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PETITIONER: S.B.SARKAR AND ORS.

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT30/04/1990

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) MISRA RANGNATH

CITATION:  1991 AIR   27            1990 SCR  (2) 813  1990 SCC  (3) 168        JT 1990 (3)   361  1990 SCALE  (1)19

ACT:     Civil   Services:  Railways--South   Eastern--Cadre   of ASM/SM--.  Restructuring  of--Existence of  separate  cadres prior  to 1983 and change over to combined  system--Not  the same thing--Authorities to grant promotional benefits to SMs who exercised option prior to 1983.

HEADNOTE:     In  the South-Eastern Railway the cadre  initially  com- prised  of Assistant Station Masters at the bottom  and  the Station  Masters at the top. Initial appointment of ASM  was made  in  the scale of Rs.360-540.  The  promotional  ladder bifurcated into: (i) ASM to SM, and (ii) ASM to SM, both  in the scale of Rs.425-640 (non-selection), and then  Rs.455700 (selection); before becoming one common source for promotion to  Deputy Station Superintendent/SM Rs.550-750  (non-selec- tion)  Rs.700800  Station  Superintendent  (selection),  and Rs.840-1010  Station  Superintendent  (non-selection).   For moving  up the promotional ladder every ASM was required  to opt if he would proceed on the channel of ASM to ASM, or ASM to SM.     Later, re-structuring was done in ’C’ and ’D’ cadres  in the  scales,  designation and percentage; in  selection  and non-selection posts. Two alternatives were framed  described as  alternative ’I’ for the combined cadre, and  alternative ’II’  for the separate cadres; which were to be  adopted  by the  respective  zones  depending on  the  prevailing  cadre pattern.  For  ASM/SM two alternatives were provided  to  be adopted  by  the respective zones depending on  whether  the existing cadre was separate or combined. In alternative  ’I’ meant for the combined cadre SMs in the scale of  Rs.425-640 and  Rs.455-700 were designated as Deputy  Station  Superin- tendents  and  Station  Superintendents  in  the  scale   of Rs.540-750 and Rs.700-900 respectively.     Pursuant  to  the  re-structuring,  the  Chief  Personal Officer  issued  a letter to the Divisional  Manager,  South Eastern  Railway that it has been decided  that  alternative ’I’  enunciated by the Board shall be followed on  the  said railway, and the existing system of calling for options from ASMs for the post of SMs/ASMs in the higher grade was  being dispensed  with  seniority of staff in each grade  shall  be

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determined on 814 the basis of non-fortutious service rendered in such grade.     Since  the  aforesaid direction of the  Chief  Personnel Officer worked to the prejudice of numerous persons who  had exercised  their options to the promotional channel of  Sta- tion Master, they approached the High Court/Tribunal by  way of writ petitions/claim petitions but without any success.     Some  of  these disputes came up in appeal  before  this Court  which were disposed of on July 30, 1987 by  directing the Railway Board to consider if the Chief Personnel Officer while  implementing its scheme deviated from its terms,  and implemented it to the prejudice of those appellants.     The appellants-Station Masters of South/Eastern  Railway aggrieved  by the implementation of the scheme of  re-struc- turing by the Chief Personnel Officer approached the Central Administrative Tribunal, which rejected their claim, as  the implementation  was beneficial to the majority, and  further found  that the alternative ’I’ of the scheme meant for  the combined cadre was rightly adopted as the cadre of Assistant Station  Masters  and Station Masters in  the  South-Eastern Zone was combined before 1983.     The appellants in their appeal to this Court  challenged the  correctness of the aforesaid findings and also  claimed that the implementation of the scheme was highly unjust  and inequitable.  It  was claimed that if  alternative  ’I’  was adopted then it should have been given full play and the SMs should  have been placed en bloc in the re-designated  posts without any further process of selection.     Disposing  of the appeal by directing that the  respond- ents  shall grant promotional benefit to those 204  SMs  who have exercised option before 1983, this Court,     HELD:  1. It is not disputed that in the  South  Eastern Zone the practice of obtaining option by ASM for promotional channel was in vogue before 1983. The dispute was about  the time  when it was exercised. According to the  appellant  it was at the time of recruitment and appointment even on  pain of disciplinary action whereas according to the officials it used to be offered when vacancy arose according to  seniori- ty.  Unfortunately, it was accepted by the Tribunal as  well without any foundation in the record by shutting its eyes to the letters dated 14th May, 1965 and 20th May, 1970,  issued by the Divisional 815 Superintendent which shows that options were required to  be exercised  by ASMs irrespective of availability  of  vacancy before  the  target date, and if it was not  exercised  then they were liable to disciplinary action. [818F-H; 819A]     2.  Even the claim of the Administration that  cadre  of ASM/SM  was  combined cadre in South East  Railway  was  not substantiated by any document, letter or order. On the other hand,  the letter dated 10th May, 1984 issued by  Additional District Pay Commissioner to the General Manager  recognises existence of separate cadre. [819F]     3. Existence of separate cadres prior to 1983 and chang- ing  over  to  a combined system is not the  same  thing  as claiming  that the cadre which existed prior to 1983  was  a combined cadre. [820C]     4. Since the cadre in South Eastern Railway was a  sepa- rate  one,  the Chief Personnel Officer  deviated  from  the scheme  by applying alternative ’I’ which was to be  adopted by  a zone where combined cadre existed and  if  alternative ’I’ was adopted then the SMs should have been  automatically designated as Deputy Station Superintendents and they should not  have  been  subjected to the  selection  procedure.  In

