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PETITIONER: YASHBIR SINGH & ORS., ETC.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT18/08/1987

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1988 AIR  662            1987 SCR  (3)1018  1987 SCC  (4) 345        JT 1987 (3)   399  1987 SCALE  (2)371

ACT:     Service  matter--Seniority  list  challenged--Injunction sought  against  issue  of altered seniority  list  for  the purpose of promotions, confirmations, etc.

HEADNOTE:     The  petitioners  were railway  employees.  The  Railway Board  issued  a circular dated July 2,  1970,  laying  down procedure for filling up posts of train examiners and upgra- dation of posts. It directed that vacancies arising in Grade C  after  1.4.1966  to the extent of 50 per  cent  would  be maintained in that grade and the remaining 50 per cent would be  down-graded to be filled by promotion of  skilled  arti- sans. It further directed that 50 per cent of the  vacancies in Grade C should be filled by direct recruitment of appren- tice Train Examiners with five years’ training to the extent of  80  per cent thereof and the remaining 20  per  cent  by promotees  from Grade D as laid down in paragraph 1  of  the Circular  dated 27.10.1965 of the Board. This procedure  was directed  to be followed till the cadre position was  norma- lised and the excess in the Grade of Rs.205-280 were  elimi- nated.  Paragraph  2 of the circular further  directed  that those  promoted to Grade C in the scale of Rs.205280  as  on April 1, 1966 would be assigned seniority amongst themselves in the order of their inter se seniority in the Grade of Rs. 180-240  for  the purposes of confirmation,  etc.,  in  that grade  and  they  would rank senior to  those  recruited  as apprentice  train  examiners with five years’  training  and appointed  after  1.4.66  in the grade  of  Rs.205-280.  The result of the circular was that all those promotees, who had been appointed to Grade D prior to 1.4.66 stood absorbed  in Grade  C and they were granted seniority in that grade  with retrospective  effect,  that is, with effect from  April  1, 1966.     The Railway Board later took a policy decision to  abol- ish the entry grade D of train examiners in the pay-scale of Rs. 180-240, and in order to implement that decision  issued a  circular  dated October 30, 1972,  abolishing  the  entry Grade D of the train examiners and placing the incumbents of that  grade  en masse in grade C in the scale  of  Rs.205280 with  effect from 1.11.72. Paragraph 2 of the  circular  di-

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rected  that  the  pay of the staff  brought  from  Grade  D (Rs.180-240) to grade C 1019 (Rs.205-280)  would  be fixed under Rule 2017 A  (III)  read with  rule 2019 II. As all the incumbents of grade D in  the scale  of  Rs. 180-240 were placed en masse  in  the  higher grade C in the scale of Rs.205-280, a provisional  seniority list  of grade C Train Examiners working in  Delhi  Division was  prepared on November 16, 1981. In that seniority  list, the petitioners were shown senior to some of the respondents as the seniority was not determined in accordance with  Rule 302 of the Railway Establishment Manual. This seniority list was not prepared in accordance with the prescribed criteria, as had been done in the other Divisions. The Board issued  a circular  dated 28.11.81, directing that the Delhi  Division should  also  fail in line with the other Divisions  of  the Northern  Railway, and the seniority of the train  examiners appointed  between 1.4.66 and 1.11.72 should be prepared  in accordance with the existing practice. viz. on the basis  of the date of appointment in the particular grade.     In  pursuance of that direction, seniority of the  train examiners of grade C placed in that grade between 1.4.66 and 1.11.72,  was  published in 1981 by the authorities  of  the Delhi  Division  of  the Northern  Railway.  After  inviting objections,  the  seniority list was  finally  published  in December, 1982. In that seniority list, the petitioners were shown  junior to respondents 5 to 10. Aggrieved,  the  peti- tioners moved this Court by writ petitions, challenging  the validity  of the seniority list and for quashing the  circu- lars dated July 2, 1970 and November 28, 1981 of the Railway Board,  and restraining the respondent--Railway  authorities from altering or issuing the seniority list in pursuance  of the  circular dated November 28, 1981 of the  Railway  Board and for maintaining the seniority list issued in 1968. Dismissing the petitions, the Court,     HELD: The Respondents Nos. 5 to 10, who belonged to  the group of apprentice--train examiners were directly placed to working posts in grade C after completion of 5 years’ train- ing  in accordance with the circular dated July 2,  1970  of the  Railway Board, and each one of them had been placed  in grade C prior to 1.11.72, while the petitioners were  placed in  grade  C with effect from 1.11.72, in pursuance  of  the circular  dated  30.10.72 of the Railway  Board.  Since  the respondents  5 to 10 were appointed to grade C  earlier  and the  petitioners were placed in that grade later, the  peti- tioners  were  shown  in the seniority list  junior  to  the respondents  concerned.  No valid objection  can  be  raised against respondents’ seniority. [1027H; 1028A-C] 1020     The  petitioners challenged the validity of the  Railway Board’s  circular  dated July 12, 1970,  in  1981--after  11 years. All the petitioners were in service on the date  that circular  was  issued and they were aware  that  their  col- leagues  (promotees  belonging to grade D)  were  placed  in grade C and they had been granted seniority with  retrospec- tive effect, but none of them challenged the validity of the circular. Now, the petitioners cannot be permitted to  chal- lenge  the  validity of that circular after  11  years.  The petitioners  should  have challenged the circular  within  a reasonable  period  of  time which they did not  do.  It  is wellsettled that anyone, who may feel aggrieved by an admin- istrative order or decision affecting his right, should  act with  due diligence and promptitude and not sleep  over  the matter. Taking up old matters after a long time is likely to result in administrative complications and difficulties  and

