DIVISIONAL SUPERINTENDENT N RAILWAY Vs. MADAN LAL SARAD

JUDGEMENT

(1.) This is a petition under Articles 132 (1) and 133 (1) (c) of the Constitution of India filed by the Divisional Superintendent, Northern Railway, Lucknow, and the Divisional Personnel Officer, Northern Railway, Lucknow. The opposite party in this petition is Madan Lal Sarad. Madan Lal Sarad had filed Writ Petition No. 18 of 1961 impugning the validity of an order passed by the Divisional Personnel Officer, Northern Railway Lucknow, dated the 6th October, 1960. By this order the Divisional Personnel Officer, Lucknow had reverted two persons who were acting as draftsmen in the scale of Rs. 150-225 to the scale of Rs. 100-185 from the 1st of October, 1960. One of those persons was Sri Madan Lal Sarad who is the opposite party in this petition. The other was Sri Bishun Bali. Sri Madan Lal Sarad had filed the aforesaid writ petition in this Court challenging the validity of this order on the ground that it contravened the provisions of a circular issued by the Railway Board dated the 29th July, 1957. This writ petition was allowed by a judgment of this Court dated the 29th of March, 1963, and the impugned order dated the 6th of October, 1960, downgrading Madan Lal Sarad was held to be bad in law and struck down on that ground. Thereafter the Divisional Superintendent, Northern Railway Lucknow and the Divisional Personnel Officer, Lucknow filed the present petition under Article 132 (1) and Article 133 (1) (c) of the Constitution of India.

(2.) The first argument of the learned counsel for the petitioner was that the certificate should be granted under Article 132 (1) of the Constitution as the present case involves a substantial question of law as to the interpretation of the Constitution. In this connection he argued that the question whether the circular dated the 29th July, 1957, issued by the Railway Board was a part of the existing law or not was such a question. We are unable to accept this argument. Reference in this connection may be made to Section 241 of the Government of India Act, 1935. Clause (1) of Sub-section (2) of this section lays down that the conditions of service of persons serving His Majesty in a civil capacity in India may be prescribed in the case of persons serving in connection with the affairs of the Fedaration, by rules made by the Governor-General or by some person or persons, authorised by the Governor-General to make rules for the purpose. The rules made under the above provision of law are incorporated in the Railway Establishment Code.

(3.) The relevant rule in the present case is Rule 157. The said rule runs as follows:" The Railway Board have full powers to make rules of general application to non-gazetted railway servants under their control." It is admitted on behalf of the petitioners that the Board's circular dated the 29th July, 1957, was issued under this provision of law. These rules were kept alive after coming into force of the Constitution under Article 313 of the Constitution of India. It would be relevant in this connection also to refer to the provisions of Article 366 (10) of the Constitution of India in which the expression "existing law" is defined as follows:- "Existing law" means any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, Ordinance, Order, by-law, rule or regulation." On behalf of the opposite party our attention was also invited to a judgment of their Lordships of the Supreme Court in the case of State of Uttar Pradesh v. Babu Ram Upadhya, AIR 1961 SC 751. In this case it was held that rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act, and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation. The above mentioned provisions of law and the ruling of their Lordships of the Supreme Court have fully clarified the position in this regard. No substantial question as to the interpretation of the Constitution, therefore, appears to be involved in the case, and the present petition does not deserve to be granted on this ground.