Abdul Rehman and Others vs Union of India and Others

A.K. Patnaik, C.J.

This is an application for review of the order dated 16.8.2005 passed by the Division Bench of this Court in WP(S) No. 2816 of 2003 and has been filed by the applicants who were not parties in W.P. (S) No. 2816 of 2003.

The relevant facts as stated in the order dated 16.8.2005 in W.P. (S) No.2816 of 2006 briefly are that the Central Railway commenced setting up of a new Coach Repair Workshop (for short ''the CRWS) at Nishatpura, Bhopal in the year 1985-86. The construction of the CRWS was scheduled to be completed and production was to commence therein from the year 1989. Since the CRWS required a large number of technical and other categories of staff, it was decided to invite options from the existing staff of other units and divisions of Central Railways for transfer and eventual absorption in the CRWS. Accordingly, a circular dated 19.6.1987 was issued by the office of the Deputy Chief Mechanical Engineer, CRWS calling for options such transfer and absorption in the prescribed format from staff of different categories mentioned therein of the concerned Departments to the CRWS. In the circular dated 19.6.1987, it was categorically stipulated that the staff transferred to CRWS will maintain their seniority and lien in the parent department until such time they are permanently absorbed in the CRWS and that the CRWS will form a new cadre and once the cadre is closed, seniority of staff will be regulated independently strictly in accordance with the entry in the CRWS cadre. In the circular dated 19.6.1987 it was also stated that the last date of receipt of option was 31st August, 1987, but late optees will also be considered on genuine reasons as a special case provided vacancies exist. Pursuant to the circular dated 12.6.1987, several technical and non-technical staff from other units and Division of Central Railways opted for absorption in the newly contemplated CRWS Cadre.

The CRWS commenced production in the year 1989, but even thereafter the CRWS required technically experienced staff and accordingly circulars dated 16.7.1992, 22.5.1993, 2.3.1993 and 14.6.1994 were issued inviting options from Group ''C'' employees working in various Workshops and Units of the Central Railways and in these circulars, it was mentioned that their transfers will be considered as non-request transfers and they will get transfer allowances and other allowances applicable to the staff subjected to non-request transfers and till their absorption in the CRWS cadre after screening and selection, they will be permitted to retain their seniority in the parent cadre. In these circulars, it was also mentioned that the CRWS cadre was not closed and that final seniority of all staff in the particular trade or grade will be decided on the basis of the directives issued in consultation with the Headquarters at the time of cadre closure. Circulars were also issued on 31.5.1991, 5.6.1991, 16.6.1991, 22.6.1991, 28.7.1992, 16.11.1992 and 9.3.1994 inviting applications from group "D" employees who were prepared to join the CRWS on own request transfer by accepting bottom seniority. In these circulars, it was made clear that such Group-D employees transferred on request will not be entitled to either transfer passes or TA/ DA or joining time which are permissible in the cases of transfers on administrative grounds.

Thereafter on 6.12.1994, the Chief Personnel Officer (A), Central Railways issued an order for determining seniority of non-gazetted staff working in the CRWS in which it was stated inter-alia that the cadre of CRWS has been closed with effect from 21.6.1994 and the seniority of staff transferred from Central Railway Units on or before 21.6.1994 shall be based on rules applicable to interse seniority depending on the length of substantive posts held by the staff in their parent cadre as on 21.6.1994.

The order dated 6.12.1994 was challenged before the Central Administrative Tribunal, Jabalpur (for short ''the Tribunal'') by the respondents 9 to 18 in O.A.No.559 of 1997 and by respondent No.19 in O.A. No. 732 of 2001 contending inter alia that they were earlier working as monthly rated casual labourers in various Units of the Central Railways and they came over to the newly commenced CRWS and after screening they were absorbed by regularization in the CRWS cadre as khalasis (Group-D employees) with effect from 6.12.1989 in the pay scale of Rs.750-940/- and the order dated 6.12.1994 would make Group ''D'' employees, who had joined the CRWS after them on own request transfers pursuant to the circulars dated 31.5.1991, 5.6.1991, 16.6.1991,22.6.1991,28.7.1992,16.11.1992 and 9.3.1994, would become senior to them if inter-se seniority of such Group-D employees of the CRWS is determined on the basis of substantive posts held by them in the parent cadre as on 21.6.1991 as provided in para 3 (a) of the order dated 6.12.1994 and the order dated 6.12.1994 was ultravires Article 14 of the Constitution and para 312 of the Indian Railway Establishment Manual (for short ''the IREM''). By a common order dated 11.8.2003 passed in OA No.559 of 1997 and OA No.732 of 2001, the Tribunal struck down the order dated 6.12.1994 of the Chief Personnel Officer (A), Central Railways as unconstitutional and violative of Article 14 of the Constitution and directed the respondents 1, 2 and 3 to assign seniority to the respondents 9 to 19 and other similarly situated persons as per the date of entry into the grade in terms of the circular dated 19.6.1987 in respect of persons who have come after 31.8.1989 in accordance with para 312 of the IREM.

