RBSS: No one should be a judge in his own matter and no one should be allowed to be judge in their own subject
(i) Proposed Review #DPCs of Grade-I (Under Secretary/Deputy Director Grade) of #RBSS in violation of decisions of #ConstitutionBench of #SupremeCourt based on an illegal #seniority list which is under challenge before Hon’ble #HighCourt and various other illegallities in the proposed review #DPC proposal.
(ii) Processing of review DPC proposals in violation of “Principals of Natural Justice” which is bound to result in gross miscarriage of Justice against the officers of #promotee stream. The following principles of natural justice are being violated viz:
• No one should be a judge in his own matter (DR SOs working as Director (E) and JS(G) are being allowed to be judge in their own matter related to inter-se seniority vis-à-vis Promotee SOs and Board has conceived the entire proposal based on their biased views).
• No one can be condemned unheard (Officers of promotee SO stream are being condemned without being heard. The entire proposal is being framed at their back without their knowledge about the reasonings and grounds for holding review DPC at a stage when the matter in before Hon’ble High Court of Delhi).
• The party is entitled to know each and every reason and the decision taken by the authority (While officers of DR SO stream are themselves putting forward the proposal, the officers of promote stream have been denied opportunity of knowing the reasons behind the entire proposal).
Recently, a officer of RBSS cadre in Railway Board has written a letter to the Chairman Railway Board and CEO, Rail Bhawan, New Delhi, Secretary, Railway Board, Rail Bhawan, New Delhi, Secretary, UPSC, Shahjahan Road, New Delhi and Secretary, Department of Personnel & Training in the above subject. He has also given a copy of this letter to Member/Finance, Railway Board. In this letter, he has complained about discrepancies in promotions between Direct and Promotee SOs. He has also written about complaining behaviour of reserved SOs against general class SOs for refraining and stopping their career progression. The officers of DR SO stream are working in tendem with the officers of reserved category and making complaints against whosoever officer in RBSS/UPSC resists the illegalities. To understand the complete situation of this problem, please read the following details-
BACKGROUND
1. Railway Board Secretariat Service (#RBSS) was constituted in 1954 and again reconstituted in 1969 on the pattern of Central Staffing Scheme (#CSS). Accordingly its #service-rules were notified in 1969 on the pattern of CSS Rules, 1962. The Service had direct entry at two levels i.e. Assistant Grade and Section Officer (#SO) grade. The service kept on expanding horizontally as well as vertically and its initial strength kept on increasing though in the #Rules authorized strength on the date of start of service viz appointed day continued to be same as in 1969. Specific clauses in the RBSS Rules, 1969 themselves allowed the #Railway administration to change the authorized strength as per requirement. A permanent post means a post which exists without any time limit and carries with it a definite rate of pay. As may be seen from the facts governing horizontal expansion of service, all such expansions were of permanent nature as the same was never contracted. Similarly, the service all witnessed vertical expansion in due couse of time. While its initial composition of service as per #statutory RRs, the service had only 4 grades the #apex-grade being at the level of JA Grade (Dy.Secy/Jt.Director), three new higher grades viz i.e. of #Director, #SAG (JS/ED) and #Advisor were created in the service over the period without any formal amendment in the composition of service as given in the statutory RBSS Rules. All the appointees of these additionally posts created in service due to #horizontal and #vertical expansions got all the due service benfits including #pensionary benefits. Majority of the incumbents of the posts of ED/JS (SAG) were from DR SO stream and they have been enjoying benefit of #pension etc. corresponding above higher grades which werenever part of the RBSS Rules, 1969.
2. As highest level of direct recruitment (#DR) in the service was at the level of Direct SO, the persons appointed in this grade naturally occupied most of the posts in highest grades of the service. These officers also remained as incharge of housekeeping of RBSS i.e. upkeep of #records, #recruitment, #promotion and #maintenance of seniority etc. The officers entering as Direct recruit SO and reaching the grade of Joint Secretary and Advisor continue to enjoy post retirement pensionary benefits based on their position in such grades which was never part of the service as per service rules.