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alternative  ’I’  SM in scale  of  Rs.425-640  automatically stood  redesignated as Deputy Station  Superintendents.  But the  scale does not find place in alternative II. But-  both the employees unions have accepted the implementation of the letter of the Chief Personnel Officer as h is beneficial  to a  majority of the employees. Therefore, it may not be  dis- turbed.  At  the same time all those 204 employees  who  had opted  before  1983 must be entitled to  the  benefit  which would have been available to them on their options. [820F-H]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2054  of 1990.     From  the  Judgment and Order dated 23.1.  1987  of  the Central Administrative Tribunal, Calcutta in Transfer Appli- cation No. 1263 of 1986.     A.P.  Chatterjee,  G.S. Chatterjee (NP)  and  Ms.  Ratna Bhattacharya for the Appellants.     R.B.  Dattar  (NP), Anil Dev Singh,  B.K.  Prasad,  C.V. Subba Rao and R.B. Misra for the Respondents. 816 A. Bhattacharya for the Intervener. The Judgment of the Court was delivered by R.M. SAHAI, J. Special leave granted.     Station Masters of South Eastern Railways are  aggrieved by  implementation  of the scheme of re-structuring  by  the Chief Personnel Officer framed by the Railway Board for  ’C’ and  ’D’ cadre. Their claim was not accepted by the  Central Administrative  Tribunal  as  implementation  as  such,  was beneficial to the majority. It was further found that alter- native  ’I’ of the scheme meant for the combined  cadre  was rightly  adopted  as the cadre of Assistant  Station  Master (ASM) and Station Master (SM) in the South Eastern Zone  was combined  before 1983. The appellants have  challenged  cor- rectness of these findings. They also claim that implementa- tion of scheme is highly unjust and inequitable.     Prior to re-structuring the cadre comprised of Assistant Station Masters at the bottom and Station Superintendent  at the top. Initial appointment of ASM was made in the scale of Rs.360-540.  The promotional ladder bifurcated into (i)  ASM to  ASM and (ii) ASM to SM, both in the scale of  Rs.425-640 (non-selection)  and  then  Rs.455-700  (selection)   before becoming one common source for promotion to Deputy   Station Superintendent/SM   Rs.550-750   (non-selection)  Rs.700-800 Station  Superintendent (selection) and Rs.840-1010  Station Superintendent (non-selection). For moving up the promotion- al ladder every ASM was required to opt if he would  proceed on  the channel of ASM to ASM or ASM to  SM.  Re-structuring was  done in ’C’ and ’D’ cadres in the  scales,  designation and  percentage  in selection and non-selection  posts.  Two alternatives  were framed described as alternative  ’I’  for the  combined  cadre and alternative ’II’ for  the  separate cadres.  They  were to be adopted by  the  respective  zones depending on the cadre pattern prevalent there.     One of the principles visualised for group ’C’ was  that if  all posts in an existing grade were en bloc placed in  a higher grade the existing regular incumbents thereof were to be  allowed the higher grade without subjecting them to  any selection.  For ASM/SM two alternatives were provided to  be adopted  by  the respective zones depending on  whether  the existing cadre was separate or combined. In alternative  ’I’ meant for the combined cadre SMs in the scale of  Rs.425-640 and  Rs.455-700 were designated as Deputy  Station  Superin-

