rd December, 2004 promoting panelist of combined

panel of booking clerks and parcel clerks who had been employed prior

to 1st November, 1993.

19. The learned counsel for the petitioners has primarily contended

that in respect of Ferozpur division merging of cadre at the level of

Rs.6500-10500/- was decided by the employees themselves who were

employed prior to 1st November, 1993 in consultation with both the

recognized Labour federations, agreeing that the Railway Board

instructions dated 6th August, 1993 circulated under printed serial

No.10841 would be followed and a joint agreement in this regard was

relied on. It is also contended that the Railway Board in consultation

and agreement with both the recognized labour federations and with the

approval of the President had decided for restructuring of Group „C‟ and

„D‟ cadres which included the cadre of commercial clerks and, therefore,

the panel was formed on 17th November, 2004 and consequently the

order was passed on 3rd December, 2004 which cannot be challenged by

the respondents and the Tribunal has committed an error in not

considering this aspect. The petitioners counsel did not raise any other

pleas and contentions while impugning the order of the Tribunal dated

31st May, 2005.

20. The pleas and contentions on behalf of the petitioners are

contested by the learned counsel, Ms.Meenu Mainee and she has relied

on the pleas raised before the Tribunal and had reiterated the same.

21. This Court has considered the pleas and contentions raised by

the parties and the record which is produced along with the writ

petition which includes the notice dated 8th April, 1998 and the

clarifications accorded by the headquarter on 10th April, 2001 and 2nd

December, 2004.

22. From the perusal of the documents produced it is apparent that

the question of merging different cadres of Commercial Staff into single

cadre had been under consideration before the Railway Board for

considerable time, as merging of cadre would have provided flexibility

and convenience in posting and transfers etc.. Consequently on 8th

April, 1988 it was agreed to merge all S.G.Railway into one unified

cadre. With a view to have uniformity the Railway Board had decided to

execute the merger of 3 cadres into one combined cadre of „commercial

clerks‟ in respect of new entrants, where they were not already

combined. The scheme had to come into force with effect from 1st

November, 1993 and under the scheme it was laid down that no

appointments shall be made to the lowest grades in any of the three

cadres whether by direct recruitment, promotion or otherwise, except

only to the unified cadre. The existing employees were given an option

in order to continue in the existing cadres or to opt for a unified cadre.

Under the policy the option to existing employees was as under:-

OPTION FOR EXISTING EMPLOYEES:

5. All the employees appointed on regular basis to any of the three existing cadres up to 31st October, 1993 will continue therein, and progress in their respective cadres as is the position at present. However, employees working in the lowest grade in any of the three existing cadres will be given an option to come over to the new unified cadre. This option should be exercised within two months from the date of issue of corresponding instructions by your railway. Option exercised within this period of two months will be deemed to be effective from 1.11.1993. Option once exercised shall be treated as final and no change will be permitted at a later dated, and they will seek their

promotion in the unified cadre in accordance with Para 7 and 7.1 below."

23. From the correspondence produced on the record it is apparent

that the cadres of booking clerks and the parcel clerks were either to be

merged at all levels or were to be kept separate at all levels which is also

apparent from an order passed on the representation by General

Manager on 10th April, 2001 which is as under:-

"Ref: Your letter No.757-E/172/PIA dated 12.2.2001 and letter dated 16.2.2001.

Under this Office letter No.752-E/592/IV/CP dated 8.4.1988 a combined channel of promotion for Booking/Parcel/Luggage Clerks designated as Coaching Clerks was issued. After issue of the above instructions DRM/FZR/UMB and DLI were instructed vide this office letter No.752-E/552/PQ/EIC dated 29.11.1991 to confirm whether instructions dated 8.4.1988 in regard to the Coaching Staff have been implemented on their divisions. Your office vide letter No.757-E/172/PIA dated 3.1.1992 had confirmed that the channel of promotion of Coaching Clerks have since been implemented as per this Office letter dated 8.4.1988. Similar confirmation were also given by DRM/URB and DLI.

In case the above instructions are implemented properly there should be no problem in holding the selection for CBS/CPS grade 6500-10500.

However, from your letters under reference it appears that perhaps the instructions dated 8.4.1988 have not actually been implemented on FZR division due to which the present problem has arisen. It may be noted that either the cadres have to be separate or joint at all levels. It cannot be separate up to the level of 1600-2660 and then combined at the level of CBS/CPS grade 2000-3200 as it would result in bias in favour of one of the categories.

You may take suitable action accordingly.

This has the approval of CPO.

