judgement:
ivil Appeal No. 2013 of 1990.
772 From the Judgment and Order dated 14.9.1988 of the Central Administrative Tribunal, Delhi in C.C.P. No. 17 of 1987 in T. 246 of 1985.
Anil Dev Singh, C.V.S. Rao, T.C. Sharma and B.K Pershad for the Appellant.
Subodh Markandeya, W.A. Nomani, G. Seshagiri Rao, A.K. Raina, Mrs. Chitra Markandeya, G.D. Gupta and Ashok K. Mahajan for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
Leave granted.
The appeal is filed by the General Manager, Northern Railways against the decision dated 14th September, 1988 of the Central Administrative Tribunal, New Delhi.
In order to appreciate the grievance of the appel lant Railways against the impugned order, it is necessary to state the relevant facts in brief.
Respondent employees who are Traffic Apprentices belonged to Class III Service which has four grades, and the four grades carry different pay scales as follows: (i) Grade I Rs.250 380 (ii) Grade II Rs.335 425 (iii) Grade III Rs.370 475 (iv) Grade IV Rs.450 575 The promotion to the alternate grade in the said four grades is by selection.
However, the appointments to all the four grades is by promotion.
Above Class III posts, are Class II and Class I posts.
Class I posts are in Junior Scale grade, Senior Scale grade, Junior Administrative Grade and Senior Administrative Grade.
The entire Class II service is filled by promotion by selection from Class III service.
In Class I service, 60 per cent posts are filled by direct recruitment and 40 per cent by promotion from Class II service.
The recruitment as well as promotion to Class I is through the Union Public Service Commission ( 'UPSC ' for short).
All these posts are available as a promotion avenue to the incumbents of Class III posts.
Class III service in the Traffic and Transportation Department consists not only 773 of Traffic Apprentices but also of other categories.
Howev er, the promotion to Class II post is not made exclusively from Class III service of Traffic and Transportation Depart ment.
The incumbents of Class III service in Commercial Department are also entitled to be considered for promotion to Class II posts.
Hence, a combined seniority list of Class III service both in the Traffic and Transportation Department as well as the Commercial Department, is pre pared.
The promotions to further posts, viz., to Class I posts and to the posts of Junior Administrative Grade are thereafter made from the incumbents of the Class II posts.
It has further to be noted that the appointments to the posts of Traffic Apprentices is by direct recruitment to the extent of 25 per cent of the annual vacancies in the posts of Section Controllers who are in the grade of Rs.200 300 (PS) and in other posts in the same cadre in the Yard and Station categories.
This was according to the scheme prepared by the Railway Board for improving control organisations on the Railways.
The Traffic Apprentices thus directly recruited are, on completion of the training, first absorbed as Assistant Movement Inspectors etc.
in the grade of Rs. 150 225 and are eligible for promotion to the grade of Rs.200 300 (PS)/Rs.250 380 (AS) in the normal manner after selection as Section Controllers, Station Masters, Assistant Station Masters, Yard Masters etc.
provided they complete at least one year 's service in the grade of Rs. 150 225.
Such promotions are, however, to be considered against 25 per cent of the annual vacancies.
The Railway Board had further clarified the position that 25 per cent of the total annual vacancies in the grade Of Rs.200 300 (PS)/ Rs.250 380 (AS) were to be earmarked for Traffic Appren tices, and if during any particular year it was not found possible to utilise this quota fully on account of suffi cient number of Traffic Apprentices being not eligible for promotion (owing to their not having completed one year 's service in the grade of Rs.150 225), the deficit was to be carried forward to the next selection.
By their further letter of December 18, 1963, the Railway Board directed that with immediate effect, the Traffic Apprentices on successful completion of the three years ' training, should be straight away brought on the scale of Rs.200 300 (PS)/ Rs.250 380 (AS) instead of being first absorbed in the scale of Rs. 150225 (PS)/Rs.205 270 (AS) as prevalent then.
Thus, it would be clear that Traffic Apprentices were to be directly recruited to fill vacancies to the extent of 25 per cent of the vacancies and the posts of Section Con trollers etc After recruitment, they were to be imparted three years ' special training and thereafter 774 they were required to serve for one year in the grade of Rs. 150 225/ Rs.205 270 after which they were considered for selection to the grade of Rs.200 300 (PS)/Rs.250 380 (AS).
