# Ram Autar v. State of U.P. A.J.R., 1962 All. 328 F.B. approved

- **Citation:** [1968] 3 S.C.R. 575
- **Court:** Supreme Court of India
- **Decided:** 1968-03-27
- **Case number:** Writ Petitions Nos. 96 and 16S of 1967
- **Bench:** M. HlDAYATULLAH, R. S. Bachawat, C. A. Vaidial!Ngam, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-autar-v-state-of-u-p-a-j-r-1962-all-328-f-b-approved-4314
- **Pages:** 12

## Headnote

Constilution of India, Art. 309-Railway Establishn1ent Code, r. 157Rc.ilway Board's Secretariat Clerical Service (Reorganisation) Scheme
fr<11ned in 1957 hut nJade applicable from 1954-Board's power to frame
rules with retrospective effect.
The petitioners who were wo'rking as Assistants were by the operation
of the Railway Board's Secretariat
Clerical
Service
(Reorganisation) ·
Scheme reverted as Upper Division CleTks in 1967. The said scheme was
framed on Febt·uary 5, 1957 but was brought into effect from December
1, 1954. Certain modifications to the scheme relating to the manner of
filling. up of permanent and temporary vacancies in Grade I of the Service
were made in 1963.
The. petitioners came to this Court under A'rt. 32
of the Constitution, challenging the orders of reversion
passed
against
them as illegal. On behalf of respondents the o'rders were defended as
being based on the order of seniority which had been re-fixe<l according to
the said Scheme. The contentions advanced on behalf of .the petitioners
were:· (i) That their promotion as Upper Division Clerks and later as
Assistants had beeti. on a permanent ba·sis and could not be disturbed;
(ii) That the Scheme as well as the various orders passed by the respondents weTe violative of Arts. 14 and 16 of the Constitution; (iii) That the
second respondent (Railway Board) had no power in law, to frame either
the Scheme, or the modified Scheme so as to have retrospective effect from
December I. 1954.
HELD : (i) The ranking given to the petitioners as a result of which
the impugned orders of reversion were passed was in accordance with the
Scheme as . modified in 1963..
On the facts, the contention of the petitioners that their. appointment as Upper Division Clerks
and
later
as
F
Assistants was on a permanent basis, could not be accepted. [582 B-C]
G
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(ii) Once it was held that the petitioners did not satisfy the requirements of the scheme for being retained as Assistants there was no question
of any discrimination under .Art. 14 or violation of Art. 16 arising for
consideration at all. (582 G]
(iii) The Indian Railway Esiablishment Code has been issued by the
President in exercise of the powers vested in him· by th~ proviso to Art 309
of the Constitution'.
Rule 151 of the Code gives the Railway Board full
powers to make rules of a general application to non-gazetted railway
servants under· their control. If full effect is given to: the wordS in Art.
309, namely 'and any rules so made shall have effect subject to the provisions of any such Act', then in the absence of any Act as afore.,.aid in
the .pre.sent case, th~ power to make rules· with retrospective effect ~.caiinot
be .. demed to the Radway Board; Accordingly the Scheme fralll"..d by the
satd Board 10 1957 could be made retrospectively effective from December I, 1954. [583 E, 584 H, A-El
State v. Padmanahhacharya, [19661 I S.C.R. 994 and
Nagarajan v.
Mysore, [1966) 3 S.C.R1. 682. consideTed.
576
SUPREME COURT REPORTS
[1968] 3 S.C.R
Ram Autar v. State of U.P. A.J.R., 1962 All. 328 F.B. approved.
A
Govindaraju v. State of Mysore,
A.I.R.
1963
Mys. · 265 and
Garindappa v. J.G. of Registration, A.J.R. 1965 Mys. 25, disapproyed.
ORIGINAL JURISDICTION :
Writ Petitions Nos. 96 and 16S
of 1967.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
S. K. Mehta and K. L. Mehta for the petitioner (in W.P.
No. 96 of 1967).
A. K. Sen, A. P. Chatterjee and M. M. Kshatriya, for the
Petitioner (in W.P. No. 16S ·of 1967).
C. K. Daphtary, Attorney-General, V. A. Seyid Muhammad
and R. N. Sachthey, for respondents Nos. 1 and 2 (in both the
petitions).
i3. R. G. K. Achar, for respondents Nos. 3, 6 to 9, 13, lS, 17,
18, 21, 26, 29, 30, 31, 36, 39, to 4S, 47, SO, S3 to SS, S8, 61,
64, 66, 69, 76, 77, 81, 82, 87, 91, 94, 96, 97, 103 to lOS, 108,
123, 136 and lSO (in W.P. No. 96 of 1967).