3. When any grade of any service has more than one sources of appointment, there is requirement publication of the inter-se seniority list of incumbents posted from such different sources. Despite passage of about 4 decades, no inter-se seniority list between DR SOs and promotee SOs was drawn by house keeping branches of RBSS which had been working mostly under the #supervision of officers of DR SO stream. The same led to #litigation on the issue from the year 2007 onwards. Ultimately a #judgement dated 31.05.2016 in OA No. 591/2009 with OA No. 2981/2009 was passed by Hon’ble CAT/PB/New Delhi. The operative part containing direction of above judgement was as follows:
• “The #Respondent No. 1 is, therefore, directed to re-cast the entire year-wise Seniority Lists of the RBSS at the level of Section Officers, from the very beginning of the RBSS as a Service, on the basis of principles as have been explained above, which may again be summarised as below:-
• “i) The latin maxims fiat justitia et pereat mundus or fiat justitia ruat caelum, commonly ascribed to Ferdinand I, Holy Roman Emperor, and roughly meaning “let there be justice, though the world perish”, or “let justice be done, though the heavens fall” would apply, and, justice must be done, regardless of the result otherwise, and the law of the land shall be applied, and the plea of the official respondents that there would be chaos or mayhem, if the practice and system of assigning inter-se seniority of SOs as had been adopted by them is ordered to be changed is rejected outright. Let chaos and mayhem prevail once, so that inter-se seniority of the respective sides are fixed in a legal manner, once and for all, and in future also.
• ii) Each and every person can #claim seniority in the cadre of Section Officers only from the date of his substantive appointment in that cadre, irrespective of the year during which the vacancy which he came to substantively occupy had arisen earlier;
• iii) This proposition would apply to all categories of Section Officers, whether they were Direct Recruits nominated by #UPSC, or Departmental Promotees, through any of the routes of (i) seniority-cum-merit-based promotion after 8 years’ of continuous service, or (ii) accelerated promotion through #LDCE route, after completion of 4 years’ of service as Assistants, or (iii) through promotion of the #Stenographers in respect of the two earmarked vacancies, which continued to be so #earmarked till the promulgation of the RBSS Amendment Rules of 2004;
• iv) No weightage whatsoever can be, or shall be given to anybody in respect of any In-charge, or ad hoc, or officiating basis appointment as Section Officers, even if he had been included in the Select List of SOs by the DPC already, before his assuming charge as such, or had qualified for accelerated promotion being granted to him through the LDCE route, before his assuming charge as such, until such a person comes to substantively occupy the post of SO either in the regular DP quota, or the DR quota transferred to the DP mode after having remained unfilled for two years.
• v) The seniority in the cadre of Section Officers at level-3 of RBSS so determined, in the manner as indicated above, shall alone be taken into consideration of further promotions to level-2 and level-1 of RBSS thereafter.
• vi) The Respondent No. 1 shall, after finalization of the SOs’ level Seniority List, convene DPCs or Review DPCs, for considering year-wise further promotions of all the incumbent SOs in that seniority list as Under Secretaries and Deputy Secretaries etc., and so on.
4. We were not a party in the above litigation and it is observed that the Hon’ble CAT did not take cognizance of changes in the concept of substantive appointment/substantive vacancies as approved/notified by Government of India 1988/1989 based on recommendations of a specific task force constituted by them. Since 1989 only regular service is applicable for various purposes under Government of India. The regular service as above is defined in DPC guidelines of #DOPT and it is distinct from “In-charge, or ad hoc, or officiating basis appointment.” As may be observed from the judgment the case was on the issue of seniority and not on approved service. There was no direction regarding revision of approved service of the SOs (appointed on regular basis through UPSC as per DPC guidelines). The Hon’ble CAT had not deliberated on the decisions of Union Cabinet which had changed the concept of substantive appointment based on recommendations of task force constituted by the Government. Instructions were issued vide DOPT OM No. 18011/1/86 Estt (D) dated 28.03.1988 on the subject of simplification of confirmation procedure and delinking of confirmation from availability of permanent posts and thus seniority.
5. Further the 5 Judge Constitution bench of Hon’ble Supreme Court in Direct Recruit Class-II Engineering Officers’ Association vs. State Of Maharashtra and Ors 1990 AIR 1607, 1990 SCR (2) 900, decided on 02.05.1990 had pronounce the following law of the land:
“44. To sum up, we hold that:
• Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
• If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
• When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
• If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
• Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date.
• Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
• The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
• If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.
• The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.
• The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position.”
