ALL INDIA STATION MASTERS' & ASSISTANT STATION MASTER'S ASSOCIATION & OTHERS versus GENERAL MANAGER, CENTRAL RAILWAYS AND OTHERS

8.C.R.

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point argued was that 'the amendment should have been allowed and no other point was pressed. The learned counsel for the respondent does not accept this position. In the ci~cumstances, we have no other · option but to remand the case to the High Court for disposal in accordance with law. The respondent will pay the costs to the appellant.·

1959

S. M. Banerji v. Sri Krishna Agarwal

Subba RaoJ.

Appeal allowed.

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Nov•mber zo

ALL INDIA STATION MASTERS' & ASSISTANT STATION MASTER'S ASSOCIATION & OTHERS v. GENERAL MANAGER, CENTRAL RAILWAYS AND OTHERS (B. P. SINHA, C.J., P. B. GAJENDRAGADKAR, K. SuBBA RAo, K. C. DAS GUPTA and J.C. SHAH, JJ.)

State Employmmt-Equality of opportunity in matters of India,

promotion-Concept and meaning of-Constitution of Art. r6(r).

The Roadside Station Masters of

the Central Railway challenged the constitutionality of promotion for guards to higher grade station masters' posts. The petitioners contended that the channel of promotions amounted to a denial of equal opportunity as between Roadside Station Masters and Guards in the matter of promotion and thus contravened the provisions of Art. r6(r) of the Constitution, as taking advantage of this channel of promo tions, guards become station masters at a very much younger age than Roadside Station Masters and thus block the chances of higher promotion to Roadside Station Masters who reach the scale when they are much older.

The appellant contended that Roadside Station Masters and

Guards really.formed one and the same class of employees.

Held, that the Roadside Station Masters belong to a wholly distinct and separate class from Guards and so there can be no question of equality of opportunity in matter of promotion as between the Roadside Station Masters and Guards.

The question of denial of equal opportunity requires serious consideration only as between the members of the same class .. The concept of equal opportunity in matters of employment, does· not apply to variations in provisions as between !p.embers of different classes of employees under the State. Equality of opportunity in matters of employment can be predicated only·

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All India Station Masters' & Asst. Station NJ asters' Associativn

V, General Manager, Central Railways

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bet\veen persons \vho are e"ither seeking the same employment, or have obtained the same employment. Equality of opportunity in matters of promotion, must mean equality as between members of the same class of employee and not equality between members of separate, independent classes The fact that the qualifications necessary for recruitment of one post and another are approx imately or even wholly the same can in no vvay affect the question whether they form one and the same class, or form different classes.

ORIGINAL JURISDICTION: Peti.tion No. 126 of 1958. Petition under Article 32 of the Constitution of

India, for enforcement of Fundamental Rights.

N. C. Chatterjee and R. V. S. Mani, for the peti

tioners.

Das Gupta].

B. Sen and R. H. Dhebar, for the respondent.

1959. November 20. The Judgment of the Court

was delivered by , DAS GUPTA J.-The petitioners who describe them. selves as Road-side Station Masters challenge in this petition under Art. 32 of the Constitution the consti tutionality of the channel of promotion for Guards to higher grade Station Masters' posts as notified in the . issue of the Central Railway Wrekly Gazette No. 3 dated November 23, 1951. Under this Notification Guards have two lines of promotion open to them. One is that by promotion, C grade Guards may become · B grade Guards on Rs. 100-185 and thereafter by further promotion A grade Guards on Rs. 150-225. The second line of promotion open to them is that by an examination described curiously enough as Slip 45 examination C grade Guards are f ligible for promotion to posts of Station Masters on Rs. 150.225 scale and thereafter to all the further promotions that are open to the ::-ltation Masters, viz., higher "cales of Rs. 200 to Rs. 300, Rs. 260 to Rs. 350, Rs. 300 to Rs. 400 and finally Rs. 360 to Rs. 500 ; B grade Guards and A grade Guards are also on passing Slip 45 examination eligible for promotion to posts of Station Masters on Rs. 200-300 pay scale and thereafter to further promotions to the higher scales in the Station Masters' line. The Road side Station Masters on pay scale of Rs. 80 to Rs. 170

