Sham Sunder Vs. Union of India &
Ors [1968] INSC 154 (15 July 1968)
15/07/1968 BACHAWAT, R.S.
BACHAWAT, R.S.
GROVER, A.N.
CITATION: 1969 AIR 212 1969 SCR (1) 312
CITATOR INFO :
E 1971 SC1011 (3,4) R 1974 SC1317 (12) O 1976
SC 490 (180) R 1981 SC1829 (32)
ACT:
Constitution of India Arts. 14 and
16-Reservation supervisors posts in Railway Penal drawn up on the basis of
certain up-garding of posts-Railway Board holds irregular and
deletes-Validity-if violative of Arts. 14 and 16.
HEADNOTE:
The General Manager, Northern Railway
published a panel of 38 enquiry-cum-reservation clerks for selection to the
posts of reservation supervisors. This panel was published after considering
152 persons, i.e., four times the number -of existing and anticipated vacancies
plus 25% thereof for unforeseen vacancies. The anticipated vacancies included
11 vacancies on account of promotions due to the upgrading of 11 posts in the
next higher grade. Representations were made against the constitution of the
panel, and the Railway Board decided that the panel should consist of 24
persons only to coy& 18 upgraded vacancies, 1 vacancy on account of
retirement and 5 vacancies representing 25% for contingencies and the field of
selection should be restricted to 24*4=96 and not 152 persons. So, the panel
already published was ordered to be operated only in respect of the first 24
persons and the names of the remaining persons be deleted. Accordingly, the
General Manager by an order implemented the decision. The petitioner, whose name
was at No. 33 in the panel, published earlier filed a writ petition in this
Court, challenging the orders as violating his fundamental rights.
HELD :-The petition must be dismissed.
(i) Under the general direction issued by the
Railway Board in one of its letters, the General Manager was competent to amend
the panel with the approval of the Railway Board [315 F-G] Srivastava v. N.E.
Railway, [1966] 3 S.C.R.61, 64, 65, followed.
(ii) The Railway Board held that until the
selection was made, it could not be anticipated that 11 persons would be
promoted creating 11 consequential vacancies in that grade due to promotions to
the higher grade. Acting upon this view the Railway Board decided that the
anticipated vacancies would be less and the panel should be amended accordingly
and should be operated in respect of the first 24 persons only. The decision
could not be said to be perverse nor it could be quashed or set aside. [315
A-316 B] (iii) All the 24 persons retained in the panel were senior to, the
petitioner. All of them would have been selected and included in the panel,
even if 96 persons were originally called for selection. There was no fore in
the contention that the retention of the first 24 persons in the panel without
holding a fresh selection was discriminatory or was violative of Arts. 14 and
16 of the Constitution [316-C] (iv) It is said that panels of Class Ill
selection posts of station masters on the Northern, Railway and all class ill
selection posts on other Railways had been drawn up on the footing that
anticipated vacancies in the selection grade include vacancies on promotion due
to upgrading of posts in the next higher grade and that the Railway Board had
not 313 issued any direction for amendment of those panels. But those panels
relate to separate; classes of employees and have no bearing on the question of
equal opportunity in the matter of promotion of enquiry-cum-reservation clerks
on the Northern Railway [316 D-F] All Indian Station Masters' and Assistant
Station Masters' Association v. General Manager Central Railways, [1960] 2
S.C.R. 311, 319, followed.
ORIGINAL JURISDICTION : Writ Petition No. 31
of 1967.
Petition under Art. 32 of the Constitution of
India for the enforcement of fundamental rights.
Basudev Prasad and M. I. Khowaja, for the
petitioner.
Naren De, Solicitor-General, V. A. Seyid
Muhammad, R. N. Sachthey and S. P. Nayar, for the respondents.
