ition Nos 9222 to 9226 of 1981
Under Article 32 of the Constitution of India
NN Keshwani RN Keshwani and Raj Kumar Gupta for the Petitioners in WP Nos
9222 25 of 1981
Petitioner in person Inder Mohan Lal Tandon in WP No 9226 of 1981
VC Mahajan GL Sanghi CVS Rao Kitty Kumaraman glam Randhir Jain and SK Bhattacharya for the Respond ents
The Judgment of the Court was delivered by SINGH J
By means of these petitions under Article 32 of the Constitution the petitioners claim relief for quash ing Railway Board s circularletter No E NG 169PMI 180 dated 2nd July 1970 and No E NG I 80 SR6 39 dated 28th November 1981
They further claim relief for the issue of writ in the nature of mandamus restraining the respondent Railway Authorities from altering or issuing seniority list in pursuance of the Railway Board s circular dated 28th November 1023 1981 and to maintain the previous seniority list issued in 1968 for the purpose of promotions confirmation and further advancement
In the Indian Railways initial recruitment of Train Examiners used to be made in the entry Grade D in the pay scale of Rs 100 185
Prior to 1st April 1966 recruitment to Grade D of Train Examiners was made from two sources 1 by promotion of skilled artisans working in the lower grade 2 by direct recruitment of apprentices having completed prescribed four years  training
50 per cent of the vacan cies were filled by apprentices while the remaining 50 of the vacancies used to be filled by promotion of skilled artisans
Promotion from entry Grade D was made to next higher Grade C of Train Examiners in the pay scale of Rs 150 225 and later these grades were revised and the scale of D grade was raised to Rs 180 240 and that of C Grade to Rs205280
Promotion to Grade C used to be made on the basis of senioritycum suitability without any distinction of promotee or direct recruits
Because there was increase in the work load of Train Examiners the Railway Board took steps to re organise the cadre of Train Examiners
With that end in view it issued a notification on 27101965 which directed that vacancies in the entry grade of Train Examin ers in the scale of Rs 120 140 should not be filled from apprentice Train Examiners upto 50 per cent as hitherto but should exclusively be filled by promotion of skilled arti sans
It further provided that vacancies in the next higher grade C in the scale of Rs205 280 should be filled from amongst the Train Examiners working in the grade of Rs 180 240 to the extent of 20
The remaining 80 per cent vacancies were to be filled by direct recruitment of appren tice Train Examiners who may have successfully completed prescribed training
Paragraph 2 of the notification provid ed that the apprentice Train Examiners recruited on or from 141966 shall be given training for a period of 5 years and from the same date artisans recruited in the lower grade as apprentice Train Examiners shall be given in service  training for a period of three years
The circular upgraded 50 of the existing posts of Train Examiners from Grade D to Grade C in the scale of Rs205 280 which were earlier ear marked for Apprentice Train Examiners
The notification further directed that with effect from 141966 all the apprentice Train Examiners on successful completion of their training should be straightaway brought to the scale Rs205 280 instead of being first absorbed in the scale of Rs 180 240 as was being done prior to the issue of the notification
Apprentice Train Examiners who were undergoing training on the date of the issue of notification were directed to be brought to the working posts before 141966 and they were allowed stipend in the scale of Rs 180 240 during the period of their training 1024 and their period of training was increased from four years to five years
On the completion of the training they were straightaway posted in Grade C in the scale of Rs205 280
Those apprentice Train Examiners who had already been or may be absorbed in the scale of Rs 180 240 upto 3131966 were directed to be accommodated first in the scale of Rs205 280 in Grade C against the quota of 80 vacancies reserved for them and they were not required to undergo selection before being absorbed in that grade
The effect of the Railway Board s circular dated October 27 1965 was that the existing apprentice Train Examiners who had already been absorbed in Grade D by March 31 1966 were first accommodated in Grade C against 80 of the vacan cies reserved for them without undergoing any selection while 20 of the vacancies reserved for the departmental Train Examiners were to be filled by artisan promotees by selection and not on the basis of seniority cum suitability
Although apprentices as well as artisan promotees constitut ed one integrated class in Grade D but promotee artisans were treated differently for promotion to Grade C Roshan Lal Tandon who was promoted from artisan class to Grade D filed a writ petition in this Court challenging the validi ty of the notification dated 27 10 1965 on the ground that a part of the notification which gave favourable treatment to apprentice Train Examiners was violative of Articles 14 and 16 of the Constitution
In that writ petition a Consti tution Bench of this Court on August 14 1967 in Roshan Lal Tandon vs Union of India  held that artisans and apprentices recruited from two sources to Grade D were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade C Apprentice Train Examiners who were recruited directly to Grade D as Train Examiners formed one common class with the skilled artisans who were promoted to Grade D as Train Examiners and thereafter no favoured treat ment could be given to the apprentice Train Examiners merely because they were directly recruited as Train Examiners no discrimination could be made against the latter merely because they were promotees
