{"id":235611,"date":"1968-03-27T00:00:00","date_gmt":"1968-03-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/b-s-vadera-vs-union-of-india-ors-on-27-march-1968"},"modified":"2016-10-24T09:14:36","modified_gmt":"2016-10-24T03:44:36","slug":"b-s-vadera-vs-union-of-india-ors-on-27-march-1968","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/b-s-vadera-vs-union-of-india-ors-on-27-march-1968","title":{"rendered":"B. S. Vadera vs Union Of India & Ors on 27 March, 1968"},"content":{"rendered":"
Supreme Court of India<\/div>\n
B. S. Vadera vs Union Of India & Ors on 27 March, 1968<\/div>\n
Equivalent citations: 1969 AIR 118, \t\t 1968 SCR (3) 575<\/div>\n
Author: C Vaidyialingam<\/div>\n
Bench: Hidayatullah, M. (Cj), Bachawat, R.S., Vaidyialingam, C.A., Hegde, K.S., Grover, A.N.<\/div>\n
           PETITIONER:\nB. S. VADERA\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA & ORS.\n\nDATE OF JUDGMENT:\n27\/03\/1968\n\nBENCH:\nVAIDYIALINGAM, C.A.\nBENCH:\nVAIDYIALINGAM, C.A.\nHIDAYATULLAH, M. (CJ)\nBACHAWAT, R.S.\nHEGDE, K.S.\nGROVER, A.N.\n\nCITATION:\n 1969 AIR  118\t\t  1968 SCR  (3) 575\n CITATOR INFO :\n R\t    1970 SC 385\t (7)\n RF\t    1971 SC1716\t (5)\n R\t    1972 SC2427\t (9)\n R\t    1975 SC1646\t (23,28,29)\n RF\t    1980 SC2181\t (118)\n R\t    1981 SC 783\t (7)\n RF\t    1981 SC1099\t (6)\n F\t    1985 SC 551\t (37)\n R\t    1987 SC 415\t (16)\n RF\t    1987 SC1676\t (16)\n D\t    1987 SC1858\t (21)\n R\t    1990 SC 334\t (99)\n\n\nACT:\nConstitution of India, Art. 309-Railway Establishment  Code,\nr.   157-  Railway  Board's  Secretariat  Clerical   Service\n(Reorganisation)  Scheme framed in 1957 but made  applicable\nfrom  1954-Board's power to frame rules\t with  retrospective\neffect.\n\n\n\nHEADNOTE:\nThe  petitioners who were working as Assistants were by\t the\noperation  of  the  Railway  Board's  Secretariat   Clerical\nService\t (Reorganisation) Scheme reverted as Upper  Division\nClerks\tin 1967.  The said scheme was framed on February  5,\n1957  but  was brought into effect from\t December  1,  1954.\nCertain\t modifications to the scheme relating to the  manner\nof filling up of permanent and temporary vacancies in  Grade\nI of the Service were made in 1963.  The petitioners came to\nthis Court under Art. 32 of the Constitution challenging the\norders\tof  reversion passed against them  as  illegal.\t  On\nbehalf\tof  respondents the orders were\t defended  as  being\nbased  on  the\torder of seniority which  had  been  refixed\naccording  to the said Scheme.\tThe contentions advanced  on\nbehalf of the petitioners were : (i) That their promotion as\nUpper Division Clerks and later as Assistants had been on  a\npermanent  basis and could not be disturbed; (ii)  That\t the\nScheme\tas well as the various orders passed by the  respon-\ndents were violative of Arts. 14 and 16 of the Constitution;\n(iii)  That  the second respondent (Railway  Board)  had  no\npower  in law, to frame either the Scheme, or  the  modified\nScheme\tso as to have retrospective effect from December  1.\n1954.\nHELD : (-i) The ranking given to the petitioners as a result\nof which the impugned orders of reversion were passed was in\naccordance  with  the Scheme as modified in  1963.   On\t the\nfacts,\t the  contention  of  the  petitioners\tthat   their\nappointment as Upper Division Clerks and later as Assistants\nwas on a permanent basis, could not be accepted. [582 B-C]\n(ii)  Once it was held that the petitioners did not  satisfy\nthe  requirements  of  the  scheme  for\t being\tretained  as\nAssistants there was no question of any discrimination under\nArt. 14 or violation of Art. 16 arising for consideration at\nall. [582 G]\n(iii) The Indian Railway Establishment Code has been  issued\nby the President in exercise of the powers vested in him  by\nthe  proviso to, Art. 309 of the Constitution.. Rule 157  of\nthe  Code gives the Railway Board full powers to make  rules\nof  a general application to non-gazetted  railway  servants\nunder  their control.  If full effect is given to the  words\nin Art. 309, namely 'and any rules so made shall have effect\nsubject\t to  the  provisions of any such AcV,  then  in\t the\nabsence\t of any Act as aforesaid, in the present  case,\t the\npower  to  make rules with retrospective  effect  cannot  be\ndenied to the Railway Board.  Accordingly the Scheme  framed\nby  the\t said Board in 1957 could  be  made  retrospectively\neffective from Decemher 1, 1954. [583 E, 584 H, A-El\nState v. Padmanabhacharya,<\/a> [1966] 1 S.C.R. 994 and Nagarajan\nv. Mysore, [1966] 3 S.C.R. 682, considered.\n576\nRam  Autar  v. State of U.P. A.I.R.,<\/a> 1962  AR.\t   328\tF.B.\napproved.\nGovindaraju  v.\t State of Mysore, A.I.R.<\/a> 1963 Mys.  265\t an(\nGoindappa  v.  I.G. of Registration, A.I.R.  1965  Mys.\t 25,\ndisapproved.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL  JURISDICTION : Writ Petitions Nos. 96 and  165  of
