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Jagdish Singh Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Civil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Petition No. 140 of 1970
Judge
Reported in1975(8)WLN843
AppellantJagdish Singh
RespondentUnion of India (Uoi) and ors.
Cases ReferredIn N. Rudraradhya v. State of Mysore
Excerpt:
railway establishment manual - rules 2 & 157--ex r/1, r/2, r/3 & r/4 are not such rules as modify rule 2--statutory rules and administrative orders--distinction between.;the statute itself provided for the quota and in exercise of the power under the rules the government could not depart from it on the plead that the fiction of quote was merely an administrative direction. power may be conferred on the executive by a statute to take a certain action, but it would not mean that in every case whether action is taken will be the making of a rule, though it may be an order in exercise of a statutory power.;the president or the governor acts under article 09 of the constitution in the legislative sphere, because in the absence of any act of the competent legislature laying down the.....kan singh, j.1. this is writ petition under article 226 of the constitution by one jagdish singh who challenges an order of be railway authorities regarding fixation of his relative seniority vis-a-vis respondents nos. 5 to 14.2. the petitioner was in the set vice of the northern railway and posted at railway workshop at jodhpur the petitioner entered she service of the railway as an unpaid apprentice mechanic in the year 1950 and had his training. on completion of 5 years training as apprentice mechanic he was appointed as a journeyman in the grade of rs. 100 185 wish effect from 15.05.55. he came to be promoted as a chargaman in the grade of rs. 150 225 on 27.6.57 he was confirmed as chargeman in the grade of rs. 150 225 with effect from 14-7-57, respondents harbans singh was confirmed.....
Judgment:

Kan Singh, J.

1. This is writ petition under Article 226 of the Constitution by one Jagdish Singh who challenges an order of be Railway Authorities regarding fixation of his relative seniority vis-a-vis respondents Nos. 5 to 14.

2. The petitioner was in the set vice of the Northern Railway and posted at Railway workshop at Jodhpur The petitioner entered she service of the Railway as an unpaid Apprentice Mechanic in the year 1950 and had his training. On completion of 5 years training as Apprentice Mechanic he was appointed as a Journeyman in the grade of Rs. 100 185 wish effect from 15.05.55. He came to be promoted as a Chargaman in the grade of Rs. 150 225 on 27.6.57 He was confirmed as Chargeman in the grade of Rs. 150 225 with effect from 14-7-57, Respondents Harbans Singh was confirmed as Chargeman from 26.7.57 Kundan Lal was confirmed on 27.7.57, Shri Vallabh on 28.7.57, Pritam Chand on 9-10-57 and S.K. Chatterji on 21-6-59. Respondents Om Prakash, R.D. Avasthi, Shri Gopal Sahi, Kanwal Nain Singh and Gym Chand. according to the petitioner, were not confirmed as Chargeman till 7-8-61 and the petitioner proceeded to state that he had no knowledge whether these respondents were confirmed later on or not For the higher grade of Chargeman Rs 200 300 the petitioner and respondent Nos. 5 to 14 were asked to appear before a Selection Board or Committee. The petitioner End the respondent appeared to have been selected on a panel The name of the petitioner was at serial No 15 of that panel (Annexure-7 on record) and the name of respondent Nos. 5 to 14 was respectively shown at Nos. 18, 19, 20, 21, 22, 30, 31, 32, 33 and 34. After the preparation of this panel the petitioner was promoted to officiate in this grade of Rs. 200-300 with effect from 2-12-59 The petitioner was then promoted to officiate as Boiler maker Chargeman in the grade of Rs. 260-350 The respondents Harbans Singh, Kundanlal, S.V Sharma, Pritam Chand Kashyap, Om Prakash, S.K. Chatterji, Kanwal Nain Singh and Gyao Chand were also promoted to officiate as Boiler maker Chirgeman in the pay scale of Rs. 200-300 by an order dated 15-12-61. On this data the petitioner was working in the higher pay grade of Rs. 260-350. The General Manager issued a provisional seniority list of Chargemen on 21-10-67 and invited objections to this list. According to the petitioner, his name was shown at No. 13 while the names of respondents Nos. 5 to 14 were respectively shown at Nos. 15, 16, 17. 18, 19, 26, 27, 28, 28 and 30. Thus, according to the petitioner he was correctly shown senior to the concealing respondents. There was then a revised seniority list and in it top respondents Nos. 5 to 14 were shown senior to the petitioner. The petitioner's grievance is that as against this revised seniority he was not afforded an opportunity of having his say The petitioner then made a representation against the revised seniority list, but this seniority list was made final u0dar Genera! Manager's order dated 17-9-69. It is this revision of seniority that the petitioner seeks of challenge by the present writ petition.

