http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: SHAM SUNDER

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT: 15/07/1968

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. GROVER, A.N.

CITATION:  1969 AIR  212            1969 SCR  (1) 312  CITATOR INFO :  E          1971 SC1011  (3,4)  R          1974 SC1317  (12)  O          1976 SC 490  (180)  R          1981 SC1829  (32)

ACT: Constitution   of   India  Arts.   14   and   16-Reservation supervisors posts in Railway Penal drawn up on the basis  of certain  up-garding of posts-Railway Board  holds  irregular and deletes-Validity-if violative of Arts. 14 and 16.

HEADNOTE: The  General Manager, Northern Railway published a panel  of 38 enquiry-cum-reservation clerks for selection to the posts of reservation supervisors.  This panel was published  after considering  152  persons, i.e., four times the  number  -of existing  and  anticipated vacancies plus  25%  thereof  for unforeseen vacancies.  The anticipated vacancies included 11 vacancies  on account of promotions due to the upgrading  of 11  posts  in the next higher grade.   Representations  were made against the constitution of the panel, and the  Railway Board  decided that the panel should consist of  24  persons only to coy& 18 upgraded vacancies, 1 vacancy on account  of retirement   and   5   vacancies   representing   25%    for contingencies   and  the  field  of  selection   should   be restricted  to  24*4=96 and not 152 persons. So,  the  panel already published was ordered to be operated only in respect of  the  first  24 persons and the names  of  the  remaining persons  be deleted. Accordingly, the General Manager by  an order implemented the decision.  The petitioner, whose  name was  at No. 33 in the panel, published earlier filed a  writ petition in this Court, challenging the orders as  violating his fundamental rights.  HELD :-The petition must be dismissed. (i)  Under the general direction issued by the  Railway Board  in  one  of  its letters,  the  General  Manager  was competent  to  amend  the panel with  the  approval  of  the Railway Board [315 F-G] Srivastava  v.  N.E.  Railway, [1966] 3  S.C.R.61,  64,  65, followed. (ii)  The Railway Board held that until  the  selection was made, it could not be anticipated that 11 persons  would

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

be  promoted  creating 11 consequential  vacancies  in  that grade  due to promotions to the higher grade.   Acting  upon this  view  the Railway Board decided that  the  anticipated vacancies  would  be less and the panel  should  be  amended accordingly  and should be operated in respect of the  first 24  persons  only.   The decision could not be  said  to  be perverse nor it could be quashed or set aside. [315 A-316 B] (iii)     All  the  24 persons retained in  the  panel  were senior  to,  the petitioner.  All of them  would  have  been selected and included in the panel, even if 96 persons  were originally  called for selection.  There was no fore in  the contention that the retention of the first 24 persons in  th panel  without holding a fresh selection was  discriminatory or  was  violative of Arts. 14 and 16  of  the  Constitution [316-C] (iv) It is said that panels of Class Ill selection posts  of station  masters on the Northern, Railway and all class  ill selection  posts on other Railways had been drawn up on  the footing  that anticipated vacancies in the  selection  grade include vacancies on promotion due to upgrading of posts  in the next higher grade and that the Railway Board had not 313 issued  any  direction for amendment of those  panels.   But those  panels relate to separate; classes of  employees  and have no bearing on the question of equal opportunity in  the matter of promotion of enquiry-cum-reservation clerks on the Northern Railway [316 D-F] All  Indian Station Masters’ and Assistant Station  Masters’ Association  v. General Manager Central Railways,  [1960]  2 S.C.R. 311, 319, followed.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 31 of 1967. Petition under Art. 32 of the Constitution of India for  the enforcement of fundamental rights. Basudev Prasad and M. I. Khowaja, for the petitioner. Naren  De,  Solicitor-General, V. A. Seyid Muhammad,  R.  N. Sachthey and S. P. Nayar, for the respondents. The Judgment of the Court was delivered by Bachawat,  J.  The petitioner is employed  on  the  Northern Railway as an enquiry and reservation clerk in the grade  of Rs. 150-240.  In January 1965 several posts of  enquiry-cum- reservation  clerks were upgraded, 11 posts being raised  to the grade of Rs. 370-475, 18 posts to the grade of Rs.  250- 380  and 26 posts in the grade of Rs. 205-280.  As a  result of   the  up_grading  the  revised  cadre  of   enquiry-cum- reservation clerks on the Northern Railway consisted of  the following non-gazetted posts:- Category     No. of Posts     Scale of pay   Classification Enquiry cum reservation clerk  202        150-240(AS)      selection Assist. reservation Supervisor          32     205-280(AS)   Non-selection Reservation Supervisor 23     250-380(AS)       Selection Chief Reservation Ins- pector                 11370-475(AS)       Selection The  promotion of non-gazetted railway servants is  governed by Chapter II of the Indian Railway Establishment Manual and the rules made by the Railway Board from time to time  under r.  157  of the Railway Establishment  Code.   Promotion  to selection  posts  has to be made from a  panel  of  selected employees prepared by a selection board and approved by  the competent  authority.   For making the  selection,  eligible

