INDIAN RLY. CLASS II OFFICERS FEDN. AND ANR.versusANIL KUMAR SANG HI AND ORS.

         INDIAN RL Y. CLASS II OFFICERS FEDN. AND ANR.                              A
                                       i:
                   ANIL KUMAR SANG HI AND ORS.

                           SEPTEMBER 23, 2002

    (S. RAJENDRA BABU AND P. VENKATARAMA REDD!, JJ.]                                B


     Service Law: Recruitment and Promotion-Indian Railways Services of
Signals Engineers-Recruitment Rules-Rule 4(b)-Stagnation in Group B
Class JI officers -Creation of 76 additional posts to facilitate their absorption   C
in Group A-Appointment of 127 Group B Officers-Tribunal holding
promotion in excess of normal quota of 40 per cent thus not valid-On
appeal held, Government could vary percentage 10 give the benefit to the
stagnating promotee officers-Such variation or relaxation is necessary in
administrative interest and to cope with unforeseen contingencies-Hence
order of tribunal set aside.                                                        D
      In order to clear stagnation of Group B Class II Officers of Signals
Engineering Dept., Government created 76 additional posts to facilitate the
absorption of Group B Officers in Group A Junior Time Scale of Indian
Railway Service of Signal Engineers. These additional posts were to be filled
by Group B Officers in relaxation of normal quota of 40 per cent and such           E
variation of quota was permissible under Rule 4(b) ofthe Recruitment Rules.
127 Group B Officers were appointed to Group A Junior Time scale.

      Respondents-Group A Junior Scale Officers challenged the appointment
of Croup B Officers on the ground that it was in excess of the quota and
relaxation was not permissible. Tribunal held that the provision authorizing F
variation of percentage in terms of concluding part of clause (b) of Rule 4 did
not _authorize Government to exceed the ceiling of 40 per cent of vacancies in
relation to departmental promotees; and that the 38 Group B officers who '
were promoted in excess of normal quota of 40 per cent have to be promoted '
on regular basis against future vacancies. Hence the present appeal.            G
         Allowing the appeal, the Court.

     HELD: 1.1 No illegality has been committed by Union of India in
appointing 127 Group B officers to the junior scale of Group A. Tribunal has

                                      529                                           H
    530                     SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A committed an error of law in interpreting the relevant rule and holding that
    38 Group B Officers promoted in excess of normal quota of 40 per cent have
    to be promoted on regular basis against future vacancies. Hence, the order of
    Tribunal is set aside. 1537-B-CI

         1.2. Rule 4 clause (b) of the Recruitment Rules places a ceiling of 40
B per cent on the vacancies to be filled by departmental promotion; in case of
  shortfall in the promotional quota of 40 per cent, those vacancies remaining
  should be allocated to direct recruits. Rule 4(b) in so far as it operates against
  the promotee officers has been diluted to a certain extent by reserving the
  power to vary the percentage allocated to promotees. The variation could be
C both downward and upward, depending upon the exigencies of service and the
  march of events. If the variation was intended only to curtail but not to enhance
  the promotion quota of 40 per cent, suitable language could have been
  employed. That apart, the word 'not more than' itself would have provided some
  nexibility to the appointing authority to reduce the promotee quota in a given
  year for good and relevant reasons. Hence it is not appropriate and proper to
D limit the ambit of variation to the reductioD of percentage. If the last sentence
  in clause (b) is to be read subject to the preceding sentence with the appended
  note, the very purpose for which such power is reserved to the Government
  will be lost. A reading of the Rule so as to confine the variation of percentage
  to impinge on the normal promotee quota but not vice-versa is clearly
E unwarranted either on the plain language of the provision or its intendment.
  There is nothing which precludes the Government to take a policy decision
  that the percentage should be so varied as to give the benefit to the stagnating
  promotee officers. When once such policy decision is taken, the normal rule ·
  that 40 per cent is the maximum for departmental promotees would stand
  protanto modified for the time being. Such variation, either upward or
F downward should be based on rational basis and relevant considerations. When
  once such test is satisfied, there is no difficulty in giving effect to the variation
  of percentage so as to operate in favour of promotee officers. Tribunal harped
  on the fact that there is no power of relaxation under the rules such as the
  one provided for by the Indian Railway Traffic Service Rules. The provision
G for variation of percentage from time to time in case of necessity is for all
  practical purposes equivalent to the power of relaxation. There is no particular
   reason why the Class II promotee officer l!f S&T department should be treated
  differently from the same category in Traffic department. The application of
  such different standards could very well be avoided by giving a wider meaning
  to the expression " varied from time to time". Wtiether it be variation or
G relaxation, it is meant to provide a leeway for adjustment in exigencies of
    . INDIAN RL Y. CLASS II OFFICERS FEDN . .-. ANIL KUMAR SANGH! [REDD!, J.]   53 J
service which is very much necessary in admfnistrative interest and to cope            A
up with unforeseen contingencies. (535-H; 536-A-H; 537-Af

