D. Murthumjayam v. Union Of India

(1) This is a petition under article 226 of the constitution by the employees of the former southern railway and the present south central railway belonging to the cadre of station masters and assistant station masters against the railway authorities of the union of india seeking various reliefs alleging discriminatory treatment with regard to their pay and emoluments as between themselves and the cadre of commercial clerks. The facts alleged by them are these: the petitioners, who are 12 in number, belonged to the cadre of station masters and assistant station masters. Of the petitioners, the first 11 had been confirmed in their present cadre before 1st april, 1956. The 12th petitioner was confirmed in the cadre on 1st april, 1964. They were all recruited originally as commercial clerks. Till recently (alleged to be till 18 months back) commercial clerks, who were qualified and trained, were promoted as assistant station masters. The details concerning each of the petitioners showing their present appointment, their date of first appointment as commercial clerks, their confirmat' on as commercial clerks, their dates of entry into the next higher grade as assistant station masters and their dates of confirmation in the higher category are set out in the annexure filed by the railway authorities. It would not therefore be necessary to recall those particulars now. The pay scales of the commercial clerks and of the station masters - cum - assistant station masters were fixed by the first pay commission of 1947. There were four grades of commercial clerks on pay scales of 1. Rs. 60 to rs. 150, 2. Rs. 100 to rs. 185, 3. Rs. 150 to rs. 225 and 4. Rs. 200 to rs. 300. There were seven grades of station masters - cum - assistant station masters on pay scales of 1. Rs. 64 to rs. 170, 2. Rs. 100 to rs. 185, 3. Rs. 150 to rs. 225, 4. Rs. 200 to rs. 300, 5. Rs. 260 to rs. 350, 6. Rs. 300 to rs. 400 and 7. Rs. 350 to rs. 500.

(2) Out of nearly 700 belonging to the station masters - cum - assistant station masters cadre in vijayawada there were only about 20 persons in the scales of 5, 6 and 7. While so, the railways introduced a scheme known as ' the new deal' in 1956 to be given effect to from 1st april, 1956. By that 'new deal,' the percentage of commercial clerks in the lowest grade was reduced from 90 per cent to 65 per cent, of the total strength in all grades of commercial clerks, and the remaining 25 per cent of the lowest grade were granted the higher grades. Under the 'new deal' about 150 persons working in category 1 of the commercial clerks' cadre were elevated to category 2 of that cadre. The pay scales of the cadre of station masters - cum - assistant station masters were also revised. At the time the ' new deal' was announced in the month of november, 1956, petitioners 10, 11and 12 were officiating as assistant station masters and the remaining were functioning as assistant station masters and station masters in the lowest grade of the station masters' cadre (category no. 1).

(3) One of the grievances is that they were not given the option to continue in the station masters' cadre or to claim the benefits of the commercial clerks' cadre as per the provisions of the ' new deal'. Then came the second pay commission in 1960 which revised the scales of pay in the several grades of the commercial clerks and the station masters - cum - assistant station masters. The scales of pay of commercial clerks were revised for the 5 grades as : 1. Rs. No to rs. 200, 2. Rs. 150 to rs. 240. 3. Rs. 205 to rs. 280, 4. Rs. 250 to rs. 380 and 5. Rs. 335 to rs. 425. The station masters - cum - assistant station masters' scales of pay in the 6 grades were : 1. Rs. 130 to rs. 220, 2. Rs. 150 to rs. 280, 3. Rs. 250 to rs. 380, 4. Rs. 335 to rs. 425, 5. Rs. 370 to rs. 475 and 6. Rs. 450 to rs. 575. The cadre of station master - cum - assistant station masters was a superior cadre. While so, the petitioners in the superior cadre were receiving less pay than those in the lower commercial clerks' cadre who were their juniors as commercial clerks and also not qualified for promotion to the superior cadre of station masters - cum - assistant station masters. That, the petitioners allege, was discriminatory treatment violative of articles 14 and 16 of the constitution of india. The petition alleges specific instances thus : - the 1st petitioner joined as commercial clerk in 1929 and was promoted to the cadre of station master - cum - assistant station masters in 1938. His present pay is rs. 250 in the scale of rs. 250 to rs. 380, whereas the present pay of k. B. Krishnaswamy, chief goods clerk at guntur, who is about 3 years junior to the petitioner, is rs. 280 in the scale of commercial clerks, rs. 250 to rs. 380. The said k. B. Krishnaswamy was not promoted as assistant station master for the reason that he could not successfully complete the training course or pass the prescribed test. So, he continued to be the commercial clerk and on account of the revision in the pay scales, he is now drawing rs. 280 as commercial clerk whereas the 1st petitioner, who secured his promotion as assistant station master as early as in 1938, is now drawing a pay only of rs. 250.

