ORDER R.M. Sahai, J. - In these petitions for direction to opposite parties, Railways, to implement decision of the Supreme Court in Ramakant v. Divisional Supdt. Railways, AIR 1981 SC 357 by not only confirming petitioners but even promoting them preliminary objection had been raised regarding jurisdiction of this Court to hear and decide a petition under Article 226 after establishment of Central Administrative Tribunal. It was urged that notification under S. 4 of Act 13 of 1985 establishing tribunal with effect from 2nd Sept., 1985, having been issued all proceedings, which included a writ petition, pending before any Court or authority in respect of service matter stood transferred under S. 29 of the Act to the Tribunal irrespective of the consideration whether tribunal had been constituted or not. It undoubtedly is a question of importance having far-reaching consequences giving rise to numerous issues constitutional and legal namely, what is the nature of jurisdiction exercised by Supreme Court and High Courts under Articles 32 and 226 of the Constitution? Is the power of judicial review a basic feature of the Constitution which could not be taken away or curtailed by legislative enactment or even constitutional amendment? Could such jurisdiction be excluded? Does Act 13 of 1985 expressly or impliedly exclude jurisdiction of High Courts to entertain and decide a writ petition" Is writ petition a proceeding which stood automatically transferred under S. 29 of the Act? 2. At the outset it may be clarified that the larger question if the power of judicial review of legislative Acts was a basic feature of the Constitution which could not be eroded by destroying concept of limited sovereignty need not be gone into primarily because validity of the Act had not been challenged, but mainly because the preliminary objection does not appear to be firmly based. Majesty of our Constitution lies not only in creating Legislature, Executive and Judiciary independent of each other but also rendering them supreme in their sphere with avowed objective of bringing about liberty and freedom of individual and socio-economic and cultural development of community. By inserting Article 226, the Constitution makers extended the role of the High Courts from merely exercising control over subordinate judiciary to discharging solemn and grave responsibility of testing every legislative measure and executive action on anvil of competence and reasonableness. By inserting Article 226, the Constitution makers extended the role of the High Courts from merely exercising control over subordinate judiciary to discharging solemn and grave responsibility of testing every legislative measure and executive action on anvil of competence and reasonableness. It "was to be an arm of social revolution upholding the equality" (Granvill Austin) by enforcing rights guaranteed by Chapter III of the Constitution. In Partap Singh v. State of Punjab, AIR 1964 SC 72 it was observed that the Constitution has its foundation in the concept of Rule of Law. And this was to be upheld and maintained by not only granting declaration but providing a forum for its enforcement. In Raj Krishna v. Binod, AIR 1954 SC 202 a question arose whether a legislature can debar an aggrieved person from approaching the High Court under Article 226 against the order of a Tribunal. The Hon'ble Court rejected the argument of finality of an order under State Act and held : "It is sufficient to say that power conferred on us by Article 136 of the Constitution and on the High Court under Article 226 cannot be taken away or whittled down by legislation. So long power remains our discretion and that of the High Courts is unfettered." In Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233 the Constitution Bench was concerned with interpretation of Article 329(b) of the Constitution which provided that, election to the Parliament or legislature, could be challenged by election petition presented to such an authority as may be provided under any law made by legislature. It was held, "that a tribunal being amenable to supervisory jurisdiction of the High Court the remedy of filing writ petition under Article 226 was not affected". In Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 , it was urged that as a result of amendment of Part III of the Constitution serious inroad had been made on power of Court under Article 226. Hon'ble Court accepted in principle that no amendment could be made which may result in the curtailment of power conferred on High Court under Article 226 on the principle of pith and substance it was held that the effect of amendment which was subject matter of consideration was incidental and insignificant and, therefore, it did not call for striking down. Hon'ble Court. Hon'ble Court. however, observed : "If effect of amendment made in fundamental rights on Article 226 is direct and not incidental and is of significant order then different considerations may perhaps arise." In Trilok Chand v. H. B. Munshi, AIR 1970 SC 898 , the Hon'ble Court held that seeking enforcement of right guaranteed by Part III of the Constitution was itself a fundamental right. It was held "That Article 32 gives right to move to Supreme Court by appropriate proceedings for enforcement of right conferred by Part III of the Constitution. The provision merely keeps open the door of this Court, in much the same way as it used to he said, doors of Chancery. Courts were always open. The State cannot place any hindrance on the way of an aggrieved person seeking to approach the Court." 