UNION OF INDIA Vs. SANTI KUMAR BANERJEE

JUDGEMENT

(1.) In this appeal, the Union of India as representing the Eastern Railway, is the first appellant and the appeal is against an order of Banerjee J., dated 21st January, 1964, made in an application by one Santi Kumar Banerjee, against the Union of India representing the Eastern Railway and others. The facts in the application are briefly as follows : The petitioner states that he was previously in the employment of the Bengal and Assam Railway and thereafter became employed by the Eastern Railway. On 20th March, 1937 he was promoted to the rank of Ticket Collector and was at the material time holding the post of a confirmed Ticket Collector in the Eastern Railway. It is stated that since 1950 and from time to time, the Railway Board sanctioned the creation of a few upgraded posts of Ticket Collector on the scale of Rupees 200-300 and simultaneously there was a similar sanction for the creation of certain upgraded posts of Travelling Ticket Examiners, which according to the petitioner, was a separate cadre of appointment. It is then stated that by a decision of the Railway Board the upgraded posts of Ticket Collectors were to be filled by promotion exclusively from Ticket Collectors of the ex B.A. Railway who were confirmed against preparation vacancies with dates of confirmation prior to 15.8.47. Similarly it was decided that the upgraded post of Travelling Ticket Examiners would be filled by ex B.A. Railway Travelling Ticket Examiners confirmed against prepartition vacancies, who were confirmed prior to 15.8.47. It is claimed that the petitioner had at the material time the requisite qualification as an ex B.A. Railway Ticket Collector confirmed prior to 15.8.47. The first grievance made in the petition is that the Eastern Railway wrongfully amalgamated the two different cadres of Ticket Collectors and Travelling Ticket Examiners, in the matter of selection to the upgraded post of Ticket Collectors and also called persons totally ineligible for the purpose of such selection, to be candidates for promotion to the post of the upgraded Ticket Collectors. What happened was that 32 posts were to be filled up and 137 candidates were called up for selection, including 9 candidates who, it is said, are wholly ineligible under the rules, but were called simply on the ground that they belonged to the scheduled caste. Thereafter, an examination was held, both written and viva voce. The complaint is that this examination was not held in accordance with the rules. There is, therefore, two broad points. One is the illegal amalgamation of the two cadres and the other is the holding of the examination or test by the Selection Board contrary to the rules. The learned Judge in the Court below has dealt with both the points. With regard to the first point, he has held against the petitioner and in this appeal before us the petitioner has not questioned the decision. On the second point, the learned Judge in the Court below has held in favour of the petitioner and has come to the conclusion that the examination or test was not properly held. The petitioner has tried to support this finding before us. Before deciding this point, we must first of all, refer to the rules concerning the holding of the examination or test. Incidentally it may be mentioned that a point has been taken by the appellant that these rules are not statutory rules. If, of course, these are merely departmental rules without statutory force, we cannot rely on them for the purpose of a writ application. Therefore, not only the relevant rules will have to be considered, but also the point as to whether they have statutory force. I shall now proceed in enumerate the relevant rules.

(2.) Article 309 of the Constitution gives power to the President to make rules regulating the recruitment and the conditions of services of persons appointed to public service and posts in connection with the affairs of the Union. The Railways and All India Services are matters which ware Union subjects under List I of the 7th schedule. The President can make such rules until Parliament enacts a statute in respect thereof, and the President may delegate his powers in that behalf to such persons as he may direct. Under the corresponding provisions of the Government of India Act 1935 namely section 241 (2), the Railway Establishment Code was first promulgated in 1940. It was reprinted in 1951 and revised in 1959. In 1960 was published the Indian Railway Establishment Manual which now incorporates portions of the Railway Establishment Code. Under R. 156 of the Code of 1951 (corresponding to R. 157 of the Code of 1959) the Railway Board has been given full powers by the President to make rules of general application to non-gazetted railways servants under their control. It will be necessary to trace the relevant rules since the promulgation of the 1951 Code. In the 1951 Code. R. 140 (Ch. 1) provides that the rules for the recruitment and training of non gazetted railway servants other than those mentioned therein, on Indian Railways, excluding the Accounts department, are contained in Appendix II. The rules governing the promotion of subordinate staff is contained in Appendix II-A. clause 4 of Appendix IIA is in the following terms:

(3.) The Railway Establishment Code 1951 was revised and republished as the Indian Railway Establishment Code Vol. I in 1959. It was issued by the President in exercise of the powers conferred on him under Article 309 of the Constitution. In the prefatory note to the said publication, it has been stated that the Appendices II and II-A mentioned above have been embodied in the Indian Railway Establishment Manual. This was done in order to avoid the code being too bulky. The Indian Railway Establishment Manual was published in 1960. In the 1959 Establishment Code, rule 137 (Chapter I) provides that the rules for the recruitment of non-gazetted railway servants are contained in Chapter I of the Indian Railway Establishment Manual. The rules governing the promotion of subordinate staff are contained in Chapter II. The relevant rules with which we are concerned as based on Appendix II-A of the Indian railway Establishment Code 1951 as modified by several directives of the Railway Board. These are all mentioned in the letter written by the Chief Personnel Officer, which together with its enclosures has been set out in annexure 'D' to the petition, at pages 31 to 34 of the paper book. The relevant rule is Rule 9 in Chapter II of the Indian Railway Establishment Manual which describes the procedure to be adopted by the selection board in filling up selection posts. The relevant rules for our purposes are contained in clauses (c), (d), (e), (f), (h) and (k) which are set out below: