FEDERATION OF OIRECTLY APPOINTED OFFICERS OF INDIAN RAILWAY.ANO Ol'HERS EJC. ETC. v. . UNION OF INDIA AND ORS. ETC. ETC.

A FEDERATION OF OIRECTLY APPOINTED OFFICERS OF INDIAN RAILWAY.ANO Ol'HERS EJC. ETC.

. UNION OF INDIA AND ORS. ETC. ETC.

B JUNE 18, 1993

[A.M. AHl\IADI AND MADAN MOHAN PUNCHHI, .JJ.l

. Civil Services : Indian Raihvay Sen·ice of Engineer.\: (C/ass-1)-AhsorP.tion (f temporary c Assiswm E1igi11eers <0.{{icers) imo the .~en·ice-Seniorir:y-H'eighrage-Ha(fthe length of sen·ice prior to atrwrption subjerr to a maxi11111111 of five ~·ears--;Correctness of-Dispute hetween parties in representative cdpaciry-Applicabiliry o_(Res .111dicc11a.

There were two parallel S~rviccs of Engineers ln the Indian Railwa~·s. D One was the Indian Railway Scn·ice of Engineers (Class-(1) who were subjected to competitive written and personality tests and appointed hy the President oflndia. The other Service· was the tcmporar~· Assistant Engineers (later known as TemporaQ' Assistant Officers) appointed by the Railway Board, on selection based on interview alone. In addition to the minimum educational qualifications which was the same for both the services three E )'Cars experience as Civil Engineer 'was required for the Railway Service of Engineers. '

The temporary Assistant Otlicers were gradually abscirbed into the Indian R.ailway Sen-ice of Engineers and the Railway Board took a decision F that they would l,>e given wcightage in ·seniorit~· on the basis of half the ·total length of continuous service in working posts in Railways prior to their permanent absorption into Cla--.-1 subject to a maximum weightage of five · years._

Writ Petitions were filed in this Court by the Federation of T cmporary G Officers Association. in a representative· capacity seeking relief in their seniority status.·

This Court dismissed the Writ Petitions holding that the classification of H temporary' Assistant Officers separate from the Indian Railwa~· Service

-. 1 RAILWAY OFFICERS FEDERA TJON \'. UNION OF INDIA 1019

Engineer·s Class-I, was neither discriminatory nor violative of Articles 14 and A 16 of the Constitution; and that the object of recruitment, methods of recruitment, appointing authority and training imparted being different, no question of their entitlement to equal rights arose till they were absorbed into the Indian Railway Service of Engineers Class-I. This Court also approved . the measures of the Railway Board in regard to giving weightage of half' the length of service as temporary Assistant Officers subjecttoa maximum offive B years. Their claim for equal status for equal 'pay and equal l\'ork was also rejected. (Katyani Dayal & Ors. v. U.O.i. [1980] 3 SCR 139).

In the present Writ Petitions and Civil Appeals filed in a representative capacity, the relief claimed were on the same lines as in Katyani Dayal's case. As directed by this Court the affected parties were impleaded in their c representative capacity, so that the decision of this .Court would he binding on every m~mber of both the classes of employees.

On hehalf <if the Petitioners/Appellants, it was. contend~d that equal pay for equal work with equality in ati other conditions of service including D avenues of confirmation, absorption, promotion, pension and security have . become inflexible postulates of Sfrvice jurisprudence.

The respondentS contended that what was being asked was a virtual review of Katyani Dayal's case which could not be permitted. It was also

- contended that principles of constructive res judicata would bar the re- E agitation of the. issues decided in Katyani Dayal's case if not the strict principles of res judicata.: and that when the matter has been settled in this particular sen ice, its unsettling by means of a petition under Article 32 of the Constitution was impermissi1!1e. F Dismissing the matters, this Court

1020 Sl1PREME COU,RT REPOl,{'rs [1993] 3 S.C.R.

A scr\•icc subject to a"maximum of five ~·cars, it would otherwise be imprudent now, at tllis point of ti'me to dig up. old issues. The rule of wcightage ats·o appears to he reasonable and this l" a pattern which has hee·n noticed and· apprO\'ed in m:-ny ? Service. Similarly when the dispute raised betw~oo the Officers in a representative capacity and Engineers riot so represented, siill .- -~

. . it was a dispute raised before this Collrt which has been decided finally. (1026 B B-D)

Kciryani Dayal & Ors. v. Union of India & Ors_,.[1980] 3SCR13~refcrred to.

