S. K. Chandan v. Union of India

785 S. K. CHANDAN \I. UNION OF INDIA & ORS. _October_ 12, 1976 [Y. V. CHANDRACHUD AND A. C. GUPTA, JJ.] _Indian Railway fa·tablishment_ _Code-Para_ _157-Whether_ _tlit paragrapil_ _empowers the Rail1ray Board to make_ _mies_ _for tlie gazetted Railway ser-_ _vants-Constmction_ _of_ _para_ I 57. A B ###### _I_ (ii) _1'romotions-Riuht_ _to pro11101ion-Whet/1er promotion_ _of_ _class_ _Ill_ _employec.1·_ _to class_ _II_ _is_ _govemed by "Advance Correction_ _Slip_ _No._ 70" _introducing w.e.f. March_ 11, 1973, _new_ _mies_ 324 _to_ 328 _and substituting_ _a_ C _new rnle_ iOl _in Chapter_ _Ill_ _of_ _the Indian Railway Establisllmenl_ _Manual-_ _Scope and applicability_ _of_ _Rules_ 301 _and_ 328(2), (4) _Gll<l_ (5). (iii) _Indian Railway Esrablishment_ _Mwwal-Whether_ _Rule_ 328(2) _11ro-_ _ridi11g_ _for the invalidity_ _of_ _promotions made_ _in_ _the_ _Diesel Locomotire Works_ _from August_ 1, 1961 _to March_ 11, 1973 _casts an obligation on the Railway_ _JJonrd_ _to recall all promofi'ons and to form a fresh_ _panel-Meaning_ _of_ _"pro-_ _motion made in the Diesel Locomotive Works_ _in_ _Rule_ 328(2) _and promotion_ D _JO_ _the_ _hi1d1cr_ _i:rades_ _in_ _Rule_ 328(4)." Chapter II of the Indian Railway Establishment Manual deals with "Rules governing the provision of subordinate staff and Section A thereof deals with "promotion to class U posts." The Railway Board by virtue of its power Yested by para 157 of the Indian Railway Establishment Code, inlrlXiuced w.e.f. March I I, 1973, an "Advance Correction Slip No. 70" substituting a new rule 301 and introducing new rules 324 to 328. Cha,pter HI deals with the mies regulating seniority of non-gazetted Railway servants and the E ·new rnle 328(2) provided that selections and promotions made in the Diesel Locomotive Works from August 1, 1961 to March 11, 1973 shall not be valid. The appellant. a member of the class 111 service serving with th~ Western Ra·ilway as a chargeman was transferred to the Diesel Locomotive Works in 1963 and was given the benefits of deemed dates of transfer as provided for in Rule 326(2). The appellant filed a writ petition in the Allahabad High Court praying for a writ of _mandamus_ on the strength of the "Advance F Correction Slip No. 70" praying for a direction to the respondent to hold selections to class II service. The application was rejected holding that the rules contained in Slip No. 70 did not govern the promotion of class Jll em ployees to class JJ. Dismissing the appeal by special leave the court, HELD: Though the Railway Board has the power to make rules governing both gazetted and non-gazetted Railwa,y servants, the rules expressed to be made under paragraph 157 cannot, in the very nature of things, be intended to apply to gazetted Railway servants or to govern the promotion of non-gazetted Railway servants to gazetted posts. If the Railway Board has the power to make rules in regard to both gazetted and non-gazetted Railway servants, the signification of a limited source of power cannot whitle down the effective exercise of that power if the· rules can reasonably he construed to cover both the gazetted and non-gazetted categories. [787 H, 788 A-BJ (2) None of the rules introduced by Slip No. 70 govern the promotion of a class III employee to a class II post. The amendments were made to Chapter Ill dealing with rules regulating seniority of non-gazetted Railway servants. Jt is in regard to that class of Railway servants that the Railway G H A B #### c D E F G H is (j SUP!tEME COURT REPORTS ( 1977 j 1 S.C.R. Hoa'.d m:ide. _new provisi.ons. The provisions contained in Ch;.;·pter Ill includmg provisions newly mtroduccd by Shp No. 70, arc very clearly desioncd to govern the seniority and promotions of non-gazetted servants within° the non-gazetted categories of posts. Chapter H Section A of the Manual in terms prescribes rules governing the promotion or subordinate staff to class J1 post. In view of the fact ~hat the Railway Board has framed SCWti specific rules in Chapter II for the promotion of class Ill staff to class Il post, the contention that the rules introduced by Slip No. 70 would also govern the same subject-mater cannot be accepted. In