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PETITIONER: SHITLA SAHAI SRIVASTAVA

       Vs.

RESPONDENT: GENERAL MANAGER, NORTH EASTERN  RAILWAY

DATE OF JUDGMENT: 14/12/1965

BENCH: SATYANARAYANARAJU, P. BENCH: SATYANARAYANARAJU, P. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. RAMASWAMI, V.

CITATION:  1966 AIR 1197            1966 SCR  (3)  61  CITATOR INFO :  R          1969 SC 212  (5)  R          1971 SC 766  (8)

ACT: Civil Service-Selection post-Inclusion of name in panel  and later deletion-When amounts to reduction in rank.

HEADNOTE: Selection  to the post of Travelling Ticket  Inspector  from that  of Travelling Ticket Examiner is made by  a  Selection Board  in accordance with the Promotion and Selection  Rules (Non-Gazetted) framed under the Indian Railway Establishment Code Every year, the number of vacancies that are likely  to occur during the year is assessed and in accordance with  r. 8(7), eligible staff upto 4 times the number of  anticipated vacancies  are  called up for written and viva  voce  tests. Thereafter,  the Board prepares a panel and  promotions  are made from the panel. In  1959,  there  were 8 vacancies,  in  the  ex-Muzaffarpur region of the North Eastern Railway, which were to be filled up immediately and in addition a panel of 6 was required  to be  drawn  up.   But, due to  an  incorrect  assessment,  92 persons  of whom the appellant was one, were called  up  for examination instead of 56.  As a result of the tests a panel of  14 persons was prepared and the appellant was given  the 12th  rank.   The  final  list was  then  prepared  and  the appellant  was given the 13th rank; but a note was  appended that  the selection of candidates 9 to 14  was  provisional. Later,  under  orders of the General Manager,  who  was  the prescribed  authority, the names of candidates 9 to 14  were deleted from the panel. The appellant filed a petition under Art. 226, but the  High court dismissed it. In  appeal to this Court it was contended by  the  appellant that  the deletion amounted to a reduction in rank and  that the  order  was bad in law, because, the appellant  was  not given an opportunity before his name was deleted. HELD : If a civil servant has a right to a particular  rank, then  the  very reduction from that rank will operate  as  a

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penalty, for he win then lose the emoluments and  privileges of  that  rank.   If,  however,  he  has  no  right  to  the particular  rank, his reduction from an  officiating  higher rank to his substantive lower rank will not ordinarily be  a punishment.    Since,  in  the  panel  prepared,  the   word "provisional" was specifically noted against the name of the appellant,  it shows that he did not acquire a right to  the post.  The appellant could not complain of any infraction of the  guarantee  given  by  the  Constitution  to  government servants and no penal consequences have been visited on him. Therefore  the deletion of his name from the panel  did  not attract the provisions of Art. 311. [65 C-E,, 67 E] Parshotam  Lal Dhingra v. The Union of India, [1958]  S.C.R. 828, followed. Dineshwar   v.  Chief  Commercial   Superintendent   Eastern Railway, A.I.R. 1960 Cal. 209, overruled. 62

