K C MOHANTY Vs. UNION OF INDIA

JUDGEMENT

(1.) This application by the petitioner under article 226 of the Constitution of India is directed against the provisional panel dated 24-9-80, Annexure-7 drawn up by the Divisional Personnel Officer, South Eastern Railway, Khurda Road (Opposite Party No. 2) wherein the names of opposite parties 3 and 4 have been included and the name of the petitioner omitted and the office order dated 30-9-80, Annexure-8, wherein the promotions of opposite parties 3 and 4 pursuant to Annexure-7 have been regularised by opposite party No. 2.

(2.) In order to appreciate the point involved in this case it will be necessary to state the facts briefly. The petitioner was selected by the Railway Service Commission and appointed as Assistant Station Master, Gr. III on 12-1-1962. On 15-8-1971 he was promoted as Assistant Transport Inspector in the scale of Rs. 425-640/- and was confirmed as such on 1-1-1973. Opposite party No. 3 who had joined service under the Railways as a Relieving Clerk on 1-5-54 was promoted as an Assistant yard master, Class II in the scale of Rs. 425-640/-on 13-10-76. Opposite party No. 4 belonging to the Scheduled Caste community was appointed as Assistant Station Master, Gr. III on 6-9-66 and was promoted to the post of Assistant Station Master, Gr. II, in the scale of Rs. 425-640/- on 6-4-75. According to the petitioner, the posts of Assistant Transport Inspector held by him and the posts of Assistant Yard Master and Assistant Station Master, Gr. II, held by opposite parties 3 and 4 respectively, are equivalent posts carrying the same scale of pay, i. e. Rs. 425-640/-. The petitioner claims to be senior to opposite parties 3 and 4 as his promotion was earlier in point of time and he had already been confirmed in the promotional post with effect from 1-1-73, but opposite parties 3 and 4 had not been confirmed in their respective promotional posts. The next higher promotional posts for the petitioner and opposite parties 3 and 4 from their respective posts described above are the posts of Junior D. T. I./T. I. Gr. III, in the scale of Rs. 455-700/-. Being senior to opposite parties 3 and 4 the petitioner was promoted on ad-hoc basis as Junior D. T. I. by order dated 8-3-77 Annexure-1. The petitioner joined as Junior D. T. I. on 11-3-77. Opposite party No. 3 was promoted on ad-hoc as Junior D. T. I. on 6-7-78 and opposite party No. 4 was also promoted on ad-hoc basis as Junior D. T. I. on 31-7-78. Thereafter opposite party No. 2, by his letter 17-5-79, Annexure-2, decided to hold a written examination and a viva-voce test to draw up a panel of four staff (three unreserved and one Scheduled Caste) by selection for regular promotion to the posts of Junior D. T. I./T. I. Gr. III/Moving Inspector Gr. III in the scale of Rs. 455-700/-. The petitioner has been continuously officiating in the post of Junior D. T. I. for more than three years from 11-3-77 and as per Railway Board's Circulars and Orders contained in Annexures 3 and 4, the petitioner's promotion automatically became regular and he could not be reverted to any lower post after three years on any ground except for misconduct. The petitioner's work all throughout was satisfactory and no defect in his work had ever been noticed or communicated. However, as desired by opposite party No. 2, the petitioner and opposite parties 3 and 4 expressed their willingness and appeared at the written test held on 12-3-80. The petitioner passed the written test and was called to the viva-voce test, vide letter dated 10-7-80, Annexure-6. The petitioner has asserted that though he passed the viva-voce test his name was not included in the panel dated 24-9-80, Annexure-7. The empanelment of opposite parties 3 and 4 was regularised vide order dated 30-9-80, Annexure-8. According to the petitioner, selection of opposite parties 3 and 4 who were junior to him and regularisation of their promotions ignoring the legitimate claim of the petitioner were arbitrary and discriminatory being violative of the provisions contained in Articles 14 and 16 of the Constitution of India. The petitioner has therefore prayed that Annexures 7 and 8 should be quashed and opposite parties 1 and 2 should be directed to prepare a fresh panel wherein his name should be included and he should be shown senior to opposite parties 3 and 4.

(3.) In their counter opposite parties 1 and 2 have accepted the particulars as to service career furnished by the petitioner. However, they have stated that the posts of Assistant Transport Inspector, Assistant Yard Master and Assistant Station Master, Grade II in the same scale of pay of Rs. 425-640/- held by the petitioner and opposite party No. 3 and opposite party No. 4 respectively are not equivalent but separate categories of posts. They have further stated that the petitioner was not included in the panel published under Annexure-7 as after qualifying at the written examination he failed in the viva-voce test. It is denied that the petitioner's ad-hoc promotion as Junior D. T. I. conferred on him any right under the Board's circulars or orders for regularisation of his promotion without passing the prescribed tests or that continuous officiating service in the said post beyond three years resulted in automatic regularisation of his promotion. According to the opposite parties 1 and 2, the claim of the petitioner is without any merit. It is worthy of note that during the pendency of this writ application opposite parties 1 and 2 filed an affidavit in support of order dated 3-10-83 passed by opposite party No. 2, Annexure-X, wherein the petitioner has been empanelled for the promotional post of Junior D. T. I. with effect from 29-9-83.