JUDGMENT 1. - The question which arises for determination in this writ petition is as to when an order of re-classification based on job analysis should become operative in the case of a railway servant, who complained of excessive work load. 2. The petitioner Bhikamchand was employed as Booking Clerk in Northern Railway. He was posted as Senior Booking Clerk at Phalodi Railway Station from July 8, 1967 to July 26, 1969. The petitioner alleged that he made a complaint for re-classification of the post of Senior Booking Clerk at Phalodi from 'Essentially Intermitent' (hereinafter referred to as 'E. I.') to 'continuous class. A job analysis was conducted on 10th and 11th October, 1969, as a result of which it was found that the work load was excessive and the Senior Booking Clerk at Phalodi Railway Station was required to work for 19 hours and 19 minute. The petitioner's case is that on account of the job-analysis carried out on 10th and 11th October, 1969 and also on the basis of an earlier job analysis carried out on November 30, 1963, the post of Senior Booking Clerk at Phalodi Railway Station should have been declared as 'continuous' instead of E I. from the date the petitioner joined the said post on July 8, 1967 or at any rate from October 2, 1967 when the petitioner made a representation in this respect. The respondents' case is that after the job analysis was made on November 30, 1963 and it was found that the Senior Booking Clerk at Phalodi Railway Station was required to work for 7 hours and 48 minutes out of the total rested period of 12 hours per day, there was a re- distribution of work and as a result thereof the work load of the Senior Booking Clerk was reduced. A farther job analysis was made in October 1969 and it was found that the work load of the Senior Booking Clerk at Phalodi Railway Station was more than 16 hours and thereupon one more Booking Clerk was posted at Phalodi Railway Station from February 25, 1970 and work load of the Senior Booking Clerk was thereby reduced and as such there was no justification for revising the classification of the Senior Booking Clerk at Phalodi front E. 1. to Continuous. to Continuous. According to the respondents, the result of the job analysis conducted by the Railway Administration in October 1969 could not be enforced from the date of the earlier job analysis which was conducted in the year 1963 and as the petitioner was transferred from Phalodi Railway Station on July 26, 1969, before the job analysis was carried out in October 1969, he cannot get any benefit of the subsequent job analysis. 3. The petitioner on the other hand submits that he had filed an appeal before the Regional Labour Commissioner (Central), Ajmer on October 2, 1967 and had given a copy of the same to the Station Master, Phalodi and that from the dais of his representation or at any rate on the expiry of six months from the date of his aforesaid representation, the job analyais report should have been applied and re-classification of the post of Senior Booking Clerk from E. 1. to Continuous should have been made effective. The submission of the learned counsel for the petitioner is that even after a demand was made by the petitioner for re-classification of the post of Senior Booking Clerk at Phalodi Railway Station; the Railway Authorities delayed the fuctual job analyis for almost two years and the petitioner was transferred from Phalodi in the meantime and so the petitioner should not be deprived of the benefits of re-classification to be made as a result of the actual job analysis carried out in Octobers 1969. The Regional Labour Commissioner (Central) Ajmer by his order dated September 5, 1972 held that it would be unrealistic to ex amine the job analysis report of 1963, as no complaint was made by the Senior Booking Clerk at Phalodi during the intervening period. The Regional Labour Commissioner held that a justification for re-classification was established by the job analysis conducted on 10th and 11th October, 1969, but on the creation of another post of Booking Clerk at Phalodi from February 25, 1970 the necessity for re-classification ceased to exist and as the petitioner was transferred from Phalodi on July 26. 1969 he could not get the benefit of re-classification, if the same could be made available during the period between October 12, 1969 to February 24, 1970. 1969 he could not get the benefit of re-classification, if the same could be made available during the period between October 12, 1969 to February 24, 1970. The petitioner preferred an appeal before the Central Government, which was decided by the joint Secretary in the Ministry of Labour and Rehabilitation, who has been designated as the Appellate Authority under rule 4 (2) of the Railway Servant (Hour of Employment) Rules, 1961. The Appellate Autority agreed with the view taken by the Regional Labour Commissioner and dismissed the appeal by his order dated September 6, 1973. It was noticed both by the Regional Labour Commissioner as well as by the Appellate Authority that as the petitioner had to work for 15 hours a day in place of a rostered period of 12 hours a day and that he was allowed 3 hours' over time. The longer