# SHAM SLJ.'il)ER v. U~ION OF INDIA & ORS

- **Citation:** [1969] 1 S.C.R. 312
- **Court:** Supreme Court of India
- **Decided:** 1969
- **Case number:** Writ Petition No. 31 of 1967
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sham-slj-il-er-v-u-ion-of-india-ors-4400
- **Pages:** 5

## Headnote

SHAM SLJ.'il)ER
v.
U~ION OF INDIA & ORS.
July 15, I %8
[R. S. llACllAW.\! A'<ll A. N. GROl·ER . .IJ.]
Co11s1i1u1ion of /11dia An\·. JJ 011d 1(1
-H.('\'t·11·otio11 .\11f)cr1·iw1rs ()'>Ht
iir Raifa,-ay Pc11<1/ druw11 un ')11 1/1c hcl\t' uJ < n ra111
11p-.:r11din~ 01 po.10
A.'11ihtiay /Jo(lrd J/(ilds irr1•gu/ar and dt'lcft'S---V"lidiry --if rio/01i1·1. of Ar:s.
1-l (/fZd J 6.
ll1c <..iL'ncr11\
~l;111Jgcr, Nor1hcrn Haihvay puhli-.hc<l a p;incl tif 38
cnquiry-('11111-rc .. ~rv:niun clerk-. for sL'h:ction to 1hc po"t" of rcscrv.:ttion
:-._upcr ... isors.
·1 hi~ p;1r11.:I v.·a" published after ct1nsidcr!11).! 152 person ... i.e ..
lour time:-. the n11n1hl.'r -.1f
cxistin~ ;ind ;1nticip;11cd vacancies p]u.., 25'1(,
thcrcQf for unforc.;;ccn \J.Cancic'>.
Thl' an1icip;1tcd vac;tncics included 11
,·ac~1nclc" on ;1ccnunt of pron1nti<'ll<> due 10 the upgradin.~ of I J P'hh in
th·.· next hiμ:hL'r J!radc.
Rcpre<>cntatio1h \~·ere m;alL' ag<iill'-t the con'ililution
of the p~u1cl; and the Rait\\·ay Hoard <IL'cidcd !hat thi...: panel should consbt
of 2-! pcr:-.on.., onlv to co,·cr IX upgraded v;iC';1ncics, 1 vacancy nn ;1ccount
of rctirL'1ncnt and 5 v;1cancies rcpf'.:sentinμ 25 r;;; for contin~cncics anJ tht.·
field of selection ..,hould be rcsirictc<l to ~x4-96 and not 152 pcrs.ons.
So, the panel ;.ilready puhlishcd was ord·.::rcd to he operated only in res··
pcct of the fir..:.t 24 person" and the nan1cs of th!.! rcn1;iining pc'r.;;on' he
delctt.:d.
1\ccordingly,
rh~ Gcncr;tl
~1ana~cr hy an order implcn1cntcd
the dcci<>ion.
·rhe petitioner. \\'hose
nanll~. \v;1.., ;1t No. 33 in the panel.
puhlished earlier filed a \\.Til
p-~tirion in this <.:ourt, challcnμin).! the order."
;is violating hi'\ t'u111.L1mcnt;1l right ....
HF.LO :-·rh~ petirion rnust be di<;1nis.;;cd.
(i) Under 1hc geni.:·r;1l direction issucd h\' the Raih\,l\" Ho;ird in on~ of
its h:tter ..... the General i\fana!;?cr \\'ilS competent 10 ;1nll:nd 1lY: p;inl'I
\\it~
the ;1pprov;il of the Railv.-ay Bo.ird [31 :5 F-Gl
Sri\·asra1·a v. !V.r:. Rc1i/11·ay, [19661
~ S.C.R. hi. 6..i. 65. follo\-...ed.
(ii l ·rhe, Raih-.·~l\" BoarJ held 1hat until the
si.:l·~ctilln ,.,.·as
n1aJc. it
co1dd not he anticip;tlcd that 1 I pcr.'ioni; \\'Ould he promoted crcatin.I! 1 t
con..,cquential vacancies in that grade dui.: to pron1otions lo the hi~r
g-radc.
