JUDGMENT Sankar Prasad Mitra J. This is an appeal from a judgment of Mr. Justice R.M. Datta delivered on the 22nd June, 1976 on an application under Article 226 of the Constitution. 2. The respondent was a Grade I Clerk in the Eastern Railway in the scale of l30-300(A.S). On the 19th October, 1973 an office order was issued appointing the respondent to officiate as Law Assistant in the scale of 305-425 (A.S). In this office order it was specifically stated that the arrangements made were of a temporary nature subject to replacement on availability of panel candidates. It was further stated that the rights conferred by this office order would not entitle the persons concerned to claim promotions in future in supersession of their seniors. 3. Our attention has been drawn to a circular dated the 20th January, 1915, which the Chief Personnel Officer had issued intimating that an examination would be held for the pand of Law Assistants. 4. On July 20, 1975 the respondent appeared at the written examination for the panel of Law Assistants. 5. On February 2, 1976 a list was published giving the names of persons including the petitioner who had been successful in the written test. These persons were asked to appear at the viva voce test on the dates fixed. So far as the respondent is concerned, he was to appear on the 19th February, 1976. The respondent did appear on the 19th February 1976 at the viva voce test but failed. 6. On the 10th May, 1976 the respondent moved an application to this court under Article 226 of the Constitution and obtained a Rule, the respondents' principal contention is that the Selection Board which held the two examinations aforesaid had not been validly constituted. 7. We ought to mention, in this connection, that two days before the respondent appeared at the viva voce test, i.e, on the 7th February, 1976 one Amiya Chattopadhaya moved an application under Article 226 challenging the validity of the Selection Board. The respondent says that he had no knowledge of this application. In Amiya Chattopadhay's application Mr. Justice A.N. Sen passed an order that a panel could be formed by the railway authorities but that would be a provisional panel subject to the result of the application which Amiya Chattopadhaya had made the provisional panel was announced on the 29th April, 1976. 8. Mr. In Amiya Chattopadhay's application Mr. Justice A.N. Sen passed an order that a panel could be formed by the railway authorities but that would be a provisional panel subject to the result of the application which Amiya Chattopadhaya had made the provisional panel was announced on the 29th April, 1976. 8. Mr. Justice R.M. Datta the learned trial Judge is of the opinion that the Selection Hoard was not properly constituted and has made the Rule absolute. 9. Before we come to the constitution of the Selection Board, there are a few infirmities in this application which have to be dealt with. 10. Rule 19 of the Rules of this Court relating to applications under Article 226 of the Constitution provided :- All petitions for a writ in the nature of Mandamus shall contain a statement as to whether a demand for justice has been made and specify the particulars of such demand including the date and service thereof. A copy of such demand. Were the demand is in writing, shall be set out in the annexure to the petition. 11. The above provision in our Rules can be supported by numerous judicial decisions. For instance, in Amrit Lal Berry v. Collector of Central Excise, Central Revenue & Ors., AIR 1975 SC 2060 that demand for justice and its refusal must procede the filing of a petition asking for a direction or a writ of Mandamus. The same principle was reiterated in a recent decision of this court in the Statesman v. The Fact Finding Committee & Ors. AIR 1975 Cal. 14 . In the instant case, so far as this aspect of the matter is concerned the relevant paragraph is paragraph 27 of the petition. It is averred :- Your petitioner states that your petitioner went personally to Sri Amal Roychowdhury, S.CC. (Claim) Eastern Railway, the member of the selection board and Sri R.N. Mukherjee, Law Officer, Eastern Railway, Chairman of the selection board and handed over a copy of the circular praying inter alia that in view of the said 18th Months' circular which is annexure 'C' of the petition and in view of the circular which is annexure 'E' of the petition, your petitioner's name ought to have been included in the said panel for Law Assistant, which is annexure 'F' of the petition. 13. 