Sony C. Varghese v. Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 30..6..2008Coram:The Hon'ble Mr. Justice K.CHANDRUW.P. No. 16752 of 19981.Sony C. Varghese2.S. Santhanakrishnan3.T.P. Philip4.George thomas5.BN/Railway Protection Special ForceThiruchirappalli6.B.S. Parthasarathy7.Jacob P. John8.M.A. Rehman9.P. V. Subramanian10.P.V. Narasimha Rao11.P.V. Rajendran12.M.A. Girinarayanan13.T.S. Raju14.E. Mohanam15.H. Johnson Raja Singh16.Ashok Singh.. Petitionersvs.1.Union of IndiaThrough ChairmanRailway BoardMinistry of RailwaysRail BhavanNew Delhi2.Member StaffRailway BoardMinistry of RailwaysRail BhavanNew Delhi3.The SecretaryRailway BoardMinistry of RailwaysRail BhavanNew Delhi https://hcservices.ecourts.gov.in/hcservices/

4.The Director GeneralRailway Protection ForceRail BhavanNew Delhi5.The Joint SecretaryRailway BoardMinistry of RailwaysRail BhavanNew Delhi6.Ajanji Kumar7.Athul Pattak8.S.E. Rattan Chand9.Ranvir Singh Chouhan10.Amiga Nath Mishra11.Pranav Kumar12.Chellanya RR 6 to 12 rep. by the Joint SecretaryRailway BoardMinistry of RailwaysRail BhavanNew Delhi13.R.K. Khullar14.Vinod Kumar Dhaka15.Paramjit Mann16.Suresh Chandra (SC)17.Nirmal Singh (SC)18.Shichandre Lyndoh Buam (ST)19.vijay Kumar Dev (SC)20.Sunil Kumar Sinha21.Sanjay Kishore22.Udai Shanker Shukla23.Anwar Haleem24.Pamhal Pacherwal (SC)25.Darahan Singh (SC)26.Gopal Ohri27.Sanjay Sankrityayan28.Surat Chandra Parhi29.Sunil Kumar Singh30.Rajinder Kumar Malik31.Matvinder Singh32.Satya Narain Manday33.Ravindra Sharma34.A.T. Srivastava35.Rajakamal36.B.B. Mishra https://hcservices.ecourts.gov.in/hcservices/

37.M. Venkateswaralu (SC)38.Birendra Kumar39.Rambhau P. Pawar40.Sarvapriya41.A.N. Sinha42.G.M. Eswara Rao43.Hemant Kumar (SC)44.Praveen Chandra Sinha45.Ravendranath Kesar46.Suresh Kumar Sini47.Almlendu Shekhar48.Naresh Kumar Virdi (SC)49.Ram Swaroop Meena (ST)50.Kanchana Charan51.Manaawar Khusheed52.M. Sabu53.Vijay Kumar54.Vikay Kumar Khartarkar (SC)55.Tarique Ahmed56.Arma Singh Thakur57.Renu Pushkar (SC)58.Surendra Nath Chaudhary (SC)R-13 to 58 impleaded vide orderdt.15.12.99 in WMP.26336/98.. Respondents Petition filed under Article 226 of the Constitution of Indiaseeking for issuance of writ of Certiorarified Mandamus callingfor the circular of the respondent bearing No. K (O) 1-98/SR-6/18dated 23.9.1998 and quash the same in so far as the said circularnot fixing the interse seniority of the Group A Junior ScaleOfficers and consequently direct the respondent to grant proformapromotion to the petitioner under the Railway Protection Force(Group A post) Recruitment Rules, 1994 from the date on which thepetitioners were due for promotion and give retrospective effectfrom 01.01.1986 i.e., from the date of implementation of the 4thPay Commission recommendations and grant all consequentialbenefits with retrospective effect.For Petitioner: Mr. R. Yashod Vardhan, SC for M/s Aiyar & DoliaFor Respondents 1 - 5: Mr. R. Thiagarajan, SC for Mr. V.R. GopalanFor Respondents 6 & : Mr. M. Velusami10-12For Respondents 13 to58 : No Appearance https://hcservices.ecourts.gov.in/hcservices/ O R D E RHeard the arguments of the learned counsel for the partiesand have perused the records.2.The 15 petitioners in the writ petition were working asAssistant Security Commissioners in the Railway Protection Forceand they are seeking to set aside the order of the respondentdated 23.9.1998 in not fixing the inter se seniority of Group AJunior Scale Officers and for a consequential direction to therespondent to grant pro-forma promotion to the petitioners underthe RPF Group A Post Recruitment Rules 1994 with retrospectiveeffect from 01.01.1986, viz., the date of implementation of theIVth Pay Commission.3.This writ petition was admitted on 27.10.1998 and aninterim injunction was granted. However, the same was vacatedby an order dated 19.12.1999 and in paragraph 3 of the order, itis stated as follows:-".... Taking into consideration of the entire factand in the light of the pronouncement of Apex Courtin H.S. GREWAL V. Union of India