Union Of India And Anr vs A.K.Mehrotra And Ors
2014 Latest Caselaw 3130 Del

$~10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         DECIDED ON: 16.07.2014


+                         W.P. (C) 2343/2012
                          C.M. APPL.5039/2012

       UNION OF INDIA AND ANR                    ..... Petitioners
                     Through: Ms. Geetanjali Mohan, Advocate.

                          versus

       A.K.MEHROTRA AND ORS                    ..... Respondents

Through: Ms. Jyoti Singh, Sr. Advocate with Mr. A.K. Trivedi, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI S.RAVINDRA BHAT, J. (OPEN COURT)

1. The short controversy arising for consideration is whether the seniority of the 10% Limited Departmental Competitive Examination (LDCE) quota candidates for filling up vacancies for the post of Commercial Apprentices within the Railways is to be reckoned from their date of empanelment after selection in the LDCE test, or from the dates of their joining the said post after undergoing training.

2. The facts necessary for deciding the case are that the respondents qualified in the LDCE quota held in 1983. They were apparently initially selected and serving in the posts of Coaching Clerk and Goods Clerk w.e.f. 1976. The LDCE candidates' contention was

W.P.(C) 2343/2012 Page 1 that by applying Rule 302 of the Indian Railway Establishment Manual (IREM), they should be treated as promotees and their seniority should be reckoned from the date of their empanelment as Commercial Apprentices.

3. The Railways, on the other hand, contended that LDCE candidates were in reality direct recruits since their quota of 10% was part of the larger quota earmarked for direct recruits (i.e. 25%, of which the balance 15% is to be filled by eligible direct recruit candidates from open market). Eventually, the matter was considered by the Central Administrative Tribunal (CAT) which upheld the LDCE candidates' contentions vide impugned order dated 18.01.2012 passed in OA 2087/2005. The Union of India being aggrieved has preferred this writ petition.

4. Ms. Geetanjali Mohan, Advocate for the petitioners contends that on a plain reading of Rule 130 of IREM, it would be apparent that the 10% quota earmarked for LDCE is part of the larger 25% quota earmarked for direct recruits. It was submitted that, therefore, the requirement for training for such LDCE candidates is deemed essential and the mandate of Rule 302, therefore, is clear and that it is only after their training that such appointees can be considered to be holders of the posts and, therefore, it is from such date that their seniority is to be reckoned.

5. Ms. Jyoti Singh, learned senior counsel for the respondents/applicants submitted that the difference between the LDCE candidates and direct recruits is apparent from a textual reading of Rule 130 itself, which shows that the LDCE candidates are

W.P.(C) 2343/2012 Page 2 departmental candidates but with the further requirement of having to be graduates. The maximum age limit for departmental candidates - in the LDCE quota - is 40 years, whereas for direct recruits it is 28 years. She also relied upon two rulings of different Benches of the CAT, i.e., Arjan Singh & Ors. v. UOI & Ors. (OA 2106/1997, decided on 1.6.2000) and Lal Bahadur Chauhan & Anr. v. UOI & Ors. (OA 1232/1988, decided on 25.11.1992, by the Allahabad Bench of the CAT). It was submitted that the matter before the Allahabad Bench was the subject matter of a Special Leave Petition before the Supreme Court, being SLP No.5434-35/1994 which was dismissed in limine on 2.3.1994.

6. Rules 130 and 302 of the IREM are extracted for convenience:

"(iv) COMMERCIAL APPRENTICES

130. (1) 25% of the posts in the categories of Commercial Inspectors, Claims Inspectors, Rates Inspectors, Chief Booking/Parcel/Goods Clerks in Scale Rs.1600-2660 will be filled by recruitment as Commercial Apprentices as under :

(i) 15% plus shortfall , if any, against LDCE quota as at (ii) below, by direct recruitment through the RRB; and (Authority Board's letter NO. E(NG)I-99/PM1/29 dated 20-4- 2000)

(ii) 10% by Limited Departmental Competitive Examination from amongst serving graduates in Commercial Department (other than Ministerial) upto 40 year of age.