From 1963, they were to be straightaway absorbed in the grade of Rs.200 300/Rs.250 380 after completion of their training period of three years, but without having to quali fy through Selection Board first and without the condition of one year 's service.
The Traffic Apprentices were thus to fill vacancies to the extent of 25 per cent.
This quota had to be carried forward in case of shortfall in any particular year, and the remaining 75 per cent of the vacancies were earmarked for promotion to other departmental officials who were called rankers.
After both the sources of recruitment merged in the scale of Rs.200 300/Rs.250 300, a single unified cadre known as "Relieving Transportation Assist ants" stood constituted.
It appears that the respondent 's grievance in the writ petition filed before the Delhi High Court was that their seniority in the cadre of Relieving Transportation Assistants was not correctly fixed according to the quota rule of 25:75, either because the quota rule was not ob served properly or the unfilled vacancies in the 25 per cent quota reserved for them were not carried forward from 1954 onwards.
Hence, they wanted their seniority list as Traffic Apprentices to be recast according to quota and rota rule, and the seniority list which was prepared allegedly contrary to the said rule, quashed.
The learned Single Judge had rejected the petition on the ground that they had approached the Court too late and, therefore, their petition suffered from laches.
The Division Bench in Letters Patent Appeal No. 220 of 1972 did not agree with the learned Single Judge and decided the matter on merits, and gave the finding that the Northern Railways had for the first time communicated by their letter of December 26, 1967 to all the Divisional Superintendents that it was decided that the seniority of Traffic Apprentices appointed prior to December 18, 1963 would be determined from the date of their promotion to the grade of Rs.250 380 and not according to their quota against the vacancies which occured from 1.4.1954 onwards, the date from which the direct recruitment of the Traffic Apprentices was permitted.
The Court held that according to the correct interpretation of the various letters of the Railway Admin istration, Traffic Apprentices were to be assigned seniori ty, vis a vis rankers (promotees) according to their roster position, taking into account the positions reserved for them, viz., 25 per cent of the actual annual vacancies with effect from 1.4.1954 carried forward in subsequent years.
The Court also held that the Railway Administration subse quently modified its instructions contained in 775 their letter of December 26, 1967 and issued another letter on April 19, 1968 stating that the Traffic Apprentices would be deemed to have been promoted from the dates they were eligible provided vacancies were available in the particular year for theft absorption and that their interests would be protected by giving benefit of pro forma fixation of pay etc.
A further letter of December, 18, 1968 thereafter followed from the headquarters of the Northern Railways in which it was made clear that the seniority had to be fixed with reference to the dates from which the Traffic Appren tices would have been promoted in the grade of Rs.250 380 had the quota of the vacancies from 1954 onwards always been calculated correctly, i.e., the vacancies from 1954 onwards should always have been taken into account to work out 25 per cent quota for the Traffic Apprentices.
On these find ings, the Division Bench stated as follows: "We may state here that all the Rankers who are likely to be affected by the decision in this case are party respondents.
No right of any innocent third party is involved in the case.
We are 'also not quashing any rule executive instruc tion or letter of the Railway Administration or any seniori ty list issued by the earlier than February 1971.
The Su preme Court has not laid down any rigid rule of limitation in entertaining a writ petition under Article 32 or Article 226 of the Constitution of India.
The Supreme Court was pleased to observe that it will almost always be proper for the court to hold that it is unreasonably delayed if the writ petition is filed beyond the period of limitation prescribed for a similar civil action.
Thus, if there are any exceptional facts and circumstances even the delay beyond the period of limitation prescribed for a civil action for the remedy may be reasonable or justified and the writ petition may still be entertained.
The Court may, however, be reluctant to entertain such writ petitions but that does not mean that the court has no jurisdiction.
If we are right in holding that the cause of action arose in February 1971, or even earlier in April 1968, then there is no question of any delay.
But, if we are not, even then on the facts and circumstances of the case, as discussed above, we have not been able to persuade ourselves to agree with the learned single Judge that the writ petition is enormous ly delayed.
