Delhi High Court

Mirza Muzaffer Beg vs Union Of India & Ors. on 12 October, 2011

Author: Anil Kumar

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.7300/2011

%                       Date of Decision: 12.10.2011


Mirza Muzaffer Beg                                         .... Petitioner

                     Through Mr. Javed Ahmed & Ms. Eram Khan,
                             Advocates

                                Versus

Union of India & Ors.                                  .... Respondents

                     Through Nemo



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?           YES
3.      Whether the judgment should be                   NO
        reported in the Digest?

ANIL KUMAR, J.

1. The petitioner has challenged the order dated 3rd March, 2011,

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi in OA No. 2046/2005 titled as „Mirza Muzaffar Beg Vs. UOI

through the General Manager, Northern Railway & Ors.‟ rejecting the

plea of the petitioner to quash the upgradation order dated 11th August,

2004 upgrading the respondent Nos. 4 to 6 on the post of Master

Craftsman and declining the plea of the petitioner to be upgraded to the

said post and to place him at Sl. No. 26-A in the seniority list dated 8th

October, 2003/18th October, 2003. The respondent Nos. 1 to 3,

however, were directed to conduct an exercise to ascertain as to

whether there has been creation of new posts in the cadre of

Technicians to which the petitioner belongs, pursuant to the re-

structuring, and if it had resulted in the creation of new posts, then to

apply reservation, if it had not been applied already. The Tribunal by

impugned order dated 3rd March, 2011, gave the following direction:-

(b) As far as reservation is concerned, the respondents shall conduct an exercise to ascertain as to whether there has been creation of new posts in the cadre of Technicians (to which the applicant belongs) and if so, apply reservation and if not reservation shall not be applied. In case reservation has not to be applied, then, against the general category the filling up of the vacancies would be as per the existing practice (i.e. general category persons or those of the reserved category who had not enjoyed the benefits of such reservation in the past, either at the level of induction or promotion, notwithstanding the fact that such reserved candidates would be fairly senior.)

2. Relevant facts to comprehend the disputes for adjudication of the

present petition are that the petitioner had been appointed as

Apprentice Fitter on 22nd May, 1982. Thereafter, the petitioner was

promoted as Fitter (Grade-III) in November, 1983 and as Fitter (Grade-

II) on 1st March, 1993. The petitioner was also further promoted to the

post of Fitter (Grade-I) on 20th March, 1995 in the pay scale of Rs.

4,500-7000/-.Whereas, respondent Nos. 4 to 6 were appointed as

Khalasis on 12th June, 1982, 29th May, 1982 and 9th June, 1982

respectively. They were also promoted as Fitter (Grade-III) on 15th

November, 1989, 15th November, 1989 and 27th February, 1990

respectively.

3. However, the respondent Nos. 4 to 6 were promoted as Fitter

(Grade-II) and Fitter (Grade-I) on 22nd July, 1992 and 27th December,

1994 respectively, prior to promotion of the petitioner to the said post

4. The petitioner contended that he was promoted as Fitter (Grade-

III) after qualifying the trade test. According to the petitioner, he was in

the panel of Fitter (Grade-III), which was prepared in accordance with

merit and seniority, and that his name was at Sl. No. 3 in the panel list

of Fitter (Grade-III) dated 7th June, 1993. The petitioner asserted that

with regard to the employees working in the Group-„C‟ post in the

Electrical Multiple Unit, Car Shed, Ghaziabad, their seniority was not

determined and published for a long period in spite of repeated requests

made to respondent No.3. After a long time, the seniority was published

for the first time on 16th October, 2002 and objections were invited in

order to finalize the fixation of seniority. Disgruntled by the said

seniority list certain staff members approached the Tribunal by way of

OA No. 2618/1999 for quashing the same and directing the respondent

Nos. 1 to 3 to determine the seniority of the Fitter (Grade-I) as per the

relevant rules and publish the seniority list. Thereafter, another

seniority list was made which was published on 8th October, 2003,

pursuant to various litigations. According to the petitioner, the

seniority list of 8th October, 2003/18th October, 2003 had not been

prepared in terms of the provisions contained under Section 302/303

of the IREM and consequently, the petitioner was shown junior to

respondent Nos. 4 to 6 entailing the filing of a detailed representation

on 25th October, 2004. The petitioner had also asserted that he had

been representing even prior to that repeatedly, for correctly

determining his seniority. However, no action was taken by the

concerned authorities pursuant to the representations of the petitioner.

