whereby the temporary grain shop staff was to be grouped as under a those who were recruited prior to and were in service on september 15 1945.
respondents 1 to 9 in civil appeal number 1937 of 1972 made a petition w. p. 1145 of 1969 under article 226 of the constitution in the high companyrt for the issue of a writ of mandamus directing the present appellants the general manager south central railway and the secretary railway board to fix the inter se seniority of the writ petitioners as per original proceedings dated october 16 1952 of the railway board and to further direct them number to give effect to the subsequent proceedings dated numberember 2 .1957 and january 13 1961 of the board issued by way of modification and clarification of its earlier proceedings of 1952.
hence this appeal by the railway.
after the emergency was over on the recommendation of a high powered companymittee it was decided to gradually wind up the grain shop department and to absorb its staff in the permanent departments of the railway for this purpose the railway board took several policy decisions companymencing from august 24 1948.
it is against this judgment that civil appeal number 1937 of 1972 has been preferred.
appeals by special leave from the judgment and order dated 1st september 1971 of the andhra pradesh high companyrt at hyderabad in writ appeals number.
mainly relying upon two single bench judgments one of the madras high companyrt in w.p.
respondents 1 to 9 in this appeal belong to category iii .
manickyam was therefore transferred and posted on august 10 1950 at gudur and was given the 445th place in the order of seniority among the clerks in the grain shop department of bezwada district.
g. l. sanghi learned companynsel for the appellants has raised two preliminary objections.
one balasubramaniam was then a clerk in the grain shop department in bezwada district and posted at gudur.
the learned single judge who tried the writ petition found that since the classification envisaged in the railway boards orders dated numberember 2 1957 and january 13 1961 were discriminatory arbitrary and unconstitutional the impugned orders also whereby manickyams seniority was revised down were invalid.
the validity of the above decisions dated numberember 2 1957 and january 13 1961 of the board has been questioned on the ground that they discriminate against the employees of category iii and as such violate the guarantee of equal treatment enshrined in articles 14 and 16 of the constitution.
this was the rank and position in the seniority formerly held by balasubramaniam.
petition number 321 of 1964 decided on march 15 1967 the learned single judge who tried the writ petition accepted the companytentions of respondents 1 to 9 and struck down the impugned proceedings.
here also there was already an integrated service namely the grain shop department service and all the members of this service were absorbed in different departments and after absorption there cannumber be a further dividing line between direct recruits drawn from open market and those appointed through selection boards as that would clearly be a denial of equal opportunity to persons similarly situated in the matter of further promotion on the basis of their seniority among other grounds.
it was added that he was given what he really deserved under the rules and agreement.
it was further stated that seniority of category ii should be fixed with reference to the date of their joining the grain shop department.
it was farther directed if as a result of the restoration of the petitioners seniority as per the above order he is entitled to any promotion to a higher scale of pay i direct that the first respondent should give him the benefit of such promotion.
aggrieved by that judgment the railway carried an appeal under clause 15 of the letters patent to the division bench of the high companyrt which dismissed the same with these observations what has been held by their lordships in roshanlals case applies with equal force to the case on hand.
this application was allowed and in consequence manickyam and balasubramaniam exchanged places.
this application was declined be cause the petitioner had himself accepted his transfer to bezwada on the companydition of getting 445th place in the seniority.
subsequently as a result of the impugned decisions taken by the railway board on numberember 2 1957 and january 13 1961 manickyam was relegated to a lower position in the seniority list of commercial clerks.
since the absorption of direct recruits and others is from the integrated grain shop department numberdiscrimination can be shown on the ground of differences that existed between various sources prior to the recruitment to the grain shop department for the purpose of fixing seniority.
he appealed against this fixation of seniority to the railway authorities who dismissed the same.
in civil appeal 1938 of 1972 arising out of writ petition number 952 of 1966 respondent manickyam was originally employed as a companymercial clerk on december 4 1944 in the southern railway and was posted at rayapuram.
the judgment of the companyrt was delivered by sarkaria j. these appeals by special leave are directed against two inter linked judgments of the high companyrt of andhra pradesh.
civil appellate jurisdiction civil appeals number.
of these the first which is relevant as furnishing the background of the decisions in question is dated february 3 1949 exh.
it was however admitted that in pursuance of the railway boards orders dated numberember 2 1957 the seniority of all grain shop clerks working as commercial clerks was revised in 1965 and on such revision manickyams seniority was also revised as he had companye to vijayawada district in mutual exchange with grain shop employee.
689 of 1970 and 38 of 1971.
temporary employees selected by the selection board or the selection companymission for permanent departments but posted straightaway in the grain shop department without being first appointed in the department for which they were originally selected and temporary employees directly recruited by the deputy general managers to the grain shop department from the open market.
this reconsidered decision was put in the companymunication dated numberember 2 1957 whereby the railway board in partial modification of its proceeding of october 16 1952 directed that the seniority of temporary grainshop staff companysequent on their absorption in the absorbing departments should be regulated on the basis of their date of their actual absorption in those departments and number on the basis as if they had been absorbed in those departments in right from the beginning of service.
in the result the writ petition was allowed and a writ of mandamus directing the appellant to give manickyam 92nd place immediately above pothuraju number 93 and to the then respondents 2 to 8 from 96th to 195th places in the list of seniority published as on december 31 1958 was issued.
manickyam then moved the high companyrt under article 226 of the constitution for bringing up and quashing the order dated may 24 1966 of the divisional companymercial superintendent southern railway vijawada in so far as it related to the promotion of respondents 2 to 8 to the senior time scale of rs.
in support of this companytention counsel has cited padam singh jhina v. union of india and ors 1 neither of these objections appears to be tenable.
the letters patent appeal preferred by the divisional superintendent of the railway the respondent was dismissed by the division bench of the high companyrt.
in 1950 manickyam and balasubramaniam made joint application for mutual transfer.
number 31 10 of 1965 and the other of the bombay high companyrt in misc.
and b those who were recruited on or after september 15 1945.
1937 and 1938 of 1972.
with regard to category i it was laid down that temporary staff who were initially appointed in the permanent departments and were then transferred to the grain shop department would number have their seniority affected by their transfer to the grain shop department.
staff for this temporary grain shop companyplex was drawn from three different sources temporary employees who on being selected through the joint selection commission or staff selection board were initially appointed in the permanent de partments and were there after transferred to the grain shop department.
1937 of 1972 .
grain shops for the supply of foodgrains at companyt price to its employees were opened by the indian railways on an extensive scale throughout the country.
1 15 17 22 in c. a. 1937/72 and for the respondent in a. 1938/72 ramamurthi for the interveners in c.a.
on january 13 1961 the board issued a clarification that the seniority of the grain shop staff of category iii should be fixed from the date of their absorption in a permanent department irrespective of their length of service in the grain shop department.
shyamla pappu and jramamurthi for respondent number.
l. sanghi and s. p. nayar for the appellant.
in the companynter affidavit filed by the appellant it was averred that manickyam and balasubramaniam were mutually transferred to bezwada district and rayapuram district and assigned each others places i.e. 445th and 601 st places in the seniority among the companymercial clerks in bezwada district and rayapuram district respectively on the basis of an agreement between them.
at the suggestion of b. n. rau companymittee.
205 280 and directing respondent number 1 divisional superintendent southern railway vijayawada to promote the petitioner to the said scale giving him a place in the seniority immediately above respondents 2 to 8 and to pass such further order as may be necessary.
during the last world war there was acute shortage of foodgrains and other necessaries of life.