13. This is the only paragraph to which our attention was drawn by Mr. Malkhandi, learned counsel for the respondent to support his contention that demand for justice was made and the demand was refused. The averment is that tile petitioner approached certain officers who were on the selection board and requested them to include his name in the panel for certain reason which had nothing to do with the composition of the Selection Board. In the petition the challenge is to the constitution of the Selection Board itself. In other words the petitioner never said to the officers that the Selection Board had not been validly constituted and as such, the panel that had been formed was illegal or invalid; In our opinion, paragraph 27 of the petition does not satisfy the requirement of demand of justice envisaged by Rule 19 of our Rules and recognized by the judicial decisions. And this petition ought to fail on this ground. 14. The second infirmity is that the panel that was formed on the 29th April, 1976 contains the names of 13 persons. 15 In clause (a) of the prayers in the petition, a Rule Nisi has been asked for "On the respondents to show cause why an order, or directions and/or writ in the nature of Mandamus should not be issued commanding them forthwith to include the name of the petitioner in the formation of panel for the past of Law Assistant." In clause (b) of the prayers another Rule Nisi is asked for On the respondents to show cause why an order, direction and/or writ in the nature of Mandamus should not be issued commanding them why the panel which is annexure "F" of the petition should not be cancelled inasmuch as the name of the petitioner is not in it.". 16. It is obvious that the petitioner has prayed for cancellation or modification of the panel which has already been formed and the persons whose name5 have been included in the panel would be affected if any of the prayers is allowed. Mr. Malkhandi, learned Counsel for the respondent has urged that the persons named in the panel did not acquire any legal right to be appointed as Law Assistants nor were they in fact appointed. There is no challenge in the petition, says Mr. Malkhandi, that the persons named in the panel should not be appointed. Mr. Malkhandi, learned Counsel for the respondent has urged that the persons named in the panel did not acquire any legal right to be appointed as Law Assistants nor were they in fact appointed. There is no challenge in the petition, says Mr. Malkhandi, that the persons named in the panel should not be appointed. Moreover, the panel itself is a provisional panel by virtue of the interim order of A.N. Sen J. We have been referred to two decisions of the Supreme Court. The first decision is reported in AIR 1973 SC 2216 (State of Haryana v. Subash Chandra Marwaha & Ors.) In this case the Government formed a panel of 15 persons for appointment as subordinate judges. Out of these 15 persons for appointment as subordinate judges. 10 were appointed. The petitioner was not appointed. He moved the Punjab & Haryana High Court by a writ petition. The Supreme Court has said that the competitive examination is for the purpose of showing that a particular candidate is eligible for consideration. Selection for appointment comes later. It is open then to the Government to decided how many appointments shall be made. The mere fact that the candidate's name appears in the list does not entitle him to be appointed the only restraint put on the power of the Government to make appointments of subordinate judges under Rule 10 is that the State Government shall not travel outside the list and the Government shall not depart from the ranking given in the list. By appointing the First 7 persons out of 15 in list as subordinate judges the Government, says the Supreme Court, did not infringe any requirement of the Rule and no legitimate grievance could be made by the remaining persons in the list that there were still vacancies; The unfilled vacancies do not warrant issue of Mandamus to an authority. 17. This case does not help Mr. Malkhandi. It may be that persons included in the panel have no right to be appointed but cancellation of the panel or modification of the panel by adding other names affects their interest in respect of selection at the appropriate time. These person should have an opportunity to meet the challenge to their selection in the panel. From this point of view they are vitally interested in upholding their selection in the panel. 18. These person should have an opportunity to meet the challenge to their selection in the panel. From this point of view they are vitally interested in upholding their selection in the panel. 