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PETITIONER: ARUN KUMAR CHATTERJEE

       Vs.

RESPONDENT: SOUTH EASTERN RAILWAY & ORS.

DATE OF JUDGMENT01/03/1985

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) MADON, D.P.

CITATION:  1985 AIR  482            1985 SCR  (3)  18  1985 SCC  (2) 451        1985 SCALE  (1)372

ACT:      Civil Service       (1)  Railway Establishment  Manual Rule  312 read with Railway Board’s  Circular  No.  1565A-Seniority  of  Railway Servants on Transfer-How to be fixed.      (2) Words  and Phrases-"Officiating"  and  "Temporary"- Meaning of-"Officiating" does not include temporary staff.

HEADNOTE:      Rule 312  of the  Railway Establishment Manual provides that seniority  of railway servants transferred on their own request from  one railway to another should be allowed below that of  the existing confirmed officiating railway servants in the  relevant grade. To explain the purport and effect of r. 312, the Railway Board’ issued a Circular No. 1565A dated January 31,  1950 which  provided that  on transfer  at  the employee’s own  request his position should be at the bottom of the  seniority list  of all  permanent employees  of  his grade, if  he is  permanent and  at the  bottom of the whole list  of   permanent  and   temporary  employees  if  he  is temporary. The  Railway Board’s subsequent Circular dt. 31st Dec. 1966  sought to  clarify that the term ’officiating’ in Rule 312 includes temporary staff as well.       The appellant, who was holding a substantive post of a clerk in  the Northern  Eastern Railway  was transferred  on October 15,  1958 on  his own  request to  The South eastern Railway and  was posted  at the  Sealdah  Division.  He  was however  placed   below   the   temporary   staff,   namely, respondents 7  to 45  in the seniority list of the clerks in the Sealdah  Division prepared  he  the  respondent-Southern Eastern  Railway   in  1967.  After  rejection  of  his  two representations in the year 1967 and a reminder to the Chief Personnel Officer  dated December 21, 1973 against the wrong fixation of his inter-se seniority, he filed a writ petition in the  High Court  on 30th  April 1975 challenging the said seniority list.  The  learned  Single  Judge  held  that  in pursuance  of  Rule  312,  the  relevant  seniority  of  the appellant was  governed by  the Railway BOARD’S Circular No. 1565A and  not by its subsequent Circular dated December 31, 1966, and  ordered the  Railway Administration  to refix his seniority below all permanent 19

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ent and  officiating clerks  on the  date of his transfer in the Sealdah Division, but above the temporary clerks in that Division with  consequential  benefits.  On  appeal  by  the respondent the Division Bench upheld the view of the learned single Judge  but, observed  that due to inordinate delay on the part  of the appellant in moving the court, there was no justification for  interfering with  the promotions  already made of  respondents no.  7 to 45 and ordered that he should be placed immediately below   the remaining respondents.       Allowing the appeal, ^      HELD: (1) It would appear from the facts that there was no delay,  much less  inordinate delay,  on the  part of the appellant in  filing the  petition under  Art.  226  of  the Constitution for  the protection of his right as to inter-se seniority. In fact, he had made three representations in the matter but without any redress [22E-F]       (2)  There can  be DO  doubt on the terms of r. 312 of the Manual  road with  Railway Board’s  Circular  No.  1565A dated January  31, 1950  that the appellant had to be placed below all  the existing  confirmed and  officiating staff in the  relevant   grade,  irrespective  of  the  date  of  his confirmation or  the length  of  his  service.  He  was  not governed by  the Railway Board’s Circular dated December 31, 1966 on the date of his transfer. [23H; 24A]       (3)  According to  the ordinary  connotation, the word ’officiating’ is  generally used  when a servant having held one post  permanently or  substantively, is  appointed to  a post in a higher rank, but not permanently or substantively, while still  retaining his lien on his substantive post i.e. officiating in That post till his Confirmation. In contrast, the word  ’temporary’ usually  denotes a person appointed in the civil  service for the first time and the appointment is not permanent but temporary i.e. for the time being, with no right  to   the  post.   Therefore,  the   Railway   Board’s interpretation in  the aforesaid Circular dated December 31, 1966  of   the  ’officiating’  in  r.  312  of  the  Railway Establishment Manual,  as including both officiating as well as temporary staff, was apparently wrong. [24D-E]       (4)  The Railway Board’s Circular dated October ],1964 also provides  that if a person has been promoted not on the date  on   which  he  should  have  been  promoted  to  some administrative  error  then  the  employee  should  assigned correct seniority  vis-a-vis his  juniors  already  promoted irrespective of  the date  of promotion  and the  the pay of such employee in higher grade on promotion be fixed proforma at the  stage which  he would  have reached  if he  bad been promoted at  the proper  time Was  no reason for the Railway Administration to have deprived the appellant of the benefit of the  aforesaid  circular,  particularly  in  view  of  an earlier decision of the High Court in Lal Mohan Paul’s case. [24H; 25A-B]        Lal  Mohan  Paul  v.  The  General  Manager,  Eastern Railway, Calcutta  & Ors  Civil Rule  No. 620  (W)/70  dated April 23 1974 approved. 20

