GANGA RAM & ORS. versus UNION OF INDIA & ORS.

Dua, .l. Out of the five petitioners in this petition under Art. 32 of the Constitution Kashmiri Lal, petitioner no. 5 having since retired, is no longer interested in the result of these proceedings. The claim of only four petitioners thus survives for consideration. They are officiating clerks/Grade l, in the o.flice of Deputy Chief Accounts Officer (Traffic Accounts Branch) Northern Railway. They were promoted from G~ade II after passing the <jepartmental qualifying examination descnbed as Appendix 2 examination. They claim that their seniority should be determined as from the date of their appointment as officiating clerks Grade I and not on the basis of their position in the gradation list of Clerks, Grade IL Their grievance is that they were appointed as officiating clerks Grade I, after passing the Appendix 2 examination long before respondents 4 to 6 and 11 but these four respondents are shown as senior to the petitioners on the ground of their seniority in Grade II. The petitioners seek to supJ)Ort their claim by relying on Arts. 14 and 16 of the Constitution. The seniority of the direct recruits to Grade I, the petitioners complain, is determined on the basis of their appointment, whereas the seniority of the petitioners, who are promotees from Grade II to officiate in Grade I, continues to be determined on the basis of their seniority in Grade TI. It is emphasised that both the direct recruits and the promotees, like the petitioners, have to pass the Appendix 2 examination. But their seniority is determined by differnnt methods. It is further complained that Grade TI clerks who pass the qualifying Appendix 2 examination are not promoted immediately. They have to wait till a vacancy occurs and even at the time of filling the vacancy the seniormost qualified clerk is selected for promotion without giving any preference to those who have qualified earlier in point of time. Again, when a permanent post falls vacant all the eligible clerks in Grade II are considered at par without giving any credit or preference to those who have already officiated as Clerks, Grade I. A juni!lr clerk, Grade II, qualifying earlier, according to the petitioners' grievance, continues to remain junior for !he purpose of promotion and confirmation in the permanent post in Grade I and a senior clerk, Grade II, . qualifying later retains his seniority for this purpose. Similarly, in filling leave vacancies it is complained that if a clerk is appointed to officiate in short term leave vacancy, then on the return of the incumbent o.f the post, instead of reverting the clerk so appointed to officiate, the junior-most according to the gradation list in Grade II, officiating in Grade I, is reverted even though he may have qualified earlier than the former and may also have officiated for some time against a regular post in Grade I. The petitioners' right of equality before the Jaw and equality of opportunity in matters of public employment is stated thus to have been violated.

pp. 482–483, margin D

The right of equality is guaranteed by Arts. l 4 to 16 of our Constitution. The petitioners rely on Arts. 14 and 16(1). Article 14 is an injunction to both the legislative and the executive organs of the State and other subordinate authorities not to deny to any person ~qu.ality before the law or the equal protection of the laws. Article' 16 is only an instance of the general rule of equality laid in Art. 14. Sub-Article (1) of Art. 16 guarantees to every citizen equality of opportunity in matters of public employment thereby serving to give effect to the equality before the law guaranteed by Art. 14.

p. 483, margin D

The equality of opportunity in the matter o( services undoubtedly takes within its fold all stages of service from initial appointment to its termination including promotion but it does not prohibit the prescription.of reasonable rules for selection and promotion, applicable to all members of the classified group. Mere production of inequality is not enough to attract the constitutional inhibition because every classification is likely in some degree to produce some inequality. The State is legitimately empowered to frame rules of classification fo!· securing the requisite standard of efficiei'lcy in services and the cl~ssification need not be scientifica•Jy perfect or logically complete.

p. 483, margin F

In applying the wide language of Arts. 14 and 16 to concrete cases a doctrinaire approach should be avoided and the matter considered in a practical way. of course, without whittling down the equality clauses. •l84 (1970]3

pp. 483–484, margin G

The cla~sification, in order to be outside the vice of inequality, must, however, be founded on an intelligible differeiltia which on rational grounds distinguishes persons grouped together from those left out.

p. 484, margin A

The differences which warrant a classification must be real and substantial and must bear a just .and reasonable relation to the object sought to be achieved. If this test is satisfied then the classification cannot be hit by the vice of inequality. It is in the background of this broad principle that the petitioners' grievance is to be considered.