## Text

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B. S. VADERA
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UNION OF INDIA & ORS.
March 27, 1968
[M. HlDAYATULLAH, C.J., R. S. BACHAWAT, C. A. VAIDIAL!NGAM,
K. S. HEGDE AND A. N. GROVER, JJ.J
Constilution of India, Art. 309-Railway Establishn1ent Code, r. 157Rc.ilway Board's Secretariat Clerical Service (Reorganisation) Scheme
fr<11ned in 1957 hut nJade applicable from 1954-Board's power to frame
rules with retrospective effect.
The petitioners who were wo'rking as Assistants were by the operation
of the Railway Board's Secretariat
Clerical
Service
(Reorganisation) ·
Scheme reverted as Upper Division CleTks in 1967. The said scheme was
framed on Febt·uary 5, 1957 but was brought into effect from December
1, 1954. Certain modifications to the scheme relating to the manner of
filling. up of permanent and temporary vacancies in Grade I of the Service
were made in 1963.
The. petitioners came to this Court under A'rt. 32
of the Constitution, challenging the orders of reversion
passed
against
them as illegal. On behalf of respondents the o'rders were defended as
being based on the order of seniority which had been re-fixe<l according to
the said Scheme. The contentions advanced on behalf of .the petitioners
were:· (i) That their promotion as Upper Division Clerks and later as
Assistants had beeti. on a permanent ba·sis and could not be disturbed;
(ii) That the Scheme as well as the various orders passed by the respondents weTe violative of Arts. 14 and 16 of the Constitution; (iii) That the
second respondent (Railway Board) had no power in law, to frame either
the Scheme, or the modified Scheme so as to have retrospective effect from
December I. 1954.
HELD : (i) The ranking given to the petitioners as a result of which
the impugned orders of reversion were passed was in accordance with the
Scheme as . modified in 1963..
On the facts, the contention of the petitioners that their. appointment as Upper Division Clerks
and
later
as
F
Assistants was on a permanent basis, could not be accepted. [582 B-C]
G
H
(ii) Once it was held that the petitioners did not satisfy the requirements of the scheme for being retained as Assistants there was no question
of any discrimination under .Art. 14 or violation of Art. 16 arising for
consideration at all. (582 G]
(iii) The Indian Railway Esiablishment Code has been issued by the
President in exercise of the powers vested in him· by th~ proviso to Art 309
of the Constitution'.
Rule 151 of the Code gives the Railway Board full
powers to make rules of a general application to non-gazetted railway
servants under· their control. If full effect is given to: the wordS in Art.
309, namely 'and any rules so made shall have effect subject to the provisions of any such Act', then in the absence of any Act as afore.,.aid in
the .pre.sent case, th~ power to make rules· with retrospective effect ~.caiinot
be .. demed to the Radway Board; Accordingly the Scheme fralll"..d by the
satd Board 10 1957 could be made retrospectively effective from December I, 1954. [583 E, 584 H, A-El
State v. Padmanahhacharya, [19661 I S.C.R. 994 and
Nagarajan v.
Mysore, [1966) 3 S.C.R1. 682. consideTed.
576
SUPREME COURT REPORTS
[1968] 3 S.C.R
Ram Autar v. State of U.P. A.J.R., 1962 All. 328 F.B. approved.
A
Govindaraju v. State of Mysore,
A.I.R.
1963
Mys. · 265 and
Garindappa v. J.G. of Registration, A.J.R. 1965 Mys. 25, disapproyed.
ORIGINAL JURISDICTION :
Writ Petitions Nos. 96 and 16S
of 1967.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
S. K. Mehta and K. L. Mehta for the petitioner (in W.P.
No. 96 of 1967).
A. K. Sen, A. P. Chatterjee and M. M. Kshatriya, for the
Petitioner (in W.P. No. 16S ·of 1967).
C. K. Daphtary, Attorney-General, V. A. Seyid Muhammad
and R. N. Sachthey, for respondents Nos. 1 and 2 (in both the
petitions).
i3. R. G. K. Achar, for respondents Nos. 3, 6 to 9, 13, lS, 17,
18, 21, 26, 29, 30, 31, 36, 39, to 4S, 47, SO, S3 to SS, S8, 61,
64, 66, 69, 76, 77, 81, 82, 87, 91, 94, 96, 97, 103 to lOS, 108,
123, 136 and lSO (in W.P. No. 96 of 1967).
