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PETITIONER: HARIBANS MISRA AND OTHERS

       Vs.

RESPONDENT: RAILWAY BOARD AND OTHERS

DATE OF JUDGMENT11/01/1989

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) NATRAJAN, S. (J)

CITATION:  1989 AIR  696            1989 SCR  (1)  78  1989 SCC  (2)  84        JT 1989 (1)    50  1989 SCALE  (1)42

ACT:     Civil Services: Lien--Holding of--Person appointed on ad hoc basis cannot have lien on the post--Person can have lien on post and not lien on place.     Railway  Establishment  Code:  Rules  157  and  324   to 328--D.L.W. Varanasi--Railway employees appointed on  perma- nent  basis--Later  promoted--Insertion of  Rule  328(2)  by Correction  Slip No. 70--Effect of rule--Wiping  out  promo- tions  granted  to employees and also length of  service  of nine  years--Held rule 328(2) arbitrary and void--Not to  be given effect to.

HEADNOTE:      The appellants in the appeal were appointed in or about January,  1959 as Trade Apprentices in Locomotive  Component Works.  In  August, 1961 there was a  merger  of  Locomotive Component Works with Diesel Locomotive Works, as a result of which all the members of the staff of LCW were taken over by DLW. The appellants were appointed skilled artisans on  July 19,  1962 after successfully completing the training  period of  3 1/2 years. The channel for promotion to  higher  posts was:      (1)  Skilled Artisan, (2) Highly Skilled Grade-II,  (3) Highly  Skilled Grade-I, (4) Chargeman-C,  (5)  Chargeman-B, (6) Chargeman-A, (7) Assistant Foreman and (8) Foreman.      In September, 1963, the appellants were promoted to the post  of  Instructor-C which was equivalent to the  post  of Charegman-C. The posts were inter-changeable. The appellants were  further promoted on September 22, 1964 to the post  of Chargeman-B. Some of the respondents in the appeal who  were direct  Recruits also competed with the appellants  for  the post  of Chargeman-B, but could not qualify in  the  written test.         On  August 11, 1966, the Genera1 Manager,  DLW  pre- pared  and     issued a seniority list of Chargeman-B.  This list  was challenged by I certain direct recruits in a  writ petition to the High Court. A Single 79 Judge   quashed   the   seniority   list   and   also    the guidelines/rules  framed by the General Manager, DLW on  the basis  of  which  the seniority list was  prepared,  on  the

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ground  that  the General Manager, DLW was not  the  General manager  of the Railway, and as such he had no authority  to frame the rules or the guidelines for the purpose of  prepa- ration  of the seniority list. It was further held that  the guidelines/rules were violative of Articles 14 and 16 of the Constitution.     Several appeals were preferred, one of them being by the Railway  Administration. The Division Bench while  upholding the finding of the Single Judge that the General Manager DLW was  not competent to frame the rules/guidelines,  disagreed with  the finding that the rules/ guidelines were  violative of Articles 14 and 16 of the Constitution.     Pursuant  to the aforesaid judgment, the  Railway  Board issued an Advance Correction Slip No. 70 inserting Rules 324 to 328 in the Railway Establishment Manual after rule 323 in Chapter  III.  Rule 328(2) provided  that:  ’selections  and promotions  made in the Diesel Locomotive Works from  August 1, 1961 upto the date of the notification of the rules shall not  be  invalid’. The amended rules came into  effect  from March 11, 1973.     The  resultant  situation was that Rule  328(2)  vitally affected the appellants by making invalid all the promotions given to them during the period August 1, 1961 to March  11, 1973 and the appellants were reverted back as Skilled  Arti- sans.     The  General Manager, DLW a Circular dated 7/8th  Decem- ber,  1973 directed appellants to appear at the  Trade  test and  further informed that failure to do so would result  in being  passed over for fixation of seniority in  the  Highly Skilled  Grade-II. The representation against this  Circular was turned down.     Aggrieved  by the introduction of Rule 328(2)  and  also the  issuance  of Circular by the General  Manager  DLW  the appellants filed a writ petition in the High Court The  High Court  overruled the contention that the new rules  inserted in  the Railway Establishment Manual by the Advance  Correc- tion Slip No. 70, were invalid, and held that the rules were quite  valied and were not arbitriary or discriminatory.  As regards promotion of the appellants,the High court took  the view  that they were only interim and professional  and  not regular and as such no right was confirmed on appellants  to hold  the posts to which they were promoted. The high  court accordingly dismissed the writ petition. 80     On  behalf  of the appellants in the appeal  by  special leave  it was contended that Rule 328(2) as inserted in  the Railway Establishment Manual by the Advance Correction  Slip No. 70 was invalid, that the promotions of appellants up  to the  position  of  Chargeman-A could not be  set  aside  and appellants  reverted  back  to their  original  position  of Skilled  Artisans,  and that the length of  service  of  the appellants for a period of about 9 years has been completely wiped out by the said Rule 328(2).     Allowing  the appeal and setting aside the  judgment  of the High Court,     HELD:1. By virtue of Rule 157 of the Railway  Establish- ment  Code, the Railway Board has the power to frame  rules, but  such rules must be framed with certain objects in  view and must not be arbitrary. [90E]     2.  The  Court is always entitled to examine  whether  a particular  rule  which  takes away the vested  right  of  a railway employee or seriously affects him with retrospective effect,  has  been made to meet the  exigencies  of  circum- stances or has been made arbitrarily without any real objec- tive behind it. [90E-F]