c 2. The dispute now sought to be raised under· Article 32 of the Constitu- tion between the Officers in a representative capacity and Engineers across . also in a representative capacity is barred by principles of res jt~icata as also b~· the rule of constructive res jtulicata. (1026 D-E)

3. It cannot be said that the State is prohibited from creating separate D channels of sen ice. Equally when absorption had been made possible and its pace quickened with wcightage, it is difficult t_O find fault with the scheme at this point of time to look for a substitution, as that would unsettle a settled position, established more than a decade ~go. (1026 E-F)

E Direct Recruit Class // Engineering Officers Association v. State of Malwrashtra & Others1 [U~90] 2 ~CC 715, followed.

Raghunandan Prasad Singh v. Secretary, Home (Police) Department, Government ofBilwr & Ors. [1988) Suppl. SCC 519 & Dr. O.Z Hussain v. Union q(lndia,[1990) Supp. SCC 688, referred to. F CIVILORIGINALJURISDICTION: Writ Petition (Civil) Nos. 7900-02 of 1982.

WITH Writ Pl·titil1n N1 ;s. 837 & 853 of 1982. G ·(Under ;\n1-:k .i2 111 the l \111'lllulin11 l1f lnuiaJ

WITH H Civil Appeals Nos. 3137-38of1993.

r -· .... f / . . RAIL WA\' OFFIC~R.~ FEDERATIO'.' 'v. U/111011 QF llJOIA (PUl\t:l!HL l.I · 1021 r , . . I . ' . .

\ From the Judgment and Order dated 26.i84 & 21. 1,84 oithe Rafa'Stt;;,,, High A l'oun in'D.B. Civil Special Appeal Nos. 182 & 184of 1984. . ) - '.: WITH ' --\· - ·- ·, ' '

C.M.P. Nos. 19643-45 of 1988 & c.M.P:No.8272of1986..

R.K.'Garg, Anineshwar Gupia, R.K. ~and S.K. Gupta for the Petition- B ers in W.P. Nos. 7900, 7902/82, SLPs. 12682184, 830185. and forthe Respondent No. 4 in CA.No:·1649n8. _.:.L.- -·--. . . I T. Sridbaran for. the Petltioner in WPs. Nos..--837 & 853of1982. c M.K. Ramarnunhi, and Parijat Sinha for the Appellants in CA. No. I 649n8 an.d for the Respondent No, 4 in WPs. Nos. 7900-02/82.: ., .

.R.F. Nariman and P.H. Parekh for the intervenor i.n ~Ps. Nos. 7900-02/82 .. ~--- -- - ----· D _ V.R. Reddy, Additional Solicitor General, V.C. Mahajan, Ms. B. Sunita Rao, V.K. Verma and Ms. A. Subhashini for the Respondent in U.0.1.

C.V.S. Rao, (NP) for the Respondent in SLP Nos; 12682184, 830/85. ---

C. V. Rappai for the Respondent No; 14 in WP. Nos. 7900-02/82. E r· '· -- .· TbeJudgrnent of th~ Coun was delivered by . . .· '- ~--- . . - PUNCHHI, J. These are a handful of writ petitlo~s and special leave petitions which, on grant of leave hereby, and having become appeals. can F conveniently be disposed of by a common j~dgment. '

The fulcrum of the contrO;ersy herein, and the shadow in which it works is a three-judge llench decision of this Coun in Karyani Dayal & Ors. v. Union of India. & Ors .. [1980] 3 SCR 139 decided on March 26. 1980. Before advening to · the facts and circumstances in which this cause has been presented to this Coun G it_would,be fruitful to give a broad outline of Karyani Dayal's case. in the imnliictiaiely succeeding paragraphs.

Connected with Karyani Dayal's case were writ petitions filed in arepresen- II·

"";1 ,", ;-?:;~·,,_:\~-~( ).''2, \ ix • . ~: 1~2'.; 1 • . •. ·-~~~UP~E~~~RTREro~T5,I /. [I99313S.C.R.

