1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE/ORIGINAL JURISDICTION

CIVIL APPEAL NO(S). 9176  OF 2018 (@ SLP (C) NO(S).22444 OF 2017)

Prabhat Ranjan Singh & Anr.        …. Appellant(s)

Versus

R.K. Kushwaha & Ors.      … Respondent(s)

WITH CONTEMPT PETITION (C) NO. 717 OF 2018  

IN SLP (C) NO(S).22444 OF 2017

CONTEMPT PETITION (C) NO. 732 OF 2018  IN SLP (C) NO(S).22444 OF 2017

SLP (C) NO(S). 4144 OF 2018

T.C. (C) No. 52 OF 2018

J U D G M E N T

Deepak Gupta J.

1. Leave  granted in  appeal  arising  out  of  SLP (C)  No(s).

22444 of 2017.

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2. This is yet another battle, in the seemingly never ending

war between promotees and direct recruits.

3. In the Indian Railways, there is a service known as the

Indian  Railway Service of Signal Engineers (for short ‘the

IRSSE’).   This is a  Group­A service.   Recruitment to the

service is by two modes – 50% by direct recruitment and 50%

by promotion from amongst  Group­B officers in the feeder

services.   The direct recruits are selected through an

examination conducted by the Union Public Service

Commission (for short ‘the UPSC’).

4. On 23.10.2007, the Ministry of Railways issued a

requisition to the UPSC for filling up vacancies in the Group­A

service.   The test was to be conducted in the year 2008 and

the recruitment was known as the Engineering Services

Examination, 2008.  Shri R.K. Kushwaha, hereinafter referred

to as ‘the direct recruit’, was successful in the said

examination.  He  was  duly selected  and joined service on

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14.12.2009.  Some officers, who were working in the Group­B

service of the Signal and Telecommunication Department of

the Indian Railways were promoted vide order dated

12.08.2014 to Group­A service with effect from 08.05.2014.

These officers were given benefit  of  weightage of 5 years of

service rendered in Group­B service in terms of Rule 334 of

the Indian Railways Establishment  Manual (for short ‘the

IREM’), Vol.1 and their relevant date for fixation of seniority

was fixed as 08.05.2009.   

5. The relevant portion of the order dated 12.12.2014 fixing

the seniority of the 87 promotee officers reads as follows:

“2.All the 87 officers will be placed in the seniority list below the junior  most direct recruit  (DR) IRSSE officer of Engineering Service Examination (ESE) 2007 batch (earliest date of joining 15.12.2008), and above the senior  most  Direct Recruit  IRSSE officers of Engineering Service Examination of 2008 batch (earliest joining 14.12.2009), whose inter­se seniority has already been circulated.”

Resultantly the promotee officers were placed en bloc senior

to all the direct recruits.

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6. Shri R.K. Kushwaha, a direct recruit, filed O.A. No.

050/00260/2015 before the Patna Bench of the Central

Administrative Tribunal (for short ‘the CAT’) challenging the

seniority given to the promotee officers vide order dated

12.12.2014.   The petition was disposed of vide order dated

01.04.2015 directing the Chairman of the Railway Board to

consider the representation of Shri R.K. Kushwaha dated

19.03.2015 within a period of  two months.  The Chairman

vide speaking order dated 09.06.2015 rejected the plea of Shri

R.K. Kushwaha to fix the seniority of the direct recruits from

the date of sending of the requisition.   According to the

Chairman, the seniority of the Junior Scale, Group­A officers

of  the eight organised railway services  including the IRSSE

was to be fixed in terms of the provisions contained in the

IREM Vol­1 which had the approval of  the President under

Article 309 of the Constitution of India.   

7. Shri R.K. Kushwaha thereafter filed a fresh O.A. being

O.A. No. 460 of 2015 claiming the following reliefs :

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“8.1 That your Lordships may graciously be pleased to quash and set aside the impugned orders dated 09/12.06.2015 passed by the Respondent No.1 together with order dated 12.12.2014 passed by the respondent No. 4 as contained in Annexure  A/8 and A/4 respectively  which are contrary to the order passed by Hon’ble Supreme Court of India in NR Parmar Case and DOPT OM dated 04.03.2014 as referred to above.

