1. A very short point has arisen in this case but it does appear that the point ia of great importance to a particular class of employees of the Eastern Railway. The position is as follows:
2. The petitioner is a railway servant employed as a commercial clerk, more particularly, an Assistant Goods Clerk, at the Howrah Goods Office of the Eastern Railway in the salary grade of Rs. 60/-......Rs. 150/-. This post 15 a 'non-selection post'. In other words, there appears to bo two kinds of posts amongst the railway subordinate staff, namely, 'selection posts' and 'non-selection posts. It' appears that all posts below Rs. 200/-...... .Rs. 300/- are now treated as non-selection posts. The entire problem in this case is as to how incumbents in non-selection posts are to be promoted. The matter is primarily governed by the provisions of the Indian Railway Establishment Code, and the Rule applicable in to be found in Appendix 'II-A set out at page 211 of the Indian Railway Establishment Code, Vol. I (1951). The relevant provisions are as follows:
'4. Promotion.-- (a) A railway servant may be promoted to fill any post, whether a selection post or a non-selection post, only if he is considered fit to perform the duties attached to the post. The General Manager or the Chief Mining Engineer or head of a department, may prescribe the passing of specified departmental or other tests as conditions precedent to an employee being coneidered fit to hold specified posts; such Rules should be published for the information of the staff concerned .
5. Non-selection posts: (a) Promotion to non-selection posts shall be made by the authority competent' to fill the post from amongst the staff normally eligible for such promotion in accordance with the orders or practice regulating such promotions.
(b) Promotion to such posts shall be made in the order of seniority of the man concerned, a senior man being passed over only if he has been declared unfit for holding the post in question.
Note.-Declaration of unfitness should ordinarily have been made sometime previous to the time when the promotion of the employee is being considered.
(c) When in filling a non-selection post a senior man is passed over, the authority making the promotion shall record briefly the reasons for such supersession.'
3. As against non-selection posts, selection posts are by Rule 6 of Appendix II-A, filled in accordance with merit.
4. The plain meaning of the rules appears to be as follows: In a selection post there is general competition and' the most meritorious is promoted. In a non-selection post, the seniormost is promoted, provided he is suitable. The wording of the Rules in Appendix II-A is in some respects not very specific and does in fact give rise to a great deal of trouble. Reference is made to 'practice regulating promotions' and so on. The employees were not very clear as to their position. A cursory reading of the Rules will show that Rule 4 in Appendix II-A is a general rule which is applicable to both selection and non-selection posts and it enables the General Manager or certain other officers to prescribe the passing of specified departmental or other tests as a condition precedent to an employee being considered fit to hold specified posts. Question may well arise as to whether this was not inconsistent with the Rule 5 which prescribed that in case of non-selection posts, the promotion will be regulated by seniority.' As a matter of fact, this confusion was heightened by a circular which appears to have been gazetted on 24-1-1951 and is Annexure 'A' to the petition. In this circular it was laid down that the passing of Traffic Accounts Examination (Lower) for Goods Clerks in grades higher than the lowest, and Station Masters, was obligatory. The question arose as to whether this meant that persons in non-selection posts referred to therein, must all pass that particular examination in order to qualify for promotion. It appears that there was considerable agitation against this interpretation and the matter was taken up by the Trade Unions, who claimed that persons in non-selection post could not be subjected to a restriction of this description. Whether it is due to this agitation or not, I cannot say, but it does appear that sometime on 21-11-1953 the Railway Board decided as follows:
'The process of making selection:
After taking into account the various representations received on the subject including views of the National Federation of Indian Railwaymen, it has been decided to modify the extant Rules in Appendix II-A to the extent indicated below:
(i) There will be only two categories of posts, namely, non-selection posts and selection posts.
(ii) Non-selection posts will be filled by promotion of the seniormost suitable employee suitability being determined by authority competent to fill posts on the basis of the records.'
5. The only other important provision contained in the circular is a direction to the effect that all posts in grade Rs. 200/-..... .Rs. 300/.- and above were to be treated as selection posts.
6. It will thus appear that the Railway Board intended to modify and amend the provisions contained in Appendix II-A. The point is how far that amendment went. In other words, wliether the provisions of Rule 4 of Appendix II-A which enabled the General Manager to prescribe a de-. partmental or other test was abrogated or not. Since the circular did not mention about these tests, it was contended that in all cases of non-selection posts there was no question of any test at all. What was to be considered was seniority and suitability, the latter being decided upon the records, which obviously meant service records. It is in connection with this doubt that I find another letter written by the Assistant Director, Establishment Railway Board to the General Manager, Eastern Railway, Calcutta, dated 29-1-1954, a document which is annexed to the affidavit-in- _ opposition by Provas Chandra De affirmed on 23-3-1955. In that letter it is pointed out as follows:
'* * the prescription of a qualifyingexamination does not offend against the ordersrecently issued by the Board regarding promotionin grades below 200-300 on the basis of seniority.'
