Full Judgment Text
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PETITIONER:
YASHBIR SINGH & ORS., ETC.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT18/08/1987
BENCH:
SINGH, K.N. (J)
BENCH:
SINGH, K.N. (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1988 AIR 662 1987 SCR (3)1018
1987 SCC (4) 345 JT 1987 (3) 399
1987 SCALE (2)371
ACT:
Service matter--Seniority list challenged--Injunction
sought against issue of altered seniority list for the
purpose of promotions, confirmations, etc.
HEADNOTE:
The petitioners were railway employees. The Railway
Board issued a circular dated July 2, 1970, laying down
procedure for filling up posts of train examiners and upgra-
dation of posts. It directed that vacancies arising in Grade
C after 1.4.1966 to the extent of 50 per cent would be
maintained in that grade and the remaining 50 per cent would
be down-graded to be filled by promotion of skilled arti-
sans. It further directed that 50 per cent of the vacancies
in Grade C should be filled by direct recruitment of appren-
tice Train Examiners with five years’ training to the extent
of 80 per cent thereof and the remaining 20 per cent by
promotees from Grade D as laid down in paragraph 1 of the
Circular dated 27.10.1965 of the Board. This procedure was
directed to be followed till the cadre position was norma-
lised and the excess in the Grade of Rs.205-280 were elimi-
nated. Paragraph 2 of the circular further directed that
those promoted to Grade C in the scale of Rs.205280 as on
April 1, 1966 would be assigned seniority amongst themselves
in the order of their inter se seniority in the Grade of Rs.
180-240 for the purposes of confirmation, etc., in that
grade and they would rank senior to those recruited as
apprentice train examiners with five years’ training and
appointed after 1.4.66 in the grade of Rs.205-280. The
result of the circular was that all those promotees, who had
been appointed to Grade D prior to 1.4.66 stood absorbed in
Grade C and they were granted seniority in that grade with
retrospective effect, that is, with effect from April 1,
1966.
The Railway Board later took a policy decision to abol-
ish the entry grade D of train examiners in the pay-scale of
Rs. 180-240, and in order to implement that decision issued
a circular dated October 30, 1972, abolishing the entry
Grade D of the train examiners and placing the incumbents of
that grade en masse in grade C in the scale of Rs.205280
with effect from 1.11.72. Paragraph 2 of the circular di-
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rected that the pay of the staff brought from Grade D
(Rs.180-240) to grade C
1019
(Rs.205-280) would be fixed under Rule 2017 A (III) read
with rule 2019 II. As all the incumbents of grade D in the
scale of Rs. 180-240 were placed en masse in the higher
grade C in the scale of Rs.205-280, a provisional seniority
list of grade C Train Examiners working in Delhi Division
was prepared on November 16, 1981. In that seniority list,
the petitioners were shown senior to some of the respondents
as the seniority was not determined in accordance with Rule
302 of the Railway Establishment Manual. This seniority list
was not prepared in accordance with the prescribed criteria,
as had been done in the other Divisions. The Board issued a
circular dated 28.11.81, directing that the Delhi Division
should also fail in line with the other Divisions of the
Northern Railway, and the seniority of the train examiners
appointed between 1.4.66 and 1.11.72 should be prepared in
accordance with the existing practice. viz. on the basis of
the date of appointment in the particular grade.
In pursuance of that direction, seniority of the train
examiners of grade C placed in that grade between 1.4.66 and
1.11.72, was published in 1981 by the authorities of the
Delhi Division of the Northern Railway. After inviting
objections, the seniority list was finally published in
December, 1982. In that seniority list, the petitioners were
shown junior to respondents 5 to 10. Aggrieved, the peti-
tioners moved this Court by writ petitions, challenging the
validity of the seniority list and for quashing the circu-
lars dated July 2, 1970 and November 28, 1981 of the Railway
Board, and restraining the respondent--Railway authorities
from altering or issuing the seniority list in pursuance of
the circular dated November 28, 1981 of the Railway Board
and for maintaining the seniority list issued in 1968.