8.2 That your Lordships may further be pleased to direct the respondents to recast the seniority list afresh  on the  basis of  principle laid  down by Hon’ble Supreme Court of  India  in NR Parmar Case and DOPT OM dated 04.03.2014 as referred to above without any further delay.

8.3 That the Respondents further be directed to issue Corrigendum/amendment/Correction slip in Indian Railway Establishment Manual Volume­1, henceforth in view of new Guidelines/directives of DOPT OM dated 04.03.2014 as contained in Annexure A/11 which is based on the principle/law laid down by the  Hon’ble  Supreme Court  of India in NR Parmar Case regarding fixation of inter­se­ seniority between Direct Recruitees and Promotees Officers.

8.4 That the Respondents further be directed grant all consequential benefits in favour of the applicant including promotion  in JA Grade on the basis of his seniority as per the principle laid down by Hon’ble Supreme Court of India in NR Parmar Case and DOPT OM dated 04.03.2014 as referred to above.

8.5 Any other relief or reliefs  including the cost of the proceeding may be allowed in favour of the Applicant.”

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8. It would be pertinent to mention that none of the

promotee officers was made a party in this O.A..  Arguments

were heard and judgment was reserved in the matter.

Thereafter,  Shri  Prabhat  Ranjan,  who was a promotee and

also the General Secretary of East Central Railway Promotee

Officers Association, East Central Railway at Hajipur filed an

application for impleadment.   The application was taken up

on  05.02.2016 and the same  was  allowed.  The judgment

which had been reserved for pronouncement was de­reserved

and on the same day, the CAT heard all the parties and again

reserved judgment.  Liberty, however, was given to the parties

to file written arguments.   The CAT vide its order dated

03.05.2016 partly allowed the O.A..   It rejected the prayer of

Shri R.K. Kushwaha that the direct recruits were entitled to

get seniority from 23.10.2007 the date on which the

requisition for filling up the direct vacancies was sent, on the

ground that the case of Union of India  vs.  N.R. Parmar &

Ors.1 was not applicable in as much as the reference to the

1 (2012) 13 SCC 340

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year  of requisition is  always with  reference to the  vacancy

year.   If the vacancies are notified well in advance and

requisition made earlier to arising of the vacancies, the direct

recruits cannot get or claim benefit of seniority from the date

of requisition.   

9. The case of the direct recruit was that the principle laid

down in N.R. Parmar’s case (supra) had been recognized and

implemented by  the  Department  of  Personnel  and Training

(for short ‘the DoPT’) in its circular dated 04.03.2014.  As per

him, since requisition was issued on 23.10.2007, he should

be granted seniority from the said date.   The CAT held that

the case of the direct recruit that he should be given seniority

from 23.10.2007 is not acceptable.

10. In our view, this was, in fact, the only relief claimed by

the  direct  recruit in  his O.A. and  the matter  should  have

ended there.   However, the  CAT  went on to examine the

speaking order passed by the Chairman, Railway Board dated

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09.06.2015  and examined the same in the context of the

DoPT circular  dated  04.03.2014  and the judgment of this

Court passed in the N.R. Parmar’s case (supra).   

11. The case of the Railways as well as the present

appellant, who was the intervener in the O.A. was that their

seniority had to be fixed in terms of the IREM Vol­1, which

provided that the promotees were to be given a maximum of 5

years  weightage in terms of  Rules  327 to 341.   It is  not

necessary to extract all the rules.  It would suffice to note that

Rule 328 provided that the seniority of officers appointed to

various  Group­A services in the Indian Railways shall be

determined on the basis of ‘date of increment in the time scale

(DITS)’ which is to be determined in accordance with certain

laid down principles.   In the case of direct appointment,

pursuant to an examination conducted by the  UPSC, the

DITS is  to be reckoned from the date of  commencement of

earning  increments  in the regular scale.  Rule 334 provides

that in case of  Group­B officers permanently promoted to

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Group­A services, the  DITS of the  above  officers  would  be

determined by giving weightage.   The said rule reads as

follows:

“334 In the case of  Group ‘B’ officers permanently promoted to Junior Scale of Group ‘A’ services:

(1) xxx xxx xxx

(2) If two or more than two officers are promoted on the same  date, the following  method shall be followed to determine their inter­se seniority within the Railway:­

(i) The relative seniority of officers of each Railway shall be in the order of their position in the panel for that Railway.

