Issues related to applicability of DOPT’s OMs on Railways
A brief summary of legal fight between Group-‘A’ & ‘B’ officers of Railways
DOPT is a nodal agency on Group ‘A’ posts for all Ministries & Departments
The seniority based on DITS was challenged in court and court quashed and set aside fixation of seniority clause based on DITS
A brief summary of the case is as follows:-
Ø Based on Supreme Court’s judgment in N. R. PARMAR case, DOPT issued an OM dated 04.03.2014 to decide inter-se seniority of direct recruits and departmental Promotes in Central Services.
Ø Direct Recruit R. K. KUSHWAHA, IRSSE-2008 Exam batch represented Chairman, Railway Board (CRB) for implementation of DoPT OM dated 04.03.2014 in Railway services.
Ø CRB through his speaking order rejected the inter-se seniority guidelines of DoPT OM dated 04.03.2014 in connection with Railway services.
Ø R. K. KUSHWAHA filed O.A. No. 050/470/2015 against the speaking order in CAT/Patna.
Ø Vide its judgment dated 03.05.2016, CAT/Patna quashed and set aside CRB’s speaking order and directed Railway Board to amend Indian Railway Establishment Manual (IREM) which is not Statutory in nature on basis of DoPT OM dated 04.03.2014 and recast inter-se seniority accordingly.
The following observations made by CAT/Patna
* The DoPT’s OM dated 04.03.2014 is the follow-up action on findings of Apex Court in N. R. PARMAR case. Hence it is applicable to all departments.
* The applicant has in para 8.3 of his ‘Relief sought for’ asked for direction to issue corrigendum/amendment/correction slip in the IREM Volume-1. Therefore, we feel obliged to examine the concerned provisions relation to inter-se seniority between Direct and Promotees from Group ‘B’.
* Thus the provisions of the IREM determining inter-se seniority based on DITS are clear flaws and arbitrary. Accordingly, we quash and set aside the impugned orders dated 09/12.06.2016 and 12.12.2014 being contrary to the underlying principle emerging from Hon’ble Apex court judgment in N. R. PARMAR case.
* If downsizing was the objective, this has to be done keeping the ratio between Direct and Promotees intact. To that extent, their decision runs counter to the underlying philosophy of N. R. PARMAR case.
Affected party i.e. East Central Railway Promotee officers’ Association (ECRPOA) through writ petition no. CWJC 10669/2016 challenged the order of CAT/Patna in High Court/Patna but Patna High Court upheld the CAT/Patna judgment on 12.05.2017.
High Court Patna made following observations:-
* DOPT OM dated 04.03.2014 is the follow-up OM on the judgment of Apex Court in N. R. PARMAR case and also has vital significance.
* It is the principle laid down therein by the Apex Court; therefore it will be applicable to all departments.
* The decision of CRB, that they are not bound by the DOPT OM or the decision of the Apex Court is a misplaced kind of understanding of the law.
* Since the applicant is a Group-A officer and his recruitment is done by the UPSC. The DOPT OM has applicability across all Ministries and departments. As per DOPT OM 1959, if the Ministry of Railway wants to deviate from the principle, they had an obligation to seek clearance from DOPT in consultation with UPSC.
Indian Railway Promotes officer’s federation (IRPOF) through ECRPOA challenged the order of High Court/Patna in Supreme Court through SLP(C) 22444/2017 and they sought to stay on High Court’s order but vide its order dated 18.09.2017, Apex Court didn’t grant any interim relief.
Promotes Officers of Indian Railways have been submitted following points in SLP
* As per Government of India Allocation of Business Rules of 1961 the DOPT’s powers for determining matters such as recruitment, promotion, and seniority would not cover the Railway Services but would apply to employees of central services other than the Railways. In other words, the Railway Services have been clearly and expressly excluded from being governed by the DOPT. In fact, the Indian Railways Service is autonomous as it has been given the power to determine their service matters themselves.
* As per Government of India Allocation of Business Rules of 1961 the Railway was exempt from determination being done by the DOPT of the service conditions of its employees and that the issue of seniority vested with the Railways itself.
* In so far as procedural delay of direct recruits is concerned, the situation for promotes officers may be kept in mind as a yardstick since their panel for the vacancy of the year 2012-13 was approved only on 08.05.2014 instead of 31.03.2012 which was the prescribed date as per model calendar circulated by DOPT.
Meanwhile R. K. Kushwaha filed contempt petition no. 70/2017 in CAT/Patna as Railway Board didn’t implement the order of CAT/Patna and High Court/Patna.