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would create insecurity and instability in the service which would affect its efficiency. The petitioners are, therefore, not  entitled  to  challenge the  validity  of  the  Railway Board’s  circular dated July 2, 1970, after 11  years.  Even otherwise,  on merits. there is no legal and  constitutional infirmity in the circular. In order to reorganise the  cadre of the train examiners to cope with the increased work load, the  Railway Board issued a Notification dated  October  27, 1965, reorganising the cadre. The validity of the  notifica- tion was challenged before this Court in Roshan Lal Tandon’s case. The Court struck down only a portion of the  notifica- tion and the rest of the directions contained in the notifi- cation remained unaffected. After the judgment of the Court, the Railway Board reconsidered the matter, and, with a  view to  implementing  the  decision of this  Court  and  further carrying out its policy of reorganisation as initiated under its  circular  dated October 27, 1965, issued  the  circular dated July 2, 1970 [1029A-H; 1030A-B]     The scheme of reorganisation of the cadre as contemplat- ed by the circular dated October 27, 1965, was to be  opera- tive  with effect from April 1, 1966. The Petitioners’  sub- mission  that the date April 1, 1966, was fixed in an  arbi- trary manner without any basis, is untenable. The promotees, who were placed in the higher grade C with effect from April 1, 1966, were undoubtedly senior to the petitioners in grade D,  and  none of the petitioners’ rights  were  affected  by their promotions. The Railway Board implemented the reorgan- isation  scheme after the decision of this Court  in  Roshan Lal  Tandon’s case. As promotion to grade C had been  stayed during  the  pendency of Tandon’s case in  this  Court,  the Railway  Board  was  justified in  granting  promotion  with retrospective  effect from April 1, 1966, as initially,  the reorganisation  was  proposed to be  implemented  from  that date,  which  could not be done on account  of  stay  orders issued by this Court. The petitioners 1021 cannot  claim  parity with those who had  been  promoted  to grade  C  under the Railway Board’s circular dated  July  2, 1970,  as they do not belong to that class. Equality can  be claimed  amongst equals and not with unequals. The  persons, who  had acquired the right of promotion under  the  Railway Board’s  notification dated October 27, 1965, but could  not be  promoted  on account of litigation,  formed  a  separate class, and the petitioners could not equate themselves  with them,  as  they  were not entitled to  promotion  under  the notification  dated October 27, 1965. There is no  merit  in the petitioners’ plea of discrimination. [103AF-H]     The validity of the Railway Board’s circular dated  July 2, 1970, was challenged by a writ petition before the  Delhi High  Court, which upheld the same. Again, the  validity  of that circular as well as the circular dated January 28, 1981 of  the  Railway  Board was challenged by  a  writ  petition before the Delhi High Court, which upheld the same.  [1032F- H]     By  the Circular dated October 30, 1972, of the  Railway Board,  the entry grade of train examiners in the  scale  of Rs.  180-240, was abolished and all the train  examiners  in that  grade  were  placed in the scale  of  Rs.205-280  with effect from November 1, 1972. The petitioners were  included in  grade C with effect from November 1, 1972,  and,  there- fore,  they are entitled to seniority with effect from  that date  in Grade C. The petitioners are not entitled to  claim seniority  in  grade C with reference to the date  of  their appointment  in  grade D. The respondents 5 to 10  were  ap- pointed in grade C earlier than the petitioners and,  there-

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fore,  they are senior to the petitioners. Rule 302  of  the Railway  Establishment Manual lays down a general  rule  for determining  seniority  from the date of  appointment  in  a particular grade when a person is promoted to or placed in a higher grade, his seniority is determined with reference  to the date of such promotion or placement unless the  relevant rules provide to the contrary. Seniority in lower grade  has no  meaning  for determining seniority in the  higher  grade except for determining inter se seniority of the  promotees. In  the absence of any contrary provision in the Rules,  the general  rule of seniority laid down by Rule 302  must  pre- vail. [1034G-H; 1035A-E]     It appears that in the seniority list prepared in  1968, the  names of some of the respondents were shown in grade  D on a wrong assumption. The respondents 5 to 10 were  appren- tices undergoing training, and in accordance with the direc- tions  contained in the Railway Board’s  notification  dated October 27, 1965. they were entitled to appointment 1022 straightaway  on  completion of their  training.  They  were drawing stipend at a rate which was the scale prescribed for grade D, but they did not belong to grade D and could not be included  in the seniority list of grade D. The  petitioners cannot draw advantage from the mistake committed in  includ- ing  the names of the respondents in the seniority  list  of 1968. [1035F-H; 1036A]     The  petitioners  were  placed in higher  grade  C  with effect  from  November  1, 1972, and they  are  entitled  to seniority  with reference to their placement in  that  grade and  they  have no legal right to claim  seniority  in  that grade  as  against those who were appointed  to  that  grade before November 1, 1972. [1036C-D]     Whether the petitioners were promoted to grade C or were placed en masse in that grade, does not make any  difference in  so  far their entry to grade C is concerned;  in  either case,  they  entered grade C with effect  from  November  1, 1972.  The petitioners have failed to show that  any  person junior to them has been made senior to them. Their grievance is without any substance. [1037C-E]

JUDGMENT:     ORIGINAL  JURISDICTION: Writ Petition Nos. 9222 to  9226 of 1981. (Under Article 32 of the Constitution of India).     N.N. Keshwani, R.N. Keshwani and Raj Kumar Gupta for the Petitioners in W.P. Nos. 9222-25 of 1981.     Petitioner-in-person  (Inder Mohan Lal Tandon)  in  W.P. No. 9226 of 1981.     V.C. Mahajan, G.L. Sanghi, C.V.S. Rao, Kitty  Kumaraman- glam,  Randhir Jain and S.K. Bhattacharya for  the  Respond- ents. The Judgment of the Court was delivered by     SINGH,  J. By means of these petitions under Article  32 of the Constitution the petitioners claim relief for  quash- ing Railway Board’s circular/letter No. E (NG) 1/69/PMI- 180 dated  2nd July, 1970 and No. E (NG) I-80-SR6-39 dated  28th November,  1981. They further claim relief for the issue  of writ  in the nature of mandamus restraining the  respondent, Railway Authorities, from altering or issuing seniority list in  pursuance  of the Railway Board’s  circular  dated  28th November,  1023 1981  and to maintain the previous seniority list issued  in

