PROSAD CH. DAS v. COMMRS. FOR THE PORT OF CAL — 1965 DIGILAW 248 (CAL)

B. C. MITRA, J, J. ( 1 ) THIS is an appeal against a judgment and order of Sinha, J. dated June 4, 1964, whereby a rule nisi obtained by the appellant, in an application under Article 226 of the Constitution, was discharged. ( 2 ) THE appellant's case as made out in the petition is that on November 29, 1943, he was appointed a Yard Clerk in the Transportation Section of the Traffic Department of the Commissioners for the Port of Calcutta, the respondent No. 1 herein. In December, 1945, he was promoted to the post of Upper Division Clerk and on June 8, 1951, he was confirmed in that post. The next higher post to which the Upper Division Clerks could be promoted was the post of Yard Foreman. The appellant had officiated for sometime in the post of Yard Foreman, but he came to know that one Sunil K. Roychowdhury who was appointed in 1945 to the post of Yard Clerk, Transportation Section, was likely to be promoted treating him as senior to the appellant, on the ground that the said Sunil K. Roychowdhury had been recruited in 1940 in the A. R. P. Unit in the port area. The promotion of Sunil K. Roychowdhury is alleged to have been made on the basis of a circular July 3, which is annexure 'a' to the petition. ( 3 ) IT is alleged that by a circular dated July 10, 1940, employees of the respondent No. 1 were invited to volunteer for service overseas in the A. R. P. Dock Unit proposed to be raised by the army, and in the said circular it was stated that war service would count towards grade increment with the Commissioners, and that those who were temporary would be made permanent, before they went overseas. ( 4 ) BY another circular dated July 27, 1940, it was made clear that unless sufficient number of volunteers from the employees of the respondent No. 1 joined the proposed A. R. P. Dock Unit to be raised by the army, by July 31, 1941, outsiders would be recruited and in that event they would be given permanent posts in the service of the respondent No. 1 from the date of enrolment. In terms of this circular ten outsiders were recruited in the A. R. P. Dock Unit and they were given permanent posts under the Commissioners from the date of their enrolment. A second Unit was raised with regard to which it was stated in a Note by the Chairman of the respondent No. 1 that outsiders recruited for this Unit would get prior consideration after the war. Priority was also promised to full time Port A. R. P. Staff. ( 5 ) IT is alleged that the appellant belonged to the Railway Transportation Section and by reason of the seniority promised to the A. R. P. staff, the original employees of the Railway Traffic Section became junior to the A. R. P. staff and this affected the chance of their promotion to the higher grade. It is further alleged that the said circular dated July 3, 1958, is inequitable and discriminating, as the A. R. P. staff has been absorbed in the various other departments, but seniority was not given to them over regular staff in the matter of promotion. It is also alleged that in the Traffic Department itself there are different sections but except for the Transportation Section, the A. R. P. staff has not been given seniority in other sections. ( 6 ) ON July 24, 1961, the appellant and others made a representation to the Superintendent of Transportation of the respondent No. 1 against their supersession in the seniority list by the A. R. P. staff. As there was no response from the respondent No. 1 on this representation, further representation was made by the Calcutta Port and Dock Workers Union to the Regional Labour Commissioner, and the Chairman of the respondent No. 1, complaining that a departure had been made from the seniority rules. The Conciliation Officer, however, by his letter dated December 12, 1961 informed the aggrieved parties that nothing could be done in the matter. ( 7 ) IT is alleged that the said circular has been issued by the Secretary of the respondent No. 1 in excess of his powers and is, therefore, illegal, as it relates to conditions of service of employees under the respondent No. 1, and it is within the exclusive jurisdiction of the Commissioners for the Port of Calcutta, to frame regulations and rules relating to the terms of service of the employees. It is also alleged that Sections 47 and 31 of the Calcutta Port Act, 1890, debar the Secretary of the respondent No. 1 from passing any order in regard to the conditions of service of the employees of the respondent No. 1. ( 8 ) THE appellant moved a petition under Article 226 of the Constitution, and obtained a rule nisi which was discharged by the trial Court as hereinbefore stated. ( 9 ) MR. Arun Prokash Chatterjee, learned Advocate for the appellant, contended that the trial Court was wrong in declining to give relief to the appellant on the ground of delay. The trial Court held that the supersession commenced over ten years ago, and in 1959 opportunities were given to the parties to agitate the matter and this opportunity was