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 766 of 1964. Appeal  by special leave from the judgment and order,  dated September  19, 1963 of the Allahabad High Court  in  Special Appeal No. 268 of 1963. S. P. Sinha and Shaukat Husain, for the appellant. Niren De, Additional Solicitor-General, K. C. Chawla and R.   H. Dhebar, for the respondent. The Judgment of the Court was delivered by Satyanarayana  Raju,  J.  This  appeal,  by  special  leave, is against the judgment of a Division Bench of the Allahabad High Court which affirmed the judgment of a Single Judge  of that  Court.   The facts giving rise to this appeal  may  be shortly stated as follows. The appellant had been in the service of North Eastern Rail- way  holding  the  substantive  post  of  Travelling  Ticket Examiner.  The post of Travelling Ticket Inspector, which is the  next  higher post, is a selection post.   Selection  is made  by a Selection Board in accordance with the  Promotion and Selection Rules (Non-Gazetted) framed under para 158  of the Indian Railway Establishment Code, Volume I (hereinafter referred to as the rules).  Every year, an assessment of the number  of  vacancies that are likely to occur  during  that year  is made.  The Chief Commercial Superintendent  is  the appointing authority for the posts of Ticket Inspectors.  In accordance  with r. 8(7), eligible staff, up to  four  times the number of anticipated vacancies, shall be called up  for written and viva voce tests.  After the examination and  the interview,  the  Board prepares a panel and  promotions  are made from the said panel. In  the year 1959, a Selection Board for preparing  a  panel for the ex-Muzaffarpur region was constituted.  There  were, during that year, eight existing vacancies which were to  be fined  up  immediately.   In addition, a panel  of  six  was required  to be drawn up.  It was also expected  that  there would  be  nine more vacancies on account  of  upgrading  of posts but this did not actually materialise.  But, due to an incorrect assessment of the anticipated number of vacancies, 92  persons  were  called up  for  examination,  whereas  56 persons should have been called up for written and viva voce tests. There  was  a written examination on February 22,  1959  and March   31,  1959,  and  thereafter  the   Selection   Board interviewed 63

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the candidates.  As a result of the examination and the viva voce test, the Selection Board prepared a panel of  fourteen persons and the appellant was given the twelfth rank in  the panel.   He  was  posted as  officiating  Travelling  Ticket Inspector  on  or about July 28, 1960.  The  final  list  of persons  brought on the panel was published in  the  Railway Gazette  on January 1, 1961 and the appellant was  shown  at serial no. 13 in that panel.  But a note was appended to the notification stating that the selection of the appellant and five others was provisional. By a letter, dated September 29, 1961, the Chief  Commercial Superintendent, North Eastern Railway, Gorakhpur, under  the orders  of  the General Manager, the  prescribed  authority, deleted  the name of the appellant and five others who  were shown at serial numbers 9 to 14 in the panel. On  November 28, 1961, the appellant filed a petition  under Art.  226  of the Constitution for the issue of  a  writ  of certiorari,  impugning  the  validity  of  the  order  dated September 29, 1961 in and by which his name had been removed from the panel.  Her contended that the deletion of his name from the panel indefinitely postponed his right of promotion and therefore amounted to a reduction in rank. The  respondents contested the petition.  They averred  that the  name  of the appellant was deleted from  the  panel  in accordance  with rules, that he had no subsisting  right  to the  post  merely by reason of the fact that  his  name  was included  in  the panel, that the appellant and  five  other persons  were  called  up for examination  on  an  incorrect assessment  of  the  number  of  vacancies.   It  was   also contended  for the respondents that the provisions  of  art. 311 were not attracted. By judgment, dated March 14, 1963, the learned Single  Judge dismissed the writ petition filed by the appellant.  He held that  the deletion of the appellant’s name from  the  panel did not amount to reduction in rank under art. 311 and  that therefore  he was not entitled to the notice  prescribed  by that  article.   The  learned  Judge  also  held  that   the appellant  had  not  established that the  decision  of  the respondent  amounted  to a violation of  any  constitutional provision or statutory rule. The  appellant  preferred  an  appeal  which  was  summarily dismissed by a Division Bench.  An application for leave  to appeal  to  this Court was also  rejected.   Thereupon,  the appellant obtained special leave from this Court. 64 In support of the appeal, it is contended for the  appellant by Mr. S. P. Sinha, that the deletion of the appellants name from the panel amounted to a reduction in rank and that  the order  was bad in law for the reason that the appellant  was not given an opportunity to explain or defend himself before his  name  was  deleted from the panel.  Now,  as  has  been explained  by  this Court in Parshotam Lal  Dhingra  v.  The Union of India(1) the expressions "dismissal’, ’removal’  or ’reduction  in  rank’  are technical words  taken  from  the service rules where they are used, to denote the three major categories of punishments. The  question for determination is whether the  deletion  of the  appellant’s name from the panel amounts to a  reduction in rank within the meaning of art. 311.  Mention has already been made of the fact that the panel was prepared under  the rules.  Rule 8 lays down the procedure to be followed by the Selection Board.  Sub-rule (7) of that rule reads :               "Eligible  staff up to 4 times the  number  of               anticipated  vacancies as defined below  shall               be  called  up for written  and/or  viva  voce

