Judgment:
1. The question for determination in this O.A. is what should be the date of increment in time scale (DOIS) of the applicant for the purpose of fixing his seniority in terms of the Scheme for making appointment to the post of General Managers and equivalent.
2. The facts. There are following 8 feeder Railway Services of Group 'A' from which the General Managers are selected: The applicant appeared in the combined Engineering Services Examination held by the Union Public Service Commission in the year 1966. On the basis of the merit list he was offered appointment in the Indian Railway Service of Signal Engineers (IRSSE). He joined the post in the Northern Railway as probationer in the Signal and Telecom Department Railway in terms of the Railway Board's letter dated 27.10.1967 on 18.11.67. While undergoing the probation period, he appeared in the combined Engineering Services Examination held in September, 1967. This time he was selected for the Indian Railway Services Electrical Engineering (IRSEE). He was at No. 1 in the merit list of IRSEE. He was offered a letter of appointment on 30.11.68 as a probationer in the Indian Railway Services of Electrical Engineers (IRSEE) on the basis of the success in the Engineering Services Examination held in 1967 by the UPSC. The applicant accepted the appointment and in terms of the order dated 13.11.68 he was released from the Northern Railway on 5.12.68 and he joined the Central Railway in the IRSEE on 7.12.68 after availing one day's joining time. Thereafter he passed the departmental examination and he got advance increment. The Railway Board exempted him from training in the general course which he had already attended from 1.1.68 to 30.3.68 while in IRSSE. He worked on various posts and was holding the post of Chief Electrical Engineer, S.E. Rly., Calcutta when this O.A. was filed.
The applicant alleges that he is eligible to be considered for the post of General Manager on the basis of first appointment in Railway Service, but he has been denied consideration on the ground that his date of increment in the time scale (DITS) is 7.12.68, the date on which he joined in IRSEE in the Central Railway. The say of the applicant is that his date of increment in the time scale (DITS) should be treated as 18.11.67, the date on which he joined in IRSSE. It is stated that all the officers who joined as IRSSE from CES Examination of 1966 have either resigned or retired or not promoted to SAG and the applicant is the only person of IRSEE of 1967 batch. It is then stated that in respect of the various officers the date of increment in the time scale has been treated as the first date of their joining the service and the applicant has been discriminated. Stating that the applicant is the senior most officer in his own service and has more than two years' service to serve as General Manager or Equivalent, it has been prayed that the respondent authority be directed to treat the applicant's date of increment in the time scale (DITS) with effect from 18.11.67 and to consider his case for preparation of the panel for the post of General Manager and equivalent with effect from 1.7.01.
3. In the reply filed on 20.8.01 the respondents' stand is that the date of increment in the lime scale (DITS) in the case of direct recruitment is the same as the date of joining the 'service' and as the applicant had joined the IRSEE on 7.12.68 that date is material for the purpose of fixing his inter se seniority amongst various Group 'A' Officers. It is stated that different Rules arc applicable to the Emergency Commissioned Officers/Short Service Commissioned Officers who have been appointed in the various Services of the Railway. It is also stated that the applicant, having left IRSSE, cannot claim seniority on the basis of his joining on 18.11.67. It is averred that the applicant on his own volition had chosen to leave the IRSSE and joined IRSEE and hence he cannot have the benefit of the service rendered in IRSSE for fixing the inter se seniority in Group 'A' Railway Officers.
4. In the rejoinder, the applicant has repeated almost the facts, stated in the O.A. He has named certain officers in whose cases the date of joining initial service was taken as the date of increment in the time scale and they were given the benefit of past service.
5. In the additional affidavit filed by the respondents it has been denied that the applicant has got a case on the basis of the discrimination. In respect of the officers whose date of increment was fixed on the basis of appointment in the first service, reasons have been disclosed.
6. After the additional affidavit of the respondents the applicant chose to file additional affidavit pointing out a mistake in the additional affidavit filed by the respondents. The respondents thereafter have filed another additional affidavit. The applicant again chose to file additional rejoinder on 13.3.02 pointing out that the date of increment in time scale of one D.C. Joshi has been shown as 18.1.68 in the Classified List which is the date of appointment in the first service.
7. We have heard the learned Counsel for the parties and perused the scheme of promotion and the documents placed on record.