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 92of1997.

     From the Judgment and Order dated 4.8.1995 of the Central Administrative
Tribunal, Principal Bench, New Delhi in 0.A. No. 574of1993.                            B
      Salman Khurshid, lmtiaz Ahmad, Naghma lmtiaz and V.N. Raghupathy
for the Appellants.

    Ashok K. Mahajan, Shashi Kiran, Anil Katiyar, BhMi Verma, Kiran
Kapoor and D.S. Mehra for the Respondents.                          C
     The Judgment of the Court was delivered by

       P. VENKATARAMA REDDI, J. Aggrieved by the order of the Central
Administrative Tribunal (C.A.T.) Principal Bench, passed on 4.8.1995 in 0.A.
No. 574 of 1993, the present appeal has been filed by the second respondent D
in 0.A., which is an Association of Class II Railway Officers and one of the
respondents in the O.A. The 0.A. was filed in the C.A.T. by six Class I
Officers working as Assistant Signal and Telecommunication Engineers
(ASTEs), who are respondents I to 6 herein. The appellant-Association is
espousing the cause of Group 'B' Officers of Indian Railways Services of
Signals Engineers (IRSSE), who were, by an order dated 15.9.1992 issued by E
the Ministry of Railways, appointed substantively to the Junior Scale of
IRSSE with effect from 23.7.1992. The Group 'B' (Class II) posts constitute the
base level of gazetted cadre on the Indian Railways and these posts are filled
up by promotion, from amongst Group 'C' personnel through the process of
selection. Immediately above Group 'B' are the Junior Scale Group 'A' posts. F
It is a feeding cadre. for the Group 'A' posts at higher level. The appointments
for Group 'A' Junior Scale posts are made partly by direct recruitment and
partly by promotion from amongst eligible Group 'B' Officers as per the
quotas prescribed in the recruitment Rules. The incumbents of posts in Group
'A' Junior Scale and in Group 'B' are designated as Assistant Officers and
it appears that these posts are operated inter-changeably. As per the recruitment G
rules, Group 'B' Officers who have rendered three years of non-fortuitous
service in the grade are eligible for consideration for promotion to Group 'A' I
Junior Scale. It is common ground that the 127 Officers covered by the
appointment order dated .15.7.1992 were working for nearly 8 to 10 years
against regular Group 'A' vacancies and most of them were promoted to H
    532    •'               SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A Senior Scale on ad hoc basis and were working as such for several years.
    Apparently, the eligible Group 'B' Officers could not be promoted to Group
    'A' Junior Scale for administrative reasons viz., de lay in recruitment process
    of Group 'A' Officers and constitution of DPC. There was virtually stagnation
    of a number of Group 'B' Officers who as already stated were working on ad
B   hoc basis in Senior Scale vacancies of Group 'A'. With a view to discontinue
    the ad hoc arrangements and to give better promotional opportunities to
    Group '.B' Officers who were stagnating without regular promotion, the Ministry
    of Railways proposed additional posts in Junior Time Scale not only in Signal
    and Telecommunication Department, with which we are concerned, but also
    in various other departments of Railways. As against 654 additional posts
C   proposed by the Railways, the UPSC agreed for creation of 463 posts. Out
    of these, the allocation for the Signal and Telecommunication Department was
    76. These additional posts (76) were to be tilled by promotion of Group 'B'
    Officers in relaxation of the normal quota and such variation of quota was
    permissible, according to the Railways, under Rule 4(b) of the relevant
    recruitment Rules. In the reply tiled by the Railways before the Tribunal, it
D   is stated that the appointment of 127 Group 'B' Officers to Junior Time Scale
    was made against 153 vacancies in the promotion quota as per the particulars
    given below:

