R. Chakravarthy vs M. Dhana Singh and Others <BR>The Chief Mechanical Engineer, Mechanical Department, Integral Coach Factory and Others Vs M. Dhana Singh, Chargemen, a Sheet Metal Mechanist, Mechanical Department, Integral Coach Factory, and Another

Kailasam, C.J.—These two appeals are filed against the order of Mohan, J., in W.P. No. 2293 of 1973. That petition was filed by one

Dhana Singh for the issue of a writ of certiorari calling for the order dated 11th October, 1972 on the file of the General Manager, Integral Coach

Factory, Madras, and quashing the same. In that writ petition Dhana Singh made the Chief Mechanical Engineer, General Manager, Chairman,

Railway Board, and the Union of India, as the first four respondents, and Chakravarthi as the fifth respondent. The facts of the case are briefly as

follows. Upto 25th March, 1970 selection to the nine grades like lathe-carpenter, fitter, etc., was made in accordance with a common roster

maintained. Under the common roster for the nine grades a reservation of 12 1/2 per cent of seats for the Scheduled Caste and 5 per cent for the

Scheduled Tribes was provided. By a circular dated 29th April, 1970, the representation for the Scheduled Caste and Scheduled Tribes was

increased from 12 1/2 per cent to 15 per cent and from 5 per cent to 7 1/2 per cent respectively. The circular directed the preparation of a new

roster from 25th March, 1970, according to the new representation provided for in the circular. The circular also provided that vacancies shall be

filled up according to the new roster, subject to the exception which we shall refer to presently.

One Narayanasami, who was a Sheet Mechanic, was promoted as Shop Superintendent in 1965. To fill up the vacancy that arose because of

the promotion of Narayanasami, Thomas Jebaraj was selected. His name was kept in the panel and he also officiated as Superintendent. On 7th

October, 1971, Narayanasami applied for leave, preparatory to retirement. He was granted leave on 7th October, 1971 and he retired on 5th

January, 1972. Jebaraj was promoted on 7th October, 1971. In November, 1971, the authorities conducted a selection for the post of

Superintendent anticipating the promotion of Jebaraj. Two persons were selected, one was Dhana Singh (petitioner in the writ petition) and the

other was Chakravarthi, (fifth respondent). In April, 1972, Jebaraj was promoted to Class II service. In the vacancy so caused Dhana Singh was

posted by the Integral Coach Factory, But, on appeal, the Government set aside the order appointing Dhana Singh, and posted Chakravarthi. In

the writ petition. Dhana Singh complained that the Government was in error in giving Chakravarthi seniority and depriving him of the seniority

which was conferred on him by the amended circular, and that the order of the Government was in gross violation of Articles 16(4) and 335 of the

Constitution of India.

The learned Judge allowed the writ petition, holding that, according to the new circular and Annexure I, Jebaraj having been promoted as

against a scheduled caste vacancy, the vacancy could only be treated as a reserve vacancy.

In order to appreciate the contentions of the parties, we shall refer to the circular which was issued, according to which appointments will have

to be made. The relevant letter which regulated the appointments to the various categories is dated 29th April, 1970 from the Assistant Director

(Establishment), Railway Board, New Delhi, to the General Managers of all Indian Railways. We extract the letter in full, as it is important:

The model rosters for reservation of vacancies for scheduled castes and scheduled tribes filled by direct recruitment on all India basis by open

competition and also for posts filled otherwise than by open competition were circulated to Railways--vide Board''s letter No. E(SCT) 64 CM

15/1 of 16th January, 1964. Consequent on the Government decision to increase the percentage of reservation for scheduled caste and scheduled

tribe as communicated in Board''s letter of even No. dated 20th April, 1970, the rosters have been revised and the revised rosters are enclosed as

in Annexures I and II.

For posts filled by promotion where reservation has been provided for scheduled castes and scheduled tribes, the roster prescribed in Annexure I

is to be followed.

''''Vacancies filled on or after 25th March, 1970, should be shown in the rosters to be opened in the forms now prescribed unless selections for

filling recruitment promotion vacancies were made prior to 25th March, 1970. The existing rosters should be deemed to have been discontinued

from that date. The unfilled reservation, if any, in the existing rosters should be carried over to the new rosters.

