JAGDISH SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a writ petition under Article 226 of the constitution by one Jagdish Singh who challenges an order of the Railway Authorities regarding fixation of his relative seniority visa-vis respondents Nos. 5 to 14.

(2.) THE petitioner was in the service of the Northern Railway and posted at Railway work shop at Jodhpur. THE petitioner entered the service of the Railways as an unpaid Apprentice Mechanic in the year 1950 and bad his training. On completion of 5 years training as Apprentice Mechanic he was appointed as a Journeyman in the grade of Rs 100-185 with effect from 15-5-55. He came to be promoted as a chargeman in the grade of Rs. 150-225 on 27-6-67. He was confirmed as chargeman in the grade of Rs. 150-225 with effect from 14-7-57. Respondents Harbans Singh was confirmed as chargeman from 26-7-57. Kundan Lal was confirmed on 27-7-57, Shri Vallabh on 28-7-57, Pritam Chand on 9 10 57 and S. K. Chatterji on 21-6-59. Respondents Om-Prakash, R. D. Avasthi, Shri Gopal Sahi, Kanwal Nain Singh and Gyan Chand, according to the petitioner, were not confi> med as chargeman till 7-8-61 and the petitioner proceeded to state that he had no knowledge whether these respondents were confirmed later on or not. For the higher grade of chargeman Rs. 200-300 the petitioner and respondents Nos. 5 to 14 were asked to appear before a Selection Board or Committee. THE petitioner and the respondents appeared to have been selected on a panel. THE name of the petitioner was at serial No. 15 of that panel (Annexure-7 on record) and the names of respondents Nos 5 to 14 were respectively shown at Nos. 18, 19, 20, 21, 22, 30, 31, 32, 33 and 34 After the preparation of this Panel the petitioner was promoted to officiate in this grade of Rs. 20g-300 with effect from 2-12-59. THE petitioner was then promoted to officiate as Boiler-maker chargeman in the grade of Rs. 260-350. THE respondents Harbans Singh, Kundanlal, S. V. Sharma, Pritam Chand Kashyap, Om Prakash, S. K. Chatterji, Kanwal Nain Singh and Gyan chand were also promoted to officiate as Boiler-maker chargeman in the pay scale of Rs. 200 300 by an order dated 15-12-61. On this date the petitioner was working in the higher pay grade of Rs. 260-350.

(3.) THE Indian railway establishment code volume I was made by the president in exercise of the powers conferred upon him under Article 309 of the constitution. Rule 157 therein runs as follows - "157. THE railway-board have full powers to make rules of general application to non-gazetted railway servants under their control. " Rule 158 deals with the powers of the General Managers of Indian railways, who have full powers to make rules with regard to non-gazetted railway servants under their control provided they are not inconsistent with any rules made by the president or the railway board. THEre are number of rules made by the railway board in exercise of their powers under rule 157 of the Indian railway establishment code volume I. THEy are available in form of a compilation entitled. 'indian Railway Establishment Manual'. THE Manual is divided into chapters and chapter III is headed as "rules regulating seniority of Non-gazetted railway servants". Rule 1 provides that the rules contained in this chapter lay down the general principles that may be followed for determining the seniority of non gazetted railway servants on Railway administrations. Rule 2 runs as follows - "2. Unless specifically stated otherwise, the seniority among the incumbents of a post in a grade is governed by the date of appointment to the grade. THE grant of pay higher than the initial pay should not, sub- rule, confer on a railway servant seniority above those who are already confirmed. Such a railway servant should how. ever, be placed below those temporary railway servants, who are drawing the same rate of pay. When the dates of entry into the grade of promoted railway servants and direct recruits are the same, the promoted railway servants should normally be senior to the direct recruits. " Rule 3 is for seniority of candidates recruited through the Railway Service Commission or otherwise and it runs as follows : - "3. THE seniority of candidates recruited through the Railway Service Commission or otherwise should be determined as under : - (a) Candidates who are sent for initial training to training schools, will rank in seniority in the relevant grade, in the order of merit obtained at the examination held at the end of the training period before being posted against working posts, (b) In the case of candidates who do not under go any training the seniority should be determined on the basis of the merit order assigned by the Railway Service Commission or other recruiting authority. " In my opinion rule 2 above contains nothing new, but is only a recognition of the universally accepted rule of seniority. Seniority according to its known co-notation is nothing but a length of service on an equivalent post. THErefore, it is axiomatic that a person who enters a particular cadre earlier is senior to another who enters that cadre subsequent to him; that is, if an incumbent is appointed to a higher grade earlier to another then in the higher grade he will be senior to the other. THE expression "unless specifically stated otherwise" in the beginning of rule 2 only emphasis that unless anything is said to the contrary in a rule for determining seniority, the seniority amongst the incumbents of a post in a grade has to be governed by the date of the appointment to the grade. THE controversy centres round the question whether the orders contained in Annexures-R/4, R/1 and R/2 are such rules as specifically state otherwise within the meaning of rule 2 above. I may, therefore, at this point read these three annexures : - "copy of letter No. R (S) 55 CPC/76 dated 4. 3. 