TMI Blog1997 (9) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeals have been heard analogously and are being disposed of by this common judgment. It will be appropriate if a short background of facts are noted. 4. The Indian Railway system is managed by the apex authority, namely, the Railway Board. The said Railway Board comprises of the Chairman, the Financial Commissioner and five other members viz. Member (Traffic), Member (Engineering), Member (Mechanical), Member (Staff) and Member (Electrical). In the hierarchy, immediately lower to the Board are the posts of General Managers and equivalent. It has been submitted by the learned counsel for the appellant that there are 25 posts of General Managers and equivalent, out of which nine posts are of General Managers of Zonal Railways, 10 posts are in Production and Construction Units and Director General etc. and there are 6 Officers on Special Duty of the newly-created Railway Zones. 5. The posts of General Managers and equivalent are filled up by selection on merit from amongst very senior and suitable administrative grade officers with eight different senior Administrative Grade Services excluding the Indian Railway Medical Service. Such selection is made by a very high-lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of the Allahabad Bench of the Central Administrative Tribunal. Both Shri Agarwal and Shri Kamal Raj do not have two years' tenure reckoning from the date of accrual of vacancy falling in their turns. It also appears that even on the basis of actual period of service left before superannuation, both of them do not have two years of actual service on the date of appointment because the date of appointment was 31-10-1995 and the date of retirement of Shri Agarwal and Shri Kamal Raj is 31-10-1996 and 31-8-1996 respectively. It appears that out of the panel for the year 1994-95 there were in all three officers who did not get appointments for want of the said tenure of two years' reckoning from the date of accrual of vacancy and all the said officers have since retired. If the rule of two years of actual service on the date of appointment had been applied then out of the eleven officers, the appointment of eight officers would have become invalid. Shri S.A.A. Zaidi, the respondent in the appeal arising out of SLP No. 9068 of 1997 belongs to 1995-96 panel for the posts of General Managers and equivalent. Appointments of General Managers and equivalent out of the said p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough they had such requisite tenure when the vacancies arose. The learned Solicitor General has submitted that there is no manner of doubt that reasonable length of tenure in the key posts of General Managers and equivalent is highly desirable so that the officers concerned after being appointed to such key posts can take appropriate policy decisions and take follow-up actions within the tenure of such officers. But such tenure of two years as referred to in para 7.3 of the said Scheme should not be referable to any of the dates which is not fixed but is essentially variable and therefore uncertain because of time-lag involved at various stages as indicated hereinbefore. Mr Solicitor has submitted that the date of accrual of vacancy is a fixed point but the dates of subsequent stages of consideration and actual appointment are not fixed and necessarily such dates may widely vary depending on the convenience of the Committee to sit and consider and thereafter to take final decision for appointment by the appropriate authority. The learned Solicitor has submitted that though it is highly desirable that the actual appointment should be made as early as practicable whenever the vacanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appendix II, having regard to their inter se seniority as well as their seniority in the respective services, and prepare a panel of officers considered suitable in all respects for appointment to the posts of General Managers and equivalent. The Selection Committee may also recommend the specific type/types of assignments for which a particular officer mentioned in the panel may be considered suitable 4.4 While taking action as in the preceding sub-para the Railway Board shall normally suggest the promotion of empanelled officers in order of their inter se seniority within those clear for that particular type of assignment, except when - (a) it is considered necessary to overlook any officer on the panel in view of any unsatisfactory performance or action as reflected in his confidential report, subsequent to his empanelment, subject to such a recommendation being made to the Appointment Committee of the Cabinet under exceptional circumstances and for reasons to be recorded in writing and put up to the Appointment Committee of the Cabinet for their consideration, or (b) it is considered necessary to make a temporary departure from the order of seniority in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the selection committee should meet prior to July every year so that the panel of eligible officers drawn up remains valid for one year starting from 1st July of the year and ending on 30th June of the next year, in practice, however, such committee does not meet in time and often such committee meets after a few months. In the case concerning Shri B.S. Agarwal, the Selection Committee had met in September 1994. Shri B.S. Agarwal had a period of 2 years 4 months to his credit on 1-7-1994. Ms Pappu has submitted that Shri B.S. Agarwal had an outstanding service record with no blemish whatsoever. Shri Agarwal received Indian Railway Construction Shield and award of Rs. one lakh for outstanding and meritorious work relating to construction and gauge conversion work. Despite such brilliant and outstanding service record, he was not appointed to the post of General Manager and equivalent. Shri Agarwal made representations to the Chairman, Railway Board, Railway Minister, Cabinet Secretary and Prime Minister. Officers junior in service to Shri Agarwal were appointed General Managers on 31-10-1995 but Shri Agarwal was not favoured with any reply for being bypassed. It was only before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agarwal and Shri Kamal Raj and they had been discriminated against in the matter of appointment to the post of General Manager and equivalent for no valid reason thereby offending Articles 14 and 16 of the Constitution. In the impugned judgments, such hostile discrimination has been clearly indicated 15. Ms Pappu has also contended that interpretation of para 7.3 of the Scheme was made by the Central Administrative Tribunal, Principal Bench as early as in 1990 in the case of D.P.S. Ahuja v. Union of India. Such decision being final, became binding on the Union of India. Ms Pappu has submitted that if the