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1968 for the purpose of promotions, confirmation and further advancement.     In  the  Indian Railways, initial recruitment  of  Train Examiners,  used to be made in the entry Grade D in the  pay scale  of Rs. 100-185. Prior to 1st April, 1966  recruitment to Grade D of Train Examiners was made from two sources  (1) by promotion of skilled artisans working in the lower grade, (2)  by direct recruitment of apprentices  having  completed prescribed  four years’ training. 50 per cent of the  vacan- cies  were filled by apprentices while the remaining 50%  of the  vacancies  used to be filled by  promotion  of  skilled artisans.  Promotion  from entry Grade D was  made  to  next higher  Grade C of Train Examiners in the pay scale  of  Rs. 150-225 and later these grades were revised and the scale of D  grade was raised to Rs. 180-240 and that--of C  Grade  to Rs.205280. Promotion to Grade C used to be made on the basis of  senioritycum-suitability  without  any  distinction   of promotee  or direct recruits. Because there was increase  in the  work  load of Train Examiners the  Railway  Board  took steps to re-organise the cadre of Train Examiners. With that end  in view, it issued a notification on  27.10.1965  which directed that vacancies in the entry grade of Train  Examin- ers  in the scale of Rs. 120-140 should not be  filled  from apprentice Train Examiners upto 50 per cent as hitherto, but should exclusively be, filled by promotion of skilled  arti- sans. It further provided that vacancies in the next  higher grade  C (in the scale of Rs.205-280) should be filled  from amongst  the  Train Examiners working in the  grade  of  Rs. 180-240  to  the extent of 20%. The remaining  80  per  cent vacancies were to be filled by direct recruitment of appren- tice  Train  Examiners who may have  successfully  completed prescribed training. Paragraph 2 of the notification provid- ed .that the apprentice Train Examiners recruited on or from 1.4.1966 shall be given training for a period of 5 years and from the same date artisans recruited in the lower grade  as apprentice  Train  Examiners  shall be  given  ’in  service’ training for a period of three years. The circular  upgraded 50% of the existing posts of Train Examiners from Grade D to Grade  C in the scale of Rs.205-280 which were earlier  ear- marked  for  Apprentice Train  Examiners.  The  notification further  directed  that with effect from  1.4.1966  all  the apprentice Train Examiners on successful completion of their training  should  be  straightaway  brought  to  the   scale Rs.205-280  instead of being first absorbed in the scale  of Rs.  180-240  as was being done prior to the  issue  of  the notification. Apprentice Train Examiners who were undergoing training  on  the date of the issue  of  notification,  were directed to be brought to the working posts before  1.4.1966 and  they were allowed stipend in the scale of  Rs.  180-240 during the period of their training 1024 and  their period of training was increased from four  years to  five years. On the completion of the training they  were straightaway  posted in Grade C in the scale of  Rs.205-280. Those apprentice Train Examiners who had already been or may be absorbed in the scale of Rs. 180-240 upto 31.3.1966  were directed to be accommodated first in the scale of Rs.205-280 in  Grade C against the quota of 80% vacancies reserved  for them, and they were not required to undergo selection before being absorbed in that grade.     The effect of the Railway Board’s circular dated October 27,  1965 was that the existing apprentice  Train  Examiners who  had already been absorbed in Grade D by March 31,  1966 were first accommodated in Grade C against 80% of the vacan- cies  reserved  for them without undergoing  any  selection,

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while  20%  of the vacancies reserved for  the  departmental Train  Examiners, were to be filled by artisan promotees  by selection and not on the basis of seniority-cum-suitability. Although apprentices as well as artisan promotees constitut- ed  one  integrated class in Grade D but  promotee  artisans ,were  treated differently for promotion to Grade C.  Roshan Lal  Tandon who was promoted from artisan class to Grade  D, filed a writ petition in ’this Court challenging the validi- ty of the notification dated 27- 10-1965 on the ground  that a  part of the notification which gave favourable  treatment to  apprentice Train Examiners was violative of Articles  14 and 16 of the Constitution. In that writ petition a  Consti- tution Bench of this Court on August 14, 1967 in Roshan  Lal Tandon  v.  Union of India, [1968] 1 S.C.R.  185  held  that artisans and apprentices recruited from two sources to Grade D were-integrated into one class and no discrimination could thereafter be made in favour of recruits from one source  as against the recruits from the other source in the matter  of promotion  to Grade C. Apprentice Train Examiners  who  were recruited directly to Grade D as Train Examiners formed  one common class with the skilled artisans who were promoted  to Grade D as Train Examiners and thereafter no favoured treat- ment could be given to the apprentice Train Examiners merely because they were directly recruited as Train Examiners,  no discrimination  could  be  made against  the  latter  merely because they were promotees. The Court emphasised that  once the  direct  recruits and promotees are  absorbed  into  one cadre, they formed one class and they could not be discrimi- nated  for the purpose of further promotion to higher  Grade C. On these findings the Court allowed the writ petition and issued  a mandamus directing the Railway Board not  to  give effect  to  the impugned part of the circular which  was  as under:- 1025               "The Apprentice T.X. Rs. who have already been               or will be absorbed in scale Rs. 180-240  upto               31.3.  1966  should first be  accommodated  in               scale  Rs.205-280  against the  quota  of  80%               vacancies reserved for them. Such staff should               not  be  required  to  undergo  a  ’Selection’               before  being  absorbed  in  that  grade.  The               upgraded  vacancies in scale  Rs.205-280  left               over  after earmarking those for  the  appren-               tices  under  training  on  2.4.66  should  be               filled  by promotion of T.X. Rs. in scale  Rs.               180-240 on a selection basis. While  computing               the number of posts available for promotion of               T.X. Rs. in scale of Rs. 180-240 the vacancies               likely  to occur during the period of  appren-               ticeship of the apprentices under training  as               on 1.4.1966 should also be taken into account.               In other words, it would be necessary to  keep               in  reserve only the number of posts equal  to               the number of apprentices under training as on               1.4.1966, who cannot be absorbed in the antic-               ipated vacancies which will arise by the  time               they qualify."     The Railway Board with a view to implement the  decision of  this  Court  and to remove the anomaly  which  had  been pointed out by this Court issued circular/letter No. N  (NG) 65  PMI/86  dated 13.9.1968 annexures III to  the  affidavit filed on behalf of Respondent Railway Administration.  Para- graph  1  of the letter refers to this Court’s  judgment  in Roshan  Lal  Tandon’s case and also to that portion  of  the Railway  Board’s circular dated October 27, 1965  which  had