JUDGMENT:       CIVIL  APPELLATE JURISDICTION:  Civil appeal No.387(N) of 1981 .       From  the Judgment  and order  dated 11.2.1980  of the High Court of Calcutta in Appeal from Original order No. 588 & 594179.

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     Gobind Das and R.P. Singh for the Appellant.       O.P.  Sharma, R.C.  Gubrel and  R.K.  Sharma  for  the Respondents.       The Judgment of the Court was delivered by      SEN, J.  This appeal by special leave raises a question as to  whether the  appellant upon  his  transfer  from  the North-Eastern Railway,  at his  own request,  to the  South- Eastern Railway  was entitled  under r.  312 of  the Railway Establishment Manual,  to be  placed in  the seniority  list below the  existing confirmed  and officiating  staff in the relevant grade and not below the temporary staff.       Put  very shortly,  the essential facts are these. The appellant was holding the substantive post of a Clerk in the Commercial Department  of the  North-Eastern Railway  w.e.f. May 22,  1956 and had applied for his transfer to the South- Eastern Railway  in the  same post.  On October 15, 1958, he was transferred  from the  North-Eastern Railway, at his own request, to  the South-Eastern Railway and was posted at the Sealdah Division  on his  existing pay  and scale against an existing vacancy.  In 1967, the seniority list of the Clerks in the  Sealdah Division  was prepared  by the South Eastern Railway and  in that list the appellant was placed below the temporary staff. Immediately upon his being placed below the temporary staff, the appellant made two representations, one dated March  4, 1967  and the other dated April 11, 1967, in the matter complaining that he could not be placed below the temporary staff, but without any avail.      Finding that  there was  no redressal of the wrong done to him, the appellant sent a reminder to the Chief Personnel Officer by name dated December 21, 1973. The Chief Personnel Officer  by   his  communication  dated  October  19,  1974, informed the appellant that his representation was rejected- On April  30, 1975,  the appellant  moved the  Calcutta High Court under Art. 226 of the Constitution for the issue of an appropriate writ, direction or order in the matter 21 of his  inter-se seniority, and the High Court issued a rule nisi. A During the pendency of that rule, respondents Nos. 7 to 45 arrayed in that petition whom the appellant considered to be  junior to  him were  promoted to  a higher  post.  On August 10,  1976, the appellant filed another petition under Art. 226 of the Constitution challenging their promotion. On the same  day, the  High Court  issued a  rule nisi and also directed that  the South-Eastern Railway would be at liberty to confirm  respondents nos.  7  to  45  in  their  post  of promotion but  such confirmation  would be  subject  to  the result of  the rule.  In view of the interim order passed by the High  Court, the  Chief Personnel  Officer by his letter dated October 10, 1976 clarified.             "The   above  promotion  orders  arc  issued  on      provisional  basis   subject  to  result  of  the  rule      obtained  by  Sri  Arun  Kumar  Chatterjee,  Clerk  CCS      (Refunds)  Office,   in  the   Hon’ble  High  Court  at      Calcutta."       A learned Single Judge by his judgment and order dated February 9,  1979 following  the decision of Anil Kumar Sen, J. in  Lal  Mohan  Paul  v-  The  General  Manager.  Eastern Railway, Calcutta & Ors.(l) held that in pursuance of r. 312 the relative  seniority of the appellant was governed by the Railway Board’s  Circular No.  1565A dated  January 31, 1950 and not by its subsequent circular dated December 31, 1966,. The learned  Single Judge accordingly set aside the impugned order of the Chief Personnel Officer, South- Eastern Railway dated  October   7,  1974   and  ordered  that  the  Railway Administration  should   re-fix  his   seniority  below  all