Dismissing the petitions, the Court,
HELD: The Respondents Nos. 5 to 10, who belonged to the
group of apprentice--train examiners were directly placed to
working posts in grade C after completion of 5 years’ train-
ing in accordance with the circular dated July 2, 1970 of
the Railway Board, and each one of them had been placed in
grade C prior to 1.11.72, while the petitioners were placed
in grade C with effect from 1.11.72, in pursuance of the
circular dated 30.10.72 of the Railway Board. Since the
respondents 5 to 10 were appointed to grade C earlier and
the petitioners were placed in that grade later, the peti-
tioners were shown in the seniority list junior to the
respondents concerned. No valid objection can be raised
against respondents’ seniority. [1027H; 1028A-C]
1020
The petitioners challenged the validity of the Railway
Board’s circular dated July 12, 1970, in 1981--after 11
years. All the petitioners were in service on the date that
circular was issued and they were aware that their col-
leagues (promotees belonging to grade D) were placed in
grade C and they had been granted seniority with retrospec-
tive effect, but none of them challenged the validity of the
circular. Now, the petitioners cannot be permitted to chal-
lenge the validity of that circular after 11 years. The
petitioners should have challenged the circular within a
reasonable period of time which they did not do. It is
wellsettled that anyone, who may feel aggrieved by an admin-
istrative order or decision affecting his right, should act
with due diligence and promptitude and not sleep over the
matter. Taking up old matters after a long time is likely to
result in administrative complications and difficulties and
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would create insecurity and instability in the service which
would affect its efficiency. The petitioners are, therefore,
not entitled to challenge the validity of the Railway
Board’s circular dated July 2, 1970, after 11 years. Even
otherwise, on merits. there is no legal and constitutional
infirmity in the circular. In order to reorganise the cadre
of the train examiners to cope with the increased work load,
the Railway Board issued a Notification dated October 27,
1965, reorganising the cadre. The validity of the notifica-
tion was challenged before this Court in Roshan Lal Tandon’s
case. The Court struck down only a portion of the notifica-
tion and the rest of the directions contained in the notifi-
cation remained unaffected. After the judgment of the Court,
the Railway Board reconsidered the matter, and, with a view
to implementing the decision of this Court and further
carrying out its policy of reorganisation as initiated under
its circular dated October 27, 1965, issued the circular
dated July 2, 1970 [1029A-H; 1030A-B]
The scheme of reorganisation of the cadre as contemplat-
ed by the circular dated October 27, 1965, was to be opera-
tive with effect from April 1, 1966. The Petitioners’ sub-
mission that the date April 1, 1966, was fixed in an arbi-
trary manner without any basis, is untenable. The promotees,
who were placed in the higher grade C with effect from April
1, 1966, were undoubtedly senior to the petitioners in grade
D, and none of the petitioners’ rights were affected by
their promotions. The Railway Board implemented the reorgan-
isation scheme after the decision of this Court in Roshan
Lal Tandon’s case. As promotion to grade C had been stayed
during the pendency of Tandon’s case in this Court, the
Railway Board was justified in granting promotion with
retrospective effect from April 1, 1966, as initially, the
reorganisation was proposed to be implemented from that
date, which could not be done on account of stay orders
issued by this Court. The petitioners
1021
cannot claim parity with those who had been promoted to
grade C under the Railway Board’s circular dated July 2,
1970, as they do not belong to that class. Equality can be
claimed amongst equals and not with unequals. The persons,
who had acquired the right of promotion under the Railway
Board’s notification dated October 27, 1965, but could not
be promoted on account of litigation, formed a separate
class, and the petitioners could not equate themselves with
them, as they were not entitled to promotion under the
notification dated October 27, 1965. There is no merit in
the petitioners’ plea of discrimination. [103AF-H]
The validity of the Railway Board’s circular dated July
2, 1970, was challenged by a writ petition before the Delhi
High Court, which upheld the same. Again, the validity of
that circular as well as the circular dated January 28, 1981
of the Railway Board was challenged by a writ petition
before the Delhi High Court, which upheld the same. [1032F-
H]
By the Circular dated October 30, 1972, of the Railway
Board, the entry grade of train examiners in the scale of
Rs. 180-240, was abolished and all the train examiners in
that grade were placed in the scale of Rs.205-280 with
effect from November 1, 1972. The petitioners were included
in grade C with effect from November 1, 1972, and, there-
fore, they are entitled to seniority with effect from that
date in Grade C. The petitioners are not entitled to claim
seniority in grade C with reference to the date of their
appointment in grade D. The respondents 5 to 10 were ap-
pointed in grade C earlier than the petitioners and, there-
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fore, they are senior to the petitioners. Rule 302 of the
Railway Establishment Manual lays down a general rule for
determining seniority from the date of appointment in a
particular grade when a person is promoted to or placed in a
higher grade, his seniority is determined with reference to
the date of such promotion or placement unless the relevant
rules provide to the contrary. Seniority in lower grade has
no meaning for determining seniority in the higher grade
except for determining inter se seniority of the promotees.
In the absence of any contrary provision in the Rules, the
general rule of seniority laid down by Rule 302 must pre-
vail. [1034G-H; 1035A-E]
It appears that in the seniority list prepared in 1968,
the names of some of the respondents were shown in grade D
on a wrong assumption. The respondents 5 to 10 were appren-
tices undergoing training, and in accordance with the direc-
tions contained in the Railway Board’s notification dated
October 27, 1965. they were entitled to appointment
1022
straightaway on completion of their training. They were
drawing stipend at a rate which was the scale prescribed for
grade D, but they did not belong to grade D and could not be
included in the seniority list of grade D. The petitioners
cannot draw advantage from the mistake committed in includ-
ing the names of the respondents in the seniority list of
1968. [1035F-H; 1036A]
The petitioners were placed in higher grade C with
effect from November 1, 1972, and they are entitled to
seniority with reference to their placement in that grade
and they have no legal right to claim seniority in that
grade as against those who were appointed to that grade
before November 1, 1972. [1036C-D]
Whether the petitioners were promoted to grade C or were
placed en masse in that grade, does not make any difference
in so far their entry to grade C is concerned; in either
case, they entered grade C with effect from November 1,
1972. The petitioners have failed to show that any person
junior to them has been made senior to them. Their grievance
is without any substance. [1037C-E]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition Nos. 9222 to 9226
of 1981.
(Under Article 32 of the Constitution of India).
N.N. Keshwani, R.N. Keshwani and Raj Kumar Gupta for the
Petitioners in W.P. Nos. 9222-25 of 1981.
Petitioner-in-person (Inder Mohan Lal Tandon) in W.P.
No. 9226 of 1981.
V.C. Mahajan, G.L. Sanghi, C.V.S. Rao, Kitty Kumaraman-
glam, Randhir Jain and S.K. Bhattacharya for the Respond-
ents.
