ARUN KUMAR CHATTERJEE v. ll SOUTH EASTERN RAILWAY & ORS.

The Judgment of the Court was delivered by

c SeN, 1. This appeal by special leave raises a question as to whether the appellant upon his transfer from the North-Eastern Railway, at his own request, to the South-Eastern Railway was entitled under r. 312 of the Railway Establishment .Manual, to be placed in the seniority list below the existing confirmed and officia- ting staff in the relevant grade and not below the temporary staff. D Put very shortly, the essential facts are these. The appellant was holding the substantive post of a Clerk in the Commercial Department of the North-Eastern Railway w.e.f. May 22, 1956 and had applied for his transfer to the South-Eastern Railway in the same post. On October 15, 1958, he was transferred from the E North-Eastern Railway, at his own request, to the South-Eastern Railway and was posted at the Sealdah Division on his existing pay and scale against an existing vacancy. In 1967, the seniority list of the Clerks in the Sealdah Division was prepared by the ·South- Eastern Railway and in that list the appellant was placed below the temporary staff. Immediately upon' his being placed below the temporary staff, the appellant made two representations, one dated March 4, 1967 and the other dated April II, 1967, ·in the matter complaining that he could not be placed below the temporary staff, ) but without any avail.

Finding that there was no redressal of the wrong done to him, the appellant sent a reminder to the Chief Personnel Officer by name dated December 21, 1973. The Chief Personnel Officer by his communication dated October 19, 1974, informed the appellant that his representation was rejected. On April 30, 1975, the appellant moved the Calcutta High Court under Art. 226 of the Constitution H for the issue of an appropriate writ, direction or order in the matter

A. K. CHATTERJEE v. SOUtll EAStERN ll.LY. (Sen, J.) 21

o(_his inter.se seniority, and the High Court issued a rule nlSl. A During the pcndency of that rnle, respondents Nos. 7 to 45 arrayed in that petition whom the appellant considered to he junior to him were promoted to a higher post. . On August 10, 1976, the appellant filed another petition under Art. 226 of.the Constitution challenging the.fr promotion. On the same day, the High Court issued a rule nisi and also directed that the South-Eastern Railway would be at . liberty to confirm respondents nos. 7 to 45 in their post of promo- B

tion but such confirmation would be subject to the result of the rule. In view of the interim order passed by the High Court, the Chief Personnel Officer by bis letter dated October 10, 1976. clari- fied. c "The above promotion orders arc issued on provisional basis subject to result of the rule obtained by Sri Arun Kumar Chatterjee, Clerk CCS (Refunds) Office, in the Hon'ble High Court at Calcutta."

A learned Single Judge by his judgment and order dated D February 9, 1979 following the decision of Anil Kumar Sen, J. in Lal Mohan Paul v. The General Manager. Eastern Railway, Calcutta & Ors.\1) held that in pursuance of r. 312 the relative_ seniority of the appellant was governed by the Railway Board's Circular No. 1~65A dated January 31, 1950 and not by its subsequent circular dqted December 31, 1966. The learned Single Judge accordingly set aside the impugned order of the Chief Personnel Officer, South- E Eastern Railway dated October 7, 1974 and ordered that the Rail- way Administration should ro-fix bis seniority below all permanent -\. and officiating Clerks on the date of his transfer in the Sealdah ~r Division of the South-Eastern Railway but above the temporary Clerks in that Division. He further directed that the appd1ant would be entitled to promotion w .e.f. such date as he was eligible for such promotiou according to the seniority so fixed.

The General Manager, South-Eastern Railway preferred an appeal under cl. 15 of the Letters Patent against the judgment of the learned Single Judge. A Division Bench of the High Court by its judgment dated February 11, 1980 while upholding the view expressed by the learned Single Judge as to the construction and effect of r. 312 of the Manual, held that the Circular No. l565A

(!) Civil·Rule No. 620 (W)/70 dated April 23, 1974. H

SUPREME COURT REPORTS (1985) 3 s.c.R. A dated January 31, 1950 governed by the inter-se seniority of the appellant. It however obserbed that due to inordinate delay on his part in moving the Court, there was no justification .for interfering with the promotions already made of respondents nos. 7 to 45 and made the following direction': B "In the circumstances, we donot think that we shall be justified in interfering with the promotions granted to the respondents. We, however, feel that the appellants' should I • have placed the respondent no. I in the seniority list above ).:, the temporary staff. The Board's circular may be' given c effect to in the case of the transfer which had taken place after the date of the said Circular, but before that date we find no justification why in the face of Rule 312 the respon- dent no. 1 should not have been given the proper seniority by placing him above the temporary staff. In our opinion, the respondent no. I should be placed immediately below • .D the remaining respondents in FMA 588 of 1979, the senio- rity list. The judgment of the learned Judge is modified to the extent indicated above."

