K S KRISHNA MURTHY Vs. UNION OF INDIA

JUDGEMENT

(1.) In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the President of India made certain rules regulating the recruitment to the posts of Assistant Accounts Officer (Class-ll) in the Accounts Department of the Indian Railways specified in the schedule annexed to those rules. These rules were made on 6th January, 1965 and they provide for method of recruitment to the posts mentioned in columns 5 to 13 of the schedule annexed to those rules. In this case we are concerned with the recruitment to Class II posts in the Accounts Department of the South Central Railway. According to the rules made by the President of India under Article 309 of the Constituti:n, Class-II posts in the Accounts Department should be filled up by promotion of Class-Ill personnel through selection made by means of viva voce test and also ordinarily a written test. The area of recruitment is confined by these rules to permanent Class-III staff of Accounts Department of the Railways. According to those rules, priority in selection is given to those in Class III in the higher scales of pay. The lower grade of Class-III Accounts Department would be considered only if the higher salaried employees were not adequate. Now the Railway Board by its Setter No. E.GPO76/2/9.6 dated 3-8-1977, which was addressed to all the General Managers of the Railways, cirected that 25% of the vacancies in the posts of Assistant Accounts Officers for whom panel is required to be framed at any one time should be filled up on the basis of limited departmental competitive examination and the remaining 75% of the vacancies should continue to be filled up by selection under the aforementioned rules made by the President of India.

(2.) The petitioners in this writ petition, who are 15 in number and who are all working in Class-Ill posts in the Accounts Department of the South Central Railway drawing the highest scales of pay in that class had filed this writ petition challenging the validity of the aforesaid Railway Board's letter on the ground that the letter of the Railway Board is inconsistent with the above mentioned presidtntial rules. In pursuance of the Railway Board's letter written examination had been conducted in January, 1979 and viva voce test was conducted in June, 1979 In that examination although petitioners 1, 2, 6. 7 8. 9, and 15 fctually appeared, rone of them had been selected; although the petitioners 10, 13, and 14 applied to be admitted to the examination, they old not choose to appear for tha examination. The other petitioners did not even apply for admission to the examination. In that examination a provisional panel of sucucessful cendidates was published on 21-6-79 and a fiml panel was published on 24th September, 1980. The respondents 4 to 8 who had taken the examination had been declared successful and they were selected and promoted to Class- II posts in the Accounts Department. Tha present writ petition has been presented to this court on 3-3-1981 challenging the legality of the aforementioned letter of the Railway Board and the consequential selection and appooirttment of the respondents 4 to 8.

(3.) The first question that is raised bv Mr. Gururaja Rao, the learned counsel for the petitionsrs, is about the validity of the Railway Board's letter, His argument is that under the Rules made by the President of India under Article 309 of the Constitution the filling up posts of Class-II must be confined first "o those persons drswing the higher scales of pay in Class III and only when those persons sre not available' the authorities can consider tha parsons in Class III in the lower pay-scales It is argued that the selection must be made as contemplated by the Presidential Rules by following the priority and the procedure indicated in those rules According to the argument of the learned counsel for the petitioners the Railway Board's letter has the effect of making 25% of the total number of posts available to be filled up by promotion to all those who are working in Cless III Accounts department irrespective of the fact whether persons workirg in Class III and drawing higher brackets of pay were adequate to be recruited to Class II posts. In other words while the scheme of the Presidenial rules confers a priority for being considered for promotion on those drawing higher scales of pay in Class III, the 25% rule adumbrated by the Railway Boards letter destroys the priolity and makes the 25% of seats equally available to those who are in the Class III Accounts Department. Those drawing the higher scales of pay as well as those who drawing the lower scales of pay in Class III Accounts Department are made equally eligible by the Railway Board to compete to the 25% posts in Class II. It is therefore, argued that the letter of the Railway Board is contrary to the above mentioned Presidential Rules. It needs no elaboration to accept this argument of the learned counsel for the petitioners, I think this argument of the learned counsel for the petitioners is entirely correct. For the reasons which he has mentioned I agree with him that the Railway Board's letter has the effact of altering the scheme of recruitment and the method of recruitment. It widens the area of recruitment by altering the priority set down by the Residential Rules I have, therefore, no hesitation in holding that the Railway Board's letter is inconsistent with the presidential rules made under Article 309 of the Constitution. It is now well settled that the power which the President of India exersises under Articla 309 of the Constitution is of a logislative character. It follows that rules made in exercise of that power bind all executive authorities of which the Railway Board Is one. It is not shown to me that the Railway Board's letter has any legal support derived either from the Constitution or from any statute. In the circumstancas I hold, agraeing with the learned counsel for the petitioners, that the aforementioned Railway Beard's letter being inconsistent with the rules made by the President of India urder his power derived from she proviso to Article 309 of the Constitution should be treated ss illegal and without force.