The order dated 11.8.2003 of the Tribunal was challenged by the respondents 1, 2 and 3 before this Court in W.P.(S) No. 2816 of 2003 and a Division Bench of the Court, after hearing the writ petition, by order dated 16.8.2005 set aside the order dated 11.8.2003 of the Tribunal and held that the order dated 6.12.1994 of the Chief Personnel Officer (A) would be applicable to only group ''C'' employees but would be inapplicable to Group ''D'' employees who joined the CRWS by giving applications for own request transfers and by accepting bottom seniority in response to the circulars dated 31.5.1991, 5.6.1991, 16.6.1991, 22.6.1991, 28.7.1992, 16.11.1992 and 9.3.1994. By the order dated 16.8.2005, the Division Bench of the Court also directed respondents 1, 2 and 3 to assign seniority to the respondents 9 to 19 and others who are Group-D employees when they joined the CRWS as per their dates of entry into the grade in terms of the circular dated 19.6.1987 and directed the respondents 1, 2 and 3 to fix the seniority of other Group ''D'' employees who joined the CRWS in pursuance of circulars dated 31.5.1991, 5.6.1991, 16.6.1991, 22.6.1991, 28.7.1992, 16.11.1992 and 9.3.1994 on the basis of para 312 of the IREM. Aggrieved by the order dated 16.8.2005 of the Division Bench of the Court, the applicants have filed this application for review.

Mrs. Shobha Menon, learned Senior Counsel appearing for the applicants submitted that the applicants were not parties in O.A. No.559 of 1997 and O.A. No. 732 of 2001 before the Tribunal and also not parties in W.P.(S) No. 2816 of 2003 before this Court and yet have been affected by the common order dated 11.8.2003 of the Tribunal in O.A. No. 559 of 1997 and O.A. No. 732 of 2001 as modified by the order dated 16.8.2005 of this Court in W.P.(S) No. 2816 of 2003. She submitted that pursuant to the order dated 6.12.1994 of the Chief Personnel Officer (A), Central Railways, the applicants had been assigned seniority on the basis of the length of the substantive post held by them in their parent cadres as on 21.6.1994 and had been placed above the respondents 9 to 19. She submitted that after the order dated 16.8.2005 of this Court in W.P.(S) No. 2816 of 2003, their seniority has now been re-fixed below the respondents 9 to 19, as they have been given bottom seniority at the time of joining the CRWS on transfer from their respective Units/Cadres. She submitted that since the applicants were affected by the order dated 16.8.2005 of this Court in W.P. (S) No. 2816 of 2003, they could file an application for review of the order dated 16.8.2005 in W.P.(S) No. 2816 of 2003. She cited the decision of the Supreme Court in Shivdeo Singh and Others Vs. State of Punjab and Others, in which it has been held that where the order of the High Court affected the interest of the petitioners who were not parties to the proceedings before the High Court, the High Court could entertain second petition by such petitioners so that the principles of natural justice were complied with.

