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indradeo A. Deshmukh Vs. Manohar (N.Y.) and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberMiscellaneous Petition No. 321 of 1964
Judge
Reported in(1967)ILLJ811Bom
ActsConstitution of India - Articles 14 and 16
Appellantindradeo A. Deshmukh
RespondentManohar (N.Y.) and anr.
Excerpt:
.....and 16 of constitution of india - order of classification regarding seniority of temporary grain shop staff on absorption in other department challenged - impugned order contrary to fundamental rights guaranteed under articles 14 and 16 - classification not based on any rational or reasonable distinction - order discriminates in favour of certain class - order ultra vires and unconstitutional - impugned order liable to be quashed. - - (in which he had already been confirmed). it is this order dated 2 july, 1964 by which the petitioner in this petition and the challenge principally is on the ground that this reversion was brought about as a result of revision of seniority that was brought into effect following the railway board's orders or directives dated 2 november, 1957 and 13..........and fixation of seniority of employees who were directly recruited and appointed in the grain shop department of the central railway, to which category of recruits the petitioner belongs. the impugned orders or directives of the railway board are dated 2 november, 1957 and 13 january, 1961 whereby a distinction has been made in the aforesaid matters of absorption and fixation of seniority between (1) temporary staff who were appointed in the permanent departments initially and then transferred to the grain shop department, (2) temporary staff recruited for a permanent department but appointed to the grain shop department (through the staff selection board or joint selection board) on the one hand, and (3) temporary staff recruited and appointed directly to the grain shop department.....
Judgment:

1. The short question raised by this petition relates to the matter of absorption and fixation of seniority of employees who were directly recruited and appointed in the grain shop department of the Central Railway, to which category of recruits the petitioner belongs. The impugned orders or directives of the Railway Board are dated 2 November, 1957 and 13 January, 1961 whereby a distinction has been made in the aforesaid matters of absorption and fixation of seniority between

(1) temporary staff who were appointed in the permanent departments initially and then transferred to the grain shop department,

(2) temporary staff recruited for a permanent department but appointed to the grain shop department (through the Staff Selection Board or Joint Selection Board) on the one hand, and

(3) temporary staff recruited and appointed directly to the grain shop department on the other, to the last category of which the petitioner belongs,