Actin).! upon 1his viC\\' the R;iihvay Board decided 1ha1 the anticip;1tcd v;icancics v;ould he Jc<;s and rhc panel should he ;1mcndcd accord.
ingly and 5hould he opcr11tcd in rcc;pcet of !he first 24 person ... only. l"hc
decision could not he <;aid to he pcrv..:rsc nor it could he qu~shcd or !'>Cl
aside. 1115 A-316 BJ
(iii) :\ll the 24 persons retained in the panel \\·cr~ senior to the petitioner.
All of them v.·ould have heen selected and included in the p:l.Ilel,
even if 96 persons \vcrc originally called for sclcciion.
·rherc \-...·as no
foro:! in 1hc contention that the retention of the first 24 persons in th-.·
po1ncl ''ithout hnlding a fresh selection \i.'a" discriminatory or \\':1" viola·
tive of .A.rt'. 14 and 16 of the fo11.,;1itlltion (31(,...('}
(iv) It j, .,;aid that panch of ('.J.1'>' 111
~election p;.>s\c; of st;1tion maste.:·.., on the Northerrt }{;1iJ1,1,·av and all cla.;;s 111 selection po.;;t..; on other
Raihvay<> had been dr;l\vn uP on the footing that anticipated vacant;ics
in the ..-election c.rade include v:ic:-incic.;; on promotjon.c; due to upgradtn~
of Pl}\!" in thi.: ~lc'>t higher gr;uJe ;ind th<ll the Railway Board had not
A
B
. .
c
D
E
F
G
H
•
SHAM SUNDER v. UNION (Bachawat, J.)
313
A
issued any <Erection for amendment of those panels.
But those panels
relate to separate. classes of employees. and have no bearing on the Question of equal opportunity in the matter of promotion of enquiry-cun1reservation clerks on the N.orthern Railway [316 D-F]
B
All Indian Station Masters' and .l.ssistant Station Masters' Associalion
v. Genera/ Manager Central Railways, [1960] 2
S.C.R.
311,
319,
followed.
ORIGINAL JURISDICTION: Writ Petitio

## Text

SHAM SLJ.'il)ER
v.
U~ION OF INDIA & ORS.
July 15, I %8
[R. S. llACllAW.\! A'<ll A. N. GROl·ER . .IJ.]
Co11s1i1u1ion of /11dia An\·. JJ 011d 1(1
-H.('\'t·11·otio11 .\11f)cr1·iw1rs ()'>Ht
iir Raifa,-ay Pc11<1/ druw11 un ')11 1/1c hcl\t' uJ < n ra111
11p-.:r11din~ 01 po.10
A.'11ihtiay /Jo(lrd J/(ilds irr1•gu/ar and dt'lcft'S---V"lidiry --if rio/01i1·1. of Ar:s.
1-l (/fZd J 6.
ll1c <..iL'ncr11\
~l;111Jgcr, Nor1hcrn Haihvay puhli-.hc<l a p;incl tif 38
cnquiry-('11111-rc .. ~rv:niun clerk-. for sL'h:ction to 1hc po"t" of rcscrv.:ttion
:-._upcr ... isors.
·1 hi~ p;1r11.:I v.·a" published after ct1nsidcr!11).! 152 person ... i.e ..
lour time:-. the n11n1hl.'r -.1f
cxistin~ ;ind ;1nticip;11cd vacancies p]u.., 25'1(,
thcrcQf for unforc.;;ccn \J.Cancic'>.
Thl' an1icip;1tcd vac;tncics included 11
,·ac~1nclc" on ;1ccnunt of pron1nti<'ll<> due 10 the upgradin.~ of I J P'hh in
th·.· next hiμ:hL'r J!radc.
Rcpre<>cntatio1h \~·ere m;alL' ag<iill'-t the con'ililution
of the p~u1cl; and the Rait\\·ay Hoard <IL'cidcd !hat thi...: panel should consbt
of 2-! pcr:-.on.., onlv to co,·cr IX upgraded v;iC';1ncics, 1 vacancy nn ;1ccount
of rctirL'1ncnt and 5 v;1cancies rcpf'.:sentinμ 25 r;;; for contin~cncics anJ tht.·
field of selection ..,hould be rcsirictc<l to ~x4-96 and not 152 pcrs.ons.
So, the panel ;.ilready puhlishcd was ord·.::rcd to he operated only in res··
pcct of the fir..:.t 24 person" and the nan1cs of th!.! rcn1;iining pc'r.;;on' he
delctt.:d.