not availed of. The view taken by Sinha, J. was that the circular dated September 24, 1959 clearly gave an opportunity to the parties who were likely to be affected by it, to prefer appeals, but nobody availed of this opportunity. Much later, an attempt was made to reopen the matter, through the Conciliation Officer who pointed out that cover a decade had elapsed since the absorption of the A. R. P. officers and it would be impossible at that late stage to reopen the seniority question. It was not until 1963 that the appellant moved the application and obtained the rule and therefore the learned Judge came to the conclusion that the application was barred by delay. ( 10 ) MR. Chatterjee argued that there was sufficient explanation for the delay in making the application under Article 226 of the Constitution. In the first place, he argued, his client was prevented from taking any steps, as 2 seniority lists were published namely, List No. XIV in which the name of Sunil Roychowdhury appeared and another list, namely, List No. XVI in which the name of the appellant appeared. It was argued that as different seniority lists were published, objection could be made only regarding the list in which the name of the objector appeared and not relating to the other list. It was argued that the draft of the seniority list was published on September 24, 1959. The seniority list was finally approved in June, 1960. Thereafter on July 24, 1961, representation was made by several employees including the appellant to the respondent No. 1. It was argued that the draft of the seniority list was published on September 24, 1959. The seniority list was finally approved in June, 1960. Thereafter on July 24, 1961, representation was made by several employees including the appellant to the respondent No. 1. This representation was followed by a representation to Regional Labour Commissioner on July 27, 1961. On August 31, 1961, the Conciliation Officer asked for certain information, namely, the names of the A. R. P. personnel who had gained seniority over other employees. On December 12, 1961, the Conciliation Officer informed the Joint Secretary of the Union that nothing could be done in the matter. It was, therefore, argued that till the end of 1961, the appellant was pursuing the alternative remedy which was available to him. The writ petition was moved in February, 1963, and it could not, therefore, be said, it was argued that there was such delay in moving this Court as to debar the appellant from relief on that ground. ( 11 ) MR. Chatterjee next contended that the limitation for a declaratory suit under the Limitation Act, 1908 was six years and if it was contended that the limitation relating to declaratory suit would not apply, as some pecuniary benefit was claimed by the appellant, even then limitation for a suit for recovery of money would be three years. Applying this rule of limitation, which according to Mr. Chatterjee, should be applied, the petition was made well within the period of limitation. In support of this contention Mr. Chatterjee relied upon the decision of the Supreme Court in (1) St. of Madhya Pradesh and another v. Bhailal Bhai and others, AIR 1964 SC 1006 . The passage relied upon by Mr. Chatterjee is at page 1012 of the report and is as follows :-"it appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. "relying upon the above observations of the Supreme Court, Mr. Chatterjee argued that the limitation prescribed by statute should be taken as the measure in dealing with the question of delay in a writ petition. He conceded that nothing was done by his client between December 12, 1961, on which date the Conciliation Officer informed the Joint Secretary, Calcutta Port and Dock Workers' Union that nothing could be done by him in the matter which was referred to him, and February 7, 1963, the petition having been moved and rule nisi obtained on February 8, 1963. It was argued that this delay of only one year and two months was not so unreasonable as to debar his client from relief on the ground of delay. ( 12 ) MR. Chatterjee next referred to another decision of the Supreme Court reported in (2) AIR 1965 SC 1405 (Mademsetty Satyanarayana v. G. Y. Rao and others ). In that case the question was whether the discretion contemplated by Section 22 of the Specific Relief Act should be exercised against a party who had waited for the full period of limitation of three years provided in Article 113 of the Limitation Act. It was argued by Mr. Chatterjee that relief could not be denied under the Specific Relief Act if the party seeking relief commenced the proceeding within the period of limitation, even though he chose to wait till the last day of the period prescribed by the Limitation Act. This decision is of no concerned with any statutory period of limitation, but as was pointed by the Supreme Court, the period prescribed by the Limitation Act might be taken as a standard to measure the diligence of a party seeking relief under Article 226. But even if a party comes to the Court