• The above letter was a judgement in rem and and its implementation was discussed by DOPT in consultation with other departments of Government of India including Ministry of Railways and ultimately same was implemented vide DOPT OM No. 20011/5/90 Estt(D) dated 4.11.1992. Above judgement of Hon’ble Supreme Court has never been reversed by any larger bench of Hon’ble Supreme Court and thus binding on all the government authorities as well as bench of Supreme Court with lower composition, High Courts and Central Administrative Tribunal.
6. As already stated, once the Union cabinet had delinked seniority from confirmation/substantive appointment from 1988/1989 onwards and law on inter se seniority was declared by 5 judge constitution bench of Hon’ble Supreme Court (which has never been reversed by a higher Supreme Court bench) all the government authorities/departments as well as subordinate courts are supposed to follow and abide by the same. After delinking of seniority from confirmation from 1988/1989 onwards and implementation of above judgement, in none of the orders issued by DOPT, terminology ‘substantive appointment’ has been used for determination of seniority.
7. Above judgement was not produced by the petitioners in OA No. 591/2009 with OA No. 2981/2009 before CAT. He was never a party in above court matter. However, while implementing the CAT/PB New Delhi judgement in above OAs, Railway Board without consulting nodal agencies viz DOPT and UPSC has unilaterally issued a seniority list vide letter no. ERB-1/2012/17/3 dated 29.08.2017 wherein Regularly appointed SOs of promotee stream have been pushed down by upto 9 years from the year of their regular appointment through UPSC. Not only this the approved service of these regularly appointed SOs has also been reduced by upto 9 years though there was no direction of Hon’ble CAT/PB in judgement dated 31.05.2016 for reassigning approved service.
8. The definition of approved service as laid down in statutory service rules nowhere has any linkage with substantive appointment/confirmation. The approved service had been granted only based on regular service as per the provisions of statutory RBSS Rules, 1969 and calculation of regular vacancies was strictly in terms of DPC guidelines issued by DOP&T from time to time. Above regular service did not include any officiating or adhoc service. Further approved service was reduced without giving any show cause notice to us who were not party in above OA. Such action was against the principles of natural justice.
9. Further, Hon’ble CAT in para 16 of their judgement had recorded following findings:
• “Therefore, the first legal conclusion which emanates is that the Railway Board is competent only to perform functions and duties in respect of the Zonal Railways, and not in respect of itself, since it is only an Attached Office of the Central Government. Therefore, there is a doubt in law as to whether the Railway Board could have ever, either earlier under the 1890 Act, since repealed, or even under the new Railways Act, 1989, which has come into force w.e.f. 01.07.1990, constituted a separate service for itself, like the RBSS, which it did Therefore, there is a doubt in law as to whether the Railway Board could have ever, either earlier under the 1890 Act, since repealed, or even under the new Railways Act, 1989, which has come into force w.e.f. 01.07.1990, constituted a separate service for itself, like the RBSS, which it did. But since none of the parties among the applicants, or the private respondents, have challenged the creation and constitution of the RBSS itself, therefore, we cannot comment any further on this aspect, or lay down any law in this regard.”
10. In para 46 the Hon’ble Tribunal had taken cognisance of the gradual vertical and horizontal expansion of RBSS and observed as follows:
• “46. The posts included in the RBSS were given in a tabular form as follows:-
11. Hon’ble #Tribunal had also taken cognigance that the posts of SAG and HAG in RBSS were not created with the approval of competent authority i.e. Union Cabinet and recorded in para 55 as follows:
• “55. The official respondents R-1 & R-2 had thereafter defended the creation of the posts equivalent to Additional Secretary and Joint Secretary level in the Govt. of India also in RBSS, without any authority from the Cabinet of Union of India having been obtained for doing so, outside the Central Staffing Scheme pattern, and had explained the cases of a few individual officers who had been so promoted, in the parawise counter reply submitted by them.”
12. Thus Hon’ble #Tribunal had taken note of the creation of posts of SAG and HAG by Railway Board itself without going to Union Cabinet. In above position it is very strage that while the officer o0f DR SO stream have been enjoying the benefits of above SAG/HAG posts (including pension) created without approval of competent authority for last several decades, they are making all out efforts to push down the officers of promotee SO stream. This is being done with intention (i) to make their journey faster, to the posts of SAG/HAG (created without the approval of Union Cabinet) and (ii) to punish/push down the officers of promote stream for challenging the seniority. The seniority issued in the year 2017 has been issued completely overlooking the sanctioned strength in the grade of SO at relevant time and the number of regular vacancies which actually occurred in the respective year.
