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S.N. Joshi Vs. the Railway Board and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1975)IILLJ273AP
AppellantS.N. Joshi
RespondentThe Railway Board and ors.
Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter......ramachandra rao, j.1. the petitioner herein was selected to class i post after being successful in the competitive examination held by the union public service commission, new-delhi, in the year 1956 and in the interview held in the year 1957. he was appointed by an order dated 14th april, 1958 of the railway board and he joined service on 10th may, 1958 at madras as signal and telecommunication probationer by order dated 14th may, 1958 of the southern railway. the seniority of the petitioner and other class i officers similarly selected and appointed, is fixed from the respective dates of their joining service.2. on account of successive five year plans, necessity arose for making appointments of temporary officers in various departments without adopting the usual procedure of.....
Judgment:

Ramachandra Rao, J.

1. The petitioner herein was selected to Class I post after being successful in the competitive examination held by the Union Public Service Commission, New-Delhi, in the year 1956 and in the interview held in the year 1957. He was appointed by an order dated 14th April, 1958 of the Railway Board and he joined service on 10th May, 1958 at Madras as Signal and Telecommunication Probationer by order dated 14th May, 1958 of the Southern Railway. The seniority of the petitioner and other Class I Officers similarly selected and appointed, is fixed from the respective dates of their joining service.

2. On account of successive Five Year Plans, necessity arose for making appointments of temporary officers in various departments without adopting the usual procedure of recruitment through competitive examination held by the Union Public Service Commission. The 2nd respondent was appointed as a temporary Assistant Signal and Tele-communication Engineer, on 4th July, 1956, and the 3rd respondent on 16th June, 1956. Both the respondents 2 and 3 were absorbed into Class I service on 1st March, 1959. It appears that the 2nd respondent appeared for the competitive examination held by the Union Public Service Commission in 1951 but was not successful. The petitioner contends that as he was selected on the basis of merit by the Union Public Service Commission and as he was appointed to Class I service, his seniority should be fixed with reference to the date of his joining the service, i.e., 10th May, 1958 and that he should be treated as senior to the respondents 2 and 3 who were absorbed into Class I service on 1st March, 1959.

3. The petitioner states that in the case of temporary officers it was clearly stated in the relevant orders of appointment that their seniority would count only from the dates of their confirmation when they were absorbed into Class I services, that from among the temporary employees only a certain number of persons, viz., two, would be absorbed at a time into Class I service, and that too only after the probationers, i.e., Class I Officers in the succeeding competitive examination were appointed into Class I service thereby making it clear that they would be placed below the probationers selected, in the succeeding competitive examination the date of seniority commencing from the date of confirmation.

4. However, by the Railway Board's letter No. E(P)-64 RC. 1, dated 17th September, 1965, the Railway Board decided that weight age and seniority should be granted to temporary officers on the basis of half of the total number of years of continuous service in working posts prior to their permanent absorption in Class I service subject to a maximum weight age of five years.

5. Subsequently by another letter No. E(C) 1-71/SR. 6/12, dated 26th May, 1972, communicated to the General Managers, All Indian Railways, the Railway Board issued an amendment to the previous decision with regard to the granting of weight age in seniority to temporary officers. By this letter, the Board decided to confer a further benefit on the temporary officers by removing the condition regarding continuous service in a working post and thereby giving them the benefit of their training period for the purpose of computing the total period of service for giving weight age to the extent of 50% of their service from the date of their joining service to the date of their absorption in Class I service subject to the over all limit of five years. By reason of giving weight age in accordance with the aforesaid decision of the Railway Board the petitioner and other direct recruits who were appointed to the Class I service on 14th April, 1958 would become juniors to the respondents 2 and 3 and other similar temporary employees. By virtue of the above said orders of the Railway Board, the 2nd respondent gets the seniority from about 2nd November, 1957 and the 3rd respondent from about 23rd October, 1957. Though the respondents 2 and 3 were absorbed into Class I service only on 1st March, 1959 by reason of giving weight age to the services rendered prior to their absorption into Class I service in accordance with the aforesaid orders of the Railway Board, they became seniors to the petitioner and others like him. who were appointed as probationers in Class I service. The petitioner now challenges the aforesaid orders of the Railway Board, in E(P)-64 R.C. 1, dated 17th September, 1965 as amended in their letter E(C) 1-71/SR. 6/12, dated 26th May, 1972, on three grounds:

1. That the impugned orders are mere executive instructions; and that the Railway Board has no power to give weightage of service contrary to the statutory rules framed under the proviso to Art. 309 of the Constitution; and

2. That the impugned orders have no retrospective effect; and

3. That the said orders conferring special advantage on temporary employees with regard to seniority to the detriment of the petitioner and other Class I Officers directly recruited through competitive examination, are arbitrary and. discriminatory and violate Articles 14 and 16 of the Constitution.

