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Patil (M.P.) Vs. Khanna (D.R.) (General Manager, Central Railway) and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberMiscellaneous Petition No. 246 of 1959
Judge
Reported in(1966)IILLJ34Bom
ActsIndian Railway Establishment Code - Rules 157 and 2003(14); Constitution of india - Articles 226, 309 and 310
AppellantPatil (M.P.)
RespondentKhanna (D.R.) (General Manager, Central Railway) and anr.
Excerpt:
.....department petitioner demanded to be appointed as senior clerk in compilation department - general manager refused and he was appointed at lower rank in accounts department - petition against said refusal filed - by exercising of option to go in compilation department and by acceptance of same by general manager petitioner acquired legal right to be appointed to compilation branch - refusal of same to petitioner lead to denial of legal rights to him - petition accordingly allowed and petitioner directed to be appointed. - - paragraph 3 provides that the other staff of the accounts department then working in the accounts department as well as those in the compilation branch transferred to the general manager's office were being given by that letter an option either to opt for..........of the option exercised by the petitioner in or about july, 1953. respondent 1 is the present general manager of the central railway originally, respondent 1 was r. b. lal, who was the general manager of the central railway when the petition was filed, but in view of the occupant of that post having changed, d. r. khanna has since been substituted in his place as respondent 1. respondent 2 is the union of india. 2. the petitioner joined the service of the central railway which was then known as the great indian peninsular railway, as a clerk, class ii, in the accounts department, on 16 may, 1940, and on 9 may, 1941, he was confirmed in that post. at the date of the petition the petitioner had continued to be in the service of the central railway. as from 1 january, 1947, the.....
Judgment:
ORDER

1. By this petition the petitioner prays for a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Art. 226 of the constitution directing the respondents to post the petitioner in the compilation branch of the Central Railway at Bombay as a senior clerk in the grade of Rs. 80-220 on a pay of Rs. 192 per month or some other suitable post in the said branch and also to direct them to fix his seniority in the compilation branch in accordance with the terms of the option exercised by the petitioner in or about July, 1953. Respondent 1 is the present General Manager of the Central Railway Originally, respondent 1 was R. B. Lal, who was the General Manager of the Central Railway when the petition was filed, but in view of the occupant of that post having changed, D. R. Khanna has since been substituted in his place as respondent 1. Respondent 2 is the Union of India.

