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Shitla Sahai Srivastava Vs. General Manager, North Eastern Railway - Court Judgment

LegalCrystal Citation
SubjectService
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1966SC1197; 1966(0)BLJR684; (1966)IILLJ755SC; [1966]3SCR61
ActsPromotion and Selection Rules - Rules 8, 8(7) and 11; Indian Railway Establishment Code; Constitution of India - Articles 226, 311 and 311(2)
AppellantShitla Sahai Srivastava
RespondentGeneral Manager, North Eastern Railway
Cases ReferredCalcutta v. Amal Kumar Roy
Books referredOxford English Dictionary
Excerpt:
.....under article 226 to issue writ challenging validity of order of deletion - deletion amounted to reduction in rank - high court dismissed writ petition observing that deletion not amounted to reduction in rank and no constitutional provisions attracted - appellant appealed before supreme court - name of appellant provisionally enlisted in panel - apex court held, appellant not to claim promotion as matter of right and no relief to be given to appellants. - labour & services back wages: [tarun chatterjee & h.l. dattu, jj] services of respondent unjustifiably and illegally terminated by the appellant without complying with the procedure prescribed in section 6-n of the u.p. industrial disputes act - labour court awarded full back wages held, although services of the respondent have..........examiner. the post of travellingticket inspector, which is the next higher post, is a selection post. selectionis made by a selection board in accordance with the promotion and selectionrules (non-gazetted) framed under para 158 of the indian railway establishmentcode, volume. i (hereinafter referred to as the rules). every year, anassessment of the number of vacancies that are likely to occur during that yearis made. the chief commercial superintendent is the appointing authority forthe posts of ticket inspectors. in accordance with r. 8(7), eligible staff, upto four times the number of anticipated vacancies, shall be called up forwritten and viva voce tests. after the examination and the interview, the boardprepares a panel and promotions are made from the said panel. 3. in the year.....
Judgment:

Satyanarayana Raju, J.

1. This appeal, by special leave, is against the judgment of a DivisionBench of the Allahabad High Court which affirmed the judgment of a single Judgeof that Court. The facts giving rise to this appeal may be shortly stated asfollows.

2. The appellant had been in the service of North-Eastern Railway holdingthe substantive post of Travelling Ticket Examiner. The post of TravellingTicket Inspector, which is the next higher post, is a selection post. Selectionis made by a Selection Board in accordance with the Promotion and SelectionRules (Non-Gazetted) framed under Para 158 of the Indian Railway EstablishmentCode, Volume. I (hereinafter referred to as the rules). Every year, anassessment of the number of vacancies that are likely to occur during that yearis made. The Chief Commercial Superintendent is the appointing authority forthe posts of Ticket Inspectors. In accordance with r. 8(7), eligible staff, upto four times the number of anticipated vacancies, shall be called up forwritten and viva voce tests. After the examination and the interview, the Boardprepares a panel and promotions are made from the said panel.

3. In the year 1959, a Selection Board for preparing a panel for theex-Muzaffarpur region was constituted. There were, during that year, eightexisting vacancies which were to be filled up immediately. In addition, a panelof six was required to be drawn up. It was also expected that there would benine more vacancies on account of upgrading of posts but this did not actuallymaterialise. But, due to an incorrect assessment of the anticipated number ofvacancies, 92 persons were called up for examination, whereas 56 persons shouldhave been called up for written and viva voce tests.

4. There was a written examination on February 22, 1959 and March 31, 1959,and thereafter the Selection Board interviewed the candidates. As a result ofthe examination and the viva voce test, the Selection Board prepared a panel offourteen persons and the appellant was given the twelfth rank in the panel. Hewas posted as officiating Travelling Ticket Inspector on or about July 28,1960. The final list of persons brought on the panel was published in theRailway Gazette on January 1, 1961 and the appellant was shown at serial no. 13in that panel. But a note was appended to the notification stating that theselection of the appellant and five others was provisional.

5. By a letter, dated September 29, 1961, the Chief CommercialSuperintendent, North-Eastern Railway, Gorakhpur, under the orders of theGeneral Manager, the prescribed authority, deleted the name of the appellantand five others who were shown at serial numbers 9 to 14 in the panel.