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(the scale was formerly Rs. 64-170)' can also reach by promotion the grade of Rs. 150-225 but only after going through an intermediate stage of Rs. 100-185. Station Masters Similarly Station Masters on Rs. 100-185 scale ·may also reach the stage of Rs. 200-300 but only after- Station Masters' passing through the intermediate stage of Rs. 150-225. Obviously the provisions enabling Guards to become S - . asters on t e pay sea e o places the Station Masters of Rs. 80-170 scale at a dis- ad vantage as against Guards on _that pay scale and Das Gupta]. also puts the Road-side Station Masters on the pay of Rs. 100-185 pay scale at a disadvantage as against Guards on that scale of pay.

f R 150 225 Genera/Manager, Ceiitral Railway•

. tat10n

Association

& Asst.

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v.

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.

The petitioners contend that the channel of promo tion in so far as it enables Guards to be promoted as Station Masters in addition to the ·other line of promo tion open to them as Guards amounts to a denial of equal opportunity as between Road-side Station Masters and Guards in the matter of promotion and thus contravenes the provisions of Art. 16(1) of the Constitution.

It was further alleged in -the petition that taking advantage of this channel of promotion, Guards become Station Masters on Rs. 150-225 at a very much younger age than Road-side Station Masters and thus block the chances of higher promotion to Road-side ·Station Masters who reach the Rs. 150-225 scale when they are much older. As instances of how the impugn ed provisions in the channel of promotion are harm ful to the Road-side Station Masters, the petitioners state: that wh'ile the petitioner No. 2 even after com pleting 32 years of service has remained in the grade of Rs. 100-185 as Station Master, Guards of equal status and standing have reached gazetted rank within the· same -period of service; that whereas the petitioner No, 3 has come by promotion to the grade of Rs. 150- 225 after putting in 21 years of service, Guards of his standing have risen to the grade of Rs. 360-500 by virtue of the impugned channel of promotion and sever al of his juniors who entered the Railway service long after him as Guards have superseded him. and are working in the grade of Rs. 360-500; that while the

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petitioner No,, 4 having entered into service as Tele- graph Candidate and having passed all the requisite station Masters' examinations prescribed for the higher grade of Station Master within a period of 2t years after putting in 6t' Station Masters' years of service is still in the grade of Rs. 80-170, Association Guards of his length of service and departmental

& Asst.

General"Manager, qSual~ficaMtion are. enthitled fodr promf oRtion1a5s0a2n2~ssi~tahi_it

aster Ill t e gra e 0

O Wit Ill

Central Railways

tat1on

S.

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about the same length of service.

DasGuptaJ.

The respondents-the General Manager, Central Railways, Bombay, V .T., the Chairman Hail way Board, New Delhi and the Union of India,-who contest the application contend that the channel of promotion providing these opportunities to Guards does not in any way contravene the provisions of Art. 16(1) of the Constitution. They also deny the correctness of the allegation that as a result of these opportun ities Guards become Station Masters on Rs. 150-225 pay scale at a younger age than Road-side Station Masters. On the material before us it is not possible to come to a firm conclusion as regards the relative age at which Guards or ·Road-side Station Masters ordinarily reach the pay scale of Rs. 150-225. Assum ing, however, the position to be as stated in the peti tion, that may only evoke some sympathy for the Road-side Station Masters, but does not in any way affect the decision of the question whether Art. 16( 1) of the Constitution is contravened by this channel of promotion.

Art. 16(1) of the Ci;:mstitution is in these words:-

" There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.'' The impugned provisions of the channel of promo tion are in respect of promotion of persons already employed under the State and not in respect of the first If the "equality of employment under the State. opportunity" guaranteed to all citizens by Art. 16(1) does not· extend to matters of promotion the peti tioners' contention that the provisions are void must fail at once. If, however, matters of promotion are

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also "matters relating to employment " within the meaning of Art. 16(1) of the Constitution, the next question we have to consider is whether the impugned Station Masters' provisions amount to denial of equality of opportun- ity within the meaning of that Article.