(ii) The DITS of the above officers, shall be determined by giving weightage based on:  

(a) the year of service connoted by the initial pay on permanent promotion to Group ‘A’ service; or

(b) half the total number of years of continuous service in Group ‘B’, both officiating and permanent;

whichever is more, subject to a maximum of 5 years; provided that the weightage so assigned does not exceed the total non­fortuitous service rendered by the officer in Group ‘B’.”

12. Before the CAT, it was urged by the Railways and the

intervener that  N.R. Parmar’s  case (supra) was not

applicable because weightage of 5 years, as additional years of

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seniority was to be given to the promotees and in this behalf

reference was also made to the Indian Administrative Service

(IAS) (Regulations of Seniority) Rules, 1987 wherein also State

Civil Service Officers who are inducted into the IAS are given

some weightage while fixing their ‘year of allotment’.  The CAT

held that in the scheme of IAS any vagaries or arbitrariness

due to the date when the recruitment process is completed is

removed whereas  in the railways reference to seniority and

inter se seniority on the basis of DITS is subject to

unintended delays in the completion of one recruitment

process  or the  other  and this  may even be due to  human

manipulation.   The relevant portion of the order dated

03.05.2016 of the CAT reads as follows:

“19…….Therefore, the basic philosophy of NR Parmar of removing arbitrariness because of date on which an action  is completed with respect  to the two streams holds good in this case also.   Policy making is within the domain of the Executive, but this has to be reasonable and rational.  Since there is obvious scope for  arbitrariness in the  Railways  policy,  we  have to intervene in judicial review.   The Railways must align their policy in consonance with this fundamental philosophy of N.R. Parmar.

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20. Another serious anomaly we find from the respondents action is that while the ratio described for the DR and the promotees is 50:50, they have over the years inducted promotees about three times the number of direct recruits.  In the representation before the Chairman, Railway Board, the applicant has shown that from the  year  2001  to  2007 against  95 direct recruits, 376 promotees have been inducted. The chairman, railway Board has justified this on the ground that as per the government instructions, direct recruitment was curtailed to one­third for those years. Such government instructions cannot alter the basic principle of laid down ratio between the DR and promotes.  If downsizing was the objective, this has to be done keeping the ratio between DR and promotees intact. ……..

21. xxx xxx xxx

22. Thus, the  provisions  of the IREM determining inter se seniority based on DITS are clearly flawed and arbitrary.  Accordingly,  we quash and set  aside the impugned orders  dated 9/12.6.2015  (Annexure  A/8) and date 12.12.2014 (Annexure A/4) being contrary to the underlying principle emerging from the  Hon’ble Apex Court judgment in N.R. Parmar case as well as DOPT guidelines in this regard, which mandate that wherever it is considered necessary to follow different principles for inter se seniority, consultation should be made with the DOPT.  The respondent are directed to recast the seniority afresh and take necessary action to make corrections  in  the  IREM in the  light  of the aforesaid observations within a period of four months from the date of receipt/production of a copy of this order.”

13. Shri Prabhat Ranjan Singh challenged the order of the

CAT before the Patna High Court by filing Writ Petition No.

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10669 of 2016 along  with one Shri  Girish  Kumar.   This

petition was dismissed vide order dated 12.05.2017 and one

of the main grounds for dismissal of the petition was that the

circular  of the DoPT dated 04.03.2014 was binding on the

Railways.   The Patna High Court went on to hold that the

IREM is not statutory in nature and is only a codified set of

guidelines.   It further went on to hold that the power of the

Railways to frame rules under Rule 201 of the Indian Railway

Establishment Code (for short  ‘IREC’), which is statutory in

nature, is only confined to Group­C and Group­D posts.

Therefore, the Railways are bound by the OM issued by the

DoPT.   This judgment has been challenged by Shri Prabhat

Ranjan Singh.  