', _'. ..\'< t~ti~e capacity, purporting to represent all temporary Assistan.i Engineers (on a .· later point of time .kno;._,n as temporarr Assistant Officers) appointed by· the }...._ R:tilway Board. pursuant to the authority given liy the President of India. on the. - recommendations of the Union Public Service.Co~sslon; selection based on interview alone: There WaS a separate classification of such temporary Assistaflt. . Officers when compared with India Rail~ay Service Engineers (Class I). Direct . ·n _1:e~ru_it~t~_th_e Indian Railway Service of Engineers (Class I) were subjected to. competitive written and personality tests and in the nature of things only the very best coul<l_:emerge out successfully. On the other hand temporary Assistant Officers, (hereafter.referred as 'Officers•·at places) were neither subjected to •,;,.ritten nor to a per.sonality test but. as s:tid before. were selected. on the b.Sis of · interview. BeSides the minimuffi educatioOal quiilification. which was the. saffie · c for both the services three years experience as a Civil Engineer wa5 additionally- /required for the aspirants to the Indian Railway Service of Engineers (Class'!) · · (hereafter referred .to a5 the •Engineers' at places). While the President was the appOiiiti.ng authority-of_the Engil).eers. the Rlitway .BOaici was· the.aJJPointing authority of the Officers ..Both the members of these setVices on selection were due .· D for different courses of training ~3rniarked separately. There were a host of other factors which_ distinguished the qu3Iity and character of the personnel of the two · parallel services as elaborately' detailed in Katyani Daya/'s case (supra): .. ·

Between theyears• 19S5 and 1964, as many as 553 officers (tempor:liy · Assistant Engineers) were appointed by the Railway Board through the Union . . l....-- E · Public Service Coinmission.· Though in the letters of appointtnent the officers (temp0rary Assistant.Engineers) and others concerned were told that six o.f them .. would beabsorbed into the In(jian Railway Service of Engineers (Class I) every · year. this.figure in the subsequtri_tyearS YI_~ inCiease;d from iime-tOliffie."When in · ' 1975. uie figure as ·increased stood at 25 per year. The net result w~ that after F . . ·. 107 .Office~s ·.absbrption. . . were . . residualiy . . left unabsorbed . . .J976 by the· .in the year '. time of the filing of the connected writ petitions in Karyani Dayal's case and they too were finally absorbed in.1979 by what was described as a "blanket order".. · ·-i' Before band on September 17. 1965, the Railway Board bad taken a decision to the effect that the Officers so absorbed into the Indian Service ofEngineers would be givell Weightage in 'seniority "orl tbC basis Of half the to.ta! yCars of colltinllouS G service in.working posts in Railways prior to theirperrnanent absorption into Class .. I, subject to a· maximum weigbtage of five years". The then 1.rit petitioners. - - _describing themselves as members of the. Federation of Temporary Officers Association, Indian Railways joining with them. their President. Vice-Pres_ident .. ···--r-' ff and Secretary of the aforesaid Federation as writ petitioners approached this Court

c" .'-j-/,'/---.,-, -~ :\, I • '\-4". ' • ~. '; ~-..._-~

(023 \ .' ' in a r~preseniative ca~~city to se~k felief in th,eir senioz:ity status. A \

. ' . The principal claim of the writ petitioners was that Officers were appointed . to temporary posts on the .cadfe of Engineers and that their seniolity had ·to be reckoned on the basis o!theirlenith of_co~tlnuous service. thC?ugh they coflceded · that in _any given year. the candidates apPolnted as Engineers on_ the basis of the results of the competitive examinations were placed above those appointed on the. 8 basis of selection by the Union Public Service Commission. The challenge was to the authori\y ofilie ~ail way Board to create such an unclassified parallel service, something outside the pervlew of the-Indiari Railway Establishinent Board. Notwithstanding the procedure of selection so adopted the writ petitioners . contended thai they were recruited in Class I serVice and supponed their claim on c ·_ ·diveise grounds sO as to obtain the result that an Assistabt Engineers formed One ·c1as's under the Indian. RailwayEstablishmelll Roan:!. Challenge was mad.e to the classification of personnel into those that were recruited on the basis of the_ competitive ex:iminations and those that were recruited by selection. but both by Union Public Service Commission, t~nning it as arbitrary and not permissible · under the. equality -, ~ clause .in-the Constitution. Grievance - . was voiced. that the right D of absorption of a handful of temporary Engineers (Officers) every year into the Service of Engineers was arbitrary·_and )n.equituous resulting iO grave injustice rerldering _decades of seryice Or the Officers t~ a mere waste. -

