Hansaria, J.:- The petitioner was initially appointed as Hammerman under the Railways in the scale of Rs. 75-110/-in 1963. Thereafter, in 1965, he was temporarily promoted to the post of Blacksmith in the scale of Rs. 110-180/-. Subsequently he was reverted to the post of substitute khalasi in 1972, which carries the pay scale of Rs. 70-85/-. The petitioner felt aggrieved at this, specially because respondent No.5, who was junior to him in the post of Blacksmith had been retained in the post of Hammerman, albiet against a temporary post. His representations yielded no fruit and he has therefore approached this Court to set right the injustice done to him. 2. Shri Bannerjee, who has appeared for the petitioner has referred me Rule 212 of the Indian Railway Establishment Manual, which states that in a non-selection post a senior may be passed over only if he or she had been declared unfit for holding the post in question. Sub-rule (b) requires reasons to be recorded also for such an action. The learned counsel then invites my attention to Rule 320 of the aforesaid Manual in which it is stated that in a stop-gap arrangement, a senior has to be preferred to a junior. It has also been submitted by the learned counsel relying on the decision of this Court in Amarnath, AIR 1969 A&N 112, that his reversion was untenable because in view of the Raliway Board's letter noted in the aforesaid case if a reversion had to take place for unsatisfactory work after an employee had officiated for 18 months, the same has to be treated as a punishment for which the procedure prescribed in the Discipline and Appeal Rules must be followed. 3. Shri Borooah, appearing for respondents 1 to 4 has submitted that as in the present case the reversion was not for unsatisfactory work but because of the petitioner having failed to pass the trade test, the ratio of Amarnath (supra) has no application. The main emphasis of Shri Borooah is that as the petitioner has not acquired any right to hold any post, no grievance can be entertained from him if he was retained even as a substitute Khalasi.
The main emphasis of Shri Borooah is that as the petitioner has not acquired any right to hold any post, no grievance can be entertained from him if he was retained even as a substitute Khalasi. The learned counsel has referred to Divisional Personnel Manager vs. Raghabendra, AIR 1966 SC 1529 , wherein it is held that reversion of a person from a post over which he had no right cannot be regarded as a reduction in rank. In Union of India vs. Gajinder Singh, AIR 1972 SC 1329 , it was held that reversion from a post which an incumbent was holding on officiating basis does not attract Article 311 (2) of the Constitution. 4. The real question in the present case is not whether the reversion of the petitioner attracted Article 311 or not, but whether he could have been reverted to the post of substitute Khalasi while retaining respondent No. 5, a junior to him, in the post of Hammerman which carries a higher pay scale than that of substitute Khalasi. That the respondent No. 5 was junior to the petitioner in the post of Blacksmith has not been denied, rather there was an admission to this effect in para 4 of the affidavit in-opposition on behalf of respondents 1 to 4. The submision of Shri Borooah is that respondent No. 5 was given the job of temporary Hammerman whereas the appointment of the petitioner is to an approved post of Khalasi. This may be so, but the post of Hammerman-whether temporary or not carries a higher pay scale than that of substituted Khalasi. As such, an opportunity was given to a junior to hold on a post carrying higher pay scale whereas that benefit was denied to the petitioner. I would read in this act violation of Article 16 of the Constitution, as it is well settled by now that that Article takes care of not only the initial appointment, but the whole gamut of service career upto the termination. 5.
I would read in this act violation of Article 16 of the Constitution, as it is well settled by now that that Article takes care of not only the initial appointment, but the whole gamut of service career upto the termination. 5. The further question is whether any positive direction can be given by this court except quashing the orders at Annexures-C and D. By referring to State of Mysore vs. C. R. Shesadri, AIR 1974 SC 460 , it is contended by Shri Borooah that this court cannot give any direction whatsoever about posting of the petitioner in the post of Hammerman, to which post respondent No. 5 was retained, except quashing the impugned orders. I do not think if what had been stated in the aforesaid decision stands in the way of this Court, as in that case the court was seized with a matter relating to promotion. The present is not a case where the court is required to ask respondents 1 to 4 really to promote the Petitioner. What is ought to be done is to put him at par with respondent No. 5, who though a junior to the petitioner, was allowed to hold a post carrying higher scale of pay. As both of them were equally situated in so far as the post of Hammerman is concerned as none of them had passed the trade test, it is only fair that the respondents 1 to 4 are asked to give the same benefit to the petitioner. It is worth remembering that as per Rule 320 (supra) even in a stop-gap arrangement a senior has to be preferred. 6. As a point relating to type of relief this Court can grant in its writ jurisdiction has been raised, it may be stated that wide strides have been taken in this direction in recent years.
It is worth remembering that as per Rule 320 (supra) even in a stop-gap arrangement a senior has to be preferred. 6. As a point relating to type of relief this Court can grant in its writ jurisdiction has been raised, it may be stated that wide strides have been taken in this direction in recent years. Reference may only be made to Gujarat Steel Tubes, AIR 1980 SC 1896 , wherein it was picturesquely put by Krishna Iyer, J. "Article 226, however restrictive in practice, is a power wide enough in all conscience, to be a friend in need when the summons comes in a crisis from victims of injustice." In the aforesaid case relating to termination of service of a large number of workmen, the High Court had set side the award of an arbitrator who had regarded the termination as justified, and had thereafter ordered for reinstatement of the workmen. Objection to this part of the direction was taken on the ground that the High Court had no power to pass such an order. The plea was rejected by the Supreme Court. It would be apposite to mention about District Registrar vs. M. B. Koyyakutty, AIR 1979 SC 1060 , also, wherein the Supreme Court upheld, in the peculiar circumstances of the case, the positive direction of the High Court to promote the respondent before the apex Court. 7. In the result, the petititon it allowed and respondents 1 to 4 are directed to post the petitioner within a period of one month from today as temporary Hammerman subject to the very conditions which were made applicable to respondent No. 5.