The Judgment of the Court was delivered by
Vaidialingam, J. In both these writ petitions, under Art. 32
of the Constitution, the petitioners seek to have quashed, certain
orders passed by the 2nd respondent and, in particular; the order
dated June 16, 1967, reverting them, as Upper Division Clerks,
with effect from June 9, 1967. The Union of India, through the
Chairman, Railway Board, and the Secretary, Railway Board,
are respondents 1 and 2, respectively, in these proceedings. The
other respondents are officers, working under the 2nd respondent,
who, according to the petitioners, have been given preferential
treatment, by way of promotion, under the orders, impugned, in
these proceedings.
At the outset, it may be stated, that the various orders, passed
by the 2nd respondent, referred to, by both the petitioners, are
one and the same, and therefore, we shall refer to those proceedings, in accordance with the annexure number, given to them, in
Writ Petition No. 96 of 1967. ·Wherever necessary, we shall
advert to any separate order, that has been referred to, by the
petitioner, in Writ Petition No. 16S of 1967.
According to the petitioner in Writ Petition No. 96 of 1967,
he joined service, on July 16, 1955, as Lower Division Clerk,
was promoted, with effect from February 2, 19S7, as Upper Division Clerk and further promoted, as Assistant, on February 3,
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B. s. VADERA v. UNION (Vaidialingam, J.)
577
1958.
His grievance is that while he was holding the post of
such Assistant, from 1958, he has been illegall~, and without any
justification, reverted, as Upper Division Clerk, with effect from
June 9, 1967, as per the impugned order, dated June 16, 1967
(Annexure 16). Similarly, according to the petitioner, in Writ
Petition No. 165 of 1967, he joined as a Lower Division Clerk,
on September 14, 1954, was promoted as Upper Division Clerk,
with effect from February 2, 1957 and was further promoted, as
Assistant, on February 3, 1958. His grievance is that while he
was so holding the post of Assistant, from 1958, he has been
illegally, and without any justification, reverted as Upper Division Clerk, with effect from June 9, 1967, as per Annexure 16.
According to the Railway Board, these promotions, made of
the petitioners, either as Upper Division Clerk, in the first
instance, or, later, as Assistant, were purely on a temporary and
ad hoc basis, pending the framing of the Railway Board's Secretariat Clerical Service (Re-organization) Scheme, which was in
contemplation, at the material time. The Scheme (Annexure 4),
was actually framed on February 5, 1957, and the Railway
Board's Secretariat Clerical Service was to be organized, in the
manner, set out therein.
Under this Scheme, there were to be
two grades of service-(i) Grade I-Upper Division Clerk; and
(ii) Grade Il-'-Lower Division Clerk.
The authorised pennanent strength of the Service, in Grade I, was fixed at 45, and of
Grade II, at 82.
The initial constitution of the service, was to
be with effect from December 1, 1954.
On March 30, 1963, some of the provisions, contained in
Annexure 4, were modified, by Annexure 7.
One of the modifications, effected undtir Annexure 7, related to the manner of
filling up of pennanent vacancies and temporary vacancies, in
Grade I of the Service, and this modification was also to have
effect, from the date of the initial constitution of the Service, viz.,
December 1, 1954.
In 1965, a final panel was drawn up, strictly on the basis of
the Scheme, for promotion to the Grade of Upper Division
Clerks, in which the names of all the Lower Division Clerks were
arranged, strictly -in accordance with their seniority positions, in
that Grade. Accordingly, the names of the petitioners, who had
been promoted as Officiating Upper Division Clerks, in 1957
were entered, in that panel, in accordance with their inter s;
s~niority as Lower Division .Clerks. As the posts of Upper Divismn Clerks were non-selectton posts, so far as promotion quota
was co~cei:n.ed, they had to be ~lied in, on the basis of senioritycu.m,-~mtab1hty and hence a parttcular officer's seniority, as Lower
D1vmon Clerk, was duly reflected, in his seniority as Upper
578
SUPREME COURT REPORTS
(1968] 3 S.C.R.
Division Clerk. Similarly, Upper Division Clerks, who were promoted as officiating Assistants, were also promoted, on the basis
of their seniority, in the Upper Division Clerks' Grade and, therefore, their seniority, i~e-Lower Division Clerks' Grade, was
thus reflected in the -Assistants' Grade.
The petitioners were
required to be reverted, for such Upper Division Clerks, who
were senior to them, being posted in the Grade of Assistants.
