Judgment:
HON'BLE MR. GEORGE PARACKEN, JUDICIAL MEMBER
The grievance of the applicants is against the denial of consideration for their promotion as Dressers Gr.III in violation of the provisions contained in Para 182 Chapter I, sub section IV of the Indian Railway Establishment Manual which reads as under:
"182. Medical Deptt - All Railway servants employed in the hospitals like hospital attendants, orderlies, dispensary peons, stretcher bearers, watchmen, safaiwalas or sanitary cleaners etc. should be eligible for promotion as dressers and laboratory attendants. For this purpose the eligible railway servants should be screened by holding a suitability test to determine whether they are educationally up to the required standards and have the necessary aptitude. The Railway servants considered suitable should be given training as may be necessary which they should successfully complete before they are finally promoted."
2. The applicants are non-matriculates and they were initially appointed as Sanitary Cleaners/Safaiwalas in the scale of Rs.196-232/750-940/2550-3200. They were further promoted as Senior Sanitary Cleaners/Senior Safaiwalas in the scale of pay of Rs.200-250/775-1025/2610-3540. While working so, the respondents invited volunteers for selection and appointment by transfer as Hospital Attendants Gr.III in the scale of pay of Rs.2550-3200. Applicants volunteered for the aforesaid post and they were selected. Thereafter, they were promoted as Hospital Attendants Gr.II in the scale of pay of Rs.2610-3540 and again as Hospital Attendant Gr.I in scale Rs.2650-4000. The next promotional post available for the applicants is that of Dresser Gr.III in the scale of Rs.3050-4590 which is a Group 'C' post. The provision regarding "Promotion to higher grades in Group'D' and Group 'C' posts" are governed by Para 180 to 189, Chapter I, sub section IV of the Indian Railway Establishment Manual. Para 182 which has been quoted above deals with Medical Department.
3. However, after the recommendations of the 5th Central Pay Commission, the Railway Board, vide Annexure A-1 RBE No.100/98 (letter No.PC-V/98/I/II/18 (A)) dated 10.5.1998, introduced new scales for certain categories including the post of Dresser for which the procedure for promotion has been prescribed as Selection from eligible candidates with Matric qualification . When the post of Dresser Gr.III/O.T Assistant Gr.II in the Medical Department was to be filled up in terms of the aforesaid letter of Ministry of Railways dated 10.5.1998, the Medical Department has brought to the notice of the Ministry of Railways that it was experiencing difficulty in filling up the aforesaid posts for want of suitable Group'D' staff with qualification of Matriculation. The Ministry of Railways have, therefore, vide Annexure A-5 R.B.E.No.68/2001 dated 30.3.2001 considered the issue and decided to fill up the posts of Dresser Gr.III/OTA Gr.III lying vacant by promotion of Hospital Attendants, without insisting on the qualification of Matriculation as a one time exception. Later, when the matter was raised in the AIRF and NFIR in the PNM meeting with Railway Board. The Railway Board vide Annexure A-6 RBE No.184/2001 dated 6.9.2001 decided that the existing Hospital Attendants shall be allowed to appear two consecutive selections held or to be held after the issue of the aforesaid letter of the Ministry of Railways 30.3.2001 for promotion to the post of Dresser Gr.III/O.T.A Gr.III without insisting on the qualification of Matriculation, as a special case. Again, in the PNM-AIRF meeting held on 24-25.5.2004, the federation requested the respondents to relax the qualification of Matriculation to Class VIII pass to enable the experienced staff to get a chance of promotion as Dresser Gr.III/O.T.A. Gr.III. The Ministry has once again, vide Annexure A-7 RBE No.169/2004 considered the issue and decided that while the qualification of Matriculation cannot be done away one more chance will be given to the existing staff to appear for the selection to the post of Dresser Gr.III/OTA Gr.III without the condition of qualification of Matriculation. Thus the existing staff got three consecutive selections to be held for promotion as Dresser Gr.III/OTA after 30.3.2001 without the condition of qualification of Matriculation.