In compliance with contempt petition no. 70/2017, Railway Board issued reversion orders of promotes officers and demoted Ad-Hoc JAG promotees as an interim measure.
Indian Railway Promotes officer’s federation (IRPOF) again approached Supreme Court with counter affidavit and requested for an early hearing on stay petition filed against reversion order of Railway Board. They again reiterated the same as mentioned below:
* As per Government of India Allocation of Business Rules of 1961, the DOPT would frame rules with respect to recruitment, promotion, and seniority pertaining to central services except for Railway services.
* The DoPT, in fact, has itself in various letters clarified that the instructions issued by the DoPT are not applicable to the Ministries/Departments.
* Railway Department is competent to frame their own rules for Railway Services without consulting the DOPT and Administrative Reforms. However, the said recruitment rules of all the eight organized services were formed in consultation with DOPT and UPSC.
* Provisions of antedating seniority are present in All India Services, Indian Postal services etc.
Ø Vide its order dated 15.12.2017, Supreme Court didn’t provide any interim relief to promote officers and also directed Ministry of Railway to revert regular promotion after 12.07.2016 also.
Ø Supreme Court also made DOPT as a party in the case and next hearing date is fixed on 02.02.2018.
Ø After getting clarification from DOPT regarding not implementation of DOPT’s OMs in Railway Services on dated 19.12.2017, Railway Board vide letter dated 20.12.2017 approached CAT/Patna for rectification of judgment as per new declaration was given by DOPT.
Some facts about Railways promotee officers:
Railways Board Secretariat Service (RBSS) i.e. group ‘C’ staff manage the cadre of Group ‘A’ services of Railways.
All group ‘B’ officers of Indian Railways are born from group ‘C’ employees through internal departmental exam i.e. no direct recruitment done for Group ‘B’ posts.
After completion of three years of Group ‘B’ service they become eligible for induction into Group ‘A’ service.
There is a unique system of providing maximum 5 years antedating benefit to promotee officers during induction to Group ‘A’ service.
Due to three years eligibility criteria and with 5 years antedating clause many promotee officers got their notional Group ‘A’ seniority directly from Group ‘C’ service.
For example S. RAYPA of mechanical deptt posted in RDSO, Lucknow got promotion from Group ‘C’ to Group ‘B’ on 30.10.2009 and after induction to Group ‘A’ with antedating clause Railway Board fixed his Group ‘A’ seniority from 30.10.2009 i.e a group ‘C’ employee directly inducted into Group ‘A’ cadre.
IREC (Indian Railway Established code) :
The ‘State Railway Establishment Code’, Vol. I was originally published in September 1940. Subsequently, four editions were brought out as ‘Indian Railway Establishment Code’, Volume I in 1945, 1951, 1959 and 1971 respectively. The 1971 edition has now been revised to incorporate all amendments issued up to 31-12-1983 in respect of relevant provisions and is issued by the President in the exercise of powers conferred on him by the proviso to Article 309 of the Constitution of India.
POWER TO FRAME RULES
123. The Railway Board have full powers to make rules of general application to Group ‘C’ and Group ‘D’ railway servants under their control.
201. Recruitment to Railway Services Group ‘A’ all first appointments to a Group ‘A’ Post in Railway Service shall be made by the President on the recommendation of the UPSC from time to time in accordance with the rules framed by him. The General Managers may confirm an officer in Group ‘A’ on probation, in his post if he has satisfactorily completed his probationary period.
General Conditions for Recruitment
219. The recruitment rules may provide inter-alia for-
(i) qualifications, age and the scales of pay applicable for the various posts in the service and important conditions of service, like leave, pension, non-contributory Provident Fund benefits, etc;
(ii) no male candidate who has more than one wife living or no female candidate who has married a person having already a wife living shall be eligible for appointment to a railway service, unless the competent authority exempts the candidate from the operation of this rule;
(iii) the proportion of vacancies to be filled by direct recruitment and promotion of railway servants from subordinate services;
(iv) in the case of probationers, consequences of failure to pass prescribed departmental examinations, if any, e.g. loss of appointment, stoppage of increments etc;
(v) passing obligatory language examination whenever prescribed in the recruitment regulations for each service in Group ‘A’.
Note: In the case of recruitment to Group ‘A’ and ‘B’ posts, the rules should be published in the Gazette of India in the section allotted to the Statutory Rules and Orders, viz., Part II Section 3.