3. Such being the nature of jurisdiction exercised by Supreme Court and High Courts it may now be examined by sketching out various provisions of the Act if it directly or indirectly excludes the jurisdiction of this Court to entertain a petition filed under Article 226. By 42nd Amendment of Constitution Article 323A was inserted empowering Parliament to provide by law for adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitments and conditions of service of persons appointed to public service and poets in connection with the affairs of the Union or of any State, navy local or other authority within the territory of India or under the control of Government of India or of any corporation owned or controlled by the Government. Its CL 2 further empowered the Parliament to make a law which may provide for establishment of Tribunals specify its jurisdiction, procedure it may follow etc. Sub-cl. (d) empowered the Parliament to exclude the jurisdiction of all Courts, except the jurisdiction of the Supreme Court under Article 136 with respect to the disputes a complaint referred to in Cl. (1). It was in pursuance of this provision that Act 13 of 1985 was enacted on 27th Feb., 1985 extending it to the entire country except to persons mentioned in S. 2 of the Act. (1). It was in pursuance of this provision that Act 13 of 1985 was enacted on 27th Feb., 1985 extending it to the entire country except to persons mentioned in S. 2 of the Act. S. 14 of the Act spells out jurisdiction of the Tribunal to be all jurisdiction, powers and authority exercisable immediately before the appointed date by all Courts, except the Supreme Court under Article 136 of Constitution in relation to recruitment and matters concerning it to any All India Service or any Civil Service of the Union or Civil Post under the Union etc. and S. 28 which excludes jurisdiction of Courts and is important for controversy in hand reads as under : "28. Exclusion of jurisdiction of Courts except the Supreme Court under Article 136 of the Constitution: - On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any service or post or service matters concerning members of any service or persons appointed to any service or post no Court (except the Supreme Court under Article 136 of the Constitution) shall have or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters." From heading of the section and use of the language the jurisdiction of all Courts stands expressly excluded. But does that mean or is it to be understood that this exclusion extends to writ petition under Articles 226 and 32. What is the nature of jurisdiction exercised by a High Court has already been explained earlier. It is the same as prerogative writs issued by English Courts. Use of word prerogative reflects its association with King. It was the right of Crown to interfere for his subject. It was extraordinary power exercised, in extraordinary circumstances unlike statutory power or jurisdiction exercised by a Tribunal or Court to do only that which was permitted and refrain from doing what was not permitted or was forbidden. Similar power or jurisdiction is exercised by Supreme Court and High Court under Articles 32 and 226. They have been entrusted by the Constitution, from which flows every power to protect liberty and freedom of individual, so necessary for growth of nation and flourishing of democracy. Similar power or jurisdiction is exercised by Supreme Court and High Court under Articles 32 and 226. They have been entrusted by the Constitution, from which flows every power to protect liberty and freedom of individual, so necessary for growth of nation and flourishing of democracy. No other institution or authority has been empowered to enforce rights conferred by part III of the Constitution. Dr. Ambedkar described these as very soul of the Constitution. Granville Austin described Fundamental Rights and directive principles of State policy as conscience of the Constitution. How could the soul survive or the conscience be a living force in absence of will or means to enforce it. Denial of enforcement of constitutional guarantee may impinge equality doctrine. It cannot even remotely be suggested that conscience of the Constitution stands suspended for central employees as Tribunals have been created to examine their grievances. Such construction would be self destructive resulting in denial of right to invoke extraordinary jurisdiction of Supreme Court and High Court for violations of Article 14 or 16 or rights to livelihood under Article 21 (see Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 : ( AIR 1986 SC 180 )). This could not be the legislative intent. "The end of law is not to abolish or restrain but to preserve and enlarge freedom" (John Lock). 