4. According to the applicants, right from the very beginning in terms of Para 182 of the IREM, the Hospital Attendants and other Group'D' staff of the Medical Department were being considered for promotion as Dresser Gr.III subject to only the test to adjudge their suitability and educational standard as may be required to discharge the functions of Dresser Gr.III. The applicants as Hospital Attendants/Operation Theatre Attendants have actually been discharging the duties of Dressers on many occasions in the Railway Hospitals and Railway Health Units and they have long years of service and experience in the area. They have also submitted that in the absence of prescribed minimum educational qualification in Para 182 of the IREM, prescribing matriculation as the minimum qualification for promotion to the post of Dresser Gr.III is illegal and unconstitutional. They have also stated that wherever minimum educational qualification was required it was mentioned in the respective paras. For example, they have cited the case of Mechanical Engineering Department. In Para 184 of the IREM it has been stated clearly that every unskilled staff in Running Sheds and Carriage and Wagon Depots made eligible for promotion to higher grade like Semi-Skilled/Basic Tradesmen in their respective branches only subject to this acquiring necessary qualifications. However, no such provision was there in para 182. Moreover, according to para 182 of IREM itself, all Railway servants employed in the hospitals like hospital attendants, orderlies, dispensary peons, stretcher bearers, watchmen, safaiwalas or sanitary cleaners etc should be eligible for promotion as Dressers and laboratory attendants. Once it has been stated that such employees should be eligible, there cannot be any distinction on the ground of educational qualification. Again, in terms of para 182 of IREM such railway employees should only be screened for the purpose of promotion by holding trade test to determine whether they are educationally up to the required standard and have the necessary aptitude and such provision does not mean that the applicants should have any minimum educational qualification of matriculation as prescribed by the impugned Annexure A-1 Railway Board order dated 10.5.1998.
5. The respondents have now, vide Annexure A-2 notification dated 14.2.2008, invited applications from volunteers from among the Hospital Attendants Gr.I who has passed Matriculation or equivalent for filling up the vacancies of Dresser Gr.III. The last date of submitting application was 3.3.2008. Subsequently, the respondents have also issued Annexure A-3 letter dated 22.7.2008 proposing to fill up two anticipated vacancies of Dresser Gr.III from those hospital attendants Gr.I with Matriculation qualification. Applicants have challenged the aforesaid Annexure A-2 letter dated 14.2.2008, the Annexure A-3 letter dated 22.7.2008 and the Railway Boards Annexure A-1 notification dated 10.5.1998 to the extent that they prescribe a minimum educational qualification of Matriculation for the existing Hospital Attendants in Group 'D' to be considered for promotion as Dressers Gr.III in terms of para 182 sub section IV of Section B of Chapter I of the Indian Railway Establishment Manual. They have also sought a declaration that they are eligible to be considered for promotion as Dresser Gr.III notwithstanding the fact that they do not have the qualification of Matriculation and a direction to the respondents to consider them for promotion against vacancies notified in terms of Annexure A-2 and A-3.
6. The respondents have denied the contentions of the applicant. They have submitted that after the recommendations of the 5th CPC, the Ministry of Railways had prescribed the minimum qualification of Matriculation for promotion to the post of Dresser Gr.III with the approval of the President. They have also relied upon the judgment of the Apex Court in State of andhra Pradesh and another v. V.Sadanandam and others [AIR 1989 SC 2060] according to which mode of recruitment and category from which the recruitment to a service should be made are all matters which are exclusively to the executive and it is not for the judicial bodies to sit in judgment over the wisdom of the executive in choosing the modes of recruitment or categories for which the recruitment should be made as they are matters of policy decisions falling exclusively within the purview of the executive They have also submitted that prior to the implementation of the 5th CPC, the post of Dresser Gr.III was filled up by calling volunteers from 3 categories, viz, Operation Theatre Assistant, Dresser Gr.II and Dresser Gr.I. They have also submitted that the Railway hospital was experiencing difficulty in filling up the post of Dresser Gr.III for want of suitable Group'D' staff with qualification of Matriculation and therefore, it was advised that the post may be filled by promotion of Hospital Attendants without insisting on qualification of Matriculation as a one time exception as a special case. Subsequently the matter was reviewed and it was informed vide Annexure A-6 dated 6.9.2001 that the exiting hospital Attendants may be allowed to appear in two consecutive selections held or to be filled after issue of Annexure A-5 letter dated 30.3.2001 for promotion to the post of Dresser Gr.III without insisting on the qualification of Matriculation. Later yet another chance was extended to those Hospital Attendants who do not possess the qualification of matriculation to appear for selection to the post of Dresser Gr.III as per Annexure A-7 letter 28.7.2004. With this relaxation, the existing staff became eligible to appear in the three consecutive selections held for promotion as Dresser Gr.III after 30.3.2001 without the condition of qualification of Matriculation. They have also submitted that it was a conscious decision on the part of the respondent-Railways for introducing the qualification of Matriculation for promotion to the post o Dresser Gr.III belong to Medical Department after due evaluation of the recommendation of the Pay Commission. They have also submitted that there is nothing arbitrary in taking such decision.