5. The petitioner also contended that subsequently an upgradation

order dated 11th August, 2004 was issued in which respondent Nos. 4

to 6 were upgraded to the post of Master Craftsman providing them

with the benefit of reservation under the re-structuring scheme dated

15th September, 2004 with effect from 1st November, 2003. The

petitioner submitted a representation dated 15th January, 2005

pointing out the illegalities and anomalies in the same. According to

the petitioner, the respondent Nos. 4 to 6 were upgraded to the post of

Master Craftsman in the pay scale of Rs. 5000-8000/- in violation of

the clarification letter dated 25th April, 2005 issued by respondent No. 2

to respondent No. 1 providing the benefit of reservation to respondent

Nos. 4 to 6 despite specific instructions of the DOPT dated 25th October,

2004 which categorically stipulated not to apply the policy of

reservation on the upgraded post arising out of the restructuring.

6. The petitioner, therefore, contended that since the restructuring

resulted in upgrading the post, the order dated 11th August, 2004, was

liable to be struck down. In the circumstances, the petitioner filed an

original application bearing O.A. No. 2046/2005 before the Central

Administrative Tribunal praying, inter-alia, for the quashing of the

upgradation order dated 11th August, 2004, and the seniority list dated

8th October, 2003/18th October, 2003 on the ground that the up-

gradation order dated 11th August, 2004 and the above noted seniority

list were contrary to the law settled by the Supreme Court. The

petitioner also sought a direction to the respondent Nos. 1 to 3 to

consider the up gradation of the petitioner to the post of Master

Craftsman in the pay scale of Rs. 5000-8000/- and to correctly

determine his seniority and place his name at Sl. No. 26-A in the

seniority list dated 8th October, 2003/18th October, 2003, thereby

placing him above the other respondents.

7. The application was contested by respondent Nos.1 to 3 who filed

the reply dated 21st April, 2006 of Sh.J.B.Singh contending, inter-alia,

that the rule for up-gradation after restructuring continues to apply to

Railway employees till date since the Hon‟ble Supreme Court had

granted the stay against the order of the Full Bench of Chandigarh High

Court regarding para 14 of the reservation policy in the upgradation

issued by the Railway Board in November, 2003. The Respondent Nos.1

to 3 pointed out that the matter at present is pending before the

Supreme Court for final disposal after admitting the SLP against the

judgment dated 3rd March, 2005 passed in CWP No. 3182/2005 of the

High Court of Punjab and Haryana at Chandigarh on 18th July, 2005,

alongwith the SLP No. 13125-13137/25 and the SLP Civil

No.13209/205. Therefore, it was contended that since the matter is

subjudice, the original application of the petitioner ought to be kept

pending till the orders are passed by the Supreme Court. The said

respondents contended that the pleas raised by the petitioner regarding

the continuous benefit of reservation on account of up-gradation is not

correct. Regarding the petitioner, it was asserted that he was appointed

as Apprentice Fitter on 22nd May, 1982 and was regularized on 22nd

February, 1983. On account of several punishments awarded under

D&AR, the petitioner was not promoted for a long period and was

ultimately promoted to the post of Technician Grade-II on 1st March,

1995 and subsequently to the post of Technician Grade-I in the pay

scale of Rs. 4500-7000 on 20th March, 1995. Regarding respondent

Nos.4 to 6, it was averred that on 15th November, 1989 and 27th

February, 1990 due to short falls of SC/ST in the Technician Grade-III,

they were promoted to Technician Grade-III on the said dates.