14. It would also be pertinent to mention that pursuant to

the direction issued by the CAT on 03.05.2016, the Railways

amended   Rules 327 to 341 of the IREM Vol­1 by removing

reference to ‘DITS’ and introduced the concept of ‘year of

allotment’.  According to the Railways, as per the amended

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rules inter se seniority between direct recruits and promotees

shall be determined and fixed on the basis of ‘year of

allotment’ and not on the basis of ‘DITS’.  The amendment is

applicable in all cases of fixation of  inter se  seniority of

promotee officers from the panel of 2012­2013 onwards and

for Direct Recruit 2006 examination onwards.  Thereafter, the

seniority  has  been re­fixed and only the  promotee  officers,

who have been allotted 2008 as the ‘year of allotment’ have

been given seniority over the direct recruits and those

promotee officers who have been allotted 2009 as the year of

allotment have been ranked en bloc junior to the direct

recruits of the year 2009.  Thus, the anomaly pointed out by

the CAT has been removed and the system which is followed

in the IAS is being applied even in the Railways.   

15. This development took place on 05.03.2018, during the

pendency of this petition.  According to the direct recruits, the

action of the Railways in placing some of the promotee officers

above the direct recruits was violative of the order of the CAT

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and they, accordingly filed contempt petition no.

050/00070/17 before the CAT which was dismissed vide

order dated 02.04.2018.   The CAT held that in its order the

reference to  N.R. Parmar’s  case (supra) was regarding

removing the arbitrariness due to ‘DITS’ and bringing it in line

with the concept of ‘vacancy year/allotment year’, which does

away with the problem and the revised policy after

amendment fixes the  ‘allotment/vacancy year’ for  fixing the

seniority and not ‘DITS’.  It also held that since this Court is

seized  of the  matter, the  parties can  place their grievance

regarding the legality of the revised policy before us. The

contempt petition was dismissed.

16. Aggrieved by the order of the CAT, the direct recruit filed

writ petition being CWJC No. 6489 of 2018 (R.K. Kushwaha v.

Union of India & Ors.) before the Patna High Court for

quashing/setting aside the order dated 02.04.2018 passed in

the contempt petition.  Vide order dated 03.05.2018, we have

transferred the aforesaid writ petition to this Court.

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17. We have heard learned counsel for the parties.   Before

us Shri P.S. Patwalia, learned senior counsel for the appellant

(Prabhat Ranjan Singh) submitted that the petition has been

rendered infructuous in view of the amendment to Rules 327

to 341 of the IREM Vol­1.   He, however, submitted that the

observations made by the CAT and the High Court that the

DoPT circulars are binding on the  Railways and that the

observations of the Patna  High Court that IREM has no

statutory force are wrong and are liable to be set aside.   On

the other hand, Shri Mukul Rohatgi and Shri Guru Krishna

Kumar, learned senior counsel appearing for the direct

recruits submitted that the IREM, which provided for giving

weightage in seniority to the promotees, was set aside by the

CAT.   Therefore, by still continuing to give weightage to the

promotees the contemnors have committed contempt of order

of the CAT.  It has also strenuously been urged before us that

the rules which provide for giving weightage to the promotee

officers are totally illegal and arbitrary.  Shri Maninder Singh,

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learned Additional Solicitor General submitted that the

Railways are empowered to frame their own rules.  According

to him, even the IREMs are issued with the concurrence of

the President of India in terms of Article 309 of the

Constitution of  India and framed under the Constitution of

India.   

18. In our view, the following issues arise for decision:

I Whether the Railways is bound by the rules framed by

the DoPT or it can frame its own rules and whether the IREM

has statutory force?  

II Whether Shri R.K. Kushwaha, the direct recruit had laid

challenge to the rules, which provide for giving weightage in

the seniority to the promotee officers?

III Whether the findings of the CAT in respect of  N.R.

Parmar’s  case (supra) was limited to removing the

arbitrariness only in respect of ‘DITS’?

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IV Whether by issuing the memorandum dated 05.03.2018

amendment/modifying rules 327­341 the Railways have

violated the order issued by the CAT?

I Whether the Railways is bound by the rules framed by the DoPT or it can frame its own rules and whether the IREM has statutory force?  

