1. This is an application under Article 226 of the Constitution for a writ in the nature of mandamus directing the respondents to forbear from giving effect to an order of reversion dated 27 May 1949 passed by the Chief Engineer of Eastern Railway.
2. The petitioner is an Engineering Graduate of the Benares Hindu University and he is an Associate Member of the Institute of Engineers. In March 1938, the petitioner was employed in Bengal-Nagrpur Railway Company, Ltd., in the Subordinate cadre of the Bridge Branch. Immediately thereafter he was confirmed as a Bridge Inspector. On or about 1 October 1946, the said Bengal-Nagpur Railway Company, Ltd., was taken over by the Government of India and was renamed as Bengal-Nagpur Railway. The petitioner having elected to continue in service under the State was employed by the Government of India through the then General Manager, Bengal-Nagpur Railway, under terms and conditions contained in a letter of employment dated 5 July 1946. In February 1947, while the petitioner was posted at Cuttack as Bridge Inspector, he was empanelled and selected by a duly constituted Selection Board as a suitable candidate for being promoted to lower gazetted service (Class II) which is a gazetted rank but the petitioner was not given any promotion just then but he was transferred to Purulia by an order of the Chief Engineer. It is alleged that while working at Purulia the petitioner was twice superseded by his juniors who were promoted to lower gazetted rank by orders of one Mr. Panikkar who was then acting as the District Engineer. On or about 8 August 1948 while the petitioner was still at Purulia the petitioner's bungalow was raided by a gang of robbers and the petitioner was severely assaulted and injured by the dacoits, After the petitioner was treated in hospital for injuries and he recovered therefrom, he was recommended for lighter work and as such when he resumed his duties on or about 8 October 1948, he was posted at Garden Reach, Calcutta. On 18 November 1948 an order was passed by the Chief Engineer Mr. S.K. Panikkar promoting the petitioner to the post of an Assistant Engineer, Bridges (Class II), Garden Reach, but although the medical authorities had recommended lighter work for the petitioner, the petitioner was put to great pressure of work after he was posted as Assistant Engineer, Bridges. It is alleged that on or about 24 May 1949 the petitioner was informed that he would be reverted to a non-gazetted post pursuant to some adverse confidential reports made by the said Mr. Panikkar upon enquiry initiated by one Mr. P.K. Tubby, the Deputy Chief Engineer. On or about the same date, a manuscript copy of the order issued by the Chief Engineer was shown to the petitioner and the petitioner learned from the said order that he had been reverted to the post of a Bridge Inspector. The said Order of reversion was published in the Bengal-Nagpur Railway Gazette, dated 1 June 1949. It appears from the copy of the confidential report which was shown to the petitioner on or about 25 May 1949 that the report against the petitioner was that he was not as keen and quick as others who filled in this post before and that he was unfit both in the office and outdoor work. It also appears that the then General Manager on seeing this confidential report had remarked that the petitioner should be apprised of his shortcomings. The petitioner alleges that as the said confidential reports were passed in contravention of rules 1607, 1609, 1610 and 1611 of the Indian Railway Establishment Code the reports were irregular and no action could be taken on such reports. It is further alleged that as the order of reversion which was passed as a result of adverse confidential report was passed without giving the petitioner any opportunity to show cause against the charges which had been brought against the conduct and character of the petitioner the said order was also illegal. The case of the petitioner further is that the said order of reversion was passed mala fide at the instance of Mr. Panikkar, the then Chief Engineer, and as a result of the adverse confidential report the petitioner had not been given any promotion in future and other persons junior to him had been allowed to supersede him on several occasions. After some correspondence was had between the petitioner and the railway authorities, the petitioner was informed by a letter dated 15 February 1951 that the said reversion had been made for administrative reasons. Thereafter on or about 1 March 1951 the petitioner preferred an appeal before the General Manager, Bengal-Nagpur Railway, but as in spite of reminders nothing was heard for about more than two years about the fate of the appeal the petitioner on 27 June 1953 sent a reminder to the General Manager, Eastern Railway. On or about 1 January 1955 the petitioner gave another reminder to the General Manager and thereafter on or about 12 March 1955, the petitioner asked for a personal interview with the General Manager. On 28 March 1955 the Deputy General Manager informed the petitioner that the General Manager had taken into consideration the representation of the petitioner dated 1 January 1955 and the General Manager was satisfied that the petitioner's case had received full consideration from the administration, but the petitioner would be given another chance when a fresh panel of Assistant Engineers would be drawn up by the Selection Board. The petitioner thereafter moved this Court on 25 April 1956 and obtained the present rule.
3. The first point argued by Mr. Das Gupta is that the order of reversion is bad inasmuch as it was passed by the Chief Engineer whereas the appropriate authority to pass such an order was the General Manager. Reference is made to Rule 134(3) of Vol. I of the Indian Railway Establishment Code which is as follows :
The General Manager may appoint-(a) a non-gazetted railway servant to officiate in the Class II service.