18. The second case of the Supreme Court which Mr. Malkhandi relied on is reported in AIR 1974 SC at page 1755 (The General Manager, South Central Railway. Secunderabad v. A.V.R. Sidhanti & anr.). Here the Supreme Court has observed that where the validity of the policy decisions of the Railway Board, regulating seniority of Railway Staff, was challenged on the ground of their being violative of Articles 14 and 16 of the Constitution, and the relief is claimed only against the Railway, it is sufficient if the Railway was impleaded and non-joinder of the employees likely to be affected by the decision in the case is not fatal to the writ petition. Those employees were at the most proper parties, but not necessary parties. This case also is of no assistance to Mr. Malhandi. When policy decision of an authority is challenged it is possible that employees covered by such decision may not be necessary parties to a writ petition. But in the instant case if the panel is cancelled or modified in the manner the petitioner has prayed for the persons in the panel would be seriously affected. They may either lose the chance of selection altogether or be faced with a competitor who was not originally in the panel at all. No policy decision is involved in the formation of the panel. It is true that the panel is a provisional one in view of the order which A.N. Sen J. has passed, but if the Rule obtained by Amiya Chattopadhya be discharged, it would be the final panel and persons in the panel would have a right to be posted as Law Assistants as and when occasion would arise. On the facts and in the circumstances of this case, therefore, we ore of opinion that the 13 persons whose names have been included in the panel were necessary parties to writ application and the application is bad for non-joinder of parties. 19. Reference can be made in this connection to Ferris's the Law of Extraordinary Legal Remedies: 1926 Edn. Art. 175 at page 201. 19. Reference can be made in this connection to Ferris's the Law of Extraordinary Legal Remedies: 1926 Edn. Art. 175 at page 201. It is stated inter alia: "those parties whose action is to be reviewed and who are interested therein and affected thereby and in whose possession the record of such action remain, are not only proper but necessary parties. 20. The Supreme Court in Udit Narian v. Addl. Member, Board of Revenue. Bihar & anr, AIR 1963 SC 786 , has pointed out the difference between a necessary party and a proper party. Necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. 21. In one of the later decisions in the case of General Manager. South Central Rlys. Secunderabad v. A.V.R. Sidhanti & Ors. 1974 Services Law Journal 576 at p. 582 in paragraph 18- the Supreme Court has pointed out that those against whom relief-is sought are necessary parties to be impleaded and in their absence no effective decision can be rendered by the Court. These principles arc well known and when we apply them to the facts of this case, we cannot but hold that the 13 persons in the panel were necessary parties to this application. 22. It has been urged on behalf of the appellant that the respondent sat at the written test held on 20th July, 1975 and was successful, He was then called to viva voce test in which he failed. He could not be allowed to approbate and reapprobate. 23. The respondent's case in paragraph 23 of his petition at page 10 of the paper book is that before he appeared at the interview for the viva voce test he did not know that the selection board was not properly constituted. In para 25 of the A/O at page 79 of the paper book these statements have been challenged. It has been pointed out on behalf of the appellant that the respondent knew that an application challenging the constitution of the Selection Board had been made by Amiya Kumar Chattopadhya and three others. In the affidavit in reply the respondent in para 16 at page 98 of the paper book has merely denied these allegations. It has been pointed out on behalf of the appellant that the respondent knew that an application challenging the constitution of the Selection Board had been made by Amiya Kumar Chattopadhya and three others. In the affidavit in reply the respondent in para 16 at page 98 of the paper book has merely denied these allegations. A mere denial of the specific averment made in the A/O is not in our opinion, sufficient to support the respondent's case that he had no knowledge of the petition of Amiya Kumar Chattopadhya and three others. 24. On the averments before us the conduct of the respondent amounts, in our opinion, to approbation and reprobation. He does not dispute the constitution of the Selection Board which held his written examination but challenges the validity of the constitution of the same Board when it comes to the viva voce test. In a case like this the court ought not to exercise its discretionary jurisdiction in issuing writs in favour of the respondents. We now come to the respondent's case on the constitution of selection board. Our attention has been drawn to Indian Rly. Establishment Manual 2nd Edn. Rule 215 in Chapter 11 makes provisions for constitution of Selection Board. Rule 215(c) provides :- "For selection posts of 350-475 and above, the Selection Board will consist of officers of junior administrative rank. For all other selection posts the Selection Board will consist of officers not lower in rank than senior scale................" 