and the effect of the two impugned orders or directives has been that whereas in the case of the former two categories of temporary staff their seniority consequent upon their absorption in permanent departments is fixed to the lower post off L.G.T.T.E. (in which he had already been confirmed). It is this order dated 2 July, 1964 by which the petitioner in this petition and the challenge principally is on the ground that this reversion was brought about as a result of revision of seniority that was brought into effect following the Railway Board's orders or directives dated 2 November, 1957 and 13 January, 1961. The petitioner has complained that the two orders off directives of the Railway Board dated 2 November, 1957 and 13 January, 1961 have drastically affected him in the matter of his seniority to his prejudice and the revision of the seniority which was done pursuant of these two orders or directives of the Railway Board has created inequality between the three categories of temporary staff, working in the grain shop department off the Central Railway, the Railway Board's said orders or directive being contrary to the fundamental rights guaranteed to him under Arts. 14 and 16 of the Constitution. It may incidentally be stated that in his petition the impugned orders are also challenged by the petitioner on two, three other grounds, but in my view, it is not necessary to go into those two, three other grounds mentioned by the petitioner in his petition as the petition is capable of being disposed of on this short ground which has been pressed into service by Sri Singhavi on behalf of the petitioner that the impugned orders offend Arts. 14 and 16 of the Constitution. On behalf of the respondents it has been contended that the order dated 2 July, 1964 reverting the petitioner to the post of L.G.T.T.E. cannot be challenged by the petitioner inasmuch as the petitioner had no lien to the higher post in which he was officiating at the material time and that this promotion to the officiating post of S.G.T.T.E. was purely on a temporary basis and when he was promoted to that officiating post on 15 December, 1955 he was clearly given to understand that the said promotion would not confer upon him any prescriptive right for promotion and seniority in preference to his seniors and that such promotion was subject to reversion as and when staff from division reported for duty. It has been further contended on behalf of respondents that the revision of seniority which was effected as a result of the Railway Board's orders or directives dated 2 November, 1957 and 13 January, 1961 was perfectly proper and the orders in that behalf do not offend against Art. 14 or 16 of the Constitution. Sri Singhavi on behalf of the petitioner has, therefore, rejoined by contending that in one of the affidavits filed on behalf of the respondents, being the affidavit of Sri N. Y. Manohar dated 12 November, 1965 in sub-rejoinder, it has been admitted that the petitioner was reverted consequent upon the revision of seniority which was done as a result of the Board's order dated 2 November, 1957 and as such the reversion in the case of the petitioner was not because staff from other divisions reported for duty as is now sought to be made out. Sri Singhavi has pointed out that the order of reversion clearly states that as Sri H. R. Shaikh was reporting for his duty to work as T.T.T. grade Rs. 150-240 (i.e., as S.G.T.T.E.) the petitioner has been reverted and Sri Singhavi has further pointed out that Sri Shaikh was actually much junior to the petitioner according to the original seniority list of temporary staff working in the grain shop department prior to 2 November, 1957 and it was as a result of the Constitution of the seniority being revised in pursuance of the Railway Board's order dated 2 November, 1957 that Sri Shaikh was put as senior to the petitioner. Sri Singhavi, therefore, contended that if the impugned orders were set aside by this Court as offending Art. 14 or 16 of the Constitution the order dated 2 July, 1964 reverting the petitioner will have also to be set aside. In any event, apart from challenging the order dated 2 July, 1964 whereby he was so reverted to a lower post, the petitioner is also challenging the Railway Board's order or directive, dated 2 November, 1957, whereby the revised seniority was brought into force, and Sri Singhavi stated that if the impugned orders were set aside and the petitioner's seniority was counted after taking into consideration his service in the grain shop department from the commencement the petitioner would be satisfied, for if his seniority was so counted the order reverting the petitioner to a lower post will automatically have to be cancelled. The short question, therefore, which falls for determination in the petition is as to whether the Railway Board's orders or directives dated 2 November, 1957 and 13 January, 1961 offend Art. 14 or 16.

2. On this question certain admitted facts may be stated : It appears that during the period of the Second World War as extreme difficulty was experienced in the matter of procurement of essential foodgrains, the Railway Board favoured establishment of grain shops on the several railways operating in the country so that the several railway employees could get foodgrains at cheaper and reasonable rates. Accordingly, towards the end of December, 1941 or beginning of 1942 the Central Railway established grain shop department at various places to enable its employees to get foodgrains at cheap and reasonable rates. It is further common ground that the recruitment to this grain shop department was made from three different channels or categories, viz. :

(1) persons directly recruited to the grain shop department,

(2) persons recruited for permanent departments and who initially worked in the permanent departments and were transferred to the grain shop department, and

(3) persons recruited for permanent departments (either from a common waiting list maintained for grain shops and other departments or through the agency of Railway Service Commission), but straightaway posted to the grain shop department.

3. It is common ground, however, that all these persons were temporary employees of the Central Railway. After the cessation of hostilities with the end of the Second World War, it appears that the Railway Board thought of abolishing these grain shop departments gradually and the Railway Board adopted the policy out of humane considerations that all the temporary staff working in the grain shop departments should be absorbed in one or the other of the permanent departments of the railways. With that end in view the Railway Board issued several communications and directives pursuant to which employees working in grain shop departments were absorbed on a permanent basis in one or the other of the permanent departments of the railways and whenever occasion arose even by creating supernumerary posts. Such absorption led to several problems of various complexities, especially in regard to the sums of pay that were to be drawn by such employees after their absorption and their seniority in the department consequent upon their absorption. On 16 October, 1952 the Railway Board issued a letter No. E16RE1/1/3 in supersession of the earlier orders of the Board contained in the letter dated 6 July, 1949. The Railway Board's letter dated 16 October, 1952 after dealing with the question of protection of pay of the temporary grain shop department staff, which was absorbed in other departments, also dealt with the question of their seniority in the absorbing departments and the Railway Board categorically stated in its said letter as follows :