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permanent and officiating Clerks on the date of his transfer in the  Sealdah Division  of the  South-Eastern Railway  but above the  temporary Clerks  in that  Division.  He  further directed that  the appellant  would be entitled to promotion w.e.f. such  date as  he was  eligible  for  such  promotion according to the seniority so fixed.       The  General Manager,  South-Eastern Railway preferred an appeal  under cl.  15 of  the Letters  Patent against the judgment of  the learned  Single Judge.  A Division Bench of the High Court by its judgment dated February 11, 1980 while upholding the  view expressed by the learned Single Judge as to the construction and effect of r. 312 of the Manual, held that the Circular No. 1565A      (1) Civil Rule No. 620 (W)/70 dated April 23, 1974. 22 dated January 31, 1950 governed by the inter-se seniority of the appellant.  It however  observed that  due to inordinate delay on  his  part  in  moving  the  Court,  there  was  no justification for  interfering with  the promotions  already made of  respondents nos.  7 to  45 and  made the  following direction:            "In  the circumstances,  we do  not think that we      shall be  justified in  interfering with the promotions      granted to  the respondents. We, however, feel that the      appellants should  have placed  the respondent no. I in      the seniority  list  above  the  temporary  staff.  The      Board’s circular  may be given effect to in the case of      the transfer  which had  taken place  after the date of      the said  Circular, but  before that  date we  find  no      justification  why   in  the   face  of  Rule  312  the      respondent no.  1 should not have been given the proper      security by  placing him  above the temporary staff. In      our opinion.  The respondent  no. 1  should  be  placed      immediately below  the Remaining respondents in FMA 588      of 1979,  the seniority  list. ’I  he judgment  of  the      learned Judge  is  modified  to  the  extent  indicated      above."       It  accordingly modified the judgment and order of the learned Judge to the extent indicated above.       We  have set  out the  facts at  some length. It would appear from  these facts  that there was no delay, much less inordinate delay, on the part of the appellant in filing the petition  under   Art.  226  of  the  Constitution  for  the protection of  his right  as to inter-se seniority. Earlier, he  had  made  three  representations  to  the  departmental authorities in  the  matter  without  any  redress.  If  the attention of  the learned  Judges had  been drawn  to  these facts, they  would not have made the aforesaid modification. It is, however, argued that the order of posting on transfer communicated by  the Chief  Personnel Officer  dated October 14, 1958  specifically stated  that  the  seniority  of  the appellant would  be counted  from the  date of  his  posting below all  permanent and  temporary Clerks.  In  his  supple mentary rejoinder, the appellant has controverted this there is nothing  on record to show that the said order of posting was ever communicated to him.       Rule  312 of the Railway Establishment Manual reads as follows: 23             "Transfer   on  request-Seniority   of   Railway      Servants   transferred on  their own  request from  one      Railway to  another should be allowed below that of the      existing confirmed/officiating  railway servants in the      relevant grade  in  the  promotion  group  in  the  new      establishment irrespective  of the date of confirmation