6. The Deputy Chief Personnel Officer, South Central Railway, has filed a counter-affidavit on behalf of the first respondent the Railway Board. The main facts relating to the appointment of the petitioner as Class I Officer after selection by the Union Public Service Commission and the dates on which the respondents 2 and 3 were temporarily appointed, and absorbed into Class I service, are admitted. The fact that the 2nd respondent appeared at the competitive examination held in 1951 but was not successful, is also admitted. It is further admitted that the temporary officers were made to understand in their appointment orders that their seniority would count from the date of their permanent, appointment to Class I service, and that they would be eligible for being considered for permanent appointment in the service up to a maxi mum of two vacancies in a year. It is, however, stated that the said quota was revised from time to time in consultation with the Union Public Service Commission as follows:

From 1957 to 1960 examination--3 per examination.

From 1961 to 1965 examination--6 per examination.

From 1966 onwards examination--60% of the actual intake through the Union Public Service Commission.

But it is denied that the temporary officers were intimated in their appointment orders that they would be placed below the probationers selected in the succeeding examinations.

7. With regard to the weight age and seniority to temporary Assistant Officers on their absorption into Class I service, it is averred that a large number of temporary officers were recruited from 1955 onwards, and several representations were received from such officers urging the Government that in view of the services rendered by them prior to recruitment as also on recruitment to Railways till their absorption in Class I, they might be given some weight age in seniority on the analogy of the weight age admissible to Class II Officers on permanent promotion to Class I service ; and on a consideration of the aforesaid representations, it was decided to give weight age up to a maximum of five years on the analogy of that allowed in the case of Class II Officers on their permanent absorption to Class I service. It is further averred that the amendment, dated 26th May, 1972 was issued after taking into consideration all the relevant factors particularly the anomalies which came to notice in the process of working out the weight age in individual cases, and that the amendment was not issued to give any special advantage to any particular individual much less to the respondents 2 and 3. It is admitted that by applying the principles contained in the amendment, dated 26th May, 1972, the respondents 2 and 3 would rank senior to the petitioner, but it is stated that this would not jeopardise the petitioner's prospects of further promotion as promotion to the next higher grade is made wholly by selection and mere seniority does not confer any claim for promotion. It is also stated that the nature of duties and responsibilities shouldered by the temporary officers are substantially the same as those shouldered by Junior Scale Class I Officers recruited on the basis of competitive examination, that there are no posts earmarked for Class I direct recruits and for temporary officers and therefore giving of weight age and seniority to temporary officers on their permanent absorption in Class I service, was not arbitrary or discriminatory, that the petitioner has only a right to have his seniority fixed according to the date of his joining service, i.e., 10th May, 1958 when he came on the minimum of time scale and that the said date has not been altered to his disadvantage. As the temporary officers had joined earlier than the petitioner and had previous experience, the petitioner cannot make any grievance if some weight age is given to the services rendered by the temporary officers prior to their absorption into Class I service. It is further stated that the impugned orders are in accordance with the rules issued for recruitment to the Signal Engineering Department of the Superior Revenue Establishment of Indian Railways, notified in No. E(G.R.) 56 R.R. 4, Ministry of Railways dated 27th August, 1956 and that they do not violate the provisions of Articles 14 and 16 of the Constitution.

8. The first contention urged by Sri E. Subrahmanyam, learned Counsel for the petitioner is that under the Signal Engineering Department of the Superior Revenue Establishment of Indian Railways Recruitment Rules (hereinafter called the Rules), the seniority of the officers recruited by competitive examination has to be determined according to the order of merit in the competitive examination and from the date on which they were appointed to the service, that the seniority of temporary officers has to be fixed with reference to the dates on which they were absorbed into service and that the first respondent has no power to issue any instructions contrary to the statutory rules.

