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-II) 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 Constitution, 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-Ill staff of Accounts Department of the Railways. According to those rules, priority in selection is given to those in Class-Ill in the higher scales of pay. The lower grade of Class III Account Department would be considered only if the higher salaried employees were not adequate. Now the Railway Board by its letter No. E (GPO 76/2/96, dated 3rd August, 1977, which was addressed to all the General Managers of the Railways, directed that 25% of the vacancies in the posts of Assistant Accounts Officers for whom panel is re quired to be framed at any one time should be filed 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 has 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 abovementioned Presidential rules. In pursuance of th 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 actually appeared, none of them had been selected; although the petitioners 10, 13 and 14 applied to be admitted to the examination, they did not choose to appear for the examination. The other petitioners did not even apply for admission to the examination. In that examination a provisional panel of successful candidates was published on 21st June, 1979, and a final 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. The present writ petition has been presented to this Court on 3rd March, 1981 challenging the legality of the aforementioned letter of Railway Board and the consequential selection and appointment of the respondents 4 to 8.

(3.) The first question that is raised by Mr. Gururaja Rao, the learned Counsel for the petitioner, 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 of posts of Class-II must be confined first to those persons drawing the higher scales of pay in Class-Ill and only when those persons are not available the authorities can consider the persons in Class-Ill 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 per cent of the total number of posts available to be filled up by promotion to all those who are working in Class-III Accounts Department irrespective of the fact whether persons working in Class-Ill and drawing higher brackets of pay were adequate to be recruited to Class-II posts; In other words while the scheme of the Presidential rules confers a priority for being considered; for promotion on those drawing higher scales of pay in Class-III, the 25 percent rule adumbrated by the Railway Board's letter destroys the priority and makes the 25 per cent, of seats equally available to those who are in Class-II 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 per cent, 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 effect 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 presidential 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 exercises under Article 309 of the Constitution is of a legislative 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 circumstances I hold, agreeing with the learned Counsel for the petitioners, that the aforementioned Railway Board's letter being inconsistent with the rules made by the President of India under his power derived from the proviso to Article 309 of the Constitution, should be treated as illegal and without force.