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

staff  up to four times the number of anticipated  vacancies are called for written and viva voce tests under r. 9 (d) of Chapter  11.  By letter No. E(NG) 62 PM 1/91/dated July  10, 1964 the Railway Board directed that "the number of  persons to be placed on a panel should be equal to the existing  and anticipated  vacancies,  plus  25%  thereof  for  unforeseen vacancies.  Anticipated vacancies 314 connote  only those which are likely to arise due to  normal wastage  during the currency of the panel.  The currency  of the  panel  for non-gazetted selection posts should  be  two years  from  the  date of the approval of the  same  by  the competent authority or till exhausted whichever is earlier." On  January 22, 1965 under orders of the  General  Manager.- Northern  Railway  152 enquiry-cum-reservation  clerks  were asked  to  appear  in tests for selection to  the  posts  of reservation  supervisors in the grade of Rs.  250-380.   The petitioner who ranked 113 in order of seniority was  allowed to appear in the tests.  As a result of the oral and written tests  a panel of 38 persons was drawn up on July  7,  1965, and was published in the Railway Gazette on August 1,  1965. The  petitioner was one of the selected candidates  and  his name  was shown as No. 33 in the panel.  A note at the  foot of  the  panel intimated to the staff- concerned  that  "the mere fact that their names are on the panel will not  confer upon  them any right for permanent absorption as a  reserva- tion supervisor." In calling 152 persons for the. selection, the  General  Manager, Northern Railway proceeded  upon  the footing that 38 persons had to be placed on the panel and  4 times  38,  that is to say 152 persons should  be  asked  to appear  in  the  tests.   According to  him  there  were  18 immediate vacancies in the posts of reservation  supervisors due  to upgrading, 1 anticipated vacancy due  to  retirement and 11 anticipated vacancies on account of promotion due  to upgrading  of  11 posts in the next higher  grade  of  chief reservation  inspector.   The figure 38 is the total  of  18 plus 1 plus 11 plus 25% thereof.  The view that  anticipated vacancies included 11 vacancies on account of promotion  due to  the upgrading of 11 posts in the next higher  grade  was supported  by the prevailing  practice in the  Northern  and other Railways. The  Railway  Board received several complaints  and  repre- sentations  regarding the constitution of the panel.  By  an order  dated  September 16, 1965 (annexure  H)  the  Railway Board  decided that the panel of 38 persons was  irregularly drawn up and that there should be a panel of 24 persons only for  promotion  to  the grade of Rs.  250-380  to  cover  18 upgraded vacancies, 1 vacancy on account of retirement and 5 vacancies  representing 25% for contingencies and the  field of  selection  should be restricted to 24-4-96 and  not  152 persons.  Accordingly the panel already published should  be operated  only in respect of the first 24 persons  and  that the  names  of the remaining 14 persons  should  be  deleted forthwith.   The Board directed that action should be  taken to  form  a panel for filling up 1 1 upgraded posts  in  the grade  of  Rs. 370--475 and thereafter a  further  selection should be held for filling up the resultant vacancies in the grade  of Rs. 250 -380.  By an order dated November 3,  1965 (annexure   K)   the  General  Manager,   Northern   Railway implemented the decision 315 and directed that the panel formed on July 7, 1965 was to be operated  upto the first 24 persons only and that the  names of the remaining 14 persons including the petitioner  should be  treated  as deleted from the panel.   By  another  order

