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Union of India Versus B.S. Agarwal

Appeal (civil) 6713-6715 of 1997 - Dated:- 29-9-1997 - G.N. RAY & G.B. PATTANAIK JJ. JUDGMENT G.N. RAY, J. - Leave granted in all the special leave petitions. Heard learned counsel for the respective parties 2. The appeal arising out of SLP No. 25014 of 1996 is directed against order dated 29-10-1986 passed by the Central Administrative Tribunal, Principal Bench, New Delhi in OA No. 2122 of 1995. The appeal arising out of SLP No. 24361 of 1996 is directed against order dated 22-8-1996 passed .....

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ard 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 Genera .....

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rative grade officers with eight different senior Administrative Grade Services excluding the Indian Railway Medical Service. Such selection is made by a very high-level Selection Committee consisting of the Chairman, Railway Board, Secretary, Department of Personnel and a Member of the Railway Board. The recommendations of the Selection Committee are approved by a Committee which amongst others includes the Prime Minister. No railway employee has any legal right to claim appointment as a matter .....

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the issue in all these appeals relates to the interpretation of para 7.3 of the aforesaid Scheme. It will be appropriate at this stage to refer to para 7.3 of the said Scheme "7.3 Only such of the empanelled officers would normally be appointed to posts of General Managers and equivalent as will be able to serve for at least two years on such higher post(s)." 7. Mr T.R. Andhyarujina, the learned Solicitor General of India, appearing for the appellant Union of India, has submitted that .....

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nistrative Tribunal 8. The learned Solicitor has submitted that the respondents Shri B.S. Agarwal and Shri M.P. Kamal Raj were included in 1994-95 panel of the officers eligible for appointment to the posts of General Managers and equivalent. In the case of Shri Agarwal and Shri Kamal Raj, appointments to the posts of General Managers and equivalent have been made out of empanelled officers who had two years of residual service from the date of accrual of vacancy on the basis of the interpretati .....

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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 offic .....

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Zaidi was not appointed. He did not have two years of service from the date of accrual of vacancy falling in his turn. There were 19 officers out of which 15 though senior to Shri Zaidi did not get appointment to the said posts of General Managers and equivalent on similar considerations. All the said 19 officers are still in service. The actual appointment of General Managers out of the panel of 1995-96 was made in November 1996. Shri Zaidi did not have two years of actual service on the date .....

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ry service of two years reckoned from the date of accrual of vacancy 9. The learned Solicitor has further submitted that the respondents Shri Zaidi, Shri Kamal Raj and Shri B.S. Agarwal were not eligible to be appointed because none of them had two years' tenure either on the date of accrual of vacancy in their turn or on the date of actual appointment of empanelled officers. Therefore, the impugned directions cannot be sustained and should be set aside. The learned Solicitor has submitted t .....

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e officers even though senior are to be kept out of consideration because on the date of actual appointment they do not have two years' tenure although 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 decisi .....

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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 vacancy has accrued, more often than not, a long time elapses before taking the final decision of appointment on account of time factor involved at various .....

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ned Solicitor that on proper interpretation of paragraph 7.3 of the Scheme appointments have been made out of empanelled officers who had residual service of at least two years from the date of accrual of vacancy. Therefore there was no question of relaxation of paragraph 7.3 of the Scheme and resorting to hostile discrimination against other empanelled officers by not relaxing the condition under paragraph 7.3 of the Scheme in their cases. The learned Solicitor has, therefore, submitted that th .....

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d decisions, therefore, cannot be sustained and the impugned orders should be set aside 10. Ms Shyamla Pappu, learned Senior Counsel appearing for the respondents, Shri B.S. Agarwal and Shri Kamal Raj in appeals arising out of SLP (C) No. 25014 of 1996 and SLP (C) No. 24361 of 1996 has submitted that para 7.3 of the Scheme should be read along with para 4.1 of the Scheme and para 10 of the Scheme which provides for relaxation ; 4.1 A panel of names for consideration for appointment to the posts .....