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   3.  The  Railway Administration was to comply  with  the order of the High Court and in compliance with the order, it should have prepared the seniority lists in accordance  with the existing rules. [90C-D]     4. It is curious, that instead of preparing the seniori- ty list in accordance with the existing statutory rules,  as directed  by the High Court, the Railway Board  amended  the rules  and inserted by the Advance Correction Slip  No.  70, among others, Rule 328(2). That rule wipes out not only  the promotions  granted  to  the appellants up to  the  post  of Chargeman  Grade-B,  but also the length of service  of  the appellants for about nine years. [89F-G]     5.  This  Court does not find any objective  or  purpose behind  the framing of Rule 328(2) to the serious  prejudice of the appellants. The said Rule is arbitrary and therefore, cannot  be allowed to be operative to the detriment  of  the appellants. [90F]     6. The appellants were regularly promoted to the post of Chargeman-C and thereafter to Chargeman-B. In these  circum- stances, no justification is found for the Railway Board  to incor- 81 porate a new rule viz., Rule 328(2) to the serious prejudice of the appellants. [90C]     7. A person can have lien on a post and not a lien on  a place.  There can be no doubt that a person appointed  to  a post on ad hoc basis cannot have any lien on the post. It is only when a person is appointed on a permanent basis, he can claim lien on the post to which he is so appointed. [87F-G]     8.  It  is not correct to say that the  appellants  were appointed or promoted to the post of Instructor-C or Charge- man-C on an ad hoc basis or by way of an interim measure, as held by the High Court. If they were appointed on ad hoc  or purely temporary basis they could not have been promoted  to the post of Chargeman-B and Office Order No. 25 dated  Janu- ary 22, 1966 would have been quite inconsistent with such ad hoc or temporary appointments. [87G-H]     9. Directed that Respondent Nos. 1 and 2 shall not  give effect to Rule 328(2) as inserted in the Railway  Establish- ment  Manual  by the Advance Correction Slip No. 70  in  the case of appellants and Respondent Nos. 3 to 6. Orders  dated December  7/8th, 1973 and January 7, 1974 are quashed.  Fur- ther directed that Respondent Nos. 1 and 2 fix the seniority of  appellants and respondents 3 to 6 on the basis of  their promotions   to   posts   of   Instructor/Chargeman-C    and Chargeman-B. [91B-C]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1643  of 1984.     From  the  Judgment  and Order dated 6.7.  1982  of  the Allahabad High Court in Writ Petition No. 1499 of 1974 G.L. Sanghi, Mrs. S. Dixit and Pradeep Misra for the  Appel- lants.     Kuldip  Singh,  Additional Solicitor General,  Ashok  K. Srivastava,  C.V. Subba Rao, Mrs. Sushma Suri and  A.  Subba Rao for the Respondents. The Judgment of the Court was delivered by     DUTT,  J.  This  appeal by  special  leave  is  directed against the judgment of the Allahabad High Court  dismissing the writ petition of the appellants whereby they  challenged inter alia the validity of rule 328(2) of the Railway Estab- lishment Code as amended by the Railway