9. On the other hand it is contended by the learned Counsel for the Railways that under the Rules, the first respondent has power to fix the seniority at his discretion and that the instructions contained in the impugned orders were issued by virtue of the power conferred by the said Rules, and therefore, they are valid.

10. In order to appreciate these rival contentions, it is necessary to notice the rules notified on 27th August, 1956, as replaced by the 1962 Rules. The relevant Rules are, Rules 4 and 5, which read as follows:

4. The Service shall be recruited by the following methods:

(a) By competitive examination held in India in accordance with Para. II of these Rules.

(b) By promotion of specially qualified Class II Officers, including officiating Class II Officers of the Signal Engineering Department. Not more than 331/3 per cent of the vacancies will be filled by departmental promotion; this percentage is liable to be varied from time to time if found necessary.

(c) By occasional admission of other qualified persons appointed by the Government on the recommendation of the Commission.

5. Subject to the provisions of Rule 4 Government shall determine the method or methods to be employed for the purpose of filling any particular vacancies, or such vacancies as may require to be filed during any particular period, and the number of candidates to be recruited by each method.

Clause 8 of Appendix I to the said Rules, reads as follows:

8. The relative seniority of officers appointed under Rule 4(a) will ordinarily be determined by their order of merit in the competitive examination. The Government of India, however, reserve the right of fixing seniority at their discretion in individual cases. They also reserve the right of assigning to officers appointed under Rules 4(b), and (c) and 5 positions in the seniority list at their discretion:

Note.--If the period of training and consequently the period of probation is extended in any particular case due to the training not having been completed satisfactorily, the officer concerned is liable to lose in seniority.

11. Rule 4 of these Rules was amend ed in 1968 by Rule 2 of the Rules framed in G.S.R. 851, Ministry of Railways, Railway Board, dated 27th April, 1968 and it reads as follows:

2. In Rule 4 of the Indian Railway Service of Signal Engineers Recruitment Rules, 1962:

(i) Clauses (b) and (c) shall be re-lettered as Clauses (c) and (d) respectively;

(ii) Before Clause (c) as to re-lettered; the following clause shall be inserted, namely:

(b) By appointment of Assistant Signal and Tele-communication Engineers recruited through the Commission, initially as temporary officers, to such extent as may be decided in consultation with the Commission from time to time.(Rest omitted as not necessary for the purpose of this case).

12. There is no dispute that the officers appointed by direct recruitment through competitive examination, will count their service for the purpose of seniority from the dates of their joining the service. So far as the temporary officers are concerned, the rules do not provide for fixing the dates on which they would commence their service. But the appointment order (specimen copy of which is filed) issued to the temporary officers lays down the terms and conditions of appointment of such temporary officers and it reads as follows:

GOVERNMENT OF INDIA

Ministry of Railways

(Railway Board)

No. E. (P.) 62 RC. 16-6

New Delhi, 26-9-1962.

To

As in the list attached.

Dear Sir,

Sub :--Recruitment of Temporary Assistant Signal and Tele-communication Engineers.

I am directed to state that on the recommendation of the Union Public Service Commission, the Railway Board have selected you for appointment as a Temporary Assistant Signal and Tele-communication Engineer, on the following terms and conditions.

(a) The appointment will be on a temporary basis.

(b) The post is gazetted. It is in the authorised scale of Rs. 400-450-30-600-35-670-EB-35-950. The post will neither be in Class I or in Class II service. Your pay will be fixed.

(i) under the normal operation of the rules, or

(ii) if your present officiating pay in the authorised scale is more than the minimum of the scale, at the rate, if it is a stage in the time scale, otherwise at the stage immediately below that rate, whichever is more beneficial.

(c) If you are a permanent railway servant:

(i) You will be permitted to retain a lien on your railway post for so long as you are not selected for absorption in a permanent vacancy in the Signal and Tele-communication Engineering Department or reverted to your regular appointment.

(ii) You will continue to be governed by your existing retirement benefits, viz., Provident Fund or Pension as the case may be.

(iii) You will continue to be eligible for leave in accordance with the rules applicable to you and as amended from time to time.

(d) You will be required to undergo training for the period prescribed by the Railway Board and on the satisfactory completion thereof, you will continue in a temporary capacity. In the event of failure in the test at the Staff College of the Indian Railway Schools of Signal Engineering and Tele-communication or failure to satisfactorily complete the training, your services as Temporary Assistant Signal and Tele-communication Engineer are liable to be terminated and you will be reverted to the post which you would have held but for appointment as a Temporary Assistant Signal and Tele-communication Engineer.