The Court emphasised that once the direct recruits and promotees are absorbed into one cadre they formed one class and they could not be discrimi nated for the purpose of further promotion to higher Grade C
On these findings the Court allowed the writ petition and issued a mandamus directing the Railway Board not to give effect to the impugned part of the circular which was as under 1025 The Apprentice TX Rs who have already been or will be absorbed in scale Rs 180 240 upto 313
1966 should first be accommodated in scale Rs205 280 against the quota of 80 vacancies reserved for them
Such staff should not be required to undergo a Selection  before being absorbed in that grade
The upgraded vacancies in scale Rs205 280 left over after earmarking those for the appren tices under training on 2466 should be filled by promotion of TX Rs in scale Rs 180 240 on a selection basis
While computing the number of posts available for promotion of TX Rs in scale of Rs 180 240 the vacancies likely to occur during the period of appren ticeship of the apprentices under training as on 141966 should also be taken into account
In other words it would be necessary to keep in reserve only the number of posts equal to the number of apprentices under training as on 141966 who cannot be absorbed in the antic ipated vacancies which will arise by the time they qualify
 The Railway Board with a view to implement the decision of this Court and to remove the anomaly which had been pointed out by this Court issued circularletter No N NG 65 PMI86 dated 1391968 annexures III to the affidavit filed on behalf of Respondent Railway Administration
Para graph 1 of the letter refers to this Court s judgment in Roshan Lal Tandon s case and also to that portion of the Railway Board s circular dated October 27 1965 which had been struck down by the Court and the interim orders issued by the Court restraining the Railway authorities from imple menting the Circular dated October 27 1965 during the pendency of the writ petition
Paragraph 2 and 3 of the Circular dated September 13 1968 stated that in view of the judgment of the Supreme Court the Board have decided that vacancies in the grade of Rs205 280 after taking into account the upgrading of 50 per cent of posts in the scale of Rs 180 240 to 205 280 less the number of posts required for absorbing Apprentice Train Examiners undergoing the enhanced period of training of five years on April 1 1966 should be filled by selection from amongst Train Examiners in the scale Rs 180 240 as on March 31 1966 irrespective of whether they were initially recruited as Apprentice Train Examiners or were promoted from lower grades
The Board desired that Railway Administrations should take immediate steps to ensure that proper selections are held for which all TXRs in scale of Rs 180 240 are considered
It had come to Board s notice that prior to the issue of the stay order persons originally recruited as Apprentice Train Examiners who were in the 1026 scale of Rs 180 240 have been promoted to the grade Rs205 280 in pursuance of Board s letter dated 2710
The Board decided that in view of the Supreme Court s judg ment such promotions should be treated as null and void and the vacancies should be properly filled as mentioned in para 2 of the circular
The Railway Board issued another circular No ENGi69PMI180 dated 2nd July 1970 laying down procedure for filling of posts of Train Examiners and upgradation of posts
It directed that vacancies arising in Grade C after 141966 to the extent of 50 shall be maintained in that grade and the remaining 50 shall be down graded to the scale of Rs 180 240 to be filled by promotion of skilled artisans
It further directed that 50 of the vacancies in Grade C should be filled by direct recruitment of apprentice Train Examiners with five years  training to the extent of 80 thereof and the remaining 20 by promotees from Grade D as laid down in paragraph 1 of the Railway Board s circular dated 27101965
This procedure was directed to be followed till the cadre position was normalised  and the excess in the Grade of Rs205 280 were eliminated
Paragraph 2 of the circular further directed that those promoted to Grade C in the scale of Rs205280 as on April 1 1966 will be assigned seniority amongst themselves in the order of their inter se seniority in Grade of Rs 180 240 for the purposes of con firmation in that grade and also for further advancement and they will rank senior to those recruited as apprentice Train Examiners with five years training and appointed after 141966 in the Grade of Rs 205 280
The result of the circular was that all those promotees who had been appointed to Grade D prior to 14
1966 stood absorbed in Grade C and they were granted seniority in that Grade with retrospective effect viz with effect from April 1 1966
Later the Railway Board took a policy decision to abol ish the entry Grade D of Train Examiners in the pay scale of Rs 180 240 and in order to implement that decision it issued circularletter No PC 69 PS 5 TR 1 New Delhi dated 30th October 1972 abolishing the entry Grade D of Train Examiners and placing the incumbents of that Grade en masse in Grade C in the scale of Rs205 280 with effect from 1111972
Paragraph 2 of the circular directed that the pay of the staff brought from Grade D Rs 180240 to Grade C 205 280 will be fixed under Rule 2017 AIII read with Rule 2019 II
As all the incumbents of Grade D in the scale of Rs 180 240 were placed en masse in the higher grade C in the scale of Rs205 280 a provisional seniority list of Grade C Train Examiners working in Delhi Division was pre pared on 16th November 1981
In that seniority list peti tioners 1027 were shown senior to some of the respondents as the seniori ty was not determined in accordance with Rule 302 of the Railway Establishment Manual
This seniority list was not prepared in accordance with the prescribed criteria as had been done in other divisions