Thereafter, respondent Nos.4 to 6 were promoted to the post of

Technician Grade-II on 22nd July, 1992 and to the post of Technician

Grade-I on 27th April,1992 and thus, since they are senior to the

petitioner, consequently, they are shown senior to the petitioner in the

seniority list and hence, the petitioner cannot make a grievance to it.

8. Respondent Nos.1 to 3 also emphasized that by letter No.232-

VI/EMU/9/Part-II dated 29th November, 2004, the petitioner was

directed to represent against the seniority if there was any objection,

however, no objection was received from the petitioner. Reliance was

also placed by respondent Nos.1 to 3 on the case of K.Manik Raj v.

Union of India, (1997) 4 SCC 342.

9. The Tribunal, after considering the pleas and contentions of the

parties, relied on the order passed in the W.P.(C) No.3217/2007 where

the High Court had remanded the matter to the Tribunal on account of

the decision rendered by the Supreme Court in case of Union of India v.

Pushpa Rani, (2008) 9 SCC 243, for fresh consideration on merit, as it

was observed that in view of the judgment of Pushpa Rani (supra) the

judgment of the Tribunal stood over-ruled, and therefore it was directed

that the observations contained therein may be considered by the

Tribunal while it passed an order on merits. The Tribunal, therefore,

considered the question- a) Whether the seniority afforded to the

petitioner is wrong as has been alleged by him and, b) Whether the

reservation applied in the upgraded post consequent upon

restructuring, is illegal as has been contended by the petitioner.

10. Regarding the seniority list being not prepared in terms of IREM

302/303 and the decisions cited by the petitioner, the Tribunal held

that the said Rules 302/303 of IREM pertains to seniority at the initial

stage of recruitment and that the petitioner has not challenged his

seniority at the stage of recruitment i.e. of Khalassi, and even if the next

post of Technician Grade-III is taken into consideration, the same would

be irrelevant since the seniority which is challenged in the original

application is regarding the post of Technician Grade-I and therefore,

the Rules of 302/303 IREM do not apply and support the pleas and

contentions of the petitioner. Referring to Rule 309 read with Rule 306

of IREM, it has been held by the Tribunal that the petitioner‟s date of

promotion to the post of Technician Grade-I which is 20th March, 1995

is latter to the date of promotion of the respondent Nos.4 to 6 to the

post of Technician Grade-I and therefore the said Rules have not been

violated. Regarding the seniority, at the level of Technician Grade-II,

the Tribunal held that the same had not been challenged by the

petitioner at the relevant stage and so it could not be agitated by him

now. The Tribunal in paras Nos.11 to 14 had held as under:-

"11. A perusal of the above would go to show that the seniority which the above rules talks of is that of „initial recruitment‟. In the case of the applicant, the initial recruitment is of Khalassi and even if the next post is taken, it is Technician Grade III, whereas, the impugned seniority is one of Technician Gr. I, two more posts higher than that of Technician Gr. III. As such, the said rules do not apply.

12. Of course, a separate Rule 309 read with 306 of IREM does exist in respect of seniority on promotion to the higher grade. The said Rules read as under:-

"306. Candidates selected for appointment at an earlier selection shall be senior to those selected later irrespective of the dates of posting except in the case by paragraph 305 above.

***

309. SENIORITY ON PROMOTION. -Paragraph 306 above applies equally to seniority in promotion vacancies in one and the same category due allowance being made for delay, if any, in joining the new posts in the exigencies of service."

13. If the above rule is applied to the case of the applicant, the applicant‟s date of promotion to the post of Technician Gr. I is 20-03-1995, while the other two i.e. private respondents‟ promotion is anterior to that of the applicant. The challenge of seniority in Grade I is on the ground that the applicant‟s initial date of joining in the post of Khallasi or for that matter as Technician Gr. III is anterior to those of the private respondents and it is on account of „jack up‟ at every stage of promotion that the private respondents had stolen a march over the applicant, which is illegal in view of the decision of the Apex Court in Ajit Singh (II) vs State of Punjab (1999) 7 SCC 209. The promotion of private respondents to the level of grade II is guided by the then prevailing rule position and we do not find any illegality in the seniority afforded to the private respondents ahead of the applicant. Apart from the same, the applicant had not challenged the seniority of Grade II at the relevant point of time.

