Uday Kumar Varma, Member (A).
1. Three applicants have jointly filed the present Original Application, praying for the following reliefs:-
'i) That impugned clarification dated 14.6.2013 be quashed and set aside in the interest of justice;
ii) That respondents be directed to grant applicants the benefit of ante-date seniority of 5 years as is being given to other Group ‘B’ officers belonging to so-called ‘Organised Services’ on induction into Group ‘A’ services;
iii) That applicants be held entitled to Regular Adhoc promotion to JAG w.e.f. 19.05.2012;
iv) That applicants be held entitled to all consequential benefits/reliefs, in the interest of justice like parity with other organized services with back date as from the date the benefit is accrued to them'.
2. Facts as projected by the applicants are they were appointed to Assistant Programmer Group ‘C’ in the years 1988 & 1991 and thereafter they were promoted as A.E.D.P.M. Regular Group ‘B’ on 13.5.1998 and again they were promoted as E.D.P.M. Regular Group ‘A’ senior scale on regular basis with effect from 19.5.2009. The applicants have stated that as per Railway Board letter dated 29.12.1992, 6 years Group ‘A’ service was required for ad hoc promotion to JA grade in Railwa
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y services/different Railway Group ‘A’ services. However, the Railway Board vide its letter dated 28.11.2008 informed all the General Managers that on completion of 5 years service in Group ‘A’ may be considered for promotion to JA grade on ad hoc basis. The applicants were informed vide letter dated 29.4.2013 that the ad hoc promotion to JAG in railway services is applicable to the Organized Services of Indian Services. The applicants were further informed vide letter dated 87.5.2013 under RTI Act that all cadres other than railway organized services are referred as 'Miscellaneous cadres' in general term and there are no instructions with regard to miscellaneous cadres.
3. In pursuance of the appointment as Sr. Programmer/Sr. System in Group ‘A’, the applicants made request to CPO, RCF, Kapurthala, that since there are six sanctioned posts in JAG in IT Department and only two posts have been occupied, accordingly, their names be recommended for filling up three posts by promoting them on ad hoc basis. In pursuance of the request made by the applicants, the CPO, RCF, vide its letter dated 24.8.2009 recommended the case of the applicants to the Railway Board for ad hoc promotion JAG. The Respondents RCF again recommended the names of the applicants for ad hoc promotion to JAG. Respondent no.2 vide its letter dated 31.1.2011 requested the Railway Board to issue guidelines for ad hoc promotion to JAG in EDP services considering the growing role of IT department in the overall working of the organization. The applicants made representation to the General Manager, RCF, Kapurthala for giving ad hoc promotion in JAG. Even the CPO, RCF, Kapurthala, vide its letter dated 17.5.2013 requested the Railway Board to clarify whether the instructions issued by the Board are applicable for ad hoc promotion to JAG to Group ‘A’ officers of EDP cadre or they could be promoted to JAG on ad hoc basis under the power of GM/RCF before completion of five years service in Group ‘A’/Sr. scale. The Railway Board vide impugned clarification letter dated 14.6.2013 had intimated that provision of ad hoc promotion to JAG has been made only in respect of the officers belonging to 8 Group ‘A’ organised service, as such, the claim of the applicants for grant of ad hoc promotion to JAG is not admissible and the same is not within the competence of GM.
4. The applicants have stated that the impugned letter/clarification dated 14.6.2013 is contrary to RTI reply dated 8.5.2013 wherein the Railway Board has admitted that all cadres other than Railway Organised services are referred to Miscellaneous cadres in general term and there are no instructions with regard to miscellaneous cadres. Hence the present OA.
5. While issuing notice to the respondents on 9.7.2013, the Tribunal had directed the respondents to consider the relevant consideration of the applicant though on ad hoc and provisional basis and this interim order has been extended from time to time.
6. Pursuant to notice, the respondents have contested the claim of the applicants by filing written statement. They have stated that the applicants had concealed the fact of issuance of Board letter dated 21.3.1989 (R-1) which deals with the recruitment of various gazetted posts of the Electronic Data Processing Department including the applicants. They have further stated that the present OA is liable to be dismissed as the same is premature as the grant of ad hoc promotion as JAG to officers of Miscellaneous cadre (including EDP Centre) is under examination in Board’s office. The present OA is not maintainable as the applicants have not challenged the Railway Board letter dated 18.9.2013 wherein it was decided that Group ‘A’ officers belonging to 12 Miscellaneous Railway services may be considered for promotion to JA grade on ad hoc basis on completion of 3 years regular service in Group ‘A’ (senior scale) subject to availability of vacancies and subject to their being found fit for the same.
7. They have further stated that in view of Board letter dated 21.1.1989, only one post of JA grade can be filled from the officers of EDP cadre and accordingly applicant no.1 has been promoted to JA grade on ad hoc basis vide order dated 31.10.2013.
