JUDGMENT (1.) BEING aggrieved by an order of reversion dated August 6, 1968, the Petitioner has moved this court in the Constitutional Writ Jurisdiction and has obtained the aforesaid rule challenging the validity of the said order of reversion; he has prayed for an appropriate writ for quashing the same. (2.) MATERIAL facts are not in dispute. Petitioner had earlier joined the army and was a commissioned officer serving from 1943 to 1948 with the corps of royal Indian Engineers (Electrical and mechanical Group). Being disbanded therefrom in 1948 he was appointed a class I officer with the Railways as a war service candidate. Such appointment was on Selection by the Public service Commission. On April 16, 1948, he joined the Ex. Bengal Nagpur Railway as a probationer in Mechanical engineering and Transport (Power)department of the Superior Revenue establishment of the State Railway in the grade of Rs. 350-850/ -. He was conferred seniority with effect from april 1, 1945. On competition of the probationary period on March 29, 1949, he was appointed an Assistant Loco and carriage Superintendent-a post in the junior scale. He was confirmed in the said cadre on April 16, 1951. On April 26, 1951 lie was promoted to the senior scale and was appointed a District Loco and Carriage Superintendent. He was confirmed in the said cadre on may 15, 1955. On September 23, 1961, he was further promoted to officiate in the Junior Administrative grade of Rs. 1300-1600/-, and was posted as deputy Chief Mechanical Engineer (Headquarters), Kharagpur. Such appointment was approved by the Railway board by its order dated November 27, 1961. He took over charge as the deputy Chief Mechanical Engineer on October 1, 1961 and was transferred as surfed to the Head Office at Garden reach on May 1, 1961. At the Head office he was posted as the Deputy Chief mechanical Engineer Carriage and wagon). After the petitioner had continuously served the administration as a Deputy Chief Mechanical Engineer from October 1, 1961 till August 3, 1968, he was reverted on the latter date to the senior scale by the impugned order of: the Railway Board. The Chief Personnel officer communicated the order by his memo dated August 6, 1968. After the petitioner had continuously served the administration as a Deputy Chief Mechanical Engineer from October 1, 1961 till August 3, 1968, he was reverted on the latter date to the senior scale by the impugned order of: the Railway Board. The Chief Personnel officer communicated the order by his memo dated August 6, 1968. According to the petitioner for the entire period he served the Railway administration as the Deputy Chief mechanical Engineer, his service was quite- satisfactory and there was no adverse report against him except in December 1967 when the Chief Mechanical engineer informed him verbally that he had been getting average reports and the Board desired that his work should improve. Contrary to this position on May 27, 1967, Petitioner was sponsored by the Railway Administration for appointment as an Additional chief Mechanical Engineer with the fertiliser Corporation of India a post higher in rank than the one held by him. It is only in the background of these circumstances that he was reverted. According to the respondents, Petitioner had been consistently receiving average reports since the time he was officiating as a Deputy Chief Engineer; his work showed no improvement, the board issued a warning letter which was communicated to the petitioner by the chief Mechanical Engineer and because of such reports he was ultimately reverted. It is, however, not the Respondents' case before this Court that but for the verbal warning of December 1967, any adverse entry in the confidential reports was ever communicated to the Petitioner though he had been serving as a Deputy chief Mechanical Engineer since October 1, 1961. Upon Respondents; own admission, therefore, on petitioner's performance he was considered unsuitable to be retained in the Junior Administrative grade wherein he had been officiating since October 1961 and was reverted by the impugned order. The only dispute now before this Court is as to whether such reversion after nearly 7 years is in accordance wish law or not (3.) THE only point pressed before me by Mr. Chakraborty, appearing on behalf of the Petitioner, is to the effect that such an order of reversion except by way of penalty after such a length of service is not in accordance with law in view of 18 months rule for reversion prescribed by the Railway Board. Chakraborty, appearing on behalf of the Petitioner, is to the effect that such an order of reversion except by way of penalty after such a length of service is not in accordance with law in view of 18 months rule for reversion prescribed by the Railway Board. Such rule is prescribed by certain circulars issued by the Railway Board referenda to which would shortly be made hereinafter. It is not in dispute that this rule prescribed that where a Railway servant officiates in a higher grade his suitability should be assessed if possible within 12 months and in any event within 18 