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             test." Under  the above rule, eligible staff up to four  times  the number of  anticipated  vacancies  should  be  called  for written  and viva voce test.  The vacancies to be filled  up were 8 and in addition a panel of 6 was required to be drawn up; thus for the 14 persons to be included in the panel,  56 eligible  staff  were  to  be  called.   On  account  of  an incorrect  assessment  of  the  anticipated  vacancies,   92 persons were called to take the promotion examination.   The appellant’s  number in the eligible staff was after 56  and, but  for the mistake, he would not have been called for  the examination. Rule 11 Provides that panels for selection posts framed by a duly  constituted  Selection  Board  and  approved  by   the competent authority  shall  not be  cancelled  or  amended without  reference to an authority next above the one  that approved  the  panel.  Now, the panel was  prepared  by  (he Chief   Commercial   Superintendent,  Gorakhpur,   who   was subordinate  to the General Manager, North Eastern  Railway. The panel, as originally drawn, was subsequently amended  by the Chief Commercial Superintendent under instructions  from the General Manager.  This was in accordance with rule II. In  the final list of the personnel included in  the  panel, the names of Sahai and Ramanand were included.  The name  of the  first of them was included by reason of the  fact  that his marks (1)  [958] S.C.R. 828. 65 were not correctly totaled up and the second was included by reason of the fact that he belonged to the Scheduled  Caste. The complaint made by the appellant is that by reason of the inclusion  of  the said two persons in the  final  panel  of Travelling  Ticket Inspectors there was no post in which  he could  be  kept and he was therefore reverted  till  another vacancy occurred, that by reason of the deletion of his name from  the  panel  it would be necessary for  him  to  appear before another Selection Board and until his name was  again brought  into  the panel he would have no  chance  of  being promoted to the post of Travelling Ticket Inspector. It  is  to  be  noted that in  the  panel  prepared  by  the Selection  Board  the word  ’provisional’  was  specifically noted against the name of the appellant which clearly  shows that  he did not acquire a right to the post.  The  deletion of  his name from the panel therefore does not  attract  the provisions of art. 311.  If a civil servant has a right to a particular rank, then the very reduction from that rank will operate  as a penalty, for he will then lose the  emoluments and  privileges of that rank.  If, however, he has no  right to  the particular rank, his reduction from  an  officiating higher   rank  to  his  substantive  lower  rank  will   not ordinarily be a punishment : vide Dhingra’s Case(1).  It  is no  doubt true that in the said case it has been  held  that when  reversion  entails  penal consequences,  it  would  be reduction in rank, but the instant case is not one in  which penal consequences have been visited on the appellant. Learned  counsel  for  the appellant  has  relied  upon  the decision of a Single Judge of the High Court of Calcutta  as supporting   his  contention  that  the  deletion   of   the appellant’s name from the panel would amount to a  reduction in  rank.  That decision is reported as Dineshwar  v.  Chief Commercial Superintendent, Eastern Railway (2).               At p. 21 1, the learned Judge observed:               "The  question is whether the striking of  the               petitioner’s name from the panel, has affected               his  future  right of    promotion.     In  my