(e) You will be eligible along with other Temporary Assistant Signal and Tele-communication Engineers for being considered for absorption in permanent vacancies in Class I (Junior Scale) in the Signal and Tele-communication Engineering Department up to a maximum of two vacancies in a year commencing from the recruitment to that service on the results of the examination to be held in 1963. In the event of your being selected for that service, your seniority will count from the date of confirmation. You may be considered for promotion in a temporary capacity to a senior scale post in the scale of Rs. 700-(6th year and under)-4-1100-50/2-1250.

(f) You will be eligible for free passes and privilege ticket orders in accordance with the rules in force from time to time.

(g) In case you do not hold a lien on a permanent railway post:

(i) Your services will be liable to termination on one month's notice on either side during the period of temporary appointment in case you do not accept a reversion to the post which you would have held but for appointment as a Temporary Assistant Signal and Telecommunication Engineer. Government have also the right to give you one month's pay in lieu of notice.

(ii) You will continue to be governed by your existing retirement benefits, viz., Provident Fund or Pension as the case may be.

(iii) You will continue to be eligible for leave in accordance with the leave rules applicable to you and as amended from time to time.

(h) You will have to execute a ser vice agreement as applicable to temporary officers.

1. In all matters not specifically referred to above, you will be govern ed by the provisions of the Indian Railways Establishment Code and extent orders issued from time to time.

2. You are posted to the railway indicated against your name in the attached list and you will be required to join immediately.

3. If the above offer oil appointment is acceptable to you, please intimate your acceptance to this office as well as to the General Manager of the Railway to which you have been posted within 10 days of the receipt of this letter. Any further correspondence with this office should be routed through the proper channel.

4. Please note that failure to communicate your acceptance to this offer within the stipulated time limit is liable to the same being cancelled.

13. These terms and conditions clearly lay down firstly, that the appointment is made on a temporary basis; secondly, that though the post is Gazetted, it is neither in Class I nor Class II service, but if a temporary officer is a permanent railway servant, he will be permitted to retain a lien on his railway post so long as he is not selected for absorption in a permanent vacancy in the Signal and Tele-communication Engineering Department or reverted to his regular appointment; thirdly, he has to undergo training for the prescribed period and on satisfactory completion, he will continue in a temporary capacity; fourthly, he will be eligible along with other Temporary Assistant Signal and Tele-communication Engineers for being considered for absorption in permanent vacancies in Class I (Junior Scale) up to a particular number in a year commencing from the recruitment to that service on the results of the examination to be held in the succeeding year; and fifthly in the event of his being selected for that service, his seniority will count from the date of confirmation.

14. These terms and conditions of appointment of temporary officers do not envisage the giving of any weight age to the service put in by the temporary officers prior to their absorption into the Class I service. On the other hand, it is categorically mentioned that the seniority of the temporary officers would count only from the date of confirmation. Therefore, according to the statutory rules and the terms and conditions of appointment of temporary officers, the; officers appointed by recruitment through competitive examination, would count their seniority from the dates of their joining the service, whereas the temporary officers would count their seniority only from the dates on which they were absorbed in Class I service.

15. It is contended by the learned Counsel for the Railways that under Clause 8 of Appendix I, the Government, can at their discretion, fix the seniority of the temporary officers. But Clause 8 as it stood prior to its amendment in 1968, reserved a right to the Government of assigning to officers appointed under Rules 4(b) and (c) and 5 positions in the seniority list at their discretion. Clause (b) of Rule 4, refers to officers recruited by promotion of specially qualified Class II Officers, including officiating Class II Officers of the Signal Engineering Department; and Clause (c) to officers recruited by occasional admission of qualified persons appointed by the Government on the recommendation of the Commission. Rule 5 empowers the Government to determine the method or methods to be employed for the purpose of filling any particular vacancy or such vacancies as may require to be filled during any particular period, and the number of candidates to be recruited by each method.

16. The contention of the petitioner is that Temporary Assistant Signal and Tele-communication Engineer's do not fall within Clause (b) or Clause (c) of Rule 4 or Rule 5 of the said Rules. On the other hand it is contended for the Railways that they fall within the aforesaid rules.