months so that if his work is considered unsatisfactory he must be reverted within the aforesaid period of 18 months. The rule further prescribes that after the lapse of 18 months such a Railway servant cannot be reverted for unsatisfactory work without following the procedure prescribed in the Discipline and appeal Rules. It is not in dispute that in the present case no such procedure was ever followed and the impugned order is not one imposed as a penalty. Only dispute between the parties now before me is as to whether the order of reversion could have been passed on the facts of the present case except by way of penalty. According to Mr. Chakraborty this could not have been so passed in view of the aforesaid 18 months rule. According to Mr. Banerjee, who is appearing for the Respondents, on the other hand it had validly been passed as a simple order of reversion from an officiating appointment on the ground of unsuitability which will not be a penalty at all. But Mr. Banerjee has not disputed that if the 18 months rule, relied on by Mr. Chakraborty, has its application then the impugned order must be held to be not sustainable in law. The Respondents in their Affidavit before this Court sought to raise a two-fold defence to the Petitioner's claim or protection under the aforesaid 18 months rule. In the first place, it is claimed that Petitioner's case is not covered by the circulars incorporating the aforesaid 18 months rule. Secondly, it is claimed that the circulars incorporating the Rule have no statutory force and as such they confer no legal right. But the first defence has not been made out and at the hearing Mr. In the first place, it is claimed that Petitioner's case is not covered by the circulars incorporating the aforesaid 18 months rule. Secondly, it is claimed that the circulars incorporating the Rule have no statutory force and as such they confer no legal right. But the first defence has not been made out and at the hearing Mr. Banerjee has not pointed out anything as to how the circulars do not off would not cover a case like that of the petitioner. (4.) IT would be necessary to refer to the relevant circulars on the point before I go over to consider the respective contentions of the parties. The rule relied on by the Petitioner had its origin in circular issued by the Government of India, Ministry of Railways, Railway Board doted May 21, 1956 hearing No. E55rg-26. Referring to an earlier circular dated November 22, 1950, wherein the Railway Board had clarified that reversion from an officiating appointment to substantive post does not constitute penalty, the Board thought it undesirable that a Railway servant should be made to officiate for a long period and then be reverted on the ground of unsuitability. Considering these aspects the circular prescribed "the Board, therefore, desire that, with immediate effect the performance of every Railway servant officiating in a higher grade should be adjudged by the competent officer before 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 6 months for which he will continue to be under observation. At the end of the extended period of 8 months that is, of a total officiating service of 18 months, either the person 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. 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 grade at present for a total period of over 12 months should be made within the next 6 months and action taken as indicated in the previous para in respect of Railway servants officiating in higher grade for 18 months. " The principle so laid down was reaffirmed by the Chairman of the; railway Board by his memo dated June 7, 1958. It appears that the ministry of Railways reviewed the entire issue after the decision of the supreme Court in the case of (2) P. L. Dhingm v. Union of India, A. I. R. 1859 s. C. 38, and issued a fresh circular on July 31, 1958. In this circular it is pointed cut that in view of the aforesaid decision of the Supreme Court though article 311 (2) may not normally be attracted to cases of reversion from an officiating post yet "the staff are nonetheless due some protection against such reversion. " Reference is then made to the earlier circular dated May 21, 1956 and the principle therein laid down is reaffirmed. This circular dated July 31, 1958 bears the number E (D and A) 56rg-17. The protection so afforded by these circulars was for some time withdrawn by Board's circular No. E (D and A) 60rg-5 dated February 1, 1960 but was re-enforced by later circulars. By a circular dated June 9, 1965 No. E (D and A) 65rg6-24 the Board recalled its earlier circular dated February 1, 1980 and in so doing observed : "the Board have reconsidered the matter and feel that it would not be correct to effect such reversion after prolonged officiating periods. They have therefore, decided again that, in future, any person who is permitted to officiate beyond 18 months cannot be reverted without following the procedure prescribed in the Discipline and Appeal rules. " (5.) THUS the principle laid down in the circular doted May 21, 1056 was re-affirmed and these