the instant case, since the appellant is working as a non-ga·zettcd employee in class 111, his promotion lo a gazetted post in class II would be governed by Chapter II, Section A and not by Chapter JlI of the Railway Eslablishmcnt Manual. [7R8 l'--H, 7b9 Al (3) The words "promotions made in the Oicscl Locomoti1·e Works" which occur in Rule 328 (2) must be construed as mc<;·ning "promotions made in the Diesel Locomotive Works from one category of no1'-gazettcd post to another category of non-gazetted post." The words "promotion to the higher grades" occtming in para 328( 4) mean promotion to a class I.I post. The words promotion to the higher grndes must. in the c(jllcxt mean promotion to any of the higher grades in the non-ga·zetted category. The contention that Rule 328(1) casts an obligation on the Railway Board tu recall all promotibns made from amongst class !fl servants to cla" J[ posts from August I, 1961 to March 1 l. 1973 is misplaced. i7S9 fl--CJ CIVIL APPELLATE JuRTSDJCTION: Civil Appeal No. 62 l of 1976. Appeal by Special Leave from the Judgment and Order dated 12.1.1976 of the Allahabad High Court in Civil Misc. Writ Petition No. 7183 of 1975. _Appellant._ _in_ _person._ _V._ _P._ _Raman, Addi._ _Sol._ _Genl._ and _Girish Chandra,_ _for_ respondent No. 1. _Yogeshwar_ _Prasad,_ _Lalji Sin/w_ and _Miss_ _Rani A_ mm, for rcspo11clent No. 5. The Judgment of the Court was delivered by Cl1ANDRACHUD, J.-Rcspondent I, the Union of India, estal:·lishcd the Locomotive Component Works at Varanasi in 1956 for m.anufacturing component parts of locomotives. That manufactory merged in 1961 with the Diesel Locomotive Works. The appellant, S. K. Chandan, who was serving with the Westeren Railway as a Chargeman was transferred in 1963 to the Diesel Locomotive Works in the grade o[ Rs. 375-475 whieh he was holding at the time of his transfer as a member of the Class III service. The question which arises in this appeal concerns the claim of the appellant to be promoted to Class I [ service. Jn 1975 the appellant filed the present writ petition in th~ Allahabad High Court asking for the writs of _Certiorari_ and _!.1'amla11111s._ We arc now concerned with the grant of the latter writ only by which the appellant prayed, _inter alia,_ that respondent 1 be directed to hold selections to Class II service in accordance with the "Advance Correction Slip 70." This, particular prayer was rejected by the High Court by # I . \ s. K. CllANDAN _v._ UNION OF INDIA _(C!umdrachud,_ _.!.)_ 787 its judgment dated January 12, 1976 o_n the view that rules contained in S.lip 70 did not govern the promot1_on of .C:lass III employees to Class II. Aggrieved by the aforesaid dec1s1011 the appe~lant has . filed this appeal by special leave of this Court. The leave 1s restricted to the question whether the promotion of Class I **U** cm ployccs to ChlSS **Jl** is governed by Slip 70. Paragraph l 05 of the Indian Railway Establishment Code (Vol. _l)_ divides railway services into two categories gazetted and _non-gazetted. Services in Classes I and **11** are gazetted whereas those m Classes **111** and IV and the services of the Workshop Staff arc designated as non gazette~. Paragraph 15 7, of the Code confers on the Railway Boa~d "'full powers to make rules of general applicatio111 to 11011-gaze_tte<l ratlway servants under their control." Acting in pursuance o[ t111s pmver, the Rail'1ay Board· has framed rules which are to be found in th<; ''Indian Railway Establishment Manual." Chapter [ of those r~les deals with questions relating to recruitment, training, confirmat1011 and re-employment. Chapter II which is headed "Rules governing the promotion of subordinate staff" consists of two sections, 'A' and 'B'. Section 'A' deals with "Promotion to Class II posts" while section 'B' contains "Rules governing the promotion of subordinate staff. Chapter III is headed "Rules regulating seniority of non-gazetted railway servants." Originally, Chapter III contained rules 301 to 323. The Advance Correction Slip No. 70, also issued by the Railway Board in exercise of its powers under Paragraph 157 of the Railway Establishment Code, substituted a new rule 301 for the existing rule and it introduced five new rules in Chapter **Ill,** namely rules 324 to 328. The contention of the appellant which requires examination in this appeal is that his promotion to Class **U** is governed by the rules introduced by Slip No. 70 which came into force on March 1 J, 1973. The appellant, who argued his own case before us with quite some industry and plausibility, did not dispute that rules 324, 323, 327. 