\n1967.\n<\/p>\n
Petition under Art. 32 of the Constitution of India for\t the
\nenforcement of fundamental rights.\n<\/p>\n
S. K. Mehta and K. L. Mehta for the petitioner (in W.P.\t No.
\n96 of1967).\n<\/p>\n
A.  K.\tSen, A. P. Chatterjee and M. M. Kshatriya,  for\t the
\nPetitioner(in W.P. No. 165 of 1967).\n<\/p>\n
C.  K. Daphtary, Attorney-General, V. A. Seyid Muhammad\t and
\nR.  N. Sachthey, for respondents Nos. 1 and 2 (in  both\t the
\npetitions).\n<\/p>\n
B.  R. G. K. Achar, for respondents Nos. 3, 6 to 9, 13,\t 15,
\n17,  18, 21,, 26, 29, 30, 31, 36, 39, to 45, 47, 50,  53  to
\n55, 58, 61, 64, 66, 69, 76, 77, 81, 82, 87, 91, 94, 96,\t 97,
\n103 to 105, 108, 123, 136 and 150 (in W.P. No. 96 of 1967).
\nThe Judgment of the Court was delivered by
\nVaidialingam, J. In both these writ petitions, under Art. 32
\n,of the Constitution, the petitioners seek to have  quashed,
\ncertain\t orders\t passed\t by,  the  2nd\trespondent  and,  in
\nparticular,  the order dated June 16, 1967, reverting  them,
\nas  Upper  Division Clerks, with effect from June  9,  1967.
\nThe Union of India, through the Chairman, Railway Board, and
\nthe  Secretary,\t Railway  Board, are respondents  I  and  2,
\nrespectively,  in these proceedings.  The other\t respondents
\nare  officers,\tworking\t under\tthe  2nd  respondent,\twho,
\naccording  to the petitioners, have been given\tpreferential
\ntreatment, by way of promotion, under the orders,  impugned,
\nin these proceedings.\n<\/p>\n
At  the outset, it may be stated, that the  various  orders,
\npassed\tby  the\t 2nd respondent, referred to,  by  both\t the
\npetitioners,  are one and the same, and therefore, we  shall
\nrefer  to those proceedings, in accordance with the  anexure
\nnumber,\t given\tto them, in Writ Petition No. 96  of  1967.,
\nWherever  necessary, we shall advert to any separate  order,
\nthat  has  been\t referred to, by  the  petitioner,  in\tWrit
\nPetition No. 165 of 1967.\n<\/p>\n
According to the petitioner in Writ Petition No. 96 of 1967,
\nhe  joined  service, ‘on July 16, 1955,\t as  Lower  Division
\nClerk,\twas promoted, with effect from February 2, 1957,  as
\nUpper Division Clerk and further promoted, as Assistant,  on
\nFebruary 3,
\n577<\/span>
\n1958.\tHis grievance is that while he was holding the\tpost
\nof  such  Assistant, from 1958, he has been  illegally,\t and
\nwithout\t any  justification,  reverted,\t as  Upper  Division
\nClerk,\twith effect from June 9, 1967, as per  the  impugned
\norder,\t dated\tJune.16,  1967\t(Annexure  16).\t   Similarly
\naccording  to  the petitioner, in Writ Petition No.  165  of
\n1967, he joined as a Lower Division Clerk, on September\t 14,
\n1954, was promoted as Upper Division Clerk, with effect from
\nFebruary 2, 1957 and was further promoted, as Assistant,  on
\nFebruary  3,  1958.  His grievance is that while he  was  so
\nholding\t the  post  of Assistant, from\t1958,  he  has\tbeen
\nillegally, and without any justification, reverted as  Upper
\nDivision  Clerk,  with\teffect from June  9,  1967,  as\t per
\nAnnexure 16.\n<\/p>\n
According  to the Railway Board, these promotions,  made  of
\nthe  petitioners,  either as Upper Division  Clerk,  in\t the
\nfirst  instance, or, later, as Assistant, were purely  on  a
\ntemporary  and\tad  hoc basis, pending the  framing  of\t the
\nRailway\t  Board’s   Secretariat\t  Clerical   Service\t(Re-
\norganization)  Scheme,\twhich was in contemplation,  at\t the
\nmaterial time.\tThe Scheme (Annexure 4), was actually framed
\non  February  5, 1957, and the Railway\tBoard’s\t Secretariat
\nClerical Service was to be organized, in the manner, set out
\ntherein.  Under this Scheme, there were to be two grades  of
\nservice-(i) Grade I-Upper Division Clerk; and (ii) Grade  H-
\nLower Division Clerk.  The authorised permanent strength  of
\nthe Service, in Grade 1, was fixed at 45, and of Grade\tII,,
\nat  82.\t The initial constitution of the service, was to  be
\nwith effect from December 1, 1954.\n<\/p>\n
On  March  30, 1963, some of the  provisions,  contained  in
\nAnnexure  4, were modified, by Annexure 7. One of the  modi-
\nfications, effected under Annexure 7, related to the  manner
\nof   filling  up  of  permanent\t vacancies   and   temporary
\nvacancies,   in.    Grade  I  of  the  Service,\t  and\tthis
\nmodification  was also to have effect, from the date of\t the
\ninitial constitution of the Service, viz., December 1, 1954.