I am afraid, this letter standing by itself reallymakes the matter more complicated. It does nobspecify as to what sort of qualifying examinationis, meant. In other words, would it be open tothe Authorities to prescribe that a general qualifying examination must be passed by all candidateswho come up for promotion in non-selection posts?As a matter of fact, that the letter has given riseto such a confusion, is quite apparent from theaffidavit-in-opposition itself, in which an attempthas been made to uphold the original Circulardated 24-1-1951 in its entirety. But the real position has been correctly delineated in the letterof the General Manager dated the 15th Februarywhich is Annexure 'B' to the petition. This letterstates as follows:
'All staff, therefore, who were not officiating on 20-3-53 in posts below grade Rs. 200-300/- which were previously treated as 'Selection Posts' but were promoted thereafter, are to be reverted with immediate effect and the posts so vacated are now to be filled by the seniormost men, suitability being determined on the basis of records. Where considered essential and with the approval of this office, suitability tests may be held in order to . ascertain the suitability of the employees for promotion to the higher grade non-selection.' When analysed, the position seems to be as follows:
(1) Non-selection posts are to be filled by promotion of the seniormost suitable employee.
(2) The suitability is determined by Authority competent to fill the posts on the basis of the records.
(3) But there is nothing to prevent the General Manager or the Chief Mining Engineer or the Head of a Department to direct a departmental test in an individual case to examine the candidate's suitability for promotion to the higher grade.
(4) This does not mean that it is open to such ; Officers to prescribe 'that all such candidates -must pass through an examination of the ' kind mentioned in the Circular, dated 24-1- -1951. In other words, there may be an individual test, but a general test cannot be made compulsory.
(5) What these individual tests shall be, is to be determined and/or prescribed by the Officers, and will necessarily depend on the facts of each case. Such tests are not essential, but, on the other hand, are not precluded by any Rules.
7. I think I may elaborate the position a little more. In the case of non-selection posts, promotion is to be by order of seniority and not in order of merit. But this does not mean that a candidate who is the seniormost must be promoted if he is quite unsuitable for filling the higher post. For ascertaining suitability, it is not open to the authorities to prescribe a general qualifying examination as was done in the Circular published on 24-1-1951. In the first instance, the authorities must have recourse to the service records for ascertaining suitability. But it is obvious that mere recourse to service records may be insufficient. For example, suppose there is one post and two candidates of equal seniority: Some kind of test has to be made to find out as to who is the more suitable one. Then again, suppose the service record shows that a person was rather weak in accounts. If the higher post entails a lot of accounting, the authorities may wish to make certain that the candidate will be able to manage the new work. It may be that the records show that the candidate was taking frequent leave on medical grounds. The authorities may want to have a health test to see that the candidate will be able to discharge his new duties. To hold that the authorities are precluded even from making such tests will be going to extremes and will certainly impair the efficiency of railway administration and this Court will not make such an interpretation until compelled to do so by some clear rule.
8. On the other hand, the affidavit-in-opposition suggests that some officials have imbibed a wrong notion that in non-selection posts, all candidates may be asked to sit at a general examination and qualify themselves. This is clearly illegal.
9. Learned counsel on behalf of the petitioner states that his client will be quite content with the above interpretation because the apprehension was that in future all candidates in non-selection posts who are eligible for promotion will have to pass a general examination of the description referred to in the Circular dated 24-1-1951, an interpretation which has been supported even in the affidavit-in-opposition to the present application. Mr. Kar, however, appearing on behalf of the Railway, has stated that he does not support such an interpretation, but he takes up the position taken by the General Manager himself in his letter dated 15-2-1954. It seems, therefore, that the atmosphere being now cleared, there really is not much dispute between the parties. There is nothing in the petition to show that the petitioner has been called upon to pass or qualify himself in the particular examination which is mentioned in the Circular dated 24-1-1951 or any general examination and, therefore, it is not necessary to pass any particular order to safeguard him. The position has been explained above, and if in future action is taken contrary to it, then of course the petitioner will have liberty to ask for relief; but at present he is entitled to none.
10. The result is that there will be no orderon this application and the Rule will stand dis-charged. There will be no order as to costs.