Unfortunately the then writ petitioners did not sue the respondents across in . E . a representative capadty. In the fitness of things it would have been appropriate \ for the...then wrii -petitioners ' .· to eitherinvolve . . . . all Parties - •'. who could ' po~sibly have 'an interest or a likely affectation in the litigation. or to slte them in a representative - capacity if.not indi.vi.dually: However some people did get impleaded as panies in , that case to iiroiect. theif: point of view and due to the nawre of dispute those . predominantly were members of the Indian Railways Service of Engineers Class F. L This Coun while dismissing the writ petitions held that ihe classification of temporary Assistant Offi~ers separately from the Indian Railway Service Engi- neers of {::lass I \Vas neither discriminatory nor violative of Articles 14 and 16 of the Coristltlltion. for uie reason tha.t it had nexus to the object sought to be achieved, which mamly was efficiency o.f service, and that .both the services had stirted separately and never became one. This Coun funher viewed that the object of G recruit11_1ent beiOg clirferen4 the methods of recruitinent,diSsimilar. the appointing - - authori_ty being not Che same. the ~3..iniqg impaftect to the t~O Unlike. the tenure of temporary Assistant Office; heing precarious. and their maximum aspiration . being only to be abSorbed into the Indian _Railway Service Of EngiOeers Cl;l~~ '.' - H

~-.'_/-,-',;---: -... \ ·~ -10;4/ . "'--\ - :s~~~lE~URTREPORTS ._,~-,, . . . .X I / [t99l}3 S.C.R. \

---,\ ~\ ' ·,\~. r ' • '-, ·, ..., ~ ' ', .__ -. . . . . , A \were distinctive features and. therefore. no question of their entitlement to equal . 'rlgbts arose until and unless the temporary Assistant Officers goi absorbed into the \ . Indian Railway Service of Engineers Class-I. This court also ruled that the ··._ seniority of the absorbed temporary Assistant Officers would ordinarily reckon from the da~ of their absorption into the Indian Railway Service of Engineers Class I as stipulated in their letters of appointment. With regard to.the Ume factor, this "Court also took into account the long wait involved in the process but all the . same approved of the measures of the Railway Board in iessening the long wait by giving the·rn ~eightage of half of the length of service as temporary Assistant Officers subject to the maximum of five years. And IasUy this court rejected the claim of the temporary Assistant Officers asking for ..equal status for equal pay . and equal work" leaving a ray of hope that such goal might be achieved in the not too distant future. . / . The instant batch of mattefs is virtually on the saine Jines a8 ofKatyani Dayal's case claiming the same relief and this time by the Temporary Assistant ~ Officers through a body styled as the Federation of Directly_ Appointed Officers · D (Suppressed) of Indian Railways and a few others, in a representative capacity . across whiclptand arrayed the Union of India and the Railway Boaid as. respondents. When this matter came up for hearing on 15 March, 1990 before a three-judge Bench in which one of u~ (Punchhi, J.) was a member, i.t was.felt that the affected parties should be impleaded in their representative capadty so as to make the decision of this Court binding on every member cif bcith the classes of . L- E employees. The requisite direction was thus made• and carried ouL Pursuant .. . . thereto some private respondents on record represent the entire body of similarly· placed Engfoeers.-Thus both sides have sued and are being su.!d iri theirrepresen~ tative capacity. . .

M:r. R.K. Garg. learned counsel ror th~ petitioners has spear-head~d the claim of the temporary.Assistant Officers on the .basis of the so called developing concept of Article 14 iD the years gone by, especially in the field of the rigll! to --i' . equality in matters relating to employment on appointment in service. He asserts · that the development oflaw has gone. a long way so as to shed the views expressed in Katyani Dayal's case justifying demolition of the demarcation between the two services mlli:te as it was in Katyani Daya l's case examining the question afresh i_n_ • the light of Raghunandan Prasad Singh v. Secretary, Home (Police) Department, , Gm•emment ofBihar & O~ (1988) Supp. SCC 519, Dr. O.Z Htissain v. Union of /ndia[l990)Supp~ SCC 688 at 691, & Direct Recrttit Class JI Engineering H Officers Assoi:iatipn v. State of Maharashtra & Others [19_90j 2 SCC 715 and·· ·,, Y

RAIL\\'!\ y OFl·ICl·:RS FEl>I R.\ fl()' I I ''()" 01' '"'If.\ Jl'lfNC!llll. .l.J 1025

other cases. It was contended thul KaTyani Dayal 's case upholding the creation of A temporary posts outside the service was on the basis which has since been eroded and •·equal pay for equal work" with equality in all other conditions of service

