Amalendu Roy Choudhury vs Kailash Behari Mathur and Others

Bose, J.—This is an application under Art. 226 of the Constitution for an appropriate writ directing the respondents to forbear from giving effect to an order, dated the 3rd of April, 1952, which cancelled the confirmation of the petitioners to certain posts in the East Indian Railway and reverted them to certain lower posts with effect from 1st of April, 1952. In April, 1945, the petitioners who eight in number were recruited by the Bengal and Assam Railway Administration and were designated as "Special Clerks" on scale of pay of Rs. 100-10/2-120/-. After the said recruitment the petitioners were given training as Probationers in the Commercial and Transportation Branches of the said Railway for a full period of 2 years. Thereafter the petitioners were confirmed in that post with effect from 1st May, 1947. On the 5th May, 1947, a circular letter was issued under the signature of Chief Commercial Manager of the Bengal Assam Railway in which it was stated that these officers would on the completion of their training be utilised in Inspectorial and control work generally and regarding their absorption and promotion they would take their places with other staff in the categories of Inspectors and Controllers and in the normal course they would come below those who are selected and placed in the approved panel before them. By this letter all the "special clerks" except those who had not completed their training were confirmed in that post with effect from 1st May, 1947. In August, 1947, after the partition of India the petitioners were transferred to the East Indian Railway, after there was disintegration of the Bengal Assam Railway, on identical turns and conditions of service which governed them when they were in the B. A. Railway. Thereafter the East Indian Railway Administration commenced forming panels of Inspectors and Controllers but the petitioners were not included in such panels In November, 1947, the petitioners preferred an appeal to the Deputy General Manager (Personnel) through Divisional Superintendent, Sealdah, but the Superintendent without forwarding the said appeal turned it down on 20th November, 1947. But on being requested by the petitioners on the 29th November, 1947, to forward that appeal the appeal was forwarded on 15th December, 1947, but the Deputy General Manager on the 10th January, 1948, upheld the decision of the Divisional Superintendent. Subsequently, through the intervention of the Regional Labour Commissioner, the petitioners asked for a review of their cases. Thereafter further appeals were preferred and the Chief Commercial Manager considered the service conditions and the status of the "special clerks" and was of the view that the "special clerks" should be treated in the same way as the Traffic Apprentices on the East Indian Railway. It was pointed out in the Note of the C. C. M., that the "Special clerks" were not intended for clerical jobs. On 6th January, 1951, the Railway Administration appears to have passed an order by which the petitioners were provisionally permanently promoted as Claims Inspectors in Grade of Rs. 200-10-300 (P.C.), with effect from 10th January, 1951, and certain temporary posts of Claims Inspectors were assigned to them. It is stated in this order that as the petitioners had completed their training much earlier than the East Indian Railway Commercial Apprentices the Chief Commercial Manager had decided that the former should be placed on the seniority list above the latter. It further appears from an inter-departmental letter of the Railway, dated the 31st March, 1951, that the "special clerks" had been confirmed as Claims Inspectors in preference to all officiating Claims Inspectors in accordance with their terms and conditions under which they were directly recruited. On the 9th of April, 1951, there appears to have been another Office order under which the petitioners were placed on the Seniority list above the Commercial Apprentices irrespective of the fact that the former had been confirmed from later dates. It further appears from a letter, dated the 24th of April, 1951, written by Mr. Rangachari to the Superintendent (C. & R.), Benares D Cantt., that in accordance with the order of the Chief Commercial Manager, out of the total permanent posts of Claims Inspectors, 13 permanent posts had been made use of for the absorption of 5 East Indian Raiway Commercial Apprentices and 8 ex-B. A. Railway "special clerks" by virtue of their service conditions. On the 3rd of April, 1952, upon an appeal preferred by the East Indian Railway officiating Claims Inspectors the then General Manager decided upon an interpretation of the circular letter, dated the 5th May, 1947, that for the purpose of absorption and promotion the petitioners on completion of their training had to take their places with other staff below those who had been selected and placed in the approved panels before they completed their training. Consequently, as the petitioners had completed their training in May, 1947, and the 1st panel for the post of Commercial Inspectors was formed in February, 1947, the petitioners must be placed after N. K. Roy, the last man of the February, 1947, panel formed on the ex-B. A. Railway. An order was therefore made reverting the petitioners to the posts of Assistant Claims Inspectors in Grade of Rs. 150-225 (P.C). with effect from 1st April, 1952, and eight officiating Claims Inspectors who were E. I. Railway men were provisionally confirmed in the posts of Claims Inspectors in Grade of Rs. 200-10-300 (P.C).

