S.K. Chandan v. Union of India & Ors.

Cl1ANDRACHUD, J.-Rcspondent I, the Union of India, estal:·lishcd the Locomotive Component Works at Varanasi in 1956 for m.anufac-turing 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~ Allaha-bad 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 selec-tions to Class II service in accordance with the "Advance Correction Slip 70." This, particular prayer was rejected by the High Court by

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 restrict-ed 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 ratl-way 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 sec-tion 'B' contains "Rules governing the promotion of subordinate staff. Chapter III is headed "Rules regulating seniority of non-gazetted rail-way 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 re-gard 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 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 Para-gr;:iph J 57 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 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 true reason why it is impossible to accept the appellant's con-tention that his promotion to Class JI is governed by the rules introdu-ced 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 pro-motion 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 selec-tion 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.

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 cate-gories 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

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 pro-vision 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" occur-ring 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. I 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 pro-vision contained in Chapter II, section A, of the Railway F.stablish-ment 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 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 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.

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