(2) Qualifications etc. for direct recruitment are as under :

(i) Educational: A University Degree or its equivalent. Diploma in Rail Transport and Management from the Institute of Rail Transport will be an additional desirable qualification.

(ii) Age : Between 20-28 years.

W.P.(C) 2343/2012 Page 3

(iii) Training & Stipend : Commercial Apprentices will be on training for a period of two years on a stipend of Rs. 1400 (first year) and Rs. 1440 (second year)

(3) Channel of Promotion/Higher grades:

The following higher grades are available to Commercial Apprentices after their absorption in test by way of advancement as per channels of promotion laid down by the Zonal Railways keeping in view the broad policy framework laid down by the Railway Board from time to time."

302. Seniority in initial recruitment grades. Unless specifically stated otherwise, the seniority among the incumbents of a post in a grade is governed by the date of appointment to the grade. The grant of pay higher than the initial pay should not, as a rule, confer on a railway servant seniority above those who are already appointed against regular posts. In categories of posts partially filled by direct recruitment and partially by promotion, the criterion for determination of seniority should be the date of regular promotion after due process in the case of promotee and the date of joining the working post after due process in the case of direct recruit, subject to maintenance of inter-se- seniority of promotees and direct recruits among themselves. When the dates of entry into a grade of promoted railway servants and direct recruits are the same they should be put in alternate positions, the promotees being senior to the direct recruits, maintaining inter-se-seniority of each group.

Note (i) In case the training period of a direct recruit is curtailed in the exigencies of service, the date of joining the working post in case of such a direct recruit shall be the date he would have normally come to a working post after completion of the prescribed period of training.

(No. E (NG) I-78-SR-6-42 dt. 7-4-1982 ACS. 132).

Note (ii) The Provision contained in Note (i) above will also apply to the Inter Apprentices and departmentally selected candidates against the quotas prescribed in certain categories

W.P.(C) 2343/2012 Page 4 to be filled by Limited Departmental Competitive Examination (such as 10% in the case of Traffic and Commercial Apprentices).

(Authority Board's letter NO. E(NG)I-89/SR6/35 dated 23-8- 1991)"

A reading of Rule 130 clarifies that the Indian Railways has sought to make a distinction between LDCE examinees and direct recruits. The first one is that the LDCE examinees are departmental, or in house candidates; the direct recruits candidates are those who are from the open market and are not existing employees. The second distinction is that of the maximum age. The other important aspect here is that a reading of the rules indicates, facially, that the LDCE quota has to be filled up first, since the wording of Rule 130 makes the direct recruit quota variable. In other words, any vacancies remaining unfilled in the LDCE quota have to be added to the 15% quota available for direct recruits. These distinctions in the Court's opinion are pertinent.

7. The Railway's contention, however, is that the mandate of Rule 302 is that in such classes of posts - which require training, the successful candidate is deemed to be entitled to the post only from the date he is given charge of it, and not from the date he joins the training or the date of empanelment.

8. This Court is of the opinion that the view taken by the Tribunal in this case is consistent with the ruling adopted in two previous cases which has held the field for over 14-15 years. Whilst, arguably, there is some merit in the contentions of the Union of India, however, this Court, at the same time, is alive to the fact that the period of 15-20 years of working of the rules, especially Rule 302, in respect of these

W.P.(C) 2343/2012 Page 5 cadres has meant the assimilation of the two previous rulings of the CAT which has held the field. If, at this stage, the Court is to re- examine the matter in the absence of compelling or obvious reasons or a public mischief which is apparent, there is a real possibility of confusion and possible multifarious litigation in Northern Railway, if not in the entire country, with respect to the interpretation which has held the field. This Court is of the opinion that there is no unreasonableness in the interpretation adopted by the CAT which requires correction.

9. Consequently, the writ petition is dismissed along with pending applications.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) JULY 16, 2014 /vks/

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