within the period prescribed by the Limitation Act, the Court may still consider if there was delay arising out of the laches or negligence or want of diligence. ( 13 ) MR. P. P. Ginwalla, learned counsel for the respondents Nos. But even if a party comes to the Court within the period prescribed by the Limitation Act, the Court may still consider if there was delay arising out of the laches or negligence or want of diligence. ( 13 ) MR. P. P. Ginwalla, learned counsel for the respondents Nos. 1 and 2 contended that Sinha, J. , was entirely right in holding that the delay was unreasonable, and such delay debarred the appellant from any relief in the application. He argued that a delay of one year and two months must be treated as fatal in an application under Article 226. It was next argued that the appellant had offered no explanation as to the cause or justification for the delay in moving this Court for relief. The rights of third parties namely A. R. P. employees, who were promoted on the basis of the said circular dated July 3, 1958, were involved. These employees, Mr. Ginwalla argued, were allowed to hold the posts to which they were promoted and to draw the emoluments of the higher post during all this time. It was further argued that the appellant and the other employees submitted a written representation to the Superintendent of Transportation, Calcutta Port Commissioners on July 24, 1961, nearly five months prior to the letter from the Concilliation Officer, stating that no further action could be taken by him. The said representation dated July 24, 1961, is annexure 'c' to the petition. The supersession, it was argued, must therefore have, taken place sometime before July 24, 1961, and the A. R. P. staff who were promoted held the higher posts in any event for more than a year and a half before the appellant moved the writ petition. ( 14 ) MR. Ginwalla next referred to paragraph 11 of the affidavit-in-opposition affirmed by Rati Prasanna Chanda on April 11, 1963 and contended that the draft seniority list in which the appellant's name appeared was circulated as early as September 24, 1959. ( 14 ) MR. Ginwalla next referred to paragraph 11 of the affidavit-in-opposition affirmed by Rati Prasanna Chanda on April 11, 1963 and contended that the draft seniority list in which the appellant's name appeared was circulated as early as September 24, 1959. In paragraph 10 of the affidavit-in-reply affirmed by the appellant on May, 1, 1963, which dealt with the said paragraph 11 of the affidavit-in-opposition, it had not been denied that the appellant came to know of his position in the seniority lists on September 24, 1959, although he alleged that two seniority lists were published, one containing his name and the other containing the name of Sunil Roychowdhury. It was argued that the appellant in any event had sufficient time at his disposal to consider his position, and there was, therefore, no justification for the dealy from December 13, 1961 to February 7, 1963. ( 15 ) MR. Ginwalla next argued that the said decision of the Supreme Court reported in (1) AIR 1954 SC 1006 is no authority for the proposition that the period of limitation prescribed by the statute should be taken to be the standard by which delay in seeking remedy under Article 226 could be measured. Indeed, Mr. Ginwalla argued that this decision supports the respondents' case, as the Supreme Court held that delay might be considered to be unreasonable even if it was less than the period of limitation prescribed for a civil action. It was argued that the question whether the delay in seeking relief under Article 226 was unreasonable must depend on the facts of the case, and in this case the facts were such that on the ground of delay alone relief should be denied to the appellant. ( 16 ) IN our opinion Mr. Ginwalla's contention on the question whether delay should debar the appellant from relief, appears to be well founded. The other employees of the respondent No. 1, had been enjoying the benefit of promotion since prior to 1958. The impugned circular dated July 3, 1958, made that position quite clear. The appellant and the other employees who are alleged to have been affected by this circular had been given the opportunity of preferring an appeal by the circular dated September 24, 1959, by which the draft seniority list was published. The impugned circular dated July 3, 1958, made that position quite clear. The appellant and the other employees who are alleged to have been affected by this circular had been given the opportunity of preferring an appeal by the circular dated September 24, 1959, by which the draft seniority list was published. Neither the appellant nor any other employee chose to agitate the matter and instead allowed the promotees to enjoy the benefit of promotion without interruption. Even if the representations made by the appellant and the other employees on July 24, 1961, to the Superintendent of Transportation and on July 27, 1961, to the Regional Labour Commissioner, are taken into