p. 484, margin A

The relevant provisions in the Indian Railways Establishrhent Manual directly applicable to the petitioners' case may now be seen. They are contained in paras 48 and 49, Chapter I, Section and paras 16 and 20(b) of Chapter II. As the petitioners also rely upon paras l 7 to 19 and 21 of Chapter II in support of the argument that para 20(b) is discriminatory it is desirable to reproduce all these paragraphs.

p. 484, margin C

"48. The classes included in this group and the normal channel of their promotion are as under·:i----------1----· __ , I_ I I I I I :-

pp. 484–485, margin D

18-25

p. 485, margin A

Directly recruited Clerks, Grade I, will be on probation for one year and will be eligible for confimation only after passing the prescribed departmental examination in Appendix 2. Necessary facilities will be given to them to enable them to acquire a working knowledge of the rules and procedure.

p. 485, margin A

49. Such of the Clerks, Grade II, as qualify in the departmental examination as prescribed in Appendix 2 or those who may have been permanently exempted from passing the said examination will be eligible for promotion as Clerks, Grade I, and sub-heads. They will be eligible for a minimum starting pay of Rs. 150 per month or will be granted four advance increments on promotion to Grade I after their pay has been fixed under the ordinary rules. Promotion to the grade of Sub-Heads will be by seniority-cum-suitability.

p. 485, margin C

CHAPTER II

p. 485, margin D

"17. Subject to what is stated in paragraphs 18 and 19 below, where the passing of a departmental examination or trade test has been prescribed as a condition precedent to the promotion to a particular non-selection post, the relative seniority of the railway servants passing the examination/test in their due turn and on the same date or different dates which are treated as one continuous examination, as the case may be, shall be determined with reference to their substantive or basic seniority.

p. 485, margin E

18. A railway servant who, for reasons beyond his control is unable to appear in the examination/test in his turn along with others, shall be given the examination/test immediately he is available and if he passes the same, he shall be entitled for promotion to the post as if he had passed the examination/test in his turn.

p. 485, margin F

19. Seniority for promotion as Junior Accountants, Junior Inspectors of Station or Stores Accounts :-

p. 485, margin G

Seniority for promotion to the. rank of junior accountant or junior inspector of Station or Stores Accounts should count entirely according to the date of passi the examination qualifying for promotion to those ranks. Candidates who pass the examination in a year are ipso facto seniLlr to chose who qualify in subsequent years irrespective of their relative seniority before passing the examrnation. In the ca>c of staff of Ex-Company Railways, who are exempted from passing the examination, the date on which they are declared lit for promotion to the rank of Accountant or Inspector should be considered as the date of their passing. On receipt of the result of the above examination each railway administration should immediately hold a selection test of the candidates declared successful along with any eligible ex- Company or ex-State Railway Staff, who may be asked to appear before the selection board in accordance with the procedure laid down by the Railway Board from time to time. While the selection board will determine in the case of the ex-Company or ex-State Railway staff, their suitability for promotion as accountant/Insp~ctor before placing them on the panel, no candidate who has qualified in the said examination will be declared ineligible for promotion as a junior Accountant/Inspector, the selection board only assigning a suitable place to each such candidate in order of merit. The staff placed on the panel in any year wiJI rank senior to those empanelled in subseq11ent years.

pp. 485–486, margin H

20. Date of passing the Departmental Examinmion/ Test to regu/.ate seniority :-

p. 486, margin E

(a) Except as provided for in sub-paragraph (b) below, seniority of two or more railway servants, who pass the departmental examination/test on different dates, not treated as one continuous examination, will be regulated entirely qy the date of passing the examination or test.

p. 486, margin E

(b) The seniority of Accounts Clerks, Grade I and Stock Verifiers is to be determined with reference to· their substantivt! or basic seniority in Grade II irrespective of the dates they qualify for promotion as Clerks Grade I by passing the examination prescribed for the purpose.

p. 486, margin F

21 . Seniority on promotion to non-selection posts :-

p. 486, margin F

Promotion to non-selection posts shall be on the basis ~·~ se_niority-cwn-suitability being judged by the authority corhpetcnt to fill the post, by oral and/or written test or a departn1ental examination as considered ne: cessary and the record Of service. The only exception to this would be iu cases where for administrative convenience, which should· be recorded in wr:ting, the competent author.ty considers ii u;:e>sary to app<'iut a railway servant otli~r than the seniormoc.t suitable railway servant to o•~c;qte in a short term v~cancy not exc~eding two 1non~: as a rule ,and 4 inonths in µny case. This \Viii. hO\\.·ever, not give the rail\i.·ay servant

pp. 486–487, margin H

a~y·advantage not otherwise due to him." Appendix 2, in addition 'lo the syllabus for the examination provides:

p. 487, margin B

. "3. The examination will.be-qonducted by the Head of-each office, who will also decide the intervals at which it should be held.