    Recruitment year Direct Recruitment Quota            Promotion quota

E   1989               35 (60%)            23(40%)+2 (Carry forward vacancies)

    1990                                   42(29%)      104(71 %) (including-
                                           additional 76 posts decided by the
                                           Govt. in consultation with UPSC, for
                                           reasons brought out in para-8 to I 0 of
F                                          this counter affidavit.

    1991               37                  (60%) 24(40%)

                                           Total 153
G         It is further stated that the DPC recommended the appointment of 146
    Officers out of whom 127 were appointed by the order impugned in the O.A.

          The Group 'A' Junior Scale Officers who were apprehensive of dimunition
    of their promotional prospects by virtue of weightage in service which the
    Group 'B' Officers would be entitled to, filed the 0.A. before the CAT
H   questioning the appointment of 127 Officers mainly on the ground that it is ·
          INDIAN RL Y CLASS II OFFICERS FEDN. r. ANIL KUMAR SANGH! [REDD!, J.]    533

     in excess of their quota and that the relaxation was not permissible. The case      A
     of the Group 'A'/Class I Officers (Respondents I to 6 in this appeal) was
     substantially accepted by the Tribunal and the following directions were
     given by the Tribunal in the concluding part of the order :-

•           (i)    It is not competent for the Railways to appoint as many persons
                   by promotions as they like, in disregard of the provisions of Rule    B
                   4 which stipulates the quota for promotion and direct recruitment.
                   Repeated violent departures from the quota rule will lead to
                   collapse of the quota rule (Direct Recruits' case supra) and
                   therefore of the linked seniority rule (B.S. Gupta's case supra).
            (ii)   The principle ofweightage in seniority will be limited to promotees   c
                   appointed against their qµota.
            (iii) As the rules stand at present, the maximum quota for promotees
                  is only 40%. It cannot be raised further by relaxation, as
                  Government has no such power.
            (iv) Vacancies not filled in a year whether in the direct recruitment        D
                 quota or promotee quota can be carried over, but all such vacancies
                 have to be filled in the subsequent years by both methods on
                 the basis of the quota mentioned in Ruic 4.
            (v) Out of the 127 appointments made by the Annexure A-1 order
                 dated 15.9.1993, promotion should be deemed to have been made E
                'to the extent of 40% of the vacancies in 1992 which have been
                 computed tentatively at 89 (para 34 supra) subject to departmental
                 verification. They alone are entitled to weightage and seniority
                 on the seniority principle (vii) and (ix).
            (vi) The remaining 38 persons; subject to departmental verification,         F
                 have been promoted in excess of the promotion quota and they
••               are not entitled to weightage in seniority on the basis of the
                 Annexure A-1 order. Their promotion shall be treated as ad hoc
                 only. They can be treated as regularly promoted against the
                 quota for promotees in 1993 and thereafter. In that case, such
                                                                                         G
                 promotees can be given weightage from the dates their promotions
                 are regularized.
            (vii) The Annexure A- I order shall stand modified to the extent
                  indicated above.
            (viii) The O.A. is disposed of as above.                                     H
    534                   SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A       The Tribunal was of the view, agreeing with the Jabalpur Bench on the
  issue, that the provision authorizing variation of percentage in tenns of
  concluding part of clause (b) of Rule 4 did not authorize the Government to
  exceed the ceiling of 40 per cent of vacancies in relation to departmental
  promotees. The Tribunal relied on the expression "not more than" occurring
B in clause (b) of Rule 4. The Tribunal further held that power of relaxation in
  favour of departmental promotees cannot be spelt out in Rule 4. At the same
  time, the Tribunal held that Note I to Rule 4 did not preclude carrying forward
  of the unfilled vacancies in the promotion quota. The Tribunal pointed out
  that if vacancies in the quota for promotees or direct recruits are not filled
  up fully, those vacancies can be filled up in the succeeding year. However,
C the carried over vacancies will be filled up in the same ratio as is indicated
  in clauses (a) and (b) of Rule 4. The Tribunal then examined the number of
  vacancies available against the promotee quota pertaining to years 1989, 1990
  and 1991. The Tribunal was of the view that only 40 per cent of the 76
  additional posts created i.e. 30 posts will fall to the share of the promotees.
  The Tribunal worked out that promotees could get only 89 against their quota
D of 40 per cent out of the total vacancies available upto 1992. The Tribunal,
  therefore, concluded that 38 Group 'B' officers should be deemed to have ·
  been promoted in excess of quota and those 38 persons are not entitled to
  weightage of past service while determining their seniority. Their promotion
  should be treated as aC: hoc only and they could be treated as regularly
E promoted against the quota for promotees available in 1993 and thereafter. In
  other words, 30 respondents promoted in excess of quota should be adjusted
  against future vacancies. The contention that the seniority rule had collapsed
   by reason of break down of quota rule was negatived on the ground that
  departure from quota rule was only marginal and it cannot be said that the
  quota rule had substantially failed. The Tribunal finally directed that the
F impugned order of the Railway Ministry shall stand modified in the light of
  directions given by it.                                                            c