4. This rule 134 is headed as 'Promotion to Gazetted Post' and Sub-rule 3(a) of Rule 134(1) makes it clear that it is the General Manager alone who can promote a non-gazetted railway servant to officiate in Class II service. It is admitted that in the present case when the petitioner was appointed to officiate as an Assistant Engineer, Bridges, on 12 November 1948 in place of D. Patnaik the order appointing him was issued under the signature of the Chief Engineer but this was afterwards approved by the General Manager. So it was the General Manager who had given his approval to the order made by the Chief Engineer. But when he was reverted from this officiating post on 27 May 1949, the order was not made by or with the approval of or under the direction of the General Manager but it was made by the Chief Engineer. It appears to me that this order of the Chief Engineer reverting the petitioner to the post of Bridge Inspector is not according to law. The power given to the General Manager under Rule 134(1)(3)(a) to promote an employee of the non-gazetted rank to a post of the gazetted rank necessarily implies that the power to demote or revert is in the same officer, in the absence of any express rule providing otherwise. No such rule has however been brought to the notice of this Court. It is true that there is no specific rule providing that an order of reversion or demotion should be made by the appointing authority but that appears to me to be the clear implication of Rule 134(1)(3)(a). So on this ground the order of reversion appears to be technically bad. It is true, that the petitioner was promoted to officiate as Assistant Engineer, Bridges, in the temporary vacancy, caused by D. Patnaik being appointed to officiate in place of Mr. C.N. Banerjee, as Assistant Engineer, Personal Assistant to the Deputy Chief Engineer and it is also true that on reversion Of Mr. Patnaik to his substantive post as Assistant Engineer, Bridges, the petitioner had to be reverted to his substantive post of Bridge Inspector but the fact nevertheless remains that reversion or demotion of the petitioner took place, as a result of this arrangement. If for some reason D. Patnaik did not revert as Assistant Engineer, Bridges, then there would be no occasion to revert the petitioner to his former post of Bridge Inspector. Simply because D. Patnaik returned to his substantive post and thereby necessitated the reversion of the petitioner to the post of Bridge Inspector, does not do away with the necessity of the order of reversion being passed by or with the approval of the General Manager. It is clear from the rule referred to, that it is a responsible person like the General Manager who is entrusted with the power of promotion of non-gazetted employees in Class II service, and it follows therefore that the power of demotion is also in him.
5. It is moreover clear law that such powers of appointment or dismissal, etc., are of an administrative nature and they cannot be delegated. If under a statute a duty to appoint is placed on the holder of an office whether under the Crown or not, he would normally have no authority to delegate. He could take advice of course but he could not by a minute authorize someone else to make the appointment without reference to him. Reference may be made to a recent decision of the House of Lords in Vine v. National Dock Labour Board (1956) 3 A.E.R. 939 at p. 951.
6. The rules in the Railway Establishment Code have statutory force and the order of the Chief Engineer, dated 27 May 1949, is contrary to the spirit and intendment of Rule 134(1)(3)(a).
7. A faint attempt was made by Mr. Das Gupta to argue that an order of reversion is ' removal' within the meaning of Article 311(1) of the Constitution of India but it appears to me having regard to the wordings of Article 311(2) of the Constitution that reversion or reduction in rank was not intended to be brought within the scope of Article 311(1) of the Constitution. Therefore it is not open to the petitioner to invoke the assistance of Article 311(1) of the Constitution in the present case.
8. Mr. Ajoy Kumar Basu, the learned advocate for the opposite parties, has argued that as the petitioner has been guilty of unreasonable delay in coming to this Court for relief under Article 226 of the Constitution, the petitioner should not be granted any relief under Article 226 which is a discretionary remedy. It appears to me that this contention of Mr. Basu is not without force. The petitioner was reverted on 27 May 1949. He made a representation to the Chief Engineer for reconsideration and thereafter submitted an application on 16 August 1949 for being posted as Assistant Engineer, Bridges, at Sini by way of promotion. The Chief Engineer's letter, dated 22 August 1949, informed the petitioner that the application could not be acceded to. Thereafter in 1950 he made some further representations for promotion to the Chief Engineer. On 15 February 1951 he was informed by the Deputy Chief Engineer that the petitioner could not be promoted to Class II service for administrative reasons. Thereafter the petitioner was given opportunity to appear before the Selection Board in April 1953 but he failed to pass the test and was therefore not recommended for selection to lower gazetted service Class II post. The petitioner thereafter preferred an appeal on 1 March 1951 to the General Manager but although this appeal was not disposed of for more than two years he did not take any steps to come to this Court and avail of the remedy given to him under the Constitution which came into force in 1950 but he went on giving reminders after reminders and went on making representations to the General Manager for the disposal of the appeal. The petitioner could have instead of wasting time over these representations and reminders approached this Court and asked for directions for speedy disposal of the appeal and also for an order that the reversion order was irregular and in breach of the Rules of the Railway Establishment Code. It was only after the letter of 28 March 1955 which was written by the Deputy General Manager had expressed the view that the petitioner's case had received full consideration but he was entitled to the given a further opportunity before the Selection Board which was due to draw up a fresh panel of Assistant Engineers that he moved this Court in April 1955 and and obtained the present rule. Thus a period of about six years had elapsed between the date of the reversion and when he approached this Court for a writ under Article 226 of the Constitution. In the meantime the post from which he had been reverted had been filled up by other persons and any relief given at this stage to the petitioner will simply tend to create complications. Any direction now given may involve the railway authorities in interfering with the postings of other persons who are at present rightfully occupying those posts and may also involve the railway authorities in legal liabilities to such persons. Having regard to all these facts I am of the view that this unreasonable delay on the part of the petitioner in coming to this Court for relief under Article 226 of the Constitution disentitles the petitioner from obtaining any relief under this article.