By issuing the writ of mandamus in this case, we are only setting at rest the uncertainty and disparity which is prevailing in the various divisions of the Northern Railway in the 776 matter of fixation of inter seniority of Traffic Apprentices and Rankers.
The Railway Administration have themselves admired that in Allahabad division of Northern Railway, Seniority has been granted to Traffic Apprentices according to their quota against the vacancies which occurred from 1.4.1954 onwards.
In case of commercial apprentices who are similarly situated seniority has been assigned vis a vis remain according to their quota on the basis of their roster positions, 1, 5, 9 etc.
There is no reason why the appel lants should be deprived of what is legally due to them even if they have approached this Court after some delay.
For the reasons stated above, the Letters Patent Appeal is accepted, the judgment of the learned single judge on ques tion No. 1 is set aside and reversed and we hold that the writ petition was not belated and was not liable to dismiss al on the ground of laches.
The finding on question No.2, having been upheld by us, the appellants, are entitled to the grant of writ of mandamus directing respondents 1 to 3 to fix the seniority of Traffic Apprentices, in the light of the observations made by the learned single Judge and as upheld by us.
The seniority list, Annexure E attached to the writ petition is quashed.
The respondent Railway Administra tion shall draw the seniority list within 3 months from today and proceed to make confirmations and/or further promotions in the higher grades in accordance with the law, rules and orders in force from time to time.
In the circum stances of the case we leave the parties to bear their own costs.
" This decision of the Division Bench is of July 30, 1975.
Against this decision the Railways preferred a special leave petition which was dismissed.
Thereafter, the Railways prepared a fresh seniority list in 1976.
It appears that this seniority list took care of the grievances only of the employees who were parties to the petition.
Against the said seniority list, therefore, some of the Traffic Apprentices filed a writ petition being Writ Petition No. 948 of 1976 challenging the seniority.
That writ petition was trans ferred to the Tribunal and numbered as T.A. No. 246 of 1985.
It appears that in the meanwhile in 1983, the Railways, in compliance with the judgments delivered by the High Courts of Allahabad and Punjab & Haryana prepared a fresh seniority list, and the Tribunal disposed of the transfer petition (TA No. 246 of 777 1985) by order dated June 25, 1986.
By this order, the Tribunal observed that the application before the Tribunal was to direct the respondent Railways (the appellant herein) to quash the impugned seniority list, i.e., the seniority list of 1976 and to prepare a fresh seniority list and to make the confirmations and promotions inaccordance with the fresh seniority list.
The Tribunal observed that that relief had already been granted by the Delhi High Court in LPA No. 220 of 1972 by its decision which is already referred to above.
Hence, no fresh directions were necessary.
The Tribu nal also found that a fresh seniority list had been prepared in 1983 in pursuance of the directions given by the High Court.
It appears further that since the seniority list was not prepared within three months as directed by the High Court and according to respondent No. 8 in that application before the Tribunal, the seniority list was also not in conformity with the other directions contained in the High Court judgment, a contempt petition was filed before the High Court and the same was pending before it.
The Tribunal, therefore, stated that it expressed no opinion as regards the validity or otherwise of the seniority list prepared in pursuance of the High Court 's directions.
The Tribunal also made it clear that unless otherwise ordered by the competent authority or the High Court, as the case may be, the senior ity list prepared in pursuance of the directions of the High Court shall be acted upon and: "the confirmations and promotions made on the basis of that list within a period of four months from the date of the receipt of this order.
Further, promotions shall be made strictly in accordance with the list prepared in 1983 in pursuance of the directions of the High Court in LPA NO.
220 of 1972.
It appears, therefore, that the Railways had prepared a seniority list of 1983 in pursuance of the directions of the Delhi High Court in LPA No. 220 of 1972 decided on July 30, 1975.
The grievance of the petitioners in TA No. 246 of 1985 (Writ Petition No. 948 of 1976) was against the senior ity list of 1976 and since that seniority list was supersed ed by 1983 list which the Tribunal observed was in pursuance of the High Court 's directions, nothing survived in the grievance of the applicants there (viz., Chadha and others in that application).