Mr. Rajendra Tiwari, learned senior counsel appearing for respondents 9 to 19, on the other hand submitted that in The General Manager, South Central Railway, Secunderabad and Another Vs. A.V.R. Siddhantti and Others, , the validity of the policy decisions of the Railway Board relating to seniority of Railway staff was challenged before the High Court under Art.226 of the Constitution on the ground that they were violative of Arts. 14 and 16 of the Constitution and the Supreme Court held that since the relief in the writ petition was claimed only against the Railways, it was sufficient that the Railways were impleaded as respondents and non-joinder of employees likely to be affected by the decision in the case was not fatal to the writ petition because such employees were at most proper parties but were not necessary parties. He submitted that in A.T. Sharma vs. A.P. Sharma and others, AIR 1979 S.C. 1047the Supreme Court has also held that power of review may not be exercised on the grounds that the decision of the Court was erroneous on merits as that is within the province of the Court of Appeal. He submitted that the same view has been taken by the Supreme Court in Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, in which it has been further held that in a review, only error apparent on the face of the record can be corrected and an error on the face of record would mean an error which strikes one on a mere looking on the record and would not require any long drawn process of reasoning on points on which there can be conceivably two opinions. He also cited the decision of the Supreme Court in Parsion Devi vs. Sumitri Devi and others, (2997) 8 SCC 715 in which it has been held that in a review an error apparent on the face of record can be corrected but an erroneous dicision cannot be corrected because the review jurisdiction cannot be used as an appellate jurisdiction. Mr. Tiwari submitted that the review application of the applicants cannot therefore be entertained by the Court for the purpose of correcting the erroneous decisions in the order dated 16.8.2005 passed by the Division Bench of this Court in W.P.(S) No. 2816 of 2003.

We are unable to accept the submission of Mr. Tiwari that the application filed by the applicants, who were not parties either before the Tribunal in O.A. No. 559 of 1997 and O.A. No. 732 of 2001 or before this Court in WP. (S) No. 2816 of 2003 cannot be entertained for the purpose correcting erroneous decisions, if any, in the order dated 16.8.2005 passed by this Court in W.P.(S) No. 2816 of 2003. The applicants admittedly were not parties in the W.P.(S) No.2816 of 2003 and were not heard before the order dated 16.8.2005 was passed by the Division Bench of the Court in W.P. (S) No. 2816 of 2003 and yet pursuant to the order dated 16.8.2005 of the Division Bench of the Court, the seniority of the applicants, as determined on the basis of the order dated 6.12.1994 of the Chief Personnel officer (A) of the Central Railways has been disturbed and they have been reverted from higher posts to lower posts. Principles of natural justice require that the applicants are heard by the Court for the purpose of correcting erroneous decisions, if any, in the order dated 16.8.2005 passed by the Division Bench of the Court in W.P. (S) No. 2816 of 2003. In Shivdeo Singh and others vs. State of Punjab (supra), a five Judges'' Bench of the Supreme Court, speaking through Mudholkar, J. repelled a similar contention raised before them that Khosla, J. of the High Court could not have entertained a review of his prior order and pass a second order on merits. In paragraph 8 of the judgment as reported in the AIR at page 1911.

The other contention of Mr. Gopal Singh pertains to the second order of Khosla, J. which, in effect, reviews his prior order. Learned counsel contends that Art. 226 of the Constitution does not confer any power on the High Court to review its own order and, therefore, the second order of Khosla, J., was without jurisdiction. It is sufficient to say that there is nothing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Here the previous order of Khosla, J. affected the interest of persons who were not made parties to the proceedings before him. It was at their instance and for giving them a hearing that Khosla, J., entertained the second petition. In doing so, he merely did what the principles of natural justice required him to do. It is said that the respondents before us had no right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though their interests were sought to be affected by the decision of the High Court, that the second application was entertained by Khosla, J.

Where, however, a review is filed by a party who was already a party in a writ petition and who had already been heard before the order was passed in the writ petition, the court cannot re-consider its decision on merits and correct its erroneous decision in exercise of its power of review. On such applications of review filed by a party to the writ petition who had been heard, only errors or mistakes apparent on the face of the record can be corrected. The decisions of the Supreme Court in A.T. Sharma vs. A.P. Sharma and others, Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhury and Parsion Devi vs. Sumitri Devi and others (supra) cited by Mr. Tiwari apply to cases where the review applications are filed by parties in the main cases and were heard before the orders were passed in the main cases and do not apply to the facts of the present case. The decision of the Supreme Court in the General Manager, South Central Railway vs. A.V.R. Siddhanti and others (supra) cited by Mr. Tiwari is not on the review power of the Courts but on proper and necessary parties to writ petition. The preliminary objection of Mr. Tiwari to the maintainability of the review application is thus rejected.

