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Wednesday, February 18, 2015

In our opinion, respondent no.1 was rightly not promoted to the higher group because he was not in the highest grade of group D. Respondent no.1 was in a lower grade whereas respondent nos.2 and 3 were in the highest grade of group D. Without getting promotion to the highest grade in his own group D, the said respondent could not have claimed promotion to a higher group, i.e. group C. Respondent no.1 was working as a substitute Porter, which is the lowest grade in group D, whereas respondent nos.2 and 3 were working in the grade which was much above than the grade in which respondent no.1 was working, though they had been appointed later in a point of time than respondent no.1 in the railway service. As stated hereinabove, seniority list for employees working in different grades should be different and there cannot be any common seniority list for all the employees working in one particular group. 25. We, therefore, set aside the impugned judgment affirming the order of the Tribunal and also direct that according to the provisions of the aforestated paras contained in the Manual, the appellants shall prepare different seniority lists for employees working in different grades.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.2532 OF 2010

Union of India & Ors.                        ... Appellants

                                   Versus
V.K. Krishnan & Ors.                         ... Respondents

                                    WITH

                         C.A. Nos. 1972-1973 of 2015
                   (@ S.L.P. (C) Nos.10172-10173 of 2012)

                                    WITH

                         C.A. Nos. 1974-1975 of 2015
                   (@ S.L.P. (C) Nos.14651-14652 of 2012)

                                    WITH

                         C.A. Nos. 1976-1977 of 2015
                   (@ S.L.P. (C) Nos.19708-19709 of 2012)


                               J U D G M E N T

ANIL R. DAVE, J.

      Leave granted in all the special leave petitions.

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



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

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

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

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

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



8.     Union  of  India,  the  appellant  herein,  was  aggrieved   by   the
aforestated order passed by the Tribunal and had, therefore, approached  the
High Court of Kerala by filing O.P. No.14500 of 2003.  Vide  judgment  dated
27th November, 2007, the Original Petition filed by the Union of  India  has
been dismissed and therefore, the Union  of  India  has  filed  the  present
appeal.

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

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

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

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

13.   Para 180 of the Manual, which relates to promotion  to  higher  grades
in group D and C posts, reads as under :

"180. Transportation (Traffic) and  Commercial  Department.  -  All  railway
servants in the lowest  grade  should  be  eligible  for  consideration  for
promotion to  higher  grades  in  both  the  Transportation  and  Commercial
brnches.  Applications should be invited from  amongst  categories  eligible
for promotion from both the branches.  All Railway servants who  apply  will
be considered.   An adhoc seniority list will be prepared on  the  basis  of
length of continuous service in the grade  and  suitable  men  selected  and
placed on a panel  for  training.   Systematic  and  adequate  training  and
examinations    or    tests     must     precede     actual     promotions."
(emphasis supplied)

Relevant portion of para 189, which pertains to promotion to a higher  grade
in group C, is as under:
"189.   Promotion to higher grades in Group 'C' :-
Railway servants in Group 'D' categories  for  whom  no  regular  avenue  of
promotion exists 33-1/3% of the vacancies in the lowest grade of  Commercial
Clerks, Ticket Collectors, Trains Clerks, Number Takers, Time Keepers,  Fuel
Checkers, Office Clerks, Typists and Stores Clerks etc. should be  earmarked
for promotion.  The quota for promotion of Group 'D' staff in  the  Accounts
Deptt.   to   Group   'C'   post   of   Accounts   Clerks   will   be   25%.
.................................."

Para 320 of the Manual reads as under :

"320. RELATIVE SENIORITY OR EMPLOYEES IN AN INTERMIDIATE GRADE BELONGING  TO
DIFFERENT SENIORITY UNITS APPEARING FOR A  SELECTION/NON-SELECTION  POST  IN
HIGHER GRADE.
When a post (selection as well as non-selection) is  filled  by  considering
staff of different seniority units, the total length of  continuous  service
in the same  or  equivalent  grade  held  by  the  employees  shall  be  the
determining factor for assigning inter-seniority irrespective  of  the  date
of confirmation of an employee with lesser length of continuous  service  as
compared to another unconfirmed employee with longer  length  of  continuous
service.  This is subject to the proviso that  only  non-fortuitous  service
should be taken into account for this purpose."

14.   Let us now look at the provisions of para 180  of  the  Manual  first.
The said para pertains to promotion to higher grades in group D and group  C
posts.   According to the said para, all railway  employees  in  the  lowest
grade should be eligible for consideration for promotion  to  higher  grades
in the transportation and commercial branches.  The said para further  deals
with a preparation of seniority list.  According to the  said  para,  an  ad
hoc seniority list is to be prepared on the basis of  length  of  continuous
service in the grade and for the purpose of promotion, a suitable person  is
selected and placed on a panel of training. The aforestated content of  para
180 clearly denotes  that  seniority  lists  of  the  employees  are  to  be
prepared on the basis of length of continuous service in  different  grades.
This clarifies  that  there  cannot  be  one  seniority  list  for  all  the
employees working in different grades in one  particular  group.   In  other
words, there would be different seniority lists in one particular group  and
each  seniority  list  will  contain  list  of  employees  working  in   one
particular grade or there may be different sub-seniority lists of  employees
working in different branches of one grade. Promotion  will  be  given  from
lower grade to higher grade in one group and  for  that  purpose,  seniority
list of the lower grade will be taken into  account.   Once  a  person  gets
promotion to the higher grade, his name will be included  in  the  seniority
list of the employees of the higher grade.  For clarity once again,  we  may
give an illustration that a person who is in  grade  IV,  as  hypothetically
stated hereinabove, upon getting promotion to grade III, would get his  name
included in the seniority list of employees working  in  grade  III  and  he
would be eligible to be promoted to grade II.  It may happen that  a  person
working in grade IV, who has not  been  promoted  for  whatever  reasons  to
grade III, though having longer service  as  an  employee  working  in  that
group, may not get promotion to grade II because  he  is  still  working  in
grade IV and in such an event, a person who might be having  lesser  service
in grade III than the employee having a longer service in  grade  IV  or  in
that group, may get promotion to grade II.  From grade II, an employee  gets
promotion to grade I and thereafter he gets promotion to  the  lowest  grade
in the higher group.  This appears to be the normal mode of promotion.

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

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

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

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

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

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

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

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

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

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


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

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


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

.......................................J.
                                                              (ANIL R. DAVE)



   .......................................J.                          (SHIVA
                                                                KIRTI SINGH)
NEW DELHI;
FEBRUARY 17, 2015.

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