4. Exclusion of jurisdiction statutory or otherwise may be express or implied. What is not expressly conferred by a statute on a court or authority may be deemed to he excluded. But where conferment and exclusion of jurisdiction are both provided by the statute itself there can he no scope for argument or controversy nor any external assistance is required for interpretation or construction of a provision. Under Act 13 of 1985 conferment of all jurisdiction on the tribunal has been done by S. 14 of the Act. It provides, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all Courts (except the Supreme Court under Article 136 of the Constitution) in relation to recruitment, etc. Therefore, jurisdiction or power should have been exercisable by any Court in respect of recruitment etc. of an employee prior to establishment of Tribunal. Therefore, jurisdiction or power should have been exercisable by any Court in respect of recruitment etc. of an employee prior to establishment of Tribunal. Did the High Courts exercise such powers as are mentioned in S. 14 or which have been vested in the Tribunal." In the constitutional scheme the High Courts have been made Courts of record with power of superintendence over all Courts and tribunals. In respect of administration of law and justice it has been conferred the jurisdiction it had prior to 1950 by Article 225 subject to provisions of the Constitution and to the law made by the appropriate legislature in addition to it it has been empowered by Article 226 to issue writ to any person or authority or Government for enforcement of Part III of the Constitution or for any other purpose. This power is in addition to and not in derogation of power conferred on Supreme Court to issue writs under Article 32. Therefore the High Courts under the Constitution exercise two powers one arising out of law framed by the appropriate legislature Central or State and the other constitutional. Former can be regulated withdrawn, whittled or expanded but latter being prerogative in nature essential for society governed by rule of law. for upholding fairness, for keeping the balance between State and individual even, for keeping stream of national life clean, establishing harmonious and cohesive society, saving individual from tyranny promoting social change cannot be rendered dormant by legislation express or implied. 5. What has been excluded by S. 28 of the Act is that which has been conferred on tribunal by S. 14 of the Act. No one can suggest that Tribunal has been conferred the jurisdiction to issue writs. At least there is no indication for this. If tribunal has not been conferred with jurisdiction to issue writs under Article 226 it could not be excluded by S. 28 of the Act. Jurisdiction exercised by High Courts under Article 226 is different from jurisdiction exercised by it in pursuance of Article 225. Former is extraordinary whereas latter is ordinary and normal. If tribunal has not been conferred with jurisdiction to issue writs under Article 226 it could not be excluded by S. 28 of the Act. Jurisdiction exercised by High Courts under Article 226 is different from jurisdiction exercised by it in pursuance of Article 225. Former is extraordinary whereas latter is ordinary and normal. In Narayan Rao v. Ishwar Lal, AIR 1965 SC 1818 , it was observed : "By a petition for writ under Article 226 of the Constitution, extraordinary jurisdiction of the High Courts to issue prerogative writs granting relief in special cases to persons aggrieved by the exercise of authority-statutory or otherwise- by public authority or authorities is invoked. The jurisdiction is undoubtedly special and exclusive ......... The exclusion by S. 28 is of its ordinary and normal jurisdiction emanating from Article 225 and not of extraordinary and special jurisdiction exercised by it under Article 226. Enforcement of Part III by High Courts is a constitutional. legal and above all moral assurance to the nation. It was said by Paul Friend on Law and Justice, "The Great Fundamental guarantees of the Constitution are after all. moral standards wrapped up in legal command". It could not be destroyed. Emphasis on expression no Court except the Supreme Court under Article 136 shall have or he entitled to exercise any jurisdiction or power appears to proceed on misapprehension. An appeal under Article 136 before Supreme Court is an appeal to test the correctness or otherwise of the order, judgment or decree passed by a Court or tribunal. It does not relate to constitutional challenge which can he made under Article 32 or 226. It was necessary to save the power exercised by Supreme Court under Article 136 otherwise it might have resulted in rendering order of Tribunal final without any scrutiny even by the highest Court. What has been debarred, therefore, is the power and jurisdiction of Courts to entertain disputes in respect of service matters and not the enforcement of constitutional rights guaranteed to an employee by Part III. It is the power exercised by High Court by virtue of Article 225 of entertaining suit, appeal first or second, revision etc. which has been taken away and conferred on tribunal. The power of the High Courts to issue writs has not been touched. It is the power exercised by High Court by virtue of Article 225 of entertaining suit, appeal first or second, revision etc. which has been taken away and conferred on tribunal. The power of the High Courts to issue writs has not been touched. Whether it could be touched or not is entirely different which as mentioned earlier need not be examined. To say. therefore. that after issuance of notification under S. 4 of the Act the High Courts have ceased to have jurisdiction to entertain writ petition in service matters is not correct. It is another thing. that the Court may not exercise this power except on constitutional challenge or in exceptional circumstances on well settled principle of self restraint. 