The Railway Board issued a circular No ENG 1 80 SR6 39 dated 2811
1981 directing that Delhi Division should also fall in line with other divisions of Northern Railway and the seniority of the Train Examiners appointed between 141966 to 1111972 should be prepared in accordance with the existing practice viz on the basis of the date of appointment in particular grade
In pursuance to that direction seniority of Train Examiners of Grade C placed in that Grade between 14
1966 to 111
1972 was published in 1981 by the authorities of the Delhi Divi sion of Northern Railway
After inviting objections the seniority list was finally published in December 1982
In that seniority list the petitioners were shown junior to Respondents Nos
5 to 10 who were placed above the peti tioners
Aggrieved the petitioners have challenged the validity of the seniority list also by raising additional grounds in the writ petitions
Before we consider the submissions made on behalf of petitioners it would be appropriate to refer to comparative position of petitioners and the respondents Nos
5 to 10 with regard to their date of entry in service as Train Examiners in Grade D and Grade C
The relevant position is as under Name Date of entry Grade D Grade C Rs 180 240 Rs205 280 1
Yashbir Singh Petitioner
2941986 111
1972 2
IM Lal Tandon Petitioner
1961966 111
1972 3
Hira Lal Kapoor Petitioner
2941966 111
1972 4
Harbhaj an Singh Petitioner
1681966 1111972 5
Som Dutt Sharma Petitioner
2941966 1111972 6
AK Sharma Respondent 5 5
91967 7
VK Chandhok Respondent 6 25
21968 8
RN Verma Respondent 7 10
81968 9
Maglani Respondent 8 22
41969 10
Dev Raj Sharma Respondent 9 21
5 1970 11
KNSharma Respondent 10 9 21971 The above chart shows that Respondents Nos
5 to 10 who be 1028 long to group of apprentice Train Examiners were directly placed to working posts in Grade C after completion of five years training in accordance with the Railway Board s circu lar dated 2nd July 1970 on the respective dates shown in Column 3 which indicates that each one of them had been placed in Grade C prior to 111
1972 while the petitioners were placed in Grade C with effect from 111
1972 in pursuance of the Railway Board s circular dated 3010
Since the Respondents Nos 5 to 10 were appointed to Grade C earlier in time and as the petitioners were placed in Grade C later they were shown junior to the Respondents in the seniority list
No valid objection can be raised against respondents  seniority
Further in the seniority list all those promotees who had been placed in Grade C with effect from April 1 1966 under the Railway Board s circular dated July 2 1970 were shown senior to the petitioners
Since the petitioners were not granted seniority with retrospective effect in Grade C as was done in the case of those who were promoted under the Circular dated July 2 1970 they have assailed the Constitutional validity of Railway Board s circular dated July 2 1970
Learned counsel for the petitioners contended that the Railway Board s circular dated July 2 1970 was illegal and unconstitutional for variety of reasons
Firstly the Rail way Board had no authority in law to grant seniority with retrospective effect to all those promotees who had been placed in Grade C with effect from April 1 1966 in pursu ance of the circular dated July 2 1970
Secondly the Railway Board practised discrimination between the promotees forming the same class of Grade D with regard to seniority in Grade C
He contended that under the circular dated July 2 1970 promotees belonging to Grade D like the petition ers were granted seniority in Grade C on their promotion to that grade with retrospective effect from the date of their appointment in Grade D and not from the date of their ap pointment or placement in Grade C whereas the petitioners who form the same class have not been granted the same benefit instead their seniority has been determined with effect from the date of their entry in Grade C
The peti tioners and all those who had been appointed in Grade D prior to April 1 1966 and promoted to Grade C formed the same class and yet they have been treated differently with out any rational basis
The petitioners were also recruited in 1966 and they all had completed service of more than 4 years approximately as Train Examiners in Grade D on Novem ber 30 1972 when the circular was issued but they have not been given seniority in Grade C with retrospective effect as was done under the circular dated July 2 1970
1029 We have given our anxious consideration to these submis sions but we do not find any merit in the same
The peti tioners have challenged validity of the Railway Board s circular dated July 2 1970 in 198 1 after 11 years
All the petitioners were in service on the date that circular was issued and they were aware that their colleagues promotees belonging to Grade D were placed in Grade C and they had been granted seniority with retrospective effect but none of them challenged the validity of the circular
Now petition ers cannot be permitted to challenge the validity of that circular after 11 years
If the petitioners were aggrieved by the Railway Board s circular dated July 2 1970 they should have challenged the same within a reasonable period of time which they did not do so
It is well settled that anyone who may feel aggrieved with an administrative order or decision affecting his right should act with due dili gence and promptitude and not sleep over the matter
Raking of old matters after a long time is likely to result in administrative complications and difficulties and it would create insecurity and instability in the service which would affect its efficiency
The petitioners are therefore not entitled to challenge the validity of the Railway Board s circular dated July 2 1970 after 11 years and their chal lenge is bound to fail on this ground alone