328(1) and 328(3) have no application to this case. Rule 326(2) which prescribes deemed dates of transfers would apply but has been concededly complied with, the appellant having no grievance in regard to the fixation of the deemed date of his transfer to the Diesel Locomotive Works. Keeping these provisions apart, the question boils down to the applicability of rules 301 and 328 (2), ( 4) and ( 5). ##### c ]) **E** **F** **G** The appellant's argument that the rules introduced by Advance Correction Slip 70 govern his right to promotion to Class U is plainly misconceived. In the first place, the rules introduced by Slip No. 70 were made by the Railway Board in exercise o( its powers under Paragr;:iph J 57 of the Railway Establishment Code which empowers it to make rules of general application to "Non-gazetted railway servants" **H** under its control. Though the Railway Board has the power to make rules governing both gazetted and non-gazetted railway servants, the rules expressed to be made under Paragraph 157 cannot in the very A B #### c D E F G H 788 SUPREME COURT REPORTS [l977] 1 S.C.R. nature of things be intended to apply to gazetted railway servants or to govern the promotion of non-gazetted railway servants to gazetted posts. But this is a small point because if the Railway Board has th~ power to make rules in regard to both gazetted and non-gazetted rail.way servants, the signification of a limited source of power cannot whittle down the effective exercise of that power, if the rules can rcason~bly be construed to cover both the gazetted and llOn-gazettcd catcgones. The Advance Correction Slip No. 70 introduced amendments to Chapter III and not to Chapter II of the Manual. Chapter ll 1 deals with rules regulating seniority of non-gazetted railway servants and it is in regard to that class of railway servants that the Railway Board made new provisions through Slip No, 70. The provisions contained in Chapter III, including the provisions newly introduced by Slip No. 70, are very clearly designed to govern the seniority and promotion of non-gazetted servants within the non-gazetted categories of posts, The non-gazetted railway service consists of Class 111 and IV employees and of the Workshop staff. Within each of these three classes there may be different grades of railway servants and the rules in Chapter Ill arc intended to govern the _inter se_ seniority and the promotion of a railway employee from one category of non-gazetted post to another category of a non-gazetted post. The The true reason why it is impossible to accept the appellant's contention that his promotion to Class JI is governed by the rules introduced by Slip No. 70 is that Chapter II, section A, of the • Indian Railway Establishment Manual in terms prescribes rules go\'erning the promotion of subordinate staff to Class Il posts. T~ headi;,, of Chapter II is : "Rules governing the promotion of subordinate staff" and section A of that Chapter bears the sub-heading "Promotion to Class Il posts." Rule 201 which is the first of the Rules occurring ##### in section A of Chapt~r II, provides :- · "The following provisions shall apply in respect of promotion of non-gazetted class Ill staff employed on Indian Railways or other Railway administrations to class If posts other than those in Railway Protection Force organization." Rule 202 prescribes conditions of eligibility, rule 203 deals with the size of panels of selection, rule 204 with the constitution of the selection boards, rule 205 with the procedure to be adopted by selection boards and mies 206 and 207 with the currency and formation of panels. These seven mies constitute a Code of rules governing !he promotion of the non-gazetted Class Ill staff to Class II posts, other than those in the Railway Protection Force. In view of the fact that the