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been struck down by the Court and the interim orders  issued by the Court restraining the Railway authorities from imple- menting  the  Circular  dated October 27,  1965  during  the pendency  of  the writ petition. Paragraph 2 and  3  of  the Circular dated September 13, 1968 stated that in view of the judgment  of the Supreme Court the Board have  decided  that vacancies  in  the grade of Rs.205-280  (after  taking  into account  the upgrading of 50 per cent of posts in the  scale of Rs. 180-240- to 205-280 less the number of posts required for  absorbing  Apprentice Train  Examiners  undergoing  the enhanced period of training of five years on April 1,  1966, should  be filled by selection from amongst Train  Examiners in  the scale Rs. 180-240 as on March 31, 1966  irrespective of whether they were initially recruited as Apprentice Train Examiners  or  were promoted from lower  grades.  The  Board desired  that Railway Administrations should take  immediate steps  to ensure that proper selections are held  for  which all TXRs in scale of Rs. 180-240 are considered. It had come to Board’s notice that prior to the issue of the stay order, persons  originally recruited as Apprentice Train  Examiners who were in the 1026 scale  of  Rs.  180-240  have been  promoted  to  the  grade Rs.205-280 in pursuance of Board’s letter dated 27.10. 1965. The Board decided that in view of the Supreme Court’s  judg- ment, such promotions should be treated as null and void and the vacancies should be properly filled as mentioned in para 2 of the circular.     The   Railway   Board  issued   another   circular   No. E.(NG)i/69/PMI180 dated 2nd July 1970 laying down  procedure for  filling of posts of Train Examiners and upgradation  of posts.  It directed that vacancies arising in Grade C  after 1.4.1966  to the extent of 50% shall be maintained  in  that grade  and  the remaining 50% shall be down  graded  to  the scale  of Rs. 180-240 to be filled by promotion  of  skilled artisans.  It further directed that 50% of the vacancies  in Grade C should be filled by direct recruitment of apprentice Train  Examiners with five years’ training to the extent  of 80% thereof and the remaining 20% by promotees from Grade  D as laid down in paragraph 1 of the Railway Board’s  circular dated 27.10.1965. This procedure was directed to be followed till  the cadre position was normalised’ and the  excess  in the Grade of Rs.205-280 were eliminated. Paragraph 2 of  the circular further directed that those promoted to Grade C  in the scale of Rs.205280 as on April 1, 1966 will be  assigned seniority amongst themselves in the order of their inter  se seniority  in Grade of Rs. 180-240 for the purposes of  con- firmation in that grade and also for further advancement and they will rank senior to those recruited as apprentice Train Examiners  with  five  years training  and  appointed  after 1.4.1966  in  the Grade of Rs. 205-280. The  result  of  the circular was that all those promotees who had been appointed to Grade D prior to 1.4. 1966 stood absorbed in Grade C  and they were granted seniority in that Grade with retrospective effect viz. with effect from April 1, 1966.     Later the Railway Board took a policy decision to  abol- ish the entry Grade D of Train Examiners in the pay scale of Rs.  180-240, and in  order to  implement that  decision  it issued circular/letter No. PC-69-PS-5 TR-1, New Delhi  dated 30th  October, 1972, abolishing the entry Grade D  of  Train Examiners and placing the incumbents of that Grade en  masse in  Grade  C  in the scale of Rs.205-280  with  effect  from 1.11.1972. Paragraph 2 of the circular directed that the pay of  the staff brought from Grade D (Rs. 180˜240) to Grade  C (205-280)  will  be fixed under Rule 2017 A(III)  read  with