It further appears that according to the statement made on behalf of the appellant Railways, the Railways had already worked out the promotions upto and inclusive of Class II posts by 14th 778 February, 1988.
However, the applicants, Chadha and others in TA No. 246 of 1985 filed a contempt petition being CCP No. 17 of 1987 before the Tribunal making a grievance that full effect had not been given to the judgment dated June 25, 1986 of the Tribunal in TA No. 246 of 1985.
On that application, the Tribunal passed the impugned order of September 14, 1988, which is the subject matter of the present appeal.
The Tribunal has observed that the full consequences of the judgment of the Tribunal were spelt out by the General Manager of the Railways in his letter of July 30, 1982 forwarded to the Railway Board.
The Tribunal then set out the said consequences as contained in General Manag er 's letter and observed that the General Manager had cor rectly appreciated the consequences of the directions of the High Court and of the Tribunal.
The Tribunal then stated that, however, in implementing the order, the Railways did not give effect to the said judgments.
The Tribunal then directed that the seniority list prepared on the basis of the panels of 1972 73 and 1978 79 for promotion to Class II posts should be revised.
We are not concerned here with the said directions.
However, the Tribunal observed further that the Railways ' contention that the earlier direction of the Tribunal did not entitle the petitioners, i.e., Chadha and others to be considered for promotion to Class II or Class I or Junior Administrative Grade was not correct and the same was contrary to its order as well as to the implications of the said order spelt out by the General Manager himself.
The Tribunal then went on to observe as follows: " . .
When the Tribunal had directed not only confirma tion and promotion be made in accordance with the revised seniority list but also directed further promotions to be made on that basis, it was the duty of the respondent not only to give promotion in Class III but also to give further promotion to Class II, Class I and Junior Administrative Grade.
Of course, these promotions have to be given in accordance with the rules with effect from the date when the juniors were given promotion.
The petitioners should have also been considered and promoted to Class II, Class I or Juniors Administrative Grade just as their juniors were considered and promoted.
Further inclusion in the panel of 1978 79 cannot, therefore, be insisted upon since they have already qualified.
After the above clarification, we do not think that there would be any further difficulty in implementing the order and in granting promotion to Shri Chadha and Shri 779 Sandhu in respect of whom alone this petition is pressed.
It is stated that although the implications were correctly understood by the General Manager, even where the orders were implemented to a certain extent, no arrears have been paid.
It is hereby clarified that on such promotion, they would also be entitled to payment of arrears.
The order of the Tribunal in T 246/85 (sic) as further clarified hereinabove shall be implemented accordingly and compliance reported to the Tribunal within six weeks from today. ' ' The Tribunal also kept the matter before it on October 31, 1988, and the Special Leave Petition giving rise to the present appeal was filed against the said decision of the Tribunal.
Two additional facts need be stated.
The combined seniority list which was prepared in 1983 of Class III posts for promotion to Class II posts was finalised in March 1987 and was made the basis of the postponed selection to Class II service as per orders of the Tribunal and panel was issued on 13.3.1987.
Thereafter, on the basis of orders passed by the Tribunal on 9.12.1987, the Traffic Apprentices who became eligible for promotion in the first 'batch after revision of seniority were considered by a Review Departmen tal Promotion Committee and interpolated in.
the Class II panels of 1972 73 and 1975 76.
As a result, the seniority of the personnel from the Commercial Department was affected since direct recruit Traffic Apprentices from the Traffic and Transportation Department were given seniority according to the quota and rota rule from 1954 onwards.
Hence, M/s. A.P. Chowdhary and K.N. Saxena, officers belonging to the Commercial Department approached the Tribunal by their applications Nos. 360 of 1988 and 936 of 1989 respectively, challenging the new seniority list, and also on the ground that they were not parties to the earlier proceedings.
It further appears that three of the respondents, Chadha, Sandhu and Malik filed an application before the Tribunal making a grievance that they were not given their due promotion.
That application is also pending before the Tribunal.
It also appears that the Departmental Promotion Committee prepared two fresh panels the first panel was for promotions to the posts which were vacant between 1972 73 and 1975 76 and the second 780 for the vacant posts for the year 1978 79.