14. Coming to the seniority list of Grade I Technician, the reason why the private respondents were promoted ahead of the applicant is not far from comprehension. They are senior in Grade II and further, the applicant was undergoing currency of penalty of withholding of increments. It is to be noted here that promotion granted at the level of Technician Gr. II was not on the basis of any restructuring but in the normal course. This had occurred in 1992, when the applicant was not promoted to the said grade, which he got only in 1995 (consequent upon the applicant undergoing currency of penalty at the material point of time). Such a deferment of promotion till the

expiry of the currency of penalty has been held valid in the case of Union of India v. K. Krishnan, (1992) Supp 3 SCC 50 wherein the Apex court has held, the denial of promotion during the currency of the penalty is merely a consequential result thereof. The view that a government servant for the reason that he is suffering a penalty or a disciplinary proceeding cannot at the same time be promoted to a higher cadre is a logical one (This has also been referred to in a later judgment vide Union of India v. B. Radhakrishna (1997) 11 SCC 698.) Thus, challenge to the seniority in the post of Technician Gr. I is not legally sustainable."

11. Regarding the reservation, the Tribunal considered the Full

Bench decision in O.A. No. 2211/2008 decided on 2nd December, 2010

and the decision rendered by the Supreme Court in the case of Pushpa

Rani (supra), in detail, and held that reservation shall be available since

the Restructuring Scheme of 2003 provided for certain newly created

posts. However, it was also observed that the reservation shall be

applicable only in respect of those cadres where there has been an

increase in the complement and not in case of entire restructuring. The

Tribunal categorically held by relying on the judgment of the Supreme

Court in Union of India Vs.V.K.Sirothia (Civil Appeal No.3622/95),

(1999) SCC L&S 938 that where there is no increase in the complement

of a cadre then reservation would not be applicable, therefore, the

Tribunal also observed that the ratio of Sirothia (supra) had not been

overruled by the Supreme Court in the case of Pushpa Rani (supra).

The Tribunal thus, held that for promotion to the post of MCM, the

seniority position is based on the seniority in Grade-I and reservation if

any in the restructuring and therefore, the same could not be impugned

by the petitioner and regarding reservation the Tribunal directed

respondent Nos.1 to 3 to conduct an exercise to ascertain as to whether

there has been creation of any new posts in the cadre of Technician, in

order to decide whether or not the reservation is to apply in accordance

with the decision of the Supreme Court in the case of Pushpa Rani

(supra).

12. The decision of the Tribunal is challenged by the petitioner

contending, inter-alia, that it had been admitted by the respondents in

the letter dated 25th April, 2005 that the seniority list prepared was not

conclusive and advice was received by the Divisional Railway Manager

(Northern) Railways from the General Manager (Northern) Railways

regarding the finalization of the seniority list. The petitioner contended

that the Tribunal has overlooked certain material facts and that the

order has been passed without application of mind and in violation of

the ratio of the judgment of the Supreme Court in the case of Pushpa

Rani (supra). Referring to the case of Pushpa Rani (supra), it has been

contended on behalf of the petitioner that if during the course of the

restructuring some additional posts are created then promotion can be

made to these additional posts, however, respondent Nos.1 to 3 have

failed to disclose that as a result of restructuring additional posts had

been created. According to the petitioner, no record of creation of

additional posts during restructuring had been produced and the order

has been passed illegally by the Tribunal. The petitioner also contended

that respondent Nos.1 to 3 had admitted that respondent Nos.4 to 6

had been promoted to the post of Fitter Grade-III, Fitter Grade-II and

Fitter Grade-I, as a result of reservation. Thus, these respondents Nos.

4 to 6 had got their promotion accelerated through the benefit of

reservation, which is why, respondent Nos.4 to 6 have been put above

the petitioner in the seniority list. The petitioner also contended that he

had filed the objections to the seniority list and that during the period

1992-2003, no seniority list was ever issued by respondent Nos.1 to 3

inviting objections from the employees. In the circumstances, the

petitioner has prayed for quashing the order dated 3rd March, 2011

passed by the Tribunal in OA No.2046 of 2005 and also sought

directions to respondent Nos.1 to 3 to fix the seniority of the petitioner

in the list of Fitter Grade-I at the correct position.