\nIn  1965, a final panel was drawn up, strictly on the  basis
\nof the Scheme, for promotion to the Grade of Upper  Division
\nClerks, in which the names of all the Lower Division  Clerks
\n‘were arranged, strictly in accordance with their  seniority
\npositions,  in\tthat Grade.  Accordingly, the names  of\t the
\npetitioners,  who  had been promoted as\t Officiating  Upper,
\nDivision  Clerks, in 1957, were entered, in that ‘panel,  in
\naccordance  with their inter se seniority as Lower  Division
\nClerks.\t  As  the posts of Upper Division Clerks  were\tnon-
\nselection  posts, so far as promotion quota  was  concerned,
\nthey  had  to  be  filled in, on  the  basis  of  seniority-
\nsuitability  and hence a particular officer’s seniority,  as
\nLower Division Clerk, was duly reflected in his seniority as
\nUpper
\n578<\/span>
\nDivision Clerk.\t Similarly, Upper Division Clerks, who\twere
\npromoted  as officiating Assistants, were also promoted,  on
\nthe basis of their seniority, in the Upper Division  Clerks’
\nGrade and, therefore, their seniority, in the Lower Division
\nClerks\tGrade, was thus reflected in the  Assistants  Grade.
\nThe petitioners were required to be reverted, for such Upper
\nDivision  Clerks, who were senior to them, being  posted  in
\nthe  Grade  of Assistants.  Effort, however,  was  made,  to
\navoid  hardship to persons, like the petitioners,  who\twere
\nfunctioning  as Assistants, by deciding to  make  available,
\nvacancies  in  the Assistants’ Grade, by  promotion  and  by
\ncurtailing the quota, reserved for direct recruits; but\t the
\npetitioners could not be continued as Assistants, for an in-
\ndefinite  period,  as  difficulty  arose,  when\t there\t was
\ncontraction, in the Cadres, by some of the Section Officers,
\nbeing  reverted,  as  Assistants, in June  1967.   This,  in
\nconsequence,   resulted\t  in  the   reversion\tof   certain
\nAssistants, including the petitioners, to the posts of Upper
\nDivision  Clerks.   The\t reversions  themselves\t were\tmade
\nstrictly  in the reverse order of seniority.   According  to
\nthe  Railway Board, the petitioner, in Writ Petition  96  of
\n1967  is still a temporary Lower Division Clerk, and he\t has
\nnot  been even confirmed in that Grade, because he  has\t not
\npassed the requisite typing test.  It is further stated that
\nthe petitioner, in Writ Petition 165 of 1967 is even now not
\na permanent Upper Division Clerk, and that he was confirmed,
\nas Lower Division Clerk, in 1966, with effect from September
\n14,  1957.  Therefore, according to the Railway\t Board,\t the
\nimpugned  orders  were\tall  valid and\tlegal  and  did\t not
\ncontravene any provisions of the Constitution, nor did\tthey
\ninfringe any of the rights of the petitioners.
\nIn  order to appreciate the arguments, addressed before\t use
\non behalf of the petitioners, and respondents I and 2, it is
\nnecessary  to  give,  in chronological\torder,\tthe  events,
\nleading up to the filing of these writ petitions.  On August
\n22,  1956, the second respondent issued a Circular  Annexure
\n1,  about  having decided to hold a test, for drawing  up  a
\npanel  of  staff considered suitable for promotion,  to\t the
\nGrade  of Assistants.  The categories of staff, eligible  to
\nappear for the test, as well as the subjects for the written
\ntests,\twere  mentioned, therein.  There is  no\t controversy
\nlegal\tand  did  not  contravene  any\tprovisions  of\t the
\nConstitution,  examination, and they also  successfully\t got
\nthrough the interview.\tThe second respondent simultaneously
\ntook a decision that posts ,of Upper Division Clerks,  which
\nwere  introduced at about that time, may also be filled\t up,
\non  the\t basis\tof the results of the test,  which  was,  no
\ndoubt,\tprimarily held for the purpose of filling the  posts
\nof  Assistants.\t The criterion for promoting Lower  Division
\nClerks,\t  to  the  posts  of  Upper  Division\tClerks\t and
\nAssistants,  was, that persons, who obtained 50% or more  of
\nthe marks, were
\n579<\/span>
\nto  be\tpromoted, as Officiating Assistants, and  those\t who
\nobtained  between  40  and  49%, were  to  be  promoted,  as
\nOfficiating Upper Division Clerks.  Their inter se seniority
\nwas also to be, in accordance with their inter se seniority,
\nas  Lower  Division  Clerks.  As both  the  petitioners\t had
\npassed\tthe test, they were promoted, as  Officiating  Upper
\nDivision  Clerks,  With effect from February 2,\t 1957.\t The
\norder,\tappointing  the petitioners, as\t Officiating  Upper.