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82 Board by Advance Correction Slip No. 70.     The  appellants  were  appointed  Trade  Apprentices  in Locomotive  Component  Works (for short ’LCW’) in  or  about January, 1959. There was a merger of LCW with Diesel Locomo- tive Works, Varanasi, (for short ’DLW’) on August 1, 196  1, as  a result of which, all the members of the staff  of  LCW were  taken  over by DLW. On July 19, 1962,  the  appellants were appointed Skilled Artisans after successfully  complet- ing  a  training  for three years and a  half.  The  regular channel  of  promotion  to higher posts  from  the  post  of Skilled Artisan is in the following order:- 1. Skilled Artisan. 2. Highly Skilled Grade-II. 3. Highly Skilled Grade-I. 4. Chargeman-C. 5. Chargeman-B. 6. Chargeman-A. 7. Assistant Foreman. 8. Foreman.     It is apparent from the above channel of promotion  that the  next higher post to which the appellants could be  pro- moted was the post of Highly Skilled Grade-II. In September, 1963, the appellants were, however, promoted to the post  of Instructor-C which is equivalent to the post of Chargeman-C. There is a controversy between the parties as to whether the post of Instructor-C was an ex cadre post or not.  According to  the  appellants,  it was an  interchangeable  post  with Chargeman-C. We shall have occasion to consider the question later  in  this judgment. It may be  stated,  however,  that there  is  no  dispute that the post of  Instructor-C  is  a selection post and the appellants were selected and promoted to  existing vacancies in that post. The next post to  which the  appellants were promoted on September 22, 1964  is  the post  of Chargeman-B upon their selection by  a  constituted Selection Board on a regular basis. Some of the respondents, who  are direct recruits, also competed with the  appellants for the post of Chargeman- 83 B,  but  they could not qualify themselves  in  the  written test.  To complete the narrative, it may be stated that  the appellants have now been promoted to the post of  Chargeman- A.     On August 11, 1966, the General Manager of DLW  prepared certain  seniority  lists  including  a  seniority  list  of Chargeman-B  on the basis of the rules or guidelines  framed by  him. The said seniority list was challenged  by  certain direct  recruits by filing writ petitions before  a  learned Single Judge of the Allahabad High Court. The learned Single Judge quashed the seniority list and also the guidelines  or rules  framed by the General Manager, DLW, on the  basis  of which the seniority list was prepared. The principal  ground on  which  the seniority list and the  rules  or  guidelines framed  by  the General Meeting, DLW, were  quashed  by  the learned Single Judge was that the General Manager, DLW,  was not the General Manager of the Railway and, as such, he  had no authority to frame rules or guidelines for the purpose of preparation  of  the seniority list.  Further,  the  learned Judge  held that the said rules or guidelines  dated  August 11, 1966 were violative of Articles 14 and 16 of the Consti- tution of India.     Several  appeals were preferred against the judgment  of the  learned  Single Judge including one  preferred  by  the Railway Administration before the Division Bench of the High Court.  While  upholding the finding of the  learned  Single