circulars have been kept still in force. Mr. They have therefore, decided again that, in future, any person who is permitted to officiate beyond 18 months cannot be reverted without following the procedure prescribed in the Discipline and Appeal rules. " (5.) THUS the principle laid down in the circular doted May 21, 1056 was re-affirmed and these circulars have been kept still in force. Mr. Banerjee, appearing for the Respondents, had been unable to point out any modification of this principle except the two dated January 25, 1966 and November 22, 1966 which have no application to the present case. As late as on August 12, 1971 and February 5, 1972 the railway Board had again directed that none should be kept on officiating appointment for a long period and confirmation should follow at least of completion of two years. The circular dated February 5, 1972, bearing No. E (NG)I69n5/31 again reaffirmed the 18 months rule and directed. "the review should be completed early and a decision to continue the employee in the officiating post or revert him, taken and implemented within a period of 18 months of officiating service. Having followed this procedure there should be no question of denying the benefits of confirmation to an employee on completion of two years officiating service in a clear permanent vacancy for the reason that he is not fit for confirmation. " (6.) A question, as to whether the principles laid down in these circulars would be applicable to higher grades or not came up for decision by the Beard and the Board clarified the same in its letter dated May 17, 1958 bearing No. E55rg6-26. It was observed : "a case has came to notice in which an officer promoted to an Administrative grade did not earn good reports thereafter, although the report contained remarks like 'a very average type', 'has reached the limit of his capacity', shouldering responsibilities rather above his capacity' 'can hardly carry out his present responsibilities etc., the Railway concerned did not come up to the Board within 18 months of his promotion for his reversion on the ground of unsuitability as per instructions contained in director Establishment's confidential d. O. No. E55rg6-Ex 25 dated 21.5.56. The result is that officer concerned cannot now be reverted in view of the instructions contained in the d. O. for unsatisfactory work without following the procedure prescribed in the Discipline and appeal Rules. The result is that officer concerned cannot now be reverted in view of the instructions contained in the d. O. for unsatisfactory work without following the procedure prescribed in the Discipline and appeal Rules. " Reading the circulars above referred to, it appears clear to me that the Railway Board had laid down as a principle of universal application that railway servants once promoted to officiate in higher ranks in normal and substantive vacancies should not be reverted on the ground of unsuitability if ;he has rendered such service for more than 18 months. Suitability for retaliation must to assessed and final decision taken within these 18 months. Such a principle is based on should reasoning so that the administration should not be saddled with unsuitable persons in its administration and a Railway servant should not also be faced with a decision as regards his unsuitability when he had teen allowed long years to serve on the higher grade necessarily raising belief and hope that he has proved himself worthy of the position and as such would be allowed to continue in such a grade. The circulars prescribing the 18 months rule are wide in their applications to cover all types of Railway servants whether gazetted or non-gazetted, whether higher in rank or lower in rank. (7.) AS pointed out earlier if these circulars confer a right on a Railway servant to continue in the officiating appointment where from he cannot be removed except by way of penalty then there can be no dispute that the impugned order in the present case infringes such a right and must accordingly be considered to be a penalty imposed not in accordance with law. Mr. Benerjee has strongly urged that these circulars are at best administrative instructions which are not statutory in character. They confer no right and as such infringement of such circulars results in no civil consequences. There has been a strung controversy before me as to whether these circulars can at all be considered to be statutory. It is obvious that they had not been issued as such. Under Rule 157 of the Railway Establishment Code vol. I the Railway Board possesses delegated powers to make rules which would have the effect of rules made under article 309. It is obvious that they had not been issued as such. Under Rule 157 of the Railway Establishment Code vol. I the Railway Board possesses delegated powers to make rules which would have the effect of rules made under article 309. But such rules can be framed only in respect of non gazetted railway servants and not m respect of railway servants like the present Petitioner. Reliance is placed by Mr. Chakraborty on Section 3 of the Railway Board act of 1905 but I have