The Judgment of the Court was delivered by
SINGH, J. By means of these petitions under Article 32
of the Constitution the petitioners claim relief for quash-
ing Railway Board’s circular/letter No. E (NG) 1/69/PMI- 180
dated 2nd July, 1970 and No. E (NG) I-80-SR6-39 dated 28th
November, 1981. They further claim relief for the issue of
writ in the nature of mandamus restraining the respondent,
Railway Authorities, from altering or issuing seniority list
in pursuance of the Railway Board’s circular dated 28th
November,
1023
1981 and to maintain the previous seniority list issued in
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1968 for the purpose of promotions, confirmation and further
advancement.
In the Indian Railways, initial recruitment of Train
Examiners, used to be made in the entry Grade D in the pay
scale of Rs. 100-185. Prior to 1st April, 1966 recruitment
to Grade D of Train Examiners was made from two sources (1)
by promotion of skilled artisans working in the lower grade,
(2) by direct recruitment of apprentices having completed
prescribed four years’ training. 50 per cent of the vacan-
cies were filled by apprentices while the remaining 50% of
the vacancies used to be filled by promotion of skilled
artisans. Promotion from entry Grade D was made to next
higher Grade C of Train Examiners in the pay scale of Rs.
150-225 and later these grades were revised and the scale of
D grade was raised to Rs. 180-240 and that--of C Grade to
Rs.205280. Promotion to Grade C used to be made on the basis
of senioritycum-suitability without any distinction of
promotee or direct recruits. Because there was increase in
the work load of Train Examiners the Railway Board took
steps to re-organise the cadre of Train Examiners. With that
end in view, it issued a notification on 27.10.1965 which
directed that vacancies in the entry grade of Train Examin-
ers in the scale of Rs. 120-140 should not be filled from
apprentice Train Examiners upto 50 per cent as hitherto, but
should exclusively be, filled by promotion of skilled arti-
sans. It further provided that vacancies in the next higher
grade C (in the scale of Rs.205-280) should be filled from
amongst the Train Examiners working in the grade of Rs.
180-240 to the extent of 20%. The remaining 80 per cent
vacancies were to be filled by direct recruitment of appren-
tice Train Examiners who may have successfully completed
prescribed training. Paragraph 2 of the notification provid-
ed .that the apprentice Train Examiners recruited on or from
1.4.1966 shall be given training for a period of 5 years and
from the same date artisans recruited in the lower grade as
apprentice Train Examiners shall be given ’in service’
training for a period of three years. The circular upgraded
50% of the existing posts of Train Examiners from Grade D to
Grade C in the scale of Rs.205-280 which were earlier ear-
marked for Apprentice Train Examiners. The notification
further directed that with effect from 1.4.1966 all the
apprentice Train Examiners on successful completion of their
training should be straightaway brought to the scale
Rs.205-280 instead of being first absorbed in the scale of
Rs. 180-240 as was being done prior to the issue of the
notification. Apprentice Train Examiners who were undergoing
training on the date of the issue of notification, were
directed to be brought to the working posts before 1.4.1966
and they were allowed stipend in the scale of Rs. 180-240
during the period of their training
1024
and their period of training was increased from four years
to five years. On the completion of the training they were
straightaway posted in Grade C in the scale of Rs.205-280.
Those apprentice Train Examiners who had already been or may
be absorbed in the scale of Rs. 180-240 upto 31.3.1966 were
directed to be accommodated first in the scale of Rs.205-280
in Grade C against the quota of 80% vacancies reserved for
them, and they were not required to undergo selection before
being absorbed in that grade.
The effect of the Railway Board’s circular dated October
27, 1965 was that the existing apprentice Train Examiners
who had already been absorbed in Grade D by March 31, 1966
were first accommodated in Grade C against 80% of the vacan-
cies reserved for them without undergoing any selection,
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while 20% of the vacancies reserved for the departmental
Train Examiners, were to be filled by artisan promotees by
selection and not on the basis of seniority-cum-suitability.
Although apprentices as well as artisan promotees constitut-
ed one integrated class in Grade D but promotee artisans
,were treated differently for promotion to Grade C. Roshan
Lal Tandon who was promoted from artisan class to Grade D,
filed a writ petition in ’this Court challenging the validi-
ty of the notification dated 27- 10-1965 on the ground that
a part of the notification which gave favourable treatment
to apprentice Train Examiners was violative of Articles 14
and 16 of the Constitution. In that writ petition a Consti-
tution Bench of this Court on August 14, 1967 in Roshan Lal
Tandon v. Union of India, [1968] 1 S.C.R. 185 held that
artisans and apprentices recruited from two sources to Grade
D were-integrated into one class and no discrimination could
thereafter be made in favour of recruits from one source as
against the recruits from the other source in the matter of
promotion to Grade C. Apprentice Train Examiners who were
recruited directly to Grade D as Train Examiners formed one
common class with the skilled artisans who were promoted to
Grade D as Train Examiners and thereafter no favoured treat-
ment could be given to the apprentice Train Examiners merely
because they were directly recruited as Train Examiners, no
discrimination could be made against the latter merely
because they were promotees. The Court emphasised that once
the direct recruits and promotees are absorbed into one
cadre, they formed one class and they could not be discrimi-
nated for the purpose of further promotion to higher Grade
C. On these findings the Court allowed the writ petition and
issued a mandamus directing the Railway Board not to give
effect to the impugned part of the circular which was as
under:-
1025
"The Apprentice T.X. Rs. who have already been
or will be absorbed in scale Rs. 180-240 upto
31.3. 1966 should first be accommodated in
scale Rs.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 Rs.205-280 left
over after earmarking those for the appren-
tices under training on 2.4.66 should be
filled by promotion of T.X. Rs. in scale Rs.