Railway Board has framed these specific rules for the promotion of Class III staff to Class JI posts, it seems to us difficult to accept that the rules introduced by Slip No. 70 would also govern ### ...... ###### \ !he same subject matter. __.. _I_ s. K. CHANDAN _v._ UNION OF lNDIA _(Chandruchud,_ .f.) 789 rules in Chapter III cannot therefore govern the prornotion o(. n01'.gazetted railway servants to gazetted posts. Since. the apl?ellant 1s working as a non-gazetted employee in Class III, his promotion to . a gazetted post in Class II would be governed by Chapter ll, sectt0n _A, and not by Chapter III of the Railway Establishment Manual. _ Rule 301 of Chapter III, as introduced by Slip 70, provides . in terms that the rules contained in the particular Chapter lay down general principles that may be followed for determining the seniority of. non-gazetted railway servants and that rules 324 to 328 of that Chapter shall apply for the purpose of deten~ining the sei~iority and promoti<>n of non-gazetted employees of the Diesel Locom?l1ve Wo!ks. The appellant relied very strongly on rule 328 (2) wluch provides that selections and promotions made in the Diesel Locomotive Works from 1-891961 to the date on which Slip No. 70 came into force:, namely March I 1, 1973, shall not be valid. He urges tlmt this provision casts an obligation on the Railway Board to recall all promotions made from amongst Class III servants **to Class** **P'.** **posts** from August I 1961 to March 11, 1973 and that therefore those who are already promoted to gazetted posts ought to be demoted and a fresh panel must be formed for selection to Class II posts from amongst employees working in Class III posts. The infirmity of this argument is that Chapter HI applies only to non-gazetted servants and to their _inter_ _se_ promotion and therefore the word!> "promotions made in the Diesel Locomotive Works" which occur in rule 328(2) must be construed as meaning " promotions made in the Diesel Locomotive Works from one category of non-gazetted post to another category of non-gazetted post". The same answer would effectively meet the contention of the appellant that the words "promotion to the higher grades" occurring in paragraph 328 ( 4) mean promotion to a Class II post. The words "promotion to the higher grades" must in the context mean promotion to any of the higher grades in the non-gazetted categ0ry. Rule 123 (3) of Chapter I, Section B, Railway Establishment Manual, defines "grades" as sub-divisions of a class, each bearing a different scale of pay. If the grievance of the appellant who holds a non-gazetted post in Class III, at all is or can be that he has not been promoted to Class II, he must show that the railway administration has violated some provision contained in Chapter II, section A, of the Railway F.stablishment Manual. It is useless and irrelevant for him to show that the provisions of Chapter III introduced by Advance Correction Slip No. 70 have not been complied with by the administration. None of the rules introduced by that slip governs the promotion of a Class III employee to a Class II post. The High Court was accordingly ri~t in refusing to issue a writ of _mandamus_ directing the railway administration to apply the prov_isions of Chapter III in the matter of the appellant's promotion to a Class II post. - .,. -• The appellant has filed a civil miscellaneous petition (7990 of 1976) complaining of adverse entries in his Service record and of the A B ##### c **D** E F G **H** 790 SUPJ!.1'.M'E COU!tT Jtl'.PORTS [1977] I S.C.R. A fact that he has been superseded in the matter of promotion. These very grievances were made by him in the High Court but he lost on those points. While granting special leave to appeal. this Court refused to consider the correctness of the High Court's findings on those issues. The leave being restricted to the question as regards the application of rnlcs introduced by Advance Correction Slip No. 70 .. the appellant cannot be permitted to raise questions which must be B taken as finally decided under the judgment of the High Court. For these reasons the appeal fails but there will be no order as to costs. ###### • S. R. _Appeal dismissed._ ## •