          The relevant rule dealing with recruitment is as follows :

            "Rule 4 Method of Recruitment - Recruitment in the service shall be
G           by the following methods :
           (a)   By competitive examination held in accordance with part II of the
                 rules.
           (b) By promotion of Class II officers of the Signal Engineering
H              Department. Not more than 40 per cent of the vacancies shall be
     INDIAN RL Y. CLASS II OFFICERS FEDN •·. ANIL KUMAR SANGH! [REDDI, J ] 535

            filled by departmental promotion. This percentage is likely to be      A
            varied from time to time, if found necessary.
       NOTE :If the quota of 40 per cent reserved for Class II officers for·
       promotion to Class I is not fully utilized, the remaining vacancies shall
       be filled by direct recruitment under clause (a),
       (c) By occasional admission of other qualified persons appointed by
                                                                                   B
           the Government on the recommendation of the Commission."

       We are concerned here with Clause (b) and the Note thereto. As noticed
earlier, 76 additional posts were created in S&T department in order to facilitate
the absorption of Group 'B' (Class II Officers) in Group 'A' Junior Time Scale. C
It also transpires from the pleadings that the induction of Group 'B' officers
to the extent of vacancies falling within their quota could not take place on
account of administrative delays in constituting the DPC and moreover on
account of linking up the promotional quantum to the number of direct
recruits inducted during the year. The extent of intake of direct recruits fell
short of the requisite available number.of vacancies as a result of which there D
was corresponding· reduction in the number of officers appointed to Group
'A' Jr. scale against promotion quota. That there was ample justification for
remedying the injustice done to the Group 'B' officers who were manning the
posts in Group 'A' (Jr. scale) on ad hoc posts since considerable time and
to put an end to the long time ad hoc arrangements is amply clear from the E
pleadings and the correspondence forming part of the record. Though the
Tribunal conceded the power to carry forward the vacancies, the Tribunal was
of the view that having regard to the rule position, it was not possible to
allocate all the newly created posts to Group 'B' officers awaiting promotion.
The learned members of the Tribunal held that the carry forward vacancies
have to be filled up in subsequent years on the basis of the quota i.e. 60 : F
40 per cent. In other words, the Tribunal was of the view that the direct
recruits too have their share. in the 76 newly created posts and they cannot
be exclusively filled by promotees.

