Delhi High Court
Subhasis Kundu And Ors. vs Uoi & Anr. on 6 March, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) 635/2009
% Judgment Reserved on: 10th January, 2017
Judgment Pronounced on: 6th March, 2017
SUBHASIS KUNDU AND ORS. ..... Petitioners
Through : Mr. Manish Jain, Mr. Ankur Garg, Mr.
Rohit Goel and Mr. Siddharth Sharma,
Advs.
versus
UOI & ANR. ..... Respondents
Through : Mr. V.S.R. Krishna, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S. SISTANI
HON'BLE MR. JUSTICE VINOD GOEL
G.S.SISTANI, J.
1. Rule D.B. was issued in this matter on 19.07.2011.
2. Challenge in this writ petition is to the orders dated 31.10.2007 in O.A.
No. 239/2007 and 20.02.2008 in R.A. No. 01/2008 passed by the
Central Administrative Tribunal, Principal Bench, Delhi (briefly the
„Tribunal‟) whereby both the application and the review filed by the
petitioners herein have been dismissed.
3. Brief facts to be noticed for the disposal of the present writ petition are
that the petitioners at the relevant point of time were working as
„Personal Assistants‟ (later redesignated as „Stenographers Grade-I‟) in
the Research, Designs and Standards Organisation/respondent no. 2
(briefly the „RDSO‟), which was an attached office with the Ministry of
Railways. As per the prevalent recruitment rules, the next promotional
avenue for Stenographers was that of „Private Secretary‟, which was to
be filled up 50% by seniority-cum-suitability and 50% by Limited
Departmental Competitive Examination („LDCE‟).
4. By a circular dated 31.05.2002, it was decided to hold a LDCE for
forming a panel for the post of Private Secretary. Pursuant to the
examination and a typing test, the petitioners qualified and their names
figured in the Select List/ panel dated 30.01.2003 at serial nos. 2 to 5 in
the order of merit after one, Sh. Surya Pal Yadav. On 14.02.2003, Sh.
Yadav was promoted to the exclusion of the petitioners herein.
5. Since the petitioners were not promoted despite their names figuring in
the select list, the petitioners made a representation to the respondents
seeking promotion, which was not responded to. Accordingly, the
petitioners approached the Lucknow Bench of the Tribunal by filing an
O.A. No. 552/2003, which was disposed of on 24.11.2003 with a
direction to the respondents to consider the appointment of the
petitioners. It is the case of the petitioners that even thereafter, no order
was forthcoming, which led to the filing of a contempt petition (C.P.
21/2004). In the contempt proceedings, the respondents informed the
Tribunal that the claim of the petitioners had been rejected by a
memorandum dated 12.01.2004. Accordingly, the contempt petition
was dismissed. The memorandum bearing F-II/CC/P/2003/SK dated
12.01.2004 reads as under:
" MEMORANDUM
In reference to their joint representation dt. 03.09.2003
received as annexure No.7 of OA No.552 of 2003 Shri
Subhasis Kundu and Others are hereby informed that only two
vacancies of Private Secretaries (Group 'B') had occurred on
01.08.2003 due to superannuation of two Private Secretaries
(Group 'B') on 31.07.2003. Out of these two vacancies, one
was in the share of Departmental Quota and the other was in
the share of LDCE Quota.
You are aware that vide Gazette Notification dt.16.10.2002,
the status of RDSO has been changed from attached office of
Railway Board to Zonal Railways and a high level committee
was constituted by Railway Board to give its recommendations
for restructuring of RDSO. The said committee had submitted
its confidential report in May 2003 and the copies of this
report were also given to the recognized staff associations on
07.08.2003. After considering the views of staff associations,
Railway Board had accepted the recommendations of the said
committee vide their Confidential Letter dt.24.09.2003.
After change of status of RDSO, the employees of RDSO had
been brought at par with the employees of Zonal Railways.
Accordingly, the posts of Private Secretary (Group 'B') have
been reduced from 37 to 4 and 20 number higher grade posts
in group 'C' category are being created to provide better
promotional prospects to the category of Personal Assistant
(Group 'C'). Hence, a large number of Private Secretaries
(Group 'B') are already in excess in this organization.