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Judge  that the General Manager, DLW, was not  competent  to frame  rules  or guidelines, the Division  Bench  could  not agree with the finding of the learned Single Judge that  the said  rules or guidelines were violative of Articles 14  and 16  of  the Constitution. It was observed that  there  would have  been  no objection if the General  Manager,  DLW,  had utilised  the  relevant statutory rules in  drawing  up  the seniority  list but, admittedly, the rules in question  were ignored.  Further, the Division Bench pointed out  that  all the  concerned employees in the writ petition agreed  before the  learned Single Judge that the seniority list  might  be prepared on the basis of the relevant rules contained in the Railway  Establishment  Code and the  Railway  Establishment Manual.  The Division Bench also found that the DLW  project was not a temporary project, but appeared to be a  permanent project. Upon the above findings, the Division Bench  upheld the quashing of the seniority list and directed the  General Manager, DLW, to prepare a fresh seniority list in the tight of the statutory provisions contained in the Railway  Estab- lishment Code and the Railway Establishment Manual. After  the aforesaid judgment of the Division Bench  of  the High 84 Court, what the Railway Board did before preparation of  any seniority  list  by the General Manager, DLW, was  to  issue Advance Correction Slip No. 70 inserting rules 324 to 328 in the  Railway Establishment Manual after rule 323 in  Chapter III. Of the rules, so inserted, that which vitally  affected the appellants is rule 328(2) which provides as follows:--               "328(2). Selection and promotions made in  the               Diesel  Locomotive works from 1.8.1961  up  to               the date of notification of these rules  shall               not be valid."     The  Rules  were amended by the Board by virtue  of  its power  under rule 157 which provides that the Railway  Board have  full  powers to make rules of general  application  to non-gazetted railway servants under their control. The  date of  notification of the amended Rules is March 11, 1973.  In view  of rule 328(2), the promotions which were  granted  to the  appellants  from August 1, 1961 up to  March  11,  1973 shall not be valid. Needless to say, rule 328(2) has vitally affected the appellants by making invalid all the promotions given  to  them between the said period. As  a  result,  the appellants  were  reverted back to the position  of  Skilled Artisans.     The General Manager, DLW, by his circular dated December 7/8,  1973  directed the appellants to appear at  the  trade test.  it was further directed that if the  staff  concerned would fail to appear in the trade test, they would be passed over for fixation of seniority in the Highly Skilled  Grade- Il, although the appellants had in 1962 crossed the position of Highly Skilled Grade-Il. The appellants made a  represen- tation  against  the said circular to the  General  Manager, DLW,  on December 12, 1973. That representation  was  turned down  by the General Manager on the ground that in  view  of the said rule 328(2), the claim for either higher  positions or exemption from passing any trade test was not tenable. It was also stated that if the appellants would fail to  appear in the trade test, they would be passed over for fixation of seniority in the Highly Skilled Grade-Il.     Being  aggrieved  by the introduction of the  said  rule 328(2)  directly affecting the appellants and also the  said circular  of the General Manager, DLW, requiting the  appel- lants to appear at the trade test for the purpose of  prepa- ration of the seniority list in Highly Skilled Grade-II, the

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appellants filed a writ petition before the High Court.  The High  Court overruled the contention of the appellants  that the  new  rules,  which have been inserted  in  the  Railway Establish- 85 ment Manual including rule 328(2) by the Advance  Correction Slip  No.  70 by the Railway Board by virtue  of  its  power under  rule  157  of the Railway  Establishment  Code,  were invalid. The High Court held that the said rules were  quite valid and were not arbitrary or discriminatory as  contended on behalf of the appellants. In regard to the promotions  of the appellants. The High Court took the view that they  were only  interim  and provisional and  not  regular  promotions under the normal rules, and that such provisional  selection and promotions conferred no rights on the appellants to hold the posts to which they were promoted. Upon the above  find- ings, the High Court dismissed the writ petition. Hence this appeal by special leave.     Mr.  Sanghi, learned Counsel appearing on behalf of  the appellants,  has challenged before us the validity  of  rule 328(2)  as inserted in the Railway Establishment  Manual  by the  Advance  Correction Slip No. 70. It  has  been  already noticed  that in view of the said rules, the  promotions  of the  appellants up to the position of Chargeman-A stand  set aside and the appellants are reverted back to their original position  of Skilled Artisan. In other words, the length  of service  of the appellants for a period of about nine  years has been completely wiped out by rule 328(2).     The  High Court took the view that the promotions  which were granted to the appellants were by way of interim  meas- ure  and  did not confer on them any title to the  posts  to which they were promoted. In support of that view, the  High Court has referred to the order of the General Manager, DLW, dated May 14/16, 1962 which reads as follows:--               "As an interim measure, all supervisory  tech-               nical posts in the Mechanical Department  will               be  treated as ex cadre posts  and  promotions               will be regulated by selection."     Before considering the question of the validity of  rule 328(2),  we may first of all examine whether the  promotions of the appellants up to the post of Chargeman-B were by  way of  interim  measures, as found by the  High  Court,  and/or whether such promotions are permissible by the Rules or not. In  this  connection, we may refer to the  circular  of  the Railway Board dated May 27, 1963 regarding the procedure  to be  followed for filling up selection posts  (non-gazetted). The Board directed that if the requisite number of staff was not  available in the grade next to the grade for which  the selection  was  being held, the administration could  go  to the .lower grade in order to make up four 86 times the number required to be called up for selection but, in no case, can the eligibility be extended to staff in  the grade lower than three times. This circular of the Board  is quite consistent with rule 2 16 of the Railway Establishment Manual. Rule 216 also provides for a similar procedure.  The direction of the Board read with the provision of rule 2  16 clearly  empowers the administration to select persons  from two grades lower than the post to which promotion was to  be made.     The next circular dated November 2, 1963 of the  General Manager, DLW, regarding the formation of panel for promotion of  mechanical supervisors and instructors  is  significant. The said circular clearly provided that all staff in Mechan- ical  Department  including  instructoral  staff  under  the