Effort, however, was made, to avoid hardship to persons, like
the petitioners, who were functioning as Assistants, by deciding
to make available, vacancies in the Assistants' Grade, by promotion and by curtailing the quota, reserved for direct recruits; but
the petitioners could not be continued as Assistants, for an indefinite period, as difficulty arose, when there was contraction, in
the Cadres, by some of the Section Officers, being reverted, as
Assistants, in June 1967. This, in consequence, resulted in the
reversion of certain Assistants, including the petitioners, to the
posts of Upper Division Clerks. · The reversions themselves were
made, strictly in the reverse order of seniority. According to the
Railway Board, the petitioner, in Writ Petition 96 of 1967 is
still a temporary Lower Division Clerk, and he has not been even
confinned in that Grade, because he has not passed the requisite
typing test. It is further stated that the petitioner, in Writ Petition 165 of 1967 is even now not a permanent Upper Division
Clerk, and that he was confirmed. as Lower Division Clerk, in
1966, with effect from September ·14, 1957. Therefore, according to the Railway Board, the impugned orders were a!! valid and
legal and did not contravene any provisions ofthe Constitution,
nor did they infringe any of the rights of the petitioners.
In order to appreciate the arguments, addressed before us,
on behalf of the petitioners, and respondents I and 2, it is necessary to give, in chronological order, the events, leading up to the
filing of these writ petitions.
On August 22, 1956, the second
respondent issued a Circular, Annexure 1, about having decided
to hold a test, for drawing up a panel of staff considered suitable
for promotion, to the Grade of Assistants.
The categories of
staff, eligible to appear for the test, as well as the subject$ for the
written tests, were mentioned, therein. There is no controversy
legal and did not contravene any provisions of the Constitution,
examination, and they also successfully got through the interview.
The second respondent simultaneously took a decision that posts
of Upper Division Clerks, which were introduced at about that
time, may also be filled up, on the basis of the results of the test,
which was, no doubt, primarily held for the purpose of filling
the posts of Assistants. The criterion for promoting Lower Division Clerks, to the posts of Upper Division Clerks and Assistants,
was, that persons, who obtained 50% or more of the marks, were
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B. s. VADERA v. UNION (Vaidialingam, J.)
579
to be promoted, as Officiating Assistants, and those w!::; obtained
between 40 and 49%, were to be promoted, as Officiating Upper
Division Clerks. Their inter se seniority was also to be, in accordance with their inter se seniority, as Lower Division Clerks. As
both the petitioners had passed the test, they were promoted, as
Officiating Upper Division Clerks, with effect from February 2,
1957. The order, appointing the petitioners, as Officiating Upper
Divbion Clerks, is Annexure 3, dated February 1, 1957. It is
the claim of the petitioners that they were promoted, on a regular
basis, as Upper Division Clerks, and that a panel of Assistants
and Upper Division Clerks, was formed, by the 2nd respondent.
Mennwhile, the framing of a scheme for the Rauway Board
Secretariat Clerical Service, was in the offing, and such a scheme,
was ultimately issued, under Annexure 4, on February 5, 1957.
The 2nd respondent has filed a statement, regarding the circumstances, under which the Scheme was framed, in consultation with
the Union Public Service Commission, and the Ministry of Home
Affairs. The scheme was for filling the posts of Lower Division
Clerks, Upper Division Clerks and such of the Upper Division
Clerks who can be promoted as Assistants.
Paragraph 14, subparas (1) and (3), dealt with the filling up of posts of Grade I,
Upper Division Clerks, of the Clerical Service.
That provided
for 'the different manner in which the permanent vacancies, and
temporary vacancies, were to be filled up,
in
the
authorized
strength of Grade I of the Service. Under paragraph 14, sub-para 1
(b), promotion to the cadre of Upper Division Clerks, can only be
made of permanent Lower Division Clerks, for permanent vacancies, and, under paragraph 14. sub-para (3), only permanent
Lower Division Clerks. and temporary Lower Division Clerks,
with more than three years' standing, and graduate Lower Division Clerks, could be promoted to Temporary vacancies in the
Cadre.
But, in view of the non-availability of permanent Lower
Division Clerks, the Scheme could not be implemented to fill
permanent vacancies, immediately.
Similarly, under para 16 of the Scheme, permanent Upper
Division Clerks, with three years' service in the grade, or in a
higher grade, were eligible for promotion, as Assistants.
But,
here again, no ~permanent Upper Division Clerks were available.
at that time.