8. The learned Counsel for the applicant contended that for the following reasons the date 18.11.67 be treated as the DITS of the applicant: (i) The applicant had not tendered resignation from the IRSSE and therefore, his Railway service continued when he joined in IRSEE. (ii) in the appointment order dated 13.11.68, it was not stated that the applicant's past service would stand forfeited.
(iii) The applicant's pay which he was drawing as a member of IRSSE was protected and benefit of leave earned during that service was given to him as also that period of service in IRSSE has been counted for the purposes of pension.
(iv) The applicant was allowed joining time of 6.12.68 which is allowed only to employees who proceed on transfer and not to the employees who resign and thus the applicant's case is akin to the transfer from one place to another.
(v) Three months' common training programme was waived in the case of the applicant and the training programme in IRSEE was reduced.
(vi) Dale of earning the increment on 18th of November was retained in IRSEE. (viA) There cannot be two dates of increment in time scale, one for the purposes of pay and the other for the purposes of fixing the inter se seniority.
(vii) The decision to deny the DITS on the basis of first service in IRSSE is quasi judicial affecting the career of the applicant and as the applicant was not afforded an opportunity of hearing, the principles of natural justice have been violated.
(viii) The applicant has been discriminated in the matter of fixing the date of increment in the time scale. In the case of Shri P.K. Sharma, Ms. V.G. Bhooma, Shri T.V. Madhav and 7 Ors. named in the O.A. the date of increment in the time scale was the date of their initial appointment.
The contention of Mr. Moitra was that by fixing 7.12.68 as the DITS the applicant has been deprived of the right of consideration as he has been kept out of zone by the arbitrary act of the respondents by refusing to treat the date 18.11.67 as the DITS.9. On the other hand, Mr. Tulsi, learned Counsel for the respondents contended that despite the fact that the applicant has been given the benefit of past service in IRSSE for the purposes of pay protection, leave and pensionary benefits and grade increment the date of appointment in IRSSE cannot be taken into account for fixing the inter se seniority in terms of the Scheme for making appointment to the post of General Manager and equivalent in the Railways. His further contention was that the applicant cannot claim parity with the officers named in the O.A. or in the rejoinder because different Rules applied to their cases. Mr. Tulsi pointed out the various provisions of the Rules governing the service conditions of the Railway employees to emphasise that an employee cannot hold lien on two posts and that unless an employee completes the probation period, he docs not hold lien on a post and further that the Railway servant's lien stands terminated on acquiring lien on a permanent post. He made particular reference to Rule 1320 of the Indian Railway Establishment Code, Vol.
II. According to him, the Scheme of 1986 for making appointment to the post of General Manager or equivalent was amended from time to time giving different criteria for fixing the DITS of officer of Group 'A' service. He canvassed that when the applicant chose to join IRSEE, though he was already in IRSSE, it must be presumed that he had left IRSSE on his own volition and even if there was no resignation of the applicant it should be treated as if he had resigned from the post of IRSSE. He emphasised that service in the IRSEE only is relevant for the purposes of fixing the inter se seniority. He pointed out that in the matter of Shri D.C. Joshi there was mistake with regard to his date of increment in the Classified List of 2000 which was corrected vide letter dated 3.7.99 wherein DITS of Shri Joshi was shown as 13.2.80.
10. We have given the contentions our anxious thought. It is profitable to read the relevant paras of the Scheme for making appointment to the post of General Manager and Equivalent in the Railways.
11. Para No. 7.1 of the Scheme says that the Officers belonging to the Railway Services listed in Appendix-II will be eligible for consideration by the Selection Committee. The officers in both the Services i.e. Indian Railway Service of Electrical Engineers (IRSEE) as also the Indian Railway Service of Signal Engineers (IRSSE) are eligible for appointment as General Manager as evident by Appendix-II read with Para 4.1 of the Scheme.
"4.1 A panel of names for consideration for appointment to the posts listed in Appendix I shall be prepared by a Selection Committee set up in accordance with para 5 of the Scheme. For this purpose, the Selection Committee shall consider on merit eligible officers of each of the Railway Services listed in Appendix II, having regard to their inter-se seniority as well as their seniority in the respective Services, and prepare a panel of officers considered suitable in all respects for appointment to the posts of General Manager and equivalent. The Selection Committee may also recommend the specific type/types of assignments for which a particular officer mentioned in the panel may be considered suitable." (Emphasis supplied) 12. The Railway Board vide letter dated 8.7.87 laid down the principle and procedure for determining the inter se seniority of members of Railway Group 'A' Service under the Ministry of Railways with the prior approval of the President of India.