period of work did not justify a re-classification of post of Senior Booking Clerk at Phalodi from E. 1. to continuous but the same only entitled the petitioner to over-time allowance for 3 hours extra work done by him. 4. Section 71-A of the Indian Railways Act, 1890 (hereinafter referred to as 'the Act') provides that the employment of a railway servant would be continuous except when it is excluded or has been declared to be essentially intermittent or intensive. The employment of a railway servant is said to be "essentially intermittent" when it has been declared it be so by the prescribed railway authority on the ground that the daily hours of duty of the railway servant concerned normally includes periods of inaction aggregating six hours or more during which the railway servant may remain on duty, but it is not called upon to display either physical activity or sustained attention. The definition of essentially intermittent", contained in section 71-A clearly brings out the distinction between longer hours of duty and excessive work load, because the latter requires display of physical activity or sustained attention. The category of railway servants falling within the 'excluded' class has also been specified in Section 71-A and the term 'intensive has also beer, defined. 5. The authority empowered in this behalf is entitled to declare an employment or post to be "essentially intermittent' or 'intensive', although under normal situation a post in the railway service is considered to be continuous. 5. The authority empowered in this behalf is entitled to declare an employment or post to be "essentially intermittent' or 'intensive', although under normal situation a post in the railway service is considered to be continuous. Section 71-C provides for limitations of hours of work in the case of railway servants whose employment falls under the 'essentially intermittent' clause. The maximum working hours have been specified as 75 hours in a week. In the case of a continuous employment, it is provided that a railway servant shall not be employed for more than 54 hours a week on the average in any month, while in the case of intensive employment, the maximum working hours have been provided as 45 hours a week on the average in any month. The prescribed authority is permitted to make temporary exemptions in order to meet serious interference with the ordinary working of the railway or in cases of accident, actual or threatened, or when urgent work is required to be discharged or in any emergency which could not have been foreseen or prevented or in other case of exceptional pressure of work. In case of a temporary exemption, the railway servant concerned would be entitled to payment of over-time at the rate not less than one and one-half times of his ordinary rate of pay. Section 71-E authorises the Central Government to make rules, prescribing the authorites who may declare the employment of any railway servant as -essentially intermittent' or 'intensive' and who may decide an appeal against such declaration and also the manner in which and the conditions subject to which such appeals may be filed and heard. 6. The Central Government, in exercise of the powers conferred upon it under Section 71-E framed rules known as the Railway Servants (Hours of Employment) Rules, 1961. Rule 3 of the aforesaid Rules provides that the power to declare the employment of a railway servant as 'intensive' or 'essentially intermittent' within the meaning of Section 71-A shall vest with the head of the railway administration and if there is any dispute regarding the declaration made by the competent authority under rule 3, the matter may be referred to the Regional Labour Commissioner, whose decision in the matter would be final subject to the aggrieved person filing an appeal. An appeal has been provided by rule 4 (2) against the order passed by the Regional Labour Commissioner to the Central Government. The Central Manager of the Northern Railway has published the hours of employment Regulations which go to show that the classification of all railway servants governed by the hours of employment regulations is either continuous, intensive or essentially intermittent or excluded. Ordinarily all railway servants are assumed to be continuous workers, until on the basis of factual job anylysis, they are either upgraded or down-graded as the case may be. As the classification of railway servants cannot be of a permanent nature and the same is liable to vary according to fluctuations in the quantum of work, such classification is libable to be reviewed as and when found necessary. However, the posts are to be classified on the basis of factual job analysis. The authority competent to declare a post as Intensive or E. 1. is the General Manager of the Railway. In the case of an E. 1. worker, the hours of work should not exceed 75 hours in a week and he is entitled to at least 24 consecutive hours rest in a week including a full night in bed, as provided in Section 71-D of the Act. He has to work on a 12 hours roster for the remaining 6 days. 7. As there were a number of disputes between the workmen employed in the railway Establisbment and the