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TMI Blog1974 (1) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... rd issued by way of modification and clarification of its earlier proceedings of 1952. During the last World War, there was acute shortage of foodgrains and other necessaries of life. At the suggestion of B. N. Rau Committee,. grain shops for the supply of foodgrains at cost price to its employees were opened by the Indian Railways on an extensive scale throughout the country. Staff for this temporary Grain-Shop Complex was drawn from three different sources: (i)Temporary employees, who on being selected through the Joint Selection Commission or Staff Selection Board were initially appointed in the permanent Departments and were there after transferred to the Grain Shop Department. (ii)Temporary employees selected by the Selection Board or the Selection Commission for permanent Departments but posted straightaway in the Grain Shop Department without being first appointed in the department for which they were originally selected, and (iii)Temporary employees directly recruited by the Deputy General Managers to the Grain Shop Department from the open market.'Respondents 1 to 9 in this appeal belong to category (iii). After the emergency was over, on the recommen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to reduce the number of grainshop staff who be surplus immediately.. (7) ....................... (emphasis supplied) Next, in importance, is the Railway Board's order No. E. 48. REI/ 1/3 of October 16, 1952 issued in supersess on its previous orders. This order is the sheet-anchor of the respondents' case. Its material Part runs as under ........ In supersession of the Board's orders contained in 'item (iii) of their letter No. E. 48. REI/1/3A of 6-7-1949, laying down the method for the absorption and fixation of pay of ex-Grain Shop Staff who were officiating in higher grades but were absorbed in other Departments in lower grades, it has now been decided that the pay of all such staff as well as those appointed in the intermediate grades, irrespective of the fact that they were absorbed either before or after 6-7-1949 should be fixed on their absorption in the regular Departments in accordance with the instructions contained in their letter No. E. 45 RE. 13/3 dated 27-7-46, and the staff concerned paid the arrears due on this account. 2.It has further been decided by the Board that such staff should not get any preferential treatment other than for fix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngle Judge who tried the writ petition, accepted the contentions of Respondents 1 to 9 and struck down the impugned proceedings. Aggrieved by that judgment, the Railway carried an appeal under Clause 15 of the letters Patent to the Division Bench of the High Court, which dismissed the same with these observations What has been held by their Lordships in Roshanlal's case applies with equal force to the case on hand. Here also there was already an integrated service namely the Grain Shop Department service and all the members of this Service were absorbed in different Departments, and after absorption, there cannot be a further dividing line between direct recruits drawn from open market and those appointed through selection Boards as that would clearly be a denial of equal opportunity to persons similarly situated in the matter of further promotion on the basis of their seniority, among other grounds. Since the absorption of direct recruits and others is from the integrated Grain Shop Department, no discrimination can be shown on the ground of differences that existed between various sources prior to the recruitment to the Grain Shop Department for the purpose of fixing seni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjustment of the petitioner's seniority in accordance with the principles laid down in the Board's decision of October 16, 1952 were, at the most, proper parties and not necessary parties, and their nonjoinder could not be fatal to the writ petition. The ratio of this Court's decision in Padam Singh Jhina's case (supra) is not applicable to the facts of the instant case. Jhina's contention was that he had been mala fide reduced in the list of seniority, from the 5th to the 7th place and that one Prem Sagar had been placed above him in contravention of the Rules. The validity or vires of the Rules was not in question. All the persons whose placement in the seniority list was controverted were not impleaded, and as such, had no opportunity of replying to the case set up by Jhina, and, in the absence of persons directly affected, it was not possible for the Court to adjudicate the matter. The ratio of Jhina's case does not help the appellant. The cases relevant for our purpose are B. Gopalaiah and Ors. v. Government of Andhra Pradesh; (1) J. S. Sachdev and Ors. v. Reserve Bank of India, New Delhi (2) and Mohan Chandra Joshi v. Union of India and Ors (3). We ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducation, all that was required of the candidates was a working knowledge of English . It was quite possible, that in categories (ii) and (iii), also, there were some whose qualifications were not in accord with the prescribed norms. Educational qualifications being less than the requisite minimum was therefore not a feature, peculiar to category (iii), only. Indeed, it is not the case of the appellants that the classification of the grain-shop staff envisaged in the impugned proceedings, for the purpose of absorption and seniority in permanent departments, has been made on the basis of educational