(4) With regard to petitioners 2, 3 and 4, they joined service as commercial clerks in 1932, 1934 and 1935 respectively. They are now in the cadre of station masters - cum - assistant station masters in the scale of rs. 150 to rs, 280. They are now actually drawing rs. 200 per month, whereas one d. Chakrawarthy, who joined as commercial clerk much later and who could not secure promotion as assistant station master, is now drawing rs. 250 per month in the pay scale of rs. 250 to rs. 380. Similarly petitioners 5, 6, 7 and 8 joined services as commercial clerks in 1940, 1941 and 1943 and were promoted as assistant station masters in about 1947. They are now drawing a pay of rs. 193 per month in the scale of rs. 150 to rs. 280, whereas one m. Narasimha rao, who joined service two years later than petitioners 7 and 8, is at present drawing rs. 219 a month. Petitioners 9, 10 and 11, joined as commercial clerks petitioners 9 and 10 in 1944 and petitioner 11 in 1945 and were subsequently promoted to the cadre of assistant station masters in the pay scale of rs. 130 to 220 and drawing rs. 185 whereas y. V. Satyanarayana, who joined as commercial clerk in 1945, is drawing rs. 205 and l. Gopala rao, station clerk, modukuru and l. R. Koteswara rao, commercial clerk, bezwada, who joined as commercial clerks in 1948 and 1949, are drawing a pay rs. 187. Petitioner no. 12, who joined as commercial clerk in 1950 and was promoted as assistant station master, is now in the scale of rs. 130 to rs. 220, whereas juniors to him are in the scale of rs. 150 to rs. 240 drawing more pay than him. The petitioners allege that their treatment is further discriminatory, as commercial clerks, who were very much junior to the petitioners, acquired eligibility to compete for class ii ' officers ' posts by reason of their higher scales of pay and not the petitioners.

(5) The petitioners allege further that they still hold their liens as commercial clerks and they are entitled to revert as commercial clerks without detriment to their seniority and scales of pay. Their further grievance is that d. Circular no. 377 issued by the authorities in april, 1962 benefitted those in the cadre of station masters - cum - assistant station masters, who were officiating, by giving them higher salaries, whereas they who were their seniors and permanent in that cadre, were given no relief. The petitioners also allege that in the matter of pay the next below rule has to be applied. It is said that a member of the service should not in any event draw pay less than the pay drawn by his junior, next below him, whether the member was in the same cadre or in the higher cadre and that rule also was violated in the case of the petitioners. For all these reasons, the petitioners sought these reliefs: (a) to treat the petitioners as commercial clerks and fix their scales of pay without detriment to their seniority, scale and pay among commercial clerks, notwithstanding their promotion as assistant station masters and station masters, with all past benefits; (b) to revert the petitioners to the posts of commercial clerks on which posts they have a lien without detriment to their seniority, scale and pay with all past benefits; (c) to extend the benefits of the next below rule to the petitioners with all past benefits; (d) to give the benefits of d ' circular no. 377 of april, 1962 to the petitioners and (e) to issue any other writ or direction as this court may deem fit and proper. The railway authorities filed a counter and a supplementary counter denying that there was any discrimination under the" new deal " and pleading that the scales of pay of the cadre of assistant station masters were also revised giving higher scales of pay and that the petitioners, had the benefit of the higher scales of pay. Station masters - cum - assistant station masters' cadre and commercial clerks' cadre are different and the petitioners, who were confirmed in their cadre, cannot make a grievance of the upgrading of the commercial clerks' cadre. On confirmation in the cadre of station masters - cum - assistant station masters, the petitioners lost their lien on their previously held posts of commercial clerks in terms of rule 2006 of the railway establishment code which says that a railway employee on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post. As such, the petitioners cannot claim any reversion to their old posts of commercial clerks. Confirmation to a permanent post is usually made as and when the sanctioned permanent posts fall vacant. The administration is not bound to consult and take the consent of the employee when he is being confirmed in the category to which he opted out and to which he was given special training at great expense to the administration. The ' d' circular no. 377 referred to by the petitioners did not apply to the petitioners. It applied only to such of the assistant station masters who were officiating as such and not to such employees who were made permanent. To redress the grieveance of such of the officiating assistant station masters who would, if they had remained as commercial clerks, drawn a higher salary, they were given advance increments to equate their pay.