17. But I find it difficult to accept the contention of the learned Counsel for the Railways. Rule 4(b) does not apply to the temporary officers. Clause (c) of Rule 4 applies only to persons recruited by occasional admission of other qualified persons appointed by the Government on the recommendation of the Commission. But temporary officers do not fall within Rule 4(c) because their recruitment cannot be said to be by occasional admission. On the other hand the counter-affidavit filed by the Railways shows that 'in the context of large scale developmental works undertaken by the Railways during the second and third plan periods, a number of purely temporary posts had to be created '. Therefore the appointment of these temporary officers is not made in exercise of the power under Rule 4(c). Equally it is difficult to accept the contention of the Railways that the temporary officers can be said to have been recruited under Rule 5 of the Rules. Rule 5 (states) that the Government should determine the method or methods to be employed for the purpose of filling any particular vacancy or vacancies, during any particular period and the number of candidates to be recruited by each method. It is not stated in the counter-affidavit, as to what method or methods the Government had determined for the purpose of filling particular vacancies or the number of candidates to be recruited by the said method. That the temporary officers like the respondents 2 and 3 recruited regularly every year do not fall within the category of Rule 4(c) or Rule 5, is clear from the fact that the Government had to amend the said rule in 1968 in G.S.R. 851, dated 27th April, 1968 by bringing in specifically the Assistant Signal and Tele-communication Engineers recruited through the Commission, initially as temporary officers. But Clause 8 of Appendix I was not amended and it continues to apply to the classes of officers appointed under Rule 4(b) and (c) and Rule 5 as un amended and not to Assistant Signal and Tele-communication Engineers appointed on temporary basis. The reference to Rule 4(b) in Clause 8 of the Appendix, is to the un amended Rule 4(b) and not to the Rule 4(b) as amended in 1968. Therefore the first respondent had no power to give seniority to the Temporary Assistant Signal and Tele-communication Engineers prior to the dates on which they were absorbed in Class I service.

18. Even assuming that Clause 8 of Appendix I applies to such temporary officers, I do not think, it is reasonable to interpret the said clause as empowering the Government to fix the seniority of the direct recruits appointed under Rule 4(a) and the officers appointed under Rule 4(b), (c) and (d) and Rule 5 in any manner the Government chooses. Claus 8 no doubt reserves a right to the Government to fix seniority at their discretion. But this discretion should be exercised in a reasonable and fair manner. In fixing the relative seniority of the various officers falling under different clauses in Rules 4 and 5, the Government cannot fix the seniority in such a manner as to prejudice the claims of officers appointed under Rule 4(a). In the case of direct recruits falling under Rule 4(a), it is admitted that their seniority would commence from the dates of their joining the service. By giving seniority to the temporary officers who were absorbed into Class I service subsequent to the appointment of direct recruits, the candidates who had been recruited by merit through competitive examination would be placed at a disadvantageous position. The impugned orders giving weight age to the Temporary Assistant Signal and Tele-communication Engineers, give an undue advantage to them over the direct recruits selected by competitive examination on the basis of merit. If Clause 8 is to be construed as conferring power on the Government to fix the seniority at their discretion and in exercise of such discretion, seniority is to be fixed by giving weight age to the service of the temporary officers to the detriment of the officers directly recruited and who became members of Class I service earlier to the temporary officers, it would amount to conferment of an arbitrary and discriminatory power without laying any guidelines for the exercise of the said discretion. The exercise of such power by the Government would completely give the go-by to the relevant statutory rules and also to the method of selection of candidates through competitive examination on the basis of merit, and would amount to circumventing the principle of selection through competitive examination on the basis of merit. I do not think that Clause 8 of Appendix I can be construed as conferring such a power. Otherwise it would amount to conferring of an unfettered and arbitrary discretion and would be violative of Articles 14 and 16 of the Constitution.

19. The facts of this case disclose that the petitioner was recruited through competitive examination and was appointed into Railway service on 10th May, 1963; whereas the respondents 2 and 3 though appointed as temporary officers in 1956, were absorbed into Class I service only on 1st March, 1959. The 2nd respondent appeared for the competitive examination in 1951 but was unsuccessful. By giving weight age to their temporary service under the impugned orders, the respondents 2 and 3 will become seniors to the petitioner though they were absorbed into service later, and gain an undue advantage over the petitioner by the application of the impugned order dated 26th May, 1972. Therefore, the said impugned order in so far as it purports to grant to the temporary officers weight age equal to half of the length of service counting from the date of joining to the date of absorption in Class I service, makes a hostile and invidious discrimination against the petitioner, and offends Articles 14 and 16 of the Constitution.

