GENERAL MANAGER EASTERN RAILWAY Vs. BIBHUTI BHUSAN ROY

JUDGEMENT

(1.) F. M. A. No. 37 of 1968 is an appeal under clause 15 of the Letters Patent against the judgment and order dated August 18, 1967, making absolute Civil Rule No. 927 (W) of 1963 by D. Basu, J. and F. M. A. No. 243 of 1971 is also an appeal under the said clause 15 against the judgment and order dated March 18, 1971, by P. K. Banerjee, J. , discharging thereby Civil Rule No. 3160 (W) of 1966. Since the points involved in the two appeals viz. , the scope, effect and interpretation of the 18 months Rule of the Railway were the same, by consent of Parties they were heard together and they would thus be disposed by one judgment.

(2.) IN F. M. A. No. 37 of 1968, the employee concerned viz. , the respondent petitioner (hereinafter referred to as the said employee), who at the material time was holding the post of Chargeman, Grade 'a', was appointed to officiate as Assistant Foreman Grade "b" since 1956 and as a Head Planner which is equivalent to the post of an Assistant Foreman 'b' since January 31, 1961. Thereafter, on or about June 22, 1962, there was an announcement by the Deputy Chief Mechanical Engineer to the effect that a selection would be held by a Selection Board for the formation of a panel for appointment as Assistant Foreman 'b' and other posts and it is an admitted fact that the said employee was invited to appear in the said selection as an eligible candidate, but he failed in the selection test. He was allowed to appear in a fresh written test for the formation of panel of Assistant foreman 'b' and other posts, by order dated 18th/19th February, 1963. The said employee, instead of appearing in the said test, challenged the validity of the said order contending inter alia amongst others that since he was officiating in the post of Assistant Foreman 'b' from 1956 i. e. , for a period of more than 18 months, he cannot be asked to appear in any selection test for being empanelled as a candidate eligible for promotion to the post of Assistant Foreman 'b' and furthermore he cannot be reverted from the said post without duly following the procedure as prescribed in the Discipline and Appeal Rules. Such contentions were raised in view of the Railway Board's letter of May 21, 1956, which is to the following effect : -

(3.) THE present appellants contested the said Rule and they in their affidavit-in-opposition contended that the post of Assistant Foreman 'b' and Head Planner, although of equal rank, were selection posts promotions to such posts could only be made by positive acts of selection viz. , tests to be held by duly constituted Selection Boards in the manner prescribed by Rules. They also contended that the officiating promotions in the case of the said employee were nothing but temporary arrangements or accommodations which could not in any event give him any right to the post held by him nor entitle him to claim that it is not necessary for him to pass the selection test. It has also been stated by the said respondents that because of the said employee's refusal or failure to appear before the Selection Board, he had been duly reverted back to his substantive post of Chargeinan Grade 'a' by the order dated March 19, 1964. Since this order was not known to the said employee, he did not challenge the same initially but on the disclosure as aforesaid, he got his petition amended bin corporation new grounds.