1. This petition is directed against orders made by a letter of 26th July, 1966 emanating from the Divisional Superintendent, Northern Railway, New Delhi by which the petitioners have been informed that their names have been removed from a selection panel on which the names had been brought sometime back and that they would hold their present posts ex gratia till such time as they are re-empanelled through fresh selection. The result of the issue of this letter, according to the petitioners, is that though they continue to hold the posts to which they were appointed after the earlier selection and subsequent passing of the prescribed course, they will again have to appear and compete for being selected and if at all selected would become junior to those who have been empanelled in the subsequent selections or even in the subsequent selections or even in the selection which took place when the petitioners were also empanelled. The complaint of the petitioners is that the impugned action affects their status and is likely to affect their seniority which is unjustified both in law as well as the practice prevalent in the department.
2. The facts leading to the impugned order being passed are that the petitioners who were Railway employees in subordinate grades came to know by a letter dated 7-2-1961, issued by the Divisional Superintendent, Northern Railway (Annexure `A' to the petition) that applications were invited for selection to the posts of Assistant Station masters and Section Controllers from staff in various categories who had already passed some qualifying courses known as the old P.1 or the new P. 16/17 course if they had not attained the age of 40 years at the time of the passing of the course. This very letter further provided that the members of the staff in the specified categories who had not attained the age of 40 years on 25-2-1962 may also apply even if they had not passed the prescribed courses because it was reasonably possible for them to pass through the course before attaining the age of 40 years.' The petitioners though they had not passed the prescribed course were thus made eligible to apply for being selected for appointment to the posts of Assistant Station Masters and Section Controllers and they did prefer applications. The employees who applied and were held eligible, including the petitioners, were then called for a written examination and a viva voce test. The result of the selection thus conducted was announced on 3rd January 1962 and the petitioners were declared to be successful in the tests held. Out of the persons selected those who had passed the prescribed course prior to the selection being held were promoted and appointed in vacancies in the higher posts. The petitioners, however, after being selected were sent for qualifying in the requisite course. It may be mentioned that the P.1 course by this time had been abolished and instead P. 16 and P. 17 courses had been instituted. Some of the petitioners qualified in the P. 16 course had been instituted. Some of the petitioners qualified in the P.16 course which was an advance and higher course than the P. 1 course while the other petitioners qualified in the P. 1 course. After qualifying in the courses the petitioners were promoted to officiate against permanent vacancies from 1963 on the following dates:
1. Shri Jagit Singh Uppal 1-1-1963
2. Shri Satogun Singh 2-2-1963
3. Shri. Joginder Nath 30-3-1963
4. Shri. Om Prakash Nanda 30-3-`963
5. Shri. Glan Chand 30-3-1963
6. Shri. Krishan Lal Bali 9-7-1963
7. Shri. Chhoteylal Jain 2-12-1963
8. Shri. Som Nath 17-5-1963
9. Shri. Naren Chander Gupta 2-12-1963'.
The panel on which selected candidates had been placed in the selection held in 1961-62 and included the names of the petitioners, was exhausted by promotion of all the persons on the panel by 1964. A further selection in similar way was then held in 1965 in which persons junior to he petitioners and also some of the persons who had appeared in the written and viva voce tests along with the petitioners were selected and this sencond panel was also exhausted by appointment of the selected and this second panel was also exhausted by appointment of the selected personnel to the higher posts by 1966. Thereafter on 26-7-1966 the impugned order of the Divisional Superintendent was issued stating that the petitioners' names had been deleted from the select list and that they were to hold their present posts ex gratia till they qualified in the promotion course and were duly empanelled in a subsequent selection. The impugned later further sets out that the officiating period of the appointment of the petitioners would be treated as adhoc and could be treated as regular appointment only from the date that the petitioners got empanelled in a subsequent selection. The impugned letter is Annexure `C' to the petition. As a consequence of the issue of this letter the names of 11 persons including the petitioners were struck out from the select panel. The petitioners appealed against this order individually on various dates but had received no reply to their appeal till the filling of the petition on 3-2-1967. The petitioners, as briefly noticed above, have challenged this removal of their names from the select panel on various grounds set out in paragraph 15 of the petition.
3. The respondents have contested the application and have contended that the rules prescribed the bringing of only such persons on the select panel as had passed the prescribed curses known as Course P.1 or P.2 or P. 16 or P. 17 and since the petitioners were empanneled contrary to this provision they have to be de-empanelled. It is further contended that the petitioners' fear of their seniority being disturbed is misplaced inasmuch as the selection of 1965 done in the same manner as the selection of 1962 has also been ordered to be set aside and all persons selected whether in 1961/62 or in 1965 will again have to be re-selected. According to the respondents the petitioners have no right to the posts that they were holding and in any case, the retention of their name on the select-retention of their names on the select-panel is subject to their continued suitability for the post in question.