6. Attention was drawn to sub cl. (3) of Article 323A of the Constitution and it was urged that this Article has overriding effect as it shall have effect notwithstanding anything in any other part of this Constitution or in any other law for the time being in force. According to learned counsel any law made under cl. (3) in respect of matters mentioned in cl. (2) could take away or affect any right or power exercised by any Court under the Constitution. In other words, Parliament has been empowered to take measures, which could affect the rights of Supreme Court or High Courts to issue writs. It again gives rise to the philosophy of basic feature of the Constitution which need not be gone into. But it may not he out of place to mention that Sheervai in his book 'Constitutional Law of India' (Third Edition) in the Chapter on Judicial Remedies after tracing history of writs in England and this country, has observed, In India. neither Parliament nor the State Legislature can take away the jurisdiction of the Supreme Court or High Courts to issue writs mentioned in Articles 32 and 226. In changing social and economic order of the society judicial review has to play significant role in interpreting the Constitution, declaring a law to be beyond legislative competence, enforcing fundamental rights guaranteed in the Constitution etc. And this duty has to be discharged by Supreme Court and High Courts only and not by the tribunal. Even assuming the Parliament could have taken away the right of High Courts to issue writs it could do so by express legislation or constitutional amendment. And this duty has to be discharged by Supreme Court and High Courts only and not by the tribunal. Even assuming the Parliament could have taken away the right of High Courts to issue writs it could do so by express legislation or constitutional amendment. But it did not do so, By clause 131 of Article 323A the Parliament may have been conferred with power to enact a law which may have effect notwithstanding any provision in the Constitution. But has the Parliament in exercise of this power made any provision debarring High Court from entertaining Writ Petition? The answer has to be in negative. Exercise of power is different from existence of power. Even if the power is there it has not been exercised. The argument of implied bar of jurisdiction to entertain writs by preservation of Supreme Court's power under Article 136 does not appear to have any merit. It has been seen earlier that the legislative intent to debar High Courts from exercising their prerogative power to issue writs has not been made out. Provisions of Constitution have also to be interpreted in the same manner as a statutory provision except that it has to he more broad and liberal inspired with welfare of those for whom it has been framed. Principle of harmonious construction of each part to avoid any repugnancy, applies with greater vigour in its interpretation. Keeping these in mind the purport of Article 323A appears to provide speedier and quicker remedy by approaching a tribunal instead of hierarchy of Courts but without effecting the remedy available under Article 226. 7. It may now be examined if the argument of automatic transfer of petitions by operation of S. 29 of the Act has any merit. S. 291) and its proviso are extracted below : "29. Transfer of pending cases. 7. It may now be examined if the argument of automatic transfer of petitions by operation of S. 29 of the Act has any merit. S. 291) and its proviso are extracted below : "29. Transfer of pending cases. - (1) Every suit or other proceeding pending before any Court or other authority immediately before the date of establishment of a Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based is such that it would have been if it has arisen after such establishment, within the jurisdiction of such Tribunal, shall stand transferred on that date to such Tribunal : Provided that nothing in this sub-section shall apply to any appeal pending as aforesaid before a High Court or the Supreme Court." What was urged was that since word proceeding is very wide, it includes a writ petition, therefore, the same stood automatically transferred to Tribunal after its Constitution. Learned counsel urged that omission of word proceeding from proviso is clinching of Parliament's intention of transferring a writ petition to Tribunal in respect of Central Government employees. Prior to amendment of CPC by Act 104 of 1976 many High Courts had taken the view that writ petition was proceeding within the meaning of S. 141 of the Code. This doubt was dispelled when explanation was added to the Section excluding any proceeding under Article 226 of the Constitution. The Parliament shall be deemed to have been aware of it, therefore, it should he deemed to have used the word 'proceeding' in the sense it is normally understood and not as including writ petition. Remedy of approaching High Courts by way of judicial review of Legislative Acts or Administrative action as explained is an extraordinary remedy a Superior or a prerogative jurisdiction exercised under the Constitution to protect and maintain individual liberty and freedom, create social and economic harmony and save people from tyranny. To equate such remedy and argue that it is included in word