However, they will retain their Group 'B' status on personal
basis.
In view of the above, there is no post of Private Secretary
(Group 'B') available for your promotion. In this connection,
it is also pointed out that none of your juniors has been
promoted to the post of Private Secretary (Group 'B')."
(Emphasis Supplied)
6. Aggrieved by the denial of promotion, the petitioners filed a fresh
application, O.A. No. 239/2007, before the Tribunal.
7. The stand of the respondents before the Tribunal was that the process of
selection was initiated by circular dated 31.05.2002 for forming a panel
of 5 vacancies (one existing and four anticipated) in the post of Private
Secretary, which was a Group „B‟ gazetted post in the scale of Rs.
6,500-10,500/ 7,500-12,000 (provisional). Even before the select list
was prepared, the status of RDSO was changed from an attached office
to that of Zonal Railways by Gazette Notification dated 11.10.2002,
which mandated the bringing of employees of RDSO at par with Zonal
Railways. Accordingly, a high-level committee was constituted to
work out the modalities of restructuring of RDSO, which submitted its
report in May, 2003. As per the report, the posts of Private Secretary
were reduced to 4 and the remaining posts were to be downgraded in
Group „C‟ after their vacancy by the existing incumbents. The
recommendations were accepted by the Railway Board vide its
confidential letter dated 24.09.2003 and accordingly, Gazette Sanction
Memo No. 8 of 2004 was issued on 21.01.2004. The respondents
stated that after 14.02.2003, i.e. the promotion of Sh. Yadav, no
promotion to the post of Private Secretary has been made as the report
of the high-level committee had made it evident that the posts are not
likely to be continued.
8. The OA filed by the petitioners was dismissed on 31.10.2007 and the
review petition filed thereafter has also been dismissed on 20.02.2008,
which has led to the filing of the present writ petition.
9. Mr. Jain, learned counsel for the petitioners, submits that the orders of
the Tribunal are bad in law and should be set-aside. Learned counsel
submits that the figuring of the name of the petitioners in the select list
or the promotion of Sh. Yadav are not disputed and consequently, it
was incumbent upon the respondents to promote the petitioners to the
vacant posts of Private Secretaries. He submits that the granting of
promotion to Sh. Yadav to the exclusion of the petitioners was in clear
violation of the mandate of Article 14 of the Constitution of India. He
submits that the circular dated 31.05.2002 clearly stipulated that there
were 5 vacancies proposed to be filled up, the subsequent decision not
to fill up vacancies having been taken without any justifiable reasons is
liable to be quashed.
10. Learned counsel contends that despite the Gazette Notification dated
11.10.2002, the respondents went ahead with the selection process
which culminated in the creation of the panel on 30.01.2003. He
submits that initially 10 vacancies were proposed to be filled up from
which 50% were to be filled from the LDCE Quota. Sh. Yadav filled
up the first vacancy; while additionally, the third (31.07.2003), fifth
(31.10.2003), seventh (31.12.2004) and ninth vacancy (30.06.2004)
were also to be filled up from the panel dated 30.01.2003.
11. Drawing the attention of the court to paragraph 14 of the Report of the
high-level committee, Mr. Jain submits that the recommendations were
to be effected only prospectively. Accordingly, learned counsel
submits that the vacancies which had occurred prior to the acceptance
of the report vide confidential letter dated 24.09.2003, had to be filled
up from the existing panel. He concludes that despite the
recommendations having a prospective affect, the respondents have
failed to fill the vacancies which had occurred prior to the acceptance
of the recommendations on 24.09.2003. Mr. Jain submits that the
Tribunal has failed to appreciate that the restructuring was affected only
on 21.01.2004, however, since there were vacancies prior thereto, the
petitioners had acquired in indefeasible right to promotion in respect of
the posts.