The petitioners have challenged this Order of reversion, dated the 3rd April, 1952, as arbitrary and as being made in contravention of Art. 311(2) of the Constitution of India.

The Head Quarter Personnel Officer has affirmed the affidavit in opposition. It is Stated in this affidavit with reference to the advertisement which was issued for recruitment of special clerks, that these special clerks were assured that on completion of their training they would be appointed as clerks, Junior Inspectors or to any other suitable post and it is suggested that the assurance extended no further. But the Commercial Apprentices recruited by the East Indian Railway in 1946, were assured that they would be offered employment as Claims Inspector or as junior research Inspector on completion of their training.

It is further stated in paragraph 17 of this affidavit that the orders and memoranda which were made in favour of the petitioners were made on the interpretation that the terms and conditions of B. A Railway special clerks were the same as those of E. I. Railway Commercial apprentices but it was subsequently held by the General Manager of the Railway on perusal of the terms and conditions of both the categories that they were not identical and this fact was overlooked in the beginning The memorandum which was made by the Chief Commercial Manager on 24th July, 1951, sums up in paragraph 20 thereof the position of the special clerks. It may be that the summary is not accurate in all its particulars but it is clear that the Chief Commercial Manager had gone into the matter fully and after scrutinising the papers of the relevant files he came to the conclusion that the orders regarding the confirmation of the petitioners as Claims Inspectors should be rescinded. But in view of the fact that the petitioners had been confirmed as Special clerks in May, 1947 and since then had been in Service for four years, and as they must have acquired some experience during the period they should be made to appear before a Selection Board and those found suitable for promotion should be designated as A. C. T.I''s in Grade 200-300 but those not found suitable for promotion might be posted as Assistant Claims Inspectors or as Junior Research Inspectors or in any other similar category in Grade 150-225.

Upon this recommendation the Deputy General Manager made an endorsement suggesting that eight super-numeraly posts of Claims Inspectors might be created but the Financial Adviser by his letter, dated 8th January, 1952, turned down the proposal on the ground that this would involve an infructuous expenditure of approximately Rs. 30,000 per year for an indefinite period.

It is upon these facts and after construing the Circular letter, No. 85E/152 (T), dated 5th May, 1947, and particularly the following clause :

Regarding their absorption and promotion, they will take their places with other staff in the categories of Inspectors and Controllers and in the normal course they will come below those who were selected and placed in the approved panel before them,

the Deputy General Manager made the order of reversion. It may be that the Authorities have misconstrued the Circular letter, dated the 5th May, 1947, and have made, a wrong estimate of the reasonableness of the claims of the petitioners but I am unable to come to a definite conclusion that the conduct or act of the respondents in making or approving the order, dated the 3rd April, 1952, was arbitrary. There have been appeals and representations to the Authorities from time to time by one group of employees or the other and the different officials have from time to time expressed different views about the status and position and about the conditions of Service of these employees with the result that the poor employees have been made the victims of hardship and disappointment and have suffered degradation in course of their employments.

If anybody is to be blamed for the feelings of discontent and unrest amongst the employees of this Railway it is undoubtedly the high officials who are at the helm of affairs.

It is either the error of their judgment in taking a particular course of action or it is their desire to favour one group of employees at the expense of another group which is responsible for bringing about this unsatisfactory state of affairs in the Railway Administration.

Mr. Niren De further contended that the order of the 3rd April, 1952, is in contravention of Art. 311(2) of the Constitution as it reduced the petitioners in rank without giving them any opportunity to show cause against the action proposed to be taken against them. Mr. A. K. Sen, the learned Counsel for the respondents, has argued that as the petitioners were only "provisionally permanently confirmed as Claims Inspectors", they were holding the said posts as only in an officiating capacity and their substantive posts being those of special clerks, there was no reduction in rank by the order of 3rd April, 1952.

I am unable to accept the contention of Mr. Sen. Although the words "provisionally permanently promoted" are ambiguous in their nature, the letter of Mr. Rangachari of the 24th April, 1951, and his earlier letter of the 31st March, 1951, make it clear that it was understood by the railway authorities that the petitioners were confirmed in the posts of Claims Inspectors. Even assuming that the petitioners were merely holding the posts of Claims Inspectors in an officiating capacity, I would have held that the petitioners had been reduced in rank within the meaning of Art. 311(2) if they had been reverted by way of penalty. [See M. V. Vichoray v. State of Madhyo Pradesh, (1952) 7 DLR (Nag) 58, judgment of Mangalmurti, J., and Madholkar, J.]. It has been held by this Court as also by other High Courts that the words "dismissal, removal and reduction in rank" in Art. 311(2) have a technical meaning and it is only when an employee is dismissed, removed or reduced in rank for misconduct or some fault on the part of the employee that this Article is attracted. See Jayanti Prasad Vs. The State of Uttar Pradesh, ; Kewal Mal Singhi Vs. Heta Ram and Others, ; Des Raj Vs. Dominion of India, , and Original Side Matter No. 187 of 1951, Kamal Kanti Ghose v. J. H. Patridge.