4. In order to appreciate the contentions raised by the parties it will be necessary first to read the relevant rule in this behalf. It is the case of the petitioners that the rules governing promotion of subordinate staff are as contained in Chapter Ii of the Indian Railway Establishment Manual (Second edition) read with Appendix -2A of the Indian Railway Establishment Code Volume 1 1951 Edition. The rules in appendix II-A of the Code which must be read in extenso are Rules 4, 6, 7 and 9 (e) which are in the following terms.
'4. Promotion - (a) A railway servant may be promoted to fill any post whether a selection post or a post selection post, only if he is considered fit to perform the duties attached to the post. The General Manager, or the Child Mining Engineer or the Head of the Department may prescribe the passing of specified departmental or other tests of specified departmental or other tests as conditions precedent to an employee being considered fit to hold specified posts; such rules should be published for the information of the staff concerned.
(b) Promotions shall be made with out any communal considerations or racial consideration.
6. Selection Posts - (a) Selection posts shall be filled by a positive act of selection made with the help of Selection Boards from amongst subordinates who are ordinarily considered for promotion to the selection post in accordance with the orders or practice regulating such promotions. The men considered shall ordinarily not be in grades lower than two grades below the post to which promotion is being made.
(b) The selection for promotion to a selection post shall be made on the basis primary of merit. The employees most suitable for filling the post shall be recommended. Seniority will also be taken into consideration, but it will not be the chief factor.
(c) Promotion to selection posts shall be made by the competent authority in accordance with the recommendations of a Selection Board which as complied with the procedure detailed in Rules 7, 8 and 9 below. If in any case, such authority is unable to accept the recommendation, a reference shall be made to the General Manager or the Chief Mining Engineer, whose decision shall be final.
7. Selection Boards - (a) Selection Board shall be considered for the purpose of making recommendations to he competent authority of the employees considered by it as suitable for filling a selection post.
9(e) After full consideration of all the facts including the results of the interviews if they are arranged, the Board shall draw up its recommendations. It shall place the candidates in the order of merit. If the filling of any particular single post is under consideration, the Board shall recommend the candidate considered by it most suitable for the post and need not place more candidates in the order of merit than the competent authority desires'
5. Chapter Ii of the Manual also sets out the manner of constitution of the persons selected by the Selection Board etc. and lays down that the persons selected by the Selection Board shall be constituted into a panel from which appointments will be made as and when vacancies are available for higher posts. It further provides that the panel drawn up by the Selection Board and approved by the competent authority shall be current till the next selection which should ordinarily be held only after the first panel has been exhausted.
6. In accordance with these rules the petitioners were considered by the Selection Board and their names were put on the panel. They were, however, not appointed to the higher posts till after they had passed the requisite courses.
7. I have heard Mr. Frank Anthony the learned counsel for the petitioners and Mr. Nank Chand fro the respondents. The controversy is really within a very narrow ambit which is whether the promotion of the petitioners is to be jeopardised because they were selected when they were still not qualified though were appointed only after obtaining the requisite qualification. According to Rule 4 of the Rules in Appendix Ii A extracted above promotion has to take place only after the prescribed tests or conditions are fulfillled by a persons and that has noting to do with the selection. A person who has not passed the prescribed tests and does not fulfilll the conditions precedent may be selected but cannot be promoted till he passes the tests and fulfillls the conditions precedent. As I read Rule 6 of Appendix II-A of the Code there is no bar to selection of persons through they may not have passed the requisite tests prior to the selection. In fact Rule 6 lays down that the selection is to take place from amongst the persons in accordance with the orders and practice regulating such promotions. Mr. Nanak Chand contends that unless and until the select has passed the tests and fulfillls the conditions precedent he could not be selected for promotion at all. There is a distinction between a person being selected fro promotion and being actually promoted. The petitioners have shown and it is not in dispute that they had been selected earlier. It is contended by Mr. Anthony that the manner in which the petitioners were selected was in keeping with the orders and practice prevalent not only at the time when the petitioners were selected but has been followed subsequently. In this connection he invited my attention to the selection made in 1965 and Annexures D and E filed along with the rejoinder of the petitioners. That the selection of 1965 took place in the same manner as the selection of 1961/62 is not in dispute Annexure D is a letter dated 14-2-1968 issued from the Northern Railway Head Quarter's office, New Delhi in which it is set out that it had been decided that R. T. As . eligible for promotion to the posts of Assistant Station Masters and Selection Controllers may be called for selection irrespective of whether they not are