       Let us see how far Ru le 4 (b) and the Note thereto stands in the way
of allocation of additional posts exclusively to Group 'B'/Class II officers in    G
order to compensate the deficiency in the intake of promotee officers into
Group 'A' /Class I during the preceding years .. The answer depends on· the
proper construction of the Ru le.

      No doubt the second sentence in clause (b) places a ceiling of 40 per H
    536                     SUPREME COURT REPORTS [2002] SUPP. 2 S.C.R.

A cent on the vacancies to be filed up by depai1mental promotion. The Note
  reinforces this mandate by providing that in case of shortfall in the promotional
  quota of 40 per cent, those vacancies remaining should be allocated to direct
  recruits. That means, in a given year, the direct recruits can go beyond 60 per
  cent, if sufficient number of promotee officers are not available. It is a different   ...
B thing that it had never happened and the direct recruitment could not be made
  in some years even to the full extent of 60 per cent. But, that is what the Rule
  provides. However, the rule in so far as it operates against the promotee
  officers has been diluted to a certain extent by reserving the power to vary
  the percentage allocated to promotees. The variation, in our view, could be            •
  both downward and upward, depending upon the exigencies of service and
C the march of events. Going by the plain language, the variation could be
  either way. If the variation was intended only to curtail but not to enhance
  the promotion quota of 40 per cent, suitable language could have been
  employed. That apart, the word 'not more than' itself would have provided
  some flexibility to the appointing authority to reduce the promotee quota in
  a given year for good and relevant reasons. Hence, it is not appropriate and
D proper to limit the ambit of variation only to the reduction of percentage. If
  the last sentence in Clause (b) is to be read subject to the preceding sentence
  with the appended note, the very purpose for which such power is reserved
  to the Government will be lost. A reading of the Rule so as to confine the
  variation of percentage to impinge on the normal promotee quota but not
E vice-versa is clearly unwarranted either on the plain language of the provision
  or its intendment. There is nothing which precludes the Government of India
  to take a policy decision that the perceitl°age should be so varied so as to
  give the benefit to the stagnating promotee officers. When once such policy
  decision is taken, the normal rule that 40 per cent is the maximum for
  departmental promotees would stand protanto modified for the time being. Of
F course, such variation, either upward or downward should be based on
  rational basis and relevant considerations. When once such test is satisfied,
  there is J10 difficulty in giving effect to the variation of percentage as to          ·-
  operate in favour of promotee officers. The Tribunal harped on the fact that
  there is no power of relaxation under the rules such as the one provided for
G by the Indian Railway Traffic Service Rules. The provision for variation of
   percentage from time to time in case of necessity is for all practical purposes
   equivalent to the power of relaxation. There is no particular reason why the
   Class II promotee officers of S&T department should be treated differently
   from the same category in Traffic department. The application of such different
   standards could very well be avoided by giving a wider meaning to the
H expression "varied from time to time". Whether it be variation or relaxation,
            INDIAN RLY. CLASS II OFFICERS FEDN. 1·. ANIL KUMAR SANGH I [REDD!, J.] 537

     it is meant to provide a leeway for adjustment in exigencies of service which A
     is very much necessary in administrative interest and to cope up with
     unforeseen contingencies.

           Therefore, we are of the view that no illegality has been committed by
     the Union of India in appointing 127 Group 'B' officers of S&T department
     of Railways to the junior scale of Group 'A' by the impugned order dated B
     15.9.1992. The Central Administrative Tribunal has committed an error of law
     in interpreting the relevant rule and holding that 38 Group 'B' (Class II
     officers) promoted in excess of normal quota of 40 per cent have to be
     promoted on regular basis against future vacancies. The impugned orde.r of
     the Tribunal is, therefore, set aside and the appeal is allowed. We make no C
     order as to costs.

     N.J.                                                            Appeal allowed.




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