13. The relevant part of the Scheme is the Annexure to the Board's letter dt. 8.7.87. Para 1.1., 1.2, 2.0, 2.1 and the Note No. 1 are relevant to decide the controversy which are reproduced hereunder:-- "Principle and procedure for determining inter-se seniority of members of Group 'A' Services on the Railways.
1.1 The officers belonging to any examination batch would initially be junior to the officers of the same Service belonging to an earlier examination batch.
1.2 Within the same batch, the inter-se seniority would initially be in order of merit in the batch as existing on completion of the period of probation.
2.1 The inter-se seniority as between members of any two Group A Services would be determined by the Date of Increment in Time-Scale (DITS) except that-- 2.1.1 In case any officer joins service earlier than his senior in the same Service in the same batch, he will take a notional DITS, which will be the same as that of his senior.
2.1.2 In case any officer is superseded on grounds of suitability by any officer of his own service, he will, for the purpose of composite inter-se seniority, take a place just below that of his erstwhile junior who has superseded him.
2.1.3 In case an officer gets a General Manager's post open to more than one discipline later than an officer of another Service on grounds of suitability, he will take his seniority below that officer.
Note: 1. The Date for increment in Time-Scale would be the same as the Date of joining Service in case of direct recruits to Group 'A' Services and for others it would be the Date for Increment in Time-Scale in Group 'A' Services as determined as per rules/orders laid down from time to time.
14. Before we proceed to consider the contentions of the learned Counsel for the parties, we may state the facts on which there is no dispute between the parties. One, the applicant did not tender resignation from IRSSE, when he joined IRSEE. Two, the applicant has been allowed the benefit of the past service in the IRSSE for the protection of his pay as also the leave which he earned and also for the pensionary benefits. He is drawing grade increment also on the basis of the date of joining in IRSSE. The applicant was also exempted from having training in the general course which he had already attended from January, 1968 to March, 1968 as a member of the IRSSE.15. The service of the applicant in IRSEE is governed by the Indian Railway Service of Electrical Engineers Recruitment Rules, 1962.
Appendix I appended to the Rules, 1962 provides for various service conditions. Para 5 of the Appendix I to the Rules reads as follows: "5. Pay will commence from the date of joining service. Service for increments will also count from the same date...." The word 'Service' in this para obviously means the 'Service' in IRSEE.In other words, as per Recruitment Rules of 1962 the date for increment of the applicant should have been fixed on the basis of his joining the IRSEE, i.e., 7.12.1968.
However, admittedly the applicant's date of grade increment remained the same as was in the IRSSE even after he joined IRSEE. So the question is if that date of grade increment should be treated as DITS for fixing the inter se seniority under the Scheme.
16. Our answer to this question is in, No. The reason of keeping the date of old grade increment was that the applicant's pay was to be fixed under Rule 1313 of Indian Railway Establishment Code, Vol. II, corresponding to F.R. 22, which contains the general principle of fixing the pay of a Railway servant who was already in the Railway service before joining the new post.
17. We reproduce relevant portion of 1313(1) and (III) F.R. 22(1) and (III) hereunder:-- The initial pay of a Railway servant who is appointed to a post on a time scale of pay is regulated as follows: (2) When the appointment to the new post does not involve such assumption of duties and responsibilities of greater importance, he shall draw as initial pay, the stage of the time-scale which is equal to his pay in respect of the old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis: Provided that where the minimum pay of the time-scale of the new post is higher than his pay in respect of the post held by him regularly, he shall draw the minimum as the initial pay: Provided further that in a case where pay is fixed at the same stage, he shall continue to draw that pay until such time as he would have received an increment in the time-scale of the old post, in cases where pay is fixed at the higher stage, he shall get his next increment on completion of the period when an increment is earned in the time-scale of the new post.
On appointment on regular basis to such a new post, other than to an ex cadre post on deputation, the Government servant shall have the option, to be exercised within one month from the date of such appointment, for fixation of this pay in the new post with effect from the date of appointment to the new post or with effect from the date of increment in the old post.