those found suitable may be placed on a panel but the empanelled have qualified R.T As. will not be promoted till they have qualified in the promotion courses P16 and P.15. This letter has been issued to the Divisional Superintendents, Northern Railway in Allahabad, Bikaner, Delhi and Ferozepur etc. Annexure E is another letter dated 19-4-1968 issued from the office of the Divisional Superintendent, Northern Railway, New Delhi in which it is set out that persons selected during 1966-67 will have to pass the promotion course P. 16 within the currency of the panel prior to their being actually promoted and that if they fail to pass the requisite-course their names will be deleted from the panel. On the strength of these letters issued, Mr. Anthony urges that even subsequent to the issue of the impugned, order against the petitioner, the respondents continue to follow the same practice and produce as was adopted in the case of the petitioners and that the impugned action accordingly amounts to discrimination as well as violation of the rules and practice. As against this contention the learned counsel for the respondents has urged that the practice followed is not in accordance with the rules and instructions are being issued to cancel the panels already made so that those who were selected prior to their passing the requisite courses would have to appear for selection all over again. To my mind the contention raised on behalf of the respondents is not sound. The respondents cannot discriminate against a section of their employees and if they have been following a certain procedure all through and are still following the same as is apparent on a reading of Annexures D and E they cannot be allowed to de-empanel the petitioners. Further the empanelment by itself has no relevance according to the rules as a person is required to have the requisite person is required to have the requisite qualification only at the time when he is promoted. This the petitioners undoubtedly had.
8. Mr. Nanak Chand has then urged that merely being on a select panel does not give any right to the petitioners and so the removal of their names from the panel also is not justifiable. For this contention he has placed reliance on a single Bench decision of this Court in Civil Writ No. 211 of 1967 (Delhi) Shri. Vinod Kumar v. Union of India decided on 15-1-1970. In this case, the petitioners in the grade of Rs.175-240 in the Northern Railway. By letter dated 17-12-1965 it was decided to hold selection for the post of Assistant Block Inspectors in the grade of Rs. 20-5-280. As a result of the selection made, a list of staff selected fro the post of Assistant Block Inspectors in order of their seniority was prepared on 6-7-1967. At the bottom of the list, however, it was expressly stated that the persons mentioned in the list were warned that the petition of their names on the approved list was dependent on their work remaining satisfactory during the currency of the panel and the mere fact of the names having been placed on the panel was no guarantee that they would be offered the post of Assistant Block Inspector. On 19-10-1966 this panel was cancelled and all the persons concerned including the petitioners were informed accordingly. The petitioners had not been promoted till the cancellation of the panel. In these circumstances, Deshpande, J. held that the Government had a right to correct any mistake committed by it by issuing administrative instructions and no right of the petitioner had been jeopardised or affected by the cancellation of the panel. It was further observed by the learned Judge that the select panel had been drawn up under administrative instructions and not under any statutory rule and if in drawing up that panel certain administrative instructions had been issued which were later withdrawn the petitioner could not complain of any breach of any right. I am in respectful agreement with the observations of the learned Judge but fail to see how the rule laid down in Vinod Kumar's case Civil writ No. 211 of 1967, D/- 15-11-1970 (Delhi) is attracted in the present case. Mr. Nanak Chand urged that the promotion rules given in Appendix II-A of the Code of 1951 are no longer in force and must be regarded as repealed and so violation of these rules causes no injury to the petitioners. According to him since the petitioners have relied on Rule 4 of Appendix II-A of the Code of reliance is misplaced and it must be held that the selection in the present case was administrative in nature and so could be corrected administratively on the ratio of the decision in Vinod Kumar's case.
9. In order to attract Arts, 14 and 16 of the Constitution of India it is not necessary to contend or prove that any law or rule is discriminatory. Discrimination even by executive action can be made subject matter of judicial determination. In Vinod Kumar's case the select list prepared under what has been held to be administrative instructions was scrapped before anybody from the panel was promoted. This in essence is the distinction between the facts in Vinod Kumar's case Civil Writ No. 211 of 1967 D/- 15-1-1970 (Delhi) and the present case. Once a person has been promoted on the basis of statutory rules or administrative instructions, a right is created in such person and that right cannot be jeopardised by subsequent action unless it is justified by law or rules and the action is not in breach of fundamental rights enshrined in Part Iii of the Constitution. In the present case on the basis of instructions issued from time to time a panel was created from which promotions were made after the persons on the panel has acquired the requisite qualifications and satisfied the conditions precedent to promotion. Once that has been done a right vested in such promotes and by subsequent administrative instructions their rights could not be put into jeopardy.