- . including avenues of confirmation, absorption, promotion, pension and security . have become inflexible postulates of service jurisprudence. On the other hand, learned counsel for the respondents has opposed such method contending that what is being asked is a virtual review of Karyani Daya/'s case which is not B 0

permissible by means of successive writ petitions. A ddedly it is urged that principles of constructive res judicara would bar the re-agitation of the issues decided in Katyani Daya/'s case, if not the strict pr4nciples of res judicara. Lastly it was urged that'when the matter has been settled in this particular service, its unsettling by means of a petition under Article 32 of the Constitution is impermis- sible. c

We were taken through Karyani Da)·al.'s case extensively. What we find is that the distinction and the classification of the temporary Assistant Officers and members of the Indian Railway Service of Engineers Class I fell clearly to be identified and marked. The only method of fusion was by means of a phased absorption as noticed in paragraph 9 of the Report detailed above. The scheme having met with approval of this Court cannot by mere passage of time be taken to have become vulnerable by subsequent exponence and dimension of Article 14 ofttie Constitution. This Court in Ka0•w1i Daya l's case specifically said that relief of equality was being denied to the then petitioners because of the history, origin, and structure of the Services. No upinio11 was expressed however as to the validity of the given \\.·eightage of half the length of service to Temporary Assistant Officers. subject to a maximum of five years, because of its being questioned elsewhere.

We are unable to make any headway or act in judicial indiscipline towards F. widening the scope of these matters in the face of the Constitution Bench decision of Direct Recruit's case (supra). Amongst the conclusions summed up by the Constitution Bench conclusion(}) and (K) seal the fate of~ese matters. These are:

"(J) The decision dealing with important questions concerning a particular service given after careful consideration should be re- G specte'd rather than scrutinised for finding out any possible error. It is not in the interest of service to unsetU.t a settled position.

(K) That a dispute raised by an application under Article 32 of the Ii

1026 SUPREME COURT REPORTS. (1993) 3 S.C.R.

A Constitution must be held to be barred bY, principles of resjudicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final." ...__

T.he distinction between .the. two services was well marked in Ka1yani B · Daya l's case (su·pra) and the important question of equality was once forall settled. To find fault with it, at this juncture again on the touch-stone of equality dimension would be to unsettle a settled position. That venture is neither-in the interest of . justice nor in the interest of service. When there has been complete absorption of the personnel of one service into the other, and the seniority of the absorbees is to c be reckonedfrom their date of absorption as stipulated in their appointment latters and as held by this Court with weightage of half the length or service subject to a maximum of five years, it would otlierwise be imprudent now, at this point of time to dig up old issues. The rule ofweightage also appears to us to be reasonable and this is a pattern which has been noticed and approved in many a Service. Similarly when the_ dispute raised between the Officers in a representative capacity and 0 Engineers not so represented, in Katyani Daya l's case (supra), still it was a dispute raised before this Court which has been decided finally. A dispute now sought to be raised under Article 32 of the Constitution between the Officers in a represen- tative capacity and Engineers across also in a representative capacity must be held to be barred by principl_es of res judicaia as also in the_ rule of constructive res judicata. The ca;;es aforementioned relied upon by learned counsel for the E .petitioners/appellants do not remove this hurdle, however, broadly may Article 14 · and 16 be viewed and expanded. It is thus u_nnecessary_ to elaborate those cases and discover their ratio. The argument oflearned counsel for the appellant that the State is prohibited to create separate channels of service and create discrimination by making one as an isolated one, and not providing for promotional avenues rea5onably, falls to the ground in view of the bar of re-agitation erected by Direct F Recruit's case (supra). Equally when absorption had b~en made possibl~ and its pace quickened wilh weightage. it i.s difficult to find fault with the scheme at this point ot· time to look for a substitution at our end, as that would unsettle a settled position, established mo·re than a dec.ade ago. We also do not see any compelling reasons to deviate from the principles enunciated in the judgment. At this point of time the bars erected by Direct Recruit's case (supra) appear to us tci have further G thickened goading us to refrain from the exercise of any undoing. we thus leave the matter as it is.

It needs mentioning that the appeals being decided instantly are against the· H judgments and orders of the High Court rejecting writ petitions of the petitioners

' RAILWAY.OTICfl!S~DE~\lJOtJ~. UtJJONOf lt'DIA '. lel'NCHIII. J., 10;!7 ,, , '. before~ton the basisof Ka/yani Dayal's case (supra). NO details of these cases are A necessary to. dispose of these appeals for the reasons stated above.

As a result these petitions and appeals fail., but without any order as to costs. · In view of the dismissal of the main matters, no orders .are necessary on all .the· C.M.Ps: · . '' G.N. Matters dismissed.