Central Government, a number of demands of the National Federation of Indian Railway-men including the question of' hours of work, periodic rests and over-time were referred by the Central Government in the year 1969 to the Railway Labour Tribunal, 1969 which was a single member Tribunal consisting of justice N. M. Miabhoy, retired Chief Justice of the Gujarat High Court Justice Miabhoy on July 6, 1972 submitted an exhaustive report containing the decisions arrived at by him and the recommendations made by him On behalf of the Railway workers a grievance was made before justice Miabhoy Tribunal that long time is taken in reclassifying a post or employment and the concerned railway employee has to suffer on account of the delay which takes place in the classification. The various steps involved in the investigation for classification or re-classification, which has to be based on factual job analysis, were considered by Justice Niabhoy Tribunal and the necessity of evelving proper machinery for timely determination of classification was suggested. According to the report submitted by,Justice Miabhoy Tribunal an adjudication for determination of classification or re-classification and to determine as to whether the existing classification was or was not justified. could be undertaken on the representation made by (i) individual railway worker; (ii) railway workers union; (iii) labour enforcement staff and (iv) hours of employment regulation inspectorial staff. No machinery has been set up for a general review of E. 1. classification at periodic intervals. The Tribunal also took notice of the fact that the existing practice was that where job analysis justified continuous classification to be disturbed, the excess work was distributed amongst other workmen. The Miabhoy Tribunal made the following observations in this context : "prima facie, the practice may appear to be violative of the Spirit underlying the definition. Just as an administration is justified in classifying an employment as EI though the marginal deficiency is only 10 minutes in the aggregate period of inaction, similarly, it should feel itself bound, on a parity of reasoning, to classify an employment as Continuous, even if the marginal excess is only 10 minutes. However, there is one more principle on the subject which it will be improper to ignore-the right of the administration to distribute duties among workers in the best way it deems proper. This right cannot be challenged. In that view of the matter, the practice cannot be challenged too. However, even if this right is conceded to the administration, the job must be treated as continuous till suitable or correct redistribution of duties actually takes place. Moreover, it is equally clear that the re-distribution cannot be made unless the effect of such re-distribution on the job to which the excess time is to be transferred is studied and it is determined whether the classification of that job is or is not affected. The Shamgarh case reveals that there can be a great time-lag between the date of job analysis and the date of re-distribution of duties. Even if there is no time-lag, it is quite obvious that. The Shamgarh case reveals that there can be a great time-lag between the date of job analysis and the date of re-distribution of duties. Even if there is no time-lag, it is quite obvious that. during the status quo ante, the employee, in whose job the excess time comes to be transferred to an other job at a later stage, will be a Continuous employee and it will be breach of the statute to treat that employee as 'ET' during the interval. Therefore, the administration can exercise its right of re-distribution of duties with effect from a future date only and it is bound till that time to classify the employment as Continuous and to give the worker in that employment all the emoluments, allowances and privileges due to him as a Continuous worker." 8. Justice Miabhoy also took note of the fact that according to the provisions of the Act classification of an employment depended upon a declaration to that effect by the competent authority and the railway administration is justified to give effect to the changed classification only from the date of declaration both in the case of up gradation or down gradation. It was recognised that under the Act the crucial date when the change of classification must necessarily be made effective is the date of declaration by a competent authority. It was urged before the Tribunal that when the circumstances which necessitated the revision of classification were in existence over a long period, sanction to the revised classification should he allowed with retrospective effect from a suitable date to be specified. Justice Miabhoy in his report, observed as under in this respect : X X X X 9. Thus, Justice Miabhoy Tribunal made the recommendation that higher classification should be made applicatale from the date of job analysis retrospectively and further that if there is a time-lag of six months or more between the date of demand for up gradation of classification and the date of job analysis, the competent authority may determine as to how much time-lag for upgradation of classification was necessary and inevitable and may use his discretion as to from what point of time retrospective effect should be given to his declaration. But, where the time-lag between the date of demand for upgradation of classification and the date of job analysis is a year or more, then the concerned competent authority should give retrospective effect to his declaration from the date of demand for upgradation of classification. 