13. As may be seen officers of DR SO stream are making all out efforts to deny the benefit of expansion of RBSS at the level of SO/Under Secretary/DS etc. to promote officers and trying to snatch the benfits already granted to officers of promote SO stream several decades ago got due to creation of additional posts.
14. As Hon’ble CAT had made observation regarding actual strength of RBSS in para 46 of their judgement as well as creation of posts of SAG and HAG without the approval of compent authority i.e. Union Cabinet, it was incumbent on the Railway Board administration to allow the benefit of the expansion of the service to both the streams simultaneously. While the benfit granted to those posted to SAG/HAG beyond the authorized strength has been allowed to be perpetuated, the benfit that accrued to officers of promote SO stream has been arbitrarily sought to be snatched through above seniority list that too by ignoring the decision of Union Cabit and Constitution Bench of Hon’ble Supreme Court as accepted by Government of India (including Ministry of Railways).
15. When Hon’ble Tribunal had raised question mark on the #competence of the #RailwayBoard and #policy of Government of India on the aspect of seniority and approved service is regulated by #DOPT and #UPSC, it was obligatory on part of Railway Board to consult above authorities before issuing the seniority list. However, the seniority list was issued without consulting above authorities and the sanctioned strength of RBSS to relevant time and also the policy of Government of India.
16. Issue of seniority list and reduction of approved service vide letter no. ERB-1/2012/17/3 dated 29.08.2017 ignoring the sanctioned strength of RBSS and without consulting DOPT and UPSC was an illegal act on behalf of Railway Board administration at the behest of DR SOs who have been handling the issue on behalf of Railway Board and posted as JS/JS(G) etc. The action was not only illegal but malafide also as the same was aimed at granting undue benefit to officers of DR SO stream while punishing officers of promotee SO stream as a class for raising a dispute on the seniority.
17. Above orders of #CAT and the seniority list dated 29.08.2017 are presently under challenge before Hon’ble High Court in a WP. While above matter is pending adjudication before Hon’ble High Court of Delhi, the administration on the strength of reduced approved service/depressed seniority of officers of promotee stream, has promoted officer of DR SO stream superseding the erstwhile seniors of promotee stream.
18. Now it is learnt that another attempt is being made by officers of DR SO stream to further punish/push down the already promoted officers of Promotee Stream of General Category. In the act some officers of Reserved category are also in connivance with the officers of DR SO stream. It is learn that some Review DPC proposal has been clandestinely got approved from Chairman/Railway Board and being sent to UPSC. Though the officers of promotee stream have not been informed of the exact proposal and reasoning behind the same at a time when entire matter is pending before Hon’ble High Court of Delhi. They are apprehend that the Review DPC proposal is being pushed to UPSC clandestinely have the following illegalities-
• Non-circulation of fresh ZOC among the affected officers which is necessary to ensure principles of natural justice and thus to grant opportunity to the affected party being heard before any adverse decision. Publication fo ZOC among affected parties is also a requirement as per check list required to be submitted with the DPC/Review DPC proposal.
• Mismatch between number of vacancies in US/DD grade in a year vis a vis vacancies in SO grade in the same year as reflected in the SO seniority list. The vacancies in the SO are supposed to be higher than those in the grade of DD/US as per the methodology for calculation of vacancies.
• Non-removal of illegally appointed Grade ‘B’ PSs 1986 onwards through lateral entry at the level of DD/US despite in judgement of Hon’ble CAT/PB/New Delhi’s orders dated 11.10.2013 in O.A. No.2145/2009 (Ram Shankar Shukla and Others vs UOI and Ors), orders dated 09.05.2014 in R.A. 208/2013 O.A. No. 2145/2009 and judgement dated 31.05.2016 of Hon’ble Delhi High Court in WP(C) 3416/2014 (R. SHYAMALA AND ANR vs UNION OF INDIA & ORS.)
• Arbitrary reduction in approved service of promote SOs without consulting DOPT/UPSC though there was no direction of Hon’ble CAT. Further such reduction was made without giving opportunity to the affected officers / non-petitioners which is violation of principles of natural justice.
