PETITIONER:
S.K. CHANDAN
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT12/10/1976
BENCH:
CHANDRACHUD, Y.V.
GUPTA, A.C.
CITATION:
1976 AIR 2374 1977 SCR (1) 785
1976 SCC (4) 629
ACT
Indian Railway Establihment Code--Para 157--Whether the
paragraph empowers the Railway Board to make rules for the
gazetted Railway servants--Construction of para 157.
(ii) promotions--Right to promotion--Whether promotion
of class III employees to class II is governed by "Advance
Correction Slip No. 70" introducing w.e.f. March 11,
1973, new rules 324 to 328 and substituting at new rule 301
in Chapter III of the Indian Railway Establishment Mannual-
Scope and applicability of Rules 301 and 328(2), (4) and
(5).
(iii) Indian Railway, Establishment Manual--Whether
Rule 328(2) providing for the invalidity of promotions made
in the Diesel Locomotive Works from August 1, 1961 to March
11, 1973 casts an obligation on the Railway Board to recall
all promotions and to form a fresh panel--Meaning of "promo-
tion made in the Diesel Locomotive Works in Rule 328.(2) and
promotion to the higher grades in Rule 328(4)."
HEADNOTE
Chapter 11 of the Indian Railway Establishment Manual
deals with "Rules governing the provision of subordinate
staff and Section A thereof deals with "promotion to class
II posts." The Railway Board by virtue of its power
vested by para 157 of the Indian Railway Establishment Code,
introduced w.e.f. March 11, 1973, an "Advance Correction
Slip No. 70" substituting a new rule 301 and introducing new
rules 324 to 328. Chapter III deals with the rules regulat-
ing seniority of non-gazetted Railway servants and the new
rule 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 III service serving
with the Western Railway 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 Correction Slip No. 70" praying
for a direction to the respondent to hold selections to
class 1I service. The application was rejected holding that
the rules contained in Slip No. 70 did not govern the promo-
tion of class III employees to class
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 Railway
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 significa-
tion of a limited source of power cannot whitle down the
effective exercise of that power if the rules can reasonably
be construed to cover both the gazetted and non-gazetted
categories. [787 H, 788 A--B]
(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 III dealing with
rules regulating seniority of non-gazetted Railway servants.
It is in regard to that class of Railway servants that the
Railway
786
Board made new provisions. The provisions contained in
Chapter III including provisions newly introduced by Slip
No. 70, are very clearly designed to govern the seniority
and promotions of non-gazetted servants within the non-
gazetted categories of posts. Chapter 11 Section A of the
Manual in terms prescribes rules governing the promotion of
subordinate staff to class II post. In view of the fact
that the Railway Board has framed seven specific rules in
Chapter II for the promotion of class III staff to class ii
post, the contention that the rules introduced by Slip No.
70 would also govern the same subject-mater cannot be ac-
cepted. In the instant case, since the appellant is working
as a non-gazetted employee in class III, his promotion 10 a
gazetted post in class 1I would be governed by Chapter II,
Section A and not by Chapter III of the Railway Establish-
ment Manual. [788 F---H, 789 A]
(3) The words "promotions made in the Diesel Locomo-
tive 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 words "promotion to the higher
grades" occurring in para 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 category. The contention that Rule 328(1)
casts an obligation on the Railway Board to recall all
promotions made from amongst class III servants to class II
posts from August 1, 1961 to March 11. 1973 is misplaced.
[789 B--C]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 621 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, Addl. Sol. Genl. and Girish Chandra, for
respondent No. 1.
Yogeshwar Prasad, Lalji Sinha and Miss Rani Arora, for
respondent No. 5.
The Judgment of the Court was delivered by
CHANDRACHUD, J.--Respondent 1, the Union of India,
established the Locomotive Component Works at Varanasi in
1956 for manufacturing 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 of Rs. 375-475
which 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 II service.
In 1975 the appellant filed the present writ petition in
the Allahabad High Court asking for the writs of Certiorari
and Mandamus. 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
787
its judgment dated January 12, 1976 on the view that rules
contained in Slip 70 did not govern the promotion of Class
III employees to Class II. Aggrieved by the aforesaid
decision the appellant has filed this appeal by special
leave of this Court. The leave is restricted to the ques-
tion whether the promotion of Class III employees to Class
II is governed by Slip 70.