1\ccordingly,
rh~ Gcncr;tl
~1ana~cr hy an order implcn1cntcd
the dcci<>ion.
·rhe petitioner. \\'hose
nanll~. \v;1.., ;1t No. 33 in the panel.
puhlished earlier filed a \\.Til
p-~tirion in this <.:ourt, challcnμin).! the order."
;is violating hi'\ t'u111.L1mcnt;1l right ....
HF.LO :-·rh~ petirion rnust be di<;1nis.;;cd.
(i) Under 1hc geni.:·r;1l direction issucd h\' the Raih\,l\" Ho;ird in on~ of
its h:tter ..... the General i\fana!;?cr \\'ilS competent 10 ;1nll:nd 1lY: p;inl'I
\\it~
the ;1pprov;il of the Railv.-ay Bo.ird [31 :5 F-Gl
Sri\·asra1·a v. !V.r:. Rc1i/11·ay, [19661
~ S.C.R. hi. 6..i. 65. follo\-...ed.
(ii l ·rhe, Raih-.·~l\" BoarJ held 1hat until the
si.:l·~ctilln ,.,.·as
n1aJc. it
co1dd not he anticip;tlcd that 1 I pcr.'ioni; \\'Ould he promoted crcatin.I! 1 t
con..,cquential vacancies in that grade dui.: to pron1otions lo the hi~r
g-radc.
Actin).! upon 1his viC\\' the R;iihvay Board decided 1ha1 the anticip;1tcd v;icancics v;ould he Jc<;s and rhc panel should he ;1mcndcd accord.
ingly and 5hould he opcr11tcd in rcc;pcet of !he first 24 person ... only. l"hc
decision could not he <;aid to he pcrv..:rsc nor it could he qu~shcd or !'>Cl
aside. 1115 A-316 BJ
(iii) :\ll the 24 persons retained in the panel \\·cr~ senior to the petitioner.
All of them v.·ould have heen selected and included in the p:l.Ilel,
even if 96 persons \vcrc originally called for sclcciion.
·rherc \-...·as no
foro:! in 1hc contention that the retention of the first 24 persons in th-.·
po1ncl ''ithout hnlding a fresh selection \i.'a" discriminatory or \\':1" viola·
tive of .A.rt'. 14 and 16 of the fo11.,;1itlltion (31(,...('}
(iv) It j, .,;aid that panch of ('.J.1'>' 111
~election p;.>s\c; of st;1tion maste.:·.., on the Northerrt }{;1iJ1,1,·av and all cla.;;s 111 selection po.;;t..; on other
Raihvay<> had been dr;l\vn uP on the footing that anticipated vacant;ics
in the ..-election c.rade include v:ic:-incic.;; on promotjon.c; due to upgradtn~
of Pl}\!" in thi.: ~lc'>t higher gr;uJe ;ind th<ll the Railway Board had not
A
B
. .
c
D
E
F
G
H
•
SHAM SUNDER v. UNION (Bachawat, J.)
313
A
issued any <Erection for amendment of those panels.
But those panels
relate to separate. classes of employees. and have no bearing on the Question of equal opportunity in the matter of promotion of enquiry-cun1reservation clerks on the N.orthern Railway [316 D-F]
B
All Indian Station Masters' and .l.ssistant Station Masters' Associalion
v. Genera/ Manager Central Railways, [1960] 2
S.C.R.
311,
319,
followed.
ORIGINAL JURISDICTION: Writ Petition No. 31 of 1967.
Petition under Art. 32 of the Constitution of India for the
enforcement of fundamental rights.
Basudev Prasad and M. I. Khowaja, for the petitioner.
C
Ni'ren De, Solicitor-General, V. A. Seyid Muhammad, R. N.
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Sachthey and S. P. Nayar, for the respondents.
The Judgment of the Court was delivered by
Bachawat, J.
The petitioner is employed on the Northern
Railway as an enquiry and reservation clerk in the grade of Rs.