\nDivision Clerks, is Annexure 3, dated February 1, 1957.\t  It
\nis the claim of the petitioners that they were promoted,  on
\na regular basis, as Upper Division Clerks, and that a  panel
\nof Assistants and Upper Division Clerks, was formed, by, the
\n2nd respondent.\n<\/p>\n
Meanwhile,  the\t framing of a scheme for the  Railway  Board
\nSecretariat Clerical Service, was in the offing, and such  a
\nscheme, was ultimately issued, under Annexure 4, on February
\n5,  1957.   The\t 2nd  respondent  has  filed  a\t  statement,
\nregarding  the\tcircumstances, under which  the\t Scheme\t was
\nframed,\t in  consultation  with\t the  Union  Public  Service
\nCommission,  and the Ministry of Home Affairs.\t The  scheme
\nwas  for filling the posts of Lower Division  Clerks,  Upper
\nDivision  Clerks and such of the Upper Division\t Clerks\t who
\ncan be promoted as Assistants.\tParagraph 14, sub paras\t (1)
\nand  (3),  dealt with the filling up of posts  of  Grade  1,
\nUpper  Division\t Clerks,  of  the  Clerical  Service.\tThat
\nprovided  for  the different manner in which  the  permanent
\nvacancies, and temporary vacancies, were to be filled up, in
\nthe  authorized strength of Grade I of the  Service.   Under
\nparagraph  14,\tsub-para I (b), promotion to the  cadre\t -of
\nUpper  Division Clerks, can only be made of permanent  Lower
\nDivision   Clerks,  for\t permanent  vacancies,\tand,   under
\nparagraph  14, sub-para (3), only permanent  Lower  Division
\nClerks\tand temporary Lower Division Clerks, with more\tthan
\nthree  years’ standing, and graduate Lower Division  Clerks,
\ncould be promoted to Temporary vacancies in the Cadre.\tBut,
\nin view of the non-availability of permanent Lower  Division
\nClerks,\t the  Scheme  could  not  be  implemented  to\tfill
\npermanent vacancies, immediately.\n<\/p>\n
Similarly,  under  para 16 of the  Scheme,  permanent  Upper
\nDivision Clerks, with three years’ service in the grade,  or
\nin   a\thigher\tgrade,\twere  eligible\tfor  promotion,\t  as
\nAssistants.   But, here again, no permanent  Upper  Division
\nClerks\twere available, at that time.  As certain  vacancies
\nexisted,  in  the posts of Assistants, and  required  to  be
\nfilled’ up, as a purely short-term measure, it was, decided,
\nby the 2nd respondent, that some of the posts of Assistants,
\nmay  be\t temporarily  filled up,  by  promotion\t from  Upper
\nDivision Clerks.  In view of this decision, the\t petitioners
\nwere promoted, as Assistants, on an ad hoc basis with effect
\nfrom February 3, 1958, tinder Annexure 5, dated February  1,
\n1958.\tThat  order  clearly  shows  that  the\tpetitioners,
\nincluding  others,  who were officiating as  Upper  Division
\nClerks,
\n580<\/span>
\nwere  promoted\tto  officiate, as Assistants,  on  a  purely
\nshort-term arrangement.\t It was further stated, in paragraph
\n5,  of this Annexure, that the promotion is a purely  short-
\nterm arrangement till qualified Assistants become available,
\nand  that the promotion, under that order, will not  confer,
\non the promotees, any claim for retention, as Assistants, as
\na long-term measure.\n<\/p>\n
It may also be stated, at this stage, that it is the  claim,
\nof both the petitioners, that they have been promoted, on  a
\nregular basis, as Assistants, under this Order, and that, in
\nconsequence,  the  order of reversion, passed  on  June\t 16,
\n1967, is illegal.  That contention is clearly belied, by the
\nexpress\t terms\tof the Order, Annexure\t5,  promoting  these
\npetitioners.\n<\/p>\n
Later  on, in or about 1959, as there were vacancies in\t the
\ngrade of Upper Division Clerks,,. a panel was drawn, by\t the
\n2nd respondent, called ‘Interim Provision Panel’, to fill in
\ntemporary vacancies, and certain Lower Division Clerks\twere
\nconsidered suitable, for promotion as Upper Division Clerks,
\nagain, on a purely short-term arrangement.  That is  Exhibit
\n6, dated June 24, 1959.\n<\/p>\n
On  March 30, 1963, the original Service Scheme Annexure  4,
\nwas amended in certain material particulars, by Annexure  7.
\nParagraph  14,\tof  the original Scheme,  was  modified,  by
\nproviding a different method of promotion, to Grade I (Upper
\nDivision   Clerks).    Under  this  modified   scheme,\t the
\ndistinction between the manner of recruitment, in respect of
\npermanent vacancies, and temporary vacancies, which  existed
\nin  the original scheme, was done away with.   The  modified
\nscheme\tprovided  a  uniform method of\tpromotion,  to\tboth
\npermanent vacancies, in ‘the authorized, strength of Grade I
\nService,  as  well  as temporary  vacancies.   Broadly,\t the
\nmethod\tof  appointment,  to this Grade,  was  (a)  80%,  by
\npromotion  of permanent Lower Division Clerks and  temporary
\nLower Division Clerks, with more than three years of service
\nin  the\t Grade,\t on  the  basis\t of  seniority,\t subject  to
\nrejection of the unfit; (b) 20%, on the basis of competitive
\nexamination, limited to the Lower Division Clerks.