and others(Judgment Today 1517 volume 7 Supreme Court 554)and as fairly admitted by R.Thiagarajan SeniorCounsel appearing for the Union of India therespondents have to redraw the list. In the lightof the law laid down by the Apex Court, Mr. R.Thiagarajan seeks permission of this Court toredraw the list in view of the later pronouncementof the Apex Court and for such a course therespondents 1 to 5 required at least four monthstime.""In the circumstances, the interim injunction isvacated and liberty is granted to the respondents 1to 5 to redraw the list in accordance with thepronouncement of the Apex Court as well as theexisting rules referred to above and proceedfurther and also promote the candidates as per theredrawn list." 4.The Supreme Court in H.S. Grewal v. Union of India[1997 (11) SCC 758], (delivered on 28.8.1997) upheld the newpolicy evolved by the Railways. The following passages found inthe said judgments may be referred usefully:-Para 13:In our view, there is no merit in thesecontentions. There is no question here of givingretrospective effect to the 1981 Rules. It is, in https://hcservices.ecourts.gov.in/hcservices/ our opinion, open to the employer, namely, Union ofIndia and it is its prerogative, as a matter ofpolicy, to introduce an intermediate post and laydown the conditions of eligibility of a Group BOfficer in Class II for promotion to suchintermediate post of Group A in Class I (JuniorScale). Such an introduction of an intermediatepost does not, in our opinion, amount tointerfering with any vested rights, ..." Para 14:".... Therefore a “fresh promotion policy” was tobe prepared and placed before the Court."Para 20:"The point that arises for consideration is whetherthe principles laid down in the draft policy of theUnion of India as prepared by the UPSC in itsletter dated 10-12-1991 and as modified by theletter dated 3-8-1992 is fair and equitable forreckoning the inter se seniority between the GroupB and Group A Officers for purposes of higherpromotion."Para 29:"We are of the view that a fair and properbalancing of the rights of Group A and Group BOfficers has been made in these draft policies. Thecontentions of Group A Officers as well as of GroupB Officers against these draft policies aretherefore rejected. Thus the new policy has ourfull acceptance and the authorities can takefurther steps on that basis."Para 37:"The petitioner is about to retire in a few days.Learned counsel pointed out that for the lastfifteen years, the petitioner’s grievances have notbeen redressed and no DPCs were conducted. It wassuggested to the counsel that the petitioner couldsubmit a fresh representation within one month andthe respondents could dispose of the same as earlyas possible. We direct accordingly. In otherrespects the directions given in the main judgment,to the extent relevant, apply."5.When the petitioners 12 to 14 subsequently moved a writpetition in W.P. No. 6631 of 2002 seeking for convening of DPCfor the years 1998 – 2000, 2001 for the post of AssistantSecurity Commissioner, this Court in paragraph 3 of the orderobserved as follows:-"I have considered the submissions on both sides. https://hcservices.ecourts.gov.in/hcservices/ I do not think that there can be any objection tothe request made by learned counsel for thepetitioner having regard to the admittedregulations relating to the quota of directrecruits and promotees and the law laid down by theSupreme Court repeatedly in the context of thedepartmental promotion committees. It has beenrepeatedly held by the Supreme Court that the DPCshould sit for every year regularly before theappointed date and that the case of eligiblecandidates within the zone of consideration shouldbe dealt with. In fact, it has been held thataction should be initiated well in advance to fillup the existing as well as the undisputedvacancies. That being so, the department cannotcite any administrative reasons resulting from itsown default."6.Inspite of all these exercise, the respondent Railwaysdid not undertake the exercise