12. Learned counsel next contends that the promotion of Sh. Yadav on
14.02.2003 to the exclusion of the petitioners herein smacks of
arbitrariness and consequently, the petitioners should have been
promoted. To this end, counsel submits that even at the time of
promotion of Sh. Yadav, the respondents were aware of restructuring,
yet they went ahead by promoting him. The petitioners, being on a
similar footing as that of Sh. Yadav, should have also been considered
for promotion against the existing vacancies. Mr. Jain concludes that
such discrimination on the part of the respondents is clearly arbitrary.
Relying upon Shankarsan Dash v. Union of India, (1991) 3 SCC 47
(paragraph 7), learned counsel submits that even though the State is
under no legal obligation to fill up vacancies; but at the same time, this
does not give a licence to the State to act in an arbitrary manner.
13. The final contention of the learned counsel for the petitioners is that the
vacancies having occurred on or before 01.11.2003, had to be filled up
in terms of the relevant departmental rules and the failure to do so is
clearly arbitrary. He submits that as on 01.11.2003, no restructuring
order was effected or issued and therefore, the respondents should have
considered the case of the petitioners in light of the rules relevant on
that date. He relies upon paragraph 28 of the judgment of the Supreme
Court in Major General H.M. Singh, VSM v. Union of India & Anr.,
(2014) 3 SCC 670, which reads as under:
"28. The question that arises for consideration is, whether the
non-consideration of the claim of the appellant would violate
the fundamental rights vested in him under Articles 14 and 16
of the Constitution of India. The answer to the aforesaid query
would be in the affirmative, subject to the condition that the
respondents were desirous of filling the vacancy of Lieutenant-
General, when it became available on 1-1-2007. The factual
position depicted in the counter-affidavit reveals that the
respondents indeed were desirous of filling up the said
vacancy. In the above view of the matter, if the appellant was
the seniormost serving Major-General eligible for
consideration (which he undoubtedly was), he most definitely
had the fundamental right of being considered against the
above vacancy, and also the fundamental right of being
promoted if he was adjudged suitable. Failing which, he would
be deprived of his fundamental right of equality before the law,
and equal protection of the laws, extended by Article 14 of the
Constitution of India. We are of the view that it was in order to
extend the benefit of the fundamental right enshrined under
Article 14 of the Constitution of India, that he was allowed
extension in service on two occasions, firstly by the
Presidential Order dated 29-2-2008, and thereafter, by a
further Presidential Order dated 30-5-2008. The above orders
clearly depict that the aforesaid extension in service was
granted to the appellant for a period of three months (and for
a further period of one month), or till the approval of the ACC,
whichever is earlier. ..."
(Emphasis Supplied)
14. Relying upon the aforequoted paragraph, learned counsel submits that
where the Supreme Court found the reason for denying promotion to be
arbitrary, it granted promotion holding the same to be a violation of
Article 14 of the Constitution. Similarly in the present case, Mr. Jain
submits that the action of depriving the petitioners of promotion to the
post of Private Secretary is arbitrary, as is evident from the following
factors:
(i) The petitioners were eligible for the post;
(ii) The Select Panel was acted upon as Sh. Yadav was promoted
therefrom;
(iii) The vacancies in question arose prior to 01.11.2003, i.e. the date
of effecting of restructuring;
(iv) The restructuring actually took place on 21.01.2004; and
(v) The high-level committee had specifically held that its
recommendations are to be effected prospectively.
15. Per contra, Mr. Krishna, learned counsel for the respondents, submits
that an assessment of vacancies for the post of Private Secretaries for
the period 01.07.2002 to 30.06.2004 was carried out and vacancies (one
existing and nine anticipated) were proposed to be filled. The details of
vacancies are as under:
Vacancy Date of Occurrence Remarks
Existing: 01
Due to Retirement of
1. 28.02.2003 Mam Chand
2. 31.07.2003 Ram Swaroop
3. 31.07.2003 G.N. Srivastava
4. 31.08.2003 Phool Singh
Anticipated: 09
5. 31.10.2003 R.K. Dausia
6. 31.12.2003 Hari Lal
7. 31.12.2003 Chain Singh
8. 31.03.2004 Chaube Lal
9. 30.06.2004 P.D. Harwani
16. One temporary post was surrendered on 01.03.2003 and the incumbent
of the post was adjusted against the vacancy occurring due to
retirement of Sh. Mam Chand. Since the recruitment rules provided for
50% quota through LDCE, the one existing vacancy and anticipated
vacancy at serial nos. 3, 5, 7 and 9 were proposed to be filled through
LDCE. Accordingly, circular dated 31.05.2002 was issued and
pursuant thereto the panel dated 30.01.2003 was created. Sh. Yadav,
whose name figured at serial number 1 was promoted to the post of
Private Secretary on 14.02.2003.
