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K.B. Mathur, General Manager, Eastern Rly. Vs. N.C. Chatterjee and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 208 of 1953
Judge
Reported inAIR1955Cal385,59CWN812
ActsIndian Railway Establishment Code - Rules 101A, 101A(5), 105, 106, 1728, 1729, 2021 and 2202; ;Constitution of India - Articles 226 and 311(2); ;Indian Government Railway General Code
AppellantK.B. Mathur, General Manager, Eastern Rly.
RespondentN.C. Chatterjee and ors.
Appellant AdvocateAtul Chandra Gupta and Bhabeshnarayan Bose, Advs.
Respondent AdvocateBalailal Pal and ;Arun Kumar Dutt, Advs.
DispositionAppeal allowed
Cases ReferredUntil v. Clerke
Excerpt:
- lahiri, j.1. the respondent n.c. chatterjee, who is now officiating as the assistant personnel officer, eastern railway, sealda, started officiating in the lower gazetted service of the engineering department on 12-11-1938 and was transferred to the personnel branch as assistant personnel officer on 7-12-1946. according to the indian railway establishment code -- vol. 1, p. 3, rule 104 the respondent may be described as belonging to 'railway services -- class ii gazetted' in the following scale of pay: rs. 275-25-500 (efficiency bar)-30-650 (efficiency bar)-50-800.2. the increments are earned according to a time-scale; but there are two efficiency bars, one after he has reached the salary of rs. 500/- and the other after be has reached the salary of rs. 650/-per month. on 2-6-1951 the.....
Judgment:

Lahiri, J.

1. The respondent N.C. Chatterjee, who is now officiating as the Assistant Personnel Officer, Eastern Railway, Sealda, started officiating in the Lower Gazetted Service of the Engineering department on 12-11-1938 and was transferred to the Personnel Branch as Assistant Personnel Officer on 7-12-1946. According to the Indian Railway Establishment Code -- Vol. 1, P. 3, Rule 104 the respondent may be described as belonging to 'Railway Services -- Class II Gazetted' in the following scale of pay: Rs. 275-25-500 (Efficiency Bar)-30-650 (Efficiency Bar)-50-800.

2. The increments are earned according to a time-scale; but there are two efficiency bars, one after he has reached the salary of Rs. 500/- and the other after be has reached the salary of Rs. 650/-per month. On 2-6-1951 the respondent reached the first efficiency bar. On 20-6-1951 the Deputy General Manager (Personnel) who held the test for crossing the Efficiency Bar did not find the respondent fit and recommended the stoppage of his increment at the efficiency bar to the General Manager. On receipt of the recommendation of the Deputy General Manager (Personnel) theGeneral Manager by his letter No. SP, 161 dated29-6-1951 communicated the report of the Deputy General Manager (Personnel) to the respondent and asked him to show cause against the imposition of penalty by way of stoppage of increment at the efficiency bar. Cause was shown by the respondent by his letter dated 5-7-1951 and after considering the explanation submitted by the respondent, the General Manager by his letter No. SP. 161 dated 23-7-1951 decided to withhold the increment of' the respondent's salary at the first efficiency bar for a period of six months from 2-6-1951.

Thereafter the respondent went 011 sick leave for a period of two months from 1-8-1951 and the next date of crossing the efficiency bar fell due on 2-2-1952. The respondent was then directed to appear at the efficiency bar test to be held on 5-3-1952. In accordance with the said direction the respondent appeared at the test which was held jointly by Mr. Carmody, the outgoing Deputy General Manager (Personnel), Eastern Railway andMr. P.C. Vaish, his successor in office. By an office order No. OPE. 1084/52 dated 25-3-1952passed by the Deputy General Manager (Personnel) the respondent was' declared fit to cross the first efficiency bar and was granted increment of payfrom Rs. 500/- to Rs. 530/- with effect from6-3-1952, A copy of this order was forwarded to the Chief Accounts officer as well as to the respondent for information, On 30-5-1952, however, the respondent received a copy of a letter No. SP. 161 doted 28/29-5-1952 written by the General Manager, Eastern Railway to the Divisional Superintendent, Sealda in which the General Manager stated that he could ' not accept the results of the efficiency bar test declaring the respondent fit and directed the respondent to appear at another test to be held by a Committee of the Head of departments presided over by the General Manager. It was further directed that the committee would consist of the Chief Engineer and the Chief ElectricalEngineer.