As certain vacancies existed, in the posts of
Assistants, and required to be filled up, as a purely short-term
measure, it was decided, by the 2nd respondent, that some of the
posts of Assistants, may be temporarily filled up, by promotion
from Upper Division Clerks. · In view of this decision, the petitioners were promoted, as Assistants, on an ad hoc basis with
effect from February 3, 1958, under Annexure 5, dated
February l, 1958. That order clearly shows that the petitioners,
including others, who were officiating as Upper Division Clerks,
580
SUPREME COURT REPORTS
[1968] 3 SC.R.
were promoted to officiate, as Assistants, on a purely short-tenn
arrangt:;:!~nt. It was further stated, in paragraph 5, of this
Annexure, that the promotion is a purely short-term arrangement,
till qualified Assistants become available, and that the promotion,
under that order, will not confer, on the promotees, any claim
for retention, as Assistants, as a long-term measure.
It may also be stated, at this stage, that it is the claim, of
bot~ the peti~ioners, that the)'. have been promoted, on a regular
basis, as Assistants, under this Order, and that, in consequence,
the order of reversion, passed on June 16, ·1967, is illegal. That
contention is clearly belied, by the express terms of the Order,
Annexure 5, promoting these petitioners.
Later on, in or about 1959. as there were vacancies in the
grade of Upper Division Clerks; a panel was drawn, by the 2nd
respondent, called 'Interim Provision Panel', to fill in temporary
vacancies, and certain Lower Division Clerks were considered
suitable, for promotion. as Upper Division Clerks, again, on a
purely short-term arrangement. That is Exhibit 6, dated June 24,
1959.
On March 3-0, 1963, the,original Service Scheme, Annexure 4,
was amended in certain material particulars, by Apnexure 7.
Paragraph 14, of the original Scheme, was modified, by providing
a different method of J'lromotion, to Grade I (Upper Division
Clerks).
Under this modified scheme, the distinction between
the manner of recruitment, in respect of pennanent vacancies, and
temporary vacancies, which existed in the original scheme, was
done away with.
The modified scheme provided
a uniform
method of promotion, to both permanent vacancies, in 'the autho·
rized strength of Grade I Service, as well as temporary vacancies.
Broadly, the method of appointment,
to this
Grade,
was :
(a) 80%, by promotion of pennanent Lower Divi$ion Clerks and
temporary Lower Division Clerks, with more than three years of
service in the Grade, on the basis of seniority, subject to rejection
of the unfit; (b) 20%, on the basis of competitive examination,
limited to the Lower Division Clerks.
In 1965, a final panel was drawn up, according to the Railway Board, on the basis of the Scheme, Annexure 4, as modified
by Annexure 7. That panel consisted of Lower Division Clerks,
fit for promotion to the grade of Upper Division Clerks.
T~e
Lower Division Clerks were arranged, strictly in accordance with
their seniority position, in that Grade.
The
final
panel
is
Annexure 14, dated March 30, 1965; and, according to the pell·
tioner in Writ Petition No. 96 of 1967, he has lost 148 places,
and according to the petitioner, in the connected writ petition.
he has lost 110 places, in seniority.
Both the petitioners are
aggrieved about the ranking, given to them, in this list.
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On June 9, 1967, under .Annexure 18, the Railway Board had
reverted, to the grade of Assistants, with immediate effect, the
Ofliciating Section Officers, shown therein. In consequence, under
Annexure 16, dated June 16, 1967, which is one of the orders,
under attack, in boJh these petitions, the Railway Board reverted,
as Upper Division Clerks, several officiating Assistants, including
B the two petitioners, herein, with effect from June 9,
1967. As
mentioned earlier, the main grievance of the petitioners is, that
they having been promoted, as Assistants, as early as February 3,
1958, and which posts they had been holding till 1967, their
reversion, as Upper Division Clerks, under Annexure 16, is illegal
and void.
C
We have referred to the relevant orders, promoting these two·
petitioners, in the first instance, as Upper Division Clerks and,
later, as Assistants. The order promoting the petitioners, as
Assistants, Annexure 5, dated February 1, 1958, has been
referred to, already, and that order clearly shows that the promotion was only a short-term, temporary arrangement, on ari offiD ciating basis, and that no claim could be based upon that
promotion. No doubt, the order, Annexure 3, dated February 1,
1957, promoting the petitioners, as Upper_ Division Clerks, may,
on a superficial reading of that order, give the impression that
the promotion, is on a permanent basis, and from which further
promotion is to be made, to the Grade of Assistants, but, in view
of what is stated, on behalf of the Railway Board, the promotion,
E under Annexure 3, is again, a temporary promotion, because the
Scheme, Annexure 4, was to c_ome into force, within a very short
time, and that the promotions were made, only on a provisional
basis. The regular promotions, or appointments, to Upper Division Grade, which is styled as Grade I, were to be made, as envisaged under the Scheme, Annexure 4, dated February 5, 1957.