2. The petitioner joined the service of the Central Railway which was then known as the Great Indian Peninsular Railway, as a clerk, class II, in the accounts department, on 16 May, 1940, and on 9 May, 1941, he was confirmed in that post. At the date of the petition the petitioner had continued to be in the service of the Central Railway. As from 1 January, 1947, the petitioner was temporarily sent on deputation to the grain-shop organization as a grain-shop checker in the grade of Rs. 60-160 as an administrative measure. By reason of the petitioner's said confirmation, however, the petitioner acquired a lien on the post of a clerk in the accounts department. At that time the accounts department had within it a branch known as the compilation branch. In or about May, 1953 the then General Manager of the Central Railway directed the separation of the compilation branch from the accounts department, making the compilation branch a separate cadre under the direct control of the General Manager of the Central Railway. It appears that the General Railway, passed an order dated 14 May, 1953, in that behalf. The same has not been produced by either side, but the same has been referred to in the latter dated 29 June, 1953, addressed by the Financial Adviser and Chief Accounts Officer to the controller of Grain Shops, Central Railway, a copy whereof is annexed as Ex. A to the petition. The heading in that latter, dated 29 June, 1953, shows that the letter refers to the subject of the transfer of the compilation branch from the accounts department to the General Manager's office. Paragraph 1 of that letter states that in accordance with the General Manager's orders (vide No. 22571-R/MG, dated 14 May, 1953) the statistical section at Parel and at Secunderabad had been transferred under the General Manager with the Statistical Officer, General Manager's office, incharge, working under the administrative control of the Senior Deputy General Manager. That there was such an order made by the General Manager has not even been disputed on behalf of the respondent. A copy of that order, or the exact contents of that order, have not been produced before me. I must, therefore, proceed on the footing that the said order was of the nature and had the contents as set out in that letter. From Para. 1 of that letter, together with the statements contained in the petition and the affidavits, it is clear that prior to that order there was, in the accounts department, a branch or section known as the compilation branch or the statistical section but that by the said order the compilation branch was being transferred from under the accounts department to form a department under the General Manager working under the administrative control of the Senior Deputy General Manager. To effectuate such transfer of the entire compilation branch from the control of the accounts department to that of the General Manager a re-adjustment had to be made as regards the staff and the said order makes provision for the same as is disclosed from the contents of the said letter dated 29 June, 1953. For the purposes of this petition the contents of Para. 2 are not relevant. Paragraph 3 deals with the staff other than that dealt with in Para. 2 and the petitioner falls within that category of other staff. Paragraph 3 provides that the other staff of the accounts department then working in the accounts department as well as those in the compilation branch transferred to the General Manager's office were being given by that letter an option either to opt for the compilation branch permanently or to remain in the accounts cadre. It is further stated that such of the staff who opted for the compilation branch would not be permitted to appear for appendix IIA and IIIA examinations of the accounts department (which were for promotion within the accounts department) and would have to seek promotion in the compilation branch itself by the usual procedure applicable to other departments of the railway. The effect of this offer of option would be that a member of the staff who was working at the date of the order in the accounts department would have to exercise an option either to continue in the accounts department or to go into the compilation branch. If he opted to go into the compilation branch and was ultimately posted in that branch, he would become a member of the staff of the compilation branch permanently and would not be permitted to improve his prospects and seek promotion in the accounts department by appearing for the two examinations mentioned above. He would, however, be entitled to promotion only in the compilation branch itself in the normal course. Paragraph 4 of that letter sets out the various posts together with their salaries which would be available for promotion to those who were in the accounts department but who opted for the compilation branch and were thereafter transferred to the compilation branch. Along with that letter a form of election was enclosed to each of the persons to whom that letter was addressed including the petitioner. Paragraph 6 of the letter provides that the option of the employees should be communicated by 31 July, 1953. The contents of the order as revealed by the contents of this letter, therefore, indicate that the staff of the accounts department were given an option to continue in the accounts department or to go to the compilation branch and further that if the option was exercised in favour of the compilation branch two results were to follow. The first was that as from the date of the exercise of the option the person exercising the option in favour of the compilation branch would cease to be entitled to appear for the said two examinations or to be entitled to any promotion in the accounts department. The second result was that even if an employee exercised the option in favour of the compilation branch, he would not be immediately posted in that branch. It has been stated across the bar - and I see no reason to doubt the veracity of the same - that the compilation branch was to be but a small section as compared with the entire accounts department and if a large number of employees who were on the staff of the accounts department opted to be transferred to the compilation branch, all of them could not be immediately transferred to the compilation branch although the loss of the right of promotion in the accounts department was to be immediate. The wording of the letter shows that it was for the General Manager or the appropriate authority to fill up the available posts or vacancies in the compilation branch from amongst those employees who opted in favour of the compilation branch. The various employees who so opted acquired the right to be so transferred and posted to the compilation branch but only as and when appropriate posts were available. It is quite clear that in practice the actual transfer to the compilation branch out of the persons who so opted would immediately be of only some of them and the rest would be transferred and posted into the compilation branch subsequently from time to time as and when appropriate posts were available. But it is equally clear that having given an option to the members of the staff of the accounts department with the conditions attached thereto and particularly the condition that upon the exercise of the option a member of the staff would immediately lose the right of promotion in the accounts department and would have to look for promotion in the compilation branch, it was obligatory on the General Manager to transfer all persons who exercised the option in favour of the compilation branch subject, of course, to the appropriate posts in that branch being available.

3. It is common ground that before the specified date, viz., 31 July, 1953, the petitioner opted in favour of the compilation branch and communicated the same to the General Manager. It stated in Para. 3 of the petition - and it has not been denied on the other side - that the option so exercised by the petitioner was accepted by the then General Manager and recorded in the petitioner's service register. At the time of the exercise of the option the petitioner was a permanent clerk, class II, and he had a lien on that post, it being his substantive post. It, therefore, follows that when the petitioner was actually posted into the compilation branch he would be entitled to a parallel post of a permanent clerk, class II, in the compilation branch.