10. The Central Government approved the recommendations made by the Miabhoy Tribunal and by a circular issued by the Railway Board dated December 5, 1974 the following paragraph was inserted in the Hours of Employment Regulations in respect of the date of revised classification:- "6 (i) Date of effect of the revised classification-(a) In case of higher classification (i) The classification will take effect from the date of completion of job analysis when the time lag between the date of demand and the date of completion of job-analysis is less than 6 months, (ii) in cases where there is time-lag of 6 months but less than a year, the date of effect of the revised classification will be fixed on the merits of the case but not later than the date of completion of job-analysis. The decision in regard to the date of effect of classification should be taken into account also the extent of delay on account of the staff whose work has been job analysed; and (iii) in case there is time-lag of a year or more, the effective date would be a date not later than 6 months from the date of demand of upgradation of classification, subject to the delay on staff side not exceeding 6 months. In case the delay on staff account exceeds 6 months, the effective date of re-classification would be as in (ii) above. (b) In case of down-gradation of classification-The effective date will be from the date of declaration of down gradation after job- analysis." (R. B.'s No. E (LL) 73 /33 of 5-12-74, 81. No. ER 8470) 11. Thus, the recommendations made by Miabboy Tribunal made in July 1972 were given effect to in December 1974 by the aforesaid circular issued by the Railway Board. It was also specified therein that in case of E. 1. workers, a daily roster should be provided which should consist of 72 hours a week of duty. 12. No. ER 8470) 11. Thus, the recommendations made by Miabboy Tribunal made in July 1972 were given effect to in December 1974 by the aforesaid circular issued by the Railway Board. It was also specified therein that in case of E. 1. workers, a daily roster should be provided which should consist of 72 hours a week of duty. 12. Learned counsel for the petitioner contended that according to the Hours of Employment Regulations as amended in December 1974 on the basis of the recommendations of Miabhoy Tribunal, the revised higher classification of continuous worker should be made effective from a date not later than 6 months from the date of demand for upgradation of classification. In the present case, the Railway Establishment took almost two years to complete the job analysis from the date of demand and there was a long time-lag without any valid reason between the date of demand and the date of job analysis. According to the learned counsel for the petitioner, the demand was made by the petitioner on October 2, 1967 by making a representation to the Regional Labour Commissioner while the factual job analysis was carried out on 10th and 11th October, 1969. Thus, according to the learned counsel for the petitioner the higher classification of continuous worker should be made effective in the case of Senior Booking Clerk at Phalodi with effect from April 2, 1968 on the expiry of the period of 6 months from the date of demand for factual job analysis. In the alternative it was also argued by the learned counsel that effect should be given to the job analysis carried out earlier on November 30, 1963. 13. In my view, none of the above contentions of the learned can by accepted. As regards the earlier job analysis conducted in November 1963 it was stated by the railway administration before the Regional Labour Commissioner that the work of the Senior Booking Clerk was thereafter re-distributed resulting in reduction in his work-load. The Regional Labour Commissioner accepted this contention and observed that the fact that the Senior Booking Clerk at Phalodi from 1963 until the petitioner joined that post did not make any complaint for reclassification supported the contention of the railway administration. The Regional Labour Commissioner accepted this contention and observed that the fact that the Senior Booking Clerk at Phalodi from 1963 until the petitioner joined that post did not make any complaint for reclassification supported the contention of the railway administration. On appeal the Appellate Authority also did not accept the contention of the petitioner that the job analysis of November 1963 should be made the basis of re-classification in respect of the post of Senior Booking Clerk at Phalodi. Even the documents produced by the petitioner also support the contention of the railway administration that thereafter there was a redistribution of work and the some of the work of the Senior Booking Clerk