3. He contends that it was cot open to the respondents to change the seniority at their whim and according to the relevant rules as the petitioner had entered the higher grade earlier to the respondents, he was senior to these respondents.

4. The writ petition has been opposed by the Union. The other respondents have rot chosen to tile any reply to the writ petition. It is denied by the Union that the petitioner could be taken to be senior to the concerning respondents. It is submitted that certain Journeymen of the former Jodhpur Railway and other employees of other Zones had made representation before the Railway Board and the Railway Board vide its letter dated 26-6-62 (Annexure R 1) and another letter dated 23.10.62 (Annexure-R 2) decided that the Apprentice Mechanics who had completed their period of training and were working is journeymen on 4-3-57 shall be entitled for re-adjustment of seniority in accordance with their date of completion of the apprenticeship. As regards the directly recruited Jonrneymen of the former E.P. Railway it was said that they shall be deemed to have completed their apprenticeship on the date of their joining as Journeyman for the purpose of seniority as Cnargeman as on 4-3-57. As regards provisional seniority list it was submitted that it was isseued to implement the orders contained in Annexures R 1 and R 2. The stand of the Union further is that the orders of the Railway Board as contained in Annexures R-1 and R-2 as well as the Railway Board's letter Annexures R 4 were rules made by the Railway Board in exercise of its powers under Rule 157 of the Indian Railway Establishment Code Vol. I, made by the President is exercise of his powers under Article 309 of the Constitution. It is submitted that it was felt that an anamolous situation by some persons being directly appointed as Journeymen & then as Chargeman while others being directly appointed as Chargeman on completion of their training as Apprensics had resulted and that was sought to be removed by the Railway Board. These orders as contained in the Annexures rejected to above, according to the Union, were rules made by the Railway Board in exercise of their powers under Rule 157 of the Indian Railway Establishment Code.

5. I have heard learned Counsel for the petitioner and learned Counsel for the Union at great length as I felt that the question whether the orders Annexures R-1, R-2 and R-4 could be taken to be rules made by the Railway Board in exercise of their statutory powers under Rules 157 of the Indian Railway Establishment Code was of some importance Learned Counsel were at pain in trying to persuade me to heir respective point's of view. While learned Counsel for the petitioner contended that these letters cannot be regarded as statutory rules, learned Counsel for the Union argued to the contray. Both of them placed before me number of cases which I propose to deal with hereinafter, but before doing that I may refer to the relevant rules and principles that govern seniority of civil servants including railway servants.

6. The Indian Railway Establishment Code Volume I was made by the President exercise of the powers conferred upon him under Article 309 of the Constitution. Rule 157 therein rues as follows:

157. The Railway-Board have full powers to make rules of general application to non-gazetted railway servants under 'heir control.

Rule 168 deals with the power of the Central Managers of Indian Railways, who have full powers to make rules with regard to non-gazetted railway servants under the control provided they are not inconsistent with any rules made by the President or the Railway Board There are number of rules made by the Railway Board in exercise of their powers under Rule 157 of the Indian Railway Establishment Cede Volume I They are available in the form of a compilation entitled 'Indian Railway Establishment Manual,' The Mental is divided into Chapters and Chapter III is headed as 'Rules regulating seniority of non gazetted Railway Servan's.' Rule 1 provides that the rules contained in this chapter lay down the general principles that may be fallowed for determining the seniority of non-gazetted railway servants on railway administrations Rule 2 runs as follows:

2. Unless specifically stated otherwise, the seniority among the incumbents of a post in a gride if governed by the date of appointment to the grade. The grant of pay higher than the initial pay should not, as a rule, confer on a railway servant seniority above those who are already confirmed. Such a railway servant should, however, be placed below chose temporary railway servants, who are drawing the same rate of pay. When the dates of party into the grade of promoted railway servants and direct recruits are the same, the promoted railway servants should normally be senior to the direct recruits.

Rule 3 is for seniority of candidates recruited through the Railway Service Commission or otherwise and it runs as follows:

3. The seniority of candidates recruited through the Railway Service Commission or otherwise should be determined as under:

(a) candidates who are sent for initial training to 'raining schools, will rank in seniorty in the relevant grade, in the order of merit obtained at the examination held at the end of the training period before being posted against working posts.

(b) In the case of candidates who do not undergo any training, the seniority should be determined on the basis of the ment order assigned by the Railway Service Commission or other recruiting authority.