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ttee 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 ac .....

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ng within a short time-span in a manner best in keeping with their relative background and aptitude. In this event, it will be notified that the junior officer will not gain any seniority vis-a-vis his empanelled seniors, or (c) it becomes inescapable to promote an officer of a particular discipline as General Manager Open Line ahead of normal turn, to meet the requirements for manning the post of Member, Railway Board, corresponding to his discipline. In such cases, detailed reasons will be rec .....

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valent by officers belonging to any one service. In this event, it will be notified that the junior officer will not gain any seniority vis-a-vis his empanelled seniors 11, Ms Shyamla Pappu has submitted that every year in July a select panel is drawn up by empanelling the officers of Senior Administrative Grade (SAG) equivalent to the grade of Joint Secretary and Officers holding higher post (Additional Secretary level) for appointment to the posts of General Managers and equivalent ensuring th .....

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ended that paragraph 9 of the Scheme provides that the said high-powered selection committee should meet once a year at a suitable time after 1st of April as soon as ACRs for the year ending on March 31, are available for consideration. Ms Pappu has also submitted that although it is intended that 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 .....

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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 C .....

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ntention of at least two years of service tenure as General Manager or equivalent is evident if a reference is made to the Scheme for appointment as Members of the Railway Board which provides that "2 years or more from the date of occurrence of vacancy" will be available to the incumbent as Member, Railway Board in express contradistinction of the provision for appointment of General Manager and equivalent in para 7.3 using the expression "as will be able to serve at least for 2 .....

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e case of Shri Agarwal thereby resulting in hostile discrimination against Shri Agarwal 14. Ms Pappu has further contended that even if it is assumed that the expression "normally" appearing in para 7.3 of the Scheme brings some flexibility enabling the appointing authority to relax the rigour of at least 2 years of tenure in an appropriate case, the appointing authority cannot ignore inter se seniority of the empanelled officers in resorting to relaxation. Paragraph 4.4 of the Scheme .....

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ppointment 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 .....

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rudence that relaxation, if possible, should not be arbitrarily made. Such relaxation must be based on some principle and should not encourage discrimination amongst persons similarly circumstanced. The decision of the Principal Bench in Ahuja case squarely applied in the facts of the case of Shri Agarwal. Considering all aspects, the Tribunal has passed the impugned judgments in favour of Shri Agarwal and Shri Kamal Raj. Such judgments therefore, should not be interfered with in these appeals. .....

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ndra Dwivedi, the learned Senior Counsel appearing for the respondent S.A.A. Zaidi in the appeal arising out of Special Leave Petition (C) No. 9068 of 1997, has submitted that for the purpose of disposal of this appeal, it is not only necessary to decide the true import of paragraph 7.3 of the Scheme but also to consider whether or not the respondent Shri Zaidi has been discriminated against by violating the mandate under Articles 14 and 16 of the Constitution. Mr Dwivedi has submitted that equa .....

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nt to the post of General Manager and equivalent. But once the panel is finalised, officers are to be appointed in accordance with paragraph 7.3 of the Scheme according to their inter se seniority positions. Once an officer is empanelled, his seniority cannot be ignored. Mr Dwivedi has submitted that almost three decades ago, this Court has held in Sant Ram Sharma v. State of Rajasthan 1967 AIR(SC) 1910 : 1968 (2) LLJ 830] that where persons are to be selected to the higher post on the basis of .....

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. 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 .....

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der that the application of the words in their ordinary sense would produce absurd result or would be unreasonable, unworkable or irreconcilable with the object of the statute or the order, that the courts allow themselves a limited role in adding or amending the meaning of the words used. The language of the statute or order has to be interpreted if any interpretation is needed, so as to conform to the equality mandate enshrined in Articles 14 and 16 of the Constitution 19. Referring to paragra .....