\nIn 1965, a final panel was drawn up, according to the  Rail-
\nway  Board,  on\t the basis of ‘the Scheme,  Annexure  4,  as
\nmodified  by  Annexure\t7. That\t panel\tconsisted  of  Lower
\nDivision  Clerks,  fit for promotion to the grade  of  Upper
\nDivision  Clerks.  The Lower Division Clerks were  arranged,
\nstrictly  in  accordance with their seniority  position,  in
\nthat Grade.  The final panel is Annexure 14, dated March 30,
\n1965; and, according to the Petitioner in Writ Petition\t No.
\n96  of 1967, he has lost 148 places, and, according  to\t the
\npetitioner, in the connected writ petition, he has lost\t 110
\nplaces,\t in seniority.\tBoth the petitioners  are  aggrieved
\nabout the ranking, given to them, in this list.\n<\/p>\n
581<\/span><\/p>\n
On  June 9, 1967, under Annexure 18, the Railway  Board\t had
\nreverted, to the grade of Assistants, with immediate effect,
\nthe   Officiating  Section  Officers,  shown  therein.\t  In
\nconsequence,  under Annexure 16, dated June 16, 1967,  which
\nis one of the orders, under attack, in both these petitions,
\nthe  Railway  Board  reverted,\tas  Upper  Division  Clerks,
\nseveral\t  officiating\tAssistants,   including\t  the\t two
\npetitioners,  herein,  with effect from June 9,\t 1967.\t As.
\nmentioned earlier, the main grievance of the petitioners is,
\nthat  they having been promoted, as Assistants, as early  as
\nFebruary 3, 1958, and which posts they had been holding till
\n1967,  their  reversion,  as Upper  Division  Clerks,  under
\nAnnexure 16, is illegal and void.\n<\/p>\n
We  have  referred to the relevant orders,  promoting  these
\ntwo,  petitioners, in the first instance, as Upper  Division
\nClerks\tand, later, as Assistants.  The order promoting\t the
\npetitioners,  as Assistants, Annexure 5, dated\tFebruary  1,
\n1958, has been referred to, already, and that order  clearly
\nshows  that the promotion was only a  short-term,  temporary
\narrangement,  on  an officiating basis, and  that  no  claim
\ncould  be based -upon that promotion.  No doubt, the  order,
\nAnnexure   3,\tdated  February\t 1,  1957,   promoting\t the
\npetitioners, as Upper-Division Clerks, may, on a superficial
\nreading\t of  that  order,  -give  the  impression  that\t the
\npromotion,  is on a permanent basis, and from which  further
\npromotion is to be made, to the Grade of Assistants, but, in
\nview of what is stated, on behalf of the Railway Board,\t the
\npromotion,   under  Annexure  3,  is  again,   a   temporary
\npromotion, because the Scheme, Annexure 4, was to come\tinto
\nforce,\twithin\ta very short time, and that  the  promotions
\nwere  made,  only  on  a  provisional  basis.\tThe  regular
\npromotions, or appointments, to Upper Division Grade., which
\nis  styled as Grade 1, were to be made, as  envisaged  under
\nthe  Scheme, Annexure 4, dated February 5, 1957.   Both\t the
\npetitioners have, categorically, averred in their petitions,
\nthat   Annexure\t  4,  as  modified  by\t Annexure   7,\t has
\nretrospective effect, from December 1, 1954.
\nThe  second respondent has also given  various\tparticulars,
\nregarding as to how the framing of the Scheme originated, as
\nwell  as the different stages, it had to pass  through.\t  In
\nfact,  it is also seen, from the documents filed, on  behalf
\nof  the respondent, that there was a suggestion,  by  either
\nthe  Home Ministry, or the Union Public Service\t Commission,
\nthat the Scheme was to come into effect, on the date it\t was
\npromulgated;  but  that was met, by the Board,\tby  replying
\nthat  an assurance had been given to the staff, to whom\t the
\nScheme\thad  been  circulated, that the\t crucial  date,\t for
\ninitial\t constitution  of  the Scheme, was to  be  fixed  as
\nDecember 1, .1954. In fact, a reading of Annexures 4 and  7,
\nalso  clearly  shows that the initial  constitution  of\t the
\nService, is to be from December 1, 1954, and it is, on\tthat
\nbasis,
\n582<\/span>
\nthat  appointments, or promotions, are to be made.  Once  it
\nis  held  that the initial constitution of the\tService,  is
\nfrom the date, mentioned above, on the basis of Annexure  4,
\nread  with Annexure 7, it follows that the promotion of\t the
\npetitioners, as Upper Division Clerks, under Annexure 3, was
\nnot  under  the\t Scheme, but really  on\t a  provisional,  or
\ntemporary   basis.   Notwithstanding  the  fact\t  that\t the
\ngrievance  of both the petitioners is that ranking  has\t not
\nbeen given to them properly, in Exhibit 16, we are satisfied
\nthat  it  is in accordance with the  principles,  under\t the
\nScheme Annexure 4, as modified by Annexure 7. Therefore,  we
\nare not inclined to accept the contention of the petitioners
\nthat  there has been a promotion, on a permanent  basis,  in
\nthe first instance, as Upper Division Clerks and, later,  as
\nAssistants,  which can-not be disturbed, by any orders\tthat\n<\/p>\n
-may  be  passed, by the 2nd respondent.   We  have  already
\nindicated that the regular promotions and appointments\thave
\nto  be made, under the Scheme, with effect from December  1,
\n1954.\n<\/p>\n
In  particular, a contention has been raised, on  behalf  of
\nthe  petitioner\t in Writ Petition No. 165 of 1967,  that  he
\nstands\ton -a different footing, in that he is\ta  permanent
\nLower  Division Clerk ,and, therefore, his promotion, as  an
\nAssistant,  must,  again, have been, on a  permanent  basis.