In my opinion Rule 2 above contains nothing new, but is only a recognition of the universally accepted rule of seniority. Seniority according to its known connotation is nothing but a length of service on an equivalent post Therefore it is axiomatic that a person who enters a particular cadre earlier is senior to another who enters that cadre subsequent to him that is if an incumbent is appointed to a higher grade earlier to another than in the higher grade he will be senior to the other. The expression 'Unless speci6callv stated otherwise' in the beginning of R.2 only emphasis that unless anything is said to the cotraty in a rule for determining seniority, the seniority amongst the incumbents of a post in a arade has to be governed by the date of the appointment to the grade The controversy centres round 'he question whether the orders contained in Aanexures R/4, R/1 and R/2 are such rules as specifically state otherwise within the meaning of Rule 2 above. I may, therefore, at this pointread these there annexures:

Copy of letter No. R (S) 55 CPC/76 dated 4.3.57 from P.M. Narasiham Dy. Director, Establishment, Railway Board to: All the General Managers, Indian Railways. The General Manager Chittaranjan Loco works.

The Chief Administrative Office

Integral Coach Factor

Sub: Absorption of Apprentice Mechanics on completion of training.

Reference Railway Board's letters No. E (R) 49 JAC/19 dated 1-3 1950 and 5 7-1954 and E55 RCI/90/3 dated 22-1155. The Board have reviewed the question of absorption of Apprectice Mechanics who have successfully completed their training in the light of the discussion held in the General Managers meeting in August 1956 and have decided in modification of the orders contained in Board's letters referred to above that apprentice Mechanics on successful completion of their apprenticeship should be appointed straightaway as Chirgeman in the scale Rs 150-225 provided they are suitable in all respects for holding these posts.

sd/-

P.M. Narasimham

Dy Director, Establishment,

Railway Board.

ANNEXURE-R/1.

Government of India

Ministry of Railways,

(Railway Board)

No. E (NG) 61SR6/38 New Delhi, dared 26 June, 1962.ToThe General Manager,Northern Railway, New Delhi.Sub: Seniority and promotion of Apprentice Mechanics of Exjodhpur State Railway etc.

Reference your confidential letter No 937.F/4/V Loose dated 7-5-1962.

7. The Intention underlying the Board's orders of 4-3-1957 obviously was that all those Apprentice Mechanics who, after completion of their apprenticeship, were s ill continuing as Journeymen at the time of issue of these orders should have been promoted as Chargemen, but it would so pear that these journeymen were not considered for promotion and only those Apprentice Mechanics who completed their apprenticeship on or after 4-3-1957 were absorbed directly as Chargeman in accordance with the Board's traders This resulted in Apprentice Mechanics who completed their training earlier and were working as journeymen getting absorbed as chargemen at later dates and becoming junior to those who completed their apprenticeship later. This anomalous position has got to be put right. The Board desire that the seniority of such Apprentice Mechanics on 4-3-1957 should be adjusted as under:

(1)The apprentice mechanics who had In accordance whit their datescompleted their period of train of completion of heir apprenticeins and working as Journeymen on ship The directly recruited 4-3-1957 Journey men of Rly, will also hedeemed to have completed their apprenticeship on the date of their joining as journeymen for the purpose of seniority as chargeman on 4-3-1957(2) Apprentice mechanics who comple In the order of their date of com-ted their period of training after pletion of training.receipt of Board's orders dated4-3-19572. On the specific points raised in your letter referred to above, the Board have made the following observation:para 3 (i), Since the orders of 4-3-1957 had no retrospective pffect, there is no question of the seniority list of Chargemen prepared on the basis of length of service as en 14-4.1952 being revised on the basis of 4-3-1957 orders. The only adjustments in seniority that will be required to be made would be in the case of those who were promoted as Chargemen after 4-3-1957. This should not involve disturbing of any promotions or confirmations already modes.para 3 (ii) Since these Apprentice Mechanics did not work asChargeman, there shall be no question of payment of any arrears of pay.para 3 (iii) The existing unoperated panels in the higher gradesshould be cancelled and fresh selections held on the basis of recast seniority. The question of recovery of over payments does not arise.para 3 (iv) The benefit of seniority should also be extended to thedirectly recruited Journeyman of the ex. E.P. Railway zone, as indicated in the foregoing paragraph.3. As has already been indicated, these principles will beapplicable only for adjusting the seniority of those promoted or absorbed as Chargemen on and after the issue of Board's letter dated 4.3.1957. With regard to those who have already been promoted on the basis of the existing seniority list, it has been decided after very careful consideration that no reversions need be made, but when those, who becomes senior as a result of the seniority list being recast based on the principles indicated above, are promoted to higher grads, their positions in the higher grades would be based on their relative positions in the lower grades. These principles will be made applicable even in the case of selection post and when a senior man gets subsequently empanelled & promoted he will regain his seniority in the higher grade irrespective of his later selection than his erstwhile senior.4. Necessary action may now be taken without furtherdelay to draw revised seniority lists of Chargemen grade Rs. 160 225 with effect from 4-3-57 and all promostions made from the date of issue of this letter shall be based on the recast seniority list.sd.