proceeding, used in S. 29, which dictionarily means a step in or for taking judicial action would be both incorrect and inappropriate. Moreover, if Parliament would have intended to transfer writ petitions pending in High Courts there was no difficulty in mentioning it along with suit or proceeding. To equate such remedy and argue that it is included in word proceeding, used in S. 29, which dictionarily means a step in or for taking judicial action would be both incorrect and inappropriate. Moreover, if Parliament would have intended to transfer writ petitions pending in High Courts there was no difficulty in mentioning it along with suit or proceeding. In Udai Bhan Singh v. Board of Revenue, 1974 RD 107 a question arose if the word 'proceeding' used in S. 5 of U. P. Consolidation of Holdings Act included writ petition and it could also be abated after issuance of notification under S. 4 of the Act. The answer given was in the negative by the Full Bench. 8. Proviso to S. 29(1) further if read in proper perspective leave hardly any scope for doubt that it was never the legislative intent to transfer a writ petition. By it appeals pending in High Courts have been retained. It does not mention writ petition, obviously, because exception has been created in respect of what is covered in sub-sec. (1), which but for the proviso would have been deemed to be included in it. As writ petition cannot be deemed to be included in the word proceeding the omission to mention it in proviso cannot by indirect process of reasoning lead to conclusion that it shall be deemed to be included in it. The preliminary objection, therefore, is overruled. 9. Having dealt with the primary hurdle in way of petitioners their claim on merits may now be examined. Litigation has been going on between matriculate fireman grade (c) (steam engine) appointed as diesel driver assistant in 1968 in consequence of dieselisation of Moradabad Division, with non-matriculate firemen who were appointed in 1969 and thereafter due to relaxation granted by the Railway Board in educational qualifications. Dispute started as due to drafting of non- matriculates the diesel driver assistants became surplus, therefore, petitioners who were junior in cadre of firemen were directed to be reverted. Thus started first phase of litigation regarding determination of seniority amongst diesel driver assistants and their consequent reversion which achieved finality in Rama Kant v. Divisional Supdt. Railways, AIR 1981 SC 357 . History of dieselisation, cadre of diesel driver assistants, method of their recruitment, determination of their seniority and promotional avenue etc. were discussed in detail. Thus started first phase of litigation regarding determination of seniority amongst diesel driver assistants and their consequent reversion which achieved finality in Rama Kant v. Divisional Supdt. Railways, AIR 1981 SC 357 . History of dieselisation, cadre of diesel driver assistants, method of their recruitment, determination of their seniority and promotional avenue etc. were discussed in detail. It was held that diesel side running staff was constituted and treated as separate unit distinct from the steam side running staff. On the question of determination of seniority the Court did not agree with policy of Railways that seniority of diesel driver assistant had to be determined on length of service in the cadre of fireman on steam side irrespective of date of their appointment on diesel side. It was held : "Of course, all the initial appointments were on an officiating basis. But merely because the appointments were on an officiating basis we do not see how those who were drafted into the diesel unit earlier would lose the benefit of their continuous service on the diesel side merely because others who were senior to them on the steam side came in or chose to come in at a later stage. If seniors on the steam side did not come in earlier it was because they were barred from coming in by the requirement of a minimum educational qualification. The subsequent relaxation of the rule cannot enable them to take a 'frog leap' over the heads of those who had come into the diesel side earlier. The seniority on the steam side is of no relevance in determining seniority on the diesel side when they are appointed on the diesel side on different days." Consequently order passed by Railways reverting petitioners was quashed and the opposite parties were directed to consider claims of petitioners for confirmation on the diesel side and to give them all consequential benefits. 10. Since law had been settled by Supreme Court a Division Bench of this Court (Lucknow Bench) in Civil Misc. 10. Since law had been settled by Supreme Court a Division Bench of this Court (Lucknow Bench) in Civil Misc. Writ Petition No. 155 of 1970 N. C. Talukdar v. Union of India applied it in case of diesel driver assistants and held - "It will be the date of appointment as driver assistant diesel that will govern their subsequent seniority for the purpose of confirmation, promotion and the like and they will not carry their birth marks from their original cadre on the steam side." In another petition of same nature for same relief another Division Bench in Civil Misc. Writ Petition No. 5449 of 1974 Janki Singh and others v. Union of India, held : "In the result, we allow the petition and direct the respondents to consider the