Sd/-

For General Manager (P)

24. While passing the order addressed to the Ferozpur division where

the respondents are employed, it was specifically asserted that the

instruction dated 8th April, 1998 has not actually been implemented,

which has resulted into problem agitated by the respondents which is

on account of the merger of two cadres at the level of Rs.6500-10500/-.

The booking clerks who were more in number thus got a pass over the

parcel clerks. By order dated 10th April, 2001 it was categorically

emphasized that either the cadres have to be separate or joint at all

levels and, therefore, the Ferozpur division could not keep the cadres

separate up to the level of Rs.1600-2660 and then combine the cadres

of booking clerks and parcel clerks at the level of CBS/CPS Grade of

Rs.2000-3200/6500-10500 as it would result in bias in favor of one of

the cadres. The representation of the respondent against the merger of

cadre in holding the selection for CBS/CPS grade of Rs.6500-10500/-

was sent for clarification to the headquarters which was the competent

authority to decide. The said letter is as under:-

"Subject: Channel of promotion of Booking/Parcel Clerks in all grades.

Ref: i) This office letter of even no. dated 16.2.2001.

ii) Your office letter no.752-E/549/II/REP/EIC dated 10.04.2001.

As per channel of promotion in the category of Booking/Parcel Clerks appointed prior to 1.11.1993, both the categories are not merged till grade 1600-2660/5500-9000, but in the selection of CBS/CPS their seniority is merged and the selections are finalized on the basis of this merged seniority.

In this connection it is pointed out and is a fact that parcel clerks though very senior in the initial grades but due to small cadre they remain backward till reaching grade 1600-2660/5500- 9000 and as a result they become very junior to the booking clerks appointed later on in the initial grades, their cadre being large.

As per Rly. Boards orders, the Booking clerks appointed after 1.11.1993 have been designated as Commercial Clerks and their seniority is clubbed at all level, thereby leaving no chance of discomfort to any category.

The issue is raised by the biased Booking/Parcel clerks appointed prior to 1.11.1993 that their seniority should remain separate at all levels. Since Rly. Board has issued clarification for the persons of this category appointed after 1.11.1993 but there is no instruction/clarification what sort of action is to be taken for the persons of this category appointed prior to 1.11.1993. In the past, the matter was referred to Hd.Qrs.office vide this office letter of even no. dated 16.2.2001. In reply of which it was only intimated that it cannot be separate upto the level of 1600- 2660/5500-9000 and then combined at the level of CBS/CPS Gd. 2000-3200/6500-10500 as it would result in bias in favour of one of the categories and this office was advised to take action accordingly. The clarification received was not clear what action is to be taken for this category of staff.

You are therefore requested to please call for the papers already dealt with in this case and after getting the decision of competent authority, now, this office may be advised about the action to be taken for the staff of this category to avoid any resentment.

A comparative statement of parcel/booking cadre with their date of appointment is attached herewith for ready reference.

Sd/-

For Divisional Railway Manager,

N.Railway, Ferozepur.

25. This is not disputed that even before the clarification could be

received by the Ferozpur division, a panel was formed on 17th

November, 2004 and some of the booking clerks were placed in the

grade of Rs.6500-10500/- and promoted by order dated 3rd December,

2004. But the order of promotion was provisional and was subject to

any change or cancellations as per the directions by the Tribunal.

26. The learned counsel for the petitioners is unable to explain as to

how the panel dated 17th November, 2004 was finalized by merging the

cadre at the level of CBS/CPS grade of Rs.2000-3200/Rs.6500-10500

without getting a reply to the clarification dated 21st May, 2004 sought

from the headquarter. The learned counsel is also unable to justify as to

how the cadre of booking clerks and parcel clerks could be kept

separate upto the level of Rs.1600-2600/Rs.5500-9000 only and then

combined at the level of CBS/CPS grade of Rs.2000-3200/Rs.6500-

10500 specially as in Lucknow, Ambala and Moradabad division, as

well as at the headquarters at Delhi, the employees appointed prior to

1st November, 1993 have been treated differently by maintaining

seniority lists separately. No rational reason has been given for adopting

different yardsticks for merger for those appointees who were appointed

prior to 1st November, 1993 in different divisions, except that a joint

agreement was arrived at with the recognized labour federations. The

copies of the alleged agreement with the recognized labour federations

have not been produced nor have the particulars thereof been detailed.

In any case on the basis of the alleged agreements the policy in respect

of the employees who were appointed prior 1st November, 1993 could

not be implemented differently in different divisions in as much as

merging the cadres at the level of CBS/CPS grade Rs.2000-

3200/Rs.6500-10500/- and keeping it separate up to the level of

Rs.1600-2660/Rs.5500-9000 was not contemplated under the policy.

