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Abhoy Charan Mukherjee Vs. Director of Postal Services (City and Mails) Office of the Post Master General and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberMatter No. 197 of 1963
Judge
Reported inAIR1965Cal298,[1964(9)FLR71],(1966)IILLJ41Cal
ActsConstitution of India - Article 226; ;Posts and Telegraphs Manual Rules - Rules 32A and 32C
AppellantAbhoy Charan Mukherjee
RespondentDirector of Postal Services (City and Mails) Office of the Post Master General and ors.
Advocates:Arun Prokash Chatterjee, Adv.
Cases ReferredKanailal Chatterjee v. Union of India
Excerpt:
- .....in few cases, where they are expressly so indicated, the manuals do not contain statutory rules. rules 32a to 32g in vol. iv and schedule 3 in vol. iii are merely executive instructions or administrative rules and have not the sanctity of statutory rules. this is the view which was also taken in the cases of kanailal chatterjee v. union of india, : air1955cal166 and in civil rule no. 3015 of 1959 (cal) per sinha, j. unreported. therefore, strict compliance of these rules may be difficult of enforcement by issue of mandate. in the next place, under rule 2 in vol. ii of the posts and telegraphs manual (3rd edition);'the control of postal, telegraph and telephone services in india is vested in the director-general of posts and telegraphs, who functions under the administrative.....
Judgment:

B.N. Banerjee, J.

1. The petitioner is a temporary Lower Selection Grade Supervisor in the Calcutta R. M. S. Division. This division is said to have been created, in the year 1948, by carving the Calcutta Sorting Division out of the General Post Office in Calcutta and transferees from the General Post Office, it is alleged, formed about 80 per cent of the total staff of the newly created division. It is further alleged that two other new R. M. S. Divisions were formed thereafter, namely, (1) R. M. S. 'H' Division from out of the remnants of R. M. S. 'E' Division, after the partition of Bengal in 1947 and (2) R. M. S. 'W. B.' Division, from out of the original R. M. S. 'N' and 'C' Divisions, after the creation of the Calcutta R. M. S. Division.

2. It is also alleged that the Calcutta R. M. S. Division had a separate Gradation List from its very inception, separate from the Gradation Lists of the other R. M. S. Divisions. In the year 1949, however, there was an attempt to group together, in a common Gradation List, the Calcutta R. M. S. Division, R. M. S. 'H' Division and the Calcutta Air Sorting Portion of the Foreign Post Division but on protest being lodged by the trade union of the Calcutta Post and Telegraph Workers, the idea was given up and in its place it was decided to have a common Gradation List of the Calcutta R. M. S. Division and the Air Sorting Portion of the Foreign Post Division, which two units later on were merged together. Thereafter, on September 9, 1959, one Mahendra Nath Roy, a Sorter in R. M. S. 'H' Division, moved this Court, under Article 226 of the Constitution, for a writ commanding the Postal authorities to prepare the combined Gradation List of all non-gazetted employees in the West Bengal Circle and obtained a Rule, being Civil Rule No. 3015 of 1959, Mahendra Nath Roy v. Post Master General, West Bengal Circle. That attempt failed and the Rule was discharged by Sinha, J., on June 14, 1961.

3. After the petitioner had been enjoying the benefits of a separate Gradation List for well over 12 years, the Director-General, Posts and Telegraphs, New Delhi, took the following decision, on February 6, 1962:

'(1) After careful consideration the following decisions have been taken:

(a) A combined gradation list of clerks and sorters of all R. M. S. Divisions of W. B. Circle may be maintained for the purpose of promotion to L. S. G.

(b) All the officials who have actually been promoted on a regular basis on the L. S. G. prior to the date of issue of these orders including such of sorters of the Calcutta R. M. S. Division who were approved for promotion to L. S. G. by Circle Office and to whom no warning regarding their temporary appointment to L. S. G. was given at the time of promoting them to L. S. G. in officiating basis, would be protected from reversion and their seniors in the combined gradation list promoted only in subsequent vacancies. Officials promoted in local arrangement to whom a warning was given at the time of appointment to L. S. G. were only temporary and would not confer on them any right for continued appointment in that grade or any other warning to this effect will not be allowed this protection.

(c) Confirmation to the L. S. G. may be made according to the seniority in the combined gradation list in spite of the concession given in sub-paragraph (b) above, confirmation against posts which have not been filled substantially so far, should be under these orders.

(2) The Officials who would have been confirmed in L,. S. G. in accordance with these orders, but have already retired, may be given the benefit of confirmation from the due date and their pension cases reviewed when necessary.'

4. The petitioner says that the Director-General, Posts and Telegraphs caused a Gradation List to be published on the basis of the decision and that the respondent, Director of Postal Services, in his turn, began implementation of the combined Gradation List by an order, dated April 24, 1963, which reads as follows;

'....On the basis of the combined gradation list of R. M. S. Divisions in West Bengal Circle and on the advice of the Departmental Promotion Committee, the following officiating promotions, appointments and transfers in the Lower Selection Grade (scale Rs. 210-10-290-15-320/-) are hereby ordered in the interest of service terminating existing local arrangements. These appointments are provisional and take effect from the date of assumption of charge on the strength of this Memorandum. Copies of charge reports may be sent to this office as well.'