F Both the petitioners have, categorically, averred in their petitions.
that Annexure 4, as modified by Annexure 7, has retrospective
effect, from December 1, 1954.
The secqnd respondent has also given various particulars,
regarding as' to how the framing of the Scheme originated, as
~vel\ as the different stages, it had to pass through.
In fact, it
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1s also seen, from the documents filed, on behalf of the respondent, that there was a suggestion, by either the Home Ministry,
or the Union Public Service Commission, that the Scheme was
to come into effect, on the date it was promulgated; but that was
met, by the Board, by replying that an assurance had been given
to the staff, to whom the Scheme had been circulated, iliat the
H
crucial date, for initial constitution of the Scheme, was to be
fixed as December 1, 1954. In fact, a reading of Annexures 4
and 7, also clearly shows that the initial constitution of the
Service, is to be from December 1, 1954, and it is, on that basis,
SUPREME COURT.REPORTS
[1968] 3 S.C.R.
that appointments, or promotions, are ~o be made. Once it is held
that the initial constitution of the Service, is from the date, mentioned above, on the basis of Annexure ,4, read with Annexure 7,
it follows that the promotion of the petitioners, as Upper Division
Clerks, under Annexure 3, was not under the Scheme, but really
-on a provisional, or temporary basis.
Notwithstanding the fact
that the grievance of both the petitioners is that ranking has not
been given to them properly, in Exhibit 16, we are satisfied that
it is in accordance with the principles, under the Scheme
Annexure 4, as modified by Annexure 7.
Therefore, we are not
inclined to accept the contention of the petitioners
that there
has been a promotion, on a permanent basis, in the first instance,
as Upper Division Clerks and, later, as Assistants, which cannot
be disturbed, by any orders that may be passed, by the 2nd respondent. We have already indicated that the 'regular promotions
and appointments have to be made, under the Scheme, with effect
from December 1, 1954.
In particular, a contention has been raised, on behalf of the
petitioner in Writ Petition No. 165 of 1967, that he stands on
a different footing, in that he is a permanent Lower Division Clerk
and, therefore, his promotion, as an Assistant, must, again, have
been, on a permanent basis. There is no substance, in this contention, in view of the statement, made by the 2nd respondent,
that this petitioner was confirmed, as a Lower Division Clerk, in
1966 with effect from Sep.tember 14, 1957, in which case it
follows that he will not be eligible, for promotion, as an Upper
Division Clerk, under the Scheme. The petitioner, in Writ Petition No. 96 of 1967, as pointed out, by the 2nd respondent,
continues, even now, as a temporary Lower Division Clerk, and
he has not been made permanent, and, therefore, he-cannot certainly be considered eligible, for promotion, under the Scheme.
A further contention has been taken, on behalf ·of the petitioner in Writ Petition No. 165 of 1967, that the Scheltle, as well
as the various orders, passed by the 2nd respondent, violate the
provisions of Arts. 14 and 16, of the Constitution, Inasmuch as
he has been deprived of the benefits of Chapters II and III, of
the Indian Railway Establishment Manual. Once it is held that
the said petitioner does not satisfy the requirement of the SClieme,
there is no question of any discrimination, under Art. 14, or
violation of Art. 16, arising for consideration at all. Therefore,
both the petitioners, will have to fail, on merits.
A more serious contention has, however, been taken, by the
petitioners, that the second respondent has no power, in law, to
frame, either the Scheme, Annexure 4, or the modified Scheme,
Annexure 7 so as· to have retrospective effect, from December 1,
1954. Tho'ugh both the petitioners have raised this con·tention
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583
in the writ petitions, Mr. Chatterjee, learned counsel for the petitioner in Writ Petition No. 165 of 1967, was not prepared to
take up that extreme position, because, his attempt, was to show
that his client satisfies the requirement of the qualifications, laid
down for promotion, in Annexure 4, read with Annexure 7. We
have already negatived that contention; but this legal contention
has been persisted, before us, by Mr. K. L. Mehta, counsel appearing for the petitioner, in Writ Petition No 96 of 1967.