was distributed amongst S. M. and A S. M. at Phalodi. Annexure 11 goes to show that the D. C. S. was not agreeable to the duty roster given in respect of S. M. and A. S. M. The Miabhoy Triburnal also recognised that there was a prevailing practice prior to the submission of his report that when job analysis justified higher classification, the excess work was distributed amongst other workers so as to downgrade classification of E I and he also recognised in the passage quoted by me in the earlier part of this order, the right of the administration to distribute duties amongst the workers in the best way it deemed proper and observed that the right of the administration in this respect could not be challenged. Thus the findings of fact recorded by the competent authorities must be accepted by this Court that after the November 1963 job analysis report was made, there was re-distribution of work, reducing the work load of the post of Senior Booking Clerk at Phalodi from 7.48 hours to less than 6 hours and the post of Senior Booking Clerk still remained of E. 1. classification. In view of these circumstances, it is not possible for this court to accept the contention of the petitioner that the job analysis report of November 30, 1963 should have been given effect to and the classification of the post of Senior Booking Clerk at Phalodi should have been altered to continuous on the basis of such job analysis. 14. In view of these circumstances, it is not possible for this court to accept the contention of the petitioner that the job analysis report of November 30, 1963 should have been given effect to and the classification of the post of Senior Booking Clerk at Phalodi should have been altered to continuous on the basis of such job analysis. 14. As regards the job analysis which had taken place on 10th and 11th October, 1969 it may be observed that according to the provisions which existed at the relevant time, the change of classification could be made effective only from the date of declaration by the competent authority, namely, the General Manager in the present case It is not disputed that the General Manager, Northern Railway, did not make any declaration about the change of classification in respect of the post of Senior Booking Clerk at Phalodi, as a result of the October 1969 classification. On the other hand, once again the work load of the Senior Booking Clerk was reduced by providing one more Booking Clerk at Phalodi with effect from February 25, 1970. At any rate, the factual job analysis, which was carried out on 10th and 11th October, 1969 could not be given effect to from a date earlier to the date when such job analysis has carried out. If the aforesaid job analysis was to be given effect to, there was ample justification for re-classification of the post of Senior Booking Clerk at Phalodi as continuous from October 12, 1969 to February 24, 1970, when a new booking clerk was posted and the work-load of the post of Senior Booking Clerk was again reduced to less than 6 hours. The recommendations of the Miabhoy Tribunal were made on July 6, 1972 and on the basis thereof the Hours of Employment Regulations were amended by the Circular of the Railway Board dated December 5, 1974. The amended provisions of the Regulations could not be given effect to retrospectively in respect of the period between 1967 and 1969. The law as it existed at the relevant time did not provide for a retrospective application of the result of the job analysis. However, the change of classification could at best be given effect to from October 12, 1969, after the date of completion of the job analysis. The law as it existed at the relevant time did not provide for a retrospective application of the result of the job analysis. However, the change of classification could at best be given effect to from October 12, 1969, after the date of completion of the job analysis. There is no doubt that there was considerable time-lag between the date of the demand made by the petitioner and the date of completion of the job analysis, but in the absence of statutory provision the job analysis could not be given effect to from a date earlier to its completion. As a matter of fact, such instances as did happen in the present case must have been brought to the notice of Miabhoy Tribunal and on the basis thereof justice Miabhoy Tribunal made the recommendation that in the case of delayed investigation on the question of change of classification, the job analysis report should be given retrospective effect from a date not later than 6 months from the date of demand for upgradation or reclassification. In the present case, the petitioner remained as a Senior Booking Clerk at Phalodi from July 8, 1967 to July 26, 1969. He made a demand for upgradation of the post of Senior Booking Clerk in the year 1967 itself but the actual job analysis was abnormally delayed for over two years. However, the petitioner was transferred from Phalodi even earlier to the time when the actual job analysis was conducted on 10th and 11th October, 1969 As such he is not entitled to get benefit of the subsequent job analysis conducted on 10th and 11th October 1969. 