JUDGMENT

DUTT, J :— This appeal by special leave is directed against the judgment of the Allahabad High Court dismissing the writ petition of the appellants whereby they challenged inter alia the validity of R. 328(2) of the Railway Establishment Code as amended by the Railway Board by Advance Correction Slip No. 70.

2. The appellants were appointed Trade Apprentices in Locomotive Component Works (for short LCW) in or about January, 1959. There was a, merger of LCW with Diesel Locomotive Works, Varanasi, (for short DLW) on Aug. 1, 1961, as a result of which all the members of the staff of LCW were taken over by DLW. On July, 19, 1962, the appellants were appointed Skilled Artisans after successfully completing a training for three years and a half. The regular channel of promotion to higher posts from the post of Skilled Artisan is in the following order

1. Skilled Artisan.

2. Highly Skilled Grade-II.

3. Highly Skilled Grade- I.

4. Chargeman-C.

5. Chargeman-B.

6. Chargeman-A.

7. Assistant Foreman.

8. Foreman.

3. It is apparent from the above channel of promotion that the next higher post to which the appellants could be promoted was the post of Highly Skilled Grade-II. In Sept. 1963, the appellants were, however, promoted to the post of Instructor-C which is equivalent to the post of Chargeman-C. There is a controversy between the parties as to whether the post of Instructor-C was an ex cadre post or not. According to the appellants, it was an interchangeable post with Chargeman-C. We shall have occasion to consider the question later in this judgment. It may be stated, however, that there is no dispute that the post of Instructor-C is a selection post and the appellants were selected and promoted to existing vacancies in that post. The next post to which the appellants were promoted on Sept. 22, 1964 is the post of Chargemen-B upon their selection by a constituted Selection Board on a regular, basis. Some of the respondents,, who are direct recruits, also competed with the appellants for the post of Chargeman-II, but they could not qualify themselves in the written test.. To complete the, narrative, it may be stated that the appellants have now been promoted to the post of Chargeman-A.

4. On August 11, 1966 the General Manager of DLW prepared certain seniority lists including a seniority list of Chargeman-B on the basis of the rules or guidelines framed by him. The said seniority list was challenged by certain direct recruits by filing writ petitions before a learned single Judge of the Allahabad High Court The learned single Judge quashed the seniority list and also the guidelines or rules framed by the General Manager, DLW, on the basis of which the seniority list was prepared. The principal ground on which the seniority list and the rules or guidelines framed by the General Manager, DLW, were quashed by the learned single Judge was that the General Manager, DLW, was not the General Manager of the Railway and, as such he had no authority to frame rules or guidelines for the purpose of preparation of the seniority list. Further, the learned Judge held that the said rules or guidelines dated Aug. 11, 1966 were violative of Arts. 14 and 16 of the Constitution of India.

5. Several appeals were preferred against the judgment of the learned single Judge including one preferred by the Railway Administration before the Division Bench of the High Court. While upholding the finding of the learned single Judge that the General Manager, DLW, was not competent to frame rules or guidelines, the Division Bench could not agree with the finding of the learned single Judge that the said rules or guidelines were violative of Arts. 14 and 16 of the Constitution. It was observed that there would have been no objection if the General Manager, DLW, had utilised the relevant statutory rules in drawing up the seniority list, but, admittedly, the rules in question were ignored. Further, the Division Bench pointed out that all the concerned employees in the