qualifications. The fundamental right of equality means that persons in like situation, under like circumstances are entitled to be treated alike. The Constitutional Code of Equality and Equal Opportunity , observed this court in State of Jammu and Kashmir v. Triloki Nath Khosla and others(Civil APPeal No. 2134 of 1972 decided on 26-9-1973.). is a charter for equals . So long as employees similarly circumstanced in the same class of service are treated alike,-the question of hostile discrimination does not arise. The equality of opportunity for purposes of seniority, promotion and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eagues who fortuitously continued in the permanent Departments. It was but fair and reasonable that, on the abolition of the Grain Shop Department, they should be sent back to the permanent Departments, whence they came, and given credit of their initial service in those Departments for the purpose of permanent absorption and seniority. Even from the deficient material placed before us, it is clear that personnel from source (i) have always been treated as a distinct unit having a status skin to that of persons on loan or transfers for a period from a permanent Department to a temporary Department. Consequent upon their decision to gradually wind up the Grain Shop Department, the first step taken by the Railway Board as per para 6 of their communication dated February 3, 1949 (reproduced in a foregoing part of this judgment), was to return all temporary or permanent staff that had come on loan to the Grain Shops, to their parent departments. It is note-worthy that the directions in para 6 of the communication, dated February 3, 1949, were not superseded by the proceedings, dated October 16, 1952, which are the foundation of the Respondent's claim. Clause (1) (i) of the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be appointed merely because of such selection and placement of his name on the select-list. He gets only a spes i.e. bare chance of appointment and that too if the appointing authority so desires arid a vacancy is available for him. All that the said provisions say, in substance, is that after their appointment, their inter se seniority will be fixed with reference to their positions in the merit list prepared by the Selection Board. Despite repeated queries, the appellants have not placed any document or material nor referred to any rule, policy decision or other official record to support their contentions that even after their recruitment to Grain-Shop Department, categories (ii) and (iii), continued as distinct entities having different conditions of service. Appellants' failure to furnish such material is sought to be justified on the ground that the burden of proving that the impugned proceedings suffer from the vice of discrimination, was on the respondents. True, that the initial onus of showing that the proceeding of 1957 and 1961, in question, were discriminatory and as such, violative of Articles 14 and 16 of the Constitution, was on the respondents; but in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motion in Roshan Lal Tandon's case (supra) is equally applicable to absorption and seniority in the instant case. For the foregoing reasons, we would hold that the discrimination envisaged in the impugned directions dated November 2, 1957 and January 13, 1961, excepting in so far as they pertain to personnel of category (i) is arbitrary and violative of Articles 14 and 16 of the Constitution. In the result we dismiss the appeal with costs throughout and affirm the decision of the High Court except to the extent indicated above. In Civil Appeal 1938 of 1972, arising out of Writ Petition No. 952 of 1966, Respondent Manickyam was originally employed as a Commercial Clerk on December 4, 1944 in the Southern Railway and was posted at Rayapuram. One Balasubramaniam, was then a clerk in the Grain Shop Department in Bezwada District and posted at Gudur. In 1950, Manickyam and Balasubramaniam made joint application for mutual transfer. This application was allowed and, in consequence, Manickyam and Balasubramaniam exchanged places. Manickyam was therefore transferred and posted on August 10, 1950 at Gudur and was given the 445th place in the order of seniority among the clerks in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, revised and downgraded. The learned single Judge who tried the writ petition found that since the classification envisaged in the Railway Board's Orders dated November 2, 1957 and January 13, 1961 were discriminatory, arbitrary and unconstitutional, the impugned orders, also, whereby Manickyam's seniority was revised down were invalid. In the result, the writ Petition was allowed and a writ of Mandamus directing the appellant to give Manickyam 92nd place immediately above Pothuraju, No. 93, and to the then Respondents 2 to 8 from 96th to 195th places in the list of seniority published as on December 31, 1958, was issued. It was farther directed: If as a result of the restoration of the petitioner's seniority as per the above order, he is entitled to any promotion to a higher scale of pay, I direct that the first respondent should give him the benefit of such promotion. The Letters Patent Appeal preferred by the Divisional Superintendent of the Railway (the Respondent) was dismissed by the Division Bench of the High Court. Hence this appeal by the Railway. Learned Counsel for the appellant raised the same preliminary objections and canvassed the same contentions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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