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             opinion,     the escapable conclusion is  that               it has so affected  the petitioner.  As I have               mentioned above, promotion from Class III post               to a Class II post is to be done according  to               the recommendations made by Selection  Boards.               Where there is such a list or a panel, then  a               person  not  in  the list cannot  hope  to  be               promoted..... It is implied, that in order               (1)         [1958]         S.C.R.         828.               (2) A.I.R. 1960 Cal. 209               66               to  have a chance of promotion the  petitioner               would  have to be in the selection list,  that               is to say, in the panel But with regard to the               second contention, viz., that the striking out               of  his  name  from  the  panel  affected  his               chances of future promotion, it is a point  of               substance  and  must  be  upheld.   What   the               authorities  should have done before  striking               out the name of the petitioner from the  panel               was  to  give him an  opportunity  of  showing               cause as to why his name should not be  struck               off from the panel and the order could only be               made   after   giving   the   petitioner    an               opportunity of being heard." We  are of opinion that this is not a correct  statement  of the  law,  in  view of the decision of this  Court  in  High Court, Calcutta v. Amal Kumar Roy(1).  There the facts  were these.   The  respondent was a Munsif in  the  West  Bengal, Civil Service (Judicial).  When the cases of several Munsifs came  up  for  consideration  before  the  High  Court   for inclusion of names in the panel of officers to officiate  as Subordinate Judges, the respondent’s name was excluded.   He was told by the Registrar of the Court, on a  representation made by him, that the Court had decided to consider his case after a year.  As the result of such exclusion, the  respon- dent,  who was then the senior most in the list of  Munsifs, lost eight places in the cadre of Subordinate Judges  before he   was  actually  appointed  to  act  as   an   Additional Subordinate   Judge.   He  filed  a  suit  praying  that   a declaration might be made that he occupied the same position in  respect of seniority in the cadre of Subordinate  Judges as  he would have done if no supersession had  taken  place. His  case,  in substance, was that as a result of  the  High Court’s order he was reduced by eight places in the list  of Subordinate Judges, and that in law amounted to reduction in rank within the meaning of art. 311(2) of the  Constitution. This Court held at p. 453 as follows :               "In our opinion, there is no substance in this               contention  because losing places in the  same               cadre, namely, of Subordinate Judges does  not               amount  to  reduction  in  rank,  within   the               meaning of art. 311(2).  The plaintiff  sought               to argue that ’rank’, in accordance with  dic-               tionary meaning, signifies ’relative  position               or  status  or place’.   According  to  Oxford               English Dictionary, the word ’rank’ can be and               has been used in different senses in different               contexts.  The expression ’rank’ in art.               (1)   [1963] 1 S.C.R. 437.               67               311(2)    has   reference   to   a    person’s               classification and not his particular place in               the same cadre in the hierarchy of the service               to which he belongs.  Hence, in the context of

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             the  Judicial Service of West Bengal,  ’reduc-               tion in rank’ would imply that a person who is               already  holding  the post  of  a  Subordinate               Judge  has been reduced to the position  of  a               Munsif, the rank of a Subordinate Judge  being               higher than that of a Munsif.  But Subordinate               Judges  in the same cadre hold the same  rank,               though  they  have to be listed  in  order  of               seniority  in  the  Civil  List.    Therefore,               losing  some places in the seniority  list  is               not  tantamount to reduction in rank.   Hence,               it  must be held that the provisions  of  Art.               311(2)  of the Constitution are not  attracted               to this case." This decision has established the following principle, viz., the  expression  ’rank’ in art. 311(2) has  reference  to  a person’s classification and not his particular place in  the same  cadre  in the, hierarchy of the service  to  which  he belongs  and therefore losing some places in  the  seniority list  is  not tantamount to reduction in,  rank  within  the meaning of art. 311(2) of the Constitution. It  is  perhaps true that the hopes of  the  appellant  were raised’ by reason of the inclusion of his name in the panel. It  is  also  true that the  respondent  made  an  incorrect assessment  of the anticipated number of vacancies, but  the fact  remains that his inclusion in the panel was  expressly stated  to be provisional.  The appellant  cannot  therefore complain  of  any infraction of the guarantee given  by  the Constitution to Government servants. The appeal fails and is dismissed.  In all the circumstances of’ the case, there will be no order as to costs. Appeal dismissed.. 68