57 from P. M. Narsimhan Dy. Director, Establishment, Railway Board to. All the General Manager, Indian Railways. THE General Manager, Chittaranjan Loco Works. THE Chief Administrative Office, Integral Coach Factor. Sub : - Absorption of Apprentice Mechanic's on completion of training. Reference Railway Board's letters No, K. (R) 49 JAC/10 dated 1-3-1950 and 5-7-1954 and E55 RCI/90/3 dated 22-11-55. THE Board have reviewed the question of absorption of Apprentice Mechanics who have successfully completed their training in the light of the discussion held in the General Managers meeting in August 1956 and have decided,in modification of the orders contained in Board's letters referred to above that apprentice Mechanics on successful completion of their apprenticeship should be appointed straightaway as Chargeman in the scale Rs. 150-225 provided they are suitable in all respects for holding these posts. Sd/- P. M. Narasimhan Dy. Director, Establishment Railway Board. " ANNEXURE - R/1. "government of India Ministry of Railways, (Railway Board) No. R (N G) 61 SR 6/38 New Delhi, dated 26 June, 1962. To THE General Manager, Northern Railway, New Delhi. Sub - Seniority and promotion of Apprentice Mechanics of Ex-Jodhpur State Railway etc. Reference your confidential letter No. 937-F/4/v Loose dated 7-5-1962. THE intention underlying the Board's orders of 4-3-1957 obviously was that all those Apprentice Mechanics who after completion of their apprenticeship, were still continuing as Journeymen at the time of issue of these orders should have been promoted as chargeman, but it would appear that these journeymen were not considered for promotion and only those Apprentice Mechanics who completed their apprentice-ship on or after 4-3-1957 were absorbed directly as chargeman in accordance with the Board's orders. This resulted in Apprentice Mecha-nics who completed their training earlier and were working as Journeymen getting absorbed a. chrgemen at later dates and becoming junior to those who completed their apprenticeship later-This anomalous position has got to be put right. THE Board desire that the seniority of such Apprentice Mechanics on 4-3-1957 should be adjusted as under : - (1) THE apprentice mechanics who had completed their period of training and were working as Journeymen on 4-3-1975. (2) Apprentice mechanics who completed their period of training after receipt of Board's orders dated 4-3-1957. In accordance with their dates of completion of their apprenticeship. THE directly recruited Journeymen of E. P. Rly. will also be deemed to have completed their apprenticeship on the date of their joining as Journeymen for the purpose of seniority as Chargemen on 4-3-1957. In the order of their date of completion of training. 2. On the specific points raised in your letter referred to above, the Board have made the following observations : - Para 3 (i): - Since the orders of 4-3-1957 had no retrospective effect, there is no question of the seniority list of Chargemen prepared on the basis of length of service as on 14-4-1952 being revised on the basis of 4-3-1957 orders. THE only adjustments in seniority that will be required to be made would be in the case of thoses who were promoted as Chargemen after 4-3-1957. This should not involve disturbing of any promotions or confirmations already made. Para 3 (ii): - Since these Apprentice Mechanics did not work as Chargemen, there shall be no question of payment of any arrears of pay. Para 3 (iii): - THE existing unoperated panels in the higher grades should be cancelled and fresh selections held on the basis of recast seniority. THE question of recovery of overpayments does not arise. Para 3 (iv): - THE benefit of seniority should also be extended to the directly recruited Journeymen of the ex E. P. Railway zone, as indicated in the foregoing paragraph. 3. As has already been indicated, these principles will be applicable only for adjusting the seniority of those promoted or absorbed as Chargemen on and after the issue of Board's letter dated 4-3-1957. With regard to those who have already been promoted on the basis of the existing seniority list, it has been decided after very careful consideration that no reversions need be made, but when those, who becomes senior as a result of the seniority list being recast based on the principles indicated above, are promoted to higher grades, their positions in the higher grades would be based on their relative position in the lower grades. THEse principles will be made applicable even in the case of selection post and when a senior man gets subsequently empanelled and promoted, he will remain his seniority in the higher grade irrespective of his later selection than his erstwhile senior. 4. Necessary action may now be taken without further delay to draw revised seniority lists of Chargemen grade Rs. 150-225 with effect from 4-3-1957 and all promotions made from the date of issue of this letter shall be based on the recast seniority list. Sd/- P. K. Anantanarayanan Joint Director Establishment, Railway Board. " Annexure R/2. "government of India Ministry of Railways (Railway Board ). No. B (NG) 61 SR6/38 New Delhi, dated 23rd October, 1962. To THE General Manager, Northern Railway, New Delhi. Sub: - Seniority & promotion of Apprentice Mechanics of different Units of Northern Railway. Reference correspondence resting with Shri V. S. Chopra's D. G. Letter No, 937/4-V (L) (Elic) dated 22-9-62 to the Additional Member Staff Railway Board THE Board have reconsidered the matter and have decided in partial modification of their earlier letter of even number dated 26-6-1962 that the Apprentice Mechanics of the different units of your Railway, who had passed Apprenticeship and were Journeymen on 14-4-1952 and thereafter or who were under training on 14 4-1952, the date of regrouping, or were placed under training on or after that date but before 4 3-195 and on completion of the training had been posted as Journeymen before 4-3-57 should, for the purpose of seniority, be deemed to have been posted as Chargemen instead of as Journeymen and not for fixation of pay and arrears. This will not, however, entitle them to displace those who have already been promoted to higher grades. THEy will only be promoted in future vacancies and will, on promotion, take their seniority over the it juniors promoted earlier as per the then existing orders. THEse orders will not also affect the confirmations already made in the cadre of Chargemen. Mistries who were promoted against 20% of vacancies of Chargemen in terms of Board's letter Nos. E (R) 49 JAC/10 dated 27-5-50 and E (S)55cpg/76 dated 30-1-59, will however, be confirmed in the posts of Chargemen in preference to those who would now he came Senior as a result of adjustment of seniority as above. Action may please be taken accordingly. Sd/- B. N. Soni Asstt. Director, Establishment, Railway Board. "