We have considered the merit of the submission also but we find no legal or constitutional infirmity in the Circular dated July 2 1970
There was increase in the work of car riage and wagons examination as more complicated type of rolling stock was available with the Indian Railways
In order to reorganise the cadre of Train Examiners and to cope with the increased work load the Railway Board by its noti fication dated 27th October 1965 reorganised the cadre
It directed that vacancies in Grade D were to be exclusively filled by promotion from amongst skilled artisans and direct recruits were to be appointed straightaway to Grade C after completion of training of five years
Validity of the noti fication was challenged before this Court in Roshan Lal Tandon s case and the implementation of the circular was stayed
This Court struck down only a portion of the notifi cation which has been extracted in the earlier part of this judgment but the rest of the directions contained in the notification remained unaffected including the direction that with effect from April 1 1966 all the Train Examiners on successful completion of their training should be straightaway brought on to the scale of Rs205 280 instead of being first absorbed in Grade D Similarly further direc tion that those apprentices who were undergoing training on April 1 1966 shall undergo five years  training instead of four years and during their training they would receive 1030 stipend in the scale of Rs 180 2 10 and after completion of their training they will straightaway be appointed to Grade C After the judgment of this Court the Railway Board reconsidered the matter and with a view to implement the decision of this Court and to further carry out its policy of reorganisation as initiated under its circular dated October 27 1965 it issued directions under its circular dated July 2 1970 which is as under GOVERNMENT OF INDIA MINISTRY OF RAILWAY RAILWAY BOARD No ENG i69PMI 180 New Delhi Dated 2nd July 1970 The GMs
All India Railways
Sub Procedure for filling up posts of TXRs upgra dation of
Boards letter No E NG 165 PMI 86 dated 27101965 and 1391968
The Board have been receiving representations from the staff working in the category of TXRs in scale Rs 180 240 AS against the procedure prescribed for filling vacancies arising out of upgradation of 50 of posts in scale Rs 180 240 AS to Rs205280 wef
141966
It has been decided in modification of previous orders that all the TXRs working in Grade 180240 consisting of both App
of 4 years Trg
and promotees from ranks as on 141966 should be promoted en masse to the grade Rs205 280 irrespective of the quota of vacancies reserved for promotees the excess to the permissible re organised cadre strength in the grade Rs205 280 being worked off gradually by wastage such as retirement etc
in grade Rs205 280 AS
After 141966 50 of the vacancies arising in grade Rs205 280 should be main tained in that grade and the remaining 50 will be down graded to the scale of Rs 190240 to be filled by promotion of skilled artisans
The 50 of the vacancies in grade Rs205 280 AS should be filled by direct recruitment of App
TXRs with 5 years training to the extent of 80 thereof and the remaining 20 by pro 1031 motees from grade Rs 180 240 as laid down in paragraph 1 iia of Board s letter No ENG 165 PMI 86 dated 27101965
This proce dure will continue to be followed till the cadre position is normalised and the excess in the grade of Rs 205 280 eliminated
2 The staff promoted to the grade Rs205 280 as on 141966 will be assigned seniority amongst themselves in the order of their inter se seniority in the grade Rs 180 240 for the purpose of confirmation in that grade and also for further advancement
They will all rank senior to those recruited as App
TXRs with 5 years Trg
and appointed after 141966 to the grade Rs205 280
3 The above instructions may please be implemented immediately and a report submitted to the Board in due course
receipt Sd ODS harma Asstt
DirectorE Rly Board The circular issued three directions firstly it directed that all the Train Examiners working in Grade 180 240 con sisting of both apprentice Train Examiners and promotees from rank as on April 1 1966 should be promoted en masse to Grade C irrespective of quota reserved for promotees
Sec ondly it directed that after April 1 1966 vacancies in Grade C to the extent of 50 per cent should be maintained in that Grade while the remaining 50 per cant should be down graded to Grade D to be exclusively filled by promotion of skilled artisans it further directed that 50 per cent of the vacancies in Grade C should be filled up by direct recruitment of apprentices with five years training to the extent of 80 per cent thereof and remaining 20 per cent of vacancies from Grade D Thirdly it issued direction with regard to assigning seniority to the staff promoted to Grade C on April 1 1966
They were to carry their inter se sen iority in Grade D for the confirmation and also for further advancement
It further directed that the promotees will rank senior to the direct recruits in Grade C appointed after April 1 1966
These directions were issued with the object and purpose of achieving the reorganisation which had been initiated by Railway 1032 Board under its circular dated October 27 1965
The scheme of reorganisation of cadre as contemplated by the circular dated October 27 1965 was to be carried out with effect from April 1 1966 and that date was followed by the Railway Board in its circular dated January 2 1970
The petition ers  submission that the date April 1 1966 was fixed in arbitrary manner without any basis is untenable
The promo tees who were placed in the higher Grade C with effect from April 1 1966 were undoubtedly senior to the petitioners in Grade D none of the petitioners  rights were affected by their promotion