The Judgment of the Court was delivered by
Bachawat, J. The petitioner is employed on the Northern Railway as an enquiry
and reservation clerk in the grade of Rs. 150-240. In January 1965 several
posts of enquiry-cumreservation clerks were upgraded, 11 posts being raised to
the grade of Rs. 370-475, 18 posts to the grade of Rs. 250380 and 26 posts in
the grade of Rs. 205-280. As a result of the upgrading the revised cadre of
enquiry-cumreservation clerks on the Northern Railway consisted of the
following non-gazetted posts:Category No. of Posts Scale of pay Classification
Enquiry cum reservation clerk 202 150-240(AS) selection Assist. reservation
Supervisor 32 205-280(AS) Non-selection Reservation Supervisor 23 250-380(AS)
Selection Chief Reservation Inspector 11370-475(AS) Selection The promotion of
non-gazetted railway servants is governed by Chapter II of the Indian Railway
Establishment Manual and the rules made by the Railway Board from time to time
under r. 157 of the Railway Establishment Code. Promotion to selection posts
has to be made from a panel of selected employees prepared by a selection board
and approved by the competent authority. For making the selection, eligible
staff up to four times the number of anticipated vacancies are called for
written and viva voce tests under r. 9 (d) of Chapter 11. By letter No. E(NG)
62 PM 1/91/dated July 10, 1964 the Railway Board directed that "the number
of persons to be placed on a panel should be equal to the existing and
anticipated vacancies, plus 25% thereof for unforeseen vacancies. Anticipated
vacancies 314 connote only those which are likely to arise due to normal wastage
during the currency of the panel. The currency of the panel for non-gazetted
selection posts should be two years from the date of the approval of the same
by the competent authority or till exhausted whichever is earlier." On
January 22, 1965 under orders of the General Manager.Northern Railway 152
enquiry-cum-reservation clerks were asked to appear in tests for selection to
the posts of reservation supervisors in the grade of Rs. 250-380. The
petitioner who ranked 113 in order of seniority was allowed to appear in the
tests. As a result of the oral and written tests a panel of 38 persons was
drawn up on July 7, 1965, and was published in the Railway Gazette on August 1,
1965.
The petitioner was one of the selected
candidates and his name was shown as No. 33 in the panel. A note at the foot of
the panel intimated to the staffconcerned that "the mere fact that their
names are on the panel will not confer upon them any right for permanent
absorption as a reservation supervisor." In calling 152 persons for them.
selection, the General Manager, Northern Railway proceeded upon the footing
that 38 persons had to be placed on the panel and 4 times 38, that is to say
152 persons should be asked to appear in the tests. According to him there were
18 immediate vacancies in the posts of reservation supervisors due to
upgrading, 1 anticipated vacancy due to retirement and 11 anticipated vacancies
on account of promotion due to upgrading of 11 posts in the next higher grade
of chief reservation inspector. The figure 38 is the total of 18 plus 1 plus 11
plus 25% thereof. The view that anticipated vacancies included 11 vacancies on
account of promotion due to the upgrading of 11 posts in the next higher grade
was supported by the prevailing practice in the Northern and other Railways.
The Railway Board received several complaints
and representations regarding the constitution of the panel. By an order dated
September 16, 1965 (annexure H) the Railway Board decided that the panel of 38
persons was irregularly drawn up and that there should be a panel of 24 persons
only for promotion to the grade of Rs. 250-380 to cover 18 upgraded vacancies,
1 vacancy on account of retirement and 5 vacancies representing 25% for
contingencies and the field of selection should be restricted to 24-4-96 and
not 152 persons. Accordingly the panel already published should be operated
only in respect of the first 24 persons and that the names of the remaining 14
persons should be deleted forthwith. The Board directed that action should be
taken to form a panel for filling up 1 1 upgraded posts in the grade of Rs.
370--475 and thereafter a further selection should be held for filling up the
resultant vacancies in the grade of Rs. 250 -380. By an order dated November 3,
1965 (annexure K) the General Manager, Northern Railway implemented the
decision 315 and directed that the panel formed on July 7, 1965 was to be
operated upto the first 24 persons only and that the names of the remaining 14
persons including the petitioner should be treated as deleted from the panel.