Against this order of the General Manager the respondent made some unsuccessful representations to the Railway Board and thereafter moved this . Court under Article 226 of the Constitution and obtained a Rule upon the General Manager, Deputy General Manager (Personnel) and Divisional Superintendent, Sealda, Eastern Railway to show cause why a writ in the nature of Mandamus should not issue upon them, directing them to forbear from taking any action upon the letter of the General Manager No. SP. 161 dated 28/29-5-1952 and of the Railway Board dated 23-6-1952.

3. There can be no question that in an application under Article 226 of the Constitution this Court has no jurisdiction to interfere with the internal administration of a Railway and the only question that can be investigated is whether the authorities concerned have acted in excess of the powers conferred on them by statutes or Statutory Rules. Before Sinha J., the respondent based his claim upon the ground that though the General Manager was the authority who could withhold the increment of the respondent at the efficiency bar, he bad in fact delegated this authority to the Deputy General Manager (Personnel) and since the latter officer had, in exercise of this delegated authority, declared therespondent fit and granted him an increment fromRs. 500/- to Rs. 530/- the General Manager had no jurisdiction to reopen the question and direct the respondent to appear at another efficiency bar test. Sinha J., has given effect to this contention and issued an order directing the General Manager to retrain from withholding the increment of the respondent and from holding any further test in respect of his first efficiency bar. Against this order the General Manager, Eastern Railway has brought this appeal.

4. On behalf of the appellant it has been contended that the right to sanction the crossing of the efficiency bar vests in the General Manager and that he has no authority under the law to delegate this power to any subordinate officer nor has he, in fact, delegated this power to the Deputy General Manager (Personnel) and consequently the office order made by the Deputy General Manager (Personnel) on 25-3-1952, is void. In order to decide these questions we shall have to consider a number of Rules and Circulars and executive instructions framed and issued by the authorities concerned from time to time. In the first place, there is a body of Rules framed by the Governor General under Section 241(2), Government of India Act, 1935, governing the conditions of service of Railway servants who are subject to the rule making control of the Governor General. These rules have been condensed into what is known as the Indian Railway Establishment Code in two volumes and have been continued in force under Articles 313 and 372 of the Constitution with necessary adaptations. Then, there is a body of executive instructions issued by the Railway Board which are contained in the Indian Government Railway General Code in two Volumes. Lastly, there are circulars and letters issued by the authorities concerned.

5. On the first question as to whether the power of sanctioning increment next above the efficiency bar vests in the General Manager there is hardly any dispute between the parties and the Rules contained in the Indian Railway Establishment Code also make it clear. Rule 2021 (Railway Establishment Code, Vol. II, P. 13) provides that the increment next above the efficiency bar shall .not be given without the specific sanction of the authority empowered to withhold increments. Withholding of increments including stoppage at any efficiency bar is described as a penalty under Rule 1728, Pp. 185-186 of Vol. I of the Railway Establishment Code. Under Rule 1729 (P. 186 of Vol. I of the same Code) read with Schedule II, Items (2) and (3) (P. 192 of Vol. I of the same Code) the authority to withhold increments including stoppage at the efficiency bar vests, in the case of Railway Services Class II, in (a) the Railway Board and (b) the General Manager of Indian Railways. The combined effect of Rules 2021 and 1728 read with Schedule II therefore is that the increment next above the efficiency bar shall not be given without the specific sanction of the General Manager or the Railway Board.

6. The next question is whether under the rules the General Manager can delegate his power to his subordinates. Sinha J., has held that the power of delegation has been conferred on the General Manager under the second paragraph of the pre-amble to Appendix X to Indian Government Railway General Code -- Vol. II, P. 87. Appendix X consists of forty-seven rules (divided under six heads) which provided for cases in which the General Manager 'may not sanction expenditure or deal with other matters without the previous sanction of higher authority'. Paragraph 2 of the preamble to the Appendix provides that subject to the rules appearing therein and subject to the provisions of the existing epodes, rules and regulations

'the General Managers of State-managed Railways ......have full power to sanction expenditureand except as may hereafter he specifically provided for, to delegate their power or any portion of them to authorities subordinate to them, with power to redelegate to lower authorities'.