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Rule 2019 II. As all the incumbents of Grade D in the  scale of Rs. 180-240 were placed en masse in the higher grade C in the  scale  of Rs.205-280, a provisional seniority  list  of Grade  C Train Examiners working in Delhi Division was  pre- pared  on 16th November 1981. In that seniority  list  peti- tioners 1027 were shown senior to some of the respondents as the seniori- ty  was  not determined in accordance with Rule 302  of  the Railway  Establishment Manual. This seniority list  was  not prepared  in accordance with the prescribed criteria as  had been  done  in other divisions. The Railway Board  issued  a circular  No. E(NG) 1-80-SR6-39 dated 28.11. 1981  directing that  Delhi  Division should also fall in  line  with  other divisions of Northern Railway and the seniority of the Train Examiners appointed between 1.4.1966 to 1.11.1972 should  be prepared  in accordance with the existing practice  viz.  on the basis of the date of appointment in particular grade. In pursuance to that direction seniority of Train Examiners  of Grade C placed in that Grade between 1.4. 1966 to 1.11. 1972 was published in 1981 by the authorities of the Delhi  Divi- sion  of  Northern Railway. After inviting  objections,  the seniority  list was finally published in December, 1982.  In that  seniority  list the petitioners were shown  junior  to Respondents  Nos. 5 to 10, who were placed above  the  peti- tioners.  Aggrieved  the  petitioners  have  challenged  the validity  of the seniority list also by  raising  additional grounds in the writ petitions.     Before  we  consider the submissions made on  behalf  of petitioners it would be appropriate to refer to  comparative position  of  petitioners and the respondents Nos. 5  to  10 with  regard  to  their date of entry in  service  as  Train Examiners  in Grade D and Grade C. The relevant position  is as under: Name                          Date of entry                          Grade D      Grade C                          Rs. 180-240    Rs.205-280 1.  Yashbir Singh,     Petitioner.  29.4.1986    1.11. 1972 2.  I.M. Lal Tandon,   Petitioner.  19.6.1966    1.11. 1972 3.  Hira Lal Kapoor,   Petitioner.  29.4.1966    1.11. 1972 4. Harbhaj an Singh,  Petitioner.     16.8.1966    1.11.1972 5. Som Dutt Sharma,   Petitioner.     29.4.1966    1.11.1972 6. A.K. Sharma,       Respondent 5,   --          5.  9.1967 7.  V.K. Chandhok,     Respondent 6,   --         25. 2.1968 8.  R.N. Verma,        Respondent 7,   --         10. 8.1968 9.  B .D. Maglani,     Respondent 8,   --         22. 4.1969 10. Dev Raj Sharma,    Respondent 9,   --        21. 5. 1970 11. K.N.Sharma,        Respondent 10,  --          9. 2.1971 The above chart shows that Respondents Nos. 5 to 10 who be- 1028 long  to group of apprentice Train Examiners  were  directly placed to working posts in Grade C after completion of  five years training in accordance with the Railway Board’s circu- lar  dated 2nd July, 1970, on the respective dates shown  in Column  3,  which indicates that each one of them  had  been placed in Grade C prior to 1.11. 1972, while the petitioners were  placed  in  Grade C with effect from  1.11.  1972,  in pursuance of the Railway Board’s circular dated 30.10. 1972. Since the Respondents Nos. 5 to 10 were appointed to Grade C earlier in time and as the petitioners were placed in  Grade C  later, they. were shown junior to the Respondents in  the seniority  list.  No valid objection can be  raised  against respondents’  seniority. Further in the seniority  list  all those  promotees who had been placed in Grade C with  effect from April 1, 1966 under the Railway Board’s circular  dated

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July 2, 1970 were shown senior to the petitioners. Since the petitioners  were not granted seniority  with  retrospective effect in Grade C as was done in the case of those who  were promoted  under  the Circular dated July 2, 1970  they  have assailed  the  Constitutional validity  of  Railway  Board’s circular dated July 2, 1970.     Learned  counsel for the petitioners contended that  the Railway Board’s circular dated July 2, 1970 was illegal  and unconstitutional for variety of reasons. Firstly, the  Rail- way  Board had no authority in law to grant  seniority  with retrospective  effect  to all those promotees who  had  been placed  in Grade C with effect from April 1, 1966 in  pursu- ance  of  the  circular dated July 2,  1970.  Secondly,  the Railway Board practised discrimination between the promotees forming  the same class of Grade D with regard to  seniority in Grade C. He contended that under the circular dated  July 2,  1970 promotees belonging to Grade D (like the  petition- ers) were granted seniority in Grade C on their promotion to that grade with retrospective effect from the date of  their appointment  in Grade D and not from the date of  their  ap- pointment  or placement in Grade C whereas  the  petitioners who  form  the  same class have not been  granted  the  same benefit,  instead their seniority has been  determined  with effect  from the date of their entry in Grade C.  The  peti- tioners  and  all those who had been appointed  in  Grade  D prior  to April 1, 1966 and promoted to Grade C  formed  the same class and yet they have been treated differently  with- out any rational basis. The petitioners were also  recruited in  1966 and they all had completed service of more  than  4 years approximately as Train Examiners in Grade D on  Novem- ber 30, 1972 when the circular was issued but they have  not been given seniority in Grade C with retrospective effect as was done under the circular dated July 2, 1970. 1029     We have given our anxious consideration to these submis- sions  but we do not find any merit in the same.  The  peti- tioners  have  challenged validity of  the  Railway  Board’s circular dated July 2, 1970 in 198 1 after 11 years. All the petitioners  were in service on the date that  circular  was issued and they were aware that their colleagues  (promotees belonging  to Grade D) were placed in Grade C and  they  had been granted seniority with retrospective effect but none of them challenged the validity of the circular. Now  petition- ers  cannot be permitted to challenge the validity  of  that circular  after 11 years. If the petitioners were  aggrieved by  the  Railway Board’s circular dated July  2,  1970  they should  have challenged the same within a reasonable  period of  time which they did not do so. It is well  settled  that anyone  who may feel aggrieved with an administrative  order or  decision affecting his right should act with  due  dili- gence and promptitude and not sleep over the matter.  Raking of  old  matters after a long time is likely  to  result  in administrative  complications and difficulties and it  would create insecurity and instability in the service which would affect  its  efficiency. The petitioners are  therefore  not entitled  to challenge the validity of the  Railway  Board’s circular  dated July 2, 1970 after 11 years and their  chal- lenge is bound to fail on this ground alone.     We have considered the merit of the submission also  but we find no legal or constitutional infirmity in the Circular dated  July 2, 1970. There was increase in the work of  car- riage  and wagons examination, as more complicated  type  of rolling  stock  was available with the Indian  Railways.  In order to reorganise the cadre of Train Examiners and to cope with the increased work load the Railway Board by its  noti-

