JUDGMENT

UNTWALIA, J. :— This is an appeal by special leave. The appellants are the Railway Board and some officers of the Southern Railway concerned with the passing of the impugned orders. Respondents 1 to 9 were clerks in the Southern Railway in Grade II. They were all promoted eventually to Accounts Clerks, Grade I. In the seniority list, however, respondents 3 to 9 were shown an senior to respondents 1 and 2. Hence the latter challenged the order Ext. P-4 dated the 6th of March, 1972 by filing a writ petition in the Kerala High Court. The petition was dismissed by a learned single Judge, but their appeal was allowed by the Division Bench. Hence the Railway administration has filed the present appeal. Mr. U. R. Lalit appeared for the appellants and Mr. S. Balakrishnan contested the appeal on behalf of respondent No. 1. No other respondent appeared.

2. For getting promotion from Grade II to Grade I, the respondents had to pass a departmental examination known as Appendix II-A Examination. In Grade II, respondent No. 1 having been appointed earlier was senior to respondents 2 to 9 and respondent 2 was junior to respondent 3 but senior to respondents 4 to 9. Respondents 3 to 5 had passed Appendix II-A examination before the 1st April, 1956. Respondent 6 passed it in April 1956. Respondents 2 and 7 to 9 passed the said examination in November 1956 and respondent 1 passed it lastly in May, 1957.

3. In the Indian Railway Establishment Code, Volume I are the Rules framed by the President of India under Art. 309 of the Constitution. Contained in the said Code is the well-known R. 157 which authorises the Railway Board, as permissible under Art. 309, to have "full powers to make rules of general application to non-gazetted railway servants under their control." The Railway Board have been framing rules in exercise of this power from time to time. No special procedure or method is prescribed for the making of such rules by the Railway Board. But they have been treated as rules having the force of rules framed under Art. 309 pursuant to the delegated power to the Railway Board if they are of general application to non-gazetted railway servants or to a class of them.

4. Eventually all the respondents were confirmed in Grade 1 with effect from the 1st April, 1956. But the difference in their inter se seniority was brought about because respondents 3 to 9 were confirmed in permanent posts while respondents 1 and 2 were confirmed in supernumerary posts. Respondents 1 and 2 claimed on the basis of the Rule 20 (b) contained in the Indian Railway Establishment Manual, Volume I that irrespective of the dates of their passing the departmental examination, their seniority in Grade II had to be reflected in Grade I when they were confirmed in that Grade from a date with effect from which respondents 3 to 9 had also been confirmed. On the other hand the case of the appellants as also some of the contesting respondents in the High Court has been that the aforesaid Rule 20 (b) contained in the Railway Establishment Manual is of no universal application and was subject to the rules and orders which were issued by the Railway Board from time to time. According to such rules and orders, those who were confirmed in supernumerary posts and later in permanent posts had to rank junior to those who were confirmed earlier in permanent posts. The learned single Judge accepted the stand taken on behalf of the appellants but the Division Bench rejected it.

5. It is not necessary for us to repeat all that has been said in the judgments of the High Court but a brief resume of facts would show that the view taken by the learned single Judge was correct and the Division Bench was not right in taking a contrary view.

6. Ext. R-2 was a circular letter of the Railway Board dated the 7th march, 1957 issued to the General Managers of all Indian Railways and other authorities. The subject in this letter was "upgrading of posts." After reviewing their earlier decisions the