As the rules appearing in Appendix X do not cover a case of sanctioning of increment next above the efficiency bar in respect of class II officers, Sinha J. has come to the conclusion that such a case comes under the second paragraph of the preamble whereby authority has been given to the General Manager to delegate his power to his subordinates. Mr. Gupta appearing for the appellant has, however, contended before us that the power of delegation conferred by the second paragraph of the preamble is limited to financial matters only and does not extend to other powers of the General Manager. Appendix X begins with the words: 'See para. 804' which appears at page 130 of Vol. I of Indian Government Railway General Code in Chap. VIII under the heading 'Control over expenditure.' The relevant portion of para. 804 is as follows:

'For the speedy disposal of public business, the Central Government have delegated most of their powers in financial matters to authorities subordinate to them, with a provision for redelegation to lower authorities (Vide Appendices V to X)'.

If Para. 804, as quoted above, be accepted as furnishing the key to the interpretation of the provisions of Appendix X there can be no difficulty in holding that the power of delegation conferred on General Managers by the second paragraph of the preamble to Appendix X is restricted to matters relating to sanctioning of expenditure only. The note appended to the second paragraph of the preamble, which provides that any delegation o power by the General Manager should be made only after consultation with the Financial Adviser and the Chief Accounts Officer of the Railway concerned, also supports the conclusion that the power of delegation is confined to financial matters only; because if the power of delegation extended to non-financial matters also it would be pointless to lay down that it could be exercised only after consultation with the Financial Adviser and the Chief Accounts Officer. Mr. Pal appearing for the respondent has argued that the provisions of Appendix- X do not derive their authority from para. 804, because whereas the former are rules made by the Governor General in Council, Para. 804 is merely an executive instruction. Appendix X does riot give any information as to the source of the power of the Governor General in Council in making the rules appearing therein and the Counsel for the parties also could not throw any light on that point; but whatever may be the power in exer-cise of which the Governor General in Council made the provisions appearing in Appendix X, it is quite clear that Para. 804 was incorporated as a part of it and since that paragraph relates to financial matters only we can sately hold that under the second paragraph of the preamble to Appendix X the General Manager is authorised to delegate his special power relating to sanctioning of expenditure only and not his general powers. This conclusion also follows from a textual construction of the relevant provisions of the second paragraph of Appendix X, Omitting unnecessary details the provision is as follows

'.....the General Manager of State managedRailways.... have full power to sanction expenditure........and to delegate their powers, or anyportion of them to authorities subordinate to them.'

Judging by the context in which the words 'delegate' and 'powers' appear it seems to me that the 'powers' which the General Managers are authorised to delegate by the second half of the aforesaid sentence arc the special powers to sanction expenditure or any portion of them and not their general powers in non-financial matters, because these latter powers are nowhere referred to in the second paragraph. The first paragraph of the preamble which restricts the power of the General Manager, on the other hand, speaks of his power to 'sanction expenditure' or 'deal with other matters' and places certain limitations on the exercise of both these powers. The expression 'or deal with other matters,' however, is significantly absent from the second paragraph. For these reasons I hold that though the first paragraph of the preamble to Appendix X restricts the powers of the General Manager in financial as also non-financial matters, the second paragraph, which is the material paragraph in the present case, authorises delegation only in respect of financial matters. I therefore hold, with great respect to Sinha J. that he was not right in coming to the conclusion that the second paragraph of the preamble to Appendix X permit the General Manager to delegate his general powers to authorities subordinate to him.