25. The respondent's contention is that the authorized scale of Law Assistants was 305-15-425. After the Pay Commission's report the scale was changed to 550-703. The Selection Board for all Law Assistants therefore should have consisted of officers of junior administrative rank, hut in the instant case the Selection Board consisted of officers who were lower in rank. The Selection Board was not, therefore, validly constituted. Rule 215(c) has been framed under Art. 309 of the Constitution. But, in deciding this case, we have also to take into consideration rule 157 of the Indian Railway Establishment, Code, Vol. I issued by the President in the exercise of powers conferred on him by the proviso to Art. 309 of the Constitution. Rule 127 provides the Rly. Board shall have full powers to make rules of general application to non-gazetted railway servants under their control. 26. The Law Assistants are non-gazetted railway servants. I issued by the President in the exercise of powers conferred on him by the proviso to Art. 309 of the Constitution. Rule 127 provides the Rly. Board shall have full powers to make rules of general application to non-gazetted railway servants under their control. 26. The Law Assistants are non-gazetted railway servants. Our attention has been drawn to serial No. 578t. Circular No.E-1023/0 dated the 11th August, 1964 publishing for information and guidance Railway Board's letter No. E(NG)64-RR-l/4 dated 28th July, 1964 regarding procedure for filling selection post non-gazetted Law Assistants. 27. It is well known that the Railway Board exercises its powers under Rule is 7 by issuance of serials, circulars, letters and orders which are also statutory vide Sashi Bhusan v. U.O.I., 1971 Lab. I.C. 546: M.P. Patil v. D.P. Khanna, AIR 1965 Bom 267 : Harinder Mohon v. G.M. Northern Railway, AIR 1967 Delhi 79; B.S. Vadera v Union of India, AIR 1969 SC 198 . 28. The circular, we have referred to has been issued in exercise of powers under rule 157. The Circular lays down that the selection for recruitment to the post of Law Assistants in scale of Rs. 305-15-425 (AS) should consist of a written examination and viva voce test and should be conducted on an all railway basis by a Selection Board consisting of three senior scale officers one of when being necessarily an officer from the commercial department. 29. There is no dispute in the instant case that the Selection Board consisted of three senior scale officers one of whom was an officer from the Commercial Department. In other words, the Selection Board was constituted in accordance with the circular of the 28th July 1964 which was issued by the Railway Board under the powers conferred on it by Rule 157 of the Indian Railway Establishment Code. The respondent's contention before us is as we have said that the Selection Board should have consisted of officers of junior administrative rank in accordance with the general rule governing the promotion of subordinate staff, i.e. Rule 215(c) in Chapter II of the Indian Railway Establishment Manual (2nd Edition). This is, therefore a case of conflict between a general rule and a special rule. 30. This is, therefore a case of conflict between a general rule and a special rule. 30. Our attention has been drawn to the Indian Railways Establishment Manual (2nd Edition) published on the 1st April, 68 Chapter 1, Section B of this Manual deals with Rules for recruitment and training of Class III Class IV and workshop staff. Paragraph 128 in this chapter makes provisions for recruitment of Law Assistants. In the concordance showing the authority for the paragraphs occurring in various chapters of the Indian Railway Establishment Manual, we find the following entry: Paragraph 128 Authority Railway Board's Letter No. E(NG) 16RCI/10 dated 21st February, 1957 and No. E(NG)64 RRI/4 dated, 28th July 1964, 30. This shows that Rule 215(c) on which the respondent relies strongly refers to Selection Board for promotion of certain staff to be recurited to higher posts other than the posts of Law Assistants. So far as the Law assistants are concerned it is not paragraph 215(c) which does not exclude the operation of the rules framed under rule 157 but the circular of the 28th July 1964 that would apply. From this point of view, it is quite clear to us that the Selection Board for recruitment of Law Assistants in the instant case was properly constituted. We have not been able to discover any illegality or irregularity in the constitution of the Selection Board. This ground of the respondent therefore also fails. 31. In the result, this appeal is allowed. The judgment and order under appeal are set aside, the rule is discharged. The interim orders if any, are vacated. There will be no order as to costs. Salil Kumar Datta, J: I agree. Appeal allowed.