By another order dated October 4, 1966 (annexure N) the General Manager,
Northern Railway decided to hold a selection for filling up the resultant
vacancies in the grade of Rs. 250-380. Having regard to the number resultant
vacancies, the petitioner is not eligible for being called for selection under
Annexure "N". In this writ petition the -petitioner alleges that the
orders under Annexures H; K and N have violated his fundamental rights under
Articles 14 and 16 of the Constitution, and he asks for the issue of
appropriate writs restraining the respondents from enforcing those orders and
directing them to make promotions to posts in the grade of Rs. 250380 in
accordance with the panel published in the Gazette on August 1, 1965.
Counsel for the petitioner contended that the
Railway Board or the General Manager had no power to amend the panel published
on August 1, 1965. We are unable to accept this contention. The point was not
taken in the petition. When the contention was raised at the hearing of the
petition, the learned Solicitor-General drew our attention to the letter of the
Railway Board No. E/52/PM 2-34 dated August 4, 1953. On the subject of
cancellation or amendment of approved panels the Railway Board directed by this
letter "that the panels once approved should not be cancelled or amended
without reference to the authority next above the one that approved the
panel." There is no controversy that the Railway Board had power to issue
this general direction under r. 157 of the Railway Establishment Code. In the
present case the General Manager, Northern Railway was the authority approving
the panel. The Railway Board was the authority next above him. Under the
general direction issued by the Board in its letter dated August 4, 1953, the
General Manager was competent to amend the panel with the approval of the
Railway Board. In Srivastava v. N. E. Railway(1) the Court held that an
amendment of an approved panel in accordance with a similar rule was in order.
The point in controversy was whether there
were 11 more anticipated vacancies in the grade of Rs. 205-380 on account of
the upgrading of 11 posts in the next higher grade of Rs.
375480. Now the selection for the 11 new
posts in the grade of Rs. 375-480 had to be made from 56 eligible members of
the staff comprising 23 clerks in the grade of Rs. 205-380 and 33 clerks in
lower grades. The Railway Board held that until the selection was made, it
could not be anticipated that 11 clerks in (1) [1966]3S.C.R.61,64,65.
316 the grade of Rs. 205-380 would be
promoted and that there would be 11 consequential vacancies in that grade due
to promotions to the higher grade. Acting upon this view the Railway Board
decided that the anticipated vacancies in the grade of Rs. 205-380 due to normal
wastage would be 19 and not 30 and that the panel should be amended accordingly
and should be operated in respect of the first 24 persons only.
We are unable to say that the decision is
perverse or that it should be quashed and set aside.
All the 24 enquiry-cum-reservation clerks
retained in the panel were senior to the petitioner. The junior most of them
ranked 77 in order of seniority. All of them would have been selected and
included in the panel, even if 96 persons were originally called for selection.
There is no force in the contention that the retention of the first 24 persons
in the panel without holding a fresh selection is discriminatory or is
violative of Articles 14 and 16.
For purposes of promotion, all the
enquiry-cum-reservation clerks on the Northern Railway form one separate unit.
Between members of this class there is no
discrimination and no denial of equal opportunity in the matter of promotion.
It is said that panels of class III selection
posts of station masters in the grade of Rs. 370-475 on the Northern Railway
and all class III selection posts on other Railways have been drawn up on the
footing that anticipated vacancies in the selection grade include vacancies on
promotions due to upgrading of posts in the next higher grade and that the
Railway Board has not issued any direction for the amendment of these panels.
Assuming this allegation to be true, the other panels might require revision
and the matter deserves the attention of the Railway Board. But the other
panels relate to separate classes of employees and have no bearing on the
question of equal opportunity in the matter of promotion of
enquiry-cum-reservation clerks on the Northern Railway. Equality of opportunity
in matters of employment under Art. 16(1) means equality as between members of
the same class of employees and not equality between members of separate, independent
classes. (see All India Station Masters' and Assistant Station Masters'
Association v.
General Manager Central Railways(1).
In the result, the petition is dismissed.
There All be no Order as to costs.
Y.P.
1) [1960]2 S.C.R.311,319 Petition dismissed.
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