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fication dated 27th October, 1965 reorganised the cadre.  It directed  that vacancies in Grade D were to  be  exclusively filled by promotion from amongst skilled artisans and direct recruits were to be appointed straightaway to Grade C  after completion of training of five years. Validity of the  noti- fication  was  challenged before this Court  in  Roshan  Lal Tandon’s  case  and the implementation of the  circular  was stayed. This Court struck down only a portion of the notifi- cation which has been extracted in the earlier part of  this judgment  but  the rest of the directions contained  in  the notification  remained unaffected, including  the  direction that with effect from April 1, 1966 all the Train  Examiners on  successful  completion  of  their  training  should   be straightaway  brought on to the scale of Rs.205-280  instead of being first absorbed in Grade D. Similarly further direc- tion that those apprentices who were undergoing training  on April 1, 1966 shall undergo five years’ training instead  of four years and during their training they would receive 1030 stipend in the scale of Rs. 180-2 10 and after completion of their training they will straightaway be appointed to  Grade C.  After  the  judgment of this Court,  the  Railway  Board reconsidered  the  matter and with a view to  implement  the decision  of this Court and to further carry out its  policy of  reorganisation  as initiated under  its  circular  dated October  27,  1965 it issued directions under  its  circular dated July 2, 1970, which is as under:              "GOVERNMENT OF INDIA               MINISTRY OF RAILWAY                    (RAILWAY BOARD)      No. E(NG) i/69/PMI- 180                  New Delhi                                         Dated 2nd July 1970 The GMs. All India Railways.          Sub: Procedure for filling up posts of TXRs  upgra- dation of.                        Ref.  Rly. Boards letter No.  E  (NG)               165 PMI-86 dated 27.10.1965 and 13.9.1968. The               Board have been receiving representations from               the  staff working in the category of TXRs  in               scale  Rs. 180-240 (AS) against the  procedure               prescribed  for filling vacancies arising  out               of  upgradation of 50% of posts in  scale  Rs.               180-240 (AS) to Rs.205280 w.e.f. 1.4.1966.  It               has  been decided in modification of  previous               orders  that  all the TXRs  working  in  Grade               180240  consisting  of both App.  TXRs.  of  4               years  Trg.  and promotees from  ranks  as  on               1.4.1966  should be promoted en masse  to  the               grade Rs.205-280 irrespective of the quota  of               vacancies  reserved for promotees, the  excess               to the permissible re-organised cadre strength               in  the  grade  Rs.205-280  being  worked  off               gradually  by wastage such as retirement  etc.               in grade Rs.205-280 (AS).                        After  1.4.1966 50% of the  vacancies               arising  in grade Rs.205-280 should  be  main-               tained  in  that grade and the  remaining  50%               will be down graded to the scale of Rs. 190240               to be filled by promotion of skilled artisans.               The  50% of the vacancies in grade  Rs.205-280               (AS) should be filled by direct recruitment of               App. TXRs with 5 years training to the  extent               of 80% thereof and the remaining 20% by pro-                1031

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             motees from grade Rs. 180-240 as laid down  in               paragraph  1  (ii)(a) of  Board’s  letter  No.               E(NG) 165 PMI-86 dated 27.10.1965. This proce-               dure  will  continue to be followed  till  the               cadre position is normalised and the excess in               the grade of Rs. 205-280 eliminated.               (2) The staff promoted to the grade Rs.205-280               as  on  1.4.1966 will  be  assigned  seniority               amongst  themselves  in  the  order  of  their               inter-se-seniority  in the grade  Rs.  180-240               for the purpose of confirmation in that  grade               and  also for further advancement.  They  will               all  rank  senior to those recruited  as  App.               TXRs  with  5 years Trg. and  appointed  after               1.4.1966 to the grade Rs.205-280.               (3)  The  above  instructions  may  please  be               implemented immediately and a report submitted               to the Board in due course.                                    Pl. ack. receipt Sd               -                                                             (O.D.S harma)                                             Asstt.               Director(E) Rly Board" The  circular issued three directions, firstly, it  directed that  all the Train Examiners working in Grade 180-240  con- sisting  of  both apprentice Train Examiners  and  promotees from rank as on April 1, 1966 should be promoted en masse to Grade  C irrespective of quota reserved for promotees.  Sec- ondly,  it  directed that after April 1, 1966  vacancies  in Grade C to the extent of 50 per cent should be maintained in that  Grade while the remaining 50 per cant should  be  down graded  to Grade D to be exclusively filled by promotion  of skilled  artisans, it further directed that 50 per  cent  of the  vacancies  in  Grade C should be filled  up  by  direct recruitment  of apprentices with five years training to  the extent  of 80 per cent thereof and remaining 20 per cent  of vacancies  from Grade D. Thirdly, it issued  direction  with regard to assigning seniority to the staff promoted to Grade C  on April 1, 1966. They were to carry their inter se  sen- iority in Grade D for the confirmation and also for  further advancement.  It  further directed that the  promotees  will rank  senior  to the direct recruits in  Grade  C  appointed after April 1, 1966.     These directions were issued with the object and purpose of achieving the reorganisation which had been initiated  by Railway 1032 Board under its circular dated October 27, 1965. The  scheme of  reorganisation of cadre as contemplated by the  circular dated  October  27, 1965 was to be carried out  with  effect from April 1, 1966 and that date was followed by the Railway Board  in its circular dated January 2, 1970. The  petition- ers’  submission  that the date April 1, 1966 was  fixed  in arbitrary manner without any basis is untenable. The  promo- tees who were placed in the higher Grade C with effect  from April 1, 1966 were undoubtedly senior to the petitioners  in Grade  D, none of the petitioners’ rights were  affected  by their  promotion. The reorganisation of the cadre  of  Train Examiners and the promotion to Grade C could not be complet- ed on account of the pendency of Roshan Lal Tandon’s case in this  Court  and the stay orders issued therein.  After  the decision  of  this Court the Railway Board  implemented  the scheme  and it made promotion with retrospective effect.  As

