B. C. MISRA, J. - (1.) This judgment will dispose of two civil writ petitions Nos. 133 of 1970 and 134 of 1970. They raise a common question of law. They came up for consideration before a learned Single I Judge of this Court and were referred by his lordship to a Division Bench and the Division Bench by order dated 12th May, 1971 has considered it fit to refer them to a still larger Bench subject to the approval of Hon'bic the Chief Justice. In this way these petitions have been placed before us for disposal. The facts as given in the referring order of the Division Bench are that the petitioners in both the writ petitions joined Railway Service in the year 1949 as booking clerks in the grade of Rs. 60-150. In the year 1957, they were promoted as Reservation Clerks in the same grade which was later on revised to Rs. 100-185 and then to Rs. 150-240. They were both confirmed on those posts in the year 1958. Subsequently on 27th June, 1963, Iqbal Singh (petitioner m the first noted writ petition) was promoted to officiate as Anti-Ticket Fraud Inspector in the grade of Rs. 250-380. Eventually selection for the posts of Chief Enquiry and Reservation Clerks in the grade of Rs. 250-380 was held by the relevant department of the Railway between 6th November, 1966 and 23rd September, 1968. Both the petitioners were called for interview for selection to the posts and both of them secured more than 75 per cent marks and were, therefore, placed in the panel framed by the Selection Committee, lqbal Singh (petitioner in the first noted writ petition) was placed at No. 3, while Gobind Ram Mehra (Petitioner in the second noted writ petition) was placed at No.4 in a panel of 18 selected candidates (copy Annexure 'A' dated 7th January, 1969). It appears that the penal E had been approved. Both the petitioners were consequently promoted to officiate as Chief Enquiry and Reservation Clerks and took over charg of their new posts, however on 29th January, 1970, they were served with the impugned order dated 22nd January, 1970 (Annexure 'C') intimating that both of them (along with one Panna Lal Sharma) had been reverted from. their officiating posts to their substantive grade of Rs 150-240 with immediat offer for the reason that the panel had shrunk from 21 to 18. This is the order which has been assailed in both the writ petitions in this Court.
(2.) The writ petitions have been opposed on behalf of respondents 1 and 2 and a counter-affidavit has been filed by Shri M. P. Mathur, Senior Personnel Officer of the Northern Railway. The position explained in the counter-affidavit is that to form a penal of 21 persons for the post of Chief Enquiry and Reservation Clerks, a selection was held, as a result of which 21 persons were selected. A provisional panel announcing the names of 18 persons was declared on 7th January, 1969; the name of one person was declared on 14th March, 1969 and the names of the remaining two could not be announced on account of certain pending enquiries; that 21 vacancies had been counted against which 84 persons including 4 Scheduled Castes were eligible in order of seniority and they were called for selection, lqbal Singh and Gobind Ram (petitioners before this Court) were at item Nos. 72 and 80 respectively in the seniority list of eligible candidates. J he 21 vacancies that were counted were 11 actual vacancies and 6 anticipated vacancies and 25 per cent thereof were 4. It is further explained that on receipt of a complaint against the selection, the matter was investigated and it was found that there were only 18 vacancies, namely 11 actual and 3 anticipated and 25 per cent thereof were 4. making a total of 18 and in view of 18 vacancies, only 72 persons in order of seniority, that is to say, 4 Scheduled Castes and 68 others were to be called for selection and as such only the first 68 senior most employees were to be considered. Since lqbal Singh and Gobind Ram were at serial Nos. 72 and 80, they could not be called for selection. The matter was brought to the notice of the General Manager, being the authority next above the authority which had approved the panel issued on 7th January, 1969 for deletion of the names of the petitioners and after obtaining the approval of the General Manager, the names D of the petitioners were removed from the panel and they were reverted to their lower grade of Rs. 150-240 vide letter dated 22nd January, 1970. It is further stated that out of 18 persons placed on the panel, the names of 16 had been retained on the provisional panel and the cases of two other selected persons were under consideration and the vacancies caused by the reversion of lqbal Singh and Gobind Ram petitioners to the lower grade were filled up temporarily. The other material facts are admitted that the petitioners had been setcclcJ and that they had been reverted by the impugned notice. The grounds pleaded in the writ petitions are controverted and it is urged that owing to the shrinkage of the panel, it was found that the petitioneis were not entitled to hold the posts and the reversion was not arbitrary, discriminatory, illegal or inala fide. In the counter-affidavit, there is a further reference about the reservation of the quota for the Scheduled Castes and the mistake occunmg, therdn, but. the same is not material for purposes of the decision of the writ petitions. the petitioners have filed rejoinder affidavits in reply and they have controverted the contentions of the respondents. In particular, they have made a reference to a writ petition filed in the Supreme Court where the then Assistant Director (Establishment) Railway Board, filed an affidavit dated 24th April, 1967 in which the break up of 21 vacancies was given as 14 existing, 3 anticipated and 25 per cent unforeseen, making a total of 21 and it is, therefore, asserted that the allegation about a mistake occurring in the number of existing vacancies I was not correct. It is further asserted that assuming there were 18 vacancies, still the petitioners might have been called for interview and had rightly been called