'They (meaning the temporary grain shop department staff absorbed in other departments) should be given only such seniority which they would have got, had they been absorbed in the absorbing department right from the beginning of service.'

4. Pursuant to this directive which was given by the Railway Board in its said letter dated 16 October, 1952 the seniority of all the temporary grain shop staff which was absorbed in the other departments was accordingly fixed, that is, the same was fixed after taking into account the service of such staff from the commencement of their service in the grain shop department. According to the petitioner, it was in pursuance of this directive that after he was absorbed on 14 May, 1949 in the commercial department that his seniority was fixed at serial No. 2 on the basis of the date of his appointment in the grain shop department, viz., 28 December, 1943 (vide Ex. A to the affidavit of the petitioner in rejoinder dated 20 August, 1965). Incidentally, it may be stated that Sri H. R. Shaikh on whose account the petitioner has been reverted on 2 July, 1964 appears at serial No. 73 in this list. It appears that apart from the petitioner who was working as a temporary staff for the grain shop department, seniority of all the temporary staff working in the grain shop department must have been accordingly fixed in pursuance of the directive contained in the Railway Board's letter dated 16 October, 1952. It is said that at the instance of the National Federation of Indian Railwaymen, who moved the Board and made representations to the Board that the seniority of the staff recruited for the grain shop department and absorbed in the alternative post should be regulated on the basis of their joining alternative posts in the other departments, that the Railway Board in partial modification of its letter dated 16 October, 1952 decided in their orders or directive dated 2 November, 1957 that the seniority of temporary grain shop staff consequent on their absorption in the absorbing department should be regulated on the basis of the date of their actual absorption in those departments, and not on the basis as if they had been absorbed in those departments right from the beginning of their service. The said Railway Board's order or directive, copy whereof has been annexed at Ex. C to the petition, may be quoted :

'GOVERNMENT OF INDIA Ministry of Railways Railway Board No. EGNC. 57/RE1/17 New Delhi, dated 2 November, 1967 To The General Manager, All-India Railways. [Subject. - Seniority of temporary grain shop staff on absorption in other departments.] In partial modification of Para. 2 of their letter No. E48/RE1/1/3, dated 16 October, 1952, the Board have decided that the seniority of temporary grain shop staff consequent on their absorption in the absorbing departments should be regulated on the basis of the date of their actual absorption in those departments and not on the basis as if they had been absorbed in those departments right from the beginning of service. * * *'

5. The issuance of this direction led to some complications in regard to certain individual cases and clarification was sought by the General Managers of Indian Railways and the General Manager of Chittranjan Loco Works, and the Railway Board, therefore, issued its letter dated 13 January, 1961 clarifying the position on the subject of seniority of temporary grain shop staff on absorption in other departments. The letter dated 13 January, 1961 (copy whereof is annexed as part of Ex. C collectively to the petition) may be quoted in so far as it is material for the purpose of the petition :

'Reference : Board's letters of even number dated 2 November, 1957, 12 April, 1958 and 29 July, 1958, on the above subject. The Board have considered the various references received from railway administration out of the seniority of ex-temporary grain shop staff consequent on their letter of even number dated 2 November, 1957, as modified from time to time, and have decided as follows : (i) Temporary staff who were appointed in the permanent departments initially and then transferred to grain shop department for some period will not have their seniority affected by their transfer to the grain shop department for the interim period.