(3) When appointment to the new post is made on his own request under Sub-rule (a) of Rule 15 of the said rules, and the maximum pay in the time-scale of that post is lower than his pay in respect of the old post held regularly, he shall draw that maximum as his initial pay." "III. For the purpose of this rule, the appointment shall not be deemed to involve the assumption of duties and responsibilities of greater importance if the post to which it is made is on the same scale of pay as the post, other than a tenure post, which the Railway servant holds on a regular basis at the time of his promotion or appointment or on a scale of pay identical therewith." 18. The effect of Sub-rule (2) of Rule 1313(I) F.R. 22(I) and Rule 1313(III) is that the pay of the applicant could not be less than what he was drawing as member of IRSSE and also that he had a right of earning the next grade increment on the basis of the initial date of appointment in IRSSE. Under Rule 1313 (III) the appointment of the applicant in IRSEE did not involve assumption of duties and responsibilities of greater importance as both the services in IRSSE and IRSEE were in the identical pay scale.
19. The fixation of pay as per Rule 1313(I)(2) and (III) [F.R. 22(I) (2) and (III)] and earning of grade increment thereunder the general provision. The object of this provision is to protect the pay of a Railway servant, so that he did not suffer because of changing the Railway service. But this fixation of pay or the earning of grade increment on the basis of initial date of appointment in Railway service cannot be taken into consideration for fixing the inter se seniority under the Scheme of making appointment to the post of General Manager and Equivalent.
20. The DITS for that purpose would be the date of joining IRSEE, for which there '' is specific provision at para 5 (reproduced herein-above) of IRSEE Recruitment Rules, 1962. For considering the promotion only the date of joining IRSEE is relevant. The applicant cannot take advantage of general principles stated herein-above in the presence of specific provision under Rules of 1962.
21. That being so, on the basis of protecting the pay of the applicant and allowing him annual grade increments on the basis of joining date in the IRSSE the applicant's DITS under 1962 Rules cannot be accepted as 18th of January, 1967 22. In the same way, the benefit of carrying forward the earned leave of the applicant or counting of the service from 18.11.67 to 7.12.68 for pension purposes do not entitled him to contend that him DITS is 18.11.1967. Those benefits were given to him as he was already in Railway service before joining IRSEE on 7.12.68. The benefit would have been given to the applicant even if he had been in the lowest grade of Railway service, what to say of IRSSE. Can it be said that if the applicant had been in Group 'B' service before joining IRSEE for 5 years, he would have succeeded in contending that his initial date of appointment to Railway service was the deciding factor for fixing DITS.The answer obviously is in, no.
23. That being so, even if the applicant had not submitted his resignation from IRSSE and his service is continuing, he cannot successfully claim that his DITS should be 18.11.67.
24. If the applicant's contention is accepted there would be anomalous position. In that event, the applicant would supersede the batch of IRSEE appointed in 1967 though he became the member of this service in 1968.
25. Apart from that, what para 1.2 of the Annexure to the principle and procedure for deciding inter se seniority says is that first inter se seniority is to be fixed on the basis of merit in the batch as existing on completion of the period of probation.
Admittedly, the applicant had not completed the period of probation in IRSSE, when he joined IRSEE. Therefore, his merit cannot be fixed in the 1967 batch of IRSSE. If that cannot be done how the benefit of the date of service 18.11.67 can be given to the applicant under para 2.1 read with Note 1.
26. As to the contention that there cannot be two dates for grade increment of a Railway servant, it may be stated that it is not a question of two different dates of grade increment.' Under the Rules of 1962 the DITS of the applicant would be on the basis of joining service of IRSEE on 7.12.68, but he would get the increments keeping in view Rule 1313(I)(a)(i) and (III) of the Indian Railway Establishment Code, Vol. II.27. There is no merit in the contention that the applicant was required to be afforded an opportunity of stating his case before preparing the list of officers who came in the zone of consideration. It is not the case where the applicant was enjoying some benefit and he was being deprived of the same. The date of regular grade increment has not been changed. No notice was required to be given before preparing the list of the Officers falling in zone of consideration. That being so, it cannot be accepted that the respondents have violated the principles of natural justice.
28. It is also not relevant that the applicant was exempted from undergoing the trainings from the general course on the ground that he had already been imparted training between 1.1.68 to 30.3.68. Since the first three months' training is of general nature which is imparted to all the members of all the Indian Railway Services mentioned in Appendix II, the respondents must have thought it proper to exempt the applicant from undergoing that training because it was unnecessary to repeat the training which was troublesome to the applicant as also it was avoidable burden on the Exchequer, but that does not give the applicant right to claim the benefit of the date of first appointment in the Indian Railways for the purposes of fixing the seniority.