P.K. Anantanarayanan

Joint Director Establishment

Railway Board.

Annexure R/2.

Government of India

Ministry of Railways

(Railway Board)

No. E (NG) 61 SR6/38 New Delhi, dated 23rd October, 1962.

To

The General Manager,

Northern Railway,

New Delhi.

Sub: Seniority and promotion of Apprentice Mechanics of different Units of Northern Railway.

8. Reference correspondence resting with Shri V.S. Chopra's D.O. Letter No. 937E/4 V(L)(Eiic) dated 22-9-62 to the Additional Member Staff Railway Board The Board have reconsidered the matter and hive decided in partial modification of their earlier letter of even number dated 26-6-1902 of that the Apprentice Mechanics of the different units of your Railway, who had passed Apprenticeship and were Journeymen on 14-4-1952 and thereafter or who were under training on 14-4-1952, the date of regrouping, or were placed under training on or after that date but before 4-3 1957 and on completion of the training had been posted as Journeymen before 4-3-57 should, for the purpose of seniority, be deemed to have been posted as Chargen instead of as Journeymen and not for fixation of pay and arrears. This will not, however, entitle them to displace those who have already been promoted to higher grades. They will only be promoted in future vacancies, and will, on promotion, take their seniority over the juniors promoted earlier as per the then existing orders. These orders will not also effect the confirmations already made in the cadre of Ghargemen. Mistries who were promoted against 20% of vacancies of Chargeman in terms of Board's letter Nos. E.R.) 49 JAC/1 O dated 27.5.50 and E(S) 55 CPCs 76 dated 30.1.59. will however, be confirmed in the postes of chargemen in preference to these who would now become senior an a result of adjustment of seniority as above.

Action may please be taken accordingly.

Sd. B.N. Soni

Asstt. Drector, Establishment,

Railway Board.

9. Annexure R/4 is a letter from the Deputy Director, Establishment, Railway Board, to all the General Manager. Indian Railways. It is with reference to some previous letters of the Railway Board and it states bar the Board have reviewed the question of absorption of Apprentice Mechanics who have successfully completed their training. This position has been reviewed in the light of the discussion held at the meeting of the General Managers in August 1956. It conveys that the Board hove decided, in modification of the orders contained in Board's letters referred to above that the apprentice mechanics on successful completion of their apprenticeship should be appointed straight a way as Chargeman in the scale of Rs150 225 provided they are suitable in all respects for holding these posts.

10. The question arseis whether this letter is a rule within the meaning of Rule 157 of the Indian Railway Establishment Code Volume. I or it is merely a decision of the Railway Board, on a certain matter. The allied question is whether by this annexure R/4 the Railway Board are departing from the rule for seniority contained in Rule 2 of Chapter III of the Manual extracted above. Learned Counsel for the Union wants me to treat this as a rule. He relies on Jaisinghani v. Union of India : [1967]65ITR34(SC) : B.S. Vadera v. Union of India : (1970)ILLJ499SC ; and Sham Sunder v. Union of India AIR 1969 SC 112. In Jaisinghani v. Union of India : [1967]65ITR34(SC) their Lordships considering the cases of Income-tax Officers, who were promotees and those who were direct recruits; there being a quota for pronotees and the direct recruits. The Government of India had in a letter dated 18-10-51 laid down the quota between the promotees and the direct recruits, The question arose whether this letter could be regarded as a statutory rule. In paragraph 13 their Lordships, while considering the argument of the learned Solicitor-General, made the following observations:

The Solicitor-General on behalf of respondents 1, 2 and 3 submitted that the quota rule was merely an administrative direction to determine recruitment firm two different sources in the proportion stated in the rule and a breach of that quota rule was not a justiciable issue. The Solicitor General said that there was however; substantial compliance with the quota rule But in the absence of figures of permanent vacancies in class I, Grade II for the relevant years the Solicitor General was unable to say to what extent there had been deviation from the rule. We are unable to accept the argument of the Solicitor General that the quota rule was not legally binding on the Government. It is not disputed that Rule 4 of the Income-tax Officers (Claw I, Grade II) Service Recruitment Rules is a statutory rule and there is a statutory duty cast on the Government under this rule to determine the method or methods to be employed for the purpose of Biting the vacancies and the number of candidates to be recruited by each method. In the letter of the Government of India dated October 18, 1951 there is no specific reference to Rule 4, but the quota fixed in their letter muet be deemed to have been fixed by the Government of India in exercise of the statutory power given under Rule 4, Having fixed the quota in that letter under Rule 4, it is not now open to the Government of India to say that it is not incumbent upon it to follow the quota for each year and it is open to it to alter the quota of account of the particular situation the para 24 of the counter affidavit of respondents 1 to 3 in writ petition No. 5 of 1966. We are of opinion that having fixed the quota in exercise of their power under Rule 4 between the two sources of recruitment, there no discretion left with the Government of India to alter that quota according to the exigencies of the situation or to deviate from the quota, in any particular year, at its o*n will and pleasure. As we have already indicated; the quota rule is linked up with the seniority rule and unless the quota rule is strictly observed in practice, it will be difficult to hold that the seniority Rule 1, Rule 1(f)(iii) and (iv), is not unreasonable and does not offend Article 16 of the Constitution.

These observation, in my humble opinion, are of no help to learned Counsel. The statute itself provided for the quota and in exercise of the powers under the rules the Government could not depart from it on the plea that the fixation of quota was merely an administrative direction Powers may be conferred on the executive body by a statute to take a certain action, but if would not mean that in every case whatever action is taken will be the making of a rule, though it may be an order in exercise of a statutory power.

11. In B.S. Vadera v. Union of India : (1970)ILLJ499SC their Lordships were considering certain schemes made by the Railway Board. These schemes were held to be rules made by the Railway Board in exercise of their powers under Rule 157 of the Indian Railway Establishment Code Volume I Learned Counsel for the Union strongly relies on his case and, therefore, I may examine it closely.

12. One Shri B.S. Vadera had filed a writ petition under Article 32 of the Constitution for seeking to have quashed certain orders passed by the Railway Board and in particular an order reverting the petitioner as Upper Division Clerk, The petitioner's grievance was that he was holding the post of an Assistant from 1958 and yet he had been reverted as an Upper Division Clerk with effect from (sic). The stand of the Railway Board was that the petitioner's promotion was purely on a temporary and ad hoc basis pending the framing of the Railway Board's Secretariat Clerical Service (Re organisation) Scheme which was in contemplation at the material time. On 6-2-57, the Board framed the scheme. It was produced as Annexuie-4 to the reply of the Railway Board. The schema related to the method of promotion and other connected matters. Thereafter in accordance with the scheme a final panel was drawn up and it was after it that the impugned orders were passed. It was for that scheme that their Lordships were called upon to examine the question whether it could be regarded as a rule made by the Railway Board under Rule 167 of the Indian Railway Establishment Code. Their Lordships made the following observations:

In the Case before us, the Indian Railway Establishment Code bas been issued, by the President, in the exercise of his power, under the proviso to Article 309. Under Rule 167, the President has directed the Railway Board, to make rubs, of general application to recon-gazetted railway servants, under their control. The rules, which are embodied in the scheme framed by the Board, under Annexures 4 and 7, are within the powers, conferred under Rule 157; and in the absence of any Act, having been passed by the appropriate Legislature on the said matter, the rules, framed by the Railway Board, will have full effect and, if so indicated retrospectively also. Such indication, about retrospective effect, as bas already been pointed out by us, has clearly there, in the impugned provisions.

Having bestowed my careful consideration I am unable to hold that their Lord? ships were laying down a general proposition that each and every order of the Railway Board pertaining to the non gazetted staff though it be of general application shall be a rule made by the Railway Board under rule 157 of the Indian Railway Establishment Code. What their Lordships were dealing with were certain scheme made by the Railway Board for governing the conditions of service of the employees who were discharging duties of secretarial nature.