180-240 on a selection basis. While computing
the number of posts available for promotion of
T.X. Rs. in scale of Rs. 180-240 the vacancies
likely to occur during the period of appren-
ticeship of the apprentices under training as
on 1.4.1966 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
1.4.1966, who cannot be absorbed in the antic-
ipated vacancies which will arise by the time
they qualify."
The Railway Board with a view to implement the decision
of this Court and to remove the anomaly which had been
pointed out by this Court issued circular/letter No. N (NG)
65 PMI/86 dated 13.9.1968 annexures III to the affidavit
filed on behalf of Respondent Railway Administration. Para-
graph 1 of the letter refers to this Court’s judgment in
Roshan Lal Tandon’s case and also to that portion of the
Railway Board’s circular dated October 27, 1965 which had
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been struck down by the Court and the interim orders issued
by the Court restraining the Railway authorities from imple-
menting the Circular dated October 27, 1965 during the
pendency of the writ petition. Paragraph 2 and 3 of the
Circular dated September 13, 1968 stated that in view of the
judgment of the Supreme Court the Board have decided that
vacancies in the grade of Rs.205-280 (after taking into
account the upgrading of 50 per cent of posts in the scale
of Rs. 180-240- to 205-280 less the number of posts required
for absorbing Apprentice Train Examiners undergoing the
enhanced period of training of five years on April 1, 1966,
should be filled by selection from amongst Train Examiners
in the scale Rs. 180-240 as on March 31, 1966 irrespective
of whether they were initially recruited as Apprentice Train
Examiners or were promoted from lower grades. The Board
desired that Railway Administrations should take immediate
steps to ensure that proper selections are held for which
all TXRs in scale of Rs. 180-240 are considered. It had come
to Board’s notice that prior to the issue of the stay order,
persons originally recruited as Apprentice Train Examiners
who were in the
1026
scale of Rs. 180-240 have been promoted to the grade
Rs.205-280 in pursuance of Board’s letter dated 27.10. 1965.
The Board decided that in view of the Supreme Court’s judg-
ment, such promotions should be treated as null and void and
the vacancies should be properly filled as mentioned in para
2 of the circular.
The Railway Board issued another circular No.
E.(NG)i/69/PMI180 dated 2nd July 1970 laying down procedure
for filling of posts of Train Examiners and upgradation of
posts. It directed that vacancies arising in Grade C after
1.4.1966 to the extent of 50% shall be maintained in that
grade and the remaining 50% shall be down graded to the
scale of Rs. 180-240 to be filled by promotion of skilled
artisans. It further directed that 50% of the vacancies in
Grade C should be filled by direct recruitment of apprentice
Train Examiners with five years’ training to the extent of
80% thereof and the remaining 20% by promotees from Grade D
as laid down in paragraph 1 of the Railway Board’s circular
dated 27.10.1965. This procedure was directed to be followed
till the cadre position was normalised’ and the excess in
the Grade of Rs.205-280 were eliminated. Paragraph 2 of the
circular further directed that those promoted to Grade C in
the scale of Rs.205280 as on April 1, 1966 will be assigned
seniority amongst themselves in the order of their inter se
seniority in Grade of Rs. 180-240 for the purposes of con-
firmation in that grade and also for further advancement and
they will rank senior to those recruited as apprentice Train
Examiners with five years training and appointed after
1.4.1966 in the Grade of Rs. 205-280. The result of the
circular was that all those promotees who had been appointed
to Grade D prior to 1.4. 1966 stood absorbed in Grade C and
they were granted seniority in that Grade with retrospective
effect viz. with effect from April 1, 1966.
Later the Railway Board took a policy decision to abol-
ish the entry Grade D of Train Examiners in the pay scale of
Rs. 180-240, and in order to implement that decision it
issued circular/letter No. PC-69-PS-5 TR-1, New Delhi dated
30th October, 1972, abolishing the entry Grade D of Train
Examiners and placing the incumbents of that Grade en masse
in Grade C in the scale of Rs.205-280 with effect from
1.11.1972. Paragraph 2 of the circular directed that the pay
of the staff brought from Grade D (Rs. 180˜240) to Grade C
(205-280) will be fixed under Rule 2017 A(III) read with
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Rule 2019 II. As all the incumbents of Grade D in the scale
of Rs. 180-240 were placed en masse in the higher grade C in
the scale of Rs.205-280, a provisional seniority list of
Grade C Train Examiners working in Delhi Division was pre-
pared on 16th November 1981. In that seniority list peti-
tioners
1027
were shown senior to some of the respondents as the seniori-
ty was not determined in accordance with Rule 302 of the
Railway Establishment Manual. This seniority list was not
prepared in accordance with the prescribed criteria as had
been done in other divisions. The Railway Board issued a
circular No. E(NG) 1-80-SR6-39 dated 28.11. 1981 directing
that Delhi Division should also fall in line with other
divisions of Northern Railway and the seniority of the Train
Examiners appointed between 1.4.1966 to 1.11.1972 should be
prepared in accordance with the existing practice viz. on
the basis of the date of appointment in particular grade. In
pursuance to that direction seniority of Train Examiners of
Grade C placed in that Grade between 1.4. 1966 to 1.11. 1972
was published in 1981 by the authorities of the Delhi Divi-
sion of Northern Railway. After inviting objections, the
seniority list was finally published in December, 1982. In
that seniority list the petitioners were shown junior to
Respondents Nos. 5 to 10, who were placed above the peti-
tioners. Aggrieved the petitioners have challenged the
validity of the seniority list also by raising additional
grounds in the writ petitions.