7. Our conclusion on the aforesaid question, however, is not sufficient for the disposal of the appeal, because lifting of efficiency bar involves (a) a declaration of fitness of the officer concerned and (b) sanctioning of increment next about the efficiency bar. The latter element throws a financial burden on the Railway and as such it may come under the expression 'power to sanction expenditure' as used in the second paragraph of the preamble to Appendix X. We have therefore to examine whether the General Manager did in fact delegate his power of raising the efficiency bar in favour of his Subordinates. To prove such delegation the respondent relies in the' first place upon letter No. E48 CPC/288 dated 11-5-1949 issued by the Ministry of Railways (Railway Board) on the subject of 'Efficiency bars in the prescribed scales applicable to Class II officers.' It provides that the following procedure should be followed in holding tests for permitting officers in Railway Services Class II to cross the efficiency bars:

'(a) For the first efficiency bar

(i) Viva voce test and

(ii) a review of the officer's work during the past three years by the Head of 'the department concerned.'

8. As in the present appeal we are concerned with the crossing of the first efficiency bar the remaining portion of the letter which deals with the second efficiency bar is not material. Sinha J. has held that in view of the definition of the word 'department' as given in Rule 10A(5), P. 1, Vol. I (Indian Railway Establishment Code) the expression 'Head of the Department' as used in Clause (ii) as quoted above must mean the Deputy General Manager (Personnel). With great respect we arc by no means satisfied that the definition of 'Department' as given in Rule 101A(5) leads to the conclusion which has been drawn by Sinha J. On the other hand, Mr. Gupta has invited our attention to Rule 2202(9) (Railway Establishment Code, Vol. II, P. 47) where the expression 'Head of a department' has been defined as an authority specified in Appendix XXXVIII. A reference to that Appendix which is printed at P. 242, Railway Establishment Code, Vol. II, will show that it contains a list of seventeen officers declared to be Heads of Department. The first officer in that list is the General Manager but the list does not at all include the Deputy General Manager. Schedule XXXVII (P. 239, Vol. II, Railway Establishment Code) contains a list of officers to whom delegation has been made by the President under Rule 2202(5). Item No. 8 of that Appendix deals with power to grant leave to a railway servant in respect of whom a medical board has reported that there is no reasonable prospect that he will ever be fit to return to duty and provides that the authorities to whom this power is delegated are 'All heads of departments, Divisional Superintendents and Deputy Managers in cases where the pay of the railway servant does not exceed Rs. 500'. The absence of the name of the Deputy Manager from Appen. XXXVIII and the presence of his name along with 'all heads of departments' in item 8 of Appendix XXXVII, in our opinion conclusively prove that the Deputy General Manager is not the head of any department under the Indian Railway Establishment Code. For these reasons we are unable to hold that under the letter of the Railway Board referred to above, the Deputy General Manager (Personnel) has in any way been authorised to hold the tests for permitting officers in Railway Services, Class II to cross the efficiency bar.

9. In the second place, the respondent relies upon a circular issued by the General Manager,being Circular No. AE721, dated 31-10-1951, printed at P. 37 of the Eastern Railway Personnel Branch Circular. This Circular deals with delegation of powers to principal officers and other Heads of Departments. This circular consists of four schedules. In Schedule A is to be found a list of itemsrequiring the personal sanction of the General Manager; Sehedule B gives a list of items in respect of which the power will be exercised by the Principal officers indicated therein without any reference to the General Manager's office. Schedule C enumerates the items in respect of which powers may be exercised by the Deputy General Manager (Personnel) on behalf of the General Manager subject to lists of such sanctions being submitted tothe General Manager every fortnight. Schedule D gives a list of items in respect of which powers may be exercised by the Deputy General Manager(Works) on behalf of the General Manager subject to lists of such sanctions being submitted to the General Manager every fortnight.

Clause 8 of the Circular, which appeal's to be aresiduary clause, provides that in respect of matterswhich are not covered by the Schedules the DeputyGeneral Manager (Personnel) will exercise the fullpowers of the General Manager subject to the limitations where they exist, on the powers of theGeneral Manager to redelegate them to subordinateauthorities. According to the appellant the powerof raising the efficiency bar in the case of RailwayServices -- Class II Gazetted to which the respondent admittedly belongs is covered by item 12of Schedule A which provides that 'permitting GazettedOfficers to cross efficiency bar in junior scale'' requires the personal sanction of the General Manager.In item 12 of the Schedule A reference is made toRule 2021 (Indian Railway Establishment Code,Vol. II, P. 13) which deals with the question oflifting the efficiency 'bar prescribed in a time scaleand provides that '

'the increment next above the bar shall not begiven to a 'Government servant' - without the -specific sanction of the authority empowered towithhold increments.'