(ii) Temporary staff who were recruited for a regular department but were initially posted to the grain shop department will count their seniority from the date they joined the grain shop department provided that on their release from the grain shop department, they were absorbed in the same category for which they were originally recruited. If on the other hand they were absorbed in different categories their seniority will be reckoned from the date of their absorption in the permanent department. There will, however, be no objection to the seniority in the latter case being advanced to date of selection in respect of the category of absorption, if the time lag between selection and absorption was due to administrative reasons.

Similar treatment should be afforded to the staff recruited through the agency of Railway Service Commission for posts in permanent departments but who were initially posted to the grain shop department.

(iii) The inter se seniority of temporary grain shop staff, as in the grain shop department should be maintained in the absorbing departments irrespective of the date of their physical absorption in those departments. In case, however, where the staff continued to serve in the grain shop department at their own request this benefit would not be admissible.'

6. Reading these two directives or orders of the Railway Board (2 November, 1957 and 13 January, 1961) together, it will appear clear that on the question of fixation of seniority of temporary staff of the grain shop department absorbed in other regular or permanent departments the Railway Board have clearly made distinction between

(1) temporary staff who were appointed in the permanent department initially and then transferred to the grain shop department,

(2) temporary staff recruited for permanent department (through Staff Selection Board or Joint Selection Board), but straightway posted to the grain shop department on the one hand, and

(3) temporary staff recruited and appointed directly to the grain shop department on the other,

and it is further clear that the directive contained in the Board's order dated 2 November, 1957 is applicable only to such temporary staff which have been recruited and appointed directly to the grain shop department. The effect, therefore, is that whereas in the case of the first two categories of temporary staff working in the grain shop department, their seniority consequent upon their absorbing in the permanent departments has to be fixed after taking into account their service right from the commencement, that is to say, from the dates of their appointment in the grain shop department, in the case of the last category of the temporary staff, viz., temporary staff recruited and appointed directly to the grain shop department their seniority is to be fixed from the date of their actual absorption in the permanent departments without counting their prior service in the grain shop department from commencement. Sri Singhavi's argument has been that this distinction or classification has no rational basis whatsoever while considering the question of fixation of seniority of such temporary staff, especially when it is an admitted position that the employees belonging to all the three categories were temporary staff. He has pointed out that the petitioner is a person directly recruited and appointed to the grain shop department of the Central Railway and he was so recruited and appointed on 28 December, 1943. He has further pointed out that the petitioner was subsequently absorbed in the commercial department as ticket collector on 14 May, 1949 and he was also confirmed in that post on 1 January, 1951. According to Sri Singhavi, originally the Railway Board, by its directive dated 16 October, 1952, had decided that such employees of the type of the petitioner also should get their seniority fixed after taking into account all their service from the beginning in the grain shop department and that directive contained in the Board's letter dated 16 October, 1952 was applicable to all the three categories of temporary staff working in that grain shop department. He urged that by reason of its order dated 2 November, 1957, which was subsequently clarified by its letter dated 13 January, 1961, the Railway Board has meted out a favourable treatment in the matter of fixation of seniority to the temporary staff belonging to the former two categories, viz., temporary staff, who were appointed in the permanent department initially and then transferred to the grain shop department and temporary staff recruited for permanent department but straightaway appointed to the grain shop department and the category of temporary staff to which the petitioner belongs has been discriminated against, and therefore, the impugned order dated 2 November, 1957 and the Board's letter dated 13 January, 1961 offend against Art. 14 of the Constitution. He has pointed out that in all respects such as the temporary character of their service, rights and privileges regarding leave, provident fund, etc., that is to say, in all matters all the employees drawn from the said three channels or categories are identically circumstanced and therefore, on the question of fixation of seniority of such temporary staff consequent upon their absorption the Railway Board could not make any distinction and that the distinction or classification done by it is not founded upon any rational or reasonable basis. He has urged that the classification is not based on any intelligible differentia, which has sought to distinguish the third category of temporary staff of grain shop department from the other two categories of the temporary staff of the grain shop department and he has further urged that the differentia, if any, has no nexus with the object sought to be achieved by the order. I find considerable force in this contention urged by Sri Singhavi.