\nThere  is no substance, in this contention, in view  of\t the
\nstatement, made by the 2nd respondent, that this  petitioner
\nwas  confirmed,\t as a Lower Division Clerk,  in\t 1966,\twith
\neffect\tfrom  September 14, 1957, in which case\t it  follows
\nthat  he  will not be eligible, for promotion, as  an  Upper
\nDivision  Clerk, under the Scheme.  The petitioner, in\tWrit
\nPetition  No.  96  of  1967, as\t pointed  out,\tby  the\t 2nd
\nrespondent,  continues,\t even  now,  as\t a  temporary  Lower
\nDivision  Clerk,  and be has not been made  permanent,\tand,
\ntherefore-  he cannot certainly be considered eligible,\t for
\npromotion, under the Scheme.\n<\/p>\n
A further contention has been taken, on behalf -of the peti-
\ntioner in Writ Petition No. 165 of 1967, that the Scheme, as
\nwell  as the various orders, passed by the  2nd\t respondent,
\nviolate\t  the  provisions  of  Arts.  14  and  16,  of\t the
\nConstitution,  inasmuch\t as  be has  been  deprived  of\t the
\nbenefits  of  Chapters\tH and III,  of\tthe  Indian  Railway
\nEstablishment  Manual.\t Once  it  is  held  That  the\tsaid
\npetitioner  does not satisfy the requirement of\t the  Scheme
\nthere  is no question of any discrimination, under Art.\t 14,
\nor  violation of Art. 16, arising for consideration at\tall.
\nTherefore,  ‘both  the petitioners, will have  to  fail,  on
\nmerits.\n<\/p>\n
A  more serious contention has, however, been taken, by\t the
\npetitioners,  that  the second respondent has no  power,  in
\nlaw,  to  frame,  either  the Scheme,  Annexure\t 4,  or\t the
\nmodified  Scheme,  Annexure 7, so as to\t have  retrospective
\neffect, from December 1, 1954.\tThough both the\t petitioners
\nhave raised this contention
\n583<\/span>
\nin  the writ petitions, Mr. Chatterjee, learned counsel\t for
\nthe  petitioner\t in Writ Petition No. 165 of 1967,  was\t not
\nprepared  to  wake up that extreme  position,  because,\t his
\nattempt,   was\tto  show  hat  his  client   satisfies\t the
\nrequirement of the qualifications, laid down for  promotion,
\nin  Annexure  4,  read\twith Annexure  7.  We  have  already
\nnegatived  that\t contention; but this legal  contention\t has
\nbeen  persisted,  before  us, by Mr. K.\t L.  Mehta,  counsel
\nappearing  for\tthe petitioner, in Writ Petition No.  96  of
\n1967.\n<\/p>\n
Mr.  Mehta,  by reference to the provisions  of\t the  Indian
\nRailway\t Board\tAct,  1905  (Act IV of\t1905),\tand  to\t the
\ndecision  of  this Court in  State  v.\tPadmanabhacharya<\/a>(1),
\nurged that the 2nd respondent had no power to frame a  rule,
\nhaving\t retrospective\t effect.   In  our   opinion,\tthis
\ncontention cannot be accepted.\tAct IV of 1905 is an Act  to
\nprovide for investing the Railway Board with certain  powers
\nof  functions,\tunder the Indian Railways  Act,\t 1890.\t The
\npreamble  to  that Act shows that a Railway Board  has\tbeen
\nconstituted, for controlling the administration of  Railways
\nin  India.  Section 2 provides that the Central\t Government,
\nmay,  by notification, in the Official Gazette,\t invest\t the
\nRailway Board, either absolutely, or subject to\t conditions,
\nwith  powers, or -functions, stated therein.  That  statute,
\ndoes  not, in any way, advance the petitioners’\t contention.
\nAs  we\tshall presently show, the decision  of\tthis  Court,
\nreferred to above, does, not also support, the petitioners.