The letter provided that on the Government''s decision to increase the percentage of reservation for scheduled castes and scheduled tribes, the

rosters had been revised and that the revised rosters were enclosed as on Annexures I and II. It also provided that for posts filled by promotion

where reservation had been provided for scheduled castes and scheduled tribes the roster prescribed in Annexure I should be followed. Then

comes the paragraph on the construction of which the decision of the case will depend. It provided that vacancies filled on or after 25th March,

1970, should be shown in the rosters to be in the forms now prescribed. Stopping here for a moment, it is clear that, if a vacancy was filled up on

or after 25th March, 1970, it would have to be shown in the new roster. There is an important proviso to this rule, viz., that, if selections for filling

up recruitment promotion vacancies were made prior to 25th March, 1970, they would be exempt. The letter also stated that the existing rosters

should be deemed to have been discontinued from that date, i.e., 25th March, 1970. The unfilled reservation, if any, in the existing rosters should

be carried over to the new rosters. The crucial question for consideration in this case is what is the scope of the proviso to the rule, that vacancies

filled up on or after 25th March, 1970, should be shown in the new rosters. It is clear that the existing rosters should be deemed to have been

discontinued except to the extent to which the proviso applied. There is also no difficulty if the appointment is made after 25th March, 1970, for

that can only be under the new rosters. If the appointment had been prior to 25th March, 1970, equally there could be no difficulty, for the old

roster would apply. Difficulty, however, arises, when selections were made before 25th March, 1970, but appointments were made subsequent to

25th March, 1970. In the case before us the vacancy actually arose on 7th October, 1971, when Narayanasami went on leave, preparatory to

retirement, on 5th January, 1972. This was also an anticipated vacancy, when Jebaraj was selected on 5th September, 1966. The order of

selection runs as follows:

The Selection Board which met on 17th August, 1966 and 24th August, 196r have selected the following candidates to the posts noted below in

Mechanical Department:

For promotion to the post of Shop Superintendent Mechanist/Sheet Metal.

The order of selection also provided that the said panel shall be current (or two years or till exhausted, whichever was earlier. But it is not disputed

that, as required under Rule 217 (b) of the Indian Railway Establishment Manual, Thomas Jebaraj officiated against a non-fortuitous vacancy and

that therefore his position in the panel was confirmed. While so, a substantive vacancy arose only on the retirement of Narayanasami on 5th

January, 1972. The new rosters came into force on 25th March, 1970. The appointment was no doubt made after the rules came into force, but

the question is whether the case of Jebaraj falls under the exception to the rule, viz., whether he was selected for filling up a promotion vacancy

prior to 25th March, 1970. Considering the language of the letter, we have no difficulty in coming to the conclusion that Jebaraj was selected for

filling up a promotion vacancy prior to 25th March, 1970. But Mr. Chella-swamy, learned Counsel for the respondents, submitted that the

selection should be for a specified permanent post and that the selection for constituting a panel for enabling a person to act in an unexpected

vacancy would not fulfil the requirement of selection for filling up a vacancy. We are unable to read in the language of the letter anything as

requiring that the selection should be for filling up a specified permanent vacancy. The contention of learned Counsel is that, when Jebaraj was

selected, the selection was not earmarked for filling up the vacancy caused by the retirement of Narayanasami on a future date. We find ourselves

unable to accept this contention, for there are no limiting words in the letter. All that it requires is that, if selection was made for filling up promotion

vacancies prior to 25th March, 1970, it would be exempt. It cannot be disputed that Jebaraj was selected for filling up the vacancy which was

expected to arise on the retirement of Narayanansami on 5th January, 1972. We are inclined to go further and say that the requirement of the letter

will be satisfied even if the selection was made for filling up an anticipated vacancy, for as already stated, there are no limiting words.

We are unable to agree with the view of the learned Judge that the requirement of paragraph 3 of the letter in question would not be satisfied,

when there was only a selection for drawing up a panel. According to the learned Judge, paragraph 3 contemplates selection against a particular

vacancy. For the reasons already stated, we are unable to accept this view, as the language of the letter does not warrant such a construction. We

are also unable to accept the learned Judge''s view that the third paragraph of the letter contemplates the discontinuance of the existing rosters, for

such discontinuance was subject to the proviso which exempted the selection made before 25th March 1970.

The note appended to Annexure I of the Board''s letter dated 29th April, 1970, states:

If there are only two vacancies to be filled in a particular year, not more than one may be treated as reserved, and, if there be only one vacancy, it

should be treated as unreserved.

The appointments of Dhana Singh and Chakravarthi were made by an order dated 2nd December, 1971. The order runs as follows:

The Selection Board which met on 29th November, 1971, have selected the following two candidates for the post of Shop Superintendent

Mechanist (Sheet Metal)....

It is noted that Dhana Singh was selected against a reserve vacancy for scheduled castes. The selection admittedly having been made after 25th

March, 1970, the new roster was applicable, and as admittedly there was only one vacancy in 1972, the rule that it should be treated as an

unreserved vacancy, as stated in the Note to Annexure I, would have to be followed. The result will be that Ghakravarthi would have to be

appointed and that is what the Government have done in this case. In this view, the writ petition ought to have been dismissed. We therefore allow

the writ appeals and restore the order of the Government appointing Ghakravarthi. There will be no order as to costs.