consideration as attempts made by the aggrieved employees to agitate their grievances, there is no justification whatsoever for the delay one year and two months as mentioned above in moving this Court. In the facts of this case it must be held that the delay is unreasonable and is such as to debar the appellant from any relief in the writ petition. ( 17 ) THE next contention of Mr. Chatterjee was that the trial Court was wrong in holding that the A. R. P. staff who had been promoted by superseding other employees, were necessary parties to this application and as they have not been impleaded in the writ petition, no relief could be granted to the appellant. It was argued that the appellant's grievance is with regard to the circular dated July 3, 1958, which was issued by the Secretary of the respondent No. 1. The appellant, it was argued, would be content if this circular was cancelled and/or withdrawn or if directions were issued directing the respondent to forebear from giving effect to the same. Mr. Chatterjee further argued that the appellant was not seeking an order declaring the promotion of the A. R. P. staff to be bad. It was, therefore, according to Mr. Chatterjee, not necessary to make the A. R. P. staff who had been promoted parties to the writ petition. ( 18 ) IN prayer (a) of the writ petition, however, the appellant has asked for an order directing the respondent to forbear from giving effect to the order, if any, promoting Sunil Kumar Roychowdhury, who has not been impleaded a party to the writ petition, in supersession of the appellant. ( 18 ) IN prayer (a) of the writ petition, however, the appellant has asked for an order directing the respondent to forbear from giving effect to the order, if any, promoting Sunil Kumar Roychowdhury, who has not been impleaded a party to the writ petition, in supersession of the appellant. On the petition as it stands, an order is asked for against an employee without making him party t the petition. Mr. Chatterjee realised this difficulty and conceded that he was not pressing for any order regarding the promotion of Sunil Kumar Roychowdhury and he would be content with an order directing the respondent to cancel and/or withdraw the said circular dated July 3, 1958. It was argued that for such an order it was not necessary to implead all the different employees who were to be affected by the cancellation of the said circular. The respondents alone are the necessary parties and they are already before the Court. Therefore, it was argued, the trial Court was in error in holding that no relief could be granted to the appellant, as the necessary parties were not before the Court. ( 19 ) IN support of this contention Mr. Chatterjee relied upon the decision of the Supreme Court in (3) T. Devadasan v. Union of India, AIR 1964 SC 179 . In that case supplementary instructions by the Central Government for carrying forward vacancies for one year were issued, as sufficient number of qualified candidates from among the scheduled castes and tribes were not available. These instructions were subsequently modified and provided that 17 per cent of the total vacancies in a year would be reserved for being filled up from amongst the candidates belonging to scheduled castes and tribes. It was also provided that if any year suitable candidates were not available from among the scheduled castes and tribes, the vacancies would be filled up by candidates from other classes, and a corresponding number of posts would be carried forward to the next year and similarly if in the next year qualified candidates of the schedules casts and tribes were not forthcoming the vacancies would be carried forward to the third year. The instructions even provided for a perpetual 'carry forward' of unfilled reserved-vacancies and in addition provided that 17 per cent of the total vacancies would be filled by candidates of the special classes. The instructions even provided for a perpetual 'carry forward' of unfilled reserved-vacancies and in addition provided that 17 per cent of the total vacancies would be filled by candidates of the special classes. If the formula of reservation was worked out the reservation for the special classes would amount to more than 50 per cent. On the basis of the reservation prescribed by the instructions, out of 45 vacancies actually filled in the year 1961, 29 went to members of the scheduled castes and tribes and that came to 64 per cent of the reservation. The question before the Supreme Court was whether the 'carry forward' rule as modified was unconstitutional either because its operation practically destroyed the fundamental rights guaranteed by Article 16 (1) of the Constitution or because it is violative of the guarantee in Article 14. The majority view of the Supreme Court was that the 'carry forward' rule as modified must be struck down as invalid and unconstitutional. Dealing with the question of parties, the Supreme Court held at page 189 of the report that the only relief that could be granted to the appellant was a declaration