The reorganisation of the cadre of Train Examiners and the promotion to Grade C could not be complet ed on account of the pendency of Roshan Lal Tandon s case in this Court and the stay orders issued therein
After the decision of this Court the Railway Board implemented the scheme and it made promotion with retrospective effect
As the promotion to Grade C had been stayed during the penden cy of the writ petition in this Court the Railway Board was justified in granting promotion with effect from April 1 1966 as initially reorganisation was proposed to be imple mented with effect from that date as is clear from Railway Board s notification dated October 27 1965
The Railway Board promoted the staff with retrospective effect because on account of stay orders issued by the Court those entitled to be promoted with effect from April 1 1966 could not be promoted
The petitioners cannot claim parity with those who had been promoted to Grade C under the Railway Board s circular dated July 2 1970 as they do not belong to that class
Equality can be claimed among equals and not with unequals
Those persons who had acquired right of promotion under the Railway Board s notification dated October 27 1965 could not be promoted on account of litigation they formed a distinct class and the petitioners cannot equate themselves with them as they were not entitled to promotion under the notification dated October 27 1965
The petition ers have no right in law to claim similar treatment
There is therefore no merit in the petitioners  plea of discrimi nation
Validity of the Railway Board s circular dated July 2 1970 on the ground of it being discriminatory was raised before the Delhi High Court in writ petition No 1147 of 1971 Chaman Lal and others vs Union of India and others decided on May 20 1980
A Division Bench of that Court upheld its validity
In another writ petition No 2834 of 198 1 Kewal Krishan vs Union of India and others again the validity of Railway Board s circular dated July 2 1970 as well as the validity of Railway Board s circular dated January 28 1981 was upheld by a Division Bench of the Delhi High Court on December 15 1981
Learned counsel for the petitioners challenged the validity of the 1033 Railway Board s circular dated November 1 1981 which di rected the
Delhi Division to fall in line with other divi sions of Northern Railways for determining the seniority of Train Examiners
It appears that seniority of Train Examin ers in Grade C working in other Divisions of Northern Rail way was determined from the date of appointment in that Grade in accordance with Rule 302 of the Railway Establish ment Manual but in Delhi Division that practice was not followed
The Railway Board directed the Delhi Division to fall in line with other divisions in determining the senior ity of Train Examiners
Learned counsel for the petitioners urged that since under the Railway Board s circular dated October 30 1972 the petitioners were placed en masse in Grade C in the scale of Rs205 280 they are entitled to seniority with effect from the date of their appointment in Grade D and if that be so they would rank senior to Re spondents Nos 5 to 10 who were appointed later in time
At this stage it would be profitable to have a glance at Rail way Board s circular dated October 30 1972 which is as under GOVERNMENT OF INDIA MINISTRY OF RAILWAYS RAILWAY BOARD No PC 69PS 5TR 1 New Delhi dated 3010
1972 The General Managers All India Railways
Sub Upgrading of the initial scale of pay of Train Examiners on Railways
Ref Board s letters No 1 ENG 65 PMI 86 dated 2710
ii No E NG 165 PMI 86 dated 139
iii No ENG 1 69 PM 1130 dated 27
The Board have considered the commu nications received from the National Federa tion of Indian Railwaymen and the All India Railwaymen s Federation regarding the proce dure prescribed for filling and maintenance of vacancies in the Train Examiners  cadre as envisaged in the above mentioned letters and more particularly their demand for abolition of the grade of Rs 180 240
It has now been decided in modification of existing orders that the 1034 initial grade of TXRs viz Rs 180 240 should be abolished and all the TXRs working in that grade should be placed en masse in the grade Rs205 280 wef 111
It has been decided that vacancies in grade Rs205 280 should hereafter be filled in the following manner i 40 of vacancies to be filled by promotion or Artisans ii 20 of vacancies to be reserved for existing Artisans going as Apprentice TXRs with age relaxation upto 35 years and iii 40 of vacancies to be filled by direct recruitment of Apprentices TXRs from the open market through Railway Service Com missions
Pay of the staff brought on from grade Rs 180 240 AS to Grade Rs205 280AS will be fixed under Rule 2017aii read with rule 2019 PII
This has the approval of the President
Sd RS Bharal Dy
Director Establishment P  A Railway Board No PC 69PS 5TP 1 New Delhi dated 301072 Copy of the FA  CAOS and Chief Auditors of All Indian Railways
Sd RS Bharal Dy
Director Establishment P  A Railway Board
 By the aforesaid circular the entry grade of Train Examiners in the scald of Rs 180 240 was abolished and all the Train Examiners working in that Grade were placed in the scale of Rs205 280 with effect from November 1 1972
In pursuance to that decision petitioners were included in Grade C with effect from November 1 1972 and 1035 therefore they are entitled to seniority with effect from that date in Grade C
In the absence of any statutory rule or directions petitioners are not entitled to claim senior ity in Grade C with reference to the date of their appoint ment in Grade D
The chart indicating respective dates of entry of petitioners and the Respondents 5 to 10 in Grade C as extracted in the earlier part of the judgment would show that Respondents Nos 5 to 10 were appointed in Grade C earlier in time than the petitioners therefore they are entitled to be senior to the petitioners