4. As stated earlier, since long prior to the time when the petitioner was offered the said option - and he exercised that option - the petitioner was on deputation to the grain-shop organization of the Central Railway in the grade of Rs. 60-160. As the petitioner was in the grain-shop department the Secretary, Headquarters Office, Personnel Branch of the Central Railway, addressed a letter to the Controller of Grain Shops dated 24 October, 1953, a copy whereof is annexed as part of Ex. C to the petition. It has been stated in the said letter that the eleven individuals named in that letter, which includes the petitioner, who were on the staff of the accounts department and who were at the date of the letter working in the department of the Controller of Grain Shops, had opted for the compilation branch. It is further stated that there were at that time five vacancies of clerks in the office of the Compilation Officer, Parel, and that the Secretary was, therefore, directed to ask the Controller of Grain Shops to arrange to release five of the said members of the staff of the accounts department for filling up the said vacancies as early as possible. Thereafter there is another letter addressed by the said Secretary to the Controller of Grain Shops which is dated 9 December, 1953, and it states that it had been decided that the said Controller should arrange to relieve on transfer to the statistical branch all the said eleven clerks of the accounts department who were then on deputation to the grain-shop organization. These two letters clearly show that by those letters the said members of the staff of the accounts department who had opted for the compilation branch. These letters also show that vacancies had, in fact, occurred in the compilation branch which could appropriately be filled up by the said eleven persons including the petitioner and that the position was such that the General Manager could thereby discharge his obligation to the petitioner by appropriately posting him in the compilation branch, such obligation having arisen by reason of the said option having been exercised by the petitioner in favour of the compilation branch.

5. To the said letter dated 9 December, 1953, however, the Controller of Grain Shops sent a reply dated 9 January, 1954, a copy whereof is annexed as part of Ex. C to the petitioner. The contents of that letter are that material. Shortly stated, the same are that according to the Controller of Grain Shops it was not considered feasible to relieve any of the said eleven employees from his own department for transfer to the compilation branch as it was considered essential in he the interest of administration to retain the services of the said eleven persons in the grain-shop department, as they were considered 'experienced senior staff.' By that to letter the Controller made an alternative suggestion that an equal number of substitute clerks be taken up in the compilation branch. But I am really not concerned with that alternative suggestion. What is when material is that this letter clearly shows that the services of the petitioner, although the same could by that time have been transferred to the appropriate post in the compilation branch to which the petitioners was legally entitled, were not in fact transferred because his services were considered to be essential at that time to the grain-shop department. The services of the petitioner were, therefore, retained in the grain-shop department till the end of June, 1957 when the grain-shop department was closed down. At the time of the abolition of that department the petitioner was working as a senior clerk on deputation date, in the grade of Rs. 80-220 and was drawing a salary of Rs. 176 per month. The petitioner was then relieved from the grain-shop department and was instructed to go and report to the Compilation Officer, and on 1 July, 1957, the petitioner accordingly reported for duty to the Compilation Officer. The Compilation Officer, however, refused to post him in the compilation branch and referred him to the Secretary to the General Manager. The petitioner was then made to sit in the office of the General Manager for ten days without any work, after which he was asked to work in the accounts department from 11 July, 1957. Though he had been drawing a salary of Rs. 176 per month in the scale of Rs. 80-220 in the grain-shop organization, he was given a lower post of a clerk, class II, on a salary of Rs. 113 per month in the scale of Rs. 60-130.

6. Thereafter the petitioner made various efforts and approached various authorities of the Central Railway for being appointed on the appropriate post in the compilation branch but his services were continued to be retained in the grade of a clerk, class II, in the accounts department itself. It is under these circumstances that the petitioner filed this petition, the main relief being that he should be posted in the compilation branch for which he opted. In the affidavit-in-reply to this petition filed on behalf of the General Manager of the Central Railway it has been stated that it was decided in or about the month of April 1957 that no more clerks from the accounts department who had opted for the compilation branch should be permitted to be transferred to the compilation branch. The reasons for that decision have been set out in that affidavit, but I am not concerned with those reasons. Broadly stated, they relate to the exigencies of administration but such exigencies of administration do not make any difference to the position in law and I will not refer to the same any more.

