Case: Railway Board and Others Vs. P.R. Subramaniyam and Others

managers of all Indian Railways and other authorities. The subject in this letter was "upgrading of posts". After reviewing their earlier decisions the Railway Board decided to make certain changes in the distribution of posts in the higher grades. As a provisional measure, since the final implementation of the orders was to take time, it was decided as mentioned in paragraph 13 of this circular to upgrade certain posts of clerks of the Accounts Department. Certain temporary posts were upgraded and thus clerks of Grade II could succeed in getting promotion to Grade I. A few days later another circular letter Ext. R. 3 dated the 13th March, 1957 was issued by the Railway Board to the General Managers mentioning therein that the orders contained in the earlier letter had the approval of the President and clarifying certain other matters in relation to the upgrading of the posts. We may now refer to the other circular letter dated 18th March, 1959, Ext. R. 5 in which it is stated that the senior clerks in Grade II who had qualified to be promoted to Grade I by passing Appendix II A examination later than 1st April, 1956, should be confirmed in Grade I after creating for them supernumerary posts from the said date. The meaning of supernumerary posts as mentioned in the judgments of the High Court is to create shadow posts for giving benefits of pay, etc., to the promoted clerks although as a matter of fact permanent posts were not available from the date of confirmation of such senior persons. 7. Then came the office order Ext. P3 dated the 4th May, 1959 which prima facie showed that the respondents were deemed to have been promoted to officiate as clerks, Grade I against the upgraded posts, permanent or temporary, as per the decision communicated in the circular dated the 7th March, 1957. Respondents 1 and 2 were included in the list of such promoted clerks. But a difficulty arose as to their confirmation in permanent posts as no such posts were available for them from 1st April, 1956. The decision of the Railway Board was communicated in their letter Ext. R6 dated the 25th November, 1959 according to which they were to be confirmed after creation of supernumerary posts in lieu of the then existing temporary posts which were to be set off against permanent vacancies arising subsequently. The fact that the respondents 1 and 2 were confirmed against such supernumerary posts is not in dispute. This is also clear from the office order dated the 5th May, 1960 Ext. R8. Then came the decision of the Railway Board contained in Ext. R9, their letter dated the 2nd March, 1962. This letter embodies rules of general application to a particular class of non-gazetted railway servants. It has been rightly contended on behalf of the appellants that they had the force of a rule made under Rule 157. After tracing the past history it was stated in this letter :"The aforesaid concessions given to senior staff who had qualified in later examination did not, however, mean that the relevant seniority, in the list of clerks Gr. II, would regulate the seniority as clerks Gr. I of all those confirmed as clerks Gr. I (including those confirmed against supernumerary posts) namely, those who qualified for promotion to that grade by passing the App. IIA Examination prior to 1-4-56 and who were available for such promotion on 1-4-56, and those who qualified subsequently by passing the examination between April, 56 and Dec., 57. Thus though some staff who were not eligible for promotion and confirmation were "deemed" to have been promoted as clerks Gr. I w.e.f. 1-4-56 and confirmed even by creating supernumerary posts, seniority as clerks Gr. I is to be fixed according to the principle that the persons who qualified prior to 1-4-55 and were available on 1-4-56 were to be considered first and other senior clerks qualifying upto 31-12-57 were to be considered as and when they qualified. This is in accordance with THE FUNDAMENTAL PRINCIPLE THAT A VACANCY, OFFICIATING OR PERMANENT CAN ONLY BE FILLED BY THE SENIORMOST PERSON ACTUALLY QUALIFIED AT THE TIME THE VACANCY OCCURS." 8. The competition is between Rule 20(b) referred to above and the contained in Ext. R. 9 which of the two will prevail ? Rule 20(b) reads as follows :"The seniority of accounts clerk, Grade I and stock verifiers is to be determined with reference to their substantive or basic seniority in Grade II irrespective of the date they qualify for promotion as clerks Grade I by passing the examination prescribed for the purpose". 9. The Prefactory Note of the Indian Railway Establishment Manual which contains the above rule says : "It must be noted that the provisions of this Manual do not supersede the rules contained in any of the Indian Railway Codes in a case of conflict the latter should prevail. This manual may not be referred to as the final authority and a reference should always be made to the original orders on the subject". It would thus be seen that those who were confirmed in Grade I against permanent posts in accordance with the decision contained in Ext. R9 must rank senior to those who were absorbed against permanent posts later although they were confirmed in Grade I w.e.f. the 1st April, 1956. There was nothing wrong in it. It is undisputed that respondents 3 to 9 had been confirmed due to one reason or the other against permanent post earlier than respondents 1 and 2. In our judgment, the decision contained in Ext. R9 which had the force of a rule made under Rule 157 did override Rule 20(b) contained in the manual. Respondents 1 and 2, therefore, were not entitled to get any relief for the quashing of the impugned order Ext P4 dated the 6th March, 1972. Their writ petition was rightly dismissed by the single Judge and wrongly allowed by the Division Bench.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. The Prefactory Note of the Indian Railway Establishment Manual which contains the above rule says : "It must be noted that the provisions of this Manual do not supersede the rules contained in any of the Indian Railway Codes in a case of conflict the latter should prevail. This manual may not be referred to as the final authority and a reference should always be made to the original orders on the subject". It would thus be seen that those who were confirmed in Grade I against permanent posts in accordance with the decision contained in Ext. R9 must rank senior to those who were absorbed against permanent posts later although they were confirmed in Grade I w.e.f. the 1st April, 1956. There was nothing wrong in it. It is undisputed that respondents 3 to 9 had been confirmed due to one reason or the other against permanent post earlier than respondents 1 and 2. In our judgment, the decision contained in Ext. R9 which had the force of a rule made under Rule 157 did override Rule 20(b) contained in the manual. Respondents 1 and 2, therefore, were not entitled to get any relief for the quashing of the impugned order Ext P4 dated the 6th March, 1972. Their writ petition was rightly dismissed by the single Judge and wrongly allowed by the Division Bench.