Jurisdiction of High Court to issue writ of mandamus.

The petitioner, an Assistant Station Master in the Southern Railways, applied under Article 226 of the Constitution for the issue of a writ of mandamus or other appropriate writ, to avoid the effect of the order, dated 25th April, 1952, issued by the first respondent, which, the petitioner complained, adversely affected his seniority in his cadre and was contrary to the rules in force governing seniority of the employees of his class in the State Railways .

It was common ground that the conditions of service of railway employees like the petitioner were governed among other things by the statutory rules in the Indian Railway Establishment Code, to which I shall refer hereafter as the Code. These rules were originally promulgated in exercise of the power vested in the Governor General - in - Council by section 241 (2) of the Government of India Act, 1935, the provisions of which were analogous to those of Article 309 of the Constitution. Under Article 313 of the Constitution these statutory rules continued in force after the commencement of the Constitution.

Under rules 156 and 157 of the Code there was a further delegation of power to frame rules. Rule 156 ran:

“The Railway Board have full powers to make rules of general application to non-gazetted railway servants under their control.”

Rule 157 ran:

“The General Managers of Indian Railways have full powers to make rules with regard to non-gazetted railway servants under their control provided they are not inconsistent with any rules made by the President or the Railway Board.”

(Indian Railway Establishment Code, Vol. 1, 1952 Edn. page 22).

Rule 10 in Appendix II-A of the Code specifically dealt with the question of seniority. Rule 10 ran:

"10. Seniority.-(i) The seniority of subordinate staff shall be determined in accordance with the rules prescribed by the General Manager........

(2) Seniority lists of the staff shall be made up in accordance with the instructions issued under (1) above.

(3) Staff may be permitted to see these, seniority lists in which names are placed, or if this cannot conveniently be arranged, they may be informed, on request, of their place on the seniority list."

It was in exercise of these powers that the General Manager, South Indian Railway, issued Circular No. 343, dated nth August, 1949. The relevant portion of the circular ran:

"Except as provided for below the provisions of Appendix II-A State Railway Establishment Code, Volume I, will apply to promotion of Class III staff in all other respects.

2.(a) (i) Seniority shall be based on the date of confirmation in grade.

(ii) In cases in which the date of confirmation in grade is the same, seniority obtaining prior to the date of confirmation in grade shall stand.......

10.(a) The new procedure will come into force with effect from 16th August, 1949. Promotions made or ordered prior to 16th August, 1949, in accordance with the approved procedure in force from time to time shall not be reopened.'

The petitioner claimed that his seniority as an Assistant Station Master should be regulated by these rules and with reference to the date of his confirmation in that class, 2nd November, 1949. To appreciate the scope of that contention it is necessary to set out the circumstances under which the petitioner was recruited and was eventually confirmed in his post.

It should be borne in mind that the petitioner was recruited for appointment when the South Indian Railway was a separate unit of administration and before it was integrated with other units to constitute the Southern Zone of the Indian Railways. That integration created problems of its own, with which, however, I need not concern myself in these proceedings.

The posts of the Assistant Station Masters constituted a “class” within a “group” as defined by rule 2 in Appendix II of the Code. The Assistant Station Master’s was classified as a non-selection post. It was common ground that the normal method of recruitment to that class of post was by promotion from the