13. This Court has heard the learned counsel for the petitioner at

length and has also perused the copies of the record of the Tribunal

produced along with the writ petition. The learned counsel for the

petitioner has not disputed that the punishment was awarded to the

petitioner in the departmental proceedings and that during the

pendency of the punishment, the petitioner was not promoted to the

post of Technician Grade-II. On account of the promotion being delayed

to the post of Technician Grade-II, the petitioner was promoted on 1st

March, 1993 whereas respondent Nos.4 to 6 were promoted to Grade-II

prior to the petitioner. The learned counsel for the petitioner has also

not been able to give any satisfactory reply as to why the petitioner,

though promoted to Technician Grade-II later in comparison with

respondent Nos.4 to 6, still has to be treated as senior in Technician

Grade-II to that of respondent Nos.4 to 6. Perusal of Rules 302/303 of

IREM also shows unequivocally that they pertain to initial recruitment

and on the basis of the said rule, the seniority of the petitioner and

respondent Nos.4 to 6 cannot be changed, nor can the petitioner be

held to be senior to respondent Nos.4 to 6. In any case, the petitioner

was promoted to Technician Grade-II in 1993 whereas respondent

Nos.4 to 6 had been promoted prior to him and thereafter seniority list

was issued, which however, was not challenged by the petitioner. No

cogent reason has been given by learned counsel for not challenging the

seniority of the petitioner vis-a-vis respondent Nos.4 to 6 on the post of

Technician Grade-II.

14. If the petitioner was junior to respondent Nos.4 to 6 on the post of

Technician Grade-II, and later on, the petitioner was promoted to

Grade-I after respondent Nos.4 to 6 had already been promoted to

Grade-I, the seniority in Grade-I also cannot be challenged by the

petitioner on the ground that he was senior to respondent Nos.4 to 6 at

the time of initial appointment as Khalassi or on the basis of the

appointment of petitioner in Technician Grade-III prior to that of the

said respondents. Respondent Nos.1 to 3 had categorically contended

in reply to the averments made in the Original Application before the

Tribunal that the petitioner was issued letter No.232-VI/EMU/9/Part-II

dated 29th November, 2004 directing the petitioner to make

representation, if any, regarding the objection against the seniority, but

nothing was received from the petitioner. The said plea of respondent

Nos.1 to 3 was, though denied, however, no copy of the representation

has been produced by the petitioner to show that any such

representation was made by the petitioner pursuant to letter dated 29th

November, 2004. In any case, if the petitioner was junior to respondent

Nos.4 to 6 on the post of Technician Grade-I and Grade-II, he cannot

claim seniority over respondent Nos.4 to 6, nor can the seniority list

dated 8th October, 2003/18th October, 2003 be set aside, nor is the

petitioner entitled to be placed over respondent Nos.4 to 6 in the

seniority list and to that extent the order of the Tribunal cannot be

faulted. The petitioner has failed to show any illegality or irregularity in

the order of the Tribunal holding that the petitioner cannot claim

seniority over respondent Nos.4 to 6 as he was junior to respondent

Nos.4 to 6 in Grade-II and Grade-I.

15. The petitioner had become junior to respondent Nos.4 to 6 as

during the pendency of the penalty he could not be promoted. In Union

of India v. B.Radhakrishna, (1997) 11 SCC 698, the Supreme Court had

held that a Government servant for the reason that he is suffering a

penalty cannot at the same time be promoted to a higher cadre, is a

logical one and no exception is to be made to that rule unless provided

specifically to the contrary under any rule or regulation.