9. The other point which has been argued by Mr. Das Gupta is that as the petitioner was not given an opportunity to show cause against the order of reversion which was passed against him on the basis of the adverse confidential reports, there is violation of Article 311(2) of the Constitution and so the order of reversion is bad. The posting sheets of 17 November 1948, 19 January 1949, 7 February 1949 and 27 May 1949 have been annexed to the counter-affidavit and are marked as annexures (1), (2), (3) and (4). These sheets make it quite clear that the petitioner was allowed to officiate as Assistant Engineer, Bridges, Class II, with effect from 17 November 1948 in order to enable Sri C.N. Banerjee, Assistant Engineer, who was posted at the head office as Personal Assistant to the Deputy Chief Engineer to proceed on leave on medical grounds. The arrangement was made purely as a temporary measure. It is true that adverse confidential report was shown to the petitioner on 25 May 1949 and two days thereafter on 27 May 1949 the order of reversion followed, but these posting sheets and the order of the Chief Engineer dated 18 November 1948, which received the approval of the General Manager and copies of which have been filed in Court and that have been marked as H.C. Exs. A and B, make it clear that the petitioner had to resume his substantive post of Bridge Inspector on 27 May 1949 on the reversion of Sri Patnaik from the post of officiating Assistant Engineer, D.R.G., to the post of Assistant Engineer, Bridges. The facts stated in the counter-affidavit in support of . the case of the opposite parties show that the reversion was not by way of any penalty but it was made in order to give effect to a chain of arrangement which had been made with regard to the posting of several officers who were involved in this chain. Thus the order of reversion not being by way of penalty cannot be considered as reduction in rank within the meaning of Article 311(2) of the Constitution. In the case of Rabindra Nath Das v. General Manager, Eastern Railway, and Ors. 1956-1 L.L.J. 563, Chakravarti, C.J., pointed out that the reduction in rank as used in Article 311 of the Constitution involved two concepts. There must be reduction in rank in the sense that the Government servant must be sent down or put back to a lower post from a higher one he was holding and such demotion or reversion must be by way of penalty. It is further pointed out in this decision that when a person is reverted from an officiating post on the ground of unsuitability, what takes place is that the experiment of allowing such a person in a higher post having failed by reason of his inefficiency, it is terminated and his position in the service is consequentially readjusted taking a normal step in the course of office administration. There is no penalty involved in the readjustment and no reduction in rank and therefore there can be no question of following the procedure prescribed by Article 311(2) of the Constitution. It is clear from the above observations of the learned Chief Justice that even when an officer is reverted on the ground of inefficiency it does not amount to reduction in rank within the meaning of Article 311(2) of the Constitution. So it cannot be argued in this case that even if the petitioner had been demoted because of the adverse confidential report which stated that he was not fit to discharge the duties of an Assistant Engineer, Bridges, the said demotion did amount to reduction in rank so as to attract the operation of Article 311(2) of the Constitution. But as I have found already on the facts stated in the counter-affidavit that the order of reversion was not by way of imposing any penalty but in order to give effect to the chain of arrangement of postings of several officers, this question of unsuitability or unfitness of the petitioner becomes an irrelevant consideration. It appears to me that the petitioner was not entitled to be given any opportunity to show cause before the order of reversion was made.
10. A point was also made to the effect that the adverse confidential report was not in compliance with rules 1609, 1610, 1611, but it appears from the materials on record that the petitioner was shown a copy of the confidential report on 25 May 1949 and it is also clear that this confidential report is made by way of routine work in terms of rule 1606 of the Indian Railway Establishment Code. In my view, there has been substantial compliance with the rules in the Railway Establishment Code the violation of which is complained of. These are all the points which have been argued in this case, but in view of my finding that the conduct of the petitioner disentitles him from obtaining the discretionary relief under Article 226 of the Constitution this petition must fail.
11. This rule is accordingly discharged. There will be no order as to costs.