G.C.Mathur, J. - (1.) The three petitioners are gazetted railway servants of Class II. Their scale of pay is Rs. 350-25-500-30-590-EB-30-800-EB-830-35-900. Petitioner nos. 1 and 3 have crossed both the efficiency bars but petitioner no. 2 has crossed only the first efficiency bar. respondent nos. 4 and 5 are gazetted railway servants of class I Junior Scale. Their scale of pay is Rs. 400-400-450-30-690-35-760-E.B.-35-950. Neither of them has crossed the efficiency Bar of the junior scale. Two vacancies at Allahabad of District Officers, namely District Engineer I and Sleeper Control Officer occurred. District Officer is a gazetted railway servant drawing pay on a scale applicable to Class I Senior Scale Officers. respondent nos. 4 and 5 were appointed respectively to officiating appointment of respondent nos. 4 and 5 to the two posts of District Officers are challenged in this writ petition.
(2.) Officiating appointments of posts of District Officers are governed by rule 133(3) of the Railway Establishment Code, Volume I. The petitioners main contention in the writ petition is that, under this rule, respondent nos. 4 and 5 who have not crossed their efficiency bar, could not have been appointed when gazetted railway servants, who had crossed the efficiency bar, like the petitioners, were available. Rule 133(3) reads thus:- "133. Promotions to gazetted posts - (1) ..................... (2) ..................... (3) The General Manager may appoint - (a) a non-gazetted railway servant to officiate in the class II Service; (b) a gazetted railway servant of the Class II Service to officiate as District Officer for a continuous period not exceeding one year on each occasion, when circumstances warrant such a course; (c) an Assistant Officer to officiate as District Officer, provided that such a gazetted railway servant who had not passed the efficiency bar may be so appointed only, if (i) a gazetted railway servant who has passed the efficiency bar is not available; or (ii) the vacancy is not expected to exceed three months; (d) a District Officer to officiate in a junior administrative post - (i) in the Electrical Engineering, Signal and Tele Communication Engineering and Stores Departments, provided that the vacancy is not likely to exceed four months; (ii) in other departments, provided that the vacancy is not likely to exceed eight months: Provided that if the railway servant is being promoted to this grade for the first time, it shall require the approval of the Railway Board; (e) except for the first time, a gazetted railway servant of a Railway Service, Class I, to officiate as a Divisional Superintendent, if the vacancy is not likely to exceed eight months; Note 1- ........................ Note 2- ....................... (f) substantively, an Assistant Officer to the District grade provided such promotions are made in strict order of seniority subject further to the condition that no officer shall be so promoted unless he has rendered not less than ten years of total service anti has been declared fit to cross the efficiency bar in the junior scale. Note- .......................... Admittedly, the petitioners are not Assistant Officers but respondent nos. 4 and 5 are The learned Advocate-General appearing for the petitioners accepts that the petitioners could only be appointed under clause (b) of this sub-rule and not under clause (c). In this case, we are mainly concerned with the interpretation of clause (c). Under this clause, an Assistant Officer may be appointed to officiate as District Officer. If an Assistant Officer has not passed the efficiency bar, then he may not be appointed if "a gazetted railway servant", who has passed the efficiency bar, is available. According to the petitioners, the expression "a gazetted railway servant" in sub-clause (i) of clause (c) includes a gazetted railway servant of class II. On this basis, it is urged that, if a gazetted railway servant of Class II, who has passed the efficiency bar, is available, then an Assistant Officer, who has not passed the efficiency bar, cannot be appointed to officiate as District Officer. Since the petitioners, who are gazetted railway servants of Class II and have passed the efficiency bar, were available, it is urged that respondent nos. 4 and 5 who are Assistant Officers who have not passed the efficiency bar, could not be appointed.
(3.) Clauses (a), (b), (c), (d) and (e) of sub-rule (3) of rule 133 make provision for officiating appointments only in the higher posts. Clauses (a), (b), (c) and (d) deal with promotions of different classes of officers. Clause - (1) deals with the officiating promotion of a gazetted railway servant of class II to the post of District Officer, while clause (c) deals with the promotion of an Assistant Officer to officiate as District Officer. This indicates that clause (c) is not at all concerned with a gazetted railway servant of Class II but only with an Assistant Officer. Therefore, the expression "a gazetted railway servant" in sub-clause (i) of clause (c) can refer only to an Assistant Officer and cannot include a gazetted railway servant of Class II. The expression "a gazetted railway servant" has been used in two places-first in the main part of clause (c) and then in sub-clause (i) of clause (c). Unless there is some compelling reason, it must have the same meaning in both the places. Learned counsel for the petitioners has shown no compelling reason. It is not disputed that the expression "a gazetted railway servant" in the main part of clause (c) refers only to an Assistant Officer and not to a gazetted railway servant of class II. It is, therefore, reasonable to read the same expression in sub-clause (1) of clause (c) as having the same meaning, that is to say, an Assistant Officer. The expression "efficiency bar" is also used in clause (c) at two places. It is first used in the main part of clause (c) and then in sub-clause (i) of clause (c).... The expression must refer to the same thing in both places. In the first place, there can be no doubt that, it refers to the efficiency bar in the scale of an Assistant Officer. There is no compelling reason why it should be read as referring to any efficiency bar other than the one in the scale of an Assistant Officer. If this expression in sub-clause (i) were held to refer to the efficiency bar in the scale of class II also, then a further difficulty would arise as to whether it refers to the first efficiency bar or to the second in the scale of class II servants. In my opinion, the efficiency bar in both places refers to the efficiency bar in the scale of Assistant Officers. Admittedly, railway servants of class II can only be appointed to officiate as District Officers under clause (b). For this officiating appointment, the passing of the efficiency bar of class II scale is not necessary. Then how can that same efficiency bar become material for purposes of clause (c) and enable a Class II Officer, who has passed the efficiency bar of class II scale, to out a class I officer who has not passed the efficiency bar of class I scale ? It is further to be seen that, normally, the avenue of promotion for officers of class II is to Class I Junior scale and not to class I Senior Scale to which District Officers belong. This is the avenue of promotion for substantive as well as for officiating appointments. Rule 116 prohibits the officiating promotion to the Assistant Officers' grade or to a higher grade (District Officers) of gazetted railway servants from class II. Clause (1) of sub-rule (3) of rule 133 shows that substantively class II officer cannot be promoted or appointed as District Officer. Clause (b) of rule 133(3) is a sort of exception to the general rule and permits the officiating appointment of a class II officer as District Officer, if no suitable person is available from amongst Assistant Officers. In considering the eligibility of Assistant Officers for officiating promotion as District Officers, Class II officers cannot he taken into consideration. For all these reasons, I have come to the conclusion that a class II officer, who has crossed the efficiency bar of class II scale, cannot come in the way of officiating appointment of an Assistant Officer as District Officer even if the Assistant Officer has not crossed the efficiency bar of his scale.;