SAMBANDHAN A Vs. SOUTHERN RAILWAY

JUDGEMENT

(1.) THIS is an appeal against the judgment of Rajagopalan, J., in Writ Petition No. 255 of 1956 filed under Art. 226 of the Constitution by the appellant before us. The facts which led up to the filing of the writ petition are as follow :- The appellant is an assistant stationmaster employed in the Southern Railways and after nationalization of the railways, all the railway servants must be deemed to have become civil servants of the Government if India. Up to 1947 almost all the railway employees were working for twelve hours a day without a weekly holiday. In that year an award was passed by the adjudicator which laid down that there should be work only for eight hours and that there should be a weekly day of rest. As a result of this award about 1, 000 new hands in the stationmasters'cadre had to be employed. To meet this immediate demand 316 persons were directly recruited as probationary stationmasters. The appellant was one of them and he was appointed as probationary stationmaster and signaller-trainee on 2 November, 1948. He was to undergo training for six months and to be posted to a working post after passing an examination, the post was to be temporary for two years and the first years of this was to be on probation. After he received the training the appellant was posted on 25 August, 1949, as relieving stationmaster. Erode, on the grade of Rs. 64 - 4 - 170. He was confirmed as assistant stationmaster with effect from 2 November, 1949. On 25 April, 1952, the Regional Traffic Superintendent (Personnel), Tiruchirappalli, issued an order directing that all directly stationmasters should be placed junior to the clerical staff who had passed their Stationmasters'examination perior to 31 March, 1951. As a result of this order he was reverted from the post of relieving stationmaster to that of a clerk-in-charge on 9 May, 1952. Consequent on this his scale of any was reduced from Rs. 64 - 4 - 170 to Rs. 60 - 4 - 150. Before reversion the appellant drew a salary of Rs. 72 a month and after reversion he could draw only Rs. 68. There were appeals by the appellant and others similarly against the above order of April, 1952. The appeals did not give the appellant and others any relief. Subsequently, however, an order was passed by the Chief Operating Superintendent, H.P.B./O.P./12 on 12 February, 1953, directing that the designation of the reverted persons including the appellant should be retained as assistant stationmaster and that their pay should be fixed in the scale of Rs. 64 - 4 - 170, but it was made clear that the seniority granted to the promoted clerks overriding the rank of directly recruited assistant stationmasters would continue. As a result of the impugned order of 25 April, 1952, it was alleged by the appellant that about 800 clerks who were till then junior to the appellant but who had passed the Stationmasters'examination before 31 March, 1951 were placed above the appellant and others like him in the seniority list. There were attempts by the appellant and others to obtain redress from the Government but their attempts were not successful. The appellant attacked the above order of the Government dated 25 April, 1952 as being a contravention of the relevant rules which resulted in the reduction of the rank which could be meted out only by way of punishment and that the statutory rules did not authorize any reduction except as and by way of punishment. The appellant, therefore, prayed for a writ of certiorari or an appropriate order quashing the said order of the Government in so far as it involved the reduction in rank of the appellant and others in the same position.Before Rajagopalan, J., who heard the petition it was contended on behalf of the appellant that the order above mentioned, dated 25 April, 1952, was in contravention of the rules governing fixation of seniority and was, therefore, invalid. The conditions of service of the railway employees like the appellant are admittedly contained in the Indian Railway Establishment Code, which consists in the main of all the rules made in exercise of the power of the Governor-General-in-Council under Sub-sec. (2) of S.241 of the Government of India Act, 1935. It is common ground that these statutory rules continue to be in force even after the commencement of the Constitution by virtue of Art. 313 of the Constitution. Rule 156 of these rules provides that the Railway Board have full powers to make rules of general application to non-gazetted railway servants under their control. Similar rule-making power is conferred on the General Managers of Indian Railways under rule 157 which runs thus : "The General Managers of Indian Railways have full power to make rules with regard to non-gazetted railway servants under their control provided they are not inconsistent with any rules made by the President or the Railway Board."

(2.) APPENDIX II-A contains rules governing the promotion of the subordinate staff. Rule 10 specially deals with seniority : It is as follows : "(1) The seniority of subordinate staff shall be determined accordance with the rules prescribed by the General Manager or the Chief Mining Engineer. (2) Seniority lists of the staff shall be made in accordance with the instructions issued under (1) above. (3) Staff may be permitted to see these seniority lists in which their names are placed, or of this cannot conveniently be arranged, they may be informed on request of their place in the seniority list." It is evidently in exercise of these powers that the General Manager, Southern Railways, issued the Circular No. 343, dated 11 August, 1949. The circular dealt with promotion of class III staff. Rule 2(a)(i) provides that seniority shall be passed on the date of confirmation in grade. We are not concerned with the other rules. Rule 9 says that these instructions contained in the circular supersede a prior circular issued by the General Manager.

(3.) NOW these'conditions of service'(and of course special contracts as well) confer'rights'and though the conditions can be varied unilaterally because of the'pleasure'they cannot be ignored so long as they are in force; and if a dismissal or removal or reduction in rank infringes one of these'rights,'then in my judgment Art. 311 is attracted." So far as we are aware, the Supreme Court at no time has dissented from the ratio decidendi in the two well-known cases decided by the Privy Council in Venkatarao v. Secretary of State for India [(1937) I M.L.J. 529 : L.R. 64 I.A. 55 : 1937 ILR(Mad) 532 (P.C.)] and Rangachari v. Secretary of State for India [(1937) I M.L.J. 515 : L.R. 64 I.A. 40 : 1937 ILR(Mad) 517 (P.C.)] : Mr. M. K. Nambiar, evidently relying on Dhingra case (supra) raised before us a contention which admittedly was not raised before Rajagopalan, J., that there was a contravention of Art. 311(2) of the Constitution, because there had been a reduction in rank of the appellant. Even if there was a reduction, it is obvious that it was not as and by way of punishment. Indeed there is no order expressly reducing the rank of the appellant personally. We have discussed this point at length in our judgment in Writ Appeal No. 74 of 1957 - Devasahayam v. State of Madras [(1958) II M.L.J. 379]. We see no substance in this contention. Mr. Bashyam Ayyangar contended that the appellant was estopped from putting forward any claim to seniority on the basis of his date of confirmation. The estoppel is sought to be spelt out from a letter from the appellant and others similarly placed dated 13 May, 1952, where they expressed their readiness to forego if necessary, their seniority. This statement by itself cannot sustain a plea of estoppel as it is not alleged that on the faith of this statement anyone suffered any change to his detriment.Mr. Bashyam Ayyangar also urged that the order of 1952 need not be quashed by us in the exercise of our discretion under Act. 226 of the Constitution, because under that order justice has been done. We think that it is a very slippery ground to rest our decision on. Rules of seniority, no doubt, are based on certain equitable principles but they also depend upon certain principles of administrative practice which may in certain cases lead to hardship. We do not think that we can decide the case against the appellant on this ground.