13. In Sham Sunder v. Union of India AIR 1969 SC 112 their Lordships were dealing with a case concerning cancellation or amtndment of approved panch of selected candidates and in that connection certain general directions of the Railway Board dated 4 8 53 came in for consideration. In para-5 their Lordships made the following observations:

Counsel for the petitioner contended that the Railway Board or the General Manager had no power to amend the panel published on August 1, 1965. We are unable to accept this contention. The point was cot taken in the petition. When the contention was raised at the hearing of the petition, the learned Solicitor-General drew our attention to the letter of the Railway Board No. B/52/PM 2 34 dated August 4,1953 On the subject of cancellation or amendment of approved panels the Railway Board directed by this letter 'that the panels once approved should not be cancelled or amended without reference to the authority next above the one that approved the panel. There is no controversy that the Railway Board had power to issue this general direction under Rule 157 of the Railway Establishment Code. In the present case the General Manager Northern Railway was the authority approving the panel, The Railway Board was the authority next above him. Under the general direction issued by the Board in its letter dated August 4, 1953, the General Manager was competent to amend the panel with the approval of the Railway Board In Srivastava v. N.E. Railway (1968) 3 SCR 61 at pp 64, 65 : AIR 1986 SC 1197 at pp, 1190 1200) the Court held that an amendment of an approved panel in accordance with a similar rule was in order.

This passage too cannot lead to a rule of universal application that each and every order of the Railway Board be it of a general nature and in whatever form it be expressed, shall be taken to be a rule within the meaning of Rule 157 of the Indian Railway Establishment Code. We are in the later part of the twentiech Century and rule of law is the established prop of our democracy! The question is whether something written in a letter should be given the status of a statutory rule at par with rules made by the President under Article 309 of the Constitution. It is common knowledge that the rules made by the President under Article 309 of the Constitution are published in the Government of India Gazette. This, therefore, involves the consideration of the question whether some kind of publication would be needed for the rules to be effectively made by a subordinate legislative body like the Railway Board, or we have to go by the rule of the thumb that every order or letter of the Railway Beard whenever it contains a general direction is to have the sanctity of a statutory rule. I have, therefore, gone into this matter keeping in view the element of proper publication of a statutory rule.

14. In 'Legislation and Interpretation' by Swarup, at page 674, it is observed:

It would seem, therefore, reasonable that subordinate legistation of any kind should not be binding until it has, somehow, been known to the public. It would be reasonable to expect that the proper method of acquainting a person with an order which he is directed to obey is to serve it on him or publish if so that he would certainly know of it, but there would be no question of individual sence of a general notification on every member of the public, All that the subordinate law-making body can or need do would be to publish it in such a manner that persons can, if they are interested, acquaint themselves with its contents. In this connection reference may be made to Rule 141 of the Defence of India Rules, 1962.

A notification not having been published in the' manner prescribed will cot be regarded as a valid order having the force of law.

15. In Harla v. The State of Rajasthan AIR 1969 SC 112 their Lordships of the Supreme Court had occasion to deal with the question of publication of law. The provision that came up for consideration was a resolution by a Council of Ministers of the former Jaipur State by which the Jaipur Opium Act wag sought to be enacted in the year 1925 without promulgation or publication in the Gazette or other means to make the Act known to the public, Their Lordships observed:

In the absence of any special law or custom, it would be against the principles of natural justice to permit the subject of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise, of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or, at the very least; there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable dilignece. In the absence therefore, of any law, rule, regulation or custom, a law cannot come into being by merely passing a resolution without promulgation or publication in the Gazette or other means. Promulgation or publication of some reasonable sort is essential.

Their Lordships added that:

In this respect the difference between an Or Jar & Act is obvious. Acts of the Parliament are publicly enacted. The debates are open to the public and the Act are passed by the accredited representatives of the people who in theory can be trusted to see that their constituent know what has been done. They also receive wide publicity in papers and, now, over the wireless Not so proclamations and Orders of appropriate authorities. There must there ore be promulgation and publication in their cases. The recode of publication can vary, But reasonable publication of some sort there must be.

Therefore, in the modern era it is impossible to accept a sweeping proposition that a subordinate legislative body can make a rule having the force of law without publishing It by some known mode. The Rajasthan High Court had occasion to deal with the question of publication in two decisions namely, in Somnathmal v. State of Rajasthan 1954 RLW 43 and Omprakash v. State of Rajasthan 1966 RLW 632. The learned Judges were dealing with the orders of the erstwhile Ruler of the former Jodhpur State and following Harla's case it was held that a rule which lacked publication in some recognised form was not a binding rule of conduct.