(6) The " next below rule " applied only to an employee who was working out of his regular line in a temporary capacity, the intention being that he should not suffer by forfeiting promotion which he would otherwise have received had he remained in his regular line. As the regular line of promotion of the petitioners confirmed as assistant station masters was the cadre of station masters and assistant station masters, they cannot claim the benefit of the next below rule in the commercial clerks' cadre. Reference is invited to government of india's decision no. (4) under fundamental rule 30 (2026, r. Ii). The reference to articles 14 and 16 (1) of the constitution has no relevance and application in the context of the petitioners. The petitioners are not entitled to proforma fixation of pay in the posts of commercial clerks on which they did not maintain lien. The granting of advance increments is opposed to the principles laid down in the fundamental rules. Advance increments can only be granted in recognition of outstanding work. The benefits conferred by ' d' circular have been extended to the 12th petitioner. The petitioners are therefore not entitled to the reliefs asked for. The petitioners filed a reply affidavit repudiating the pleas of the authorities that they had no lien as commercial clerks and alleging that the action of the authorities was discriminatory even among the permanent assistant station masters. They alleged that some of their colleagues were found medically unfit after they were made permanent assistant station masters and so they were reverted as commercial clerks and were given the ranks with reference to their dates of appointment. They gave instances of persons who were permanent assistant station masters and were juniors to some of the petitioners and who were reverted as commercial clerks for the aforesaid reason and were drawing more pay after reversion as commercial clerks. They were : (1) b. Venkateswarlu, (2) k. Satyanarayana, (3) v. Satyanarayana, (4) m. Bapireddy and (5) k. Triambakam.

(7) As can be seen from the allegations and the pleas in the counters, the substantial grievance is the discriminatory treatment meted out to them by " the new deal " as compared to the commercial clerks. It is said that about 150 commercial clerks of category i were upgraded to category 2 by reason of the 'new deal', whereas the petitioners did not receive any corresponding benefits, but on the contrary the petitioners got lesser pay than their juniors as commercial clerks and those who did not qualify for appointment to the superior cadre of station masters - cam - assistant station masters and further they found themselves getting lesser salaries than those who were reverted to the commercial clerks' cadre on medical grounds. The petitioners have alleged instances of commercial clerks who receive higher salaries than the petitioners. The railway authorities have objected saying that those persons were not made parties and that there could be no comparison of salaries of persons in two different categories.