In the clarifications given by the petitioners they have taken a

categorical stand that either the cadres have to be separated or joint at

all levels and it cannot be that the cadres be kept separate upto the

level of Rs.1600-2660/- and then combined at the level of CBS/CPS

grade of Rs.2000-3200/6500-10500.

27. This fact has also not been successfully disputed by the learned

counsel for the petitioners that the number of employees in the cadre of

booking clerks and parcel clerks are not the same and are quite

different in as much as the number of parcel clerks are much less. If

the cadre of booking clerks and parcel clerks are merged, it will

undoubtedly result into an undue advantage to the booking clerks as

they would easily get a pass over the parcel clerks being more in

number.

28. Even pursuant to clarification sought on 21st May, 2004, the GM

headquarter by its letter dated 2nd December, 2004 again clarified that

for maintaining seniority of the employees appointed prior to 1st

November, 1993 instructions have already been issued and reiterated

that separate seniority for goods cadre and coaching cadre (booking and

parcel) should be kept, which rather has been kept and followed in

UMB, LKO and MB divisions and Delhi division. The letter dated 2nd

December, 2004 of the G.M Headquarter is as follows:-

"Sub: OA 2065/04 & MA NO.1763/2004 filed by Sh.Sudershan Kumar s/o Bhagwan Dass, Parcel Supervisor, Ludhiana and 11 others v. UOI & Ors.

Ref: Your office letter no.698-E/716-CAT/04/NDLs.

In reference to your office letter no.757-E/172/PLA dated 21.5.2004. Your attention is drawn towards this office letter no.752-E/549/II/REP/EIC dated 10.04.2001 wherein it was clearly informed that in the instant matter, channel of promotion had already been issued vide this office letter no.752-E/552/IV/CP dated 8.4.1988 and as confirmed vide your office letter No. 757-E/172/PIA dated 3.1.1992 this channel of promotion was being implemented in your division. Therefore, there should be no problem, if this channel of promotion is following properly.

It is also intimated that this channel of promotion is being followed in UMB, LKO & MB division i.e. separate seniority for Goods cadre and Coaching cadre (booking & Parcel) as such there is no any problem. As regards DLI division. They are maintaining seniority separately in each stream i.e. Booking, Parcel and Goods as such there is also no such problem as created on FZR division. However, as per extent instructions in initial grade Rs.3200-4900 there is common seniority of commercial clerks who are appointed on or after 1.11.1993. For maintaining seniority

of commercial clerks appointed prior to 1.11.1993, detailed instructions have already been issued as per PS No.10841.

Now draft written statement prepared by Rly.Advocate has been submitted by you for vetting to headquarter office. It is not understood that when the matter exclusively pertains to the division then why written statement has been sent to this office.

Therefore, it is advised to take action at your end as per extant instructions and policy.

Sd/-

For General Manager (P)"

29. In the entirety of facts and circumstances it is inevitable that in

view of the Railways Board‟s letter dated 6th August, 1993 under P.S.

No.10841 which is applicable to the officers who were appointed on

regular basis before 1st November, 1993 the combined cadre would be

operative with effect from 31st October, 1993 and for these employees,

either the cadres were to be combined up to the basic pay of Rs.6500-

10500 or to get the entire cadres separated at all levels. Since the

cadres have been kept separate in various divisions, the exception could

not be carved out only at the level of CBS/CPS grade of Rs.2000-

3200/6500-10500 in the Ferozpur division. Consequently the

petitioners could not draw the panel on 17th November, 2004 nor could

have passed the promotion order dated 3rd December, 2004. In any case

the said promotion was provisional.

30. In the circumstances the order of the Tribunal directing the

petitioners to restructure the panel strictly in accordance with the

notification dated 8th April, 1998 as well as clarification recorded by the

headquarters on 10th April, 2001 and 2nd December, 2004 and to

consider the case of respondents along with other persons who have

already been promoted from booking cadre cannot be termed to be

illegal or unsustainable or suffering from such perversity which will

require any interference by this Court. It has also been held that before

passing an adverse order against those persons who have already been

empanelled, a notice be given to them, cannot be termed to be arbitrary

or illegal in the facts and circumstances of the present case.

31. No other points have been canvassed by the learned counsel for

the petitioners before us impugning the order of the Tribunal. There are

no grounds to interfere with the order of the Tribunal in the facts and

circumstances. Therefore, the writ petition is dismissed. The parties

are, however, left to bear their own cost.

ANIL KUMAR, J.

April 19, 2011                         SUDERSHAN KUMAR MISRA, J.
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