5. This, according to the petitioner, operated to his prejudice. I shall refer to the prejudice alleged or apprehended by the petitioner later on. The protests made by the petitioner and also by others against the publication of the combined Gradation List went in vain. In these circumstances, the petitioner moved this Court, under Article 226 of the Constitution, praying for a Writ of Mandamus commanding the respondents to refrain from preparing a combined Gradation List and from giving effect to the order, dated April 24, 1963. On that application this Rule was issued limited to the following grounds:

Ground (b) 'For that the Director General of Posts and Telegraphs has no power to frame rules regarding conditions of service because no such power was delegated to him by the President and accordingly the said decision, purporting to change conditions of service as it does, is In excess of his jurisdiction and power and must be quashed.'

Ground (c) 'For that the said decision to bring about combined gradation list is not even within the scope of the Director-General' Administrative Powers which have been exhaustively listed In schedule 3 of the Posts and Telegraphs Manual, vol. 3'.

Ground (d) 'For that the preparation of combined gradation list of sorters and clerks of all R. M. S. Divisions in West Bengal is arbitrary, unreasonable and the same is not contemplated by the existing service rules, rights and privileges appertaining to hitherto classified distinct separate groups and/or gradation lists.'

Regard being had to the limited scope of the Rule, the same must be taken to be principally directed against the Director General of Posts and Telegraphs. The Director General of Posts and Telegraphs, is, however, no party to this Rule and I need bear in my mind this lacuna in the petition.

6. Mr. Arun Prokash Chatterjee, learned Advocate for the petitioner, invited my attention to Rules 32A to 32C in Chapter I of Vol. IV of Posts and Telegraphs Manual (fourth edition), which read as follows:

'32-A. A Head of a circle will publish, once in two years and issue copies of, to all offices concerned, as also to the Director-General, a Circle Gradation List corrected up to 1st of April, in which the names and other particulars of the following classes of officials under his control will be shown in addition to statistical information regarding the various classes of non-gazetted staff employed In the entire Circle, their sanctioned strength, scales of pay and allowances:

(a) Gazetted officers of each class in each branch:

(b) Engineering supervisors, General and Telephones, and Electrical supervisor,

(c) Wireless supervisors and wireless operators;

(d) Telegraph masters;

(e) Clerical staff in selection grades and in the first grade and first division (Including postmasters, sub-postmasters, record clerks, sorters, etc.) according to each cadre in each Branch;

(f) Inspectors of Post offices and head clerks to Superintendents of post offices and Inspectors Railway Mail Service;

(g) Telegraphists;

(h) Line inspectors;

(i) sub-inspectors;

(j) Repeater Station Assistants;

(k) Telephone Inspectors:

(l) Telephone Operators and Monitors.

The list may be published in parts according to each Branch or each group of Branches, as may be considered suitable by the Head of the Circle.

32-B. Any other appointing authority will keep a gradation list of all officials, appointments to whose posts, if vacant, are made by him, as also of other officials, if any, under his control, who are either ordinarily liable to be transferred by him, or qualified for promotion to a higher grade, appointments to which are made by him, or whose names, though shown In the List of Officers of the Department published by the Director-General or in the Circle Gradation List, are not shown therein in a separate list. An extract from the list in respect of the classes of officials whose names do not appear in either the List of Officers of the Department or the Circle Gradation List, will be issued annually, in April, corrected up to 1st of April, by the authority keeping it, to all offices concerned, as also to his immediate superior to whom a certificate will also be submitted to the effect that the gradation lists of all classes of officials to be kept up by him are duly maintained and kept up-to-date. An authority immediately subordinate to the Head of a Circle will also submit to the latter, in April each year, a copy of the Circle Gradation List corrected up to 1st of April in so far as the staff under his control are concerned, to enable the latter to compile that list.

32-C. All gradation lists should be maintained in form App. 44; In each gradation list the names of the officials of each class should be entered separately, and in strict order of seniority, one or more pages being left blank after each class. Each list should be kept corrected up-to-date.

The list may be maintained in print or in manuscript at the discretion of the authority required to maintain it.'

He also invited my attention to Rule7 in Chapter I of Vol. II of the Posts and Telegraphs Manual (3rd Edition) under which the Post Master General is described as the Head of the West Bengal Circle. Basing his argument on the rules above quoted, Mr. Chatterjee contended that the preparation of the Gradation List was the special duty of the Post Master General, as the Head of the West Bengal Circle, and the Director General of Posts and Telegraphs should not have imposed himself or his decision in the matter of preparation of the Gradation List. Mr. Chatterjee also invited my attention to Schedule 3, in Vol. III, of the Posts and Telegraphs Manual (3rd Edition) dealing with the administrative powers of the Director-General and emphasised that the schedule of powers did not invest the Director General with any power in the matter of preparation of Gradation Lists. He therefore contended that the Director General, Posts and Telegraphs, bad neither statutory nor administrative power to prepare Gradation Lists and the combined Gradation List prepared by him or caused to be prepared by him must be treated as a void document.