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e propose to cons1 er t e secon ques 10n rs , on

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& Asst. Station Masters' Association

the assumption that matters b,f promoti~n . are General~anager, " matters relating to employment ' . So multifar10us Central Railways are the activities of the State that employment of men for the purpose of these activities has by the very Das Gupta J. nature of things to be in different departments of the State and inside each department, in many different classes. For each such class there 11ore separate rules fixing the number of personnel of each class, posts to which the men in that class will be appointed, ques- tions of seniority, pay of different posts, the manner in which promotion will be effected from the lower grades.of pay to the higher grades, e.g., whether on the result of periodical examination or by seniority, or by selection or on some other basis-and other cognate matters. Each such class can be reasonably considered to be a separate and in many matters independent entity with its own rules of recruitment, pay and prospects and other conditions of service which may vary considerably between one class and another. A member joins a particular class on recruitment ; he leaves the class on retirement or death or dismissal, discharge, resignation or other modes of termination of service, or by joining another class of employees whether by promotion thereto or direct recruitment thereto on passing some examination or by selection in some other mode.

It is clear that as between the members of the same class the question whether conditions of service are the same or not may well arise. If they are hot, the question of denial of equal opportunity will require seriou~ consideration in such cases. Does the concept of equal opportunity in matters of employment apply, to variations in provisions as between however, members of different classes of employees under the Sta.te ? In our o:pinion, the answer mqst be i:q the

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All India Station 11'! asters' &Asst. Station Jlr!asters' Association v. General l\f anager 1 Central Railways

Das Gupta].

316

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[1960(2)]

negative. The concept of equality can have no existence except with reference to matters which are common as between individuals, between whom equal ity is predicated. Equality of opportunity in matters of employment can be predicated only as between persons, who are either seeking the same employment, or have obtained the same employment. It will, for example, plainly make no sense to say that because for employment as professors of colleges, a higher University degree is required than for employment as teachers of schools, equality of opportunity is being denied. Similarly it is meaningless to say that unless persons who have obtained employment as school teachers, have the same chances of promotion as per sons who have obtained employment as teachers in colleges, equality of opportunity is denied. There is, in our opinion, no escape from the conclusion that equality of opportunity in matters of promotion, must mean equality as between members of the same class of employees, and not equality between members of separate, independent classes.

The Petitioners' Counsel did not seriously challenge the correctness of the above proposition. They con tended however that Road-side Station Masters and Guards really form one and the same class of employees. In our opinion, there is no substance in this contention. It has to be noticed first that Ap pendix II of the Indian Railway Establishment Code (Vol. I) which prescribe rules for the recruitment and training of subordinate staff of Indian Railways classi(y the subordinate staff governed by the rules into 7 branches: (1) Transportation (Traffic); (2) Com mercial; (3) Transportation (Power); (4) Civil Engi neering; (5) Store department Staff; (6) Office clerks and (7) Medical. Each branch again has been divided into groups. The first branch, i.e., the Transportation (Traffic) is shown as having 3 groups: (i) Station Masters, (iii) Outdoor Clerical Staff. Rule 2, the definition section defines a "group" to mean a series of olasses which form a normal channel of promotion. Rule 8 shows the classes of posts

(ii) Guards,

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included in the Station Masters' group and the normal channels of their promotion which are as follows:- ·

I Assist. Head Signallers I I

Head Signallers

Telegraph Inspectors

Signaller I

.

I Assist. Station Masters (lower grade) I Station Masters (lower grade) I . Assist. Controllers Assist. Yard Foreman

I959,

All India Station Masters' &- A.st. Station Masters'. Association v. General Manager, Central Railways

Das Gupta].