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Principal Technical Training School in two grades below  the grade for which selection was going to be held, were  eligi- ble.  The Skilled Artisans having not less than  one  year’s service  were permitted to apply for the post of  Instructor in the grade of Rs.205-280 (AS) which is equivalent to  that of  Chargeman-C.  In  the channel of  promotion,  which  has already been noticed above, the feeder post for promotion to the  post of Chargeman-C is Highly Skilled Grade-I  but,  in view  of the said circular dated May 27, 1963 of  the  Board read  with  rule 2 16 of the Railway  Establishment  Manual, persons holding posts two grades below the post to which the promotion  was to be made, that is, the post  of  Instructor which is equivalent to the post of Chargeman-C, were allowed to  apply for the same. The reason for the said circular  or the said rule is that at all times suitable candidates might not be available and just to avoid administrative  inconven- ience, the promotions are given from posts below the  feeder post.  The said circular of the General Manager, DLW,  dated November  2,  1963 does not show that the promotion  to  the posts of selection and/or promotion to the posts of Instruc- tors  would be by way of interim measure or ad hoc  arrange- ment. In the absence of any such indication, it will not  be unreasonable  to presume that such promotions were  anything other than by way of interim measure or ad hoc  arrangement, as  contended on behalf of the respondents. In view  of  the said circular dated November 2, 1963, the appellants applied for  the posts of Instructors and they were  selected  after the  requisite  tests. In the office order  No.  3421  dated December 30, 1963, appointing the appellants to the post  of Instructor (Machinist Gr.-C), it is clearly stated that they are  appointed to the post of Instructor  (Machinist  Gr.-C) against existing vacancies.     Again, a similar circular dated July 18, 1964 was issued from the office of the General Manager, DLW, with regard  to the filling up of 87 the posts of Chargeman-B in the scale of Rs.250-380 (AS). It was  clearly  stated in the circular that the staff  in  the Mechanical  Department  in two grades below the  grades  for which the selections would be held, were eligible to  apply. The appellants applied for the post and had to appear at the written  and  viva voce examinations. Some  of  the  private respondents  also  appeared in the said  examinations  along with  the appellants but they failed, while  the  appellants succeeded and were empanelled for appointment to the post of Chargeman (Machinist)-B. In view of such an empanelment, the appellants  were appointed Chargemen-B in the grade  of  Rs. 250-380  against  existing vacancies sometime  in  February, 1965.     We may now refer to a very significant document which is office  order No. 25 dated January 22, 1966. In that  order, it  is  stated that the staff mentioned  therein  will  have their  paper lien maintained in the Shops/Division  as  men- tioned against each and will seek their promotions in  their respective  Division/Shops. In the list annexed to the  said order,  the present designation of the first  appellant  has been  mentioned as "Instructor-B’’ and his revised  position or  designation as "Chargeman-B". In the last  column  under the  heading "placed where lien is kept", it is stated  that his  lien  is kept under the production Engineer  (PE).  The present and revised designation of the appellant Nos. 2  and 3  have been shown as Chargeman-B. The place of lien of  the appellant  No. 2 has been stated to be under the  Production Engineer, while that of the third appellant has been  stated to be under the Works Manager (B). It is urged on behalf  of