7. In my, opinion, Mr. Chatterjee is not right in his contention. In the first place the Posts and Telegraphs Manual mainly contains rules intended for the guidance and instructions to officers of the department in the performance of their administrative and executive duties (vide preface to Vol. II of Posts and Telegraphs Manual). Excepting in few cases, where they are expressly so indicated, the Manuals do not contain statutory rules. Rules 32A to 32G in Vol. IV and Schedule 3 in Vol. III are merely executive instructions or administrative rules and have not the sanctity of statutory rules. This is the view which was also taken in the cases of Kanailal Chatterjee v. Union of India, : AIR1955Cal166 and in Civil Rule No. 3015 of 1959 (Cal) per Sinha, J. unreported. Therefore, strict compliance of these rules may be difficult of enforcement by issue of mandate. In the next place, under Rule 2 in Vol. II of the Posts and Telegraphs Manual (3rd edition);

'The control of postal, telegraph and telephone services in India is vested in the Director-General of Posts and Telegraphs, who functions under the administrative control of the Government of India in the Ministry of Communications. The Director-General exercises the administrative and financial powers shown, respectively, in the Posts and Telegraphs Manual, Vol. III, the Book of Financial Powers and in the Schedule of Financial Powers of Officers of the Indian Posts and Telegraphs, Department.'

Thus, apart from the specified administrative and financial powers, the Director-General has the power of a general control vested in him under the opening part of Rule 2 quoted above. If in the exercise of this controlling power, he takes a decision in the matter of preparation of a combined Gradation List, such a decision need not be condemned as per se outside his jurisdiction. Thirdly, Rule 32A vests in the Heads of Circle the power to publish Gradation Lists. Power to publish is not necessarily inclusive of the power to decide as to the manner in which Gradation Lists should be prepared, namely, in a combined or in an uncombined form. Heads of Circles may be guided by the direction of the controlling authority, namely, the Director-General, in the matter of publication of the gradation Lists. I, therefore, find little substance in the contention of Mr. Chatterjee that the Director-General of Posts and Telegraphs acted outside his jurisdiction in directing the preparation of a combined Gradation List.

8. I need now to consider the other grievance made by Mr. Chatterjee, namely, that the combined Gradation List was not contemplated by the existing service rules and changed the condition of the service of the petitioner and that further the list was arbitrary and unreasonable. This argument is not very well-conceived. Where there are statutory rules regarding conditions of service, those rules constitute the terms of service. If the appointment is under a contract, the conditions contained in the contract are the conditions of service. Statutory rules of service cannot be altered excepting under conditions in the rules themselves. Contractual conditions cannot also be altered excepting under the contract itself or by subsequent agreement between the parties. But where conditions depend upon departmental instruction, then indeed the terms are variable and will depend on the particular instruction in vogue at the relevant time, The petitioner could not show that under the terms of his appointment or conditions of his service he was entitled to have his name included in a separate Gradation List Therefore, I cannot uphold the contention that the petitioner's service condition was altered by the publication of the combined Gradation List.

9. Now the point that remains for my consideration is whether the publication otherwise operated to the prejudice of the petitioner. It is alleged that by a Memo dated April 16, 1959, the Senior Superintendent, Calcutta R. M. S. Division informed the petitioner and several others that they were approved for promotion to the Lower Selection Grade. But after the publication of the combined gradation list, the respondent Director of Postal Services, by an order dated April 24, 1963, ordered the promotion of 85 others to the Lower Selection Grade. It was argued on the basis of the memo above referred to that the chance of the petitioner in the matter of promotion stood jeopardised. Mr. Chatterjee relied upon a decision of the Punjab High Court in S. G. Jaisinghan ; Union of India, AIR 1964 Punj 155 in support of this argument. In that case it was held that: (i) Whatever may be the source of the rules, whether statutory or merely administrative, they may be struck down under Article 226 of the Constitution, (ii) That rules of seniority contained in a letter of the Ministry of Finance providing for weightage of three years in seniority in case of Income-tax Officers promoted to class I. Grade II from the department, over the officers in the same grade, who were recruited directly on passing of the competitive examination, are ultra vires Article 16(1) of the Constitution because the rules laid down different standards of promotions vis-a-vis the same class of Income-tax Officers. It is difficult to understand why Mr. Chatterjee invokes the aid of the above decision. The grounds on which this Rule was issued do not comprise any ground based on Article 16 of the Constitution, Then again, it appears from paragraph 20 of the affidavit-in-opposition that the Director-General has also passed an order protecting persons, like the petitioner, who were already working in the Lower Selection Grade, from reversion as a result of the publication of the combined Gradation List. That order substantially removes the adverse effect of the new combined Gradation List upon the petitioner, if any at all.

10. Mr. Chatterjee lastly argues that the petitioner has to be placed lower down in seniority under the combined Gradation List and will lose chances of future promotion on the basis of seniority, which he had in the separate Gradation List, This argument assumes that promotions are matters of right and must be given on the basis of seniority only. This has not been proved. Therefore, I do not make much of this argument.

11. In the view taken by me this Rule must be discharged. There will be no order as to costs.


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