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

dated  October  4, 1966 (annexure N)  the  General  Manager, Northern Railway decided to hold a selection for filling  up the resultant vacancies in the grade of Rs. 250-380.  Having regard to the number resultant vacancies, the petitioner  is not  eligible for being called for selection under  Annexure "N".  In this writ petition the -petitioner alleges that the orders  under  Annexures  H;  K  and  N  have  violated  his fundamental   rights  under  Articles  14  and  16  of   the Constitution, and he asks for the issue of appropriate writs restraining the respondents from enforcing those orders  and directing  them to make promotions to posts in the grade  of Rs.  250380  in accordance with the panel published  in  the Gazette on August 1, 1965. Counsel for the petitioner contended that the Railway  Board or the General Manager had no power to amend the panel  pub- lished  on  August 1, 1965.  We are unable  to  accept  this contention.  The point was not taken in the petition.   When the  contention was raised at the hearing of  the  petition, the  learned  Solicitor-General drew our  attention  to  the letter of the Railway Board No. E/52/PM 2-34 dated August 4, 1953.   On  the  subject of  cancellation  or  amendment  of approved  panels the Railway Board directed by  this  letter "that  the panels once approved should not be  cancelled  or amended  without reference to the authority next  above  the one  that approved the panel." There is no controversy  that the Railway Board had power to issue this general  direction under  r.  157 of the Railway Establishment  Code.   In  the present  case the General Manager, Northern Railway was  the authority  approving the panel.  The Railway Board  was  the authority  next  above  him.  Under  the  general  direction issued by the Board in its letter dated August 4, 1953,  the General  Manager was competent to amend the panel  with  the approval  of  the  Railway Board.  In Srivastava  v.  N.  E. Railway(1)  the Court held that an amendment of an  approved panel in accordance with a similar rule was in order. The  point  in controversy was whether there  were  11  more anticipated vacancies in the grade of Rs. 205-380 on account of the upgrading of 11 posts in the next higher grade of Rs. 375480.  Now the selection for the 11 new posts in the grade of  Rs. 375-480 had to be made from 56 eligible  members  of the  staff comprising 23 clerks in the grade of Rs.  205-380 and 33 clerks in lower grades.  The Railway Board held  that until  the selection was made, it could not  be  anticipated that 11 clerks in (1)  [1966]3S.C.R.61,64,65. 316 the  grade of Rs. 205-380 would be promoted and  that  there would  be  11 consequential vacancies in that grade  due  to promotions  to the higher grade.  Acting upon this view  the Railway Board decided that the anticipated vacancies in  the grade  of Rs. 205-380 due to normal wastage would be 19  and not 30 and that the panel should be amended accordingly  and should be operated in respect of the first 24 persons  only. We  are unable to say that the decision is perverse or  that it should be quashed and set aside. All  the 24 enquiry-cum-reservation clerks retained  in  the panel  were  senior to the petitioner.  The junior  most  of them  ranked  77 in order of seniority.  All of  them  would have  been  selected and included in the panel, even  if  96 persons  were originally called for selection.  There is  no force  in the contention that the retention of the first  24 persons  in the panel without holding a fresh  selection  is discriminatory or is violative of Articles 14 and 16. For  purposes of promotion, all the  enquiry-cum-reservation clerks  on  the  Northern Railway form  one  separate  unit.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

Between members of this class there is no discrimination and no  denial of equal opportunity in the matter of  promotion. It  is  said  that panels of class III  selection  posts  of station masters in the grade of Rs. 370-475 on the  Northern Railway and all class III selection posts on other  Railways have been drawn up on the footing that anticipated vacancies in  the selection grade include vacancies on promotions  due to upgrading of posts in the next higher grade and that  the Railway Board has not issued any direction for the amendment of  these panels.  Assuming this allegation to be true,  the other panels might require revision and the matter  deserves the  attention of the Railway Board.  But the  other  panels relate to separate classes of employees and have no  bearing on  the  question  of equal opportunity  in  the  matter  of promotion of enquiry-cum-reservation clerks on the  Northern Railway.   Equality of opportunity in matters of  employment under  Art. 16(1) means equality as between members  of  the same class of employees and not equality between members  of separate,  indePendent  classes.  (see  All  India   Station Masters’  and  Assistant  Station  Masters’  Association  v. General Manager Central Railways(1). In the result, the petition is dismissed.  There All be no Order as to costs. Y.P. 1)   [1960]2 S.C.R.311,319           Petition dismissed. 317