150-240. In Janu,ary 1965
several posts of enquiry-cumreservation clerks were upgraded, 11 posts being raised to the
grade of Rs. 370-475, 18 posts to the grade of Rs. 250-380
and 26 posts in the grade of Rs. 205-280. As a result of the
upgrading the revised cadre of enquiry-cum-reservation clerks on
the Northern Railway consisted of the following non-gazetied
posts
-
Category
No. of Posts
Scale of pay
Classification
Enquiry cun1 rc<.;crvation
202
clerk
150-240(AS)
Selection
Assist. reservation supervrsor
32
205-280(AS)
Non-selection
Reservation supervisor
23
250-JSO(ASJ
Selection
Chief
Reservation Inspcctor
11
370-475(AS)
Selection
The promotion of non-gazetted railway servants is governed
by Chapter II of the Indian Railway Establishment Manual and
the rules made by the Railway Board from time to time under
r. I 57 of the Railway Establishment Code.
Promotion to selection posts has to be made from a panel of selected employees
prepared by a selection board and approved by the competent
authority.
For making the selection, eligible staff up to
four
times the number of anticipated vacancies are called for written
and viva voce tests under r. 9 ( d) of Chapter II. By letter No.
E(NG) 62 PM 1/91/dated July 10, 1964 the Raiiway Board
dir.ected that "the number. of persons to be placed on a panel
should be equal to the existing and anticipated vacancies, plus
25% thereof for unforeseen vacancies.
Anticipated vacancies
314
st;PRnlE COURT REPORTS
[ 1969) I S.C.R.
connote only those which arc likely to arise due to normal wastA
age during the currency of the panel. The currency of lhe panel
for non-gazetted sclecLon posts should be two years from the date
of the approval of the same by the competent authority or till
exhausted whichever is carli~r."
On Januacy 22, 1965 under orders of the General !\1anagcrNorthern Railway 152 enquiry-cum-reservation clerks were asked
to appear in tests for selection to the posts of reservation supervisors in the grade of Rs. 250-380. The petitioner who ranked
113 in order of seniority was allowed to appear in the tests. As
a result of the oral and written tests a panel of 38 persons was
drawn up on July 7, 1965, and was published in the Railway
Gazette on August I, 1965.
The petitioner was one of the selected candidates and his name was shown as No. 33 in the panel.
A note at the foot of the panel intimated to the staff concerned
that "the mere fact that their names are on the panel will not confer upon them any right for permanent absorption as a reservation supervisor." In calling 152 persons for th.z selection,
the
General Manager, Northern Railway proceeded upon the footing
that 38 persons had to be placed on the panel aud 4 times 38,
that is to say 152 persons should be asked to appear in the tests.
According to him there were 18 immediate vacancies in the posts
of reservation supervisors due to upgrading, I anticipated vacancy
due to retirement and 11 anticipated vacancies on account
of
promotion due to upgrading of 11 posts in the next higher grade
of chief reservation inspector. The figure 38 is the total of 18
plus I plus 11 plus 25% thereof.
The view that
anticipated
vacancies inciudcd 11 vacancies on account of promotion due to
the upgrading of 11 posts in the next higher grade was supported
by the prevailing practice in the Northern and other Railways.
The Railway Board received several complaints and
representations regarding the constitution of the panel.
By an order
dated September 16, 1965 (anncxure H) the Railway
Board
decided that the panel of 38 persons was irregularly drawn
up
and that there should be a panel of 24 persons only for promotion
to the grade of Rs. 250-380 to cover 18 upgraded vacancies, 1
vacancy on account of retirement and 5 vac~ncics rrpres~nting
25% for contingencies and the field of selection should b.c restricted to 24-4-96 and not 152 persons.
Accordingly the panel
already published should be operated only in respect of !he first
24 persons and that the names of the remaining 14 persons should
be deleted forthwith. The Board directed that action should be
taken to form a panel for filling up 11 upgraded posts in the grade
of Rs. 370-475 and thereafter a further selection should he
held for filling up the resultant vacancies in the grade of Rs. 250
-380. By all order dated November 3, 1965 (anncxure K)
the General Manager, Northern Railway implemented the decision
B
c
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G
H
..
A
B
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E
F
G
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SHAM SUNDER v. UNION (Bachawat, J.)