On the merits, Mrs. Menon submitted that the circular dated 19.6.1987 which contained the original scheme inviting options for absorption in the newly contemplated CRWS cadre from the staff of different Units/ Departments in the cadres of the Central Railways clearly provided that the staff to be transferred to the CRWS will maintain their seniority and also their lien in the parent department/unit until such time they are permanently absorbed in the CRWS and that the CRWS will form a new cadre and once the cadre is closed, the seniority of staff will be regulated independently according to their entry into the cadre. She submitted that until, therefore, the new cadre of CRWS was closed, the staff transferred from different units/ departments of the Central Railways to the CRWS were to continue their seniority and and maintain their lien in the parents units/departments. She submitted that the new cadre of CRWS was closed only on 21.6.1994 and therefore in the order dated 6.12.1994 issued by the Chief Personnel Officer(A), Central Railways, in para 3 (a), it was provided that seniority of staff transferred from different Railway units on or before 21.6.1994 shall be based on rules applicable to inter-se seniority depending upon the length or substantive post held by the staff in their parent cadre as on 21.6.1994.

In reply, Mr. Tiwari submitted that it will be clear from the scheme in the circular dated 19.6.1987 that the last date for receipt of options from staff of different Units/Departments of the Central Railways for absorption in the CRWS cadre was 31.8.1987 and such staff was also allowed the option to go back to the parent units/departments within a period of two years from the date of transfer or permanent absorption in the CRWS whichever was earlier. Hence, the cadre stood closed latest by 31.8.1989. He submitted that so far as private respondents 9 to 19 are concerned, they had exercised their option in accordance with the circular dated 19.6.1987 and after screening, had been regularized and absorbed as Group-D employees in the CRWS with effect from 6.12.1989. He submitted that it is only after the cadre was closed on 31.8.1989 and after the private respondents were regularized and absorbed in the CRWS cadre that the applicants exercised their option in the years 1991 to 1994 to be transferred from different units/departments of the Central Railways and also their option to be absorbed in the CRWS cadre and, therefore, the applicants cannot be placed above the private respondents in the seniority list of Group-D employees. He submitted that para 3 (a) of the order dated 6.12.1994 issued by the Chief Personnel Officer (A) of the Central Railways sought to disturb the seniority of the private respondents 9 to 19 over the applicants by providing that the seniority of staff transferred from different units/departments on or before 6.12.1994 shall be based on rules applicable to inter se seniority depending upon the length of substantive post held by the staff in their parent cadre as on 6.12.1994 and therefore, the order dated 6.12.1994 affected the rights of the private respondents conferred by the circular dated 19.6.1987 and was arbitrary and violative of Article 14 of the Constitution.

On a reading of the circular dated 19.6.1987 issued by the Deputy Chief Mechanical Engineer, CRWS, we find that staff who were desirous to be transferred to the CRWS and exercised options for being absorbed in the new cadre of CRWS were to be given different facilities as mentioned in the circular dated 19.6.1987. Two such facilities mentioned in the circular dated 19.6.1987 which are relevant for deciding this case, are quoted herein below:

Staff who will be transferred to Coach Repair Workshop, Bhopal will maintain their seniority and also maintain lien in the parent department until till such time he is permanently absorbed in Bhopal Workshop. Options will be opened to staff to choose to remain in Coach Repair Workshop, Bhopal or go back to his parent department/unit within a period of two years from the date of transfer or permanently absorbed in Coach Repair Workshop, Bhopal which ever is earlier.

Coach Repair Workshop will form a new cadre and once the cadre is closed seniority of staff will be regulated independently strictly according to entry in the workshop cadre.

It will be clear from the circular dated 19.6.1987 quoted above that the staff who would be transferred to the CRWS were to maintain their seniority and their lien in the parent department until such time they were permanently absorbed in the CRWS. Hence, the seniority and the lien of such staff in the parent department transferred to the CRWS were to come to an end the moment such staff were absorbed in the CRWS. It will also be clear from the circular dated 19.6.1987 quoted above that the CRWS was to form a new cadre and once the cadre was closed, the seniority of staff was to be regulated independently strictly according to the entry in the new cadre. Thus, seniority of such staff was to be determined according to their entry in the CRWS cadre.

The order dated 6.12.1994 issued by the Chief Personnel Officer (A), Central Railways provided in para 3 (a) as follows:

3(a) Seniority of staff transferred from different Central Railway Units on or before 21.6.1994 shall be based on rules applicable to inter-se seniority depending upon the length of substantive post held by these staff in their parent cadre as on 21.6.1994.

