Decided on December 18,2002

Devaram Respondents


- (1.)THE above appeal has been filed against the order of the Central Administrative Tribunal, Jodhpur Bench in OA No. 80 of 1992 dated 27-9-1994 whereunder the Tribunal, while allowing the claim of the first respondent herein for promotion to the post of ELF (Electrical Fitter Grade II) on the basis of a trade test held on 28-4-1987 in which he was said to have been declared successful, without appearing for and undergoing successfully the suitability test once again. In the process of granting the relief the Tribunal also held to be violative of Art.14 and Art.16 of the Constitution of India what in its view was the offending portion of R.224 of the Indian Railway Establishment Manual, Vol. I providing that an "employee has again to appear for a suitability test when his turn for promotion comes". A time - limit for implementation of the order was also stipulated but it is seen from the file of this appeal, not only interim orders have been obtained but the said interim orders have been ordered to be continued pending disposal of the appeal.
(2.)THE respondent though served with notice has chosen not to appear in person or through counsel to contest the claim.
Learned counsel appearing for the appellants challenge the decision of the Tribunal that in the light of a specific stipulation contained in R.214(c)(iv), the provision contained in R.224(II)(i) insisting upon the appearance for a suitability test again when the turn for promotion comes subsequently though after he refused to accept on two occasions the offer of promotion, would be arbitrary and unreasonable and denial of the right acquired by the first respondent by virtue of the earlier passing of the suitability test. R.214(c)(iv) and R.224(II)(i) are as under:

"214. (c)(iv) An employee who has passed a suitability test once need not be called for the test again and should be eligible for promotion as and when vacancies arise. 224. (II)(i) Non - selection posts. - Such an employee should be debarred for future promotion for one year but not be transferred away from that station for one year if unavoidable domestic reasons exists. He should again be debarred for promotion for one year in case he refuses promotion again after the first year of debarment or refusal of promotion for second time, the administration can however transfer him to outstation in the same grade and the employee has again to appear for a suitability test when his turn for promotion comes."

(3.)ONE reason which weighed with the Tribunal also seems to be that R.214(c)(iv) which was inserted by a proceeding dated 13-10-1967 had the effect of overriding R.224(II)(i) which came to be included as a part of the Rules on 14-10-1966. On that basis the Tribunal felt that the so - called offending portion of R.224(II)(i) noticed above which had the effect of not only debarring a person who got into the select list removed from the same but subjecting him once over again to undergo the suitability test which in the opinion of the Tribunal amounted to double jeopardy. We find also a casual reference in the order of the Tribunal that the Rules contained in the Manual in question have no statutory force. In a decision of this Court in Railway Board v. P. R. Subramaniyam, 1978 (1) SCC 158 : 1978 SCC (L&S) 35 it has been observed as under: (SCC pp. 158-59, para 3)
"3. In the Indian Railway Establishment Code, Volume I are the Rules framed by the President of India under Art.309 of the Constitution. Contained in the said Code is the well - known R.157 which authorises the Railway Board, as permissible under Art.309, to have 'full powers to make rules of general application to non - gazetted railway servants under their control'. The Railway Board have been framing rules in exercise of this power from time to time. No special procedure or method is prescribed for the making of such rules by the Railway Board. But they have been treated as rules having the force of rules framed under Art.309 pursuant to the delegated power to the Railway Board if they are of general application to non - gazetted railway servants or to a class of them."

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