(8) I may take it that factually the instances are correctly stated and that the railway authorities have answered this question by the plea that there could be no comparison between the two categories. The learned counsel for the railways has relied on certain decisions of the supreme court in support of the said plea taken by the railways. Kishori mohanlal bakshi v. Union of india, 44 i. T. R. 532: a. I. R. 1962 s. C. 1139. Was a case of an income - tax officer in the service of the government of india who filed a petition for the protection of his fundamental rights under articles 14 and 16 of the constitution which, he alleged were violated by the union of india. There were two classes of income - tax officers, class i and class ii. Class i officers were eligible to be promoted to the higher posts of commissioners and assistant commissioners. Class ii officers would not, however, be eligible for direct promotion to those higher posts. They could obtain such promotion only after having reached the status of class i officers. The contention of the petitioner was that such a provision as regards recruitment to posts of commissioners and assistant commissioner from class i officers but not directly from class ii officers violated article 16 (1) of the constitution. Such a contention was not accepted. It was observed that it might very well be that " matters relating to employment or appointment to any office " are wide enough to include the matter of promotion. There was no denial of equality of opportunity as among persons holding posts of the same grade. As between persons holding posts in different grades in goverment service there could be no question of equality of opportunity. The other contention raised was that there was discrimination between class i and class ii officers inasmuch as though they did the same kind of work, their pay scales were different. It was said that it violated article 14 of the constitution. That contention also failed.

(9) It does not seem to me that this case meets the situation which is posed by the petitioners. All india station masters' and assistant station masters' association, delhi and others v. General manager, central railway and others, (1960) s. C. J. 344 : (1960) 2 s. C. R. 311: 913 was a case where the road - side station masters objected to guards being promoted as station masters in addition to other channels of promotion open to guards, as contravening the provisions of article 16 (1) of the constitution. The supreme court rejected their plea on the ground that the road - side station masters belonged to a wholly distinct and separate class from guards and so there could be no question of equality of opportunity in matters of promotion as between the petitioners and guards. In my opinion even this case does not present any analogy for the situation presented by the petitioners. The state of punjab v. Joginder singh, (1964) 1 s. C. J. 627: a. I. R. 1963 s. C. Is a case where discrimination in the matter of promotion between the " provincialised " teachers, that is to say, teachers previously employed in the district boards and municipal boards and not in schools run by the state, and teachers in the state cadre was challenged as violative of article 16 (1) of the constitution. That contention failed as the court held that the two services started as independent services, that the qualifications prescribed for entry into each were different, that the method of recruitment and the machinery for the same were also different and that the general qualifications possessed, by and large, by the members of each class being different, they started as two distinct classes. They started dissimilarly and they continued dissimilarly and any dissimilarity in their treatment would not be a denial of equal opportunity, for founding an argument based upon article 14 and article 16 (1) of the constitution. This decision is also beside the point.

(10) Govind dattatray kelkar and others v. Chief controller of imports and exports and others, , (1967) 2 s. C. J. 182: (1967) 2 s. C. R. 29: a. I. R. 1967 s. C. 839 was a case where a direct recruitment as assistant controllers of imports and exports was questioned as discriminating against the promotees in that department. That contention failed. It was explained that the concept of equlity in the matter of promotion could be predicated only when the promotees were drawn from the same source. If the preferential treatment of one source in relation to the other was based on the differences between the said two sources, and the said differences had a reasonable relation to the nature of the officer or offices to which recruitment was made, the said recruitment could legitimately be sustained on the basis of valid classification.

(11) This decision equally furnishes no enlightenment for the determination of the question posed on the peculiar facts of this case. The learned counsel for the petitioners has relied on general manager, southern railway and another v. Rangachari, (1961) 2 m. Lj. (s. C.) 71: (1961) 2 an. W. R. (s. C.) 71: (1961) a s. C. J. 434: (1968) 2 s. C. R. 586 : a. I. R. 1963 s. C. 36. For the dictum of the supreme court that matters relating to employment or appointment to any office under the state within the meaning of article. 16 (1) of the constitution

" include all matters in relation to employment both prior and subsequent, to the employment which are incidental to the employment and form part of the terms and conditions of such employment."

rajasthan state electricity board, jaipur v. Mohan lal and others, ( 1968) 1 s. C. J. 461 : a. I. R. 1967 s. C. 1857, was the case of a person in the service of the electricity board of rajasthan whose services were lent to the p. W. D. And who was subsequently reverted to the service of the board. The other personnel transferred to the board were promoted meanwhile to the higher grade. The contention of the petitioner that he was not promoted to the higher grade and that he was discriminated against was accepted. In brijlal goswomi v. State of punjab and others, a. I. R. 1965 punjab 401. It was held that the order of the punjab government bifurcating the p. E. S. Class ii into school and college cadres was violative of the principle of preserving interse seniority embodied in the rules, and further that the promotions to p. E. S. Class i in the wake of the aforesaid bifurcation of persons who were junior on the sole ground of the nature of vacancy were violative of article 16 of the constitution.