T

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Station kasters Controllers Yard Foremen . I ransportabon Inspectors Rule 9 lays down the qualifications necessary for the recruitment to this" group". Rule 10 says that the recruitment will be initially made as students and further provides that the recruits may be {a) persons to be trained in telegraphy in railway telegraph train ing schools and (b) persons who have completed a training in telegraphy in recognized private telegraph training schools. Note 2 of this Rule provides that recruits in either category will on the satisfactory completion of their tr~ining, be eligible for appoint ment as signallers and will remain on probation for one year after such appointment. Provisions for training appear in Rule 11. Rule 12 provides for Refresher and Promotion Courses. Rules 13 to 17 are in respect of Guards. Rule 13 states the classes includ ed in this group and the normal channels of their promotion thus :-

Probationary Guards I Goods or Passenger Guards I Assistant Station Masters (higher grades) Assist. Controllers Assist. Ya rd Foremen I Station Masters Controllers Yard Foremen I Transportation Inspectors Rule 14 lays down the qualifications necessary for recruitment in this line, Rule 15 provides that the

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recruitment will normally be to the lower grade of Guards. Rule 16 provides that during the one year Station Mastm' period of probation recruits will undergo training for a period to be fixed by the administration. Rule 17 Station Masters' provides for the periodical refresher courses at stated intervals and promotion courses as necessary may be prescribed.

Association v.

& Asst.

1"g'" M ,":' lat ways 1

In deciding the question whether Road-side Station Masters and Guards belong to one and the same class Das Gupta J. of employees or not, we must not be misled by the words " groups " or " classes of posts " used in the above rules. The crux of the question is the nature of the differentiation between Road-side Station Masters and Guards in recruitment, prospects and promotion. We find that Road-side Station Masters and Guards are recruited separately, trained separately and the several classes of posts which are ordinarily open to them are also distinct and separate. The only point of contact between them is provided by the rule that Guards may become Station Masters by passing the Slip 45 examination. If after becoming Station Masters these Guards could continue also as Guards there might be some scope for suggesting that the two classes have coalesced. It is not disputed however that Guards once they become Station Masters cease to be Guards and continue as Station Masters. The fact that the qualifications necessary for recruitment as Guards or Station Masters are approximately or even wholly the same can in no way affect the question whether they form one and the same class, or form different classes. As on the admitted facts the Road side Station Masters and Guards are, as already stated, recruited separately and trained separately and have is separate avenues of promotion, the conclusion irresistible that they form two distinct and separate classes as between whom there is na scope for predi cating equality or inequality of opportunity in matters of promotion.

In view of this conclusion it is unnecessary for the purpose of the present case to decide the other ques tion: whether matters of promotion are included in in the words "matters relating tu employment"

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Article 16(1) of the Constitution. For even assuming that they are so included, the present application must be rejected on the simple ground that the petitioners Station Masters' belong to a wholly distinct and separate class from Guards and so there can be no question of equality of Station Masters' opportunity in matters of promotion as between the petitioners and Guards.

Association v. eneral Manager, . . The learned Counsel for the pet1t10ners stated before central Railways

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us that this channel of promotion for Guards is peculiar to the Central Railways; and is not now to be found Das Gupta J. in the other Zones of Indian Railways. If that be the position, the matter may well deserve the attention of the Government; but this has nothing to do with the merits of the petition before us.

For the reasons mentioned above, we dismiss the app.lication, but in view of all the circumstances, we order that parties will bear their own costs.

Petition dismissed.

FEROZ DIN AND OTHERS v. THE STATE OF WEST BENGAL (S. K. DAS, A. K. SARKAR and M. HrnAYATULLAH, JJ.)

I959

November 25

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Industrial Dispute-Strike-Notice of discharge-Whether amounts to lock-out-Sanction to proseci~te- Facts constituting the offence not sha:wn on the face-Conviction on such sanction if bad-· Industrial Disputes Act, I947 (I4 of I947), ss. 27, 24, 2(I).

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A company dismissed from its service four of the appellants, for taking part and instigating others to join, in an illegal slow down strike in the Hot Mill Section of its works, which were a public utility service. On such dismissal the slow-down strike however gained strength. The company thereupon issued a notice dated April 8, 1953, to the workers of the Hot Mill that unless they voluntarily recorded their willingness to operate the plant to its normal capacity, before 2 p.m. of April IO, they would be considered to be no longer employed by the company. As a result forty workers recorded their willingness, but the rest did not make any response at all. Th:e company then issued a second notice dated April 25, stating, inter alia, that the workers who did not record their willingness to work the plant to its normal capacity in terms of the previous notice dated April 8, had been considered to be no longer in service and their formal discharge