\nThere  is no controversy that the Indian Railway  Establish-
\nment Code has been issued, by the President, in exercise  of
\nthe, powers, vested in him,. by the proviso to Art. 309,  of
\nthe  Constitution.  Only two rules require to be noted,\t and
\nthey are rr. 157 and 158, occurring in Chapter 1, under\t the
\nsub-heading ‘Power to frame rules’.  They are as follows:\n<\/p>\n
\t      ” 157.  The Railway Board have full powers  to
\n\t      make  rules of a general application  to\tnon-
\n\t      gazetted railway servants under their control.\n<\/p><\/blockquote>\n
\t      158.  The General Managers of Indian  Railways
\n\t      have full powers to make rules with regard  to
\n\t      non-gazetted  railway  servants  under   their
\n\t      control,\tprovided they are  not\tinconsistent
\n\t      with  any rules made by the President  or\t the
\n\t      Railway Board.”\n<\/p><\/blockquote>\n
We  are not concerned, really in this matter, with  r.\t158,
\nbecause\t the Scheme, Annexures 4 and 7, in  particular,\t and
\nthe various orders, have been passed by the 2nd\t respondent,
\nthe Railway Board.  The Railway Board, as will be seen\tfrom
\nr.   157,  have\t full  powers  to  make\t rules\tof   general
\napplication,  to non-gazetted railway servants\tunder  their
\ncontrol.  The question is whether the,
\n(1)  [1966] 1 S.C.R. 994.\n<\/p>\n
584<\/span><\/p>\n
2nd  respondent,  has, while acting under r. 157,  power  to
\nmake -a rule (in this case, the Scheme), having effect\tfrom
\nan anterior date.\n<\/p>\n
The  matter  must  be  considered,  in\tthe  light  of\t the
\nprovisions ,of Art. 309, of the Constitution.  That  Article
\nprovides :\n<\/p>\n
\t      “309.   Subject  to  the\tprovisions  of\tthis
\n\t      Constitution,   Acts   of\t  the\t appropriate
\n\t      Legislature may regulate the recruitment,\t and
\n\t      conditions of service of persons appointed, to
\n\t      public  services and posts in connection\twith
\n\t      the affairs of the Union or of any State :
\n\t      Provided\tthat it shall be competent for\tthe,
\n\t      President\t or such person as he may direct  in
\n\t      the  case of services and posts in  connection\n<\/p><\/blockquote>\n
\t      -with  the affairs’ of the Union, and for\t the
\n\t      Governor\tof a State or such person as he\t may
\n\t      direct  in the case of services and  posts  in
\n\t      connection  with the affairs of the State,  to
\n\t      make rules regulating the recruitment, and the
\n\t      conditions of service of persons appointed, to
\n\t      such  services  and posts until  provision  in
\n\t      that behalf is made by or under an Act of\t the
\n\t      appropriate  Legislature under  this  article,
\n\t      and  any\trules  so  made\t shall\thave  effect
\n\t      subject to the provisions of any such Act.”\n<\/p><\/blockquote>\n
We may emphasize the words ‘and any rules so made shall have
\neffect subject to the provisions of any such Act, which must
\nreceive\t their due weight.  To that aspect, we- shall  come,
\npresently.\n<\/p>\n
We  have already pointed out, that Annexure 4 was issued  on
\nFebruary  5,  1957, and Annexure 7, on March 30,  1963,\t and
\nthat the initial constitution of the Service was to be\tfrom
\nDecember  1,  1954,  and  it-is, on  that  basis,  that\t the
\npromotions, or appointments, to the Service, are to be made.
\nIn   this  -case,  there  is  no  Act  of  the\t appropriate
\nLegislature,  regulating the recruitment and  conditions  of
\nservice,  under the 2nd respondent and, therefore, the\tmain
\npart  of Art. 309 is not attracted.  But, under the  Proviso
\ntherein,  the  President has got full power to\tmake  rules,
\nregulating  the recruitment, and conditions of\tservice,  of
\npersons,  under\t the  2nd  respondent  Further,\t under\t the
\nProviso,  such person, as may be directed by the  President,
\ncan   also  make  rules,  regulating  the  recruitment\t and
\nconditions of service, of persons, under the 2nd respondent.
\nThe rules so made, either by the President, or such  person;
\nas  he may direct, will have currency, until  provision,  in
\nthat  behalf,is made by or under an Act, of the\t appropriate
\nLegislature, under Art. 309.\n<\/p>\n
It is also significant to note that the proviso to Art. 309,
\nclearly lays down that ‘any rules so made shall have effect,
\nsubject\t to the provisions of any such Act’.  The clear\t and
\nunambiguous
\n585<\/span>
\nexpressions,  used in the Constitution, must be given  their
\nfull  ad  unrestricted\tmeaning, unless\t hedged-in,  by\t any
\nlimitations.  the  rules, which have to be ‘subject  to\t the
\nprovisions of the Constitution, shall have effect,  ‘subject
\nto  the\t provisions  of\t any such  Act.\t  That\tis,  if\t the
\nappropriate  Legislature has passed an Act, under Art.\t309,
\nthe  rules,  framed under the Proviso,\twill  have  effect,-
\nsubject to that Act; but, in the absence of any Act, of\t the
\nappropriate Legislature, on the matter, ‘in our opinion, the
\nrules, I made by the President, or by such person as he\t may
\ndirect,\t are to have full effect, both\tprospectively,\tand,
\nretrospectively.   Apart from the limitations’\tpointed\t out
\nabove,\tthere is none other, imposed by the proviso to\tArt.