7. In Para. 5 of the petition as also in other paragraphs of the petition a contention has been put forward that the petitioner, having opted for the compilation branch, acquired a lien on a post in the compilation branch and that, therefore, he had a right to hold a post in the said compilation branch. In answer to this contention Sri Parekh, the learned counsel for the respondents, pointed out the definition of 'lien' contained in rule 2003(14) of the Indian Railway Establishment Code, Vol. II, as appearing in the reprint thereof of 1951. It is not disputed that the petitioner's service were governed by the said Indian Railway Establishment Code. That rule defines 'lien' as the title of a railway servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including a tenure post, to which he has been appointed substantively. It was pointed out by Sri Parekh, and that was the position as already observed by me earlier, that even if the petitioner exercised his option as aforesaid the petitioner continued to hold substantively the post of a clerk, class II, in the accounts department till he was in fact transferred and posted by the General Manager or the appropriate authority to the appropriate post in the compilation branch. His substantive post being in the accounts department, he had a lien on that post and not on a post in the compilation branch. In view of the said definition of 'lien' Sri Singhvi, the learned counsel for the petitioner did not pursue that contention of the petitioner any further and I need not, therefore, consider it any more. But, in any event, as already stated by me, even if that contention had been pursued, the same would have had to be negatived by me in view of the said definition.

8. This petition had come up for hearing before me some months back and at that time Sri Parekh had urged a contention that the matters in this petition are not justiciable in view of the provisions of Arts. 309 and 310 of the Constitution. In that behalf Sri Parekh had placed great reliance on the case of R. Venkata Rao v. Secretary of State for India and other decisions on the subject. Sri Singhvi had then stated that it had just then come to his knowledge that the Supreme Court had given a judgment which was directly relevant on the point and that so far as he knew, the same was conclusive on that point. I, therefore, adjourned this case as a report of that judgment was not available then. The same has since been available and that is the judgment in State of Uttar Pradesh v. Babu Ram Upadhya : 1961CriLJ773 . That judgment completely negatives Sri Parekh's contention about the matters in this petition being not justiciable. After Sri Singhvi read the material portions of the judgment, in reply to my question Sri Parekh stated that he was not able to show how he could in any possible way canvass that contention in view of that judgment of the Supreme Court. In my opinion, that judgment conclusively shows that the matters in this petition are justiciable and I do not propose to dilate on the same as even Sri Parekh, although he has not conceded the point, has not been able to advance a single argument to show why that judgment does not conclude this particular contention raised by him.