It is not disputed that Rule 302 of the Railway Establishment Manual lays down a general rule for determining seniority from the date of appointment in a particular grade and the petitioners have not placed any rule or instruction before us to support their case
Seniority ordinarily reflects length of service in a particular cadre or grade
It is generally regulated by service rules or in the absence of Rules by executive in structions
By and large such rules provide for determining seniority with reference to the date of appointment but there are instances where rules provide for determining seniority with reference to date of confirmation
Normally when a person is promoted or placed in a higher grade his seniority is determined with reference to the date of such promotion or placement unless the relevant rules provide to the contrary
Seniority in the lower grade has no meaning for determining seniority in the higher grade except for determining inter se seniority of promotees
Rule 302 con tains a general Rule and there is no exception to it
In the absence of any contrary provision in the Rules the general rule of seniority as laid down by Rule 302 must prevail
Learned counsel then urged that the seniority list of Grade D had been prepared in 1968 and in that seniority list petitioners were shown senior to some of the respondents and that seniority could not legally be disturbed
It appears that in the seniority list prepared in 1968 the names of some of the respondents was shown in Grade D on the assump tion that they held posts of Train Examiners in that Grade
It was done on a wrong assumption
Admittedly the Respond ents Nos 5 to 10 were apprentices who were undergoing training and in accordance with the directions contained in the Railway Board notification dated October 27 1965 they were entitled to appointment in Grade C straightaway on completion of their training
They were no doubt drawing stipend at the rate of Rs 180 240 which was the scale prescribed for Grade D but nonetheless they did not belong to Grade D as they were not appointed to any of the posts in that Grade
Their names therefore could not be included in the seniority list of Grade D Petitioners cannot draw any advantage from the mistake committed in 1036 including the Respondents name in the seniority list of 1968
Learned counsel then urged that Hira Lal Kapoor one of the petitioners was promoted on June 23 1981 on the basis of his seniority in Grade D therefore other petitioners are also entitled to their seniority with effect from the date of their appointment in Grade D
In the written submis sion filed on behalf of Respondents it is stated that the Deputy Regional Manager of Delhi had granted promotion to HL Kapoor on June 2 1981 on ad hoc and temporary basis
On receipt of representations and
protests from Respondent No 5 Ashok Kumar Sharma and the General Secretary
Northern Railway Men s Union order of promotion issued in favour of HL Kapoor was cancelled and Sh
AK Sharma Respondent No 5 was promoted
Since the petitioners were placed in higher Grade C with effect from November 1 1972 they are entitled to seniority with reference to date of their place ment in that Grade and they have no legal right to claim seniority in that Grade against those who were appointed to that Grade before November 1 1972
Learned counsel for the petitioners referred to Lok Sabha questions asked by Sh
Suraj Bhan MP and the an swers given to those questions with regard to seniority of direct recruits and promotees Annexures K of the petition
The petitioners have asserted that in reply to the Lok Sabha questions it was clearly stated by the Rail way Administration that direct recruit Train Examiners posted on working posts before November 1 1972 in Grade C in the scale of Rs205 280 will not be treated senior to the Train Examiners promoted en masse with effect from November 1 1972
In the counter affidavit filed by the respondents it is stated that the reply to the Lok Sabha questions as contained in Annexure K to the petition is of no relevance as the said questions were not admitted at all and no reply was given by the Railway Board
It appears that the General Manager had prepared a draft reply to the Lok Sabha ques tions but the reply had not been finalised by the Railway Board which is the competent authority
The Railway Board could have modified the draft of the reply as prepared by the General Manager but since the question was not admitted no reply was sent to the Lok Sabha
The petitioner can therefore draw no support from Annexure K to the petition
Learned counsel for the petitioners then urged that the petitioners were not promoted to Grade C instead they were placed en masse in Grade C on the abolition of Grade D therefore the date of their seniority should not be deter mined from the date of their placement in 1037 Grade C instead they are entitled to their seniority with reference to the date of their appointment in Grade D He placed reliance on the directions contained in paragraph 2 of the Railway Board s circular dated October 30 1972 that the petitioners  salary in Grade C shall be fixed in accord ance with Rule 2017 R II read with rule 2019 II
He urged that if the petitioners were treated to have been promoted to Grade C with effect from November 1 1972 in that case their salary could have been fixed in accordance with Rule 2018 R II PR 22C
It is true that the petitioners were not promoted from Grade D to Grade C instead Grade D was abolished and the petitioners and all other incumbents holding posts in Grade D were placed en masse in Grade C and the Railway Board issued directions that their salary shall be fixed in accordance with the Rule 2017 read with Rule 2018 R II PR 22C
Whether petitioners were promoted to Grade C or whether they were placed en masse in that Grade does not make any difference so far as their entry to Grade C is concerned in either case they entered Grade C with effect from November 1 1972