20. In the writ petition, the petitioner challenges both the orders of the Railway Board dated 17th September, 1965 and 26th May, 1972. But it is the application of the latter order that gives an undue advantage to the respondents 2 and 3 over the petitioner. In the circumstances, it is only the latter order that has to be struck down as violating the provisions of Articles 14 and 16 of the Constitution, so far as the petitioner is concerned.

21. It is also contended by the learned Counsel for the petitioner that the impugned orders are mere executive instructions and they cannot override the statutory rules.

22. Admittedly the rules do not provide for giving of weight age of service to the temporary employees and, therefore, the instructions contained in the impugned orders contravene the statutory rules and provide for fixation of seniority in a manner not contemplated by the statutory rules. On this ground also, the impugned orders cannot be enforced against the petitioner.

23. The second contention urged by the learned Counsel for the petitioner is that even assuming that these orders are validly issued, they cannot have retrospective effect.

24. I think, there is force in this sub mission. The seniority of the petitioner has to be fixed in accordance with the relevant rules in force at the time he was appointed to the service. It is admitted that the petitioner has a right to have his seniority fixed according to the date of his joining the service, i.e., 10th May, 1958; but it is contended that this date has not been altered and therefore the petitioner's right is not affected. But by giving effect to the impugned orders and giving weight age of service to the respondents 2 and 3, the seniority of the petitioner is affected. The petitioner joined regular service on 10th May, 1968. The impugned orders were passed by the Railway Board in 1965 and 1972. The executive instructions unlike the statutory rules, cannot be given retrospective effect. Therefore, the impugned orders cannot be applied retrospectively so as to effect the seniority of the petitioner.

25. The third contention urged by the learned Counsel for the petitioner is that the impugned orders confer special advantage on temporary employees with regard to seniority to the detriment of the petitioner and other Class I Officers directly recruited through competitive examination, and are arbitrary, discriminatory and violate Articles 14 and 16 of the Constitution.

26. I have already held that Clause 8 of Appendix I cannot be construed as conferring a power on the Government to fix the seniority of the officers appointed under Rules 3 and 4 in such a manner as to be detrimental to the officers appointed under Rule 4(a), and that if the said Clause 8 is to be construed as conferring such a power, it would amount to conferring an arbitrary and unfettered power and would violate the Articles 14 and 16 of the Constitution, Even otherwise the impugned order conferring special advantage on temporary employees and fixing their seniority by giving of weight age of their temporary service prior to their absorption into Class I service, constitutes an unfair and invidious discrimination against the officers appointed by direct recruitment through competitive examination prior to the absorption of temporary officers into Class I service and would violate Articles 14 and 16 of the Constitution. On this ground also the impugned order dated 26th May, 1972 is liable to be struck down.

27. Further it is to be noted that the appointment order of the temporary officers clearly shows that their posts were temporary and unclassified and they could be absorbed into vacancies up to a particular limit in a year commencing from the recruitment to the service on the result of the examination held in the succeeding year, and that their seniority would count only from the date of their confirmation. Even according to the terms and conditions of their temporary appointment, the temporary officers cannot claim seniority prior to their date of confirmation in the service. If weight age is to be given for their superior service, it would be to the detriment of the officers directly recruited through competitive examination prior to the absorption of the temporary officers.

28. The learned Counsel for the Railways relies upon the decision of my learned brother Obul Reddi, J. (as he then was) in W.P. No. 35 of 1973 dated 13th March, 1973.

29. But the contentions raised in this petition are not the same as those raised in that writ petition. Therefore, that decision does not render much assistance to the argument of the learned Counsel for the Railways.

30. In the result, the writ petition is allowed and a writ of mandamus will issue directing the first respondent not to enforce the order issued in the Railway Board's letter No. E(C)-1-71/SR6/12 dated 26th May, 1972 against the petitioner and in favour of the respondents 2 and 3. The petitioner will have his costs from the first respondent. Advocate's fee Rs. 100.


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