and they had been classed as "outstanding" in the selection test. This shows that the controversy between the parties is this: The selection and appointment of the petitioners as Chief Enquiry and Reservation Clerks was admittedly legal and valid, if there were 21 vacancies and under the rules, four times the number were called to take the selection. Whether the said selection and promotion would not be valid, if the number of vacancies is ultimately discovered to be only 18 and four times its number in the list of seniority of eligible candidates would not include the petitioners (who were at serial Nos. 72 and 80) and consequently the petitioners have been validly and legally reverted. The relevant rules governing the promotion of subordinate staff have not been issued under Article 309 of the Constitution. They are, however, orders, directions and instructions of the Railway Board. They are contained in Section 'B' of Chapter II of the Indian Railway Establishment Manual issued on 1st August, 1960, corrected up to 1st April, 1968. They prescribe a procedure for promotion from lower grade to a higher grade (and from one class to another class and from one grade to another grade). Paragraph 212 makes a provision for promotion to non-selection posts out of the suitable seniormost railway servants on the basis of service record or departmental tests, if necessary. They provide that the number of eligible candidates to be considered at a suitability test should be twice the numher of vacancies and no hard and fast limit need be prescribed as to the number of candidates to be admitted from each eligible category and the employees passing the suitability test should only be placed on the panel. With regard to selection posts, paragraph 213 prescribes that selection posts shall be filled by a positive act of selec tion made with the help of selection boards from amongst the staff eligible for selection and ordinarily the railway servants considered will not be in grades lower than two grades below the post to which promotion is being made and the selection would be made primarily on the basis of merit. The competent authority has to accept the recommendation of the Selection Board, but if it is unable to accept the recommendation, reference may be made to the General Manager who may constitute a fresh panel at a higher level and whose decision in the matter will be final. Paragraphs 214 and 215 provide for the constitution of Selection Boards. Paragraph 216 prescribes the procedure to be adopted by the Selection Board. The Board has to hold a written test as well as Viva Voce test and the marks assigned for professional ability are 50, for personality, etc., 25 and for record of service again 25 and it is further stipulated that the candidates must obtain a minimum of 30 marks in professional ability and 60 per cent marks on the aggregate for being placed on the panel. The material clause on the construction of which both the parties before us rely, is contained in clause (d) of paragraph 216. The same is reproduced below for ready reference :- "Eligible staff upto four times the number of existing and anticipated vacancies plus 25 per cent thereof for unforeseen vacancies will be called for written and/or viva voce tests. (Anticipated vacancies connote only those which are likely to arise due to normal wastage during the currency of the panel). If this number can be obtained in the grade immediately lower, there would be no need to go to the grades further lower down. If the requisite number of staff on this basis is not available in the grade next to the grade for which the selection is being held. the Administration could go to lower grades in order to make up four times the number required to be called up for selection but in no case can the eligibility be extended to staff in grades lower than the third. Persons employed against fortuitous short-term or stop-gap promotions to the eligible grades made otherwise than in accordance with the regular approved method of promotion will not be eligible for consideration. It is desirable to hold written tests as part of a selection in respect of all initial selection grade posts in the different channels of promoion but in every case a viva voce test shall be held. If a written test is proposed to be held, advance intimation shall be given to all eligible candidates". The further provisions are that as a result of the tests held by the Selection Board, the names of the selected candidates are arranged in the order of seniority, but those securing a totai of more than 75 per cent marks are to be classed as "outstanding' and are required to be placed at the top of the list and the list is to be put up before the competent authority for approval and where the auhority does not approve the same, the matter is referred to the General Manager who may constitute a fresh Selection Board at a higher level or issue such other orders as he considers appropriate. After the competent authority has accepted the recommendation of the Selection Boar.J, the names of the candidates selected are notified to the candidates. Paragraph 218 provides that the retention of a railway servarnt's name on a panel will be subject to his or her continued suitability for the post in question and notwithstanding anything to the contrary, the removal of a railway servant's name from the panel would require specific approval of the authority next above that winch initially approved the panel.
(3.) In this context, reference may be made to paragraph 217 with B regard to the currency of the panel which reads as under:-- ''Currency of Panels:- (a) Panels drawn by a Selection Board and approved by the competent authority shall be current for two years from the date of approval by the competent authority or till these arc exhausted whichever is earlier. (b) * * * * (e) In case an employee lower in the panel has officiated whereas one higher in the panel has not officiated for reasons beyond the latter's control, the latter employee will not be required to appear for fresh selection.";