19. The CAT, in its order, held that the Railways are bound

by  the DoPT circulars.  The High Court  of  Patna has gone

further and has come to the conclusion that the Railways have

no jurisdiction to frame rules for Group A & B services.   The

High  Court has further held that the IREM rules are not

statutory in nature and are only guidelines having no binding

force.   On the other hand learned senior counsel for the UOI

has drawn our attention to the Government of India (Allocation

of Business) Rules 1961 framed under Clause 3 of Article 77 of

the Constitution of India.  Under these Rules business has

been allocated to different departments. As far as the DoPT is

concerned the relevant portion reads as under:­

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“I. RECRUITMENT, PROMOTION AND MORALE OF SERVICES

1.  ........

2. General questions relating to recruitment, promotion and seniority pertaining to Central Services except Railways Services and services under the control of the Department of Atomic Energy, the erstwhile Department of Electronics, the Department of Space and the Scientific and Technical Services under the Department of Defence Research and Development.

3. ...........

4. General policy matters regarding classification of posts and grant of gazetted status in relation to Services other than Railway Services.

5. Recruitment of ministerial staff for the Government of India Secretariat and its attached offices except that for the Department of Railways, the Department of Atomic Energy, the erstwhile Department of Electronics, and the Department of Space.

6. Appointment of non­Indians to Civil posts under the Government of India  except posts under the Department of Railways,  the Department of Atomic Energy, the erstwhile Department of Electronics and the Department of Space.

      xxx              xxx xxx

IV. SERVICE CONDITIONS

21. General questions (other than those which have a financial bearing including Conduct Rules relating to All India and  Union  Public Services  except in regard to services under the control of the Department of Railways,  the Department of Atomic Energy, the erstwhile  Department of Electronics and the Department of Space).

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22. Conditions of service of Central Government employees  (excluding those under the control of  the Department of Railways,  the Department of Atomic Energy, the erstwhile Department of Electronics, the Department of Space and the Scientific and Technical personnel under the Department of Defence Research and Development, other than those having a financial bearing and in so far as they raise points of general service interest).

23(a) – (d)   …............

24. ................

25. ................

26. ................

27. General policy regarding retrenchment and revision of temporary Government servants except  those under the Department of Railways.”

      xxx               xxx                xxx           

20. A perusal of  the Allocation of  Business Rules, 1961,

especially the highlighted portion leaves no manner of doubt

that the Railways is specifically excluded from the ambit of

the scope of business allocated to the DoPT, whether it be

for classification of  posts,  recruitment of  ministerial  staff,

appointment of non­indians to civil posts, fixing of service

conditions, including conduct rules, general policy regarding

retrenchment and revision of temporary service of the

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Railways etc., and as such the DoPT cannot issue binding

circulars upon the Railways.   We may make it clear that if

the  DoPT issues a circular and the  Railways specifically

accepts the  circular  or  makes it applicable, then  such  a

circular may apply but if the circular is not made

specifically  applicable then it  has  no force so far  as the

Railways and its employees are concerned.

21. In the same Allocation of Business Rules, 1961 while

allocating business to the Ministry of Railways power has

been given  to it to  deal  with  all  matters including those

relating to Revenue and Expenditure.   Therefore, the

Ministry of Railways has the power to lay down conditions of

service for its employees.

22. The Ministry  of  Railways  has  a  set  of  codified  rules

known as the Indian Railways Establishment Code (IREC).

It is not disputed before  us that as far as the IREC is

concerned the same is notified under the proviso to Article

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309 of the Constitution and is statutory in nature.

However, it has been urged on behalf of the direct recruits

that IREM does not have any statutory force.  It would also

be pertinent to mention that the DoPT itself has issued a

office memorandum dated 16.02.2018 stating that the

matters relating to recruitment,  promotion  & seniority in

respect of Ministry of Railways do not fall within the

jurisdiction of the  DoPT.  We need not refer to all the

documents referred to because it  is apparent from a bare

reading of the Allocation of Business Rules, 1961, that the

service conditions of the employees of the Railways are

governed by the rules framed by the Railways which will not

only include the IREC but also the IREM.

23. Even with regard to the IREM it has been urged by the

learned ASG that these rules and the various

modifications/amendments  issued from time to time to the

IREM are also issued under the proviso to Article 309 of the

Constitution and as such they have the statutory force.