17. Learned counsel submits that once the Report of the Committee was
given in May, 2003, it was clear that the cadre structure would undergo
a change and the posts of Private Secretary would be reduced, thus, no
further promotions were effected. Subsequently, the strength of Private
Secretaries was reduced when the restructuring was effected. He
submits that the then Director, Administration-II, RDSO was the
Secretary of the high-level committee and therefore, knew that the
anticipated vacancies in Private Secretary were not likely to be
continued when the report was submitted in May, 2003. He also relies
upon Shankarsan Dash (Supra) to submit that the declaration of a
candidate as successful does not give any right to the employee to be
appointed.
18. Mr. Krishna submits that after the restructuring was effected, majority
posts of Private Secretary were downgraded and the panel could no
longer be affected as the same pertained to a Group „B‟ gazetted post.
He additionally submits that the decision not to effect promotions
cannot be said to be arbitrary as the same was taken for valid and
cogent reasons.
19. We have heard the learned counsel for the parties and gone through the
material placed on record.
20. It is not in dispute that pursuant to an assessment of vacancies, circular
dated 31.05.2002 was issued proposing LDCE for creation of a panel
for promotion to the post of Private Secretary. The petitioners qualified
the same and their names figured as serial numbers 2 to 5 of the select
panel created on 30.01.2003 on the basis of their merit. From the
panel, Sh. Yadav, whose name figured at serial number 1, was
promoted on 14.02.2003 against an existing vacancy, but the
respondents did not effect any further promotions thereafter. As the
petitioners have not been promoted despite being eligible and their
name figuring in the select panel has led to the applications before the
Tribunal and the present petition.
21. The contentions of the learned counsel for the petitioners are threefold:
first, the petitioners had an indefeasible right to be considered for
promotion against vacancies which had occurred prior to the
restructuring; second, promotion of Sh. Yadav to the exclusion of the
petitioners is arbitrary and consequently, the petitioners have a right to
be considered against the vacancies; and third, vacancies which had
occurred prior to the restructuring were to be filled in terms of the
erstwhile departmental rules unaffected by the subsequent restructuring.
22. The question whether a candidate achieves a right to be
appointed/promoted once having been found eligible and placed in the
select list has been repeatedly faced by the courts. The Constitution
Bench of the Supreme Court in Shankarsan Dash (Supra) was
examining the question "whether a candidate whose name appears in
the merit list on the basis of a competitive examination, acquires
indefeasible right of appointment as a Government servant if a vacancy
exists" (paragraph 1). The appellant therein was on top of the merit list
when certain vacancies arose in the general category of Indian Police
Services („IPS‟). Similar vacancies had arisen in reserved category and
duly filled from the merit list in which the name of the appellant also
figured. The appellant sought parity with the reserved category and
appointment against the subsequent vacancies. The stand of the Union
was that though vacancies had been filled up from the existing merit list
as and when they arose, but by the time the appellant was at the top, the
process of appointment for the next year had begun and the government
had decided to close the process of selection. In this background, the
Supreme Court rejected the case of the appellant and ultimately
dismissed the appeal. Justice L.M. Sharma, giving the opinion for the
bench, held as under:
"7. It is not correct to say that if a number of vacancies are
notified for appointment and adequate number of candidates
are found fit, the successful candidates acquire an indefeasible
right to be appointed which cannot be legitimately denied.