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tendents and 817 Station  Superintendents  in  the scale  of  Rs.550-750  and Rs.700-900  respectively.  Therefore, the  appellants  claim that  if  alternative ’I’ was adopted, then it  should  have been  given  full play and the SMs who were working  in  the aforesaid scales should also have been placed en bloc in the re-designated  posts without any further process  of  selec- tion.     In pursuance of the re-structuring, the Chief  Personnel Officer  issued  a letter to the Divisional  Manager,  South Eastern  Railway that it had been decided  that  alternative ’I’ enunciated by ’the Board shall be followed on the  South Eastern  Railway.  It  further provided  that  the  existing system of calling for options from ASMs for the post of SMs/ ASMs  in the higher grade was being dispensed with and  sen- iority  of  staff in each grade shall be determined  on  the basis  of  non-fortuitous service rendered  in  such  grade. Other  paragraphs  of the letter are not  relevant  for  the resolution  of the present controversy. Since the  direction of the Chief Personnel Officer worked to prejudice of numer- ous  persons who had exercised their options to  the  promo- tional  channel of Station Master, they approached the  High Court or Tribunal by way of Writ Petition or Claim  Petition but  without any success. Some of such disputes came up  for disposal  before this Court in Civil Appeal Nos. 1536-41  of 1987 which were disposed of by order dated 30th July,  1987, directing the Railway Board to consider if the Chief Person- nel Officer while implementing the scheme deviated from  its terms  and implemented it to the prejudice of  those  appel- lants. Since it was conceded that the scheme did not  affect present status and emoluments, this Court then made it clear that  implementation  should  not be done  to  prejudice  of appellants. It further protected the interests of those  who due  to wrong implementation might have got benefit  by  di- recting  that  they shall not be  disturbed.  The  direction given  by this Court was not complied with; therefore,  con- tempt  proceedings were filed the hearing of which  was  de- ferred till the disposal of the present appeals.     When  these appeals were taken up for hearing, it  tran- spired  that  total number of employees of  the  appellants’ category were not more than 206. Therefore, the Court passed the  order on 26th JUly, 1989 that if relief was granted  to these  206  employees.  by implementing the  scheme  in  the manner indicated in the earlier order of 1987, they shall be satisfied  and  the  litigation shall come to  an  end.  But nothing more was done and on 8th September, 1989 this  Court after  heating  learned  counsel for the  parties  at  great length  recorded  that  two questions were  required  to  be looked  into: (i) if the cadre of ASM and SM was  common  or different and (ii) if alternative ’I’ was adopted, then why 818 the SMs could not be re-designated and Deputy Station Super- intendents  and wanted response of the Administration  about them.  On both these aspects an affidavit was filed  by  the Chief  Personnel Officer. Regarding the first, it is  stated that  cadre of ASM and SM before restructuring was a  common one in South Eastern Railway for all ’intents and purposes’. It is explained that separate cadre meant that the ASMs  and SMs  would have sought their advancement separately,  ’in  a way  different from them in the entire non-gazetted  cadre’. And  then ASM and SM had to combine again to work as  Deputy Station Superintendent/SM. In respect of automatic re-desig- nation,  the explanation is that eight different  scales  of pay  existing before re-structuring were reduced to six  and

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designation  of  ASM in the scale of Rs.455-700  and  SM  in scale  of Rs.425-640, were abolished and the post  belonging to  six  revised designations have been distributed  on  the prescribed  percentage  basis.  It is  further  stated  that incumbents of the existing grades were promoted according to their  positions of seniority against the posts  which  were available  on percentage basis distribution. Therefore,  the contention  of  the  petitioners that  the  Station  Masters should be automatically designated as Deputy Station  Super- intendent was not correct. According to the Chief  Personnel Officer the appellants along with’ others in accordance with their seniority were required to be subjected to the  proce- dure  of selection/suitability test as per procedure  envis- aged  in the re-structuring scheme. The affidavit  also  at- taches  a  letter from the Railway Board  addressed  to  the General Manager, reiterating that the implementation of  the scheme by the Chief Personnel Officer was as intended by the Board.     Facts  as they ultimately emerge do not appear  to  have been  adequately  indicated in the affidavit of  the  senior officer  even when the aspects were pointedly  indicated  by this  Court.  It is not disputed that in the  South  Eastern Zone  the practice of option by ASM for promotional  channel was in vogue before 1983. Dispute is about the time when  it was exercised. According to appellant it was at the time  of recruitment  and  appointment even on pain  of  disciplinary action.  And option once exercised was irrevocable.  Whereas according  to officials it used to be offered  when  vacancy arose according to seniority. Unfortunately it was  accepted by the Tribunal as well without any foundation in the record by  shutting  its eyes to various letters which  clinch  the issue  in favour of the appellants, for instance the  letter dated  14th  May, 1965, and 20th May, 1970,  issued  by  the Divisional  Superintendent  Railway filed  before  Tribunal, produced  along  with  supplementary  affidavit  shows  that options  were required to be exercised by ASMs  irrespective of availability of vacancy before the target 819 date  and if it was not exercised then they were  liable  to disciplinary  action. And options, for or against could  not be  changed when once exercised. Where it was not  exercised on  or before the date it was deemed to have been opted  for ASM to SM. No effort was made to meet these letters; yet  an affidavit  was filed that option was exercised when  vacancy arose.     Options was thus exercised by appellants at the stage of appointment and recruitment. But it appears to have resulted in  dissatisfaction because even though the pay scales  were identical those who became SM were entrusted with superviso- ry  control and administrative responsibility. For this  the ASM recruited in the same batch must have been unhappy.  And the  SM must, also, have had the grievance as  promotion  in higher  scale was obviously delayed because the post  of  SM must  have been fewer in number as compared to  ASM.  There- fore,  it  was rightly abolished and was hailed by  the  two unions  of employees. But what happened to those who due  to irrevocable option exercised prior to 1983 had been  waiting for moving up and due to abolition of option and implementa- tion of the alternative ’I’ lost the opportunity while  ASMs junior  to them availed it? No provision for them was  made. Even  in this Court despite repeated directions,  the  Chief Personnel Officer or the Administration instead of resolving it have taken an uncharitable stand by asserting that  those who  opted  for  promotional channel of  SM  having  enjoyed benefit  of  day duty and supervisory control on  their  own