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24. We  have gone through the various communications

with regard to the IREM and find that all of them make a

mention that they have been issued in exercise of powers

conferred by proviso to Article 309 of the Constitution.  We

may specifically refer to only one document, i.e.,

amendment to the IREM Rules 327 to 341 made in

pursuance to the judgment delivered by the CAT on

03.05.2016.   The relevant portion of the communication

reads as follows:­

“.........

In exercise of the powers conferred by the proviso to  Article  309 of the Constitution  the President have further decided that principles for inter­se­seniority of Direct Recruit Group ‘A’ officers and promotee Group ‘B’ officers inducted into Group ‘A’ Junior Scale effective from the panel year 2012­13, stands modified/amended as per Annexure­I.

.........”

This leaves no manner of doubt that the rules under

IREM Vol.1 are also statutory rules.

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25. In view of the above, there can be no manner of doubt

that the Railways is not bound by the memorandum issued

by the DoPT and are empowered to frame its own rules to

lay down the service conditions of its employees.   We also

hold that the IREM has statutory force and has been issued

in exercise of powers vested under the proviso to Article 309

of the Constitution.

II Whether Shri R.K. Kushwaha, the direct recruit had laid challenge to the rules, which provide for giving weightage in the seniority to the promotee officers?

26. As  far  as  the second question  is  concerned we may

note that we have already quoted the prayer clause of OA

No.460 of 2016 filed before the CAT.  In the said OA there is

not  even a  whisper  of  a  challenge to the  policy  of  giving

weightage to the  promotees.   In fact that issue  was  not

raised before the CAT.  The case set up by the direct recruits

before the CAT was that since the requisition for

recruitment had been issued on 23.10.2007, they should be

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granted seniority from that  date in  view of the judgment

rendered by this Court in N.R. Parmar’s case (supra) read

with DoPT OM dated 04.03.2014.  It has been urged by Shri

Guru Krishna Kumar, learned senior counsel appearing for

the direct recruit that prayer 8.3 in which it is prayed that

corrigendum/amendment/corrections slip be issued in

IREM Volume­I is itself a prayer to quash the said IREM.

We are unable to accept this contention.  If the direct recruit

wanted to lay challenge to the policy of giving weightage to

promotees then the basis for the challenge had to be made

in the original application and the rule granting such

weightage  had  to  be  specifically challenged in the  prayer

clause.  The promotees who were liable to be affected should

have been arrayed as respondents.   Such a challenge

cannot be entertained from the back door by merely alleging

that corrigendum/ amendments/corrections to the IREM be

issued.  Neither the corrigendum, nor the amendment or the

corrections  could result in the  quashing  of rule  granting

weightage.   Furthermore, if prayer 8.3 is read as a whole,

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what is prayed is that the correction be made with a view to

bring  the  IREM in  line with DoPT OM dated 04.03.2014,

which is based on the principle of law framed in  N.R.

Parmar’s case (supra).   

27. We may also note that before us the original

application filed by Shri R.K. Kushwaha has been produced

in which the main case set up was that in view of the law

laid down in N.R. Parmar’s case (supra) the date of sending

requisition for filling up the vacancies is the date from

which the direct recruits should be granted their seniority.

The following averments made by Shri Kushwaha in para

4.3. of his OA are relevant:­

“.........

4.3 That in this regard it is submitted that while the applicant was working in Group­A service of IRSSE, several Group­B officers i.e. 87 in number has been promoted/inducted in Group­A service of IRSSE vide order dated 12.08.2014 for the panel year 2012­13 and 2013­14  w.e.f 08.05.2014,  hence such  promote  officers are entitled to get the benefit of seniority w.e.f 08.05.2009 after giving weightage of 05 years whereas the applicant being  Direct Recruitee is entitled to get the benefit of seniority w.e.f 23.10.2007 i.e. from the date of requisition for filling up the vacancies of Group­A service in view of the decision given by the Hon’ble Supreme Court of India

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in the case of Union of India  Vs  NR Parmar in which the issue of seniority in between Direct Recruitee and Promotees have been settled on 27.11.2012 against which the Union of India has also filed Civil Review and the same has been dismissed on 07.08.2013.  .........”

