Union of India & Ors. v. V.K. Krishnan & Ors.

Judgment

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2532 of 2010. 8 From the Judgment and Order dated 27.11.2007 of the High Court of Kerala at Ernakulam in Original Petition No. 14500 of 2003. with C. A. Nos .. 1972-1973, 1974-1975 & 1976-1977 of 2015. A. K. Sanghi, Kiran Bhardwaj, S. N. Terdal, Anil Katiyar, B. Krishna Prasad, C. N. Sreekumar, G. Prakash for the Appellants. Gurusharan Sharma, Amit Sharma, Dipesh Sinha, A. Raghunath for the Respondents. The Judgment of the Court was delivered by ANIL R. DAVE, J.

1Leave granted in all the special leave petitions.

2A common question of law is involved in all the11e appeals and thE:lrefore, at the request of the learned counsel appearing in these appeals, all these appeals have been heard and decided together.

3The issue involved in these appeals is with regard to interpretation of some of the paras of Indian Railway Establishment Manual, 1989 (hereinafter referred to as 'the Manual'). We are mainly concerned with interpretation of paras 180, 189 and 320 of the Manual. For the purpose of deciding these appeals, we have taken facts from Civil Appeal No.2532 of 2010, which is the main matte~ in this UNION·OF INDIA v. V.K. KRISHNAN group of matters.

4Before adverting to the real issue, in our opinion, it would be proper to deal with the subject, which pertains to preparation of seniority lists and promotion of railway employees from one group to another and from one grade to another within the group. Railway services have been 8 mainly classified in four groups. In the instant case, we are concerned with services included in different grades in groups C and D. In each group, there are different grades and the employees working in the lowest grade in one group C get promotion to the higher grade within the group. When an employee is in the highest grade in a group, he would get promotion to the higher group and the promotion is given on different basis, with which we are not concerned.

5Group D is the lowest group having different grades, D as stated hereinabove. The persons working in a particular grade would be having same pay scale though they might be working in different branches i.e. different persons working in one grade, who would be having same pay scale, might be working in different departments or different branches with different qualifications and different nature of work. For the purpose of service conditions and for the purpose of higher promotion, persons belonging to one grade are treated equally.

6So far as the facts of Civil Appeal No.2532 of 2010 are concerned, all the respondents were initially working in group D, which is the lowest group as per the railway setup. Out of respondent nos.1, 2 and 3, respondent nos.2 and G 3 were promoted to a higher post of Pointsman 'B' in group C, whereas respondent no.1, who was having the longest service in group D, had not been promoted and therefore, he had approached Central Administrative Tribunal with a grievance that he had been denied benefit of promotion.

7After hearing the concerned parties, the Tribunal had allowed Original Application No.1761 of 1998 on 21 51 June, 2001 and had directed that respondent no.1, who was the applicant before the Tribunal, should be considered for • promotion on the basis of his seniority.

8Union of India, the appellant herein, was aggrieved by the aforestated order passed by the Tribunal and had, therefore, approached the High Cpurt of Kerala by filing O.P. No.14500 of 2003. Vide judgment dated 271h November, 2007, the Original Petition filed by the Union of India has been dismissed and therefore, the Union of India has filed the present appeal.

9The case of respondent rio.1, who was working as o a substitute porter in group D, was that he was having longer service in group D than respondent nos.2 and 3 and therefore, case of respondent no.1 ought to have been considered for promotion and he ought to have been promoted to the higher post in group C as respondent nos.2 and 3 had been promoted. It i~ an admitted fact that so far as length of service in group Dis concerned, respondent no.1 was having longer service than respondent nos.2 and 3.

10As stated hereinabove, in one particular group, there are employees working in different grades and the grades are also having a different hierarchy and a person working in the lowest grade within the group on the basis of his seniorityor merit or both, as the case may be, is promoted to a higher grade within the group. As stated earlier, we are not concerned with the basis on which promotion is given from one grade to another or from one group to another. The question here is whether a person . working in one grade of a lower group can get promotion on the basis of his seniority in his group irrespective of the length of service rendered in a particular grade. So as to A understand the issue in a better perspective, hypothetically we may say that there are four grades in group D viz. I, II, Ill and IV; grade IV being the lowest and.grade I being the highest. A person working in the lowest grade i.e. in grade IV would get promotion to grade Ill, then to grade II and then to grade I. After he has been placed in grade I of group o; he would get promotion to the lowest grade in group C, which is a higher group.