In the second panel, KN Saxena stands selected.
In this appeal, we are concerned with two limited issues, viz., (i) whether in the context of the history of the litigation and the decisions and directions of the High Court and the Central Administrative Tribunal, the respond ents should be given promotions in all posts above Class II service as a logical corollary to their new ranking in the revised seniority list of 1983, and (ii) whether on such promotions being given, they should be paid emoluments of such higher posts with retrospective effect.
We have stated that we are concerned with the promotions of the respondents in the posts above Class II service because, as stated earlier, the appellant Railways have already worked out their promotions in Class II service.
There is, therefore, no dispute with regard to the respondents ' promotions in Class II service.
However, the dispute still survives with regard to their entitlement to the emoluments in Class II service with retrospective date.
As regards the promotion to posts above Class II service, we find that initially when the petitioners ap proached the court, their grievance was with regard to their seniority in and promotions to the grades in Class II serv ice.
The High Court had also in its direction said nothing about the promotions to Class II service.
However, as stated earlier, the appellants have worked out the promotions to Class II service on the basis of the new seniority list of Class III service of the year 1983.
The respondents, there fore, have gained substantially since, as stated earlier, the promotions to Class II and above were not the subject matter of the writ petition before the High Court.
We are afraid the Tribunal has gone beyond the scope of the origi nal petition while dealing with the contempt petition.
The respondents, therefore, are not entitled to claim in these proceedings as a matter of right promotions to any higher posts.
We, however, do not desire to make any observations which will come in their way if the UPSC is inclined to look into the matter.
In that case the UPSC may constitute review Departmental Promotional Committee and give them proforma promotions and seniority in the promotional posts from the relevant years, if they are otherwise eligible to the same.
We say nothing more on the subject.
As regards the emoluments of nigher posts with retrospective effect, we find that the High Court had cate gorically denied the same to the respondents even on the basis of their claim to higher grades in Class III posts.
Further, even the entitlement.
of the respon 781 dents to the higher grades in Class III posts as per the directions of the High Court was on the basis of the quota and rota rule which in itself is both inequitable and irra tional.
Time and again, the rule has been criticised on account of the absurd result to which it leads, viz., the deemed appointments have to be given to the concerned em ployees even from the dates when they were not in service and probably when they were still in their schools and colleges.
We are informed across the Bar that this is the situation even with respect to some of the respondents herein.
The quota and rota rule had to be worked out in the present case from the year 1954 as per the direction of the High Court and the Tribunal.
There is, therefore, neither equity nor justice in favour of the respondents to award them emoluments of the higher posts with retrospective effect.
It is for this reason that we are of the view that the decisions of this Court such as in P.S. Mahal & Ors.
vs Union of India & Ors., ; directing the pay ment of higher emoluments with retrospective effect on account of the deemed promotions of earlier dates will not be applicable to the facts of the present case and have to be distinguished.
It is true that the appellant Railways had failed to give correct effect to the decision dated July 30, 1975 of the High Court in LPA No. 220 of 1972, and had kept the matter hanging till this day for no fault of the respond ents.
The High Court by its said decision had directed the appellant Railways to prepare a seniority list within three months from the date of the decision, and also to proceed to make further promotions in the higher grades in accordance with law, rules and orders in force from time to time.
But it is equally true that during all these years the higher posts were not vacant and were manned by others and the appellant Railways had paid the incumbents concerned the emoluments of the said posts.
The respondents have not actually worked in the said posts and, therefore, on the principle of "no work no pay" they will not be entitled to the higher salary.
Hence, we give no directions in this behalf and leave it to the appellant to give such relief as they may deem fit.
The directions given above would be subject, to the petitions which are already pending before the Central Administrative Tribunal, New Delhi.
The appeal is allowed accordingly with no order as to costs.
T.N.A. Appeal al lowed.

summary/full:
The respondent employees, are Traffic Apprentices be longing to Class III Railway service which has four grades carrying different payscales.
Above Class III posts, are Class II and Class I posts.
The entire Class II service was filled by promotion by selection from Class III service.
The Class III service in the Traffic and Transportation Depart ment consisted not only of Traffic Apprentices but also of other categories.
