R P JANI Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner who is a railway employee has filed this petition under Article 226 of the Constitution of India being aggrieved by the decision of the respondents to remove the petitioners name from the selection penal of the Class IV staff for promotion to posts in Class Ill service. In order to appreciate the grievance of the petitioner it is necessary to note a few relevant facts.

(2.) The petitioner on the date of the petition was working as a Junior Clerk in Western Railway at Bhavnagar Para: that originally he was a Class IV employee. He was recruited in the railway service on 27-7-1954 in the Rajkot Division as a Gangman. Thereafter he was transferred on the same post in Bhavnagar Para Division with effect from 30-9-1966. He was promoted to the post of a Tally Clerk which was Class III post by an order dated 19-10-1973. From the date of his promotion to the post of Tally Clerk i.e. from 21-10-1973 he went on working on the post allthroughout save and except a break of about a month. After a short break he was repromoted in December 1976 to the post of a Junior Clerk and which post is held thereafter allthrou ghout by him. It is true that formerly the petitioner was promoted to Class III post on an ad hoc basis. The petitioners case is that by a Circular dated 29-11-1973 the second respondent namely the Divisional Superintendent Western Railway Bhavnagar Para initiated proceedings for forming a selection penal for promotion to Class III service in the ministerial category. The said Circular contained invitation to all the Class IV staff of all the Departments in the Bhavnagar Para Division to make applications for being called for written test which was to be followed by viva voce provided they fulfilled the minimum required qualifications viz. three years continuous service on 1-12-1973 and provided the concerned candidate was able to read and write in English. As the petitioner fulfilled both the requirements he applied for being called in the written test. About 400 employees from Class IV staff appeared in the written test the petitioner being one of them. 109 candidates were declared successful and thereafter they were called for viva voce test. According to the petitioner out of the 109 candidates who appeared for the viva voce test the petitioner was one of them. Thereafter the Railway Selection Board vide their order dated 16 declared a panel of persons who had succeeded in the written test as well as viva voce test and by this order 36 employees out of 109 employees who appeared for the viva voce test were placed on the panel by virtue of their having successfully passed both the aforesaid tests for promotion to the Class III service. The petitioners name was placed at serial No. 20 in the said panel. The order at Annexure B clearly brings out this position. The said panel was made effective from 9 It is therefore obvious that once the petitioner was selected for being appointed as Class III employee on the basis of selection and when he was pleced at serial No. 20 in order of seniority from amongst the selected candidates he acquired a right to be considered for promotion to a Class III post on a regular basis as and when such opportunity arose. However by the impugned order at Annexure E dated 20 information was conveyed to respondent No. 2 by the Railway Head Quarters at Churchgate that the C.P.O. had accorded sanction to remove the name of the petitioner from the panel of Junior Clerk scale Rs. 225-508. The petitioner contention is that the impugned order at Annexure E directing the removal of the petitioners name from the select list is eX facie without jurisdiction and contrary to the principles of natural justice and fair play as the petitioner was not given any notice to show cause or to give an explanation as to why his name should not be deleted from the selection panel and that the impugned order was likely to result in reversion of the petitioner as he was already officiating as Junior Clerk since years and the moment his name was deleted from the selected list he in all probabilities would be reverted to the lower post of Class IV category. The petitioner therefore filed the present petition in this Court in August 1977. This petition was admitted to final hearing and interim relief was granted to the petitioner. It has reached final hearing before me.

(3.) In the affidavit in reply the respondents have admitted that the petitioner was selected as Junior Clerk in the scale of Rs. 225 308 by the Selection Board and was placed on panel at serial No. 20. It is also admitted that the petitioner was posted as Tally Clerk/Junior Clerk scale Rs. 105-135 (A)/225-308 (R) from 21-10-1978 on ad hoc basis. It has been further stated that the Chief Personnel Officer Churchgate. Bombay who is the competent authority to remove the name of an employee from panel has taken the decision to delete the name of the petitioner from the panel of Junior Clerk scale Rs. 225-308 (R) vide his order dated 20-7-1977. It is further stated in the affidavit in reply that the petitioner has not been given any opportunity against the proposed deletion of his name from the panel as the same is not required to be given as per Rules when the decision is taken by the competent authority having power to do so. It is further stated that the said order has not been implemented so far because of the adinterim relief granted by the High Court. In para. 6 of the affidavit in reply it is stated that it is not disputed that the petitioner was continuously officiating as Tally Clerk/Junior Clerk from 21-10-1973 to 19 It is further stated that the petitioner was repromoted as Junior Clerk from 1-12-1976 and has continued in that post till today. It is thereafter stated in para. 8 of the affidavit in reply that the petition is premature. Since no orders were issued for deleting the name of the petitioner the question of giving any opportunity to him did not arise. The Chief Personnel Officer has only accorded sanction to delete the name of the petitioner and further action is to be taken. In paragraph 11 of the affidavit in reply it has been pointed out that the competent authority i. e. the Chief Personnel Officer in this case is empowered to delete the name of the employee from the panel without assigning any reason to the employee. In this case the petitioner came on transfer to Bhavnagar Division from Rajkot Division at his own request and according to the extent rules the employees when transferred from other Division will take the position of seniority below all permanent and temporary employees of the unit where he is transferred and as such the petitioner is considered junior to other employees of the unit who appeared for the selection and he is not getting the place on penel due to revision in seniority. This in short is the defence put forward on behalf of the respondents.