GANGA RAM Vs. UNION OF INDIA

JUDGEMENT

(1.) THE Judgment of the court was delivered by-

(2.) OUT of the five petitioners in this petition under Article 32of the Constitution Kashmir! Lal, petitioner No. 5 having since retired, is<PG>378</PG> no longer interested in the result of these proceedings. The claim of onlyfour petitioners thus survives for consideration. They are officiating clerks,Grade I, in the office of Deputy Chief Accounts Officer (Traffic AccountsBranch) Northern Railway. They were promoted from Grade II afterpassing the departmental qualifying examination described as Appendix 2examination. They claim that their seniority should be determined as fromthe date of their appointment as officiating clerks Grade I and not on thebasis of their position in the gradation list of Clerks, Grade II. Theirgrievance is that they were appointed as officiating clerks. Grade I, afterpassing the Appendix 2 examination long before Respondents 4 to 6 and 11but these four respondents are shown as senior to the petitioners on theground of their seniority in Grade II. The petitioners seek to supporttheir claim by relying on Articles 14 and 1.6 of the Constitution. Theseniority of the direct recruits to Grade I, the petitioners complain, is determined on the basis of their appointment, whereas the seniority of thepetitioners, who are promotees from Grade II to officiate in Grade I,continues to be determined on the basis of their seniority in Grade II.It is emphasised that both the direct recruits and the promotees, like thepetitioners, have to pass the Appendix 2 examination. But their seniorityis determined by different methods. It is further complained that Grade IIclerks who pass the qualifying Appendix 2 examination are not promotedimmediately. They have to wait till a vacancy occurs and even at thetime of filling the vacancy the seniormost qualified clerk is selected forpromotion without giving any preference to those who have qualified earlierin point of time. Again, when a permanent post falls vacant all the eligibleclerks in Grade II are considered at par without giving any credit or preference to those who have already officiated as Clerks, Grade 1. Ajuniorclerk. Grade II, qualifying earlier, according to the petitioners' grievance,continues to remain junior for the purpose of promotion and confirmation inthe permanent post in Grade I and a senior clerk, Grade II, qualifyinglater retains his seniority for this purpose. Similarly, in filling leave vacanciesit is complained that if a clerk is appointed to officiate in short term leavevacancy, then on the return of the incumbent of the post, instead of reverting the clerk so appointed to officiate, the juniormost according to the gradation list in Grade II, officiating in Grade I, is reverted even though hemay have qualified earlier than the former and may also have officiatedfor some time against a regular post in Grade 1. The petitioner's right ofequality before the law and equality of opportunity in matters of public,employment is stated thus to have been violated.

(3.) (a) Normally no railway servant will be permitted to take theexamination more than three; but the Financial Adviser and ChiefAccounts Officer may in deserving cases permit a candidate to take theexamination for a fourth time, and, in very exceptional cases, theGeneral Manager may permit a candidate to take the examination forthe fifth and the last time.