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the respondents that the said officer order No. 25 does  not show  that  the  appellants have any lien on  the  posts  of Chargeman-B.  It  only  mentions that they have  a  lien  on certain  places. We are unable to accept this contention.  A person  may have lien on a post and not a lien on  a  place. And all that the said order means that they have lien on the post  of Chargman-B, but in certain places under either  the Production  Engineer or the Works Manager. There can  be  no doubt  that a person appointed to a post on an ad hoc  basis cannot  have any lien on the post. It is only when a  person appointed  on  a permanent basis, he can claim lien  on  the post  to  which he is so appointed. It  is,  therefore,  not correct to say that the appellants were appointed or promot- ed  to the post of Instructor-C or Chargeman-C on an ad  hoc basis  or by way of an interim measure, as held by the  High Court in the impugned judgment. If they were appointed on ad hoc  or  purely temporary basis, they could  not  have  been promoted  to the post of Chargeman-B and the said order  No. 25 dated January 22, 1966 would have been quite inconsistent with such ad hoc or temporary appointments. 88     At  this  stage, it will be pertinent to  refer  to  the counter  affidavit  of  the Railway  Administration  in  the previous  writ proceedings. In paragraph 15 of  the  counter affidavit,  it has been stated inter alia that the  post  of Junior  Instructor carries the same scale of pay as  Charge- man-’C’  and that the two posts being of the same  rank  and scale,  staff  of the one post could be transferred  to  the other  post  and vice versa. This statement in  the  counter affidavit  of the Railway Administration  clearly  indicates that  the  post of Instructor-C and Chargeman-C  are  inter- changeable posts. Further, it is stated as follows:--               "Respondent  Nos. 8 to 11 (which  include  the               three appellants herein) in the first instance               offered  for the post of Instructors in  grade               Rs.205-280 (equivalent to Chargeman’C’  grade)               and  they  were selected by  duly  constituted               Selection Board. Subsequently they offered for               the post of Chargeman-B grade Rs.250-280  (AS)               and  were promoted as such after  having  been               selected by a Selection Committee. Respondents               Nos.  8 to 11 were appointed to grade  Rs.205-               280 and subsequently to grade Rs.250-280 after               having  been  selected by a  duly  constituted               Selection Board’ ..................."     In the circumstances, we are of the view that the appel- lants were not appointed on an ad hoc or a purely  temporary basis  by way of interim measure as held by the High  Court, but they were appointed on a permanent basis in the post  of Instructor  or Chargeman Grade-C, which are  interchangeable posts  and,  thereafter, promoted to the post  of  Chargeman Grade-B.  The appointment or promotion of the appellants  to the post of Chargeman-C from the post of Skilled Artisan  or to Chargeman-B were made in accordance with the circular  of the Railway Board and/or in accordance with rules 216 of the Railway Establishment Manual. It cannot, therefore, be  said that the appellants were promoted to the post of Chargeman-C illegally or in violation of any rule. There is a controver- sy   between  the  parties  as  to  whether  the   post   of Instructor-C is an ex cadre post or not. It is submitted  on behalf  of  the respondents that the  post  of  Instructor-C being an ex cadre post, the appellants could not be appoint- ed  or promoted to the post of Chargeman-C. This  contention is  unsound and is fit to be rejected. It is the clear  case of  the Railway Administration, as pointed out  above,  that

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the  posts of Instructor-C and Chargeman-C are  interchange- able  posts. Even assuming that the post of Instructor-C  is an  ex  cadre post, nothing turns out on  that  inasmuch  as according to 89 the  Railway Administration itself, the two posts  being  of the  same  rank and scale, the staff of one  post  could  be transferred to the other post and vice versa. The appellants might  have been appointed to the post of Instructor-C,  but they were transferred to the post of Chargeman-C and, there- fore, there was no difficulty in promoting them to the  post of Chargeman-B.     Now,  we may consider the question as to  the  propriety otherwise  of rule 328(2) as inserted in the Railway  Estab- lishment  Manual  by the Railway Board in  exercise  of  its power  under rule 157 of the Railway Establishment Code.  It has already been noticed that in the previous writ  proceed- ings  the Division Bench of the High Court quashed the  sen- iority  list and directed the General Manager, DLW, to  pre- pare a fresh seniority list in the light of statutory provi- sions  contained in the Railway Establishment Code  and  the Railway  Establishment  Manual.  The  Principal  ground  for quashing  the seniority list was that the  General  Manager, DLW,  had no authority to frame guidelines or rules for  the purpose  of preparing the seniority list. It has  also  been noticed  that while the learned Single Judge took  the  view that  the guidelines or rules framed by the General  Manager were  violative of Articles 14 and 16 of  the  Constitution, the Division Bench took a contrary view and after  consider- ing  the rules or guidelines in detail came to  the  finding that  none of the guidelines or rules framed by the  General Manager was contrary to the provisions of Articles 14 and 16 of  the Constitution. Indeed, the Division Bench was of  the view  that no objection could be taken to the said rules  or guidelines, but it had to quash the seniority list framed on the basis of such guidelines or rules inasmuch as the Gener- al  Manager had no authority to frame such rules  or  guide- lines. Accordingly, the Division Bench directed the  General Manager to prepare the seniority list in accordance with the existing statutory rules.     It  is curious that instead of preparing  the  seniority list  in  accordance with the existing statutory  rules,  as directed  by the High Court, the Railway Board  amended  the rules  and inserted by the Advance Correction Slip  No.  70, among  others, rule 328(2) which has been  extracted  above. That  rule wipes out not only the promotion granted  to  the appellants up to the post of Chargeman Grade-B, but also the length  of service of the appellants for about  nine  years. The appellants have been directed by the order dated  decem- ber  7/8, 1973 of the General Manager to appear in  a  trade test  in  respect  of the post  of  Highly  Skilled  Artisan Grade-Il, otherwise their seniority in the said post will be passed over. In other words, the appellants are in a way 90 reverted  to  the post of Skilled Artisan  which  they  were holding   before   their   promotion   to   the   post    of Instructor/Chargeman-C. No reason appears to have been given for  the introduction of rule 328(2) by the Advance  Correc- tion Slip No. 70. It was not the case of the Railway  Admin- istration  in the previous writ proceedings that the  promo- tions that were given to the appellants were purely on an ad hoc  basis. The High Court in the previous writ  proceedings did not also find that the appellants’ promotion to the post of Instructor/Chargeman-C or to the post of Chargeman-B were on  ad  hoc basic. We have, after considering  the  relevant