Mr. Mehta, by reference to the provisions of the Indian Railway Board Act, 1905 (Act IV of 1905), and to the decision of
this Court in State v. Padmanabhacharya('), urged that the 2nd
respondent had no power to frame a rule, having retrospective
.effect. In our opimon, this contention cannot be accepted.
Act IV of 1905 is an Act to provide for investing the Railway
Board with certain pcwers of functions, unde~ the Indian Railways Act, 1890. The preamble to that Act shows that a Railway
Board has been constituted, for controlling the administration of
Railways in India. Section 2 provides that the Central Govern- ·
ment, may, by notification, in the Official Gazette, invest the
Railway Board, either absolutely, or subject to conditions, with
powers, or functions, stated therein.
That statute, does not,. in
any way, advance the petitioners' contention. As we shall presently. show, the decision of this Court, referred to above, does
not also support the pftitioners.
There is no controversy that the Indian ·Railway Establishment Code has been issued, by the President, in exercise of the
powers, vested in him, by the proviso to Art. 309, of the C1>nsti·
tution. Only two rules require to be. noted, and they are rr. 157
and 158, occurring in Chapter I, under the sub-heading 'Power
to frame rules'.
They are as follows :
·
"157. The Railway Board have full powers to make
rules of a general application to non-gazetted railway
servants under their control.
158. The General Managers of Indian Railways
have full .powers to make rules with regard to nongazetted railway serv,ants under their control, provid~d
they are not inconsistent with any rules made by the
President or the ·Railway Board."
We are not concerned, really in this matter, with r. 158, because
the. Scheme, Annexurcs 4 and 7, in particular, and the various
orders, have been passed by the 2nd respondent, the Railway
Board. The Railway Board, as will be seen from r. 157, have full
powers to make rules of general application, to non-gazetted railway· servants under their control.
The question is whether the
(I) '[t 966] I S.C.R. 994.
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SUPREME COURT Jμ!PORTS
[1968] 3 S.C.R .
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2nd respondent, has, while acting under r. 157, power to make
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a rule (in this case, the Scheme), having effect from an anterior
-Oate.
The matter must be considered, in the light of the provisions
.of Art. 309, of the Constitution. That Article provides :
"309. Subject to the provisions o' this Constitution,
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Acts of the appropriate Legislature may regulate the
recruitment, and conditions of service of persons
appointed, to public services and posts in connection
with the affairs of the Union or of any State :
Provided that it shall be competent for the President
or such person as he may direct in the case of services
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and posts in connection with the affairs of the Union,
and for the Governor of a State or such person as he
may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating
the recruitment, and the conditions of service of persons
appointed, to such services and posts until provision in
that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so
made shall have effect subject to the provisions of any
such Act."
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We may emphasize the words 'and any rules so made shall have
effect subject to the provisions of any such Act', which must
receive their due weight.
To that aspect, we. shall come, preE
sently.
We have already pointed out, that Annexure 4 was issued on
February 5, 1957, and Annexure 7, on March 30, 1963, and
that the initial constitution of the Service was to be from December 1, 1954, and it is, on that basis, that the promotions, or
appointments, to the Service, are to be made. In this case, there
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is no Act of the appropriate Legislature, regulating the recruitment and conditions of service, under the 2nd respondent and,
therefore, the main part of Art. 309 is not attracted. But, under
the Proviso therein, the President has got full power to make
rules, regulating the recruitment, and conditions of service, of
. .
persons, under the 2nd respondent. Further, under the Proviso,
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such person, as may be directed by the President, can also make
rules, regulating th.e recruitment and conditions of service" of
persons, under the 2nd respondent.
The rules so made, either
by the President, or such person, as .he may direct, will have
currency, until provision, in that behalf, is made by or under
an Act, of 1he appropriate Legislature, under Art. 309.
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It is also significant to note that the proviso to Art. 309,
clearly lays down that 'any rules so made shall have effect, subject
to the provisions of any such Act'. The clear and unambiguous
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B. s. VADERA v. UNION (Vaidialingam, J.)
585
expressions, used in the Constitution, must be given their full
and unrestricted meaning, unless hedged-in, by any limitations.
The rules, which have to be 'subject to the provi.sions of the Constitution', shall have effect, 'subject to the provisions of any such
Act'. That is, if the appropriate Legislature has passed an Act,
under Art. 309, the rules, framed under the Proviso, will have
effect, subject to that Act; but, in the absence of any Act, of the
appropriate Legislature, on the matter, in our opinion, the rules,
made by the President, or by such person as he may direct, are
to have full effect, both prospectively and, retrospectively. Apart
from the limitations, pointed out above, there is none other, imposed by the proviso to Art. 309, regarding the ambit of the
operation of such rules.