7. In support of his contention Sri Singhavi has relied upon a recent judgment of the Madras High Court in Writ Petition No. 3110 of 1965, a certified copy whereof has been produced by him before me. Sri Singhavi has pointed out that the selfsame orders passed by the Railway Board came up for consideration before the Madras High Court and Justice Sri Venkatadri has set aside the impugned orders on the ground that they offend Art. 14 of the Constitution. After going through the judgment it cannot be disputed that the selfsame orders which are before me were considered by the Madras High Court and therefore, the observations on which Sri Singhavi is relying would be relevant. Dealing with the question as to what sort of distinction was made by the Railway Board, this is what the learned Judge has observed at p. 808 (supra) :

'The Railway Board thus made a distinction between the temporary staff who were appointed in the permanent department initially and then transferred to the grain shop department and the temporary staff recruited through the Staff Selection Board or Joint Selection Board on the one hand and the temporary staff recruited directly by the head of the grain shop organization on the other. The decision of the Railway Board communicated in their letter dated 2 November, 1957, namely, that the seniority of grain shop department staff consequent on their absorption in the absorbing department should be regulated on the basis of the date of their actual absorption in those departments and not on the basis as if they had been absorbed in those departments right from the beginning, affected only the temporary staff recruited directly by the head of the grain shop organization. They could not compute the period of their service in the grain shop department, at the time of their absorption in the other department whereas the other two categories of temporary employees, viz., those temporary staff who were appointed in the permanent department for some period and those who were recruited through the Staff Selection Board and the Joint Service Commission and kept in the waiting list for posts in the permanent departments but were initially posted to the grain shop department, were given the benefit of adding the period of service in the grain shop department, at the time of absorption in the other permanent departments of the railways.

* * * . . . Thus the grain shop department was filled with temporary personnel drawn from three channels. But, as I said, all were temporary personnel. In such a case, it is not proper to dissect and divide the temporary staff into various categories as has been done by the Railway Board in the impugned orders. The personnel might have come from different channels. But one should not miss the fact that all were temporary personnel in the grain shop establishment and were classified as such . . . The administration wanted to absorb these personnel in the other departments of the railway administration. The Railway Board, therefore, decided to lay down a policy by which these temporary staff recruited directly could get such seniority which they would have got had they been absorbed in the absorbing department right from the beginning of service. It was a well thought-out policy, a policy enunciated by men of integrity and mature experience. The policy had the sanction of the President. The General Managers of the Indian Railways carried out the policy, and made even promotion and confirmations. The policy of the Board was working smoothly. But the policy of the Board underwent a drastic change when the National Federation of Railway men intervened in the matter. In fact, the Railway Board explained that the resolution of the federation, namely, that the seniority of the staff who were directly recruited for the grain shop and absorbed in the alternative posts should be regulated on the basis of their joining the alternative posts, would have an undesirable effect. But the Board yielded to pressure and accepted the resolution and even directed its implementation. The union was interested its implementation. The union was interested only in the welfare of a section of railway employees . . .

If an executive order discriminates in favour of certain class, it becomes arbitrary, if it is not founded upon reasonable distinctions. The classification must be based on some reasonable ground, some difference which bears a just and proper relation to the attempted classification. The classification must be a germane classification. The impugned orders have only produced inequality among the same temporary personnel recruited through different channels. This classification is palpably unreasonable and arbitrary . . . As I said, the classification made in the impugned orders has introduced only an artificial classification between one group of temporary personnel, and another group of temporary personnel, both selected by the railway administration in general.