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facts, come to the finding that the appellants were regular- ly  promoted to the post of Chargeman-C and, thereafter,  to Chargeman-B. In the circumstances, we do not find any justi- fication  for the Railway Board to incorporate a  new  rule, that is, rule 328(2) to the serious prejudice of the  appel- lants.     The Railway Administration was to comply with the  order of  the  High  Court and in compliance with  the  order,  it should have prepared the seniority lists in accordance  with the existing rules. It is not the case of the Railway Admin- istration  that under the existing rules the seniority  list could  not be prepared. There is, therefore,  no  reasonable justification for the Railway Board to insert in the Railway Establishment Manual rule 328(2). There can be no doubt that by virtue of rule 157 of the Railway Establishment Code, the Railway  Board has the power to frame rules, but such  rules must be framed with certain objects in view and must not  be arbitrary. The Court is always entitled to examine whether a particular  rule  which  takes away the vested  fight  of  a railway employee or seriously affects him with retrospective effect,  has  been made to meet the  exigencies  of  circum- stances or has been made arbitrarily without any real objec- tive  behind  it. In the instant case, we do  not  find  any objective  or purpose behind the framing of rule  328(2)  to the  serious  prejudice of the appellants. In  other  words, rule  328(2) is arbitrary and, therefore, cannot be  allowed to be operative to the detriment of the appellants. The only justification  for  rule 328(2) as advanced by  the  learned Counsel for the respondents is that as the appellants  we.re promoted  on  ad hoc basis to the posts of  Chargeman-C  and Chargeman-B,  they  had no fight to hold  these  posts  and, accordingly, they were to be reverted to the post of Skilled Artisan.  This contention of the respondents does  not  find support  from  the counter affidavit filed  by  the  Railway Administration  in  the previous writ petition nor  does  it appear  from any order or circular of the Railway  Board  or the Railway Administration in support of the same. Moreover, we  have on a conspectus of the facts and circumstances  and the  circulars  of the Railway Administration  come  to  the finding that the appellants were not promoted on an ad hoc basis.     For the reasons aforesaid, the appeal is allowed and the judgment of the High Court is set aside. It is directed that the  respondents Nos. 1 and 2 shall not give effect to  rule 328(2)  as inserted in the Railway Establishment  Manual  by the  Advance  Correction  Slip No. 70 in the  cases  of  the appellants  and  the respondents Nos. 3 to 6.  The  impugned orders  dated  December 7/8, 1973 and January  7,  1974  are quashed.  The respondents Nos. 1 and 2 are further  directed to fix the seniority of the appellants and the said respond- ents  Nos.  3 to 6 on the basis of their promotions  to  the posts of Instructor/Chargeman-C and Chargeman-B.        There will be no order as to costs. N.V.K.                                 Appeal allowed. 92