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volition  cannot be compared with ASMs whose working  condi- tions  were  different.  That is a person  who  worked  with greater  responsibility, and under strain must suffer.  What is  surprising is that such unreasonable stand is  supported even by the Board by relying on ’intents and contents’.     Even  the  claim  of the Administration  that  cadre  of ASM/SM  was  combined cadre in South East  Railway  was  not substantiated by any document, letter or order. On the other hand, from letter dated 10th May, 1984 issued by  Additional District  Pay  Commissioner to  General  Manager  recognises existence of separate cadre: "It  is evident from the details furnished in the  enclosure to your above quoted letter that your Railway had a separate cadre for ASMs/SMs and a decision had been reached prior  to the issue of the restructuring orders No. PC. III/80/ UPG/19 dated  29.7.83  to switch over to a combined  cadre,  except where in respect of any cadre or cadres avenues of  advance- ment have been prescribed by this Ministry, laying 820 down avenues of promotion in respect of non-gazetted Railway staff,  is within the competence of the General Managers  of the  zonal railways. Since the matter has been processed  on your railway in consultation and agreement of the two recog- nised  Trade Unions in the permanent Negotiating  Machinery, the  action  by your Railway to switch over  to  a  combined percentages scheme is within your powers. ’ ’ Existence of separate cadres prior to 1983 and changing over to a combined system is not the same thing as claiming  that the cadre which existed prior to 1983 was a combined  cadre. Explanation in the affidavit while replying to the issue  as to whether the cadre of ASM and SM was common or a different cadre is given thus: "The  Railway  Board’s letter dated 10.8.84 refers  to  only merging  these  two grades which should not  mean  that  the cadre was separate. In other words, the Railway Board’s said letter  means that the action of the Railway to combine  the two  grades also is in order and it does not imply that  the entire cadre was separate."     It cannot be accepted either as correct or satisfactory. Cadres  of  ASM/SM before 1983 was separate  and  different. With  abolition of option it has become one. The  letter  of the  Railway Board required revised  percentages  prescribed for  the  category depending on whether the  existing  cadre structure was a combined one or a structured one. Since  the cadre in South Eastern Railway was a separate one, the Chief Personnel  Officer  deviated  from the  scheme  by  applying alternative  ’I’  which was to be adopted by  a  zone  where combined  cadre existed.And if alternative ’I’  was  adopted then  the SMs should have been automatically  designated  as Deputy Station Superintendents and they should not have been subjected to the selection procedure.The explanation in  the affidavit  of  Chief Personnel Officer that  the  grade  Rs. 425-640  having been abolished as a consequence of  restruc- turing is not acceptable. In alternative ’I’ SM in scale  of Rs.425-640  automatically stood redesignated as Deputy  Sta- tion  Superintendent. But the scale does not find  place  in alternative ’II’. But both the employees unions have accept- ed  the  implementation  of the letter  of  Chief  Personnel Officer as it is beneficial to a majority of the  employees. Therefore,  it  may not be disturbed. At the same  time  all those 204 employees who had opted before 1983 must be  enti- tled to the benefit which would have been available to  them on theft options. 821     In  the result this appeal is disposed of  by  directing

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that  the  respondent authorities  shall  grant  promotional benefit  to those 204 SMs who had exercised  options  before 1983 in the same manner as it would have been if option  had not been abolished in accordance with the earlier  procedure provided they fulfilled the other requirements. While  doing so  those  who had been promoted shall not be  disturbed  as directed  by this Court on 30th July, 1987. Further if as  a result  of this exercise posts in higher grade  fall  short, the  respondents shall create adequate number of  additional posts  to overcome the difficulty. The respondents are  fur- ther  directed  to  complete all this  exercise  within  six months. Persons promoted in pursuance of this order shall be entitled  to all consequential benefits from the due  dates. Appellants shall be entitled to consolidated costs which are assessed at Rs.5,000 to be payable by respondent No. 2. N.V.K                                      Appeal   disposed of. 822