28. This leaves no manner of doubt that the only case set

up by the direct recruit was that he was entitled to seniority

from 23.10.2007, the date on which requisition for filling up

the direct recruit posts was sent and the promotees after

being given due weightage of 05 years were entitled to

seniority w.e.f. 08.05.2009.  Therefore, he cannot now urge

that he had laid challenge to the rule providing for grant of

weightage to the promotees.

III Whether the findings of the CAT in respect of  N.R. Parmar’s  case (supra) was limited to removing the arbitrariness only in respect of ‘DITS’?

29. Before dealing with this issue we may note that we are

not at all in agreement with the interpretation sought to be

given by the direct recruits to the decision rendered in N.R.

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Parmar’s  case  (supra), that they are entitled to  seniority

from the date of requisition.  On a perusal of the judgment

in N.R. Parmar’s case (supra), we find that in that case this

Court was dealing with those situations where the process

of either direct recruitment or promotions takes an unduly

long time.   As per the then existing rules, the persons so

appointed/promoted would get seniority from the date when

they joined.   This Court found that this could lead to

arbitrariness on account of the fortuitous date of

appointment.   In certain cases, the process of recruitment

by a particular  mode would start  much earlier but for

extraneous reasons, selection by one mode would be very

quick and slow by the other mode.   Therefore, to eliminate

this anomaly and reduce arbitrariness, this Court laid down

that the  date  of requisition for filling  up the  posts  by  a

particular recruitment process could be taken as the year to

which seniority could be given to persons recruited under

that process.  However, the Court also clearly laid down that

this would apply only if the recruitment year is the same as

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the year of vacancy.   It is obvious that neither the

promotees nor the direct recruits can be given seniority from

a year when such vacancies do not even exist.   The Court

also laid down that the administrative authority should

ensure that recruitment process should be initiated during

the vacancy year itself.   

30. In this behalf, we may make reference to the following

observations of this Court in the case of  N.R. Parmar

(supra) :

“34.1. If the process of recruitment has been initiated during the recruitment year  (in which the vacancies have arisen) itself, even if the examination for the said recruitment is held in a subsequent year, and the result is declared in a year later (than the one in which the examination was held), and the selected candidates joined in a further later year (than the one in which the result was declared), the selected candidates  will be entitled to be  assigned seniority, with reference to the recruitment year  (in which the requisition of vacancies was  made). The logic and reasoning for the  aforesaid  conclusion (expressed in the  ON  dated  2­2­2000) is, if the  process of direct recruitment is initiated in the recruitment year itself, the selected candidate(s) cannot be blamed for the administrative delay, in completing the process of selection.

34.2. The words “initiation of action for recruitment”, and the words “initiation of recruitment process”, were

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explained to mean, the date of sending the requisition to the recruiting authority.”

31. In the present case though the requisition was sent in

the year 2007, the vacancies related to the year 2009 and,

therefore, the CAT as well  as the High Court rightly held

that the direct recruits were not entitled to promotion from

the year 2007.  The CAT only ordered that the arbitrariness

which may arise  due  to fixation of ‘DITS’  be  removed by

fixing the ‘year of allotment’ as the relevant criteria.

IV Whether by issuing the memorandum dated 05.03.2018 amendment/modifying rules 327­341 the Railways have violated the order issued by the CAT?

32.   We have quoted the order of the CAT hereinabove and

what the CAT ordered was that the IREM determining the

inter se seniority  based  on  DITS  was  clearly flawed  and

arbitrary.  The order dated 09.06.2015 and 12.12.2014 were

quashed and set aside being violative of the judgment of this

Court in  N.R. Parmar’s  case (supra) and the DoPT

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guidelines.   As held above there was no challenge to Rule

334 which provides for giving weightage to the promotees.

This Rule was not challenged directly or indirectly and the

CAT has not at all dealt with this Rule.  We may add that an

identical rule has been held to be valid by this Court in A.K.

Nigam   vs.   Sunil Misra2.   This judgment has been noted

by the CAT and yet the CAT did not discuss this judgment.