Ordinarily the notification merely amounts to an invitation to
qualified candidates to apply for recruitment and on their
selection they do not acquire any right to the post. Unless the
relevant recruitment rules so indicate, the State is under no
legal duty to fill up all or any of the vacancies. However, it
does not mean that the State has the licence of acting in an
arbitrary manner. The decision not to fill up the vacancies has
to be taken bona fide for appropriate reasons. And if the
vacancies or any of them are filled up, the State is bound to
respect the comparative merit of the candidates, as reflected at
the recruitment test, and no discrimination can be permitted.
This correct position has been consistently followed by this
Court, and we do not find any discordant note in the decisions
in State of Haryana v. Subash Chander Marwaha [(1974) 3
SCC 220: 1973 SCC (L&S) 488 : (1974) 1 SCR 165] , Neelima
Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC
(L&S) 759] , or Jatinder Kumar v. State of Punjab [(1985) 1
SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899].
...
10. The main contention on behalf of the appellant has been,
however, that the authorities in keeping the vacancies arising
later unfilled, acted arbitrarily. Mr Goswami referred to
several documents annexed to the special leave petition and
affidavits filed on behalf of the parties and contended that
although appointments of many candidates in the other
services were made in the later vacancies, the vacancy in the
Indian Police Service which subsequently became available to
the appellant was refused without any just cause, resulting in
illegal discrimination. This was emphatically denied on behalf
of the respondent. ... From the materials produced before us it
is fully established that there has not been any arbitrariness
whatsoever on the part of the respondent in filling up the
vacancies in question or the other vacancies referred to by the
learned counsel for the appellant. The process of final
selection had to be closed at some stage as was actually done.
A decision in this regard was accordingly taken and the
process for further allotment to any vacancy arising later was
closed. Mr Goswami relied upon certain appointments
actually made subsequent to this stage and urged that by those
dates the further vacancies in the Indian Police Service had
arisen to which the appellant and the other successful
candidates should have been adjusted. We do not find any
merit in this contention. It is not material if in pursuance of a
decision already taken before closing the process of final
selection, the formal appointments were concluded later. What
is relevant is to see as to when the process of final selection
was closed. Mere completing the formalities cannot be of any
help to the appellant. We do not consider it necessary to
mention all the details in this connection available from the
large number of documents which we closely examined during
the hearing at considerable length and do not have any
hesitation in rejecting the argument of the learned counsel in
this regard based on the factual aspect."
(Emphasis Supplied)
23. Even in case of DPCs, the department is fully justified in with deferring
promotions by taking a conscious decision not to fill up vacancies
provided the same is not actuated by mala fides or is due to
administrative lapses [See UOI & another v. K.L. Taneja & Anr.,
2013 (1) ADR 530; Pradeep Kumar & Ors. v. Govt. of N.C.T. of Delhi
& Ors., 2016 SCC OnLine Del 4599; Union of India & Anr. v. The
Defence Marine Engineering Technical Staff Welfare Association &
Ors., 2016 SCC OnLine Del 6564; Union of India & Anr. v. Shri
H.N. Saini & Anr., W.P. (C) 485/2009 dated 20.01.2017].
24. In Subha B. Nair and Ors. v. State of Kerala and Ors., (2008) 7 SCC
210, even though the cooperative bank had gained approval for 208
posts, it only filled up only 201 vacancies. The Supreme Court rejected
the contention of the appellants and held as under:
"19. The question as to whether there existed 7 vacancies or
16 vacancies in the aforementioned situation loses all
significance. We would assume that as per the requisition, 9
more vacancies could be filled up but it is trite that if the
employer takes a policy decision not to fill up any existing
vacancy, only because a person's name is found in the select
list, the same by itself would be a ground to compel the Bank
to fill them up."
(Emphasis Supplied)
25. A coordinate bench of this Court, of which one of us (G.S. Sistani, J.)
was a member, was faced with a similar situation in Tanay Rana and
Ors. v. Union Public Service Commission and Ors.,
MANU/DE/3832/2015 wherein the petitioners had alleged that despite
there being clear vacancies, the respondents had failed to exhaust the
reserve panel. This Court rejected the contention of the petitioners and
held as under:
"19. The same question has been dealt by the Hon'ble Apex
Court in several other cases including the case of Food
Corporation of India v. Bhanu Lodh and Others: (2005) 3
SCC 618 and All India SC and ST Employees Association and
Another v. A. Arthur Jeen and Others: (2001) 6 SCC 380
wherein the Hon'ble Apex Court has held that merely because
the names of the candidates were included in the panel
indicating their provisional selection, they did not acquire any
indefeasible right for appointment even against the existing
vacancies and the State is under no legal duty to fill up all or
any of the vacancies as laid down by the Constitution Bench of
this Court, after referring to earlier cases in Shankarsan Dash
v. Union of India: (1991) 3 SCC 47, the relevant part of the
judgment reads thus:--
...