p. 487, margin C

4. (l!) .Normally no railway ser\"dnt will be permitted to take the examination more than ihree, but the Financial Adviser and Chief Accoupts Officer may in deserving cases -premit a candidate to take the examination for a fourth time, and, in very exceptional cases, the General Manager may permit a candidate to take the examination ~or the fifth .and the last time. ~,, (b) No railway servant, who'lfas less'than six months" service in a Railway Accounts' Office or who has not a reasonable chance of passirg the examination will be allowed to ,'jppear in ·the cxarpination prescribed in this Appendix.

p. 487, margin C

In exc~ptional circumstances, the ·condition regarding six months' minimum service may be waived by the General Manager.

p. 487, margin C

(c) Temporary railway servants may be permitted to sit for the examination but it should be clearly understood that the passing of this examination will not give them ~ claim for absorption in t~e permanent cadre.

p. 487, margin F

(d) A candidate who fails in the examination but shows marked excellence by obiaining not less than 50% in any subject may be exempted from further e.xamina-

p. 487, margin F

tion in that subject in subsecj1/ent examination." It is quite clear that para 49 does l)Ot confer any right to immediate promotion on those Grade II'.c!erks who pass the qualifying Appendix 2 examination. The Only benefit which accrues to them is that one hurdle is removed from their way and they become eligible for being considered for promotion to Grade I. This promotion is governed by the test of seni'}rity-cum-suitability. AIJ those who qualify for promotion are treated at par fov this purpose and they are grouped together as constituting one class. The fact that one person has qualified earlier in point of time does not by itself clothe him with a preferential claim to promotion as againsi those who qualify later. This examination is cQilsidered to be a continuous examination and as is clear from para 17 success at this examination does not constitute the basis of seniority which continues to be dependent on the substantive or basic seniority in Grade II. The question which directly arises for determination is : does the procedure laid down in these instructions violate: the petitioners' right as guaranteed by Arts. 14 and 16 ? The State which encounters diverse problems arising from a variety of circumstances is entitled to lay down conditions of efficiency and other qualifications for securing the best service for being eligible for promotion in its different departments. In the present case the object which is sought to be achieved by the provisions reproduced earlier is the requisite efficiency in the Accounts Department of the Railway establishment. The departmental authority is the proper judge of its requirements.

pp. 487–488, margin F

The direct recruits and the promotees like the petitioners, in our opinion, clearly constitute different classes and this classification is sustainabie on intelligiQ!e differentia which has a reasonable connection with the object of efficiency sought to be achieved. Promotion to Grade I is guided by the consideration of senioritycum-merit. It is, therefore, difficult to find fault with the provision which places in one group all those Grade II clerks who have qualified by passing the Appendix 2 examil)ation. The fact that the promotees from Grade II who have officiated for some time are not given the credit of this period when a permanent vacancy arises also does not attract the prohibition contained in Arts. 14 and 16. It does not constitute any hostile discrimination and is neither arbitrary nor unreasonable. It applies uniformly to all members of Grade II clerks who have qu;tlified and become eligible. The onus in this case is on the petitioners to establish discrimination by showing that the classification does not rest upon any just and reasonable basis. The difference emphasised on behalf of the petitioners is too tenuous to form the basis of a serious argument. Their challenge, therefore, fails.

p. 488, margin D

The decision in Mervyn Coutindo v. Collector of Customs, Bombay(') on which reliance has been placed on behalf of the petitioners dealt with a different problem though the principle S.C.R. of law laid down there seems to go against the petitioners' submission. It was expressly observed that there is no inherent vice in the principle of fixing seniority by rotation in a case when a service is composed in fixed proportion of direct recruits and promotees. The distinction between direct recruits and promotees as two sources of recruitment being a recoginised difference, nor obnoxious to the equality clauses, the provisions which concern us cannot be struck down on the ratio of this decision.

pp. 488–489, margin G

The petition accordingly fails and is dismissed but without costs. G.C. Petition dismissed

p. 489, margin B