It accordingly modified the judgment and order of the learned -+- Judge to the extent indicated above. E We have set out the facts at some length. It would appear from these facts that there was no delay, much less inordinate delay, on the part of the appellant in filing the petition under Art. 226 of the Constitution for the protection of his right as to inter-se senio· rity. Earlier, he had made three representations to the departmental authorities in.the matter without any redress. If the attention of the learned Judges had been drawn to these facts, -they would not have made the aforesaid modification. It is, however, argued that the order of posting on transfer communicated by the Chief Person· nel Officer dated October 14, 1958 specifically stated that the seniority of the appellant would be counted from the date of his posting below all permanent and temporary Clerks. In his supple- mentary rejoinder, the appellant has controverted this fact and there is nothing on record to show that the said order of posting was ever communicated to him,

Rule 312 of the Railway Establishment Mapua! reads as follows :

A. K. CHATTERJEE V. SOUTH EASTERN RLY. (Sen, J.) 23

A "Transfer 011 request-Seniority of Railway Servants transferred. on their own request from one Railway to another should be allowed below that of the existing confirmed/officiating railway servants in the relevant grade in the promotion group in the new establishment irrespective of the date of confirmation or length of officiating service n of the transferred railway servant."

We may then set out the two circulars issued by the Railway Board explaining the purport and effect of r. 312. Circular No. 1565A dated January 31, 1950 was explanatory and, insofar as material, reads : c "On transfer at the employee's own request or to save his own interests his position should be at the bottom of the seniority list of all permanent; employees of his grade, if he is permanent, and at the bottom of the whole list of employees (both permanent and temporary) in his grade, if he is temporary."

The Railway Board's subsequent circular dated December 31, 1966 sought to clarify that the term 'officiating' in r .. 312 includes temporary staff as well and that an employee transferred at his own request to a new establishemcnt should be placed at the bottom of the seniority list in his relevant grade in that establishment. It provides :

"It has been brought to the notice of the Railway Board that the orders contained in their letter No. E55SR6/3 dated 19.5.55 have been interpreted by your administration so as to exclude temporary staff from the purview of the term officiating staff, occurring theirin. The Board desire to point out that the term officiating' occuring in Board's letter dated 19.5.1955 includes temporary staff as well. That is to say that an employee transferred at his t G own request to a new Establishment should be placed at the bottom of the seniority list in the relevant grade in that Establishment."

There cari be no doubt on the terms of r. 312 of the Manual . read with Railway Board's Circular No. 1565A dated January 31, 1950 that the appellant having been transfeJ'fed, at his own request, from one railway to another, had to be placed below &11 the existin(l U

24 SUPREME COURT REPORTS (1985] 3 s.c.a.

A confirmed and officiating staff in the relevant . grade, irrespective of the date of his confirmation or the length of his service. The appel- lant on the date of his trnnsfer i.e. on October 15, 1958 was not governed by the Railway Board's Circular dated December 'll, 1966. In Lal Mohan Paul's case, supra, Anil Kumar Sen,.J. in a case where a railway employee )Vas. transferred on September 30, 1959, B at his own request, from one railway to another hdd that he was governed by the Railway Board's Circular No. !565A dated January 31, 1950 and not by the subsequent circulars and therefore was entitled to be placed in the seniority list below the existing confirmed and officiating staff in the relevant grade and not below the temporary staff. We uphold the view expressed by Sen, J. in c La/ Mohan Paul's case, supra.

That apart, the Railway Board's interpretation in the afore~aid Circular dated December 31, 1966, of the term 'officiating' for. 312 of tl1c Railway Establishment Manual, as including both officiating as well as temporary staff, was apparently wrong. According to its ordinary connotation, the word 'officiating' is generally used when a servant having held one post permanently or substantively, is , appointed to a post in a higher rank, but not permanently or sub- stantively while still retaining his lien on his substantive post i.e. officiating in that . post till his confirmation. Such officiating appointment may be made when there is a temporary vacancy in a higher post due to the death or retirement of the incumbent or otherwise In contrast, the word 'temporary' usually denotes a person appointed in the civil service for the first time and the appointment is not permanent but temporary i.e. for the time being, with no right to the post. F We find no justification for the attitude adopted by the Rail- way Administration in depriving the appellant of his legitimate rights. Loss of seniority of a Government servant with consequent lose of promotional prospects, higher. pay and emoluments is a melter of serious consequence to him. When the appellan.t by ' his representations drew the attantion of the departmental authori- 0 ties to the injustice done to him, it was their duty to have rectified the mistake and re-fixed the seniority .of the appellant. It was precisely to meet a situation of this kind that the Railway Board's Circular dated Octqber 16, l 964 was issued. l t provides that if a person has been promoted but not on the date on which he should have been promoted due to some administrative error then the employee should be assigned correct seniority vis-a-vis his juniors

A. K. CHATTERJEE v. SOUTH EASTERN RLY. (Sen, J.) !5

already promoted irrespective of the date of promotion. It further provides that the pay of such employee in higher grade on promotion will be fixed proforma at the stage which he would have reached if he had been promoted at the proper time. There was no reason for the Railway Administration to have deprived the appellant of · the benefit of the aforesaid circular, .particularly in view of tllo deci!ion of Anil Kumar Sen, J. in Lal Mohan Paul's case, supra.

The result therefore is that the appeal must succeed and j, allowed with costs throughout. The order passed by the Division Bench of thr Calcutta High Court making a modification in tho judgment of the learned Single Judge is set aside and the judgmeat .and order o(the learned Single Judge allowing the writ petiiion fikd by the appellant is restored.

M.L.A. Appeal allowed.