16. Regarding the plea of restructuring, that on restructuring

additional posts had been created and reservation would be applicable

and that the respondent Nos.1 to 3 have failed to disclose that as a

result of restructuring, additional posts had been created and no record

of creation of additional posts during the restructuring had been

produced by respondent Nos.1 to 3 and its consequences thereof, it is

apparent that the Tribunal had directed the respondents to conduct an

exercise to ascertain as to whether there has been creation of new posts

in the cadre of Technical (to which the petitioner belongs) and in case

the posts have been created then to apply reservation. In Pushpa Rani

(supra), the Supreme Court has held that in legal parlance, up-

gradation of post involved the transfer of post from lower to higher

grade and placement of the incumbent of that post in the higher grade.

Ordinarily, such placement does not involve selection, and

consequently, on restructuring or such up-gradation no reservation

would apply, however, if on account of restructuring additional posts

become available which are required to be filled by promotion from

amongst candidates who satisfy the conditions of eligibility and are

adjudged suitably, there can be no rational justification to exclude

applicability of reservation while effecting promotion. While dealing with

the two policies of reservation dated 25th June, 1985 and 19th October,

2003, the Supreme Court had held as under:-

30. From what we have noted above, it is clear that the policies contained in Letters dated 25-6-1985 and 9-10- 2003 are substantially dissimilar. The exercise of restructuring envisaged in the first policy was in the nature of upgradation of substantial number of posts in different cadres and the upgraded posts were to be filled simply by scrutinising the service records of the employees without holding any written and/or viva voce test and there was no merit-based selection. In contrast, the restructuring exercise envisaged in Letter dated 9-10-2003 resulted in creation of additional posts in some cadres with duties and responsibilities of greater importance and which could be filled by promotion from amongst the persons fulfilling the conditions of eligibility and satisfying the criteria of suitability and/or merit. Para 13 of Letter dated 9-10-2003 is, in itself, demonstrative of the difference between simple upgradation of posts in the cadre of Supervisors which are required to be filled without subjecting the incumbents of the posts to normal selection procedure whereas the additional posts becoming available in other cadres are required to be filled by promotion.

31. In legal parlance, upgradation of a post involves the transfer of a post from the lower to the higher grade and placement of the incumbent of that post in the higher grade. Ordinarily, such placement does not involve selection but in some of the service rules and/or policy framed by the employer for upgradation of posts, provision has been made for denial of higher grade to an employee whose service record may contain adverse entries or who may have suffered punishment -- D.P. Upadhyay v. N.R. Baroda House12.

32. The word "promotion" means "advancement or preferment in honour, dignity, rank or grade". "Promotion" thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law the expression "promotion" has been understood in the wider sense and it has been held that "promotion can be either to a higher pay scale or to a higher post" -- State of Rajasthan v. Fateh Chand Soni13 .

33. Once it is recognised that the additional posts becoming available as a result of restructuring of different cadres are required to be filled by promotion from amongst the employees who satisfy the conditions of eligibility and are adjudged suitable, there can be no rational justification to exclude the applicability of the policy of reservation while effecting promotions, more so because it has not been shown that the procedure for making appointment by promotion against such additional posts is different than the one prescribed for normal promotion. In Fateh Chand Soni case13 this Court interpreted the provisions contained in the Rajasthan Police Service Rules, 1954, which regulate appointment to the selection scale in the service and held that such appointment constitutes promotion. The Court then considered two earlier judgments in Lalit Mohan Deb v. Union of India14 and Union of India v. S.S. Ranade15 and declared that the High Court was in error in holding that appointment to the selection scale does not constitute promotion.

17. The Tribunal has also applied the ratio of the Supreme Court in

the case of Pushpa Rani (supra) and has also held that Pushpa Rani‟s

case does not upset the ratio of Sirothia (supra) and thus, has given the

directions to the respondents to conduct an exercise to ascertain

whether there has been creation of new posts in the cadre of Technician

on restructuring or not. The learned counsel for the petitioner has not

been able to raise any cogent ground which would show any illegality or

irregularity in the directions given by the Tribunal in the facts and

circumstances. In the circumstances, the order of the Tribunal cannot

be faulted on any of the grounds raised by the petitioner.

18. In the totality of the facts and circumstances, there are no

grounds to interfere with the order of the Tribunal dated 3rd March,