Before we consider the submissions made on behalf of
petitioners it would be appropriate to refer to comparative
position of petitioners and the respondents Nos. 5 to 10
with regard to their date of entry in service as Train
Examiners in Grade D and Grade C. The relevant position is
as under:
Name Date of entry
Grade D Grade C
Rs. 180-240 Rs.205-280
1. Yashbir Singh, Petitioner. 29.4.1986 1.11. 1972
2. I.M. Lal Tandon, Petitioner. 19.6.1966 1.11. 1972
3. Hira Lal Kapoor, Petitioner. 29.4.1966 1.11. 1972
4. Harbhaj an Singh, Petitioner. 16.8.1966 1.11.1972
5. Som Dutt Sharma, Petitioner. 29.4.1966 1.11.1972
6. A.K. Sharma, Respondent 5, -- 5. 9.1967
7. V.K. Chandhok, Respondent 6, -- 25. 2.1968
8. R.N. Verma, Respondent 7, -- 10. 8.1968
9. B .D. Maglani, Respondent 8, -- 22. 4.1969
10. Dev Raj Sharma, Respondent 9, -- 21. 5. 1970
11. K.N.Sharma, Respondent 10, -- 9. 2.1971
The above chart shows that Respondents Nos. 5 to 10 who be-
1028
long to group of apprentice Train Examiners were directly
placed to working posts in Grade C after completion of five
years training in accordance with the Railway Board’s circu-
lar dated 2nd July, 1970, on the respective dates shown in
Column 3, which indicates that each one of them had been
placed in Grade C prior to 1.11. 1972, while the petitioners
were placed in Grade C with effect from 1.11. 1972, in
pursuance of the Railway Board’s circular dated 30.10. 1972.
Since the Respondents Nos. 5 to 10 were appointed to Grade C
earlier in time and as the petitioners were placed in Grade
C later, they. were shown junior to the Respondents in the
seniority list. No valid objection can be raised against
respondents’ seniority. Further in the seniority list all
those promotees who had been placed in Grade C with effect
from April 1, 1966 under the Railway Board’s circular dated
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July 2, 1970 were shown senior to the petitioners. Since the
petitioners were not granted seniority with retrospective
effect in Grade C as was done in the case of those who were
promoted under the Circular dated July 2, 1970 they have
assailed the Constitutional validity of Railway Board’s
circular dated July 2, 1970.
Learned counsel for the petitioners contended that the
Railway Board’s circular dated July 2, 1970 was illegal and
unconstitutional for variety of reasons. Firstly, the Rail-
way Board had no authority in law to grant seniority with
retrospective effect to all those promotees who had been
placed in Grade C with effect from April 1, 1966 in pursu-
ance of the circular dated July 2, 1970. Secondly, the
Railway Board practised discrimination between the promotees
forming the same class of Grade D with regard to seniority
in Grade C. He contended that under the circular dated July
2, 1970 promotees belonging to Grade D (like the petition-
ers) were granted seniority in Grade C on their promotion to
that grade with retrospective effect from the date of their
appointment in Grade D and not from the date of their ap-
pointment or placement in Grade C whereas the petitioners
who form the same class have not been granted the same
benefit, instead their seniority has been determined with
effect from the date of their entry in Grade C. The peti-
tioners and all those who had been appointed in Grade D
prior to April 1, 1966 and promoted to Grade C formed the
same class and yet they have been treated differently with-
out any rational basis. The petitioners were also recruited
in 1966 and they all had completed service of more than 4
years approximately as Train Examiners in Grade D on Novem-
ber 30, 1972 when the circular was issued but they have not
been given seniority in Grade C with retrospective effect as
was done under the circular dated July 2, 1970.
1029
We have given our anxious consideration to these submis-
sions but we do not find any merit in the same. The peti-
tioners have challenged validity of the Railway Board’s
circular dated July 2, 1970 in 198 1 after 11 years. All the
petitioners were in service on the date that circular was
issued and they were aware that their colleagues (promotees
belonging to Grade D) were placed in Grade C and they had
been granted seniority with retrospective effect but none of
them challenged the validity of the circular. Now petition-
ers cannot be permitted to challenge the validity of that
circular after 11 years. If the petitioners were aggrieved
by the Railway Board’s circular dated July 2, 1970 they
should have challenged the same within a reasonable period
of time which they did not do so. It is well settled that
anyone who may feel aggrieved with an administrative order
or decision affecting his right should act with due dili-
gence and promptitude and not sleep over the matter. Raking
of old matters after a long time is likely to result in
administrative complications and difficulties and it would
create insecurity and instability in the service which would
affect its efficiency. The petitioners are therefore not
entitled to challenge the validity of the Railway Board’s
circular dated July 2, 1970 after 11 years and their chal-
lenge is bound to fail on this ground alone.
