(1.)F. M. A. No. 37 of 1968 is an appeal under clause 15 of the Letters Patent against the judgment and order dated August 18, 1967, making absolute Civil Rule No. 927 (W) of 1963 by D. Basu, J and FMA No. 243 of 1971 is also an appeal under the said clause 15 against the judgment and order dated March 18, 1971, by P. K. Banerjee, J. discharging thereby Civil Rule No. 3160 (W) of 1966. Since the points involved in the two appeals, viz. the scope, effect and interpretation of the 18 months Rule of the Railway were the same, by consent of parties they were heard together and they would thus be disposed of by one judgment.
(2.)In F. M. A. N. 37 of 1968, the employee concerned, viz, the respondent/petitioner (hereinafter referred to as the said employee) , who at the material time was holding the post of Chargeman, Grade 'a', was appointed to officiate as Assistant Foreman, Grade 'b' since 1956 and as a Head Planner which is equivalent to the post of an Assistant Foreman 'b' since January 31, 1961. Thereafter, on or about June 22, 1962, there was an announcement by the Deputy Chief Mechanical Engineer to the effect that a selection would be held by a Selection Board for the formation of a panel for appointment as Assistant Foreman 'b' and other posts and it is an admitted fact that the said employee was invited to appear in the said selection as an eligible candidate, but he failed in the selection test. He was allowed to appear in a fresh written test for the formation of panel of Assistant Foreman 'b' and other posts, by an order dated 18th/19th February, 1963. The said employee instead of appearing in the said test, challenged the validity of the said order contending, inter alia, amongst others that since he was officiating in the post of Assistant Foreman 'b' from 1956 i. e. , for a period of more than 18 months, he cannot be asked to appear in any selection test for being empanelled as a candidate eligible for promotion to the post of Assistant Foreman 'b' and furthermore he cannot be reverted from the said post without duly following the procedure as prescribed in the Discipline and Appeal Rules. Such contentions were raised in view of the Railway Board's letter of May 21, 1956, which is to the following effect: -"copy of Board's confidential D. O. Letter No. E55-RG 6/26 dated 21. 5. 56 from Sri N. Kamalakara Rao, Rly. Board, New Delhi to Sri Sarangapani,general Manager, Easter Railway, Calcutta. You will remember that the Rly. Board in their letter No. E 44 PM-12 PT. Dated 22. 11. 50 intimated that reversion of an employee from an officiating appointment to his substantive post or to a lower officiating appointment did not constitute a penalty. It was further clarified in para 3 (b) of Board's Secret letter No. E 52. RG 6/12 dated 16. 12. 54 that such reversion on the grounds of unsuitability will not attract the provision of Article 311 of the Constitution. Reversion in such circumstances would not constitute a penalty and would not necessitate the application of the procedure required by law and statutory rules. The Railway Board has given further thought to the matter. With the existence of a large number of temporary posts, continuing over long periods, cases are not unusual of persons having to officiate in higher grades for several years without being confirmed. Normally the additional posts created would be permanent, and the officiating employees would, if their service had been considered to be satisfactory, be confirmed very much earlier. Such persons could not therefore have been reverted to lower grades without following the procedure prescribed for reduction in rank. The Board considers that existence in the higher grades of an appreciable proportion of temporary posts, should not deprive Railway Servants of the protection that they would otherwise have obtained. On the other hand, it is necessary that every Railway servant must understand that his continued retention in a higher grade is dependent on satisfactory performance of his duties. The Board, therefore, desires that with immediate effect the performance of every Railway servant officiating in a higher grade should be adjudged by the competent officer before the expiry of 12 months of total officiating service, and if the performance is not satisfactory either the Railway servant may be reverted on the ground of unsuitability or he may be warned that his work is not quite satisfactory, but that he is being permitted to draw his increment in the expectation that his performance will improve during the next six months for which he will continue to be under observation. At the end of the extended period of six months, i. e. of a total officiating service of 18 months either the person should be declared suitable for retention in the grade or should be reverted because he is unsuitable. Any person who is permitted to continue to officiate beyond 18 months cannot in future be reverted for unsatisfactory work without following the procedure prescribed in the Discipline and Appeal Rules. The final assessment of the performance of each Railway servant officiating in higher grades at present, for a total period of over 12 months should be made without the next six months and action taken as indicated in the previous para, in respect of Railway servants officiating in higher grades for 18 months. "
(3.)The present appellants contested the said Rule and they in their affidavit-in-opposition contended that the post of Assistant Foreman 'b' and Head Planner, although of equal rank, were selection posts and promotions to such posts could only be made by positive acts of selection viz. , tests to be held by duly constituted Selection Boards in the manner prescribed by Rules. They also contended that the officiating promotions in the case of the said employee were nothing but temporary arrangements or accommodations which could not in any event give him any right to the post held by him nor entitle him to claim that it is not necessary for him to pass the selection test. It has also been stated by the said respondents that because of the said employee's refusal or failure to appear before the Selection Board, he had been duly reverted back to his substantive post of Chargeman, Grade 'a' by the order dated March 19, 1964. Since this order was not known to the said employee, he did not challenge the same initially but on the disclosure as aforesaid, he got his petition amended by incorporation new grounds.