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TMI Blog1970 (2) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... t they were appointed as officiating clerks Grade 1, after passing the Appendix 2 examination long before respondents 4 to 6 and 11 but these four respondents are shown as senior to the petitioners on the ground of their seniority in Grade II. The petitioners seek to support their claim by relying on Arts. 14 and 16 of the Constitution. The seniority of the direct recruits to Grade 1, the petitioners complain, is determined on the basis of their appointment, whereas the seniority of the petitioners, who are promotees. from Grade II to officiate in Grade 1, continues to be determined on the basis of their seniority in Grade II. It is emphasised that both the direct recruits and the promotees, like the petitioners, have to pass the Appendix 2 examination. But their seniority is determined by different methods. It is further complained that Grade II clerks who pass the qualifying Appendix 2 examination are not promoted immediately. They have to -wait till a vacancy occurs and even at the time of filling the vacancy the seniormost qualified clerk is selected for promotion without giving any preference to those who have qualified earlier in point of time. Again, when a permanent post fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Arts. 14 and 16 to concrete cases a doctrinaire approach should be avoided and the matter considered in a practical way, of course, without whittling down the equality clauses. The classification, in order to be outside the vice of inequality must, however, be founded on an intelligible differentia which on rational grounds distinguishes, persons grouped together from those left out. The differences which warrant a classification must be real and substantial and must bear a just and reasonable relation to the object sought to be achieved. If this test is satisfied then the classification cannot be hit by the vice of inequality. It is the background of this broad principle that the petitioners' grievance is to be considered. The relevant provisions in the Indian Railways Establishment Manual directly applicable to the petitioners' case may now be seen. They are contained in paras 48 and 49, Chapter 1, Section B and paras 16 and 20(b) of Chapter 11. As the petitioners also rely upon paras 17 to 19 and 21 of Chapter 11 in support of the argument that para 20(b) is discriminatory it is desirable to reproduce all these paragraphs. 48. The classes included in this g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with reference to their substantive or basic seniority. 18. A railway servant who, for reasons beyond his control is unable to appear in the examination/test in his turn along with others, shall be given the examination/test immediately he is available and if he passes the same, he shall-be entitled for promotion to the post as if he had passed the examination/test in his turn. 19. Seniority for promotion as Junior Accountants, Junior Inspectors of Station or Stores Accounts :- Seniority for promotion to the rank of junior accountant or junior inspector of Station or Stores Accounts should count entirely according to the date of passing the examination qualifying for promotion to those ranks. Candidates who pass the examination in a year are ipso facto senior to those who qualify in subsequent years irrespective of their relative seniority before passing the examination. In the case of staff of Ex-Company Railways, who are exempted from passing the examination, the date on which they are declared fit for promotion to the rank of Accountant or Inspector should be considered as the date of their passing. On receipt of the result of the above examination each railway administrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly no railway servant will be permitted to take the examination more than three, but the Financial Adviser and Chief Accounts Officer may in deserving cases premit a candidate to take the examination for a fourth time, and, in very exceptional cases, the General Manager may permit a candidate to take the examination for the fifth-and the last time. (b) No railway servant, who has less than six months' service in a Railway Accounts Office or who has not a reasonable chance of passing the examination will be allowed to appear in the examination prescribed in this Appendix. In exceptional circumstances, the condition regarding six months' minimum service may be waived by the General Manager. (c) Temporary railway servants may be permitted to sit for the examination but it should be clearly understood that the passing of this examination will not give them a claim for absorption in the permanent cadre. (d) A candidate who fails in the examination but shows marked excellence by obtaining not less than 50% in any subject may be exempted from further examination in that subject in subsequent examination. It is quite clear that para 49 does not confer any right to imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members of Grade II clerks who have qualified and become eligible. The onus in this case is on the petitioners to establish discrimination by showing that the classification does not rest upon any just and reasonable basis. The difference emphasised on behalf of the petitioners is too tenuous to form the basis of a serious argument. Their challenge, therefore, fails. The decision in Mervyn Coutindo v. Collector of Customs, Bombay ([1963] 3 S.C.R. 600) on which reliance has been placed on behalf of the petitioners dealt with a different problem though the principle of law laid down there seems to go against the petitioners' submission. It was expressly observed that there is no inherent vice in the principle of fixing seniority by rotation in a case when a service is composed in fixed proportion of direct recruits and promotees. The distinction between direct recruits and promotees as two sources of recruitment being a recognised difference, nor obnoxious to the equality clauses,' the provisions which concern us cannot be struck down on the ratio of this decision. The petition accordingly fails and is dismissed but without costs. Petition dismissed. - - TaxTMI - TM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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