9. I must now turn to examine the legal position in this case. What was, or rather what is, the legal right of the petitioner in this case He was an employee of the Union of India in the Central Railway. He was a permanent employee and his services were governed by the provisions of the Indian Railway Establishment Code as appearing in the reprint thereof of 1951. Rule 157 of that code empowers the general Manager of Indian Railways to make rules with regard to non-gazetted railway servants under their control provided they are not inconsistent with any rules made by the President or the Railway Board. It is common ground that the petitioner was a non-gazetted railway servant and that, therefore, the General Manager had the power to make rules which would be applicable to the petitioner. What I have to consider is what is the position in law of the said order made by the General Manager dated 14 May, 1953, the contents whereof have been referred to in the said letter dated 29 June, 1953. In my opinion, that order must be held to be rule made by the General Manager in exercise of his said power under the said rule 157. The said rule 157 does not lay down any particular form or any formality to be complied with by the General Manager when making rules in exercise of the power under that rule. Rules would be general in nature, i.e., they would concern a body of persons and not to any particular individual or individuals by name. The said order concerns a particular section of the employees of the Central Railway. A new department, viz., a compilation branch, was being set up under the direct control of the General Manager and the work which that branch was doing was being taken away from the accounts department. To achieve that result the staff had to be transferred in various ways and to effectuate the same rules had to be framed. It was for that purpose that the General Manager issued the said order containing general direction. It is true that what was framed was an order and not rules for the purpose of setting up the said department and effectuating transfers of the necessary employees, etc. But by whatever name it may be called, it amounts to framing of rules by the General Manager in exercise of his power under the said rule 157. If that order be treated as rule, which I do, the same would be binding not only on the employees concerned but also on the General Manager because the same acquired the force of law having been made under the power reserved to the General Manager under the statutory rules, viz., the Indian Railway Establishment code. Therefore, on the exercise of the said option and the acceptance there of by the General Manager, the petitioner acquired a legal right to be transferred to the compilation branch and to be posted to an appropriate post to which the petitioner would be entitled in view of the post held by the petitioner in the accounts department. It is true, as stated by me earlier, that the actual transfer or rather the posting of the petitioner into the compilation branch would be done at some time subsequent to the exercise of the option as and when there was a vacancy in the compilation branch. The said right of the petitioner imposed a corresponding legal obligation on the General Manager of the Central Railway. As a matter of fact even Sri Parekh admitted - and that is clearly the position - that on the exercise of the said option by the petitioner he lost all rights to promotion in the accounts department and was to look for promotion only in the compilation branch. The said two letters addressed to the Controller of Grain Shops clearly show that an appropriate post was available even as early as 1953-54 when the General Manager could discharge his said legal obligation by posting the petitioner to the appropriate post in the compilation branch. It is not as it he General Manager was not in a position to discharge his said legal obligation because of the non-availability of an appropriate post in the compilation branch. As a matter of fact, the legal right of the petitioner was denied to him because his services were considered essential in the department of the Controller of Grain Shops. The curious position has been - and the same, in my opinion, has resulted - not only in the denial of the legal right to the petitioner but in grave injustice to the petitioner that because his services were considered essential in another department he has, under the circumstances which have since transpired, been completely denied that legal right. It is the statement made on behalf of the General Manager - and I see no reason to distrust it - that the General Manager came to his said decision in April, 1957 of making no further posting in the compilation branch out of the persons who had exercised the said option in favour of the compilation branch because of some administrative exigencies. But whatever the reason may be the fact remains that the General Manager has taken that decision which has resulted not only in a complete denial of the petitioner's legal right but in grave injustice to him. It also cannot go unnoticed that by having exercised his option in the manner aforesaid, as he was in law entitled to, the petitioner has lost all rights to promotion even in the accounts department for the rest of his life. A situation has arisen that because another department of the railway, viz., the grain-shop department, considered the petitioner's services essential, he has been deprived of all prospects of future promotions. I do not for a moment intend to suggest that the General Manager has deliberately brought about that injustice. I trust the statement made on behalf of the General Manager that the said injustice has resulted to the petitioner merely by force of circumstances in the sense of administrative exigencies. But even if the General Manager or his department may not be guilty of having deliberately caused any harm to the petitioner, the fact remains that the petitioner has been denied his legal right. In this connection, I must also point out another additional feature and that is that although the General Manager reached his said decision as far back as April, 1957, the same was not communicated to the petitioner, nor was the petitioner in any way informed about the same, till the petitioner came to know about it by reading the said affidavit-in-reply which is dated as late as 17 December, 1959. In my opinion, therefore, it was clearly incumbent in law upon the General Manager to have posted the petitioner to an appropriate post in the compilation branch. The General Manager has failed to discharge that duty. The petitioner is, therefore, entitled to an appropriate writ which in this case would be a writ of mandamus.

10. I, therefore, order that a writ of mandamus do issue against respondent 1 that he do post the petitioner in the compilation branch of the Central Railway on such post as the petitioner would be entitled to on the basis of the option exercised by the petitioner in July, 1953 and accepted by the then General Manager of the Central Railway as stated in Para. 3 of the petition and that respondent 1 do fix according to law the seniority of the petitioner in the compilation branch. The respondents to pay the costs of the petitioner of this petition. In view of the duration of the hearing of this petition, I fix the costs at Rs. 300 plus the usual Court-fees.


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