11It is an admitted fact that respondent no.1 was C working in the lowest grade of group D, as a substitute porter, whereas respondent nos.2 and 3 were working in the highest grade in group D. Respondent no.1, though having longer service in group D, was in a lower grade than respondent nos.2 and 3 in group D service. For the D aforestated reason, respondent nos.2 and 3 were promoted to a higher post, namely, in the lowest grade of group C from the highest grade of group D, whereas respondent no.1, who was in the lower grade of group 0, was not promoted to a group C post. To be able to get promoted E to. a post in group C, one must be in the highest grade of group C and admittedly respondent no.1 was not in the highest grade of group C and being in a lower grade than respondent nos.2 and 3, respondent no.1 could not have F been promoted along with respondent nos.2 and 3.

12In our opinion, the Tribunal as well as the High Court committed an error while coming to the conclusion that simply because respondent no.1 had a longer service in group D, he should also have been promoted along with G respondent nos.2 and 3, who were working in a higher grade in group D.

13Para 180 of the Manual, which relates to promotion to higher grades in group D and C posts, reads as under : H "180. Transportation (Traffic) and Commercial Department. - All railway servants in the lowest grade should be eligible for consideration for promotion to higher grades in both the Transportation and Commercial brnches. Applications should be invited from amongst categories eligible for promotion from both the branches. All Railway servants who apply will be considered. An adhoc seniority list will be prepared on the basis of length of continuous service in the grade and suitable men selected and placed on a panel for ·training. Systematic and adequate training and examinations or tests must precede actual promotions." (emphasis supplied) Relevant portion of para 189, which pertains to promotion to a higher grade in group C, is as under: "189.

Promotion to higher grades in Group 'C' :- Railway servants in Group 'D' categories for whom no regular avenue of promotion exists 33-1/3% of the vacancies in the lowest grade of Commercial Clerks, Ticket Collectors, Trains Clerks, Number Takers, Time Keepers, Fuel Checkers, Office Clerks, Typists and Stores Clerks etc. should be earmarked for promotion. The quota for promotion of Group 'D' staff in the Accounts Deptt. to Group 'C' post of Accounts Clerks will be 25% ................................... " Para 320 of the Manual reads as under : "320. RELATIVE SENIORITY OR EMPLOYEES IN AN INTERMIDIATE GRADE BELONGING TO DIFFERENT SENIORITY UNITS APPEARING FOR A SELECTION/ . NON-SELECTION POST IN HIGHER GRADE. UNION OF !NOIA v. V.K. KRISHNAN When a post (selection as well as non-selection) is filled A by considering staff of different seniority units, the total length of continuous service in the same or equivalent grade held by the employees shall be the determining factor for assigning inter-seniority irrespective of the date of confirmation of an employee with lesser length B of continuous service as compared to another unconfirmed employee with longer length of continuous service.

This is subject to the proviso that only nonfortuitous service should be taken into account for this purpose."

14Let us now look at the provisions of para 180 of the Manual first. The said para pertains to promotion to higher grades in group D and group C posts. According to the said para, all railway employees in the lowest grade D should be eligible for consideration for promotion to higher grades in the transportation and commercial branches. The said para further deals with a preparation of seniority list. According to the said para, an ad hoc seniority list is to be prepared on the basis of length of continuous service in the E grade and for the purpose of promotion, a suitable person is selected and placed on a panel of training. The aforestated content of para 180 clearly denotes that seniority lists of the employees are to be prepared on the F basis of length of continuous service in different grades. This clarifies that there cannot be one seniority list for all the employees working in different grades in one particular group.

In other words, there would be different seniority lists in one particular group and each seniority list will G contain list of employees working in one particular grade or there may be different sub-seniority lists of employees working in different branches of one grade. Promotion will be given from lower grade to higher grade in one group and for that purpose, seniority list of the lower grade will be taken H A into account. Once a person gets promotion to the higher grade, his name will be included in the seniority list of the employees of the higher grade. For clarity once again, we may give an illustration that a person who is in grade IV, as hypothetically stated hereinabove, upon getting B promotion to grade Ill, would get his name included in the seniority list of employees working in grade Ill and he would be eligible to be promoted to grade II.

It may happen that a person working in grade IV, who has not been promoted for whatever reasons to grade Ill, though having longer C service as an employee working in that group, may not get promotion to grade II because he is still working in grade IV and in such an event, a person who might be having lesser service in grade Ill than the employee having a longer 0 service in grade IV or in that group, may get promotion to grade II. From grade II: an employee gets promotion to grade I and thereafter he gets promotion to the lowest grade in the higher group. This appears to be the normal mode of promotion.

15So far as CivH Appeal No.2532 of 2010 is concerned, respondent no.1 was in the lowest grade of group D, whereas respondent nos.2 and 3, though having lesser length of service in group D, were in the higher grade of group D and therefore, they got promotion to the post of Pointsman B in group C.