Thus, under para 3 (a) of the order dated 6.12.1994, the seniority of staff transferred from different Units/Departments may not to be determined from the date of their entry in the new cadre of the CRWS but from the date of their substantive appointment in the parent cadre and the length of their service in such parent cadre as on 21.6.1994, which was the date on which the cadre of CRWS was closed. We fail to see how the date of closure of the new cadre of CRWS was relevant in any manner for the purpose of determining the seniority of staff in the new cadre of CRWS. The normal Principle of seniority is that seniority of staff has to be counted from the date of entry of the staff in the cadre, unless a statutory rule provides for determination of seniority in a different manner. Hence, it was rightly laid down in the original scheme in the circular dated 19.6.1987 that the seniority of staff was to be regulated independently strictly in accordance with the entry of the staff in the new cadre after the cadre was closed. But para 3(a) of the order dated 6.12.1994 ignored the date of entry in the new cadre of the CRWS prior to 21.6.1994 and continued the seniority of the staff transferred from different units/departments of the Central Railways in the parent cadre as on 21.6.1994, irrespective of the date of entry of such staff in the new cadre of the CRWS.

Mrs. Menon submitted that with the absorption of a staff in the cadre of the CRWS, he loses lien in the parent department and therefore the date of absorption in the new cadre of the CRWS would be the relevant date for determining seniority of staff in the new cadre of the CRWS, but the private respondents 9 to 19 were not in fact absorbed in the new cadre of the CRWS till 21.6.1994. She submitted that in the order dated 16.8.2005 of the Division Bench of the Court in W.P.(S) No. 2816 of 2003, it has been incorrectly stated that the private respondents were absorbed in the CRWS with effect from 6.12.1989 because the order filed by the Railways and the private respondents 9 to 19 would show that they were all enjoying temporary status and were casual labours and they were only regularized as Khalasi with effect from 6.12.1989 by orders passed by the Deputy Chief Mechnical Engineer (C), CRWS. She submitted that regularization as Khalasi in the CRWS is not the same thing as absorption in the CRWS. She cited the decision of the Supreme Court in Devdutta and others vs. State of M.P. and others, (1991) Sup 2 SCC 553 in which it has been held that the term ''absorbed'' in service jurisprudence would imply that prior to his absorption the employee was not holding any particular post in his own right but after his absorption, he becomes a holder of that post in his own right and loses lien on his parent post.

We have already noticed that the date of entry into the new cadre is relevant for determination of seniority as per the circular dated 6.12.1989. In case of casual staff who are transferred to the new cadre of CRWS, the date of their entry in the new cadre will be the date of their regularisation in service. The private respondents 9 to 19 were casual laborus when they were transferred from their parent departments/units to the CRWS, and as such casual labourers, they had no right to posts in their parent departments/ units and had no lien as such posts in the parent department. They were regularized as Khalasi (Group-D post) in the new cadre of the CRWS with effect from 6.12.1989 and therefore the date of their entry in the new cadre of the CRWS was 6.12.1989. In case of regular staff holding substantive posts in the parent departments/units, the date of their entry in the new cadre of CRWS is the date of their absorption in the cadre because on such absorption they sever their lien in the parent departments/units. By 6.12.1989, none of the applicants who had come on transfer from the parent department/unit of the Central Railways and holding substantive post in the parent department/ unit, had been absorbed in the new cadre of the CRWS an therefore did not enter into service of the new cadre of the CRWS. Thus, as per the principle of seniority laid down in the original scheme in the circular dated 19.6.1987, the respondents 9 to 19 were senior to the applicants as Group-D employees in the new cadre of the CRWS and this seniority was sought to be disturbed by para 3 (a) of the order dated 6.12.1994 passed by the Chief Personnel Officer (A) of the Central Railways.

