SHAM SLJ.'il)ER v. U~ION OF INDIA & Ors.

Sri\·asra1·a v. !V.r:. Rc1i/11·ay, [19661 ~ S.C.R. hi. 6..i. 65. follo\-...ed. (ii l ·rhe, Raih-.·~l\" BoarJ held 1hat until the si.:l·~ctilln ,.,.·as n1aJc. it co1dd not he anticip; tlcd that 1 I pcr.'ioni; \\'Ould he promoted crcatin.I! 1 t the hi~r con..,cquential vacancies g-radc. Actin).! upon 1his viC\\' the R;iihvay Board decided 1ha1 the anti cip;1tcd v;icancics v;ould he Jc<;s and rhc panel should he ;1mcndcd accord. ingly and 5hould he opcr11tcd in rcc; pcet of !he first 24 person ... only. l"hc decision could not he <;aid to he pcrv..:rsc nor it could he qu~shcd or !'>Cl aside. 1115 A-316 BJ to pron1otions lo that grade dui.: (iii) :\ll the 24 persons retained in the panel \\·cr~ senior to the peti tioner. All of them v.·ould have heen selected and included in the p:l.Ilel, even if 96 persons \vcrc originally called for sclcciion. ·rherc \-...·as no foro:! in 1hc contention that the retention of the first 24 persons in th-.· ''ithout hnlding a fresh selection \i.'a" discriminatory or \\':1" viola· po1ncl tive of .A.rt'. 14 and 16 of the fo11.,;1itlltion (31(,...('} (iv) It j, .,;aid that panch of ('.J.1'>' 111 ~election p;.>s\c; of st;1tion mas te.:·.., on the Northerrt }{;1iJ1,1,·av and all cla.;;s 111 selection po.;;t..; on other Raihvay<> had been dr;l\vn uP on the footing that anticipated vacant; ics in the ..-election c.rade include v:ic:-incic.;; on promotjon.c; due to upgradtn~ thi.: ~lc'>t higher gr; uJe ;ind th<ll the Railway Board had not of Pl}\!" in . . A B c D E F G H A B SHAM SUNDER v. UNION (Bachawat, J.) 313 issued any <Erection for amendment of those panels. But those panels relate to separate. classes of employees. and have no bearing on the Ques tion of equal opportunity in the matter of promotion of enquiry-cun1- reservation clerks on the N.orthern Railway [316 D-F] All Indian Station Masters' and .l.ssistant Station Masters' Associalion 319, v. Genera/ Manager Central Railways, [1960] 2 S.C.R. followed. 311, ORIGINAL JURISDICTION: Writ Petition No. 31 of 1967. Petition under Art. 32 of the Constitution of India for enforcement of fundamental rights. Basudev Prasad and M. I. Khowaja, for the petitioner. C Ni'ren De, Solicitor-General, V. A. Seyid Muhammad, R. N. Sachthey and S. P. Nayar, for the respondents. In Janu, ary 1965 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. several posts of enquiry-cum reservation clerks were upgraded, 11 posts being raised to grade of Rs. 370-475, 18 posts to the grade of Rs. 250-380 and 26 posts in the grade of Rs. 205-280. As a result of the upgrading the revised cadre of enquiry-cum-reservation clerks on the Northern Railway consisted of the following non-gazetied - Category No. of Posts Scale of pay Classification D E • Enquiry cun1 rc<.;crvation Assist. reservation sup- ervrsor F Reservation supervisor Chief Reservation Ins- pcctor 202 150-240(AS) Selection 32 23 11 205-280(AS) 250-JSO(ASJ 370-475(AS) Non-selection Selection Selection G H 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. I 57 of the Railway Establishment Code. Promotion to selec tion 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 times the number of anticipated vacancies are called for written and viva voce tests under r. 9 ( d) of Chapter II. By letter No. E(NG) 62 PM 1/91/dated July 10, 1964 the Raiiway Board dir.ected 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 st; PRnlE COURT REPORTS [ 1969) I S.C.R. connote only those which arc likely to arise due to normal wast- age during the currency of the panel. The currency of lhe panel for non-gazetted sclecLon posts should be two years from the date of the approval of the same by the competent authority or till exhausted whichever is carli~r." On Januacy 22, 1965 under orders of the General !\1anagcr Northern Railway 152 enquiry-cum-reservation clerks were asked to appear in tests for selection to the posts of reservation super visors 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 I, 1965. The petitioner was one of the se lected candidates and his name was shown as No. 33 in the panel. A note at the foot of the panel intimated to the staff concerned that "the mere fact that their names are on the panel will not con- fer upon them any right for permanent absorption as a reserva- tion supervisor." General Manager, Northern Railway proceeded upon the footing that 38 persons had to be placed on the panel aud 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, I 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 I plus 11 plus 