I have already pointed out that if we read Rule 2021 together with Rule 1728 and items 2 and 3 of Sehedule II the 'authority empowered to withhold increments' within the meaning of Rule 2021 means in the case of Class II officers, the Railway Board and the General Manager. If we were to interpret item 12 of Schedule A of the Circular by reference to Rules 2021, 1728 and items (2) and, (3) ' of Sehedule If only there would be hardly any difficulty in holding that the present case comes under item 12 of Sehedule A. But Mr. Pal, appearing for the respondent has argued and that argument has been accepted by Sinha' J. that the expression 'Junior Scale' appearing in item 12 applies to Gazetted Officer of Class I only and does not apply to Gazetted Officers of Class II, in respect of whom the expressions used are 'Scale A and Scale B'. Mr. Pal accordingly argued that the present case is not covered by item 12 and as there is no other item in any of the four Schedules of Circular No. '. AE 721 dated 31-10-1051, which is applicable to this case, it must be governed by the residuary clause No. 8 under which the Deputy General Manager (Personnel) has been authorised to exer-' cise the full powers of the General Manager.

10. In order to test the validity of this contontion we shall have to examine Rule's 105 and 106 (Railway Establishment Code, Vol. I, Pp. 4-5) and Appendix XX (Pp. 318-340 of the same Code). Rule 105 gives the designation of different posts which are included in Class I and Class II. Rule 108, provides that the rates of pay admissible to Railway servants belonging to Railway Services Classes 1 and II, shall be as prescribed in Appendix XX. Turning to Appendix XX we find that the opening' paragraph of that Appendix is as follows: 'Scales B shown in this Appendix shall apply to persons appointed to a Railway service, Class I or Class II, on or after 16-7-1931,' with certain exceptions.

There is therefore no warrant for the proposition that the expression 'Scale B' is peculiar to Railway Service, Class II. The next question is whether the expression 'Junior Scale' is confined to Railway service of Class I only. Tables 1 to 14 of Appendix XX deal with class I Railway Services. Table 15 exclusively deals with Railway Services, Class II and Table 16 deals with Railway Services, Class I and II.

The expression 'Junior Scale' and 'Senior Scale' have been used in Tables 8, 9, 10 and 12 all of which lay down the scales of pay of Class I services only; but it is significant that according to Table 16 (P. 335) an Assistant Personnel Officer (which is the official designation of the post held by the respondent) is appointed in the 'Junior Scale of the department to which the officer belongs'. The respondent is admittedly an officer of Railway Services, Class II. Therefore it follows that an officer of Class 11 Railway Services can be appointed in the 'Junior Scale of the department to which he belongs. It is true that the expression 'Junior Scale' has been used with reference to scales of pay admissible to Class I services only, but it is equally true that a railway servant of Class II may also be appointed in that scale. With great respect to Sinha J. therefore we hold that the expression 'Junior Scale' is not peculiar to any class of officers, but is intended to qualify the scales of pay admissible to Class 1 officers and that an officer of Class II may also be appointed in that scale. When an officer of Class II is appointed in the junior scale of pay, as in the case of an Assistant Personnel Officer, according to Table 10, the right of permitting him to cross the efficiency bar, in our opinion, vests in the General Manager under item No. 12 of Schedule A and it requires the personal sanction of the General Manager. As in our opinion the present ease comes under item 12, Clause 8 of the Schedule has no application.

11. Mr. Gupta further contended that according to item No. 1 of Schedule II of Indian Railway Establishment Code, Vol. I, P. 192 the power of withholding increments including stoppage at any efficiency bar vests exclusively in the Railway Board in the case of Class I officers in Junior as well as Senior Scale and therefore it cannot be held that under item 12 of Schedule A of' Circular No. AE 721 (dated 31-10-41 the General Manager intended to reserve to himself the power of permitting Class I officers to cross the efficiency bar in the junior scale. As against this contention Mr. Pal has invited Our attention to Note I to Table 8(i) in Appendix XX of Vol. 1 -- Indian Railway Establishment Code --P. 321 where there is a sentence which runs as follows:

'The Genera] Manager of an Indian Railway may allow an officer to cross the efficiency bar, if he is satisfied that the officer is fully qualified to hold charge of a Senior Scale post or post of equivalent importance'.