We have considered the merit of the submission also but
we find no legal or constitutional infirmity in the Circular
dated July 2, 1970. There was increase in the work of car-
riage and wagons examination, as more complicated type of
rolling stock was available with the Indian Railways. In
order to reorganise the cadre of Train Examiners and to cope
with the increased work load the Railway Board by its noti-
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fication dated 27th October, 1965 reorganised the cadre. It
directed that vacancies in Grade D were to be exclusively
filled by promotion from amongst skilled artisans and direct
recruits were to be appointed straightaway to Grade C after
completion of training of five years. Validity of the noti-
fication was challenged before this Court in Roshan Lal
Tandon’s case and the implementation of the circular was
stayed. This Court struck down only a portion of the notifi-
cation which has been extracted in the earlier part of this
judgment but the rest of the directions contained in the
notification remained unaffected, including the direction
that with effect from April 1, 1966 all the Train Examiners
on successful completion of their training should be
straightaway brought on to the scale of Rs.205-280 instead
of being first absorbed in Grade D. Similarly further direc-
tion that those apprentices who were undergoing training on
April 1, 1966 shall undergo five years’ training instead of
four years and during their training they would receive
1030
stipend in the scale of Rs. 180-2 10 and after completion of
their training they will straightaway be appointed to Grade
C. After the judgment of this Court, the Railway Board
reconsidered the matter and with a view to implement the
decision of this Court and to further carry out its policy
of reorganisation as initiated under its circular dated
October 27, 1965 it issued directions under its circular
dated July 2, 1970, which is as under:
"GOVERNMENT OF INDIA
MINISTRY OF RAILWAY
(RAILWAY BOARD)
No. E(NG) i/69/PMI- 180 New Delhi
Dated 2nd July 1970
The GMs.
All India Railways.
Sub: Procedure for filling up posts of TXRs upgra-
dation of.
Ref. Rly. Boards letter No. E (NG)
165 PMI-86 dated 27.10.1965 and 13.9.1968. The
Board have been receiving representations from
the staff working in the category of TXRs in
scale Rs. 180-240 (AS) against the procedure
prescribed for filling vacancies arising out
of upgradation of 50% of posts in scale Rs.
180-240 (AS) to Rs.205280 w.e.f. 1.4.1966. It
has been decided in modification of previous
orders that all the TXRs working in Grade
180240 consisting of both App. TXRs. of 4
years Trg. and promotees from ranks as on
1.4.1966 should be promoted en masse to the
grade Rs.205-280 irrespective of the quota of
vacancies reserved for promotees, the excess
to the permissible re-organised cadre strength
in the grade Rs.205-280 being worked off
gradually by wastage such as retirement etc.
in grade Rs.205-280 (AS).
After 1.4.1966 50% of the vacancies
arising in grade Rs.205-280 should be main-
tained in that grade and the remaining 50%
will be down graded to the scale of Rs. 190240
to be filled by promotion of skilled artisans.
The 50% of the vacancies in grade Rs.205-280
(AS) should be filled by direct recruitment of
App. TXRs with 5 years training to the extent
of 80% thereof and the remaining 20% by pro-
1031
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 15
motees from grade Rs. 180-240 as laid down in
paragraph 1 (ii)(a) of Board’s letter No.
E(NG) 165 PMI-86 dated 27.10.1965. This proce-
dure will continue to be followed till the
cadre position is normalised and the excess in
the grade of Rs. 205-280 eliminated.
(2) The staff promoted to the grade Rs.205-280
as on 1.4.1966 will be assigned seniority
amongst themselves in the order of their
inter-se-seniority in the grade Rs. 180-240
for the purpose of confirmation in that grade
and also for further advancement. They will
all rank senior to those recruited as App.
TXRs with 5 years Trg. and appointed after
1.4.1966 to the grade Rs.205-280.
(3) The above instructions may please be
implemented immediately and a report submitted
to the Board in due course.
Pl. ack. receipt
Sd
-
(O.D.S
harma)
Asstt.
Director(E) Rly Board"
The circular issued three directions, firstly, it directed
that all the Train Examiners working in Grade 180-240 con-
sisting of both apprentice Train Examiners and promotees
from rank as on April 1, 1966 should be promoted en masse to
Grade C irrespective of quota reserved for promotees. Sec-
ondly, it directed that after April 1, 1966 vacancies in
Grade C to the extent of 50 per cent should be maintained in
that Grade while the remaining 50 per cant should be down
graded to Grade D to be exclusively filled by promotion of
skilled artisans, it further directed that 50 per cent of
the vacancies in Grade C should be filled up by direct
recruitment of apprentices with five years training to the
extent of 80 per cent thereof and remaining 20 per cent of
vacancies from Grade D. Thirdly, it issued direction with
regard to assigning seniority to the staff promoted to Grade
C on April 1, 1966. They were to carry their inter se sen-
iority in Grade D for the confirmation and also for further
advancement. It further directed that the promotees will
rank senior to the direct recruits in Grade C appointed
after April 1, 1966.