petitioners' claim for promotion to the post of shunter in diesel side from the dates their promotion became due. The parties shall bear their own costs." As despite orders in the two petitions mentioned above the petitioners were not promoted they filed contempt petitions. In April 1981 they made representations to the Divisional Railway Manager, Northern Railway. Moradabad for fixing their seniority and promote them as shunters and diesel drivers grades C, B and A. Thus started second phase of litigation. In Nov. 1981 a seniority list was circulated against which petitioners made another representation resulting in yet another seniority list circulated in April 1982. According to petitioners the opposite parties in disregard of directions of Supreme Court and this Court repeated the same mistake and placed petitioners as juniors than those who were recruited after them. In July 1982 letter was issued by Northern Railway Headquarter directing that seniority of all diesel driver assistants be fixed according to judgment of Supreme Court. The extract of letter quoted in Writ Petition is reproduced below. "Decision of Hon'ble Supreme Court may be uniformly applied in all cases. This decision will only be applicable within the group of diesel driver assistants and not for further promotion. The seniority list of diesel driver assistants may be recast accordingly and a progress report in regard to implementation of above decision may please be sent to this office by 20-8-82 certainly." 11. Grievance of petitioners is two fold one which emanates from the direction of Northern Railway Headquarters 'that decision will not be applicable to promotion' and second the promotion in Nov. Grievance of petitioners is two fold one which emanates from the direction of Northern Railway Headquarters 'that decision will not be applicable to promotion' and second the promotion in Nov. 82 of persons juniors to petitioners as diesel driver assistants contrary to principle finalised by Supreme Court. Stand in the counter-affidavit filed by Railways is neither clear nor straightforward. In nutshell it is threefold, one promotional avenue on diesel side was meant for staff recruited directly as diesel cleaners, second promotion to diesel shunters is to be made on basis of combined seniority on steam diesel side and the third that dispute in Supreme Court was confined to reversion of diesel driver assistants and not in respect of future promotions. Procedure of promotion has been explained in paras 11 to 14 of the counter-affidavit. According to it the circular of 1958 issued by Railway Board providing promotional avenue was meant for direct recruits. It did not apply to petitioners as they were recruited as loco cleaners, who could be absorbed on either side, namely diesel or steam. Such cleaners could be promoted as firemen Grade B or C on steam side only as there was no such post in diesel. And those who opted for diesel were given required training and were then posted as diesel driver assistants. And since there was no separate channel of promotion in diesel or steam side on Northern Railway, the N. Rly. Administration by its circular dated 29-7-82 directed, that the seniority of steam/ diesel/ electric shall be combined and the promotions shall be made on the basis of combined seniority. Continuing with their claim it is averred that in absence of any separate channel of promotion the diesel driver assistants had been assigned seniority with firemen grade A. And the higher post of shunter and driver grade C is filled on seniority- cum-suitability from amongst these. From shunter according to counter-affidavit next promotion to drivers grade C on steam or diesel side. And those selected have to undergo training for two years on diesel side and prescribed training on steam side, same procedure is applied for still higher promotion as driver grades B,A and special. 12. On the, stand of railways we cannot refrain from expressing our intense dissatisfaction. And those selected have to undergo training for two years on diesel side and prescribed training on steam side, same procedure is applied for still higher promotion as driver grades B,A and special. 12. On the, stand of railways we cannot refrain from expressing our intense dissatisfaction. Decisions of highest Courts are rendered not only to adjudicate upon rival claims of parties but also as declaration of law to he followed by all. Breach of it disturbs the rule of law, generates indiscipline and multiplies litigation. In Rama Kant's case, the Supreme Court while quashing reversion order had gone into question of diesel and steam unit and their promotional avenue. It was held that diesel running staff was constituted and treated as a separate unit. It further held that as direct recruitment as diesel cleaner the initial post on the unit, would have taken time, therefore, it was decided to draft firemen on the steam side, possessing the minimum educational qualification of matriculate to the diesel side as driver assistants after giving than the requisite training. Thus the question of promotional avenue provided by circular of 1958 to direct recruits etc. becomes meaningless. Those firemen Grade C who were drafted in 1968 were treated by the Hon'ble Court as direct recruits beginning from one stage ahead namely diesel driver assistants instead of diesel cleaners. And it was for this reason that the