21. On perusal of facts and contentions of both the parties, we
are of the considered view that recruitment process cannot
become an unending process. The respondents are not legally
bound to fill up all the notified vacancies. The State has a
discretionary power to decide as to how many vacancies are to
be filled up and there is no corresponding duty vested in the
State to fill up all the vacant posts. There is no mandatory
provision to suggest that more than one list is to be
requisitioned wherein it is obligatory on the part of the
respondents to fill up all advertised vacancies to the extent of
exhaustion of the said vacancies. In the present case, the
recruitment process was completed with the result being
declared pertinent to the posts and the completion of the same
exhausts the recruitment process. The decision on the part of
the respondent not to fill up all the advertised vacancies is
neither arbitrary nor unreasonable and therefore, the instant
Writ Petition is devoid of merit."
(Emphasis Supplied)
26. It would also be useful to refer to Rakhi Ray and Ors. v. The High
Court of Delhi and Ors., (2010) 2 SCC 637 (paragraph 26) and Vijoy
Kumar Pandey v. Arvind Kumar Rai and Ors., (2013) 11 SCC 611
(paragraphs 13 - 16).
27. From the aforegoing, it is clear that the State is not bound to fill up all
the notified vacancies. It may take a policy decision not to fill up the
vacancies and defer promotions/appointments for valid reasons. It has
been held that mere because name of a candidate figures in the select
panel extends no indefeasible right for appointment against a vacancy.
This is subject to a caveat that the State has not acted in an arbitrary
manner or resorted to cronyism ignoring the comparative merit of the
eligible candidates whose names figure on the select list/ panel.
28. Accordingly, the present case has to be judged on the touchstone of the
law laid down in the aforegoing judicial pronouncements.
29. The first contention advanced by the counsel for the petitioners
warrants to be rejected at the threshold itself, as no right can accrue to
the petititoners to be considered against the vacancies occurring prior to
the restructuring simply due to their names figuring in the select list/
panel dated 30.01.2003.
30. The second and third contention of the counsel for the petitioners is that
the decision not to fill up vacancies occurring prior to effecting of
restructuting is arbitrary and therefore, is bad in law. Though extensive
arguments have been led in respect of the date of effecting of
restructuring, the same are irrelevant for deciding the present matter as
the relevant consideration is whether the respondents decided not to fill
up vacancies and that such decision is not vitiated by arbitrariness or
cronyism. The date of effecting restructuring has no bearing on the
present matter.
31. The stand of the respondents remains that once the Report of the high-
level committee was received by the RDSO, it was clear that the posts
of Private Secretary will be reduced converting many existing posts
into supernumerary posts, therefore, further promotions were not
carried out. The petitioners have also placed on record the internal
notings of the respondents, which read as under:
"1. Shri S. Kundu, PA and 03 others (Pas) had filed a case
in Hon'ble CAT/LKO and prayed to give them promotion to
the post of PS (Group B) against existing vacancies. Vide
PUC, the orders of the Hon'ble Tribunal dated 23.11.2003 has
been received through Legal Cell which is self explanatory.
2. In this reference, it is stated that as per assessment of
vacancies for the period 01.07.2002 to 30.06.2004 an LDCE
panel of 05 candidates was made out of which the first, Shri.
S.P. Yadav has already been promoted to the post of PS. The
present OA is filed by the other four candidates.