It is obvious that the CAT did not go into the validity of Rule

334.   All that the CAT held was that instead of the ‘DITS’

being the determining factor to determine the year of

promotion, the seniority would be determined with reference

to the ‘year of allotment’ following the principle of IAS Rules.

The  CAT rightly  dismissed the contempt  petition  holding

that the entire discussion with reference to  N.R. Parmar’s

case (supra) was regarding removing the arbitrariness due

to ‘DITS’ and bringing it in line with the concept of vacancy

year/allotment year  which does away  with the problem.

Thus the CAT itself has clearly held that it had not at all

2 (1994) Supp.2 SCC 245

31

dealt with the issue whether promotees were not entitled of

being granted weightage of 5 years service for determining

the seniority.  This question never arose before the Tribunal

and as such the action of the Railways  in  amending the

Rules to bring them in line with the judgment of the CAT by

removing ‘DITS’ as the determining factor for fixing seniority

and  introducing  the ‘year  of  allotment’  as the  criteria for

determining the seniority can in no manner be said to be

violative or against the order of the CAT.   In fact, the said

order is totally in line with the order of the CAT.

33. We may add that lengthy arguments have been

addressed on behalf of the direct recruits contending that

the rule which provides that weightage be given to the

promotees is arbitrary and in this regard reference has been

made to the judgment of this Court in P. Sudhakar Rao &

Ors.   vs. U. Govinda Rao & Ors3  and it is urged that in

view of this judgment the  decision  of this  Court in  A.K.

3 (2013) 8 SCC 693

32

Nigam’s  case (supra) is no longer good law.   On the other

hand both the learned ASG and the senior counsel for

appellants have urged that  A.K. Nigam’s  case (supra) still

holds the field as  P. Sudhakar Rao’s case (supra), was a

case decided in a fact scenario where there was no provision

for  granting  such weightage.   It  was also  urged  that the

practice of giving weightage to the promotees in the

Railways has been in vogue since 1955 and the railways has

justified its action of giving weightage to the promotees by

urging that the promotees are doing the same work in the

lower post as is being done by them after promotion.

Therefore, there  is no change in the nature of their work

after promotion and the benefit of weightage is given for the

experience which they have got for doing such work.  It has

also  been  urged that  most of the  promotees  are already

getting higher emoluments than are payable to the direct

recruits on their induction and this is also a factor taken

into consideration for granting this weightage.   We are not

going into these questions.  We have clearly held that there

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was no challenge to Rule 334 in the original application and

such a  challenge cannot  be countenanced  or entertained

either in contempt proceedings or on behalf of the

respondents while defending the appeal in this Court.   We

make it clear that we have not expressed any opinion on the

rival contentions of the parties on this issue.

34. The situation as on date is that rules have been

amended.  These rules have to be implemented.  Neither the

promotees nor the direct recruits have challenged these

rules.  We are therefore not going into other issues raised by

the parties.   

35. We dispose of the appeal by holding that the CAT had

only directed that instead of ‘DITS’, the ‘year of allotment’

should  be the  determining factor/criteria for  determining

the  inter se  seniority.  We further hold that there was

neither any challenge to Rule 334 of the IREM Vol. 1 in the

original application nor did the CAT go into this issue. We,

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accordingly uphold the order dated 02.04.2018 passed by

the CAT, Patna Bench dismissing the contempt petition filed

by the direct recruit Mr. R.K. Kushwaha.  Consequently, the

Transferred Case No. 52/2018 i.e. Writ Petition being CWJC

No. 6489/2018 before the Patna High Court is dismissed.

36. Applications for intervention/impleadment are

rejected.

37. The  contempt  petitions  and  all  pending  applications

shall also stand disposed of.

SLP (C) NO(S). 4144 OF 2018

38. This petition is directed against the interim order dated

29.01.2018 passed by the High Court of Madhya Pradesh,

Principal  Bench at Jabalpur in  Writ Petition  No. 299 of

2018.  The petition itself has been finally disposed of by the

35

High Court vide order dated 20.03.2018 and, therefore, this

petition is rendered infructuous and disposed of as such.

………………………..J. (Madan B. Lokur)

………………………..J. (S. Abdul Nazeer)

…………………………J. (Deepak Gupta)

New Delhi September 07, 2018