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    or length  of officiating  service of  the  transferred      railway servant."       We  may then  set out  the two circulars issued by the Railway Board  explaining the  purport and effect of r. 312. Circular No.  1565A dated  January 31,  1950 was explanatory and, insofar as material, reads:           "On transfer  at the  employee’s own request or to      save his  own interests  his position  should be at the      bottom  of   the  seniority   list  of  all  permanent,      employees of  his grade, if he is permanent, and at the      bottom of  the whole  list of employees (both permanent      and temporary) in his grade, if he is temporary."       The Railway Board’s subsequent circular dated December 31, 1966 sought to clarify that the term ’officiating’ in r. 312 includes  temporary staff  as well  and that an employee transferred at his own request to a new establishment should be placed  at the  bottom  of  the  seniority  list  in  his relevant grade in that establishment. It Provides:            "It has been brought to the notice of the Railway      Board that  the orders  contained in  their letter  No.      E55SR6/3 dated  19.5.55 have  been interpreted  by your      administration so  as to  exclude temporary  staff from      the purview  of the  term officiating  staff, occurring      therein. The  Board desire  to point  out that the term      officiating’  occurring   in   Board’s   letter   dated      19.5.1955 includes  temporary staff as well. That is to      say that  an employee transferred at his own request to      a new  establishment should  be placed at the bottom of      the seniority  list  in  the  relevant  grade  in  that      Establishment ."       There  can be  no doubt  on the terms of r. 312 of the Manual read  with Railway  Board’s Circular  No. 1565A dated January 31, 1950 that the appellant having been transferred, at his  own request,  from one railway to another, had to be placed below all the existing 24 confirmed and  officiating  staff  in  the  relevant  grade, irrespective of  the date  of his confirmation or the length of his  service. The  appellant on  the date of his transfer i.e. On  October 15,  1958 was  not governed  by the Railway Board’s Circular  dated December  31,  1966.  In  Lal  Mohan Paul’s case,  supra, Anil  Kumar Sen,  J. in  a case where a railway employee  was transferred  on September 30, 1959, at his own  request, from  one railway  to another held that he was governed by the Railway Board’s Circular No. 1565A dated January 31,  1950 and  not by  the subsequent  circulars and therefore was  entitled to  be placed  in the seniority list below the  existing confirmed  and officiating  staff in the relevant grade  and not below the temporary staff. We uphold the view expressed by Sen J. in  Lal Mohan Paul’s case, supra.       That  apart, the Railway Board’s interpretation in the aforesaid Circular  dated December  31, 1966,  of  the  term ’officiating’ in r. 312 of the Railway Establishment Manual, as including  both officiating  as well  as temporary staff, was apparently wrong. According to its ordinary connotation, the word  ’officiating’ is  generally used  when  a  servant having  held  one  post  permanently  or  substantively,  is appointed to  a post  in a higher  rank, but not permanently or substantively  while still  retaining  his  lien  on  his substantive post  i.e. Officiating  in that  post  till  his confirmation. Such officiating appointment may be made where there is  a temporary  vacancy in  a higher  post due to the death  or  retirement  of  the  incumbent  or  otherwise  In contrast, the  word ’temporary’  usually  denotes  a  person

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appointed in  the civil  service for  the first time and the appointment is not permanent but temporary i.e. for the time being, with no right to the post.       We  find no  justification for the attitude adopted by the Rail  way Administration  in depriving  the appellant of his legitimate  rights. Loss  of seniority  of a  Government servant  with  consequent  lose  of  promotional  prospects, higher pay and emoluments is a matter of serious consequence to him.  When the  appellant by his representations drew the attention of  the departmental  authorities to the injustice done to him, it was their duty to have rectified the mistake and  re-fixed   the  seniority  of  the  appellant.  It  was precisely to  meet a situation of this kind that the Railway Board’s Circular  dated October  16,  1964  was  issued.  To provides that  if a  person has been promoted but not on the date on  which he  should have  been promoted  due  to  some administrative error  then the  employee should  be assigned correct seniority vis-a-vis his juniors 25 already promoted  irrespective of  the date of promotion. It further provides  that the  pay of  such employee  in higher grade on promotion will be fixed proforma at the stage which he would  have reached if he had been promoted at the proper time. There  was no reason for the Railway Administration to have deprived  the appellant of the benefit of the aforesaid circular, particularly in view of the decision of Anil Kumar Sen, J. in Lal Mohan Paul’s case, supra.       The  result therefore  is that the appeal must succeed and is  allowed with  costs throughout.  The order passed by the Division  Bench of  the Calcutta  High  Court  making  a modification in  the judgment of the learned Single Judge is set aside  and the  judgment and order of the learned Single Judge allowing  the writ  petition filed by the appellant is restored. M.L.A.                                      Appeal allowed . 26