TREVOR OSCAR HALPIN AND OTHERS Vs. UNION OF INDIA THROUGH SECRETARY MINISTRY OF RAILWAYS, RAIL BHAWAN, NEW DELHI AND OTHERS

JUDGEMENT

(1.) The three petitioners are gazetted railway servants of Class II. Their scale of pay is Rs. 350-25-500-30-590-EB-30-800-EB-830-35-900. Petitioner nos. 1 and 3 have crossed both the efficiency bars but petitioner no. 2 has crossed only the first efficiency bar. respondent nos. 4 and 5 are gazetted railway servants of class I Junior Scale. Their scale of pay is Rs. 400-400-450-30-690-35-760-E.B.-35-950. Neither of them has crossed the efficiency Bar of the junior scale. Two vacancies at Allahabad of District Officers, namely District Engineer I and Sleeper Control Officer occurred. District Officer is a gazetted railway servant drawing pay on a scale applicable to Class I Senior Scale Officers. respondent nos. 4 and 5 were appointed respectively to officiating appointment of respondent nos. 4 and 5 to the two posts of District Officers are challenged in this writ petition.

(2.) Officiating appointments of posts of District Officers are governed by rule 133(3) of the Railway Establishment Code, Volume I. The petitioners main contention in the writ petition is that, under this rule, respondent nos. 4 and 5 who have not crossed their efficiency bar, could not have been appointed when gazetted railway servants, who had crossed the efficiency bar, like the petitioners, were available.

(3.) Clauses (a), (b), (c), (d) and (e) of sub-rule (3) of rule 133 make provision for officiating appointments only in the higher posts. Clauses (a), (b), (c) and (d) deal with promotions of different classes of officers. Clause - (1) deals with the officiating promotion of a gazetted railway servant of class II to the post of District Officer, while clause (c) deals with the promotion of an Assistant Officer to officiate as District Officer. This indicates that clause (c) is not at all concerned with a gazetted railway servant of Class II but only with an Assistant Officer. Therefore, the expression "a gazetted railway servant" in sub-clause (i) of clause (c) can refer only to an Assistant Officer and cannot include a gazetted railway servant of Class II. The expression "a gazetted railway servant" has been used in two places-first in the main part of clause (c) and then in sub-clause (i) of clause (c). Unless there is some compelling reason, it must have the same meaning in both the places. Learned counsel for the petitioners has shown no compelling reason. It is not disputed that the expression "a gazetted railway servant" in the main part of clause (c) refers only to an Assistant Officer and not to a gazetted railway servant of class II. It is, therefore, reasonable to read the same expression in sub-clause (1) of clause (c) as having the same meaning, that is to say, an Assistant Officer. The expression "efficiency bar" is also used in clause (c) at two places. It is first used in the main part of clause (c) and then in sub-clause (i) of clause (c).... The expression must refer to the same thing in both places. In the first place, there can be no doubt that, it refers to the efficiency bar in the scale of an Assistant Officer. There is no compelling reason why it should be read as referring to any efficiency bar other than the one in the scale of an Assistant Officer. If this expression in sub-clause (i) were held to refer to the efficiency bar in the scale of class II also, then a further difficulty would arise as to whether it refers to the first efficiency bar or to the second in the scale of class II servants. In my opinion, the efficiency bar in both places refers to the efficiency bar in the scale of Assistant Officers. Admittedly, railway servants of class II can only be appointed to officiate as District Officers under clause (b). For this officiating appointment, the passing of the efficiency bar of class II scale is not necessary. Then how can that same efficiency bar become material for purposes of clause (c) and enable a Class II Officer, who has passed the efficiency bar of class II scale, to out a class I officer who has not passed the efficiency bar of class I scale ? It is further to be seen that, normally, the avenue of promotion for officers of class II is to Class I Junior scale and not to class I Senior Scale to which District Officers belong. This is the avenue of promotion for substantive as well as for officiating appointments. Rule 116 prohibits the officiating promotion to the Assistant Officers' grade or to a higher grade (District Officers) of gazetted railway servants from class II. Clause (1) of sub-rule (3) of rule 133 shows that substantively class II officer cannot be promoted or appointed as District Officer. Clause (b) of rule 133(3) is a sort of exception to the general rule and permits the officiating appointment of a class II officer as District Officer, if no suitable person is available from amongst Assistant Officers. In considering the eligibility of Assistant Officers for officiating promotion as District Officers, Class II officers cannot he taken into consideration. For all these reasons, I have come to the conclusion that a class II officer, who has crossed the efficiency bar of class II scale, cannot come in the way of officiating appointment of an Assistant Officer as District Officer even if the Assistant Officer has not crossed the efficiency bar of his scale.