Mrs. Menon next submitted that it is well settled by the Supreme Court in various decisions that past services of an employee cannot be ignored for purposes of determining seniority of the employee. She cited the decision of the Supreme Court in Wing Commander J. Kumar Vs. Union of India (UOI) and Others, , in which the Supreme Court has held that when officers from different sources are brought into a new cadre, the rule for fixation of such seniority giving full credit to the length of service put in by them in their respective parent services is a reasonable principle and has to be upheld. She also cited the decision of the Supreme Court in K. Madhavan and Another Vs. Union of India (UOI) and Others, in which the Supreme Court has held that it will be against all rules of service jurisprudence if a Government servant holding a particular post is transferred to the same or equivalent post in another Government department and the period of his service in the past before he is transferred is not taken into consideration in computing his seniority in the transferred post and that a transfer cannot wipe out his length of service on the post on which he has been transferred. She also relied on the decision of the Supreme Court in K. Anjaiah and Others Vs. K. Chandraiah and Others, in which the Supreme Court relying on the aforesaid decision in Wing Commander J. Kumar vs. Union of India and others and K. Madhwan and another vs. Union of India and others (supra) reiterated the principle first laid down in R.S. Makashi and Others Vs. I.M. Menon and Others, that it is a just and wholesome principle commonly applied where persons from different sources are drafted to serve in a new service that their pre-existing total length of service in the parent department should be respected by taking the same into account in determining their ranking in the new service cadre. Mrs. Menon submitted that para 3 (a) of the order dated 6.12.1994 of the Chief Personnel Officer (A) of the Central Railways was based on this wholesome and rational principle that seniority of staff transferred from different units/departments of the Central Railways to the CRWS is determined on the basis of their length of service in the substantive post held by the staff in their parent cadre as on 21.6.1994 and this aspect of the matter has been lost sight of the Division Bench in the order dated 16.8.2005 in W.P. (S) No. 2816 of 2003.

In reply, Mr. Tiwari submitted that seniority of the staff of the Railways is governed by statutory rules contained in the Indian Railway Establishment Manual (IREM) and para 312 of the IREM provided that where transfer of a Railway servant is made on request from one cadre/division to another cadre/division in the same Railways, seniority of such railway servant transferred on his own request would be below that of the existing confirmed, temporary and officiating railway servants in the relevant grade in the promotion group in the new establishment irrespective of the date of confirmation or length of officiating or temporary service of the transferred railway servants. He submitted that after the private respondents 9 to 19 had been regularized as Group-D employees in the new cadre of the CRWS with effect from 6.12.1989, the applicants who were Group-D employees in other departments/units of the Central Railways were transferred on request to the new cadre of the CRWS pursuant to the circulars dated 31.5.1991, 5.6.1991, 16.6.1991, 22.6.1991, 28.7.1992, 16.11.1992 and9.3.1994 and therefore, the seniority of the applicants has to be allotted below that of the private respondents 9 to 19. He submitted that para 3 (a) of the order dated 6.12.1994 issued by the Chief Personnel Officer (A) of the Central Railways, in so far as it relates to determination of seniority of Group-D employees who were transferred on request from their respective units/departments to the new cadre of the CRWS was contrary to the statutory provision in para 312 of the IREM, as has been held by the Division Bench of the Court in the order dated 16.8.2005 in W.P. (S) No. 2816 of 2003. Mr. Tiwari cited a recent decision of the Supreme Court in K.P. Sudhakaran and Another Vs. State of Kerala and Others, in which the Supreme Court has held that the Proviso to Rule 27 (a) of the Kerala State and Subordinate Services Rules, 1958 made under the Proviso to Art. 309 of the Constitution categorically provided that seniority of employee getting transferred on his own request to another unit within the same department or to another department will be determined with reference to the date of his joining duty in the new department and this Proviso was an exception to the general rule contained in clause (a) of Rule 27 of the Kerala State and Subordinate Services Rules, 1958 that seniority of the person shall be determined by the date of the order of his first appointment.

We have considered the aforesaid submissions made by Mrs. Menon and Mr. Tiwari. Mrs. Menon is right that when employees are drafted from different sources to a new cadre, due credit should be given to their past services in the parent cadre for the purpose of determining their seniority in the new cadre. But this wholesome and rational principle may not be the sole criteria for determining the seniority of employees in the new cadre. Other relevant and rational considerations may have to be kept in mind while determining the principle of seniority to be applicable to the employees of the new cadre and it is for the rule making authority to decide what particular principle will govern the determination of the seniority considering all relevant factors relating to the service. So far as the Railways are concerned, the rule making authority has made a statutory rule in para 312 of the IREM for determination of seniority in the case of transfers made on request basis. Para 312 of the IREM is quoted herein below:

312 Transfer on request - The seniority of railway servants transferred at their own request from one railway to another should be allotted below that of the existing confirmed, temporary and officiating railway servants in the relevant grade in the promotion group in the new establishment irrespective of the date of confirmation or length of officiating or temporary service of the transferred railway servants.