These directions were issued with the object and purpose
of achieving the reorganisation which had been initiated by
Railway
1032
Board under its circular dated October 27, 1965. The scheme
of reorganisation of cadre as contemplated by the circular
dated October 27, 1965 was to be carried out with effect
from April 1, 1966 and that date was followed by the Railway
Board in its circular dated January 2, 1970. The petition-
ers’ submission that the date April 1, 1966 was fixed in
arbitrary manner without any basis is untenable. The promo-
tees who were placed in the higher Grade C with effect from
April 1, 1966 were undoubtedly senior to the petitioners in
Grade D, none of the petitioners’ rights were affected by
their promotion. The reorganisation of the cadre of Train
Examiners and the promotion to Grade C could not be complet-
ed on account of the pendency of Roshan Lal Tandon’s case in
this Court and the stay orders issued therein. After the
decision of this Court the Railway Board implemented the
scheme and it made promotion with retrospective effect. As
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the promotion to Grade C had been stayed, during the penden-
cy of the writ petition in this Court the Railway Board was
justified in granting promotion with effect from April 1,
1966 as initially reorganisation was proposed to be imple-
mented with effect from that date as is clear from Railway
Board’s notification dated October 27, 1965. The Railway
Board promoted the staff with retrospective effect because
on account of stay orders issued by the Court those entitled
to be promoted with effect from April 1, 1966 could not be
promoted. The petitioners cannot claim parity with those who
had been promoted to Grade C under the Railway Board’s
circular dated July 2, 1970 as they do not belong to that
class. Equality can be claimed among equals and not with
unequals. Those persons who had acquired right of promotion
under the Railway Board’s notification dated October 27,
1965 could not be promoted on account of litigation, they
formed a distinct class and the petitioners cannot equate
themselves with them as they were not entitled to promotion
under the notification dated October 27, 1965. The petition-
ers have no right in law to claim similar treatment. There
is therefore no merit in the petitioners’ plea of discrimi-
nation. Validity of the Railway Board’s circular dated July
2, 1970 on the ground of it being discriminatory was raised
before the Delhi High Court in writ petition No. 1147 of
1971, Chaman Lal and others v. Union of India and others
decided on May 20, 1980. A Division Bench of that Court
upheld its validity. In another writ petition No. 2834 of
198 1 Kewal Krishan v. Union of India and others again the
validity of Railway Board’s circular dated July 2, 1970 as
well as the validity of Railway Board’s circular dated
January 28, 1981 was upheld by a Division Bench of the Delhi
High Court on December 15, 1981.
Learned counsel for the petitioners challenged the validity
of the
1033
Railway Board’s circular dated November 1, 1981 which di-
rected the. Delhi Division to fall in line with other divi-
sions of Northern Railways for determining the seniority of
Train Examiners. It appears that seniority of Train Examin-
ers in Grade C working in other Divisions of Northern Rail-
way was determined, from the date of appointment in that
Grade, in accordance with Rule 302 of the Railway Establish-
ment Manual but in Delhi Division that practice was not
followed. The Railway Board directed the Delhi Division to
fall in line with other divisions in determining the senior-
ity of Train Examiners. Learned counsel for the petitioners
urged that since under the Railway Board’s circular dated
October 30, 1972 the petitioners were placed en masse in
Grade C in the scale of Rs.205-280 they are entitled to
seniority with effect from the date of their appointment in
Grade D and if that be so, they would rank senior to Re-
spondents Nos. 5 to 10 who were appointed later in time. At
this stage it would be profitable to have a glance at Rail-
way Board’s circular dated October 30, 1972 which is as
under:
"GOVERNMENT OF INDIA
MINISTRY OF RAILWAYS
(RAILWAY BOARD)
No. PC-69/PS-5/TR- 1 New Delhi dated 30.10. 1972
The General Managers,
All India Railways.
Sub: Upgrading of the initial scale of pay of Train
Examiners on Railways.
Ref: Board’s letters No. (1) E(NG) 65 PMI ’86 dated
27.10. 1965.
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(ii) No. E (NG) 165 PMI 86 dated 13.9. 1968.
(iii) No. E(NG) 1-69 .PM/-1/130 dated 2.7. 1970.
The Board have considered the commu-
nications received from the National Federa-
tion of Indian Railwaymen and the All India
Railwaymen’s Federation regarding the proce-
dure prescribed for filling and maintenance of
vacancies in the Train Examiners’ cadre as
envisaged in the above mentioned letters and
more particularly their demand for abolition
of the grade of Rs. 180-240. It has now been
decided in modification of existing orders
that the
1034
initial grade of TXRs, viz. Rs. 180-240 should
be abolished and all the TXRs working in that
grade should be placed en masse in the grade
Rs.205-280 w.e.f. 1.11. 1972. It has been
decided that vacancies in grade Rs.205-280
should hereafter be filled in the following
manner:-
(i) 40% of vacancies to be filled by
promotion or Artisans;
(ii) 20% of vacancies to be reserved for
existing Artisans going as Apprentice TXRs,
with age relaxation upto 35 years; and
(iii) 40% of vacancies to be filled by
direct recruitment of Apprentices TXRs from
the open market through Railway Service Com-
missions.
2. Pay of the staff brought on from grade Rs.
180-240 (AS) to Grade Rs.205-280(AS) will be fixed under
Rule 2017(a)(ii) read with rule 2019 PII.
3. This has the approval of the President.
Sd/-
(R.S. Bharal) Dy. Director, Establishment (P & A)
Railway Board
No. PC-69/PS 5/TP-1 New Delhi dated 30.10.72
Copy of the FA & CAOS, and Chief Auditors of All Indian
Railways.
Sd/-
(R.S. Bharal) Dy. Director,
Establishment (P & A)
Railway Board."
By the aforesaid circular the entry grade of Train
Examiners in the scald of Rs. 180-240 was abolished and all
the Train Examiners working in that Grade were placed in the
scale of Rs.205-280 with effect from November 1, 1972. In
pursuance to that decision, petitioners were included in
Grade C with effect from November 1, 1972 and
1035
therefore they are entitled to seniority with effect from
that date in Grade C. In the absence of any statutory rule
or directions petitioners are, not entitled to claim senior-
ity in Grade C with reference to the date of their appoint-
ment in Grade D. The chart indicating respective dates of
entry of petitioners and the Respondents 5 to 10 in Grade C.
as extracted in the earlier part of the judgment would show
that Respondents Nos. 5 to 10 were appointed in Grade C
earlier in time than the petitioners, therefore they are
entitled to be senior to the petitioners. It is not disputed
that Rule 302 of the Railway Establishment Manual lays down
a general rule for determining seniority from the date of
appointment in a particular grade and the petitioners have
not placed any rule or instruction before us to support
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their case. Seniority ordinarily reflects length of service
in a particular cadre or grade. It is generally regulated by
service rules or in the absence of Rules by executive in-
structions. By and large, such rules provide for determining
seniority with reference to the date of appointment but
there are instances where rules provide for determining
seniority with reference to date of confirmation. Normally,
when a person is promoted or placed in a higher grade his
seniority is determined with reference to the date of such
promotion or placement unless the relevant rules provide to
the contrary. Seniority in the lower grade has no meaning
for determining seniority in the higher grade except for
determining inter se seniority of promotees. Rule 302 con-
tains a general Rule and there is no exception to it. In the
absence of any contrary provision in the Rules, the general
rule of seniority as laid down by Rule 302 must prevail.