of convening DPC in respect ofeach year and grant promotion. When a review DPC was held inMay 1998, the judgment of the Supreme Court was given effect toand officers were promoted to the post of Group A withretrospective effect for vacancies from 1981 to 1986.Subsequently, review DPC was held only in the year 1994. Ifthe petitioners herein come under the zone of consideration forthe years 1986-96 and if only such DPC was held for those years,the petitioners would have been granted relief. The statutoryrules framed in the year 1994 was not retrospective covering theperiod from 1986 to 1994. By convening a regular DPC for eachyear, the petitioner should be given proforma promotion bydetermining the actual number of vacancies in respect of eachyear. Therefore, it was prayed that the petitioners should bepromoted to the rank of Assistant Security Commissioner / RPFGroup A with retrospective effect i.e., from the date duepromotion should have been given.7.Learned Senior Counsel for the petitioners relied on thejudgment in S.B. Bhattacharjee v. S.D. Majumdar [(2007) 10 SCC513] and particularly referred to paragraph 13 of the saidjudgment which is extracted below:-Para 13:"Although a person has no fundamental right ofpromotion in terms of Article 16 of theConstitution of India, he has a fundamental rightto be considered therefor. An effective andmeaningful consideration is postulated thereby. Theterms and conditions of service of an employeeincluding his right to be considered for promotionindisputably are governed by the rules framed underthe proviso appended to Article 309 of theConstitution of India." https://hcservices.ecourts.gov.in/hcservices/

8.Per contra, Mr. R. Thiagarajan, learned Senior Counselsubmitted that the issue relating to the relevant rule was in astate of flux until 28.8.1997. That was the date when theSupreme Court delivered its judgment in H.S. Grewal's case (citedsupra) and subsequently, DPC was held for the years 1994 – 97 andcandidates have been actually empanelled. But with referenceto convening of DPC from 1986 to 1996, in respect of each year,the learned Senior Counsel is not able to explain their inactionthough a direction was given in this regard earlier. In thecounter affidavit dated 19.11.1999, it is stated in para 13 thatvacancies from 1986 to 1994 prior to the introduction of1994 Rules will be clubbed together and DPC will be held. Thisstand of the official respondents will be highly irregular.9.Therefore, in the light of the Supreme Court's judgmentin Grewals' case as well as the interim order passed in this writpetition and in the light of the direction given by this Court inW.P. No. 6631 of 2002 dated 14.5.2002, the respondent Railwaysare directed to convene the DPC for the years 1986 to 1996 andafter making an assessment of the case of the petitioners, grantthem the presumptive promotion in respect of those years andrefix their salary and seniority in the light of such an orderbeing passed by the respondents. 10.Even though many of the petitioners have retired andonly three are in service, this Court is of the opinion thatrelief must be given to all the petitioners since at the time offiling of the writ petition, they were very much in service.This will be in consonance with the decision of the Supreme Courtin State of U.P. v. Roshan Singh and others (2006 (13) SCC 661).11.In the result, the writ petition is allowed and therespondents are directed to undertake the exercise within aperiod of eight weeks from the date of receipt of a copy of thisorder. However, there will be no order as to costs. griSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.Union of IndiaThrough ChairmanRailway BoardMinistry of RailwaysRail BhavanNew Delhi2.The SecretaryRailway BoardMinistry of RailwaysRail BhavanNew Delhi3.The Director GeneralRailway Protection ForceRail BhavanNew Delhi4.The Joint SecretaryRailway BoardMinistry of RailwaysRail BhavanNew Delhi+ 2 ccs to M/s. Aiyar and Dolia, Advocate SR No. 33368 Order in W.P. No. 16752 of 1998SKD(CO)SR/7.7.2008