15. It may be pointed out that a lot of confusion was sought to be created in the case by stating that the petitioner had to work for more than 15 hours a day. The period during which an employee is rostered for duty is known as the 'hours of employment', which includes periods of elective or continuous work as also periods of inaction. when the employee is required to remain present on duty although he is not required to carry an any physical activity or exercise any sustained attention. Work load refers to period of continuous work without periods of inaction. In the Hours of Employment Regulations, it has been provided that if the period of inaction is 5 minutes or less, the work would remain continuous. Work load refers to period of continuous work without periods of inaction. In the Hours of Employment Regulations, it has been provided that if the period of inaction is 5 minutes or less, the work would remain continuous. But in the case of booking clerk at a smaller station like Phtalodi. the employee functions intermittently because his work relates to the distribution or sale of tickets in respect of a particular train and after the train is dispatched, he might have to wait on duty doing nothing until some time before the next train art arrives and then he is again required to distribute or sell tickets in respect of that train. Thus, in such cases the employee is required to wait on duty doing nothing for considerably long spells and when such periods of inaction aggregates to 6 hours or more, the work ceases to be continuous and become E. 1. The General Manager has classified the post of booking clerk as E. 1. because of the fact that the employee working in the category of posts has to remain on duty at his place of work, but there are long periods of inaction aggregating to 6 hours or more when such employee is not called upon to exercise either physical activity or sustained attention. The definition of E. 1. ,contained in para 9 of the Hours of Employment Regulations, provides that the period of inaction aggregating to six hours or more in the case of an E. 1. worker should include atleast one period of inaction of not less than one hour or two periods inaction of not less than half an hour each, during which the railway servant remains on duty but he is not called upon to display either physical activity or sustained attention. The railway employee is said to display sustained attention when he has to give his mental attention in connection with his work. Thus a booking clerk may have to pay sustained attention from the time he starts the selling of tickets before the arrival of a particular passenger train at the railway station till that train departs from that station. But the work load has to be confined to the hours of duty for which the employee is rostered. Thus a booking clerk may have to pay sustained attention from the time he starts the selling of tickets before the arrival of a particular passenger train at the railway station till that train departs from that station. But the work load has to be confined to the hours of duty for which the employee is rostered. As the petitioner was given a roster of 15 hours, he was allowed overtime for 3 hours over and above the normal 12 hours a day roster fixed for E. 1. workers. However, merely because the petitioner was rostered to longer hours of work. the same did not justify a change of classification from E. 1. to continuous because change of classification is permissible only on the basis of higher work load. It may be pointed out that change of classification could not be based on greater work load when there are periods of inaction aggregating to mote than 6 hours a day. The Appellate Authority has pointed out that the petitioner did not bring enough material on record to justify the change of classification. 16. The Hours of Employment Regulations provide for review of classification, which runs as under : "21. Review of classification:- As classification of Railway servants cannot be of a permanent nature and are liable to vary according to fluctuations in the quantum of work offering, all classifications should be reviewed as and when warranted." 17. It is no doubt that the petitioner had moved for review of classification during the period he was working as Senior Booking Clerk at Phalodi, but for some reasons or the other the factual job analysis could not be carried out before the petitioner was transferred from Phalodi on July 26, 1969. As pointed out above, a subsequent job analysis carried out on 10th and 11th October, 1969 could not be of any benefit to the petitioner, in accordance with the provisions of law as they existed at the relevant time. The petitioner cannot get any relief merely on the basis of the subsequently amended Regulations or the Circular issued by the Railway Board which came into force in December 1974, as the said Circular could not be given effect respectively and could not be made applicable for the period from 1967 to July 1969. 18. As a result of the aforesaid discussion, the writ petition is dismissed. 18. As a result of the aforesaid discussion, the writ petition is dismissed. The parties are left to bear their own costs. *******