about the invalidity of the 'carry forward' rule and that no further relief could be granted because the persons who had been appointed and who might be affected by the decision had not been joined as respondents in the petition. Relying upon these observations, Mr. Chatterjee argued that his prayer for a declaration that the circular was bad, could not be defeated on the ground that the persons promoted on the basis thereof had not been impleaded as parties to the writ petition. This decision, in our opinion, does not support Mr. Chatterjee's contention because in the facts of the case before the Supreme Court, it turned out that if 'carry forward' rule was given effect to, the reservation actually made for the scheduled castes and tribes would come up to 64 or 65% of the vacancies which was far in excess of the 17 per cent which was to be reserved for the special classes under the Notification issued by the Union Public Service Commission. The Supreme Court came to the conclusion that if the modifications were given effect to then the reservation for the candidates of scheduled castes and scheduled tribes would be violative of Article 16 (4 ). The Supreme Court came to the conclusion that if the modifications were given effect to then the reservation for the candidates of scheduled castes and scheduled tribes would be violative of Article 16 (4 ). The instructions issued by Government modifying the reservation rule were struck down on the ground that it infringed the provisions in the Constitution. In this case, however, we are not concerned with the question if the said circular is violative of any provision in the Constitution. The respondent No. 1 is a statutory body and their employees do not hold any office under the State. Article 16 of the Constitution, therefore, has no application. Subject to any statutory provisions the Commissioners for the Port of Calcutta can be controlled only by the ordinary law relating to master and servant in all questions connected with the employment of their staff. It cannot be said, therefore, that the circular is violative of any provision in the Constitution. The decision of the Supreme Court, therefore, is of no assistance to the appellant. ( 20 ) IN support of the contention that the appellant will be content with a mere declaration that the said circular is bad, Mr. Chatterjee also relied upon another decision of the Supreme Court in (4) K. K. Kochunni v. State of Madras, AIR (1959) SCA 248, in which it was held that the powers of the Supreme Court under Article 32 of the Constitution were wide enough to make even a declaratory order where that was the proper relief to be given to the aggrieved party. It was held in that case that the petitioner's right under Article 19 (1) (f) if the Constitution had been taken away or abridged by an act of the Madras Legislature. Relying upon this decision Mr. Chatterjee argued that because a mere declaratory order would be enough, it was not necessary for his client to implead the members of the A. R. P. staff as parties to the petitioner. ( 21 ) IN the decision of the Supreme Court in K. K. Kochunni's case (supra) the question of impleading necessary or proper parties was neither raised not discussed. The question before Supreme Court was whether under Article 32, declaratory order could be made to give relief to a party. This decision, therefore, does not uphold Mr. Chatterjee's contention on the question of impleading necessary parties. The question before Supreme Court was whether under Article 32, declaratory order could be made to give relief to a party. This decision, therefore, does not uphold Mr. Chatterjee's contention on the question of impleading necessary parties. ( 22 ) DEALING with this contention of Mr. Chatterjee, Mr. Ginwalla firstly referred to a Bench decision of this Court in (5) Kesho Prasad Singh v. F. Slacke and anr. , 13 CLJ 890. In this case a rule nisi was issued under Section 46 of the Specific Relief Act and the rule nisi was not served upon one of the parties who was likely to be affected by the relief claimed. It was held that the objection that necessary parties were not before the Court was fatal, and it was one of substance and not of mere form, and the principle was recognised in all cases where writs of mandamus were asked for that if right, title or interest in real property is directly involved, persons owning or claiming the same must be joined as parties. Relying upon this decision Mr. Ginwalla argued that in this case also the appellant asked for a writ of mandamus and the order that he prayed for would directly affect all the A. R. P. staff who have been promoted in supersession of the other members of the staff. Therefore, it was argued, necessary parties are not before the Court and in their absence no relief could be granted to the appellant. ( 23 ) ALTHOUGH the Bench decision of this Court discussed above was pronounced in an application under Sections 45 and 46 of the Specific Relief Act, the principle underlying the question, namely, if relief can be granted in an application in which the necessary parties have not been impleaded, is the same. ( 24 ) MR. Ginwalla next referred to the decision of the Supreme Court in (6) Uditnarain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar, AIR 1963 SC 786 , in which the question of impleading necessary parties was raised and after defining who are the necessary parties and who are the proper parties in a proceeding the Supreme Court held at page 789 of the report as follows :-"the next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi-judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before it. In a writ of certiorari the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it? Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the Court would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party. "relying upon those observations Mr. Ginwalla argued that as the A. R. P. staff who had been promoted were not impleaded parties to the writ petition, even if the circular was declared to be bad, the promotion given to the A. R. P. staff could not be affected as they were not impleaded. In any event, Mr. Ginwalla argued, the interest of the A. R. P. is directly affected and therefore on the basis of the decision of the Supreme Court they must be regarded as necessary parties, in whose absence, and without hearing whom, no relief could be granted to the appellant. ( 25 ) IN our opinion this contention of Mr. Ginwalla appears to be well founded. Even if the circular is declared to be bad, this promotion given to the A. R. P. staff could not be quashed or set aside in this petition, and these promotions which have already been affected must remain in force. It must, therefore, be held that the persons promoted on the basis of the said circular are necessary parties in whose absence no relief can be granted to the appellant. ( 26 ) THE next contention of Mr. It must, therefore, be held that the persons promoted on the basis of the said circular are necessary parties in whose absence no relief can be granted to the appellant. ( 26 ) THE next contention of Mr. Chatterjee was that the circular was bad and must be struck down as it was issued in contravention of the statutory provisions and in violation thereof. He argued that Section 31 (1) (i) of the Calcutta Port Act, 1980, required the Commissioners to frame rules for regulating the recruitment, promotion, conduct, discipline, punishment and any other matter relating to the terms and conditions of service of the employee. Under sub-section (3) of Section 31 rules so framed are not to take effect unless and until they have been approved by the Central Government. It was argued that the question of promotion and any other matter relating to the terms and conditions of service of the employees could be regulated only by rules to be framed by the Commissioners and by no other means. In this case no rules have been framed by the Commissioners and yet they proceeded to give effect to the promotion of certain employees, by superseding others, on the basis of the said circular dated July 3, 1958. This, Mr. Chatterjee, argued could not be done and the circular itself must be declared to be void as it is contrary to the provisions in Section 31 (1) (i) and (3 ). It was also argued that as the promotion had been effected contrary to the statutory provisions, they must be declared to be void. It was further argued that questions of seniority and promotion were matters relating to the conditions of service of the employees and such matters could not be determined by an executive order or circular, in the face of the statutory provisions which required the Commissioners to frame rules for that purpose. The said circular, Mr. Chatterjee argued, must therefore be held to be illegal and accordingly struck down. It was also argued that it is not the case of the respondents that any rules had been framed as contemplated by Section 31 (1) (i) and that even if the said circular dated July 3, 1958, was regarded as a rule, it was void as it had not been approved by the Central Government as required by sub-section (3) of Section 31. ( 27 ) MR. ( 27 ) MR. Ginwalla, on the other hand, sought to repeal Mr. Chatterjee's contention by drawing our attention to Section 32 (1) of the Calcutta Port Act, 1890 (hereinafter referred to as the Act), which provides that subject to any rules framed under Section 31 and also subject to certain other provisions, the power of appointing, promotion, granting leave to, suspending, etc. or disposing of any other question relating to the service of the employees shall be exercised in the case of the employees whose maximum monthly salary is less than Rs. 1000/- by the Chairman or the Deputy Chairman and in every other case by the Commissioners in meeting. Relying upon the provisions in Section 32 Mr. Ginwalla argued that under this section the Commissioners have been given complete power to deal with all questions relating to promotions and other questions connected with the service of the employees, subject to any rules