Learned counsel then urged that the seniority list of
Grade D had been prepared in 1968 and in that seniority list
petitioners were shown senior to some of the respondents and
that seniority could not legally be disturbed. It appears
that in the seniority list prepared in 1968 the names of
some of the respondents was shown in Grade D on the assump-
tion that they held posts of Train Examiners in that Grade.
It was done on a wrong assumption. Admittedly, the Respond-
ents Nos. 5 to 10 were apprentices who were undergoing
training, and in accordance with the directions contained in
the Railway Board notification dated October 27, 1965 they
were entitled to appointment in Grade C straightaway on
completion of their training. They were no doubt drawing
stipend at the rate of Rs. 180-240 which was the scale
prescribed for Grade D but nonetheless they did not belong
to Grade D as they were not appointed to any of the posts in
that Grade. Their names therefore could not be included in
the seniority list of Grade D. Petitioners cannot draw any
advantage from the mistake committed in
1036
including the Respondents name in the seniority list of
1968.
Learned counsel then urged that Hira Lal Kapoor, one of
the petitioners was promoted on June 23, 1981 on the basis
of his seniority in Grade D, therefore, other petitioners
are also entitled to their seniority with effect from the
date of their appointment in Grade D. In the written submis-
sion filed on behalf of Respondents it is stated that the
Deputy Regional Manager of Delhi had granted promotion to
H.L. Kapoor on June 2, 1981 on ad-hoc and temporary basis.
On receipt of representations and. protests from Respondent
No. 5 Ashok Kumar Sharma and the General Secretary. Northern
Railway Men’s Union, order of promotion issued in favour of
H.L. Kapoor was cancelled and Sh. A.K. Sharma, Respondent
No. 5 was promoted. Since the petitioners were placed in
higher Grade C with effect from November 1, 1972 they are
entitled to seniority with reference to date of their place-
ment in that Grade and they have no legal right to claim
seniority in that Grade against those who were appointed to
that Grade before November 1, 1972.
Learned counsel for the petitioners referred to Lok
Sabha questions asked by Sh. Suraj Bhan, M.P. and the an-
swers given to those questions with regard to seniority of
direct recruits and promotees, (Annexures K of the
petition). The petitioners have asserted that in reply to
the Lok Sabha questions, it was clearly stated by the Rail-
way Administration that direct recruit Train Examiners
posted on working posts before November 1, 1972 in Grade C
in the scale of Rs.205-280 will not be treated senior to the
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Train Examiners promoted en masse with effect from November
1, 1972. In the counter affidavit filed by the respondents
it is stated that the reply to the Lok Sabha questions as
contained in Annexure K to the petition is of no relevance
as the said questions were not admitted at all and no reply
was given by the Railway Board. It appears that the General
Manager had prepared a draft reply to the Lok Sabha ques-
tions but the reply had not been finalised by the Railway
Board which is the competent authority. The Railway Board
could have modified the draft of the reply as prepared by
the General Manager but since the question was not admitted
no reply was sent to the Lok Sabha. The petitioner can
therefore draw no support from Annexure K to the petition.
Learned counsel for the petitioners then urged that the
petitioners were not promoted to Grade C instead they were
placed en masse in Grade C on the abolition of Grade D
therefore the date of their seniority should not be deter-
mined from the date of their placement in
1037
Grade C instead they are entitled to their seniority with
reference to the date of their appointment in Grade D. He
placed reliance on the directions, contained in paragraph 2
of the Railway Board’s circular dated October 30, 1972 that
the petitioners’ salary in Grade C shall be fixed in accord-
ance with Rule 2017 R-II read with rule 2019-II. He urged
that if the petitioners were treated to have been promoted
to Grade C with effect from November 1, 1972 in that case
their salary could have been fixed in accordance with Rule
2018 (R-II) (PR-22/C). It is true that the petitioners were
not promoted from Grade D to Grade C instead Grade D was
abolished and the petitioners and all other incumbents
holding posts in Grade D were placed en masse in Grade C and
the Railway Board issued directions that their salary shall
be fixed in accordance with the Rule 2017 read with Rule
2018 (R-II) (PR-22/C). Whether petitioners were promoted to
Grade C or whether they were placed en masse in that Grade
does not make any difference so far as their entry to Grade
C is concerned, in either case, they entered Grade C with
effect from November 1, 1972. Reference to a particular rule
for determining their pay in the higher grade cannot change
the criteria for determining seniority. The Railway Board
had never issued any direction for determining the petition-
ers seniority with reference to their date of appointment in
the initial entry grade. The petitioners have failed to show
that any person junior to them has been made senior to them.
Their grievance is without any substance.
In view of the above discussion we find no merit in the
petitions. We accordingly dismiss the same with costs. All
interim orders stand discharged.
S.L. Petitions
dismissed.
1038