16. How I may revert to Annexurp-R/4. As already observed, the decision of the Board was conveyed to the Railway Minager that Apprentice Mechanics on successful completion of their apprenticeship should be appointed straight away as Chargemen in the scale of Rs. 160 225, provided they are suitable in all respects for holding these posts. A rule to be a binding rule would not contain the word 'should'. To maka the provision binding it shall contain the word 'shall' or 'may'. Anexure R/4 cannot, therefore, be regarded as anything but an administrative instruction. At any rate, I am unable to hold that Ex. R/4 states anvthing to the contrary within the meaning of Rule 2 of Copter III of the Manual which not only provides for anything otherwise stated, but says that unless specifically stated otherwise. Therefore, 'the otherwise to be stated specifically' must be that the seniority among the incumbents of a grade will not be governed by the date of appointment to the grade. Tail, Iain afraid is not stated in Ex R/4 It only make provision how persons successfully completing their apprenticeship would be appoints. They should be appointed according to this letter straightaway as Chargeman. There is a loan gap between 'should' and 'must' or 'shall' or 'may'.

17. Now I may turn of letters Ex. R/1 and Ex. R/3. Ex. R/1 makes a reference to a confidential letter by the General Manager. Northern Railway, and then it seeks to explain the intention underlying the Board's order of 4.3.57 i.e Ex. R/4, which has already been reproduced A letter which only makes comments on a previous letter or order is, in my view, not a statutory rule, It may be a commentary or decision on a point arising for consideration Ex. R/3 disposes of certain objections. It is an order issued by the General Manager, it reads as follows:

Northern Railway

Headquarters, Office,

Baroda House,

New Delhi.

No. 847 E/138 By (Elic) Dated 9.8 1968.The Divisional Supdts.

DLI, FZR, LKO, MB, ALD, JU & BKN

The Works Managers,

CB I KO, JU, BKN & ASR

Sub- Revised seniority list of Mechanical Supervisory staff Charge-roan Grade Rs. 205-280 (AS)/150 225(,PS). Boilermaker Trade.

The objections received against the provisional proposed seniority lists of the category mentioned above, circulated vide this office letter of even number dated 21.10.67 have been examined and the following decisions have been taken:

1. Shri Jagdish Singh, JU/Shop, and

2. Shri Prithvi Singh, LKO Divn.

On rechecking of the record, it has been found that after having completed their apprenticeship, they had been posted as Journeymen Gr. Rs. 100-185 (PS) w.e.f. 15.5.1955 and as such they have to be given protection. Accordingly their name will be placed below Shri Gjan Chand and above Shri Kulwant Rai in the proposed seniority list.

3.Shri S.K. Sen, CB-LKO.

D/21-10-67 referred to above

There is no substance in the representation of Shri Sen. Seniority list has been recast in accordance with the two Board's instructions on the subject. The provisional list circulated under this office letter of even number dated 21-10 67 as referred to above may be corrected in regard to Shri Jagdish Singh and Prithvi Singh as explained above and treated as final.

Sd/-

(Kishore Chand)

for General Manager (P.)

A decision on a certain representation made by a civil servant connot be regarded as a statutory rule.

18. Now I may briefly refer to the cases of other High Courts on which reliance was placed by learned Counsel on either side. Learned Counsel for the Union placed reliance on B.L. Rastogi v. Railway Board, New Delhi 1974 Lab IC 918 (Raj), M.P. Patil v. D.R. Khanna : AIR1965Bom267 , Union of India v. Santi Kumar 0043/1967 : (1968)IILLJ203Cal , Harinder v. Northern Railway AIR 1967 Delhi 79 and Iqbal Singh v. Divisional Superintendent 1973 (1) SLR 712. I may net deal with each case individually, suffice it to say that they relate to certain orders of the Railway Board which have been taken to be Rules within the meaning of Rule 157 of the Indian Railway Establishment Code. By and large, it will depend upon the nature of the provision that came up for consideration. Here I have specifically dealt with Ex R/4 in the light of what is contained in Rule 2 of Chapter III of the Manual and I am unable to deduce, as I have already observed, a general proposition that each and every order of the Railway Board, be it in any form, will form, will be a rule, merely because it is of general application to non-gazetted staff. It will depend on the subject matter of the order, the manner in which it is made and whether it is published in some known form. If all (be necessary requirements are satisfied the order may be taken to be a statutory rule, but not in every case Learned Counsel for the petitionee referred me to Radhakrishna v. State : (1969)IILLJ615AP and Krishnakutty Menon v. State : (1969)ILLJ201Ker . In the Andhra Pradesh case : (1969)IILLJ615AP the learned Judge was considering whether a particular Government order can be treated as a rule made under Article 309 and he observed as follows:

It cannot be validly contended that every order issued by the Govt. in the name of the Governor constitutes law merely because it affected a number of people or that the rules prepared under the statute even though not published in the official gazette, if communicated to the parties concerned would have then force of law. Merely because a GO can be traced to a statutory power under which rules could have been made, it cannot be said that the G.O. is law and can be enforced in a court of law. The source of the power does not affect the character of the GO issued. It is from the GO that he has to find out whether the GO has been issued as a rule under Article 309 Whether J fie GO is law or an administrative instruction naturally depends upon the character or the nature of the GO issued and it must be determined in view of the circumstances of each case. While the source of power can be taken into account, merely because such a source exists, every act done by the authority cannot be said to be law. In order to have the validity made rule under Article 309, the Governor & not the Govt. must first of all exercise the powers vested in him under Article 309 and make a rule regulation the recruitment etc. to the services and then publish the same in the official gazette or in any other prescribed manner for the purpose of informing the public.