6. On November 28, 1961, the appellant filed a petition under Art. 226 ofthe Constitution for the issue of a writ of certiorari, impugning the validityof the order dated September 29, 1961 in and by which his name had been removedfrom the panel. He contended that the deletion of his name from the panelindefinitely postponed his right of promotion and therefore amounted to areduction in rank.

7. The respondents contested the petition. They averred that the name of theappellant was deleted from the panel in accordance with rules, that he had nosubsisting right to the post merely by reason of the fact that his name wasincluded in the panel, that the appellant and five other persons were called upfor examination on an incorrect assessment of the number of vacancies. It wasalso contended for the respondents that the provisions of art. 311 were notattracted.

8. By judgment, dated March 14, 1963, the learned Single Judge dismissed thewrit petition filed by the appellant. He held that the deletion of theappellant's name from the panel did not amount to reduction in rank under art.311 and that therefore he was not entitled to the notice prescribed by thatarticle. The learned Judge also held that the appellant had not establishedthat the decision of the respondent amounted to a violation of anyconstitutional provision of statutory rule.

9. The appellant preferred an appeal which was summarily dismissed by aDivision Bench. An application for leave to appeal to this Court was alsorejected. Thereupon, the appellant obtained special leave from this Court.

10. In support of the appeal, it is contended for the appellant by Sri. S.P. Sinha, that the deletion of the appellant's name from the panel amounted toa reduction in rank and that the order was bad in law for the reason that theappellant was not given an opportunity to explain or defend himself before hisname was deleted from the panel. Now, as has been explained by this Court inParshotam Lal Dhingra v. The Union of India, : (1958)ILLJ544SC theexpressions 'dismissal', 'removal' or' reduction in rank' are technicalwords taken from the service rules where they are used to denote the threemajor categories of punishments.

11. The question for determination is whether the deletion of theappellant's name from the panel amounts to a reduction in rank within themeaning of art. 311. Mention has already been made of the fact that the panelwas prepared under the rules. Rule 8 lays down the procedure to be followed bythe Selection Board. Sub-rule (7) of that rule reads :

'Eligible staff up to 4 times the number ofanticipated vacancies as defined below shall be called up for written and/orviva voce test...'

12. Under the above rule, eligible staff up to four times the number ofanticipated vacancies should be called for written and viva voce test. Thevacancies to be filled up were 8 and in addition a panel of 6 was required tobe drawn up; thus for the 14 persons to be included in the panel, 56 eligiblestaff were to be called. On account of an incorrect assessment of theanticipated vacancies, 92 persons were called to take the promotionexamination. The appellant's number in the eligible staff was after 56 and, butfor the mistake, he would not have been called for the examination.

13. Rule 11 provides that panels for selection posts framed by a dulyconstituted Selection Board and approved by the competent authority shall notbe cancelled or amended without reference to an authority next above the onethat approved of the panel. Now, the panel was-prepared by the Chief CommercialSuperintendent, Gorakhpur, who was subordinate to the General Manager,North-Eastern Railway. The panel, as originally drawn, was subsequently amendedby the Chief Commercial Superintendent under instructions from the GeneralManager. This was in accordance with rule 11.

14. In the final list of the personnel included in the panel, the names ofSahai and Ramanand were included. The name of the first of them was included byreason of the fact that his marks were not correctly totalled up and the secondwas included by reason of the fact that he belonged to the Scheduled Caste. Thecomplaint made by the appellant is that by reason of the inclusion of the saidtwo persons in the final panel of Travelling Ticket Inspectors there was nopost in which he could be kept and he was therefore reverted till anothervacancy occurred, that by reason of the deletion of his name from the panel itwould be necessary for him to appear before another Selection Board and untilhis name was again brought into the panel he would have no chance of being promotedto the post of Travelling Ticket Inspector.

15. It is to be noted that in the panel prepared by the Selection Board theword 'provisional' was specifically noted against the name of the appellantwhich clearly shows that he did not acquire a right to the post. The deletionof his name from the panel therefore does not attract the provisions of art.311. If a civil servant has a right to a particular rank, then the veryreduction from that rank will operate as a penalty, for he will then lose theemoluments and privileges of that rank. If, however, he has no right to theparticular rank, his reduction from an officiating higher rank to hissubstantive lower rank will not ordinarily be a punishment : vide Dhingta'sCase : (1958)ILLJ544SC It is no doubt true that in the said case it has beenheld that when reversion entails penal consequences, it would be reduction inrank, but the instant case is not one in which penal consequences have beenvisited on the appellant.