29. The applicant is correct when he says that he had not resigned from the post of IRSSE and the respondents had allowed him to join after availing joining time. It is not the question of forfeiture of the service of the applicant rendered by him as a member of IRSSE; the question is of fixing the inter se seniority for the purpose of the Scheme. The applicant himself was not satisfied with the IRSSE service and therefore, it is on his own volition that he chose to appear in the next competitive examination and he got the appointment in the service of his choice. Thus the applicant himself is responsible for loosing the benefit of the service in IRSSE. Had he continued in the same service, his date of grade increment would have been 18.11.67 for all purposes including the fixation of inter se seniority, but when he himself chose to move another service, he has to think himself for the change of the date of increment in the time-scale.
30. It was obviously not the case of transfer when the applicant joined in the Central Railway. It was the change of 'service' of the applicant on his own volition. Since the applicant was in the service of the Indian Railways, the respondents had allowed him the joining time as also the other benefit of past service, but on that ground the applicant cannot claim that his DITS should be treated as 17.11.67.
31. Coming to the allegation of discrimination we notice that in the O.A. the discrimination was alleged with reference to the officers like, Shri K.S. Sandhu, who, before joining Railway services, were Emergency Commissioned Officers of Army and Air Force or the Short Service Commission Officers of the Army. There being special Rules for keeping the date of increment in the time-scale and the circular dated 30.11.76 for such officers no parity can be claimed by the applicant.
Obviously, the benefit was given to such officers as they had risen to the nation's call in the time of emergency and had offered their services to the nation and the rules provided for the same.
32. In the rejoinder dated 18.9.01, the applicant alleged the discrimination on the basis of DITS of 3 officers, who were earlier the members of other services and in whose cases the date of initial appointment formed the basis of DITS. The respondents have explained those cases in the counter to the rejoinder dated 21.11.01.
33. Shri P.K. Sharma was inducted in senior scale on transfer from IRSME under the 'future maintenance of the service' Clause 8(c)(ii) of IRPS Rules. His seniority was fixed in terms of Railway Board's letter dated 27.9.85. Annexure 'R/5' wherein it was stated that the officers selected in the initial constitution of service 'IRPS' will be senior to those selected and absorbed in the 'maintenance stage'. It is manifest that Shri Sharma's seniority was determined on the basis of Railway Board's letter because of constitution of new service 'IRPS'.
Shri S.K. Gupta was the member of IRSME. He was allowed to change his cadre on medical grounds with the approval of U.P.S.C. and was placed at the bottom of the 1991 batch of IRSS. That being so, the applicant cannot claim parity with him.
Ms. V.G. Bhooma had been allocated the IRPS in 1989 pursuant to her success in 1987 Examination, but she did not report and sought exemption in order to appear in the next Civil Service Examination. She was treated as not available for allocation under Rule 17 of the CSF Rules. She had joined on 21.8.89 as IRPS probationer. The date was kept unchanged. It is obviously not a case where Ms. Bhooma was given benefit of earlier date.
Shri T.V. Madhavan was of 1947 batch in Senior Administrative Grade with DITS 22.10.48. On the initial constitution in IRPS he was given seniority as per 'IRPS Rules,' it is manifest his case was governed by specific Rules.
Shri D.C. Joshi was initially the member of Indian Supply (ISS). The officers of ISS were absorbed in the Railway in Indian Railway Stores Service (IRSS). He was given DITS of 13,2.80, the date of his regular appointment in the respective grade in Directorate of Supply and Disposal. It is wrong to say that his DITS is 18.1.68 as is shown in Classified List 2000, (Annexure 'A/13') filed along with Additional Rejoinder dated 133.02. The respondents have filed letter dated 30.7.99 which shows the seniority position of Shri D.C. Joshi. In the Annexure attached to the letter the DITS of Shri Joshi has been shown as 13.02.80. It appears that there was a mistake in the Classified List, Annexure 'A/13.' 34. For the reasons stated above the applicant cannot claim parity with the officers named by him. The fact situation in all these cases being totally different Article 14 of the Constitution of India cannot be invoked.
36. As a result of foregoing discussions, we find no case in favour of the applicant. Consequently, the O.A. is dismissed. No order as to costs.
37. M.As. stand disposed of in terms of this order. The stay order stands vacated.