25% thereof. The view that anticipated vacancies inciudcd 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. In calling 152 persons for th.z selection, The Railway Board received several complaints and sentations regarding the constitution of the panel. By an order dated September 16, 1965 (anncxure 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 vac~ncics rrpres~nting 25% for contingencies and the field of selection should b.c res tricted to 24-4-96 and not 152 persons. Accordingly the panel already published should be operated only in respect of !he 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 11 upgraded posts in the grade of Rs. 370-475 and thereafter a further selection should he held for filling up the resultant vacancies in the grade of Rs. 250 -380. By all order dated November 3, 1965 (anncxure K) the General Manager, Northern Railway implemented the decision A B c D F G H .. -\, A B c D E F G H SHAM SUNDER v. UNION (Bachawat, J.) 315 and direct<>.,d that the panel fanned 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 peti'ioner is not eligible for being called for selection under Annexure "N". In this writ petition the peti tioner 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 res training the respondents from enforcing those orders and direct ing them to make promotions to posts in the grade of Rs. 250- 380 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 pub lished on August 1, 1965. We are unable to.accept this conten tion. The point was not taken in the petition. When the con tention was raised at the hearing of the petition, the learned Soli citor-General drew our attention to the letter of the Railway Board No. E/52/PM 2-34 dated August 4, 1953. On the sub ject of cancellation or amendment of approved panels the Rail way Board directed by this letter "that the panels once approved should not be cancelled or amended without authority next above th.e 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 In Srivastava v. N. E. Railway(') the Court the Railway Board. held that an amendment of an approved panel in accordance with a similar rnle was in order. reference 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 375- 480. 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) [196613 S.C.R. 61, 64, 65. 316 SUPREME COl:R'f REPORTS p 969 J I S.C.R. the grade o( Rs. 205-380 would be promoted and that there would be 11 conse{Juential vacancies in that grade due to promo tions to the hi~her 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 o' the first 24 persons only. We are un able to say that the decision is perverse or that it should be quash ed and set aside. retained All the 24 enquiry-c1011-rcservation clerks panel were senior to the petitioner. The juniormost of ranked 77 in order of seniority. All of them would have hecn selected aml included in the panel. even if % persons were origi nally called for selection. There is no force in the contention that the retention of the first 24 persons in th.z panel without hold ing a fresh selec'.ion is discriminatory or is violative of Articles 14 and 16. For purposes of promotion, all the enquiry-cum-reservation clerks on the "lorthcrn Railway form one separate unit. Between members of this class there is mi discrimination 3nd no denial of equal opportunitv in the mat:.2r of promotion. It is said that panels of cla" Ill selection posts of station ma>ters in the grade of Rs. 370-4 75 on the Northern Railway and all class IJJ selec tion posts on other Railways have been drawn up on the footing that anticipated vacancies in the selection grade include vacan cies on promotions due to upgradin.~ of posts in the next higher grade and that the Railway Board has not issued any direction for the amendment of these panel>. Assuming :his alleg~nion to he true. the other panels might require revision and the matter deserves the attention of the Railway Board. But the other panels relate .to <cparate classes of employees and have no hearing on the quesllon of equal opportunity in the matter of promotion of enquiry-cum-reservation clerks on the Northern Railway. Equalitv of oppor•unity in matters of employment under Art. 16(1) means equalitv as. hetwecn members of the <ume class of em!Jloyces and not equality between members of separate, inde pcn~cnt classe.«. (see .All India Station Ma.1·ters' and Assistant Station Masters AssoC1at1on v. Genera/ Manager Central Rail ways(1). In the result. the petition JS dismissed. There will he no order as to costs. Y.P. (I) [t%0) 2 S.C.R. )11. )19. .. ' A B c D E F G H