16As respondent nos.2 and 3 were employees ·working in the higher grade of group D than respondent no.1, respondent no.1 cannot make any grievance with regard to promotion of respondent nos.2 and 3 to a higher post in group C.

17For the aforestated reason, the Tribunal as well as High Court committed an error by g~ng a direction to the appellant to consider the case of respondent no.1 for promotion to the post to which respondent nos.2 and 3 were A promoted.

18Para 189 pertains to the promotion to higher grade in' group C. As per the provisions of para 189, when an employee working in group 0, who has no regular avenue B for promotion in group D, i.e. when he is in the highest grade in group D, he becomes eligible for promotion to a group C post. Group C posts are also divided into different grades. Upon getting promotion from the highest grade of group D, a person gets promotion to the lowest grade in C group C. Para 189 gives details as to how the promotion is to be given to an employee working in the highest grade of group D and liow many posts are reserved for such employees who have no avenue for further promotion in their group D.

19So far as maintenance of seniority is concerned, para 320 stipulates that there would be different seniority lists for persons who are in equivalent grades. It may happen that different persons might be working in different E branches or different units doing different type of work, but they are in one grade, i.e. in one pay scale, and a seniority list for those persons working in one particular grade would be a common seniority list. Thus, it is very clear that seniority list shall be different for each grade and in that F event a person working in one particular grade would be promoted to the h_igher grade on the basis of his seniority in that particular grade.

20The aforestated position is so clear that the learned G counsel appearing for the appellants had hardly to make any further submission to substantiate his case. According to~him, the Tribunal as well as the High Court had committed an error by looking at the length of service of respondent no.1 in group D. True, that responde~t no.1 was appointed H A earlier in point ·of time than respondent nos.2 and 3, but because of their ability respondent nos.2 and 3 had been promoted to higher grades earlier and therefore, they got an opportunity to get promotion to a higher post, whereas respondent no.1, who was working in a much lower grade B . as a substitute porter, 'could not get promotion like respondent nos.2 and 3.

21On the other hand, it had been submitted by the learned counsel appearing for respondent no.1, who, C according to him, had been superseded, that a common seniority list. for employees in different group should have been maintained and on the basis of length of service an employee should be given promotion to the higher group or grade. According to him, seniority was most important D and on the basis of seniority of respondent no.1, he too should have been ·promoted as it is an admitted fact that respo~dent no.1 was appointed earlier to respondent nos.2 and 3 in the railway service.

22It had been further submitted by the learned counsel · appearing for the employees who had not been promoted that for the purpose of giving promotion to higher group, i.e. from group D to group C, overall seniority of an employee working in the railways should be considered. According to his interpretation, para 189 provides that promotion should be given on the basis of seniority and that seniority should be seniority in the group and not in the grade. For the aforestated reasons, it had been submitted by the learned counsel appearing for the employees who had not been p'romoted by the railways that the impugned judgment affirming the order of the Tribunal was just and proper and therefore, the main appeal should be dismissed and appropriate orders should also be passed in all other appeals on the same princip!e.

23Upon hearing the learned counsel appearing for the A parties and looking at the legal position which we have already discussed hereinabove-, we are of the view that the Tribunal as well as the High Court were not right while giving a direction to the appellants that the case of respondent . no.1 should be considered for promotion.

24In our opinion, respondent no.1 was rightly not promoted to the higher group because he was not in the highest grade of group D. Respondent no.1 was in a lower grade whereas respondent nos.2 and 3 were in the highest C grade of group D. Without getting promotion to the highest grade in his own group D, the said respondent could not have claimed promotion to a higher group, i.e. group C. Respondent no.1 was working as a substitute Porter, which is the lowest grade in group D, whereas respondent nos.2 D and 3 were working in the grade which was much above than the grade in which respondent no.1 was working, though they had been appointed later in a point of time than respondent no.1 in the railway service. As stated hereinabove, seniority list for employees working in different E grades should be different and there cannot be any common seniority list for all the employees working in one particular group. ·

25We, therefore, set aside the impugned judgment F affirming the order of the Tribunal and also direct that according to the provisions of the aforestated paras contained in the Manual, the appellants shall prepare different seniority lists for employees working in different grades.

26Civil Appeal No.2532 of 2010 is, therefore, allowed with no order as to costs.

27So far as other related appeals are concerned, they H A . have been filed by the persons who are similarly situated, like Respondent No.1 in the main matter, i.e. Civil Appeal No.2532 of 2010, who had not been promoted. No separate arguments were advanced on their b_ehalf. From the facts stated hereinabove, in our opinion, they do not B have any right to be promoted, especially when they were not in the highest grade of group D. Therefore, their appeals would fail and are dismissed with no order as to costs. Devika Gujral Appeals disposed of.