7. We have heard Shri Mohan Kumar, counsel for Applicants and Shri Sunil Jose, counsel for Respondents. It is an undisputed fact that para 182 of the IREM governs the promotion of Dresser Gr.II/OTA Gr.III. According to the said provision, all Railway servants employed in the hospitals like hospital attendants, orderlies, dispensary peons, stretcher bearers, watchmen, safaiwalas or sanitary cleaners etc should be eligible for promotion as dressers and laboratory attendants. None of the Group'D' staff belong to the aforesaid category have been excluded from the eligibility list for promotion to the post of Dresser Gr.III/OTA Gr.III. The procedure for selection has also been provided in the said paras. The eligible Railway servants should be screened by holding a suitability test to determine whether they are educationally upto the required standard and have the necessary aptitude. The said provision has not fixed any standard or minimum qualification for the various categories of Group'D' staff to get promotion as Dresser/OTA. IREM are rules framed by the President of India under Article 309 of the Constitution as held by the Apex Court in Railway Board v. P.R.Subramaniam [AIR 1978 SC 284]. The provisions contained in it has to be followed as it is both in letter and spirit. No doubt, educational qualifications can be made the basis for classification of employees in State service in the matter of promotion as well as for denial of promotion to an employee possessing lesser qualification or requiring longer experience for those possessing lesser qualification as held by the Apex Court in Rajasthan State Electricity Board Accountants Association, Jaipur v. Rajasthan State Electricity Board and another [(1997) 3 SCC 103]. It is also a well settled law that the experience cannot be equated with educational qualifications as held by the Apex Court in State of M.P. and another v. Dharam Bir [(1998) 6 SCC 165]. Therefore, it is for the respondent-Railways to determine the minimum qualification for the post of Dresser/OTA by suitably amending the provision contained in para 182 of the IREM. The respondents cannot introduce minimum qualification by way of an executive instruction. It is a well settled position of law that the Executive instruction cannot overrule provision of rule framed under Article 309 of the Constitution and it can make a provision only with regard to a service matter which was not covered by the Rule (Paluru Ramakrishnaiah and others v. Union of India and another [AIR 1990 SC 166]). So long as para 182 of IREM remains unamended, the Annexure A-1 Railway Board's letter dated 10.5.1998 (R.B.E. No.100/98) will have the value of only an executive instruction and the respondents cannot act upon the same. As in other paragraphs like 184 relating to Marine Engineering Department, the Railway could have very well incorporated the necessary qualification in para 182 also. As held by the Apex Court in Y.V.Rangaiah v. J.Sreenivasa Rao and others [(1983) 3 SCC 284] the posts fell vacant prior to the amended rules would be governed by the old rules and not by the new rules. We, therefore, allow this O.A. and declare that the Annexure A-1 Railway Board's order bearing R.B.E.No.100/98 dated 10.5.1998 cannot be made operational without carrying out the required amendment in para 182 of the IREM. Consequently, Annexure A-2 letter dated 14.2.2008 and Annexure A-3 letter dated 22.7.2008 are quashed and set aside to the extent they insist upon the minimum qualification of Matriculation for appointment as Dressers Gr.III. We direct that the respondents shall consider the applicants and other similarly placed persons for promotion to the post of Dresser Gr.III against the vacancies notified vide Annexure A-2 and A-7 dated 14.2.2008 and 22.7.2008 without insisting for the educational qualification of Matriculation as they have done earlier. In case those vacancies have already been filled up, the applicants shall be considered for promotion against as many future vacancies strictly in accordance with th existing provisions contained in para 182 of the IREM. Thereafter, they are at liberty incorporate the provision regarding educational qualification as contained in the Annexure A-1 RBE No.100/98 dated 10.5.1998 in para 182 of IREM by way of amendment for future promotions of the hospital Group'D' staff to the post of Dresser Gr.III and OTA Gr.III. There shall be no order as to costs.