TMI Blog1968 (3) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... ous orders, passed by the 2nd respondent, referred to, by both the petitioners, are one and the same, and therefore, we shall refer to those proceedings, in accordance with the anexure number, given to them, in Writ Petition No. 96 of 1967., Wherever necessary, we shall advert to any separate order, that has been referred to, by the petitioner, in Writ Petition No. 165 of 1967. According to the petitioner in Writ Petition No. 96 of 1967, he joined service, 'on July 16, 1955, as Lower Division Clerk, was promoted, with effect from February 2, 1957, as Upper Division Clerk and further promoted, as Assistant, on February 3, 1958. His grievance is that while he was holding the post of such Assistant, from 1958, he has been illegally, and without any justification, reverted, as Upper Division Clerk, with effect from June 9, 1967, as per the impugned order, dated June.16, 1967 (Annexure 16). Similarly according to the petitioner, in Writ Petition No. 165 of 1967, he joined as a Lower Division Clerk, on September 14, 1954, was promoted as Upper Division Clerk, with effect from February 2, 1957 and was further promoted, as Assistant, on February 3, 1958. His grievance is that while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, therefore, their seniority, in the Lower Division Clerks Grade, was thus reflected in the Assistants Grade. The petitioners were required to be reverted, for such Upper Division Clerks, who were senior to them, being posted in the Grade of Assistants. Effort, however, was made, to avoid hardship to persons, like the petitioners, who were functioning as Assistants, by deciding to make available, vacancies in the Assistants' Grade, by promotion and by curtailing the quota, reserved for direct recruits; but the petitioners could not be continued as Assistants, for an indefinite period, as difficulty arose, when there was contraction, in the Cadres, by some of the Section Officers, being reverted, as Assistants, in June 1967. This, in consequence, resulted in the reversion of certain Assistants, including the petitioners, to the posts of Upper Division Clerks. The reversions themselves were made strictly in the reverse order of seniority. According to the Railway Board, the petitioner, in Writ Petition 96 of 1967 is still a temporary Lower Division Clerk, and he has not been even confirmed in that Grade, because he has not passed the requisite typing test. It is further stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a scheme, was ultimately issued, under Annexure 4, on February 5, 1957. The 2nd respondent has filed a statement, regarding the circumstances, under which the Scheme was framed, in consultation with the Union Public Service Commission, and the Ministry of Home Affairs. The scheme was for filling the posts of Lower Division Clerks, Upper Division Clerks and such of the Upper Division Clerks who can be promoted as Assistants. Paragraph 14, sub paras (1) and (3), dealt with the filling up of posts of Grade 1, Upper Division Clerks, of the Clerical Service. That provided for the different manner in which the permanent vacancies, and temporary vacancies, were to be filled up, in the authorized strength of Grade I of the Service. Under paragraph 14, sub-para I (b), promotion to the cadre -of Upper Division Clerks, can only be made of permanent Lower Division Clerks, for permanent vacancies, and, under paragraph 14, sub-para (3), only permanent Lower Division Clerks and temporary Lower Division Clerks, with more than three years' standing, and graduate Lower Division Clerks, could be promoted to Temporary vacancies in the Cadre. But, in view of the non-availability of permanent Lowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of permanent vacancies, and temporary vacancies, which existed in the original scheme, was done away with. The modified scheme provided a uniform method of promotion, to both permanent vacancies, in 'the authorized, strength of Grade I Service, as well as temporary vacancies. Broadly, the method of appointment, to this Grade, was (a) 80%, by promotion of permanent Lower Division Clerks and temporary Lower Division Clerks, with more than three years of service in the Grade, on the basis of seniority, subject to rejection of the unfit; (b) 20%, on the basis of competitive examination, limited to the Lower Division Clerks. In 1965, a final panel was drawn up, according to the Railway Board, on the basis of 'the Scheme, Annexure 4, as modified by Annexure 7. That panel consisted of Lower Division Clerks, fit for promotion to the grade of Upper Division Clerks. The Lower Division Clerks were arranged, strictly in accordance with their seniority position, in that Grade. The final panel is Annexure 14, dated March 30, 1965; and, according to the Petitioner in Writ Petition No. 96 of 1967, he has lost 148 places, and, according to the petitioner, in the connected writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen, from