As this Note deals with the crossing of efficiency bar by an officer of Class I, it seemingly contradicts the provisions of item No. 1 of Schedule II according to which the power of lifting the efficiency bar in the case of Class I officers appointed after 1-4-1937, vests exclusively in the Railway Board. On closer analysis however, the contradictionappears to be more apparent than real. According to Schedule II item No. 1 the power is to be exercised by the Railway Board only in the case of officers of Class I appointed after 1-4-1937, whereas it may be that according to Note (1) of Table 8(i) of Appendix XX, the power is to be exercised by the General Manager in the case of Class I officers appointed before that date. It is true that NoteI of Table 8(i) of Appendix XX contains no suchlimitation on the power of the General Manager;but we must read it in the way indicated aboveif we are to reconcile it with the provisions ofitem No. 1 of Schedule II. Since the power of raisingthe efficiency bar of Class 1 officers vests in theRailway Board in the case of an appointmentafter 1-4-1937, and in the General Manager incases of appointments prior to that date we musthold that under item 12 of Schedule A of Circular No.AE 721 the General Manager intended to reserveto himself the power of permitting Class I officersappointed before 1-4-1947 (sic), in Junior Scale, tocross the efficiency bar.

12. Mr. Gupta also contended that under the law the General Manager could not delegate his statutory duties to the Deputy General Manager (Personnel) and assuming that he had lawfully delegated his power to the Deputy General Manager (Personnel) he could revoke that delegation at any time and relied upon the case of -- 'Manton v. Brighton Corporation', (1931) 2 KB 393 (A). I have already considered the question whether the General Manager could, under the rules, delegate his authority to his subordinate and have come to the conclusion that under Appendix X to the' Indian Government Railway General Code -- Vol.II -- P. 87 the General Manager could delegate special power relating to sanctioning of expenditure to his subordinate and I have also held that as the power of lifting the efficiency bar throws a financial burden on the Railway it is a matter relating to sanctioning of expenditure and as such it could be delegated by the General Manager under Appendix X of Vol. II of the Indian Railway General Code.

In the case of 'Manton v. Brighton Corporation' (A) cited by Mr. Gupta the defendant Corporation delegated its powers and duties to certain standing committees members of which were appointed for 3 period ending with the next annual meeting of the Corporation and the plaintiff was appointed to serve on three Standing committees. Before the expiry of his term of appointment, however, the plaintiff was removed from each of the three Standing Committees on the ground of alleged misconduct whereupon the plaintiff started an action and took out a summons for an interlocutory injunction restraining the defendant corporation from interfering with the exercise by him of his rights and privileges as a member of all the Committees. In dismissing the plaintiff's prayer Slade, J. quoted --' with approval the observations of Lord Coleridge, C. J. in -- Until v. Clerke', (1890) 25 QBD 391(B), to the following effect

'Delegation does not imply a denudation of power and authority .......... the word delegation implies that powers are committed to another person and body which are as a rule always subject to resumption by the power delegating'.

This passage deals with the effect of delegation and lays down that in spite of delegation the delegating authority can always revoke the delegation. In the case before us, however, we are not concerned with the revocation of delegation. In Manton's case (A), the delegating authority withdrew the power before the delegate had exercised it. In the present case, however, assuming that there had been a delegation, the delegate had exercised the power during the subsistence of the delegation and it is nobody's case that the General Manager withdrew the power of the Deputy General Manager (Personnel) to hold the second test for crossing the efficiency bar before that test was actually held.

Mr. Gupta then relied upon the observations of Slade, J. at page 403 which runs as follows:

'One cannot divest oneself of one's statutory duties. One can get another to perform them and if he performs' them properly, well and good, if he does not, one will have to perform them oneself and therefore one cannot divest oneself of those, duties'.