framed in terms of Section 31 (1) (i ). In this case, it is true, that rules had not been framed, but Mr. Ginwalla argued that did not take away the power conferred on the Commissioners by Section 32. It was argued that there was ample provisions in Section 32 which empowered the respondent No. 1 to issue the impugned circular and also to give effect to the same. ( 28 ) IN answer to Mr. Ginwalla's contention Mr. Chatterjee contended that the power conferred on the Commissioners by Section 32 (1) could be exercised in the case of individual employees and could not be invoked or exercised to deal with the question of promotion or conditions of service of a group or class of employees as in this case, namely, the A. R. P. staff. He argued that the Commissioners could deal with the questions of conditions of service of individual employees but not of a group or class, which could be done only by a rule to be framed as provided in Section 31 (1) (i ). ( 29 ) IN our opinion there is no force in the contentions of Mr. Chatterjee based on Section 31 of the Act. It is true that Section 31 (1) (i) and Section 31 (2) of the Act require rules to be framed for regulating the various questions mentioned in Section 31 (1) (i) of the Act. ( 29 ) IN our opinion there is no force in the contentions of Mr. Chatterjee based on Section 31 of the Act. It is true that Section 31 (1) (i) and Section 31 (2) of the Act require rules to be framed for regulating the various questions mentioned in Section 31 (1) (i) of the Act. It is also true that in this case no rules have been framed. But the absence of rules by itself does not invalidate the promotions given to the A. R. P. staff, nor does it make the said circular dated July 3, 1958, illegal and void, having regard to the provisions in Section 32 (1) of the Act. Section 32 (1) confers powers on the Chairman or Deputy Chairman to deal with the questions of promotion, leave, suspension, fine, reduction or dismissal of employees whose maximum salary exclusive of allowance is less than Rs. 1000/- subject to the terms of the rules under Section 31. The appellant admittedly is a person drawing a salary of less than Rs. 1000/- and therefore his case is covered by Section 32 of the Act. It cannot be held that the powers conferred on the Chairman or Deputy Chairman and the Commissioners by Section 32 of the Act cannot be exercised merely because rules have not been framed as provided in Section 31 (1) (i) of the Act. There is no conflict or inconsistency between Sections 31 and 32 of the Act. If rules are framed under Section 31 Commissioners are required to exercise their power under Section 32 subject to such rules. But merely because rules have not been framed under Section 31, the powers conferred under Section 32 cannot be denied to the Commissioners. ( 30 ) WE cannot, for the reasons mentioned above, accept Mr. Chatterjee's contentions that the circular dated July 5, 1958 is illegal and the promotion given to the A. R. P. staff is void. We are also not impressed by Mr. Chatterjee's contention that the powers conferred on the Commissioners by Section 32 can be exercised only in the case of individual employees and not in the case of a group or class of employees. There is nothing in Section 32 to justify such a conclusion. We are also not impressed by Mr. Chatterjee's contention that the powers conferred on the Commissioners by Section 32 can be exercised only in the case of individual employees and not in the case of a group or class of employees. There is nothing in Section 32 to justify such a conclusion. On the other hand the language of Section 32 makes it clear that subject to any rules framed under Section 31 (1) (i) the Commissioners may deal with all the questions connected with the service of the employees enumerated in Section 31 (1) (i) of the Act. ( 31 ) BEFORE concluding I should refer to another contention of Mr. Ginwalla, namely that the appellant had applied for a writ of mandamus and before he could get any relief he must satisfy the Court that he had a right to the relief he had asked for. It was argued that a claim to promotion to a higher post was not a matter of right. There was no statute or rule which conferred upon the employees of the respondent No. 1 right to promotion. Therefore, Mr. Ginwalla argued that the appellant was not entitled to any relief as the only writ he had prayed for, is a writ of mandamus. It is, however, not necessary for us to express any views on this contention, which was raised before us for the first time and was not canvassed before the trial Court, having regard to the conclusions to which we have arrived at in this appeal on the other question and we accordingly refrain from expressing any views on this question, namely whether the appellant is entitled to any relief on this petition in which the only prayer is for a writ of mandamus. For the reasons mentioned above, this appeal fails and is accordingly dismissed. Each party to pay its own costs. Certified for two counsel. Appeal fails and dismissed.