Reference to a particular rule for determining their pay in the higher grade cannot change the criteria for determining seniority
The Railway Board had never issued any direction for determining the petition ers seniority with reference to their date of appointment in the initial entry grade
The petitioners have failed to show that any person junior to them has been made senior to them
Their grievance is without any substance
In view of the above discussion we find no merit in the petitions
We accordingly dismiss the same with costs
All interim orders stand discharged
SL Petitions dismissed


Summary:
The petitioners were railway employees
The Railway Board issued a circular dated July 2 1970 laying down procedure for filling up posts of train examiners and upgra dation of posts
It directed that vacancies arising in Grade C after 141966 to the extent of 50 per cent would be maintained in that grade and the remaining 50 per cent would be down graded to be filled by promotion of skilled arti sans
It further directed that 50 per cent of the vacancies in Grade C should be filled by direct recruitment of appren tice Train Examiners with five years  training to the extent of 80 per cent thereof and the remaining 20 per cent by promotees from Grade D as laid down in paragraph 1 of the Circular dated 27101965 of the Board
This procedure was directed to be followed till the cadre position was norma lised and the excess in the Grade of Rs205 280 were elimi nated
Paragraph 2 of the circular further directed that those promoted to Grade C in the scale of Rs205280 as on April 1 1966 would be assigned seniority amongst themselves in the order of their inter se seniority in the Grade of Rs 180 240 for the purposes of confirmation etc in that grade and they would rank senior to those recruited as apprentice train examiners with five years  training and appointed after 1466 in the grade of Rs205 280
The result of the circular was that all those promotees who had been appointed to Grade D prior to 1466 stood absorbed in Grade C and they were granted seniority in that grade with retrospective effect that is with effect from April 1 1966
The Railway Board later took a policy decision to abol ish the entry grade D of train examiners in the pay scale of Rs 180 240 and in order to implement that decision issued a circular dated October 30 1972 abolishing the entry Grade D of the train examiners and placing the incumbents of that grade en masse in grade C in the scale of Rs205280 with effect from 11172
Paragraph 2 of the circular di rected that the pay of the staff brought from Grade D Rs180 240 to grade C 1019 Rs205 280 would be fixed under Rule 2017 A III read with rule 2019 II
As all the incumbents of grade D in the scale of Rs 180 240 were placed en masse in the higher grade C in the scale of Rs205 280 a provisional seniority list of grade C Train Examiners working in Delhi Division was prepared on November 16 1981
In that seniority list the petitioners were shown senior to some of the respondents as the seniority was not determined in accordance with Rule 302 of the Railway Establishment Manual
This seniority list was not prepared in accordance with the prescribed criteria as had been done in the other Divisions
The Board issued a circular dated 281181 directing that the Delhi Division should also fail in line with the other Divisions of the Northern Railway and the seniority of the train examiners appointed between 1466 and 11172 should be prepared in accordance with the existing practice
viz on the basis of the date of appointment in the particular grade
In pursuance of that direction seniority of the train examiners of grade C placed in that grade between 1466 and 11172 was published in 1981 by the authorities of the Delhi Division of the Northern Railway
After inviting objections the seniority list was finally published in December 1982
In that seniority list the petitioners were shown junior to respondents 5 to 10
Aggrieved the peti tioners moved this Court by writ petitions challenging the validity of the seniority list and for quashing the circu lars dated July 2 1970 and November 28 1981 of the Railway Board and restraining the respondent Railway authorities from altering or issuing the seniority list in pursuance of the circular dated November 28 1981 of the Railway Board and for maintaining the seniority list issued in 1968
Dismissing the petitions the Court HELD The Respondents Nos
5 to 10 who belonged to the group of apprentice train examiners were directly placed to working posts in grade C after completion of 5 years  train ing in accordance with the circular dated July 2 1970 of the Railway Board and each one of them had been placed in grade C prior to 11172 while the petitioners were placed in grade C with effect from 11172 in pursuance of the circular dated 301072 of the Railway Board
Since the respondents 5 to 10 were appointed to grade C earlier and the petitioners were placed in that grade later the peti tioners were shown in the seniority list junior to the respondents concerned
No valid objection can be raised against respondents  seniority
1027H 1028A C 1020 The petitioners challenged the validity of the Railway Board s circular dated July 12 1970 in 1981 after 11 years
All the petitioners were in service on the date that circular was issued and they were aware that their col leagues promotees belonging to grade D were placed in grade C and they had been granted seniority with retrospec tive effect but none of them challenged the validity of the circular
Now the petitioners cannot be permitted to chal lenge the validity of that circular after 11 years
The petitioners should have challenged the circular within a reasonable period of time which they did not do