315
and direct<>.,d that the panel fanned on July 7, 1965 was to be
operated upto the first 24 persons only and that the names of the
remaining 14 persons including the petitioner should be treated
as deleted from the panel. By another order dated October 4,
1966 (annexure N) the General Manager,
Northern Railway
decided to hold a selection for filling up the resultant vacancies
in the grade of Rs. 250-380. Having regard to the number
resultant vacancies, the peti'ioner is not eligible for being called
for selection under Annexure "N". In this writ petition the petitioner alleges that the orders under Annexures H, K and N have
violated his fundamental rights under Articles 14 and 16 of the
Constitution, and he asks for the issue of appropriate writs restraining the respondents from enforcing those orders and directing them to make promotions to posts in the grade of Rs. 250380 in accordance with the panel published in the Gazette on
August 1, 1965.
Counsel· for the petitioner contended that the Railway Board
or the General Manager had no power to amend the panel published on August 1, 1965. We are unable to.accept this contention.
The point was not taken in the petition.
When the contention was raised at the hearing of the petition, the learned Solicitor-General drew our attention to the letter of the
Railway
Board No. E/52/PM 2-34 dated August 4, 1953. On the subject of cancellation or amendment of approved panels the Railway Board directed by this letter "that the panels once approved
should not be cancelled or amended without reference to the
authority next above th.e one that' approved the panel."
There
is no controversy that the Railway Board had power to issue this
general direction under r. 157 of the Railway Establishment Code.
In the present case the General Manager, Northern Railway was
the authority approving the panel. The Railway Board was the
authority next above him.
Under the general direction issued
by the Board in its letter dated August 4,
1953, the General
Manager was competent to amend the panel with the approval of
the Railway Board. In Srivastava v. N. E. Railway(') the Court
held that an amendment of an approved panel in accordance with
a similar rnle was in order.
The point in controversy was whether there were 11 more
anticipated vacancies in the grade of Rs. 205-380 on account
of the upgrading of 11 posts in the next higher grade of Rs 375480.
Now the selection for the 11 new posts in the grade of
Rs. 375-480 had to be made from 56 eligible members of the
staff comprising 23 clerks in the grade of Rs. 205-380 and 33
clerks in lower grades. The Railway Board held that until the
selection was made, it could not be anticipated that 11 clerks in
(1) [196613 S.C.R. 61, 64, 65.
316
SUPREME COl:R'f REPORTS
p 969 J I S.C.R.
the grade o( Rs. 205-380 would be promoted and that there
would be 11 conse{Juential vacancies in that grade due to promotions to the hi~her grade.
Acting upon this view the Railway
Board decided that the anticipated vacancies in the grade of
Rs. 205-380 due to normal wastage would be 19 and not 30
and that the panel should be amended accordingly and should
be operated in respect o' the first 24 persons only.
We are unable to say that the decision is perverse or that it should be quashed and set aside.
All the 24 enquiry-c1011-rcservation clerks
retained
in
the
panel were senior to the petitioner.
The juniormost
of
them
ranked 77 in order of seniority.
All of them would have hecn
selected aml included in the panel. even if % persons were originally called for selection.
There is no force in the contention
that the retention of the first 24 persons in th.z panel without holding a fresh selec'.ion is discriminatory or is violative of Articles
14 and 16.
For purposes of promotion, all the
enquiry-cum-reservation
clerks on the "lorthcrn Railway form one separate unit.
Between
members of this class there is mi discrimination 3nd no denial of
equal opportunitv in the mat:.2r of promotion.
It is said that
panels of cla" Ill selection posts of station ma>ters in the grade
of Rs. 370-4 75 on the Northern Railway and all class IJJ selection posts on other Railways have been drawn up on the footing
that anticipated vacancies in the selection grade include vacancies on promotions due to upgradin.~ of posts in the next higher
grade and that the Railway Board has not issued any direction
for the amendment of these panel>.
Assuming :his alleg~nion to
he true. the other panels might require revision and the matter
deserves the attention of the Railway Board.
But
the
other
panels relate .to <cparate classes of employees and have no hearing
on the quesllon of equal opportunity in the matter of promotion
of enquiry-cum-reservation clerks
on the
Northern
Railway.
Equalitv of oppor•unity in matters of employment
under
Art.
16(1) means equalitv as. hetwecn members of the <ume class of
em!Jloyces and not equality between members of separate, indepcn~cnt classe.«.
(see .All India Station Ma.1·ters' and Assistant
Station Masters AssoC1at1on v. Genera/ Manager Central Railways(1).
In the result. the petition JS dismissed.
There will
he
no
order as to costs.
Y.P.
(I) [t%0) 2 S.C.R. )11. )19.
.
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