\n309, regarding the ambit of the operation of such-rules.  In
\nother  words,  the rules, unless they can  be  impeached  on
\ngrounds\t  such\tas  breach  of\tPart  111,  or\t any   other
\nConstitutional\tprovision, must be enforced, if made by\t the
\nappropriate authority.\n<\/p>\n
In the case before us, the Indian Railway Establishment Code
\nhas  been issued, by the President, in the exercise  of\t his
\npowers,” under the proviso to Art. 309.\t Under Rule 157 the,
\nPresident has directed the Railway Board, to make rules,  of
\ngeneral application to non-gazetted railway servants,  under
\ntheir  control.\t  The  rules,  which  are  embodied  in\t the
\nSchemes,  framed by the Board, under Annexures 4 and 7,\t are
\nwithin\tthe  powers,  conferred under r. 157;  and,  in\t the
\nabsence of any Act, having been passed by the  ‘appropriate’
\nLegislature,  on the said matter, the rules, framed  by\t the
\nRailway\t Board, will have full effect and, if so  indicated,
\nretrospectively also.  Such indication, about  retrospective
\neffect,\t as has already been pointed out by us,\t is  clearly
\nthere, in the impugned provisions.\n<\/p>\n
The decision of this Court in State v.\tPadmanabhacharya<\/a>(1),
\ndoes  not assist the petitioners.  The rule, that  came\t up,
\nfor  consideration, has been referred to, at P. 999, of\t the
\nReports,  in the judgment of Wanchoo, J., (as he then  was);
\nand  the Court specifically says that the rule, referred  to
\nby it, cannot be made, under the proviso to Art. 309, of the
\nConstitution.\tIt is further stated that the  notification,
\nreferred  to,  cannot be said to be a rule,  regulating\t the
\nrecruitment  and conditions of service of persons  appointed
\nto the services and posts, in connection with the affairs of
\nthe  State.  This Court further observes that the effect  of
\nthe notification, or the rule, that it had to consider, was,
\nto   select  certain  Government  servants,  who  had\tbeen
\nillegally  required to retire, and to say that even  if\t the
\nretirement  had\t been  Illegal, that  retirement  should  be
\ndeemed\tto have been properly and lawfully  made.   Finally,
\nthe  Court  said,  that\t such a\t declaration,  made  by\t the
\nGovernor, cannot, in any sense, be regarded as a rule,\tmade
\nunder
\n(1)  [1966] 1 S.C.R. 994.]
\n586<\/span>
\nthe  proviso to Art. 309.  Having held that the rule,  which
\nwas  before it, was not one made under the proviso  to\tArt.
\n309,  the Court further observed, in that case, that it\t was
\nnot   necessary\t to  decide,  whether  a   rule,   governing
\nconditions  of service, of persons appointed  in  connection
\nwith the affairs of the State, can be made  retrospectively,
\nunder  the  proviso  to Art. 309.   This  decision,  in\t our
\nopinion, can be distinguished, on two grounds : (i) that the
\nrule,  in question, construed by the Court, was held  to  be
\none,  not coming within the purview of the proviso  to\tArt.
\n309; and (ii) the question, as to whether a rule, under\t the
\nproviso\t to Art. 309, can be framed, to\t have  retrospective
\neffect, has been left open.\n<\/p>\n
In  this connection, we, may refer to two decisions, of\t the
\nMysore High Court, and one of the Allahabad High Court.\t The
\nMysore High Court, in the decisions, Govindaraju v. State of
\nMysore(‘)  and Govindappa v. I. G. of  Registration(1),\t has
\ntaken  the view that it is, not open to the Governor,  under
\nthe   proviso  to  Art.\t 309,  to  frame  a   rule,   having
\nretrospective  effect.\t We may state that the\tdecision  in
\nGovindaraju’s Case(2) came up, before this Court, on appeal,
\nin Nagaraian v. Mysore (3).  But this Court, in\t Nagarajan’s
\nCase(3),  had  no, occasion to express any  opinion  on\t the
\nquestion  as to whether the Governor, under the\t proviso  to
\nArt.   309,  could  frame  a  rule,   having   retrospective
\noperation,  as it took the view that the relevant rules\t had
\nnot been made under Art. 309.\n<\/p>\n
A Full Bench of the Allahabad High Court, on the other hand,
\nin Ram Autar v. State of U.P.<\/a> (4) has taken a view, contrary
\nto  the one, expressed by the Mysore High Court.  We are  of
\nopinion that the latter, represents the correct view.\tBut,
\neven  the Allahabad High Court has not given due  importance
\nto  the mandatory words, used in the concluding part of\t the
\nproviso\t to Art. 309, that the rules made, by the  authority
\nmentioned  therein,  ‘shall  have  effect,  subject  to\t the
\nprovisions   of\t any  such  Act’.   This  aspect  has\tbeen
\nemphasized by us, in the earlier part of this judgment.
\nTo  conclude,  on this aspect, ‘we are\tsatisfied  that\t the
\nScheme, Annexure 4, as modified by Annexure 7, framed by the
\n2nd  respondent,  Railway Board, such as it  is,  must\thave
\neffect, as it does not suffer from any defect in its  making
\nand does not offend against the Constitution.
\nIn the result, both the -writ petitions are dismissed;\tbut,
\nin the circumstances, parties will bear their own costs.\n<\/p>\n
\t\t\t\t Petitions dismissed.\n<\/p>\n
G.C
\n(1) A.I.R. 1963 Mys. 265.     (3) [1966] 3 S.C.R. 682.
\n(2) A.I.R. 1965 Mys. 25.      (4) A.I.R. 1962 All. 328, F.B.\n<\/p>\n
587<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India B. S. Vadera vs Union Of India & Ors on 27 March, 1968 Equivalent citations: 1969 AIR 118, 1968 SCR (3) 575 Author: C Vaidyialingam Bench: Hidayatullah, M. (Cj), Bachawat, R.S., Vaidyialingam, C.A., Hegde, K.S., Grover, A.N. PETITIONER: B. S. VADERA Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-235611","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nB. S. Vadera vs Union Of India & Ors on 27 March, 1968 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/b-s-vadera-vs-union-of-india-ors-on-27-march-1968\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"B. S. 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