It is wellsettled that anyone who may feel aggrieved by an admin istrative order or decision affecting his right should act with due diligence and promptitude and not sleep over the matter
Taking up old matters after a long time is likely to result in administrative complications and difficulties and would create insecurity and instability in the service which would affect its efficiency
The petitioners are therefore not entitled to challenge the validity of the Railway Board s circular dated July 2 1970 after 11 years
Even otherwise on merits
there is no legal and constitutional infirmity in the circular
In order to reorganise the cadre of the train examiners to cope with the increased work load the Railway Board issued a Notification dated October 27 1965 reorganising the cadre
The validity of the notifica tion was challenged before this Court in Roshan Lal Tandon s case
The Court struck down only a portion of the notifica tion and the rest of the directions contained in the notifi cation remained unaffected
After the judgment of the Court the Railway Board reconsidered the matter and with a view to implementing the decision of this Court and further carrying out its policy of reorganisation as initiated under its circular dated October 27 1965 issued the circular dated July 2 1970 1029A H 1030A B The scheme of reorganisation of the cadre as contemplat ed by the circular dated October 27 1965 was to be opera tive with effect from April 1 1966
The Petitioners  sub mission that the date April 1 1966 was fixed in an arbi trary manner without any basis is untenable
The promotees who were placed in the higher grade C with effect from April 1 1966 were undoubtedly senior to the petitioners in grade D and none of the petitioners  rights were affected by their promotions
The Railway Board implemented the reorgan isation scheme after the decision of this Court in Roshan Lal Tandon s case
As promotion to grade C had been stayed during the pendency of Tandon s case in this Court the Railway Board was justified in granting promotion with retrospective effect from April 1 1966 as initially the reorganisation was proposed to be implemented from that date which could not be done on account of stay orders issued by this Court
The petitioners 1021 cannot claim parity with those who had been promoted to grade C under the Railway Board s circular dated July 2 1970 as they do not belong to that class
Equality can be claimed amongst equals and not with unequals
The persons who had acquired the right of promotion under the Railway Board s notification dated October 27 1965 but could not be promoted on account of litigation formed a separate class and the petitioners could not equate themselves with them as they were not entitled to promotion under the notification dated October 27 1965
There is no merit in the petitioners  plea of discrimination
103AF H The validity of the Railway Board s circular dated July 2 1970 was challenged by a writ petition before the Delhi High Court which upheld the same
Again the validity of that circular as well as the circular dated January 28 1981 of the Railway Board was challenged by a writ petition before the Delhi High Court which upheld the same
1032F H By the Circular dated October 30 1972 of the Railway Board the entry grade of train examiners in the scale of Rs 180 240 was abolished and all the train examiners in that grade were placed in the scale of Rs205 280 with effect from November 1 1972
The petitioners were included in grade C with effect from November 1 1972 and there fore they are entitled to seniority with effect from that date in Grade C
The petitioners are not entitled to claim seniority in grade C with reference to the date of their appointment in grade D The respondents 5 to 10 were ap pointed in grade C earlier than the petitioners and there fore they are senior to the petitioners
Rule 302 of the Railway Establishment Manual lays down a general rule for determining seniority from the date of appointment in a particular grade when a person is promoted to or placed in a higher grade his seniority is determined with reference to the date of such promotion or placement unless the relevant rules provide to the contrary
Seniority in lower grade has no meaning for determining seniority in the higher grade except for determining inter se seniority of the promotees
In the absence of any contrary provision in the Rules the general rule of seniority laid down by Rule 302 must pre vail
1034G H 1035A E It appears that in the seniority list prepared in 1968 the names of some of the respondents were shown in grade D on a wrong assumption
The respondents 5 to 10 were appren tices undergoing training and in accordance with the direc tions contained in the Railway Board s notification dated October 27 1965
they were entitled to appointment 1022 straightaway on completion of their training
They were drawing stipend at a rate which was the scale prescribed for grade D but they did not belong to grade D and could not be included in the seniority list of grade D
The petitioners cannot draw advantage from the mistake committed in includ ing the names of the respondents in the seniority list of 1968
1035F H 1036A The petitioners were placed in higher grade C with effect from November 1 1972 and they are entitled to seniority with reference to their placement in that grade and they have no legal right to claim seniority in that grade as against those who were appointed to that grade before November 1 1972
1036C D Whether the petitioners were promoted to grade C or were placed en masse in that grade does not make any difference in so far their entry to grade C is concerned in either case they entered grade C with effect from November 1 1972
The petitioners have failed to show that any person junior to them has been made senior to them
Their grievance is without any substance
1037C E