3. RDSO was granted the status of Zonal Rly. w.e.f.
01.01.2003 vide Gazette Notification dated 16.10.2002. A
committee was set up to recommend the modalities for the
change of status of RDSO which had submitted its report in
May, 2003 which was received in this office vide Bd's letter
No. 2002/ER/3400/16 dated 5-8-2003. As per the
recommendations of this committee the number of posts of PS
(Group B) was reduced from 37 to 4 and it was mentioned that
the existing incumbents, these posts will be operated in group
'C'. Therefore, on receipt of the above report, it was clear that
the vacant posts of PS (Group B) were not likely to continue
and many more group B posts of PS were to be converted into
supernumerary posts.
These recommendations has [sic: have] been accepted
by the Board vide their orders No.2002/ER/3400/16 dt.
24.09.2003.
4. Only two vacant posts of PS were available w.e.f.
01.08.2003 due to superannuation. In view of the above facts
the vacant posts of PS were not filled since August, 2003.
5. Hon'ble CAT/LKO's orders received through Legal
Cell are placed alongside for perusal.
Submitted for orders please.
Sd./- Sd./-
17.12.2003 17.12.2003
As per Bd's orders the vacant posts are to be
distributed in Gr 'C' as per laid down % and a proposal in
this regard has already been moved by TDA-III for finance
vetting.
The proposal for creation of supernumerary post has
been sent to finance for vetting. In view of instructions issued
by Rly. Bd. The promotion is not possible at the present since
vacancies are no more existing in this cadre."
(Emphasis Supplied)
32. The aforequoted notings received the requisite approval which led to
the passing of the order dated 12.01.2004. We now proceed to examine
the background in which the decision to halt further promotions was
arrived at. On 11.10.2002, the status of RDSO was changed from an
„attached office‟ to Zonal Railways which mandated the restructuring
of the office to bring it at par with Zonal Railways. To suggest the
modalities thereto, a high-level committee was constituted, which
submitted its report in May, 2003. The relevant portion of the report
reads as under:
"7.2.2. Stenographer :-
Stenographic cadres in RDSO are being maintained
broadly on Board pattern as per the grade structure indicated
below:-
Sl. Designation Scale No. of
No. Rs. posts
Secretary
7500-12000
(Provisional on the
strength of Court judgment
[sic]
7.2.2.1 In the wake of RDSO having been declared as Zonal
Railway, Committee feels that the stenographic cadre should
be brought at par with the Zonal Railways/Production Units as
per the provisions contained in Board's letter No.PC-
V/99/I/9/1 dated 28-09-99 and PC-V/97/R-II/48 dated
15.09.2000. As per these instructions the stenographic cadre
will have to be maintained as per the grade structure and
percentage distribution given below:
Scale No. of posts
Attached to DG (Gr. Rs.24050- - Rs.8000-13500 1+1
26000 & ADG (Gr. Rs.22400- (Gaz. Gr.'B')
24500/RDSO
Rs.22400-24500 (Gaz. Gr.'B')
Attached to SAG Officers (Gr. - Rs.6500-10500 20
Rs.18400-22400) (Non-gaz.)
(i) Steno Gr. I Gr. Rs.5500- - 20%
(ii) Steno Gr.II Gr. Rs.5000- - 40%
(iii) Steno Gr.III Gr. Rs.4000- - 40%
7.2.2.2 The stenographic cadre should be brought at par with
the Zonal Railways/Production Units as indicated above by
suitable adjustment in the existing strength. The existing
incumbents of the posts of grade of Rs.10000-15200 continue
in scale Rs.10000-15200 till the vacation of the post by them.
On vacancy of the post, it will be operated in grade Rs.8000-
13500. Similarly, the existing incumbents in grade Rs.6500-
10500/7500-12000 (Provisional) will continue to hold the post
in grade Rs.6500-10500/7500-12000 (Provisional) with the
existing stage subject to final outcome of Writ Petition No.
3866/98 filed in High Court/Delhi. On vacation by the existing
incumbents, these posts will be suitably adjusted as Ill./- the
cadre structure in grade Rs. 6500-10500 (non-Gaz.) indicated
above. The posts of Stenographer available in grade Rs. 5500-
9000 and Rs. 4000-6000 will be adjusted and operated on the
basis of percentage distribution of posts in the ratio 20:40:40
as mentioned in para 7.2.2.1. ...