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the promotion to Grade C had been stayed, during the penden- cy of the writ petition in this Court the Railway Board  was justified  in granting promotion with effect from  April  1, 1966  as initially reorganisation was proposed to be  imple- mented  with effect from that date as is clear from  Railway Board’s  notification  dated October 27, 1965.  The  Railway Board  promoted the staff with retrospective effect  because on account of stay orders issued by the Court those entitled to  be promoted with effect from April 1, 1966 could not  be promoted. The petitioners cannot claim parity with those who had  been  promoted  to Grade C under  the  Railway  Board’s circular  dated July 2, 1970 as they do not belong  to  that class.  Equality  can be claimed among equals and  not  with unequals. Those persons who had acquired right of  promotion under  the  Railway Board’s notification dated  October  27, 1965  could not be promoted on account of  litigation,  they formed  a distinct class and the petitioners  cannot  equate themselves with them as they were not entitled to  promotion under the notification dated October 27, 1965. The petition- ers  have no right in law to claim similar treatment.  There is therefore no merit in the petitioners’ plea of  discrimi- nation. Validity of the Railway Board’s circular dated  July 2, 1970 on the ground of it being discriminatory was  raised before  the  Delhi High Court in writ petition No.  1147  of 1971,  Chaman  Lal and others v. Union of India  and  others decided  on  May 20, 1980. A Division Bench  of  that  Court upheld  its validity. In another writ petition No.  2834  of 198  1 Kewal Krishan v. Union of India and others again  the validity  of Railway Board’s circular dated July 2, 1970  as well  as  the  validity of Railway  Board’s  circular  dated January 28, 1981 was upheld by a Division Bench of the Delhi High Court on December 15, 1981. Learned counsel for the petitioners challenged the  validity of the 1033 Railway  Board’s circular dated November 1, 1981  which  di- rected the. Delhi Division to fall in line with other  divi- sions of Northern Railways for determining the seniority  of Train Examiners. It appears that seniority of Train  Examin- ers in Grade C working in other Divisions of Northern  Rail- way  was  determined, from the date of appointment  in  that Grade, in accordance with Rule 302 of the Railway Establish- ment  Manual  but in Delhi Division that  practice  was  not followed.  The Railway Board directed the Delhi Division  to fall in line with other divisions in determining the senior- ity of Train Examiners. Learned counsel for the  petitioners urged  that since under the Railway Board’s  circular  dated October  30,  1972 the petitioners were placed en  masse  in Grade  C  in the scale of Rs.205-280 they  are  entitled  to seniority with effect from the date of their appointment  in Grade  D  and if that be so, they would rank senior  to  Re- spondents Nos. 5 to 10 who were appointed later in time.  At this stage it would be profitable to have a glance at  Rail- way  Board’s  circular dated October 30, 1972  which  is  as under:              "GOVERNMENT OF INDIA              MINISTRY OF RAILWAYS                 (RAILWAY BOARD) No. PC-69/PS-5/TR- 1 New Delhi dated 30.10. 1972 The General Managers, All India Railways.          Sub: Upgrading of the initial scale of pay of Train Examiners on Railways.          Ref: Board’s letters No. (1) E(NG) 65 PMI ’86 dated 27.10. 1965.

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(ii) No. E (NG) 165 PMI 86 dated 13.9. 1968. (iii) No. E(NG)  1-69 .PM/-1/130 dated 2.7. 1970.                         The Board have considered the commu-               nications  received from the National  Federa-               tion  of Indian Railwaymen and the  All  India               Railwaymen’s  Federation regarding the  proce-               dure prescribed for filling and maintenance of               vacancies  in  the Train Examiners’  cadre  as               envisaged  in the above mentioned letters  and               more  particularly their demand for  abolition               of  the grade of Rs. 180-240. It has now  been               decided  in  modification of  existing  orders               that the               1034               initial grade of TXRs, viz. Rs. 180-240 should               be abolished and all the TXRs working in  that               grade  should be placed en masse in the  grade               Rs.205-280  w.e.f.  1.11. 1972.  It  has  been               decided  that  vacancies in  grade  Rs.205-280               should  hereafter be filled in  the  following               manner:-                     (i)  40%  of vacancies to be  filled  by               promotion or Artisans;                     (ii) 20% of vacancies to be reserved for               existing  Artisans going as  Apprentice  TXRs,               with age relaxation upto 35 years; and                     (iii)  40% of vacancies to be filled  by               direct  recruitment of Apprentices  TXRs  from               the  open market through Railway Service  Com-               missions.           2.  Pay  of the staff brought on  from  grade  Rs. 180-240  (AS)  to Grade Rs.205-280(AS) will be  fixed  under Rule 2017(a)(ii) read with rule 2019 PII. 3. This has the approval of the President.                                          Sd/- (R.S. Bharal) Dy. Director,  Establishment (P & A)                             Railway Board No. PC-69/PS 5/TP-1 New Delhi dated 30.10.72 Copy  of  the FA & CAOS, and Chief Auditors  of  All  Indian Railways.                                          Sd/-                                 (R.S. Bharal) Dy. Director,                                     Establishment (P & A)                                         Railway Board."     By  the  aforesaid  circular the entry  grade  of  Train Examiners in the scald of Rs. 180-240 was abolished and  all the Train Examiners working in that Grade were placed in the scale  of Rs.205-280 with effect from November 1,  1972.  In pursuance  to  that decision, petitioners were  included  in Grade C with effect from November 1, 1972 and  1035 therefore  they are entitled to seniority with  effect  from that  date in Grade C. In the absence of any statutory  rule or directions petitioners are, not entitled to claim senior- ity in Grade C with reference to the date of their  appoint- ment  in Grade D. The chart indicating respective  dates  of entry of petitioners and the Respondents 5 to 10 in Grade C. as extracted in the earlier part of the judgment would  show that  Respondents  Nos. 5 to 10 were appointed  in  Grade  C earlier  in  time than the petitioners, therefore  they  are entitled to be senior to the petitioners. It is not disputed that Rule 302 of the Railway Establishment Manual lays  down a  general rule for determining seniority from the  date  of appointment  in a particular grade and the petitioners  have not  placed  any rule or instruction before  us  to  support

