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1975 Supreme(Raj) 14
Rajasthan High Court
Kan Singh, J.
Jagdish Singh - Appellant
Versus
Union of India - Respondents
S.B. Civil Writ Petition No. 140 of 1970
Decided On : January 31, 1975
Ganpat Singh, for Petitioner; L.R. Bhansali, for the union
Headnote:(a) Railway Establishment Code, Sec. 157- Every order or letter of Board cannot be regarded as rule.(b) Railway Establishment Manual, Chapter III, RR. 2 and 3—Unless otherwise stated— Expression means unless otherwise stated in rules and not in some decision, order or letter of the Board.
Seniority according to its known connotation is nothing but a length of service on an equivalent post. Therefore, it is axiomatic that a person who enters a particular cadre earlier is senior to another who enters that cadre subsequent to him; that is, if an incumbent is appointed to a higher grade earlier to another then in the higher grade he will be senior to the other. The expression "unless specifically stated otherwise" in the beginning of R. 2 only emphasis that unless anything is said to the contrary in a rule for determining seniority, the seniority amongst the incumbents of a post in a grade has to be governed by the date of the appointment to the grade. The controversy centres round the question whether the order contained in Annexures R/4, R/1 and R/2 are such rules as specifically state otherwise within the meaning of R. 2 above.
Held = The question arises whether this letter is a rule within the meaning of R.157 of the Indian Railway Establishment Code Vol. I or it is merely a decision of the Railway Board, on a certain matter. The allied question is whether by this anne-xure R/4 the Railway Board are departing from the rule for seniority contained in R. 2 of Chapter III of the Manual extracted above.
Held = The Statute itself provided for the quota and in exercise of the power under the rules the Government could not depart from it on the plea that the fixation of quota was merely an administrative direction. Powers may be conferred on the executive body by a statute to take a certain action, but it would not mean that in every case whatever action is taken will be the making of a rule, though it may be an order in exercise of a statutory power.
Held = The question is whether something written in a letter should be given the status of a statutory rule at par with rules made by the President u/Art. 309 of the Constitution. It is common knowledge that the rules made by the President u/Art 309 of the Constitution are published in the Government of India Gazette. This, therefore, involves the consideration of the question whether some kind of publication would be needed for the rules to be affectively made by a subordinate legislative body like the Rail-way Board, or we have to go by the rule of the thumb that every order or letter of the Railway Board whenever it contains a general direction is to have the sanctity of a statutory rule.
Held = In the modern era it is impossible to accept a sweeping proposition that a subordinate legislative body can make a rule having the force of 1aw without publishing it by some known mode Every order of the Government though it be in the name of the Governor cannot be a law merely because it affects a number of people, nor can it be said that without publication a Government order can be treated as law. ( paras 6, 8,9, 10 12 and 16 )
2. The petitioner was in the service of the Northern Railway and posted at Railway work shop at Jodhpur. The petitioner entered the service of the Railways as an unpaid Apprentice Mechanic in the year 1950 and bad his training. On completion of 5 years training as Apprentice Mechanic he was appointed as a Journeyman in the grade of Rs 100-185 with effect from 15-5-55. He came to be promoted as a chargeman in the grade of Rs. 150-225 on 27-6-67. He was confirmed as chargeman in the grade of Rs. 150-225 with effect from 14-7-57. Respondents Harbans Singh was confirmed as chargeman from 26-7-57. Kundan Lal was confirmed on 27-7-57, Shri Vallabh on 28-7-57, Pritam Chand on 9 10 57 and S. K. Chatterji on 21-6-59. Respondents Om-Prakash, R. D. Avasthi, Shri Gopal Sahi, Kanwal Nain Singh and Gyan Chand, according to the petitioner, were not confi>med as chargeman till 7-8-61 and the petitioner proceeded to state that he had no knowledge whether these respondents were confirmed later on or not. For the higher grade of chargeman Rs. 200-300 the petitioner and respondents Nos. 5 to 14 were asked to appear before a Selection Board or Committee. The petitioner and the respondents appeared to have been selected on a panel. The name of the petitioner was at serial No. 15 of that panel (Annexure-7 on record) and the names of respondents Nos 5 to 14 were respectively shown at Nos. 18, 19, 20, 21, 22, 30, 31, 32, 33 and 34 After the preparation of this Panel the petitioner was promoted to officiate in this grade of Rs. 20G-300 with effect from 2-12-59. The petitioner was then promoted to officiate as Boiler-maker chargeman in the grade of Rs. 260-350. The respondents Harbans Singh, Kundanlal, S. V. Sharma, Pritam Chand Kashyap, Om Prakash, S.K. Chatterji, Kanwal Nain Singh and Gyan chand were also promoted to officiate as Boiler-maker chargeman in the pay scale of Rs. 200 300 by an order dated 15-12-61. On this date the petitioner was working in the higher pay grade of Rs. 260-350.
3. The General Manager issued a provisional seniority list of chargeman on 21-10-67 and invited objections to this list. According to the petitioner, his name was shown at No. 13. while the names of respondents Nos. 5 to 14 were respectively shown at Nos. 15, 16, 17. 18, 19, 26, 27, 28 29 and 30. Thus, according to the petitioner he was correctly shown senior to the concerning respondents. There was then a revised seniority list and in it the respondents Nos. 5 to 14 were shown senior to the petitioner. The petitioners grievance is that as against this revised seniority he was not afforded an opportunity of having his say. The petitioner then made a representation against the revised seniority list, but this seniority list was made final under General Managers order dated 17-9-69. It is this revision of seniority that the petitioner seeks to challenge by the present writ petition.
4. He contends that it was not open to the respondents to change the seniority at their whim and according to the relevant rules as the petitioner had entered the higher grade earlier to the respondents, he was senior to these respondents.
5. The writ petition has been opposed by the union. The other respondents have not chosen to file any reply to the writ petition It is denied by the union that the petitioner could be taken to be senior to the concerning respondents. It is submitted that certain Journeyman of the former Jodhpur Railway and other employees of other Zones had made representation before the Railway Board and the railway Board vide its letter dated 26-6-62 (Annexure-R/1) and another letter dated 23-10-62 (Annexure-R/2) decided that the Apprentice Mechanics who had completed their period of training and were working as Journeymen on 4-3-57 shall be entitl