my doubts as to whether circulars now under consideration can be said to be those made in exercise of such powers. However, for the present purpose it is not necessary for us to decide finally as to whether these circulars are statutory or not. I shall assume that they are not statutory. Yet I am unable to accept the contention of Mr. Banerjee that only because these circulars are administrative they confer no legally enforcesable right. It was pointed out by the Supreme Court in the case of (3) Santiram Sharma v. The state of Rajasthan, AIR 1967 SC 1310 that the Government can frame administrative rules to supplement the rules framed under Article 309 of the Constitution and such administrative rules so long as they are not inconsistent with the rules framed under Article 309 would govern the condition of service. The same view was taken by a Bench decision of this Court in the case of (4) State of West Bengal v. Rajat Kanti, AIR 1965 Cal 169 . This question came up for consideration by the Supreme Court once again in a very recent decision in the case of Union of India v. K. P. Joseph, AIR 1973 SC 303 . In that case a civil servant sought to enforce certain rights conferred by an administrative order incorporated in an office memorandum dated July 15, 1860. The plea taken by the Union of India was that the order being an administrative direction conferred no justifiable rent upon the civil servant. Such plea was overruled and the relevant claim was admitted to the civil servant. In doing so the supreme Court observed, "to say that an administrative order can 'never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. Such plea was overruled and the relevant claim was admitted to the civil servant. In doing so the supreme Court observed, "to say that an administrative order can 'never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties. It is because an administrative order can abridge or take away rights, that we have imported the principles of natural justice of audit altered pertem into this area. " (8.) IN so doing the Supreme Court relied on its earlier decision in the case of (6) Union of India v. Indo Afgan agencies Limited, A. I. R. 1988 SC 718. In my view, the principle so laid down by the Supreme Court should be applied in the present case. As pointed out by me earlier, the Railway Board had not only framed the rule prohibiting reversion even from officiating appointments after 18 months except by way of disciplinary measure but had itself consistently applied the said principle in the matter of reversion and in insisting its subordinate authorities to do so. Such rule is in no way inconsistent with any rule framed under any statute or article 309 of the Constitution. Therefore, such a rule even if administrative do create a right in favour of the Railway servants which can be enforced in this jurisdiction. That apart, the Board having framed such a rule and applied the same in respect of other Railway servants, it cannot now deny the benefit of the rule to the petitioner, as such denial would only result in unreasonable discrimination in violation of Article 14 and 16 of the constitution. This being the position, I hold that the 18 months rule confers a right on the petitioner to i.e. retained in the post in which he was promoted as early as on October 1, 1961 and in which he continued for all these years until the impugned order and that he could not have been removed therefore except by way of a disciplinary measure. The impugned order in so far as it infringes such a right is a penalty which has been imposed both in infringement of the disciplinary rules and principles of natural justice and as such is liable to be Sifted down. The impugned order in so far as it infringes such a right is a penalty which has been imposed both in infringement of the disciplinary rules and principles of natural justice and as such is liable to be Sifted down. Before I conclude I must point out that a Bench of the Assam High Court set aside a similar order as in the present case and upheld a similar contention in the case of (1) Amar Nath Sur v. A. F. Railway A. I. R. 1969 A and N 112. I am in respectful agreement with the observations made by the learned Chief justice in the said case when he observed: "but after the Railway Board had a declared policy not to revert a person appointed by it in an officiating capacity and allowed to work for more than 18 months except by way of punishment, it cannot be said that the reversion of the Petitioner was innouous. " On the conclusions as above this application succeeds and the Rule is made absolute and the impugned order of reversion dated August 3, 1968 and as communicated on August 6, 1968 made annexure 'e' to writ petition is hereby set aside. (9.) LET a writ in the nature of mandamus do issue directing the Respondents to recall the said order and further directing them not to give any affect to the same. The Petitioner is entitled to costs, hearing fee being assessed at 10 gold mohurs. On the prayer of Mr. Bose, let the operation of this order be stayed for four weeks from this date. Rule made absolute