16. Learned counsel for the appellant has relied upon the decision of aSingle Judge of the High Court of Calcutta as supporting his contention thatthe deletion of the appellant's name from the panel would amount to a reductionin rank. That decision is reported as Dineshwar v. Chief CommercialSuperintendent, Eastern Railway A.J.R.1960 Cal. 209

17. At p. 211, the learned Judge observed :

'The question is whether the striking of thepetitioner's name from the panel, has affected his future right of promotion.In my opinion, the inescapable conclusion is that it has so affected thepetitioner. As I have mentioned above, promotion from Class III post to a ClassII post is to be done according to the recommendations made by SelectionBoards. Where there is such a list or a panel, then a person not in the listcannot hope to be promoted... It is implied, that in order to have a chance ofpromotion, the petitioner would have to be in the selection list, that is tosay, in the panel... But with regard to the second contention, viz., that thestriking out of his name from the panel affected his chances of futurepromotion, it is a point of substance and must be upheld. What the authoritiesshould have done before striking out the name of the petitioner from the panelwas to give him an opportunity of showing cause as to why his name should notbe struck off from the panel and the order could only be made after giving thepetitioner an opportunity of being heard.'

18. We are of opinion that this is not a correct statement of the law, inview of the decision of this Court in High Court, Calcutta v. Amal Kumar Roy : [1963]1SCR437 . There the facts were these. The respondent was a Munsifin the West Bengal Civil Service (Judicial). When the cases of several Munsifscame up for consideration before the High Court for inclusion of names in thepanel of officers to officiate as Subordinate Judges, the respondent's name wasexcluded. He was told by the Registrar of the Court, on a representation madeby him, that the Court had decided to consider his case after a year. As theresult of such exclusion, the respondent, who was then the seniormost in thelist of Munsifs, lost eight places in the cadre of Subordinate Judges before hewas actually appointed to act as an Additional Subordinate Judge. He filed asuit praying that a declaration might be made that he occupied the sameposition in respect of seniority in the cadre of Subordinate Judges as he wouldhave done if no supersession had taken place. His case, in substance, was thatas a result of the High Court's order he was reduced by eight places in thelist of Subordinate Judges, and that in law amounted to reduction in rankwithin the meaning of art. 311(2) of the Constitution. This Court held at p.453 as follows :

'In our opinion, there is no substance in thiscontention because losing places in the same cadre, namely, of SubordinateJudges, does not amount to reduction in rank, within the meaning of art.311(2). The plaintiff sought to argue that 'rank', in accordance withdictionary meaning, signifies 'relative position or status or place', Accordingto Oxford English Dictionary, the word 'rank' can be and has been used indifferent senses in different contexts. The expression 'rank' in art 311(2) hasreference to a person's classification and not his particular place in the samecadre in the hierarchy of the service to which he belongs. Hence, in thecontext of the Judicial Service of West Bengal, 'reduction in rank' would implythat a person who is already holding the post of a Subordinate Judge has beenreduced to the position of a Munsif, the rank of a Subordinate Judge beinghigher than that of a Munsif. But Subordinate Judges in the same cadre hold thesame rank, though they have to be listed in order of seniority in the CivilList. Therefore, losing some places in the seniority list is not tantamount toreduction in rank. Hence, it must be held that the provisions of Art. 311(2) ofthe Constitution are not attracted to this case.'

19. This decision has established the following principle, viz., theexpression 'rank' in art. 311(2) has reference to a person's classification andnot his particular place in the same cadre in the hierarchy of the service towhich he belongs and therefore losing some places in the seniority list is nottantamount to reduction in rank within the meaning of art. 311(2) of theConstitution.

20. It is perhaps true that the hopes of the appellant were raised by reasonof the inclusion of his name in the panel. It is also true that the respondentmade an incorrect assessment of the anticipated number of vacancies, but thefact remains that his inclusion in the panel was expressly stated to beprovisional. The appellant cannot therefore complain of any infraction of theguarantee given by the Constitution of Government servants.

21. The appeal fails and is dismissed. In all the circumstances of the case,there will be no order as to costs.

22. Appeal dismissed.


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