the documents filed, on behalf of the respondent, that there was a suggestion, by either the Home Ministry, or the Union Public Service Commission, that the Scheme was to come into effect, on the date it was promulgated; but that was met, by the Board, by replying that an assurance had been given to the staff, to whom the Scheme had been circulated, that the crucial date, for initial constitution of the Scheme, was to be fixed as December 1, .1954. In fact, a reading of Annexures 4 and 7, also clearly shows that the initial constitution of the Service, is to be from December 1, 1954, and it is, on that basis, that appointments, or promotions, are to be made. Once it is held that the initial constitution of the Service, is from the date, mentioned above, on the basis of Annexure 4, read with Annexure 7, it follows that the promotion of the petitioners, as Upper Division Clerks, under Annexure 3, was not under the Scheme, but really on a provisional, or temporary basis. Notwithstanding the fact that the grievance of both the petitioners is that ranking has not been given to them properly, in Exhibit 16, we are satisfied that it is in accordance with the principles, under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition No. 165 of 1967, was not prepared to wake up that extreme position, because, his attempt, was to show hat his client satisfies the requirement of the qualifications, laid down for promotion, in Annexure 4, read with Annexure 7. We have already negatived that contention; but this legal contention has been persisted, before us, by Mr. K. L. Mehta, counsel appearing for the petitioner, in Writ Petition No. 96 of 1967. Mr. Mehta, by reference to the provisions of the Indian Railway Board Act, 1905 (Act IV of 1905), and to the decision of this Court in State v. Padmanabhacharya([1966] 1 S.C.R. 994.), urged that the 2nd respondent had no power to frame a rule, having retrospective effect. In our opinion, this contention cannot be accepted. Act IV of 1905 is an Act to provide for investing the Railway Board with certain powers of functions, under the Indian Railways Act, 1890. The preamble to that Act shows that a Railway Board has been constituted, for controlling the administration of Railways in India. Section 2 provides that the Central Government, may, by notification, in the Official Gazette, invest the Railway Board, either absolutely, or subject to conditions, with powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er this article, and any rules so made shall have effect subject to the provisions of any such Act. We may emphasize the words 'and any rules so made shall have effect subject to the provisions of any such Act, which must receive their due weight. To that aspect, we shall come, presently. We have already pointed out, that Annexure 4 was issued on February 5, 1957, and Annexure 7, on March 30, 1963, and that the initial constitution of the Service was to be from December 1, 1954, and it-is, on that basis, that the promotions, or appointments, to the Service, are to be made. In this -case, there is no Act of the appropriate Legislature, regulating the recruitment and conditions of service, under the 2nd respondent and, therefore, the main part of Art. 309 is not attracted. But, under the Proviso therein, the President has got full power to make rules, regulating the recruitment, and conditions of service, of persons, under the 2nd respondent Further, under the Proviso, such person, as may be directed by the President, can also make rules, regulating the recruitment and conditions of service, of persons, under the 2nd respondent. The rules so made, either by the President, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., (as he then was); and the Court specifically says that the rule, referred to by it, cannot be made, under the proviso to Art. 309, of the Constitution. It is further stated that the notification, referred to, cannot be said to be a rule, regulating the recruitment and conditions of service of persons appointed to the services and posts, in connection with the affairs of the State. This Court further observes that the effect of the notification, or the rule, that it had to consider, was, to select certain Government servants, who had been illegally required to retire, and to say that even if the retirement had been Illegal, that retirement should be deemed to have been properly and lawfully made. Finally, the Court said, that such a declaration, made by the Governor, cannot, in any sense, be regarded as a rule, made under (1) [1966] 1 S.C.R. 994.] the proviso to Art. 309. Having held that the rule, which was before it, was not one made under the proviso to Art. 309, the Court further observed, in that case, that it was not necessary to decide, whether a rule, governing conditions of service, of persons appointed in connection with the affairs of the State, can be made retrospecti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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