Paragraph 105 of the Indian Railway Establishment Code
(Vol. I) divides railway services into two categories gazet-
ted and non-gazetted. Services in Classes 1 and II are
gazetted whereas those in Classes 111 and IV and the Serv-
ices of the Workshop Staff are designated as nongazetted.
Paragraph 157 of the Code confers on the Railway Board "full
powers to make rules of general application to non-gazetted
railway servants under their control." Acting in pursuance
of this power, the Railway Board has framed rules which are
to be found in the "Indian Railway Establishment Manual."
Chapter i of those rules deals with questions relating to
recruitment, training, confirmation and reemployment.
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 III, namely rules 324 to 328. The contention of
the appellant which requires examination in this appeal is
that his promotion to Class II is governed by the rules
introduced by Slip No. 70 which came into force on March 11,
1973.
The appellant, who argued his own case before us with
quite 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 trans-
fers would apply but has been concededly compiled 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).
The appellant’s argument that the rules introduced by
Advance Correction Slip 70 govern his right to promotion to
Class II is plainly misconceived. In the first place, the
rules introduced by Slip No. 70 were made by the Railway
Board in exercise of its powers under Paragraph 157 of the
Railway Establishment Code which empowers it to make rules
of general application to "Non-gazetted railway servants"
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
788
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 the power to make rules in
regard to both gazetted and non-gazetted railway servants,
the signification of a limited source of power cannot whit-
tle down the effective exercise of that power, if the rules
can reasonably be construed to cover both the gazetted and
non-gazetted categories.
The true reason Why it is impossible to accept the
appellant’s contention that his promotion to Class II 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 governing the promotion of
subordinate staff to Class II posts. The heading of Chap-
ter II is: "Rules governing the promotion of subordinate
staff" and section A of that Chapter bears (he Sub-heading
"Promotion to Class II posts." Rule 201 which is the first
of the Rules occurring in section A of Chapter II, provides
"The following provisions shall apply in
respect of promotion of non-gazetted class III
staff employed on Indian Railways or other Railway
administrations to class II 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 rules 206
and 207 with the currency and formation of panels. These
seven rules constitute a Code of rules governing the promo-
tion of the non-gazetted Class III 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 II
posts, it seems to us difficult to accept that the rules
introduced by Slip No. 70 would also govern the same subject
matter.
The Advance Correction Slip No. 70 introduced amendments
to Chapter III and not to Chapter II of the Manual. Chapter
III deals with rules regulating seniority of non-gazetted
railway servants and it is in regard to that class of rail-
way 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 con-
sists of Class III 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 III are 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
789
rules in Chapter HI cannot therefore govern the promotion of
non.gazetted railway servants to gazetted posts. Since the
appellant is working as a non-gazetted employee in Class
III, his promotion to a gazetted post in Class II would be
governed by Chapter II, section A, and not by Chapter III of
the Railway Establishment Manual.
Rule 301 of Chapter III, as introduced by Slip 70,
provides 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 determining the seniority and promotion of
non-gazetted employees of the Diesel Locomotive Works. The
appellant relied very strongly on rule 328(2) which provides
that selections and promotions made in the Diesel Locomotive
Works from 1-8-1961 to the date on which Slip No. 70 came
into force, namely March 11, 1973, shall not be valid. He
urges that this provision casts an obligation on the Railway
Board to recall all promotions made from amongst Class III
servants to Class H posts from August 1 1961 to March , 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 III applies only to non-
gazetted servants and to their inter se promotion and
therefore the words "promotions made in the Diesel Locomo-
tive 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 promo-
tion 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 category. Rule 123(’3) of
Chapter I, Section B, Railway Establishment Manual, defines
"grades" as sub-divisions of a class, each bearing a differ-
ent scale of pay.
If the grievance of the appellant who holds a non-gazet-
ted 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 Establishment 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 administra-
tion. 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 right in refusing to
issue a writ of mandamus directing the railway administra-
tion to apply the provisions 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
790
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 rules introduced by Advance Correction Slip No. 70. the
appellant cannot be permitted to raise questions which must
be 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.
1
?
791