I find myself in respectful agreement with these observe ions generally. Every order of the Government though it be in the name of the Governor cannot be a law merely because it affects a number of people, nor can't be said that without publication a Government order can be treated as law.

19. In N. Rudraradhya v. State of Mysore AIR 1961 Mys 247 it was held that mere administrative instructions issued for the guidance of the officers of the departments of the State can be manifold in number and most minute in particularity and are all capable of change. These cannot have the status of a law.

20. In Kerala case : (1969)ILLJ201Ker the distinction between an executive order of the Government and a rule framed under Article 309 of the Constitution was pointed out. The learned Judge observed:

There is a distinction between a rule framed by the Governor under the proviso to Article 309 and an executive order passed by the Government. They are not same, Though every order passed by the Govt. is required to be expressed in the name of the Governor, it does not follow that because an executive order is required to be expressed in the name of the Governor it can be considered to be a rule under the proviso to Article 309.

21. The President or the Governor acts under Article 309 of the Constitution in the legislative sphere, because in the absence of any act of the competent legislature laying down the conditions of service the rules made by the President or the Governor will have the force of an Act of the Parliament or the State Legislature, as the case may be The President also acts in the administrative sphere when the orders are passed concerning the executive business of the State. Therefore, a line of demarcation, though at times it may be thin, is there It will have to be seen whether a particular order was intended to be issued as a statutory rule or merely as an administrative instruction & that has to be gathered from all the surrounding circumstances. In the present case I have devoted consideration in the language of Ex. R/4, in juxta-position with what is said in Rule 2 of Chapter III of the Manual, and having carefully examined the two I am unable to hold that the rule contained id Ex. R/4 specifically states otherwise than what is contained ID Rule 2 of Chapter III of Manual. ExR/4 or for that matter Ex. R/1 and Ex. R/2 of Ex R/3 are not such rules as modify Rule 2 in Chapte. III of the Manual.

22. Learned Counsel for the Union submitted that the Manual is nothing but a compilation of orders contained in the letters and if the letters Ex. R/4 Ex. R/1 or Ex. R/2 are found to be lacking statutory force, the same thing could be said of the entire compilation. I am not inclined to enlarge the scope of the present discussion & enter in to the broader question as to what is the efficacy of the Manual a such. Ii was assumed by both the learned Counsel that Rule 2 of Chapter III of the Manual was a statutory rule and I do not like to travel beyond this I am, therefore, unable to hold as at present advised that if Annexure R/4, Annexure R/1 or Annexure R/2 ate not held to be statutory rules the entire Manual will be in jeopardy.

23. Learned Counsel for the Union submitted in the alternative that by Annexure R/4 R/1 and R/2 the authorities had treated the Journeyman as Chargeman and the benefit of it has been taken be all including the petitioner and therefore, he cannot challenge the revision of seniority on that footing and further this was not revision of the rule of seniority, but only one of conferment of higher status on Journeyman or person concerned A to what will happen to the petitioner if one ignores Annexures R/4, R/3 and R/2 and whether the petitioner has himself derived any benefit or not from these orders is for the authorities to see, but as the mitter stands, the question of seniority has to be decided in the light of Rule 2 of Chapter III of the Manual.

24. I, therefore, direct that the respondents NOS. 1 to 4 shall re-determine the seniority of the petitioner vis-a-vis respondents Servasbri Kundan Lal, Pritam Chand, S.K. Chatterji, Om Prakash, BD A vasthi, Shri Gopal Sabi, Kanwal Nain Singh and Gyan Chand in accordance with Rule 2 of chapter III of the Manual as Chargeman in the grade of Rs 150 225 as mentioned in Annexures 11 and 14. The names of respondents Shri Harbans Singh and Shri S.V. Sharnoa had already been struck off on account of Hirbans Singh having retired and S V. Sharma having died. Thererfore, no order need be taken regarding these persons.

25. The writ petition is decided accordingly. The parties are left to bear their own costs.


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