10. Mr. Frank Anthony has relied of an unreported decision of Allahabad High Court in C.M. Writ No. 3739 of 1966 connected with C.M. Writ Nos. 3740, 3741 and 3742 of 1966 (All) decided by that Court on 6-1-1967. In those matters the petitioners were employees of the Central Railway and posted in the Jhansi Division as Drivers Grade `C'. The next higher grade was of were to be made by selection. On vacancies accruing in the higher grade a Selection Board was constituted for recommending persons for promotion as Grade `B' drivers. The Drivers Grade `C' were called for selection and after taking a written and viva voce test a panel of 46 persons were constituted and it was recommended that promotions be made for that panel. The Divisional Superintendent, Jhansi Division, who was the competent authority to order promotion on seeing this panel and on considering the recommendations felt that several senior candidates had not been included in the panel and so called for and considered the confidential reports of those persons as well as the persons who were included in the panel. The Divisional Superintendent then sent his recommendations to the General Manager for approval of the panel with his comments. The panel as recommended by the Selection Board was ultimately approved and published. The persons on the panel were subsequently promoted as Grade `B' drivers. The petitioners were some of the promotes. A few months later this panel was declared null and void and cancelled and the petitioners were informed that their promotions as Drivers Grade `B' would be treated as purely fortuitous and they would have no prescriptive right to continue selected afresh. The validity of this order was challenged before the Allahabad High Court Satish Chandra, J. held that the Selection Board proceeded in accordance with the procedure prescribed and drew up a panel which was ultimately approved. This having been done and promotions having been made from the panel the General Manager or any other officer had no right or power to cancel the earlier selection. It was been exhausted by promotion of persons on it the same could no longer be declared null and void as it did not subsist. No doubt the decision of Satish Chandra J is based on a construction of the statutory rules given in Appendix II-A but the principle would be the same whether the selection and drawing up of panel is made under administrative instructions or any statutory rules. In my view facts in the case of the Allahabad High Court are pari materia to the facts in the present case and the rules laid down therein would be attracted.
11. Mr. Nanak Chand relied on a rule given in the Manual that the retention of Railway Servant on a panel will be subject to his continued suitability for the post in question and that according to this rule it was open to the authority next above the one which initially approved the panel on being satisfied that an employee is no longer suitable for promotion to delete his name from that panel. It is urged that in view of this rule the impugned order cannot be challenged. The contention is wholly unsustainable. First of all the petitioners' names have not been removed from the panel because of unsuitability and secondly, this rule would be attracted only before the promotion actually takes place. A reading of the impugned order shows that the petitioners have been de-emphanelled not because they were unsuitable for promotion but because their names were included in the panel originally without the petitioners having passed the requisite courses prior to selection. The rule pleaded by the learned counsel, is thereforee not attracted.
12. Mr. Anthony also contended that it is strange that the respondents on the one hand are de-empanelling persons on the ground of their not having been qualified in the requisite courses prior to selection in one division while in the others they are still continuing to follow the same practice and were selected and subsequently promoted. In this connection, reference has been made to Annexure D and E filed with the rejoinders which have already been notified earlier. Surely this sort of discrimination is not permissible and in one division and another policy for record to show that similar employees in the various divisions are not similarly placed. In this view of the manner also the impugned order has to be quashed.
13. Lastly, Mr. Anthony's contention was that the impugned orders have been passed in violation of the rules of natural justice. According to him once the petitioners have been promoted on the basis of selection and acquisition of the requisite qualification, subjecting them to further selection and making the holding of their posts ex gratia tantamounts to civil consequences emanating from the impugned order vis-a-vis the petitioners. The learned counsel contends that even if the impugned order could be passed the rules of natural justice envisaged that before such administrative orders are passed the petitioners should have had an opportunity to show cause against the passing of he impugned order. Reliance in this connection is placed on the observations of the Supreme Court in cases of Bhagat Raja : 3SCR302 and Dr. Miss Binapani Dei, : (1967)IILLJ266SC . It is not necessary to dilate on this aspect.
14. The result is that the petition is accepted and a writ is issued quashing orders contained in Memorandum No. 758E/79-IV (Eia) dated 26-7-1966 issued by the office of the Divisional Superintendent, Northern Railway, New Delhi vis-a-vis the petitioners with costs Counsel's fee Rs. 250/-
15. Petition allowed.