However, the promotion to Class II post was not made exclusively from Class III service of the said Department, but the incumbents of Class III service in the Commercial Department were also entitled to be considered for promotion.
Consequently, a combined seniority list of Class III service both of the Traffic and Transportation Department as well as the Commercial Department, was main tained.
The promotions to further posts, viz., to Class I posts were thereafter made from the incumbents of Class II posts.
In Class I service, 60 per cent posts were filled by direct recruitment and 40 per cent by promotion from Class II service.
The appointment to the posts of Traffic Apprentices was by direct 770 recruitment to the extent of 25% and this quota was to be carried forward in the case of shortfall in any particular year.
The remaining 75% of the vacancies were earmarked to other departmental officials for promotion who were called rankers.
Subsequently, both the sources of recruitment were merged and a new single unified cadre of "Relieving Trans portation Assistants" was constituted.
The respondents filed a writ petition in the High Court challenging the seniority list in the aforesaid newly con stituted cadre on the ground that their seniority in the newly constituted cadre was not correctly fixed according to quota rota rule of 25:75 either because the quota rule was not observed properly or the unfilled vacancies in the 25% quota reserved for them were not carried forward since 1954 onwards.
A single judge of the High Court rejected the petition on the ground of laches.
On appeal, the Division Bench set aside the decision of the single judge on the question of laches and directed the Railway Administration to draw a revised seniority list.
Against the decision of the Division Bench, the Railways preferred a Special Leave Petition in this Court which was dismissed.
Accordingly, the Railways prepared a fresh sen iority list in 1976.
Since the said seniority list took care of the grievances only of the employees who were parties to the petition, some of the Traffic Apprentices fried an application before the Central Administrative Tribunal for a direction to quash the seniority list of 1976 and to prepare a fresh seniority list.
In the meanwhile pursuant to the directions of the High Court the Railways prepared a fresh seniority list in 1983 superseding the seniority list of 1976.
The Tribunal disposed of the application by its order dated June 25, 1986 by directing that the seniority list of 1983 shall be acted upon, and that the confirmations and promotions be made on the basis of that list.
Consequently the Railways worked out the promotions upto and inclusive of Class II posts.
Subsequently the respondent fried a contempt petition before the Tribunal contending that full effect had not been given to its judgment dated June 25, 1986.
The Tribunal by its order dated 14th September, 1986 held that the respond ents are entitled to further promotions to Class II and Class I; and are entitled to emoluments on such higher posts with retrospective effect.
Hence this appeal by the Railways 771 against the Tribunal 's order dated 14th September, 1986.
Allowing the appeal, this Court, HELD: 1.
The Tribunal has gone beyond the scope of the original petition while dealing with the contempt petition.
The promotions to Class II and above were not the subject matter of the writ petition before the High Court, and in its direction the High Court said nothing about the promo tions to Class II service.
However, the appellant Railways worked out the promotions to Class ii service on the basis of the new seniority list of class Iii service of the year 1983 under which the respondents have gained substantially.
Therefore, the respondents are not entitled to claim as a matter of right promotions to any higher posts.
This Court, however, does not desire to make any observations which will come in their way if the Union Public Service Commission is inclined to look into the matter.
[780D G] 2.
The entitlement of the respondents to the higher grades in Class111 posts as per the directions of the High Court was on the basis of quota and rota rule, which in itself is both inequitable and irrational.
Time and again, the rule has been criticised on account of the absurd result to which it leads, viz., the deemed appointments have to be given to the concerned employees even from the dates when they were not in service and probably when they were still in their schools and colleges.
[780H; 781A B] In the instant case, this is the situation with respect to some of the respondents.
The quota and rota rule had to be worked out from the year 1954 as per the directions of the High Court and the Tribunal.
There is, therefore, nei ther equity nor justice in favour of the respondents to award them emoluments of the higher posts with retrospective effect.
[781B C] P.S. Mahal & Ors.
vs Union of India & Ors.
, ; , held inapplicable.
2.1 On the principle of "no work no pay", the respond ents will not also be entitled to the higher salary as they have not actually worked in the said posts.
[781F]