8. On merits, the respondents have stated that a full-fledged department named Information Technology was constituted for computerisation of various activities in RCF and accordingly 5, 4 & 5 posts were sanctioned for Junior Administrative Grade, senior scale and junior scale. In terms of Schedule annexed with Board letter dated 21.3.1989, junior scale officer i.e. AEDPMs with 8 years regular service e in the grade is eligible for promotion to senior scale post and the senior scale officer with 5 years regular service in the grade is eligible for promotion. The applicants were promoted to junior scale i.e. AEDPM group ‘B’ on 13.5.1998 and ad hoc promotion for senior scale as EDPM was granted to the applicants from 19.10.2005, 2.6.2006 & 29.11.2004 respectively. They have further pleaded that there is intelligible differentia between promotional channel of organised services consisting of Group ‘A’ officer who are recruited directly and the officers of the miscellaneous cadre including the applicant who are generally group ‘B’ officers who have been conferred group ‘A’ on fulfilment of conditions of their cadre and required length of service and seniority. The applicants cannot claim parity with the officers of the organised services as the posts of organised serviced and miscellaneous cadre including electronic data processing gazetted cadre are filled up by different set of rules. The gazetted posts of junior scale of organised services are filled up in the following manner:-
i) Group ‘A’ through UPSC pay band-3 Rs.15600-39100 grade pay Rs.5400/-
ii) Group ‘B’ pay band-2 Rs.9300-34800 grade pay Rs.4800/- by promotion from amongst the staff working in group ‘C’.'
Even para 209 of the Indian Railway Establishment Code Volume 1 provide that:-
'A) promotions to Railway Services, Group ‘A’
(1) All substantive promotions to Railway Services Group ‘A’ shall be made by the President, and
(2) No officer shall be eligible for promotion to and within the service, unless the Government is satisfied that the officer is suitable for promotion in all respect.
(D) Promotion from senior scale to higher grade posts.
(1) Promotions to the administrative grade are dependent on the occurrence of vacancies in the sanctioned establishment and are made wholly by selection; mere seniority does not confer any claim for such promotion.
(2) Appointments to the grade in the junior administrative grade shall be made by selection on merit from amongst the officers ordinarily with not less than 5 years service in the senior scale'.
Even in the Railway Board letter dated 14.6.2013 (A-1) has clarified that the Zonal Railways/units are empowered to consider officers belonging to 8 Group ‘A’ organized services for ad hoc promotion to JA grade on completion of 5 years of Group ‘A’ services counted from their date of increment on time-scale. They have further asserted the present OA has become infructuous as applicant no.1 has since been promoted to JA grade on ad hoc basis vide order dated 31.10.2013.
9. The applicants have filed a rejoinder by generally reiterating the averments made in the OA.
10. We have given our thoughtful consideration to the entire matter and perused the pleadings available on record with the able assistance of the learned counsel for the parties.
11. The essential argument advanced by the learned counsel for the applicants is rooted in the principle of parity between Group ‘A’ Organised Services and other Misc. services including that of the applicants. It has been urged on behalf of the applicants that all the provisions that are applicable to Group ‘A’ Organised services for ad hoc promotion to JA Grade should have also been made applicable to the services to which the applicants belong. However, the respondents are clear that there is a distinction between the rules that will apply to Group ‘A’ Organised Services and the rules which applies to other services. The Railway Board letter dated 14.6.2013 (Annexure A-1) clarifies that in terms of Board letter dated 28.1.2008 (Annexure A-13) General Manager of the Zonal Railways/units are empowers to consider officers belonging to the 8 Group ‘A’ organized services for ad hoc promotion to JA grade on completion of 5 years of Group ‘A’ service counted from their date of increment on time scale. Therefore, the respondents maintain that the question for considering/granting ad hoc promotion to JA grade to officers belonging to any other service/cadre does not arise. It is also the contention of the respondents that one post of JA grade only can be filled from the officers of ED cadre to which the applicant No.1 has been promoted on ad hoc basis vide order dated 31.10.2013 as he stands promoted to JA grade, therefore, the OA itself becomes infructuous.
12. The key issue that needs adjudication is whether the applicability of Rules to 8 organised Group ‘A’ services could be extended to other group officers of other misc. services including the EDP cadre. While going through the record, we find that at no stage, the applicants have challenged the validity of rules dealing with the promotional issues for officers of 8 organised services. As such, it can be assumed that they have no objection to different sets of rules governing the 8 organised Group ‘A’ services and other misc. services. If the rules of promotion specifically apply to the 8 group organized services and this rule is not challenged, the argument of the applicability of these rules to the officers of services other than these 8 organised services loses its very foundation.
13. The fact that the applicants do not belong to the 8 organised group ‘A’ services is not an issue of dispute. The respondents have clarified to the applicants that they do not belong to the organized services, rather, they belong to 'Miscellaneous Services'. Therefore, the argument that the rules of promotion that apply specifically to certain set of officers, should also be extended to another set of officers, may be a sound argument, but can be accepted only if such parity is legally tenable. The respondents have given a brief background that why such a distinction in terms of promotion has been made, namely based upon the different manner in which the career progression of these 8 organised group ‘A’ services has been envisaged beginning with their mode of recruitment. It has also been accepted by both the applicants and the respondents that the applicants were recruited essentially to man EDP cadre. As far as the progression within the EDP cadre is concerned, that has also been separately laid down.
14. Obviously, the respondents have chosen to make out a distinction between the career progression between 2 sets of officers. We have considered this issue of differentiated career progression scheme within an organization and it is our considered view that such differentiation is legally sustainable. We may also observe that such differentiation exists in other branches of government also. However, its legal sustenance is justified only if such provision is enshrined in the rules framed by the department. In the instant case, this differentiated career progression for applicants on one hand and 8 organised group ‘A’ services on the other hand, has been laid down in the rules themselves and, therefore, till these rules exist, it cannot be struck down on account of being unconstitutional or violative of Articles 14 & 16 of the Constitution of India. As of now, any action under these rules cannot be declared illegal or null and void.
15. Given these specific facts and circumstances of the case, we find no legal basis to interfere in the impugned clarification dated 14.6.2013. Accordingly, the OA is found to be bereft of any merit and the same is dismissed. No costs.