Case: B.S. Vadera Vs. Union of India &amp; Others

1. In both these writ petitions, under Article 32 of the Constitution, the petitioners seek to have quashed, certain orders passed by the 2nd respondent and, in particular, the order dated June 16, 1967, reverting them, as Upper Division Clerks, with effect from June 9, 1967. The Union of India, through the Chairman, Railway Board, and the Secretary, Railway Board are respondents 1 and 2, respectively, in these proceedings. The other respondents are officers, working under the 2nd respondent, who, according to the petitioners, have been given preferential treatment by way of promotion, under the orders, impugned, in these proceedings2. At the outset, it may be stated, that the various orders, passed by the 2nd respondent, referred to, by both the petitioners, are one and the same, and therefore, we shall refer to those proceedings, in accordance with the annexure number, given to them, in Writ Petition No. 96 of 1967. Wherever necessary, we shall advert to any separate order, that has been referred to by the petitioner, in Writ Petition No. 165 of 19673. According to the petitioner in Writ Petition No. 96 of 1967, he joined service, on July 16, 1955, as Lower Division Clerk, was promoted, with effect from February 2, 1957, as Upper Division Clerk and further promoted, as Assistant on February 3, 1958. His grievance is that while he was holding the post of such Assistant from 1958, he has been illegally, and without any justification, reverted, as Upper Division Clerk, with effect from June 9, 1967, as per the impugned order, dated June 16, 1967 (Annexure 16). Similarly, according to the Petitioner, in Writ Petition No. 165 of 1967, he joined as a Lower Division Clerk on September 14, 1954, was promoted as Upper Division Clerk, with effect from February 2, 1957 and was further promoted, as Assistant, on February 3, 1958. His grievance is that while he was so holding the post of Assistant, from 1958, he as been illegally, and without any justification, reverted as Upper Division Clerk, with effect from June 9, 1967, as per Annexure 164. According to the Railway Board, these promotions, made of the petitioners, either as Upper Division Clerks, in the first instance, or, later, as Assistants were purely on a temporary and ad hoc basis, pending the framing of the Railway Boards Secretariat Clerical Service (Re-organization) Scheme, which was in contemplation, at the material time. The Scheme (Annexure 4), was actually framed on February 5, 1957, and the Railway Boards secretariat Clerical Service was to be organized, in the manner, set out therein. Under this Scheme, there were to be two grades of service -(i) Grade I-Upper Division Clerk; and (ii) Grade II-Lower Division Clerk The authorised permanent strength of the Service, in Grade I, was fixed at 45, and of Grade II, at 82. The initial constitution of the Service, was to be with effect from December 1, 19545. On March 30, 1963, same of the provisions, contained in Annexure 4, were modified, by Annexure 7. One of the modifications effected under Annexure 7, relating to the manner of filling up of permanent vacancies and temporary vacancies, in Grade I of the Service, and this modification was also to have effect, from the date of the initial constitution of the Service, viz., December 1, 19546. In 1965, a final panel was drawn up, strictly on the basis of the Scheme, for promotion to the Grade of Upper Division Clerks, in which the names of all the Lower Division Clerks were arranged, strictly in accordance with their seniority positions, in that Grade. Accordingly, the names of the petitioners who had been promoted as Officiating Upper Division Clerks, in 1957, were entered, in that panel, in accordance with their inter se seniority as Lower Division Clerks. As the posts of Upper Division Clerks were non-selection posts, so far as promotion quota was concerned, they had to be filled in, on the basis of seniority-cum-suitability and hence a particular officers seniority, as Lower Division Clerk, was duly reflected, in his seniority as Upper Division Clerk. Similarly, Upper Division Clerks, who were promoted as Officiating Assistants, were also promoted, on the basis of their seniority, in the Upper Division Clerks Grade and, therefore, their seniority, in the Lower Division Clerks Grade was thus reflected in the Assistants Grade. The petitioners were required to be reverted for such Upper Division Clerks, who were senior to them, being posted in the Grade of Assistants. Effort, however, was made, to avoid hardship to persons, like the petitioners, who were functioning as Assistants, by deciding to make available, vacancies in the Assistants Grade, by promotion and by curtailing the quota, reserved for direct recruits; but the petitioners could not be continued as Assistants, for an indefinite period, us difficulty arose, when there was contraction, in the Cadres, by some of the Section Officers, being reverted, as Assistants, in June 1967. This in consequence resulted in the reversion of certain Assistants, including the petitioners, to the posts of Upper Division Clerks. The reversions themselves were made strictly in the reverse order of seniority. According to the Railway Board, the petitioner, in Writ Petition 96 of 1967 is still a temporary Lower Division Clerk, and he has not been even confirmed in that Grade, because he has not passed the requisite typing test. It is further stated that the petitioner, in Writ Petition 165 of 1967 is even now not a permanent Upper Division Clerk, and that he was confirmed, as Lower Division Clerk, in 1966, with effect from September 14, 1957. Therefore, according to the Railway Board, the impugned order were all valid and legal and did not contravene any provisions of the Constitution, nor did they infringe any of the rights of the petitioner.

Reasoning: Therefore, we are not inclined to accept the contention of the petitioners that there has been a promotion, on a permanent basis in the first instance as Upper Division Clerks and, latter, as Assistants, which cannot be disturbed, by any orders that may be passed, by the 2nd respondent. We have already indicated that the regular promotions and appointments have to be made, under the Scheme, with effect from December 1, 1954There is no substance, in this contention, in view of the statement, made by the 2nd respondent, that this petitioner was confirmed, as a Lower Division Clerk in 1966, with effect from September 14, 1957, in which case it follows that he will not be eligible, for promotion, as an Upper Division Clerk, under the Scheme. The petitioner, in Writ Petition No. 96 of 1967, as pointed out, by the 2nd respondent, continues, even now as a temporary Lower Division Clerk, and he has not been made permanent, and, therefore, he cannot certainly be considered eligible, for promotion, under the SchemeOnce it is held that the said petitioner does not satisfy the requirement of the Scheme, them is no question of any discrimination, under Article 14, or violation of Article 16, arising for consideration at all. Therefore, both the petitioners, will have to fail, on meritsA Full Bench of the Allahabad High Court, on the other hand, in Ram Autar v. State of U. P., AIR 1962 All 328   (FB) has taken a view, contrary to the one, expressed by the Mysore High Court. We are of opinion that the latter represents the correct view. But, even the Allahabad High Court has not given due importance to the mandatory words, used in the concluding part of the proviso to Article 309 that the rules made, by the authority mentioned therein,shall have effect, subject to the provisions of any such Act. This aspect has been emphasized by us, in the earlier part of this judgmentTo conclude, on this aspect, we are satisfied that the Scheme, Annexure 4, as modified by Annexure 7, framed by the 2nd respondent, Railway Board, such as it is, must have effect, as it does not suffer from any defect in its making and does not offend against the Constitution.