• It is apprehended that the review DPC proposal is being mooted on some fallacious presumption / misrepresentation of facts that judgement of CAT/PB OA No. 591/2009 with OA No. 2981/2009 has attained finality. The fact is that above judgement was against Hon’ble Supreme Court’s 5 judge Constitution bench judgement in Direct Recruit Class-II Engineering Officers’ Association vs. State of Maharashtra and Ors 1990 AIR 1607, 1990 SCR (2) 900, decided on 02.05.1990 which has been accepted and implemented by Govt. of India/Railway Board. Further the judgement of CAT as well as the seniority list is already under challenge before Hon’ble High Court for adjudication on all above illegalities by Hon’ble High Court of Delhi.
• A number of candidates of reserved category have been included in the SO seniority lists DD panels based on 4 years service as against requirement of 8 years service based on some notification which was never notified in Gazette of India and this never came into force.
• Grant of excess quota to reserve category candidates in SO seniority lists / DD panels than that permissible as per constitutional provisions on reservation as interpreted in M. Nagaraja matter.
• Non-consultation with DOPT and UPSC while issuing seniority list/reducing the approved service of promote officers in violation of policy/principles applicable under govt of India as laid down by DOPT. It is against all norms to utilize a seniority list issued without consultation with DOPT and UPSC wherein approved service has been reduced without any direction of CAT and where the relevant rule does not prescribe any linkage with substantive appointment
• It is illegal to utilize a seniority list of SO which has been issued based on a presumed number of substantive vacancies upto 2004 whereas the concept of substantive appointment/confirmation for determining seniority has got changed since 1989. Further when Hon’ble CAT vide para 46 of their judgement had already taken cognigance of the horizontal and vertical expansion of RBSS.
• Adopting a misconception that since RBSS Rules are statutory hence seniority is linked with substantive appointment citing some provision of Rules does not hold ground. RBSS rules are just a piece of subordinate legislation wherein the judgment of Hon’ble Supreme Court in “Direct Recruit Class-II Engineering Officers’ Association vs. State of Maharashtra and Ors” 1990 AIR 1607, 1990 SCR (2) 900, decided on 02.05.1990 was a declaration of law as per article 145(3) of Constitution of India. The portion of #subordinate legislation which is in conflict with law declared by Supreme Court is supposed to be non-establishment from the date of declaration of such law by Hon’ble Supreme Court.
• Confusion is being created regarding sanctioned strength of RBSS. Such argument are mischievous as the service has expanded horizontally and vertically leading to creation of posts upto #SAG/#HAG and cognigance thereof was already taken by Hon’ble CAT. As such the promote alone cannot be denied the benefit of such expansion while allowing the benfit of SAG/HAG posts to the officers of DR SO stream. Any such stand is arbitrary and partisan. Any vacancy existing/operated for more than one year is a regular vacancy and service rendered against the same is an approved service irrespective from which service this post was borrowed or the post was temporary or permanent. Recently two additional post of #IRPS to the level of SAG are being operated in RBSS and the incumbents thereof are enjoying all the ebenfits as if these are their cadre posts. They will also claim / get benfit of approved services against officiation as SAG against above borrowed posts.
• The review DPC proposals is being processed in violation of “Principals of Natural Justice” which is bound to result in gross miscarriage of Justice against the officers of promotee stream. The following principles of natural justice are being violated viz:
• a) No one should be a judge in his own matter (DR SOs working as Director (E) and JS(G) are being allowed to be judge in their own matter related to inter-se seniority vis-à-vis Promotee SOs and Board has conceived the entire proposal based on their biased views).
• b) No one can be condemned unheard (Officers of promotee SO satream are being condemned without being heard. The entire proposal is being framed at their back without their knowledge about the reasonings and grounds for holding review DPC at a stage when the matter is before Hon’ble High Court of Delhi).
• c) The party is entitled to know each and every reason and the decision taken by the authority (While officers of DR SO stream are themselves putting forward the proposal, the officers of promotee stream have been denied opportunity of knowing the reasons behind the entire proposal).
It is understood that the officers of DR SO stream are working in tendem with the officers of reserved category and making complaints against whosoever officer in RBSS/UPSC resists the illegalities. It is requested that such pressure tactics may kindly be ignored and lawful decision should be taken duly protecting the interests of promotee officers (especially those belonging to General Category).
In view of the above position it is prayed that the seniority list/approved service as notified/modified vide Railway Board Letter No. ERB-1/2012/17/3 dated 29.08.2017 may kindly be modified duly taking into account above submissions or else.
Decision of Hon’ble High Court Delhi in the pending WPs may be awaited and till such time no review DPC may kindly be held based on illegal seniority list as circulated vide above letter dated 29.08.2017.