Note : This applies also to cases of transfer on request from one cadre/division to another cadre/division on the same railway. (Rly. Bd. No. E (NG) 1-85 SR6/14 of 21.1.1986) It will be clear from the aforesaid rule that the seniority of railway servants transferred on their own request from one railway to another would be below that of the railway servants in the relevant grade in the promotion group in the new establishment irrespective of the length of service of the transferred railway servants and the note appended to the rule shows that this principle of seniority equally applies to cases of transfer on request from one cadre/division to another cadre/divison of the same railways. As has been discussed above, in so far as the Group-D employees are concerned, in the circulars dated 31.5.1991, 5.6.1991, 16.6.1991, 22.6.1991, 28.7.1992, 16.11.1992 and 9.3.1994 inviting applications for transfers from other Workshops/Units of the Central Railway to the CRWS, it was clear that the applicants will be treated as own-request transfers and will be given bottom seniority. The applicants opted for their transfer to the CRWS pursuant to the circulars dated 31.5.1991, 5.6.1991, 16.6.1991, 22.6.1991, 28.7.1992, 16.11.1992 and 9.3.1994 and therefore they had to be allotted seniority below all existing group-D Railway servants in the CRWS, such as respondents 9 to 19, as has been held by the Division Bench in the order dated 16.8.2005 in W.P. (S) No.2816 of 2003.

Mrs. Menon finally submitted that in the order dated 16.8.2005 of the Division Bench in W.P. (S) No. 2816 of 2003, the seniority principle in para 3 (a) of the order dated 6.12.1994 issued by the Chief Personnel Officer (A) of the Central Railways has been held to be valid in so far as it relates to Group-C employees but the very same seniority principle in para 3 (a) of the order dated 6.12.1994 issued by the Chief Personnel Officer (A) of the Central Railway, in so far as it relates to Group-D employees, has been held to be invalid. She argued that there cannot be two different yard sticks for determination of seniority for Group-C and Group-D employees, as otherwise the seniority principle will amount to discrimination and will be violative of right to equality and equal protection of laws guaranteed by Art. 14 of the Constitution.

This contention of Mrs. Menon is misconceived. In the order dated 16.8.2005 of the Division Bench of the Court in W.P. (S) No. 2816 of 2003, it has been held that transfers of Group-D employees pursuant to the circulars dated 31.5.1991, 5.6.1991, 16.6.1991, 22.6.1991, 28.7.1992, 16.11.1992 and 9.3.1994 were all transfers on request and para 312 of the IREM provided that the seniority of railway servants transferred on their own request to the new cadre would be below that of the existing railway servants in the relevant grade of the new cadre irrespective of the length of service of the transferred railway servants; whereas the transfers of Group-C employees pursuant to the circulars dated 16.7.1992, 22.5.1993, 2.3.1994 and 14.6.1994 were not transfers on request but transfers made on administrative exigencies and the seniority of such Group-C employees was not to be governed by para 312 of the IREM but instead was to be governed by para 3 (a) of the order dated 6.12.1994 issued by the Chief Personnel Officer (A) of the Central Railways. Hence, the difference in the seniority principle applicable to Group-C employees and Group-D employees transferred on request is not because that they belong to two different group of employees, but because the transfers of Group-D employees pursuant to the aforesaid circulars were own request transfers while the transfers of Group-C employees were not own request transfers but were transfers on administrative exigencies. There can be no dispute that there can be different principles with regard to determination of seniority of employees who are transferred on administrative exigencies and employees who are transferred on their own request. In K.P. Suchakaran and another vs. State of Kerala and others (supra), Supreme Court has noticed and discussed such a seniority principle in proviso to Rule 27(a) in the Kerala State and Subordinate Services Rules, 1958. The contention of Mrs. Menon that the right to equality and equal protection of laws under Art. 14 would be violated if the interpretation given by the Division Bench of this Court in the order dated 16.8.2005 is sustained, is thus without any merit.

For the aforesaid reasons, we dismiss the review application and vacate the interim order of status quo passed by the Court on 17.5.2006 and continued thereafter. In the facts and circumstances of the case, however, the parties shall bear their own costs.