K. K. WAHI & ORS

THE GENERAL MANAGER, N. RLY. & ORS.

January 10, 1975

[A. N. RAY, C.J., H. R. :KHANNA AND P. K. GoswAMr, JJ.J

/?'1illl'ay Establishment Code-Paragraph 216-Scopc of.

15 7

The nine petitioners before the High Court were selected for the post of computers and were empanelled. After a few months the panel wa" 'ancelled. In a writ petition under art. 226 of the Constitu.tion the petitioners contended that there. were no procedural irregularities or defect' in the selection and as such the cancellation of the panel was improper. The

High Court held that since there were only four vacancies, only five persons could be selected for the panel after taking into account 25 per cent unforseen vacancies and rejected the contention of the petitioners that work-charged short term vacancies should also have been taken into account.

Dismissing the appeal.

HELD: The High Court was right in holding that work-charged short term vacancies were not such as should be said to arise due to normal wastage during the currericy of the panel. Vacancies arisillg due to normal wastage during the currency of a panel are such as could generally be foreseen because they occur on account of retirement of those at present holding the pas ts or for other similar cause.

A short term va:ancy for a work-charged job cannot

b~ aid to arise due to normal wastage.

[159C] ·

C!Vll APPELLATE JURISDICTION : Civil Appeal No. 65~ o( 1972.

Appeal by Special Leave from the Judgment & Order dated the 14th July, 1971 of the Delhi High Court in L.P.A. No. 44 of 1971.

B. R: L. Iyengar, S. K. Mehta, K. R. Nagaraja and M.

Qamaruddin for the appellants.

I'. P. Rao and GirLh Chandra, for the respondents.

KHANNA, J. This appeal by special leave by K. K. Wahi and two others is directed against the judgment of the Delhi High Court affirming on appeal the decision of the learned single Judge whereby petition under article 226 of the Constitution of India filed by nine petitioners, including the three appellants, to challenge an order about the cancellation of a penal by the Railway Board was only partly allowed.

The Senior Personnel Officer, Northern Railway noti!.lccl on May 11, 1970 the names of nine writ petitioners as having been selected for the posts of computors in the grade of Rs. 335-485.

Prior . to that date, four of the petitioners were officiating as computors on ad hoc basis. The fifth petitioner was offic:iating as head draftsman and the remaining four petitioners were working as draftsmen. The p0st of computer was a selection post. The procedure for filling of such

158 SUPREME COURT l, l.EPORTS

[1975] 3 S:C.R.

a post is given in paragraphs 213 to 216 of the Indian Railway Establishment Manual.

Pmagraph 216, which is material for our purposes, reds as under :

"216. After the competent authority has accepted lhc rccommend'ations of the Selection Board, the names of the candidates selected will be notified to the candlclatc:;.

A Panel once approved should normally not be c:m.; dled or ameaded. If after the formation and announcement of the panel with the approval of the competent autl1onty, it is found subsequently that there were procedural irregularities or other defects and it is considered necessary to Cl!.l\ltel or amend such a panel, this should be done after obtai11in1~ the approval nf authority next higher than the one tint approved the panel."

The Senior P.::rsoi, mcl Oft1cer notified on Octob.:r 30. 1970 th~ rnncellat10n of the r;•anCI relating to the nine petitiOlcrn b) the Railway Board.

Fcdmg aggucved against the order of the Railway Board, the nine petitioners filed writ petition in the High Court praying (or the issuance of a writ for quashing th'l order dated Octooer 30, 1970. It was urged 01,1 behalf of the petitioners that the power to cancel the panel cJuiu be exercised under paragraph 216 reproduced abow it it was fo1Jnd that there were procedural irregularities or other defects.

There was, it was further submitted, n.o procedural irregularity or other defoct in the selection of the petitioners and as such thi: cancellation of the ouhcl was not proper.

As a,11ai11st that, it was stated on behalf of the railwav administration that there had be1~11 m-occdu1•a\ irregularities and other defects in the selection of the peti1ioncrs for the panel. The cancellation of the panel was in the circumstances state.ti to be 11Ul improper.

It wa:;; not disputed before the learned single Judge that there were only four vacancies when applications for the selection of the panel were invjted on May 21, 1969. In view of those four vacancies and 25 per cent for unforeseen vacancies, only five of the petitioners, it was held, could be selected for the panel. The contention nn behalf of the pf:titioners that, in considering the number of vacancies for the selection of panel, workcharged short-term vacancies should also have been taken into account as they constituted anticipated vacai,1cies was rejected.

In the result the learned single Judge qU'ashed the order for cancellation of the panel in so far as it related to five out of the nine petitioners. The cancellation order was, however, upheld in respect of the remaining four petitioners including the three appellants.

On cross appeals having been fileu by the appellants and the railway adm'inistration, the Divisio1,1 Bench of the High Courll affirmed the decision of the learned single Judge and dismissed 'both the appeals.

Before us Mr. Iyengar on behalf of the appellants has submitted that oaparl: from the vacancies which were taken into account by the

K •. K. WAHi v. G.M., N. RLY (Khanna, J.) 15 9

\ High Court, there were workcharged short-term anticipated vancancicc"

It is submitted that.' these short-term anticipated vacancies too should have also been taken into account in considering the total number of vacancies for which selection was to be made for the panel. We arc unable to accede to the above submission. According to the instructions contained in letters dated November 12, 1968 and April 30, 1969 anticipated vaC'ancies could be only those vacancies which were likely B to arise due to normal wastage during the currency of the panel. A

. panel under paragraph 217 was to be current for two years from the

date of approval by the competent authority or till its exhaustion, whichever w•as earlier.

We agree with the High Court that workcharged short-term vacancies are not such as can be said to arise due to norm11l wastage during the currency of the panel.

Vac:mcics arising due to normal wastage during the currency of a panel an: c such as can 1?enerallv be foreseen because they occur on account of the retirement of those at present holding the posts or for other similar cause. A short-term vacancy for a workcharged job cannot be said to •arise due to nonnal wastage.

The result is that the appeal fails and is dismissed, but in the circumstances without costs.

P.B.R.

Appeal dismissed.