DINESHWAR BHATTACHARYYA Vs. CHIEF COMMERCIAL SUPERINTENDENT EASTERN RAILWAY

JUDGEMENT

(1.) THE facts in this case are shortly as follows: the petitioner joined the Bengal Nagpur Railway, sometime in 1945 in a Class III post, as Traffic Office Assistant (Office Superintendent), Road Transport Branch, Commercial Traffic Manager's Office. He was confirmed in that post in January, 1947. In 1950 he was first of all selected by the Selection Board to fill the post of Assistant Road Transport Officer, and he was selected for a second time for filling a post in Class II in the Commercial Department. What the Selection Board does is to put the approved candidates in a panel, from which officiating appointments are made, strictly according to priority. An officiating appointment may lead to the person holding the post being confirmed therein. The petitioner was first of all appointed to the post of an Assistant Road Transport Officer, which was a post sanctioned only for six months. Upon expiry of that period, he reverted to his substantive post. On the 27th July, 1951 he was promoted to the post of officiating Assistant Commercial Officer (Operating Branch ). This is a Class II post (gazette ). On the 14th April, 1952 the B. N. Railway merged with the East Indian Railway, which in its turn was renamed the Eastern Railway. On the 29th May, 1952 an order was passed by the Chief Commercial Superintendent, Eastern Railway to the effect that the petitioner being surplus to requirement will revert to Class III on and from the 1st June, 1952. It is said that owing to the regrouping of the Railways and due to a general tendency on the part of all employees not to go out of Calcutta, certain persons became surplus and had to be reverted back to their substantive posts. Against this order of the Chief Commercial Superintendent, the petitioner appealed to the General Manager on the 31st May, 1952. On the 7th June, 1952, an order was made by the General Manager as follows:

(2.) AGAINST this the petitioner appealed to the Railway Board. Pending the appeal, the petitioner was asked to appear before the Selection Board for selection, but he refused to do so on the ground that the matter was pending decision and he was only willing to appear before the Selection Board without prejudice to his rights, a course to which the authorities did not agree. On the 18th November, 1953 the petitioner was informed that his representation had been carefully considered by the Railway Board which had come to the conclusion that he had been correctly reverted to Class III. Nothing has been said with regard to the complaint that the petitioner's name had been struck off the panel. This Rule was issued on the 5th January, 1954. In this application, the petitioner complains against the order of the General Manager reverting him to his substantive post as well as striking out his name from the panel of Class III staff, approved for promotion to the lower gazetted rank. As I have stated above, the petitioner was officiating in a Class II post, his substantive post being that of a Traffic Office Assistant which is a Class III post. The order made by the Chief Commercial Superintendent was obviously incompetent, because he was not the appointing authority. But, as I have said, there is the subsequent order by the General Manager reverting him to his substantive post and also striking out his name from the panel. The complaint is that both these acts were by way of punishment, and the petitioner has not been given an opportunity of being heard, or of defending himself. Now, so far as reverting him to his substantive post is concerned, the ground for doing so is stated to be that the petitioner became surplus to requirement. In the affidavit-in-opposition, another ground has been sought to be advanced, viz. that it was thought that the petitioner should have more experience in the commercial Department. But that, of course, is nowhere in the orders mentioned above. But even if the removal was for such a purpose, it appears to me that the mere sending back of the petitioner to his substantive post cannot be considered as a punishment. He was in an officiating post and had no legal right to continue there. If the matter stood there, then, of course, no relief could be granted. But we have another part of the order, viz. that the General Manager struck his name out of the panel of Class III officers, who were to be promoted to Class II posts. In the affidavit-in-opposition it has been sought to be established that this panel is of no consequence, and that, in any event, it was a panel for promotion to an officiating post. In my opinion, this stand cannot be supported. One could have understood if it was stated that by reason of the merger, the old selections had entirely vanished. On the contrary, in paragraph 12 of the affidavit-in-opposition affirmed by Paul Chand Vaish it is stated that selections were now being made from amongst the staff whose names were in the approved panel, according to seniority and merits of the individual candidates. It is further stated that the petitioner's name was not on the panel since the 7th June, 1952, and for that reason there is no question of supersession. Further, as I have already mentioned, the General Manager has actually removed the name of the petitioner from the panel as appears from the communication dated the 7th June, 1952 which is Annexure 'b' to the petition. The position is that there was a panel which is still in existence, drawn up toy a Selection Board, according to the rules and regulations enforced in the Eastern Railway. It will be necessary to investigate the question of this panel a little further. According to Rule 104 of the Indian Railway Establishment Code, Vol. I, page 3, railway services in India are classified into three classes: Classes I and II are gazette, and the third class, viz. Class III is non-gazette. We next come to Rule 132 which is as follows:

(3.) THE Rules governing the promotion of subordinate staff are to be found in Appendix II-A appearing in the Indian Railway Establishment Code, Vol. I, page 211. Rule 6 lays down that selection posts shall be filled up by a positive act of selection made with the help of Selection Boards, from amongst subordinates who are ordinarily considered for promotion to the selection posts in accordance with the orders or practice regulating such promotions. Rule 7 lays down how Selection Boards are to be appointed: Sub-rule (a) lays down that Selection Boards shall be constituted for the purpose of making recommendations to the competent authority of the employees considered by it as suitable for filling a selection post. Rule 8 lays down the constitution of Selection Boards and Rule 9 lays down the procedure to be adopted by them. It is inter alia laid down that a list will be drawn up according to the recommendations. It is further laid down that it shall be open to the General Manager, or the Chief Mining Engineer to direct, where circumstances warrant or the system in force requires it, that candidates selected by a Divisional or District Selection Board shall be subject to another selection by a Central Selection Board.