Hon'ble Court held that firemen of grades B and A of steam side which is higher in ranking than C, drafted letter could not claim seniority over firemen grade C drafted earlier. The consequences that flow from it are two-fold, one that firemen grade C recruited in 1968 were entitled to be considered for confirmation prior to firemen of C, B or A recruited in 1969 and onwards. Next follow up of the same was moving up on the ladder subject to suitability etc. namely shunter, then driver grades C. B. A special etc. Song (sic) in the counter-affidavit of diesel driver assistant and firemen grade A grade being same and their promotional avenue is out of tune so far petitioners are concerned 13. But the department instead of implementing the decision in letter and spirit has been harping on the stand it had taken in Supreme Court and failed. Another petition filed by appointees of 1969 and onwards in Supreme Court was got dismissed as withdrawn. But the department instead of implementing the decision in letter and spirit has been harping on the stand it had taken in Supreme Court and failed. Another petition filed by appointees of 1969 and onwards in Supreme Court was got dismissed as withdrawn. Letter dated 29th July 1982 extracted earlier exhibits grossest lack of understanding and deliberate attempt to distort. In fact it amounts to contempt to say that the decision will not apply to further promotion. The Supreme Court did not expressly or impliedly direct that petitioner shall stagnate as diesel driver assistants. Promotion subject to suitability is an incidence of service. It emanates from rule and could not be denied arbitrarily or whimsically. Violation of it is impeachable and liable to be struck down both for unreasonableness and breach of Articles 14 and 16 of Constitution. Consequential benefits of confirmation extended to be considered for promotion to next higher post. The narrow construction by opposite parties of the operative portion of Supreme Court was both unjustified and illegal. Promotion of those diesel driver assistants who were junior to petitioners in Nov. 1982 after the judgment of Supreme Court and letter of opposite parties issued in July, 1982 was merely stubbornness with veiled manoeuvring to by pass the judgment. What was required by opposite parties was to consider cases of confirmation of diesel driver assistants who were recruited prior to those who were recruited in 1969 and then to consider their claim for promotion as shunters. It was not open to them to pay lip service to the judgment of the highest court by saying alright since you say do not revert and confirm we shall do it but. we shall not promote. How could such a decision be taken is indeed amazing. The claim that there are few diesel engines in Moradabad Division, therefore, it was not possible to train petitioners appears to be pretext only as from Annexure R-1 filed with rejoinder affidavit it appears there are many posts of diesel shunters etc. in Moradabad Division. Argument of lack of training, non-availability of shunting engines, necessity to undergo training on steam side appear to be misplaced. No one can dispute undergoing training but if next promotion post from diesel driver assistant is shunter and the opposite parties ask petitioners to undergo training for driver on steam side it was bound to create suspicion and resistance. Argument of lack of training, non-availability of shunting engines, necessity to undergo training on steam side appear to be misplaced. No one can dispute undergoing training but if next promotion post from diesel driver assistant is shunter and the opposite parties ask petitioners to undergo training for driver on steam side it was bound to create suspicion and resistance. If for promotion as shunter on diesel side training as driver on steam side was necessary it should have been clarified. But that appears to be wrapped up in vagueness as even this has not been averred that all those who were promoted as shunters in 1982 were required to undergo training beforehand on steam side. 14. For reasons stated above these petitions succeed and are allowed. The opposite parties 1 to 4 are directed to consider claim of all those firemen who are matriculates and were recruited prior to 1969 for confirmation forthwith. And all those who are confirmed if they have not been confirmed earlier shall he deemed to have been confirmed from their due date. After that the opposite parties shall immediately if possible within one month consider their cases for promotion as diesel shunter. If promotion as shunters requires prior training on steam side and any one has already not undergone that training the same shall be given to him. After promotion of such persons as shunter the seniority list of shunters shall be readjusted placing all those who are confirmed and promoted in pursuance of this order over those were promoted in 1982 for future promotion as diesel driver grade C, B or A. To this extent promotion list of 1982 is quashed. It is clarified that all those who have been promoted as shunters in 1982 shall not be reverted. Only seniority shall be readjusted. Nor those diesel driver assistants shall be disturbed who although junior to petitioners have moved further on the promotional ladder and have become diesel driver C, B or A. The petitioners shall be entitled to their costs from opposite parties 1 to 4.