This dictum of Slade, J. has to be read with the reservation that there is no statutory power to delegate one's statutory duties. If there be a statutory provision authorising one to delegate one's statutory duties, the dictum of Slade, J. as quoted above will not apply. I have already pointed out that the second paragraph of the preamble to Appendix X to the Indian Railway General Code authorises the General Manager to delegate his power to sanction expenditure. For these reasons I am unable to hold that the decision in Manton's case (A), is of any assistance to the appellant. Assuming therefore that the General manager had authority to delegate his power the only enquiry in the present appeal is whether he had, in fact, delegated it to the Deputy General Manager (Personnel). As we have held that the General Manager never delegated his power of permitting the respondent to cross the efficiency bar to the Deputy General Manager (Personnel), we must hold that the order 'No. OPE. 1084/52 dated 25-3-1952 passed by the Deputy General Manager (Personnel) by which the respondent was granted increment of pay from Rs. 500/- to Rs. 530/- was without jurisdiction,

13. Sinha J. in the course of his judgment has referred to the practice prevailing in the office in support of his conclusion that Deputy General Manager (Personnel) has authority to declare the fitness of the respondent and to sanction increment of pay next above the efficiency bar. Reference has been made to the fact that on the last occasion also when the respondent failed, the test was held by the Deputy General Manager (Personnel). Now it is one thing to hold a test and it is quite a different thing to pass final orders regarding the result of that test. On the former occasion when the respondent was found unfit the Deputy General Manager forwarded his recommendations on the result of the test to the General Manager who called for an explanation from the respondent to show cause why the increment of the respondent's salary next above the efficiency bar should not be withheld and after a due consideration of the ex-planation submitted by the respondent, decided to withhold it for a period of six months (vide Ex. HC, 1 and annexure A to the counter-affidavit). The Deputy General Manager (Personnel) may no doubt hold the test if he is so directed by the General Manager, but he has no jurisdiction to pass final orders on the result of that test. ' His duty is to forward the result of the test to the General Manager who may or may not accept his recommendations and who is empowered to pass final orders. The practice of the office therefore is not what it has been held to be by Sinha J.

14. Lastly, Mr. Pal has argued that it was the duty of the General Manager to give an opportunity to the respondent to show cause why his increment should not be stopped at the efficiency bar under Article 311(2) of the Constitution, as was done by him on the previous occasion . Upon the findings arrived at by us, the stage at which the respondent is to be given an opportunity to show cause under Article 311(2) of the Constitution has not yet arrived, The General Manager has merely refused to accept the result of the test held by the Deputy General Manager (Personnel) and has directed the respondent to appear at another test to be held by himself and the Chief Engineer and the Chief Electrical Engineer (vide Annexure F to the petition), It is only after that test is over that the question of stoppage at efficiency bar may arise and it is only then that the respondent will be entitled to a notice under Article 311(2) of the Constitution. Mr. Pal has argued that under the order of the Deputy General Manager (Personnel) which was accepted by the Accounts Department (Vide Annexures A, D & E to the petition) the respondent had earned the increment next above the efficiency bar and the order of the General Manager, as communicated by letter M. S. No. DS/Confdl. Report/52 dated 30-5-1952 (Annexure F to the petition) amounts to withholding of the increment and stoppage at the efficiency bar, which is a penalty and therefore attracts the operation of Art 311(2) of the Constitution. If the order of the Deputy General Manager (Personnel) being office order No. OPE 1084/52 dated 25-3-1952 (Annexure A to the petition) had been passed by him in valid exercise of a power lawfully delegated to him, this argument of Mr. Pal would have been of great force and in that case we would have been constrained to hold that the subsequent order of the General Manager as contained in Annexure F to' the petition was without jurisdiction. Since, however, after a consideration of the relevant Rules and Administrative instructions we have come to the conclusion that the Deputy General Manager (Personnel) had no authority to pass office order No. 1 OPE 1084/52 dated 25-3-1952, we must hold that that order was void and on the basis of that order the respondent acquired no right to the increment next above the efficiency bar and consequently Article 311(2) of the Constitution has no application to the present case.

15. For the reasons given above this appeal must be allowed and the judgment of Sinha J. set aside and the application filed by the respondent under Article 226 of the Constitution dismissed. Having regard to the fact that the respondent hadto suffer unnecessary harassment for no fault of his we make no order as to costs.

Chakravartti, C.J.

16. I agree.


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