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nent question that goes to the root of the problem of interpretation of para 7.3 of the Scheme lies in the clear difference in the choice of the language that has been employed while laying down the norms for appointment of the Members of the Railway Board. Mr Dwivedi has supported Ms Pappu by contending that in the matter of appointment of General Managers and equivalent, the incumbent must be able to serve for at least two years in the higher post of General Manager and equivalent but for appo .....

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appointed as general Managers, will have residual service of at least two years. Any 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 h .....

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o 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 to the effect that if the appointments of the juniors can be explained or justified on the face of para 7.3 of the Scheme only through the power of relaxation under paragraph 10 of the Scheme, it would be violative of Article .....

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vedi has also contended that there was no plea of discrimination in appointing a junior ignoring the claim of the senior in A.S.P. Sinha case decided by the Allahabad Bench of CAT. The interpretation of Allahabad Bench of para 7.3 of the Scheme in Sinha case is not only erroneous but such interpretation being obiter and not accepted in the said four decisions of various Benches of CAT in the cases of Ahuja, Zaidi, Kamal Raj and Agarwal, should not be accepted. Mr Dwivedi has submitted that in al .....

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case it will be evident that vacancy was preponed from 31-8-1990 to 10-8-1990 as a result of the incumbent General Manager, Shri V.K. Fondekar proceeding on one month's leave. Likewise, Shri B.T. Bhind, incumbent General Manager/ICF/Madras applied for 34 days' leave w.e.f. 28-11-1990 which facilitated initial promotion of Shri M.C. Das and he was eventually adjusted against another vacancy of GM/WAP Bangalore occurring three months later on 31-1-1991. Mr Dwivedi has submitted that in the .....

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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 empa .....

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appeals and if so, whether such relaxation has been made ignoring the inter se seniority of the empanelled officers resulting in hostile discrimination against some of the empanelled officers 24. In order to appreciate the true import of paragraph 7.3 of the Scheme, it is necessary to decide whether the tenure for at least two years as referred to in para 7.3 of the said Scheme is referable to (a) the date of accrual of vacancy (b) the date of proposal for filling up such vacancy (c) the date o .....

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ral Administrative Tribunal. It appears that the Union of India has followed the interpretation given by the Allahabad Bench of the Central Administrative Tribunal in giving appointments in question in these appeals 26. For the purpose of appreciating correct interpretation of para 7.3 of the said Scheme consistent with equity and justice and avoiding unmerited hardship to any eligible officer, it will be appropriate to refer to the method of appointment to the posts of General Managers and equi .....

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pointment of such officers from the panel who are not only held suitable for appointment to the posts of General Managers or equivalent but who have a tenure of at least two years from the date of accrual of the vacancy in their 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 .....

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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 equivalent. But the question that requires to be addressed is from which point o .....

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over others has a reasonable expectation to get appointment on the accrual of vacancy but if the actual appointment is not made promptly either on account of inherent time-lag associated with procedural formalities or on account of bureaucratic lethargy or by delaying the process of appointment in a calculated and designed manner an eligible and senior officer in the panel cannot but suffer unmerited hardship if para 7.3 is interpreted in the manner advocated by the learned counsel for the resp .....

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r and reasonable interpretation. In our view, para 7.3 must be held to be referable to the date of accrual of vacancy in order to ensure fairness and transparency in the matter of appointment as General Manager or equivalent. The date of accrual of vacancy is a fixed one and even if any manipulation is made about the date of accrual of vacancy, the actual date of accrual of vacancy can always be ascertained by a closer scrutiny. We, therefore, do not find any merit in the contention that accrual .....

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entiality 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 .....

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ppointment to the posts of General Managers and equivalent. The officers who had two years of service from the date of accrual of vacancy had been appointed because Shri Agarwal and Shri Kamal Raj had not such residual service with reference to the date of accrual of vacancy. Therefore, the question of ignoring a senior officer by relaxing the requirement of para 7.3 of the Scheme in favour of some of the junior officers did not arise. So far as Shri S.A.A. Zaidi is concerned, he was included in .....

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