...
14. The recommendations made by the Committee will
have prospective effect only."
(Emphasis Supplied)
33. The categorical stand of the respondents remains that once the Report
came to the knowledge of the administration, all further promotions
from the panel were stopped as it was manifest that many existing posts
shall become supernumerary posts. The respondents contend that the
then Director/Administration-II/RDSO being the Secretary of the
committee and therefore, it was known to the administration that the
posts will be abolished and accordingly, vacancies occurring on or after
01.08.2003 were not filled up. It was clear in the report that the posts
of Private Secretary were to be reduced to 4 in the scale of Rs.7500-
12000 (Gaz. Gr.„B‟) and further 20 higher grade posts were to be
created in the scale Rs.6500-10500 to provide better promotional
avenues.
34. Thereafter, the recommendations of the high-level committee were
discussed in the Railway Board‟s meetings on 4th and 11th September,
2003, wherein the recommendations contained in paragraphs 7.2.2.1,
7.2.2.2 and 7.2.2.3, reproduced aforegoing, were accepted by the
Board. Subsequently on 04.12.2003, the restructuring order was issued
accepting the recommendations of the committee and giving effect to
the same from 01.11.2003. The posts of Private Secretary were
reduced from 37 to 4 in terms of the recommendations of the committee
and the order dated 04.12.2003 vide Gazette Sanction Memo No. 8 of
2004 dated 21.01.2004. By the Memo, 33 posts of Private Secretary
were downgraded to Group „C‟ posts from Group „B‟.
35. It is evident that when the report of the high-level committee came to
the knowledge of the administration, it became manifest that numerous
posts of Private Secretaries (Group „B‟) will be downgraded to Group
„C‟ and consequently, the administration halted all further promotions
against occurring vacancies. This decision in our view is not arbitrary
and is based on sound reasoning. The State cannot be forced to make
appointments or promotions against vacant posts when it has become
evident that they shall be abolished in the near future. Therefore, the
decision cannot be faulted with on this ground alone.
36. The petitioners have relied upon the judgment in Major General H.M.
Singh (Supra) to state that the failure to fill up vacancies was arbitrary.
We are unable to accept the submission of the learned counsel for the
reason that the facts in Major General H.M. Singh (Supra) were
completely different as the appellant therein was denied promotion to
the rank of Lieutenant-General even when he had been clamouring for
consideration since long and his name had been recommended by the
Selection Board before he reached the age of retirement. The
recommendation was then sent to the Appointments Committee of the
Cabinet for its approval, which could not be finalized in time and the
President granted extensions to the appellant for short periods or "till
the approval of ACC." The Committee did not approve the case of the
appellant solely on the ground that he had attained the age of retirement
and was on extension. In this factual matrix, the Division Bench of the
Supreme Court found such decision to be arbitrary and invalid. The
State never decided not to fill up the vacancy and the question was of
rationale for rejecting the candidature of the appellant. Therefore, the
case does not come to the aid of the petitioners.
37. Final aspect to be considered is whether the promotion of Sh. Yadav to
the exclusion of the petitioners reeks of arbitrariness to entitle the
petitioners to promotion. We think not. For the reason that Sh. Yadav
was promoted on 14.02.2003, prior to the receipt of the report of the
high-level committee. At that time, no decision was taken to defer
promotions. Additionally, his name also figured admittedly at serial
number 1, i.e. higher than the petitioners herein and therefore, such an
act cannot be said to be arbitrary. Since, the promotion of Sh. Yadav
was effected prior to the report of the committee which led to halting of
all further promotions and as the comparative merit of the candidates
has been taken into consideration, his appointment cannot be said to be
an arbitrary action on the part of the respondents.
38. Resultantly, we do not find any infirmity in the orders passed by the
Tribunal which would require us to interfere in the proceedings under
Article 226 of the Constitution of India. No ground is made out to
entertain this petition. The writ petition is dismissed accordingly.
39. No costs.
G.S.SISTANI, J.
VINOD GOEL, J.
th
MARCH 6 , 2017
//