In other words, the rules, unless they
can be impeached on grounds such as breach of Part III, or any
other Constitutional provision, must be enforced, if made by the
appropriate authority.
In the case before us, the Indian Railway Establishment Code
has been issued, by the President, in the exercise of his powers,
under 1he proviso to Art. 309. Under Rule 157, the President
has directed the Railway Board, to make rules, of general application to non-gazetted railway servants, under their control. The
rules, which are embodied in the Schemes, framed by the Board,
under Annexures 4 and 7, are within the powers, conferred under
r. 157; and, in the absence of any Act, having been passed by
the 'appropriate' Legislature, on the said matter, the rules, framed
by the Railway Board, will have full effect and, if so indicated,
retrospectively also.
Such indication, about retrospective effect,
as has already been pointed out by us, is clearly there, in the impugned provisions.
The decision of this Court in State v. Padmanabhacharya('),
does not assist the petitioners. The rule, that came up, for consideration, has been referred to, at p. 999, of the Reports, in the
judgment of Wanchoo, J., (as he then was); and the Court specifically says that the rule, referred to by it, cannot be made, under
the proviso to Art. 309, of the Constitution. It is further stated
that the notification, referred to, cannot be said to be a rule, regulating the recruitment and conditions of service of persons appointed to the services and posts, in connection with the affairs
of the State. This Court further! observes that the effect of the notification, or the rule, that it had to consider, was to select certain
Government servants, who had been illegally required to retire, and
to say that even if the retirement had been illegal, that retirement
should be deemed to have been properly and lawfully made.
Finally. the Court said, that such a declaration, made by the
Governor. cannot, in any sense, be regarded as a rule, made under
(I) 11966] I S.C.R. 994.]
586
SUPREME COURT REPORTS
[1968] 3 S.CR.
the proviso to Art. 309. Having held that the rule, which was
before it, was not one made under the proviso to Art. 309, the
Court further observed, in that case, that it was not necessary to
decide, whether a rule, governing conditions of service, of persons
appointed in connection with the affairs of the State, can be made
retrospectively, under the proviso to Art. 309. This decision, in
our opinion, can be distinguished, on two grounds : (i) that the
rule, in question, construed by the Court, was held to be one, not
coniing within the purview of the proviso to Art. 309; and (ii) the
question, as to whether a rule, under the proviso to Art. 309,
can be framed, to have retrospective effect, has been left open. •.
In this connection, we may refer· to two decisions, of the
Mysore High Court, and one of the Allahabad High Court. The
Mysore High Court, in the decisions, Govindara;u v. State of
Mysore(') and Govindappa
v.
I. G. of Registration('), has
taken the view. that it is not open to the Governor, under the proviso to Art. 309, to frame a rule, having retrospective effect. We
may state that the decision in Govindara;u's Case(i)
came up,
before this Court, on appeal, in Nagara;an v. Mysore('). But
this Court, in Nagara;an's Case('), had no occasion to express
any opinion on the question as to whether the Governor, under
the proviso to Art. 309, could frame a rule, having retrospective
operation, as it took the view that the relevant rules had not been
made under Art. 309.
·
A Full Bench of the Allahabad High Court, on the other hand,
in Ram Autar v. State of U.P.(') has taken a view, contrary to
the one, expressed by the Mysore High Court. We are of opinion
that the latter, represents the correct view. But, even the Allahabad High Court has not given due importance to the mandatory
words, used in the concluding part of the proviso to Art. 309,
that the rules made, by the authority mentioned therein, 'shall
have effect, subject to the provisions of any such Act'.
This
aspect has been emphasized by us, in the earlier part of this judgment.
To conclude, on this aspect, we are satisfied that the Scheme,
Annexure 4, as modified by Annexure 7, framed by the 2nd respondent, Railway Board, such as it is, must have effect, as it
does not suffer from any defect in its making and does not offend
against the Constitution.
In the result, both the writ petitions are dismissed; but, in the
circumstances, parties will bear their own costs.
G.C.
(I) A.I.R. 1963 Mys. 265.
(2) A.LR. 1965 Mys, 25.
Petitions dismissed.
(ll (19661 3 S.C.R. 682.
(4) A.l.R. 1962 All. 328, F.B.
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