TARAPRASANNA BHANJA Vs. UNION OF INDIA (UOI)

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution for a writ in the nature of mandamus directing the respondents to forbear from giving effect to an order of reversion dated 27 May 1949 passed by the Chief Engineer of Eastern Railway.

(2.) THE petitioner is an Engineering Graduate of the Benares Hindu University and he is an Associate Member of the Institute of Engineers. In March 1938, the petitioner was employed in Bengal -Nagrpur Railway Company, Ltd., in the Subordinate cadre of the Bridge Branch. Immediately thereafter he was confirmed as a Bridge Inspector. On or about 1 October 1946, the said Bengal -Nagpur Railway Company, Ltd., was taken over by the Government of India and was renamed as Bengal -Nagpur Railway. The petitioner having elected to continue in service under the State was employed by the Government of India through the then General Manager, Bengal -Nagpur Railway, under terms and conditions contained in a letter of employment dated 5 July 1946. In February 1947, while the petitioner was posted at Cuttack as Bridge Inspector, he was empanelled and selected by a duly constituted Selection Board as a suitable candidate for being promoted to lower gazetted service (Class II) which is a gazetted rank but the petitioner was not given any promotion just then but he was transferred to Purulia by an order of the Chief Engineer. It is alleged that while working at Purulia the petitioner was twice superseded by his juniors who were promoted to lower gazetted rank by orders of one Mr. Panikkar who was then acting as the District Engineer. On or about 8 August 1948 while the petitioner was still at Purulia the petitioner's bungalow was raided by a gang of robbers and the petitioner was severely assaulted and injured by the dacoits, After the petitioner was treated in hospital for injuries and he recovered therefrom, he was recommended for lighter work and as such when he resumed his duties on or about 8 October 1948, he was posted at Garden Reach, Calcutta. On 18 November 1948 an order was passed by the Chief Engineer Mr. S.K. Panikkar promoting the petitioner to the post of an Assistant Engineer, Bridges (Class II), Garden Reach, but although the medical authorities had recommended lighter work for the petitioner, the petitioner was put to great pressure of work after he was posted as Assistant Engineer, Bridges. It is alleged that on or about 24 May 1949 the petitioner was informed that he would be reverted to a non -gazetted post pursuant to some adverse confidential reports made by the said Mr. Panikkar upon enquiry initiated by one Mr. P.K. Tubby, the Deputy Chief Engineer. On or about the same date, a manuscript copy of the order issued by the Chief Engineer was shown to the petitioner and the petitioner learned from the said order that he had been reverted to the post of a Bridge Inspector. The said Order of reversion was published in the Bengal -Nagpur Railway Gazette, dated 1 June 1949. It appears from the copy of the confidential report which was shown to the petitioner on or about 25 May 1949 that the report against the petitioner was that he was not as keen and quick as others who filled in this post before and that he was unfit both in the office and outdoor work. It also appears that the then General Manager on seeing this confidential report had remarked that the petitioner should be apprised of his shortcomings. The petitioner alleges that as the said confidential reports were passed in contravention of rules 1607, 1609, 1610 and 1611 of the Indian Railway Establishment Code the reports were irregular and no action could be taken on such reports. It is further alleged that as the order of reversion which was passed as a result of adverse confidential report was passed without giving the petitioner any opportunity to show cause against the charges which had been brought against the conduct and character of the petitioner the said order was also illegal. The case of the petitioner further is that the said order of reversion was passed mala fide at the instance of Mr. Panikkar, the then Chief Engineer, and as a result of the adverse confidential report the petitioner had not been given any promotion in future and other persons junior to him had been allowed to supersede him on several occasions. After some correspondence was had between the petitioner and the railway authorities, the petitioner was informed by a letter dated 15 February 1951 that the said reversion had been made for administrative reasons. Thereafter on or about 1 March 1951 the petitioner preferred an appeal before the General Manager, Bengal -Nagpur Railway, but as in spite of reminders nothing was heard for about more than two years about the fate of the appeal the petitioner on 27 June 1953 sent a reminder to the General Manager, Eastern Railway. On or about 1 January 1955 the petitioner gave another reminder to the General Manager and thereafter on or about 12 March 1955, the petitioner asked for a personal interview with the General Manager. On 28 March 1955 the Deputy General Manager informed the petitioner that the General Manager had taken into consideration the representation of the petitioner dated 1 January 1955 and the General Manager was satisfied that the petitioner's case had received full consideration from the administration, but the petitioner would be given another chance when a fresh panel of Assistant Engineers would be drawn up by the Selection Board. The petitioner thereafter moved this Court on 25 April 1956 and obtained the present rule.

(3.) THIS rule 134 is headed as 'Promotion to Gazetted Post' and Sub -rule 3(a) of Rule 134(1) makes it clear that it is the General Manager alone who can promote a non -gazetted railway servant to officiate in Class II service. It is admitted that in the present case when the petitioner was appointed to officiate as an Assistant Engineer, Bridges, on 12 November 1948 in place of D. Patnaik the order appointing him was issued under the signature of the Chief Engineer but this was afterwards approved by the General Manager. So it was the General Manager who had given his approval to the order made by the Chief Engineer. But when he was reverted from this officiating post on 27 May 1949, the order was not made by or with the approval of or under the direction of the General Manager but it was made by the Chief Engineer. It appears to me that this order of the Chief Engineer reverting the petitioner to the post of Bridge Inspector is not according to law. The power given to the General Manager under Rule 134(1)(3)(a) to promote an employee of the non -gazetted rank to a post of the gazetted rank necessarily implies that the power to demote or revert is in the same officer, in the absence of any express rule providing otherwise. No such rule has however been brought to the notice of this Court. It is true that there is no specific rule providing that an order of reversion or demotion should be made by the appointing authority but that appears to me to be the clear implication of Rule 134(1)(3)(a). So on this ground the order of reversion appears to be technically bad. It is true, that the petitioner was promoted to officiate as Assistant Engineer, Bridges, in the temporary vacancy, caused by D. Patnaik being appointed to officiate in place of Mr. C.N. Banerjee, as Assistant Engineer, Personal Assistant to the Deputy Chief Engineer and it is also true that on reversion Of Mr. Patnaik to his substantive post as Assistant Engineer, Bridges, the petitioner had to be reverted to his substantive post of Bridge Inspector but the fact nevertheless remains that reversion or demotion of the petitioner took place, as a result of this arrangement. If for some reason D. Patnaik did not revert as Assistant Engineer, Bridges, then there would be no occasion to revert the petitioner to his former post of Bridge Inspector. Simply because D. Patnaik returned to his substantive post and thereby necessitated the reversion of the petitioner to the post of Bridge Inspector, does not do away with the necessity of the order of reversion being passed by or with the approval of the General Manager. It is clear from the rule referred to, that it is a responsible person like the General Manager who is entrusted with the power of promotion of non -gazetted employees in Class II service, and it follows therefore that the power of demotion is also in him.