TMI Blog1967 (8) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... ule was ordered to be given. There were originally two scales for Train Examiners ₹ 100-185 ('D' Grade) and ₹ 150-225 ('C' Grade). These scales were later revised as a result of the recommendations of the Second Pay Commission and the scale of 'D' Grade was increased to ₹ 180-240 and that of 'C' Grade to ₹ 205- 280. On February 18, 1961 the Railway Board issued a letter No. PC-60/PS5/ TP-8, Annexure 'A' to the Writ Petition to the General Managers of all Indian Railways conveying its decision that vacancies in the Entry Grade of Train Examiners (in the scale ₹ 180- 240) with effect from February 18, 1961 should be filled as follows: (i) 50% of the vacancies should be filled from Apprentice Train Examiners who successfully have completed the prescribed (4 years) apprenticeship, the remaining 50% of the vacancies being filled by promotion of skilled artisans. (ii) 20 /1/O of the annual requirements of Apprentice Train Examiners should be drawn from skilled artisans who are not more than 35 years old on 1st July of the year in which the apprenticeship is likely to commence. Promotion to Grade 'C' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... election basis. The materials portion of the notification of the Railway Board dated October 27, 1965 is reproduced below: RECRUITMENT: (i) Vacancies in the entry grade of Train Examiners in the authorised scale ₹ 180-240 should not be filled from apprentice TX Rs. upto 50% as hitherto, but should exclusively be filled by promotion from amongst artisan staff. (ii) (a) Vacancies in the next higher grade ₹ 205-280 (AS) should be filled from amongst X X the TXRs in grade ₹ 180-240 (AS) to the extent of 2O%. (b) The remaining 80% vacancies should be filled by Apprentice TX Rs. who have successfuly completed prescribed apprenticepship mentioned in para 2 below. (c) 25% of the annual requirements of apprentice TXRS. should be drawn from skilled artisans who are not more than 35 years old on 1st July of the year in which apprenticeship is likely to commence. The instructions contained in Board's letter No. 2(NG)-61MI/101 dated 6-6-62 should be kept in view. Training 2. The Appentice TXRs recruited on and from 1/4/66 shall be given a training for a period of five years (three years in the case of diploma holders). From the same date artisan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the number of posts available for promotion of TXRS. in scale ₹ 180-240 the vacancies likely to occur during the period of apprenticeship of the apprentices under training as on 1-4-66 should also be taken into account. In other words, it would be necessary to keep in reserve only the number of posts equal to the number of apprentices under training as on 1-4-66, who cannot be absorbed in the anticipated vacancies which will arise by the time they qualify. The petitioner, Roshan Lal Tandon entered railway service on March 6, 1954 as skilled fitter on the Northern Railway. He was selected for the training for the post of Train Examiner Grade 'D' on June 5, 1958 and was confirmed in that grade on October 25, 1959. The case of the petitioner is that he alongwith the direct recruits formed one class in Entry grade 'D' and their condition of service was that seniority was to be reckoned from the date of appointment as Train Examiner in Grade 'D' and promotion to Grade 'C' was on the basis of seniority-cum-suitability test irrespective of the source of recruitment. It was alleged that there was no difference between the apprentices and those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39; Grade with effect from April 1, 1966 those who were Apprentice Train Examiners in Grade 'D' before that date had to be upgraded in the scale of ₹ 205-280. It was therefore thought that these posts should be upgraded so that there should be parity of treatment with the Apprentice Train Examiners who were to join after April 1, 1966 . The first respondent has also controverted the allegation of the petitioner that the procedure outlined in the impugned notification dated October 27, 1965 in regard to the upgraded vacancies was discriminatory. The main question to be considered in this case is whether the notification by the first respondent dated October 27, 1965 is violative of Arts. 14 and 16 of the Constitution in so far as it makes a discrimination against the petitioner for promotion to Grade 'C'. According to the impugned notification the existing Apprentice Train Examiners who had already been absorbed in grade 'D' by March 31. 1966 should first be accommodated in grade 'C' in 80% of the vacancies reserved for them without undergoing any selection. With regard to 20% of the vacancies there is a reservation in favour of the departmenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the direct recruits and promotees are absorbed in one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher grade 'C'. In the present case, it is not disputed on behalf of the first respondent that before the impugned notification was issued there was only one rule of promotion for both the departmental promotees and the direct recruits and that rule was seniority-cum- suitability, and there was no rule of promotion separately made for application to the direct recruits. As a consequence of the impugned notification a discriminatory treatment is made in favour of the existing Apprentice Train Examiners who have already been absorbed in Grade 'D' by March 31, 1966, because the notification provides that this group of Apprentice Train Examiners should first be accommodated en bloc in grade 'C' upto 80 per cent of vacancies reserved for them without undergoing any selec- tion. As regards the 20 per cent of the vacancies made available for the category of Train Examiners to which the petitioner belongs the basis of recruitment was selection on merit and the previous test of seniority-cum-suitability was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Principles Appraisers. We are of opinion that the petitioners have a legitimate grievance in this respect. The source of recruitment of Principal Appraisers is one, namely, from the grade of Appraisers. There is therefore no question of any quota being reserved from two sources in their cases. The rotational system cannot therefore apply when there is only one source of recruitment and not two sources of recruitment. In a case therefore where there is only one source of recruitment, the normal rule will apply, namely, that a person promoted to a higher grade gets his seniority in that grade according to the date of promotion subject always to his being found fit and being confirmed in the higher grade after the period of probation is over. In such a case it is continuous appointment in the higher grade which determines seniority for the source of recruitment is one. There is no question in such a case of reflecting in the higher grade the seniority of the grade from which promotion is made to the higher grade. In so far therefore as the respondent is doing what it calls restoration of seniority of direct recruits in Appraisers' grade when they are promoted to the Principal App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icable to the petitioner at the time he entered Grage 'D and the condition of service could not be altered to his disadvantage afterwards by the notification issued by the Railway Board. It was said that the order of the Railway Board dated January 25, 1958, Annexure 'B', laid down that promotion to Grade 'C' from Grade 'D' was to be based on seniority-cum-suitability and this condition of service was contractual and could not be altered thereafter to the prejudice of the petitioner. In our opinion, there,, is no warrant for this argument. It is 'true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public 'law and not by mere agreement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of his service and that Counsel for the petitioner has been unable to make good his submission on this aspect of the case. But for the reasons already expressed we hold that the impugned part of the notification violates the guarantee under Arts. 14 and 16 of the Constitution and a writ in the nature of mandamus should be issued commanding the first respondent not to give effect to the impugned part of the notification, viz.,: The Apprentice T.X.Rs. who have already been or will be absorbed in scale ₹ 180-240 upto 31-3-66 should first be accommodated in scale ₹ 205-280 against the quota of 80% vacancies reserved for them. Such staff should not be required to undergo a 'Selection' before being absorbed in that grade. The upgraded vacancies in scale ₹ 205-280 left over after earmarking those for the apprentices under training on 2-4-66 should be filled by promotion of T.X.Rs. in scale ₹ 180-240 on a selection basis. While computing the number of posts available for promotion of T.X.Rs. in scale ₹ 180-240 the vacancies likely to occur during the period of apprenticeship of the apprentices under training as on 1-4-66 should also be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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