The weeding out of the temporary personnel directly recruited by the head of the grain shop organization from the temporary personnel selected by the Staff Selection Board or the Joint Service Commission and the temporary personnel transferred from the other departments of the railways, and classifying the former as another separate class is only to deny to that class of persons what has been originally laid down as a policy by the Railway Board. This is certainly arbitrary and unreasonable. Such a classification does not rest on any rational basis, having regard to the object which the Railway Board had in view. There is discrimination apparent on the face of the classification, and the Railway Board had not discharged the onus which lies heavily upon them. If the Railway Board proceeds to classify the temporary personnel on a basis which has no rational relation to their objective or policy, then their action can certainly be annulled as offending against equal opportunity and protection clauses enshrined in our Constitution. On this ground alone, the impugned orders must be held to be ultra vires and unconstitutional.'

8. Sri Desai on behalf of the respondents contended that in the case before the Madras High Court it was assumed that there was no difference at all between the three categories of temporary staff who were working in the grain shop departments which assumption is not correct. He urged that where as in the case of the first two categories of employees it could be said they were recruited for permanent departments but in the case of employees belonging to the third category like the petitioner the said employees from the beginning knew that they were taken in temporary department. Sri Desai thus urged that there is this difference, though he admitted that all the employees irrespective of the channel or category from which they were drawn, were temporary employees and that all of them enjoyed same rights and privileges in matters like leave, provident fund, etc. An attempt was made by Sri Deasi to show that there was some reasonable basis for making such classification or distinction, and according to Sri Desai certain facts which have been stated on behalf of the respondents in the affidavits-in-reply afford the requisite basis. According to Sri Desai, the Railway Board has sought to make a distinction between temporary staff recruited to temporary department like the grain shop department and a temporary staff recruited for a permanent department but transferred or asked to work in the temporary department and this classification could be supported on the basis that whereas while making recruitment of temporary staff to permanent departments, certain age qualification ad educational qualification were insisted upon, in the case of recruiting temporary staff to temporary departments such qualifications were to insisted upon and according to Sri Desai, if either the age qualification or educational qualification and particularly the latter were insisted upon while recruiting temporary staff to permanent departments, it would have the requisite nexus on the question of fixing the seniority of such temporary staff upon their absorption in permanent departments. However, on the materials placed before me, it is difficult to accept the proposition of Sri Desai that whereas while recruiting temporary staff to permanent departments such qualifications were insisted upon, and they were not so insisted upon while recruiting temporary staff to temporary departments. No rule or document waiving such educational qualification or age qualification in the matter of recruiting temporary staff to temporary departments has been put before me. All that has been relied upon by Sri Desai in this behalf has been certain instances that Sri Desai waited me to infer that such qualifications were waived while making recruitment of temporary staff to temporary departments. It is difficult to draw such an inference merely from a few instances of that type. In this behalf Sri Singhavi, the other hand, has pointed out several other instances that is to say, instances where temporary staff recruited to temporary departments have satisfied the age and educational qualifications as also instances where age ad educational qualifications have been relaxed while recruiting temporary staff to permanent departments. As I said, no inference one way or the other is possible merely from a few instances cited. It is Desai's contention that there were or are facts affording some basis for making such classification among all the temporary staff working in the grain shop department. In this view of the matter, it is difficult to accept Sri Desai's contention that the impugned order dated 2 November, 1957 and the clarification thereof in the Railway Board's letter dated 13 January, 1961, do not offend the provisions of Art. 14 of the Constitution. Following the Madras High Court judgment, therefore, I quash the impugned order dated 2 November, 1957 read with the Board's letter dated 13 January, 1961, and direct that the respondents would fix the seniority of the petitioner after taking into account his service from the beginning, that is, from 28 December, 1943, as per Railway Board's directive dated 16 October, 1962. On this basis, if the reversion of the petitioner by order dated 2 July, 1964 has to be set aside, the same will be set aside by the respondents.

9. In view of the fact that on the previous occasion a day's costs amounting to Rs. 250 have been awarded to the petitioner, I feel that the respondents after the final disposal of the petition should be made to pay the costs of the petition, which I quantify at Rs. 125.


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