Allahabad Bench had entertained a view different from the view taken in the earlier decision in Ahuja case the matter should have been referred to a larger Bench for resolving the dispute. Such reference was not made because the Allahabad Bench has not taken any view essentially different from the view taken in Ahuja case because a case of discrimination was not an issue before the Allahabad Bench. Ms Pappu has submitted that it is a settled principle in service jurisprudence that relaxation, if possible, should not be arbitrarily made. Such relaxation must be based on some p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merit and suitability from amongst persons of equal merit, the senior is entitled to be preferred for appointment 17. Mr Dwivedi has also contended that the policy cannot be framed arbitrarily and capriciously but the same is to be framed in public interest. Such policy must be fair and reasonable and conform to the constitutional guarantees enshrined in Articles 14 and 16. Under the constitutional scheme, judicial interference is permissible to prevent violation of the constitutional safeguards. Any consideration on the score of problems of the Government or its convenience is incidental and secondary and cannot be permitted to transgress constitutional safeguards. In support of such contention, reference has been made to the decision of this Court in B. Prabhakar Rao v. State of A.P. 1985 Supp(SCC) 432 : 1986 SCC(L S) 49 : 1985 (S2) SCR 573] (SCR at p. 613) 18. Mr Dwivedi has also contended that the rules of interpretation of the statute or government order are well settled. When there is no scope of any ambiguity and the language is clear, the courts always give effect to the general meaning of the words used. The words are to be interpreted in the context in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other interpretation is not only against the plain meaning of the expression used in paragraph 7.3 of the Scheme but also against the policy of continuity in decision-making process for a desired length of time, sought to be achieved 20. Mr Dwivedi has contended that neither the appellant nor the respondent should be permitted to put a self-serving interpretation contrary to the true legal position. Mr Dwivedi has submitted that the case of the respondent Shri Zaidi before the Tribunal was that in the teeth of clear language in para 7.3 of the Scheme, an officer who was junior to the said respondent was appointed in violation of the criterion laid down in para 7.3 of the Scheme resulting in erroneous application of para 7.3 and hostile discrimination against the respondent 21. Mr Dwivedi has submitted that the Principal Bench of CAT has decided in Ahuja case that any deviation of residual service of two years from the date of appointment, if made, can be said to have been done only by invoking paragraph 10 of the Scheme which permits relaxation. Such decision was accepted by the Union of India. Mr Dwivedi has submitted that in the impugned decision, the Tribunal has held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the learned counsel for the respective party, it appears to us that the learned counsel for the respondents have rightly contended that in the matter of appointment and also in giving promotion, the guarantee enshrined under Articles 14 and 16 of the Constitution cannot be violated. If a panel of eligible officers for the purpose of appointment to the post of General Manager or equivalent is prepared, then each of such empanelled officers must be held to have been found suitable for appointment to such post. Therefore, if the said empanelled officer conforms to the requirement of para 7.3 of the Scheme, his inter se seniority cannot be ignored in giving appointment to the post of General Manager and equivalent 23. There cannot be any dispute in principle that if appointment is given to an officer out of the empanelled officers by relaxing the requirement under paragraph 7.3 of the Scheme by resorting to power of relaxation under para 10 of the Scheme, then such relaxation cannot be made arbitrarily and capriciously in favour of some by picking and choosing such officers in preference to others when being empanelled, the others should be held to be similarly circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir turn. Between the date of accrual of vacancy and actual appointment made, there has persistently been considerable time-lag. As a result, many of the empanelled officers who had been found to be suitable for the appointment to the posts of General Managers and equivalent when the vacancy had accrued in their turn did not have the two years' tenure when the order of appointment was made if two years' tenure was to be reckoned from the date of actual appointment. In most cases the delay in making actual appointment after the accrual of vacancy is not only on account of procedural formalities but also on account of avoidable delay flowing from the usual red-tapism and proverbial administrative lethargy. It is also not unlikely that in some cases the delay may be caused in a designed manner so as to deprive some of the eligible suitable officers in order to benefit juniors by bringing a fact situation when tenure of two years is not fulfilled in case of some seniors and otherwise suitable officers resulting in dropping of such officers 27. Para 7.3 of the Scheme in express terms refers to the residual service of at least two years on higher post of General Manager and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... length of service is intended in para 7.3 of the Scheme. The court should lean in favour of such interpretation of a statute which conforms to justice and fair play and prevents potentiality to injustice by liberally construing the provision without intrinsically violating the language of the statute and the purpose intended to be achieved. We may indicate here that although the residual tenure is referable to the date of accrual of vacancy, the intended purpose of reasonable length of service in the post of General Manager and equivalent should not be permitted to be defeated by delaying the actual appointment from the date of accrual of vacancy for long. It will only be proper if the authorities concerned remain alive to the urgency in taking prompt action in making actual appointment, so that such appointment is made at least within three months from the date of accrual of vacancy 28. It appears to us that in all these appeals, no appointment has been made of any empanelled officer whose residual tenure was less than two years from the date of accrual of vacancy. Shri B.S. Agarwal and Shri Kamal Raj were included in 1994-95 panel of the eligible officers for appointment to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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