It was argued by Mr. Niren De, that it is clear from the affidavit in opposition, paragraph 3(e), and the summary in paragraph 20 of the Memorandum dated the 24th July, 1951, that the petitioners were reduced for inefficiency. It appears to me however that this is not the correct position. The reason why the order of reversion was made appears from the body of the order itself, dated the 3rd April, 1952. In my view the petitioners cannot invoke the operation of Art. 311(2) in the facts and circumstances of this case.

It was argued by Mr. A. K. Sen, that as there are no contracts of service in the form required by sec. 175(3) of the Government of India Act, 1935, the petitioners cannot rely on the conditions of service which are alleged to govern their employment in the service of the Union. It is true that section 175(3) applies to contracts entered into by Railway Administration. (See Sriram Arjundas v. Governor-General in Council, (86 C. L. J. 308), and in case of contracts of service of railway employees the Agreements have to be in accordance with Reg. 143 of the Rules of Indian Railway Establishment Code, Vol. I, and in forms in Appendix XXIV, but it is stated by the learned Counsel for the petitioners that when the petitioners were recruited as Special clerks they had entered into Agreements in Form I of Appendix XXIV. This statement is not disputed by Mr. A. K. Sen, but it is urged by him that when the petitioners were promoted as Claims Inspectors, no fresh Agreement was executed. I asked Mr. Sen to produce a Form of the Agreement of employment of Claims Inspectors but he has not been able to produce any. He produced only a Form of Agreement for Transportation Commercial Apprentices. The Form produced is an old one. It appears from Form No. 1 in Appendix XXIV of the Railway Code that a Railway servant so long as he is of non-gazetted status continues to be subject to this Agreement in whatever capacity he may be employed later on. (Clause 14), Page 346. However, as it is not necessary to decide for the purpose of this case the question whether apart from Reg. 143 of the Railway Code it was necessary for every railway employee to enter into a contract of employment in the form required by sec. 175(3), and it is necessary to do so now under Art. 299 of the Constitution, I do not express any opinion on this point. This application, as I have indicated before, fails on other points.

Mr. Niren De also submitted that apart from Rule 1714 of the Railway Code there is no power in the Railway Authorities to reduce a railway Servant to a lower post and so the order is bad. But as I have pointed out before, the order of the 3rd of April, 1952, is not really am order of reduction in rank be cause reduction in this sense implies that it is inflicted by way of penalty. The order impugned is made on the footing that certain posts were allotted to the petitioners under a misapprehension. The petitioners have no right to remain in those posts and so they are assigned certain other posts which are no doubt posts of a lower grade. Rule 1714 itself suggests that there can be reduction to a lower post for reasons other than those mentioned in the Rule. It appears to me that there is no substance in this contention of Mr. De.

It was contended by Mr. A. K. Sen that there has been no demand of justice in this case preceding the application under Art. 226 and so this petition must fail. The demand of justice and refusal is pleaded in paragraph 28 of the petition and Mr. De has produced a telegram, dated the 24th March, 1952, addressed to the Railway Board. It has been held in the case of Union of India (UOI) and Another Vs. Elbridge Watson, , that this demand of justice is not merely a matter of form but is a matter of substance, and the persons against whom relief is sought must be specifically required to do the very act in respect of which relief is sought against such persons. This course does not appear to have been strictly followed in this case and there has not been a proper demand of justice as required by law. The telegram was sent to Railway Board before the Order of 3rd April, 1952, was made. No demand was made from respondents Nos. 1 and 2, at all and this application was moved on 10th April, 1952. The petitioners, it appears, were pressed by considerations of urgency as Railway Regrouping scheme was imminent and so they did not make any further demands. If the petitioners had made out grounds for interference this absence of proper demands would not have stood in the way of the petitioners getting reliefs in this application, as it appears to me that the case of the petitioners might be said to fall within the exceptions contemplated in the concluding portions of the passage dealing with this question of demand of justice and refusal in Halsbury''s Laws of England (Hailsham Ed.) Vol. 9 page 771 paragraph 1307. In my view this petition must fail. Rule is discharged. I make no order as to costs.