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their case. Seniority ordinarily reflects length of  service in a particular cadre or grade. It is generally regulated by service  rules or in the absence of Rules by  executive  in- structions. By and large, such rules provide for determining seniority  with  reference to the date  of  appointment  but there  are  instances where rules  provide  for  determining seniority with reference to date of confirmation.  Normally, when  a person is promoted or placed in a higher  grade  his seniority  is determined with reference to the date of  such promotion or placement unless the relevant rules provide  to the  contrary. Seniority in the lower grade has  no  meaning for  determining  seniority in the higher grade  except  for determining  inter se seniority of promotees. Rule 302  con- tains a general Rule and there is no exception to it. In the absence of any contrary provision in the Rules, the  general rule of seniority as laid down by Rule 302 must prevail.     Learned  counsel then urged that the seniority  list  of Grade D had been prepared in 1968 and in that seniority list petitioners were shown senior to some of the respondents and that  seniority could not legally be disturbed.  It  appears that  in  the seniority list prepared in 1968 the  names  of some of the respondents was shown in Grade D on the  assump- tion that they held posts of Train Examiners in that  Grade. It was done on a wrong assumption. Admittedly, the  Respond- ents  Nos.  5  to 10 were apprentices  who  were  undergoing training, and in accordance with the directions contained in the  Railway Board notification dated October 27, 1965  they were  entitled  to appointment in Grade  C  straightaway  on completion  of  their training. They were no  doubt  drawing stipend  at  the  rate of Rs. 180-240 which  was  the  scale prescribed  for Grade D but nonetheless they did not  belong to Grade D as they were not appointed to any of the posts in that  Grade. Their names therefore could not be included  in the  seniority list of Grade D. Petitioners cannot draw  any advantage from the mistake committed in 1036 including  the  Respondents name in the  seniority  list  of 1968.     Learned counsel then urged that Hira Lal Kapoor, one  of the  petitioners was promoted on June 23, 1981 on the  basis of  his seniority in Grade D, therefore,  other  petitioners are  also entitled to their seniority with effect  from  the date of their appointment in Grade D. In the written submis- sion  filed on behalf of Respondents it is stated  that  the Deputy  Regional Manager of Delhi had granted  promotion  to H.L.  Kapoor on June 2, 1981 on ad-hoc and temporary  basis. On receipt of representations and. protests from  Respondent No. 5 Ashok Kumar Sharma and the General Secretary. Northern Railway Men’s Union, order of promotion issued in favour  of H.L.  Kapoor was cancelled and Sh. A.K.  Sharma,  Respondent No.  5  was promoted. Since the petitioners were  placed  in higher  Grade C with effect from November 1, 1972  they  are entitled to seniority with reference to date of their place- ment  in  that Grade and they have no legal right  to  claim seniority in that Grade against those who were appointed  to that Grade before November 1, 1972.     Learned  counsel  for the petitioners  referred  to  Lok Sabha  questions asked by Sh. Suraj Bhan, M.P. and  the  an- swers  given to those questions with regard to seniority  of direct   recruits  and  promotees,  (Annexures  K   of   the petition).  The petitioners have asserted that in  reply  to the Lok Sabha questions, it was clearly stated by the  Rail- way  Administration  that  direct  recruit  Train  Examiners posted  on working posts before November 1, 1972 in Grade  C in the scale of Rs.205-280 will not be treated senior to the

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Train Examiners promoted en masse with effect from  November 1,  1972. In the counter affidavit filed by the  respondents it  is stated that the reply to the Lok Sabha  questions  as contained  in Annexure K to the petition is of no  relevance as the said questions were not admitted at all and no  reply was given by the Railway Board. It appears that the  General Manager  had prepared a draft reply to the Lok  Sabha  ques- tions  but the reply had not been finalised by  the  Railway Board  which is the competent authority. The  Railway  Board could  have modified the draft of the reply as  prepared  by the General Manager but since the question was not  admitted no  reply  was  sent to the Lok Sabha.  The  petitioner  can therefore draw no support from Annexure K to the petition.     Learned counsel for the petitioners then urged that  the petitioners  were not promoted to Grade C instead they  were placed  en  masse  in Grade C on the abolition  of  Grade  D therefore  the date of their seniority should not be  deter- mined from the date of their placement in      1037 Grade  C instead they are entitled to their  seniority  with reference  to the date of their appointment in Grade  D.  He placed reliance on the directions, contained in paragraph  2 of the Railway Board’s circular dated October 30, 1972  that the petitioners’ salary in Grade C shall be fixed in accord- ance  with Rule 2017 R-II read with rule 2019-II.  He  urged that  if the petitioners were treated to have been  promoted to  Grade C with effect from November 1, 1972 in  that  case their  salary could have been fixed in accordance with  Rule 2018 (R-II) (PR-22/C). It is true that the petitioners  were not  promoted  from Grade D to Grade C instead Grade  D  was abolished  and  the  petitioners and  all  other  incumbents holding posts in Grade D were placed en masse in Grade C and the Railway Board issued directions that their salary  shall be  fixed  in accordance with the Rule 2017 read  with  Rule 2018 (R-II) (PR-22/C). Whether petitioners were promoted  to Grade  C or whether they were placed en masse in that  Grade does not make any difference so far as their entry to  Grade C  is concerned, in either case, they entered Grade  C  with effect from November 1, 1972. Reference to a particular rule for determining their pay in the higher grade cannot  change the  criteria for determining seniority. The  Railway  Board had never issued any direction for determining the petition- ers seniority with reference to their date of appointment in the initial entry grade. The petitioners have failed to show that any person junior to them has been made senior to them. Their grievance is without any substance.     In view of the above discussion we find no merit in  the petitions.  We accordingly dismiss the same with costs.  All interim orders stand discharged. S.L.                                               Petitions dismissed. 1038