Ante-dating Rules
Ante-dating rules are present in AIS and in those Central services where provision has approval as statutory status under Art. 309. For Railway, Recruitment Rules and IREC have granted statutory status under Art. 309 and ante-dating seniority rule is not present in present RR and IREC.
East Central Railway Promote officers’ Association (ECRPOA) has mentioned the 9th report of the chairman of the committee on subordinate Legislation on Railways in SLP. In the reported issue related to antedating, seniority was discussed.
However para 45 at page no. 59 clearly states that-
“Where statutory Rules were silent the executive instructions could be issued and those instructions could be examined and scrutinized by the judiciary, if anybody challenged them.”
Note: The seniority based on DITS (fixation of seniority-based upon 5 years anti-dating clause) was challenged in court and court quashed and set aside fixation of seniority clause based on DITS.
Comparison of services:
Business allocated to DOPT under Allocation of Business Rule 1961 (page no. 115-118)
‘General questions’ relating to recruitment, promotion, and seniority.
Para-2: “General questions relating to recruitment, promotion, and seniority pertaining to Central Services except for Railway 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.”
The above instruction states about “General Questioning” on recruitment, promotion, and seniority. It is not related to the General policy of recruitment, promotion, and seniority. That means no one can ask questions/clarification/send queries on above-said matters pertaining to Railway ministry directly from DOPT. Therefore for any communication/clarification pertaining to railway services, only Railway can give reply/respond.
New Submission in SLP
Petitioners have relied on DOPT OM dated 28.03.2017 in their new submission in SLP. The letter shows that K. K. B. Gupta as a railwayman asked a query about his Non Functional Selection Grade promotion from DOPT directly. In reply to the said query, DOPT simply quoted para-2 of business allotted under allocation of business rule 1961 and has advised K. K. B. Gupta that question/clarification related to promotion of railwaymen is not comes under business allotted to DOPT. Thereafter DOPT also clarified that in future, any query related to above promotion, you can only do the correspondence with Administrative Ministry i.e. Railways, not with us.
Service Conditions
Para 21 and 22: There is a big difference between service conditions/conduct rules and service rules/recruitment rules. Since service conditions purely depend upon nature of business allocated to a particular ministry. Similarly, conduct rules also frame in consonance with service conditions. In case of Railways as a national transporter, safety and security of citizens are paramount priorities while executing the service. Breach of any safety norms leads to termination of service/job. This type of discipline/service condition is rarely found in other Ministries/Departments. Therefore, due to different nature of service conditions/Jobs, para 21 and 22 of subjects allotted to DOPT under allocation of business rules 1961, exempted Railways for framing their own service conditions as per their requirement.
Service rules/Recruitment rules
Para 23: Whereas, service rules/recruitment rules is describe the method of recruitment, fixation of seniority, stages of promotions etc for a particular service. Para 23 of subjects allotted to DOPT under allocation of business rules do not provide any exemption to Railways regarding administration of service rules/recruitment rules.
Note: As per DOPT letter no. AB.14017/13/2013-Estt. (RR)(1349), Service Rules are Recruitment Rules for any of the Organized Central Services covering many aspects including the Constitution of services, seniority, probation and other conditions of service. Whereas, Recruitment Rules are rules notified under the proviso to Article 309.
Senior and Middle management posts
Para 37 and 38: Section V of the said paras clearly states about Senior and Middle management posts, that is specifically related to group ‘A’ central services posts and respondent no. 1 also belongs to Group ‘A’ central services. Here, Railway has not been exempted on matters related to Senior and Middle management posts within the purview of DOPT. Which means DOPT is a nodal agency on above-said matters i.e. Group ‘A’ posts for all ministries/Departments.
Career planning and manpower planning
Para 42(a): Again, as per para 42(a) of section IX of said DOPT subjects tells about career planning and manpower planning i.e. structure of services, cadre strength, seniority and promotions norms etc. In this subject, Railways has also not been provided any exemption and it is treated like other Ministries/Departments.
Letters show the applicability/authority of DOPT OMs on Railways with respect to Recruitment, Promotion, and seniority.
Note:
1. Department of Atomic Energy has been excluded from the purview of DOPT in a subject related to General Question on seniority, promotion, service conditions etc. However as per RTI, Department of Atomic Energy accepted that they have received DOPT OM dated 04.03.2014 and they are following guidelines of this OM.
2. Ministry of Corporate Affairs has accepted that inter-se seniority of Group ‘A’ Officers in Senior Time Scale as well as Junior Administrative Grade has been revised on basis of DOPT OM based upon Apex Court’s judgment in N. R. PARMAR case.