(12) This is a significant ruling that in' erse seniority has to be preserved for promotions. The petitioners' allegations seem to be true that by the ' new deal' they in the superior cadre of station masters - cum - assistant station masters are getting less pay than those in the inferior cadre of commercial clerks who were junior to the petitioners when they were commercial clerks, and who did not qualify for promotion to the superior cadre and those who were reverted as commercial clerks as medically unfit for absorption in the superior cadre. Whereas the petitioners question the treatment meted out to them by the 'new deal' as discriminatory, the authorities seem to repudiate the challenge saying that the petitioners belong to a different cadre and that, if at all, only the pay commission appointed by the parliament could go into and fix the pay scales and remove any anomalies in the pay structure said to exist between one category of employees and another category of employees. In other words, they attribute it to the anomalies in the pay structure. From the many decisions brought to my notice, there is not an instance of an employee in the superior cadre being paid less than an employee in the inferior cadre. It is indeed curious that such things are happening and very much to the detriment of the petitioners, and i fail to see if it is not a form of discrimination in service conditions. It seems to me rather specious reasoning to support this state of affairs by saying that article 16 (1) of the constitution refers to the same category of employees and the said provision is not voilated if the employees in the superior cadre get less pay than the employees in the inferior cadre. Article 16 (1) of the ccnstituticn is in general terms that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office in the state. It has been held in general manager, southern railway and another v. Rangachari, that matters relating to employment or appointment to any office under the state within the meaning of article 16 (1) of the ccnstituticn include all matters in relation to employment both prior and subsequent to the employment and form part of the terms and contitions of such employment. In the same decision it was observed that matters relating to employment would inevitably be the provision as to the salary and periodical increments therein, terms as to leave, as to gratuity as to pension and as to the age of superannuation and even promotion to selection posts.

(13) As was observed in the said case, it would be relevant to remember that article 16 (1) and (2) really give effect to the equality before law guaranteed by article 14 and to the prohibition of discrimination guaranteed by article 15 (1) of the constitution. The three provisions form part of the same constituticnal code of guarantees and supplement each other. I doubt very much whether the plea that there is no discrimination can receive any serious consideration when the personnel of the superior cadre admittedly receive less pay than the personnel of the inferior cadre. I am inclined to think that this is a discrimination in a worser form. For the reason that their pay scales were less, they were ineligible to apply for class ii officers posts which are referred to by the authorities as ex - cadre posts. This is another form of discrimination because as observed by the supreme court in the aforecited case promoticn to a selection post is also included as one of the matters relating to employment. I am equally unconvinced that the matter can be explained away as an anomaly in the pay structures remediable only by the pay commission appointed by the parliament and that the authorities are helpless which means that the discrimination has to be suffered. As anomaly is an irregularity and a deviation from the regularity. It does not cease to be a discrimination as any departure from the regularity could result in discrimination. So, i feel that the authorities may not nonchalantly term it an anomaly and get away with discrimination. It is sought to be explained that these alleged anomalies, which i would prefer to say results arising from discriminatory treatment, cannot be remedied by giving advance increments. It is pleaded by the authoritie's in the supplementary affidavit that the granting of advance increments is opposed to the principles laid down in the fundamental rules and that the advance increments can only be granted in recognition of outstanding work and that such a step would open the gate for 350 similar other assistant station masters and station masters and other staff in many other categories to claim advance increment which will impose heavy financial burden.

(14) The said pleading is counter to the ' d ' circular no. 377 issued by the authorities in april, 1962 with regard to the consideration of the claims of the officiating assistant station masters in the prescribed scale of rs. 80 - 170 consequent on the upgrading of the commercial clerks from 1st april, 1956. Paras 3 and 4 of the 'd' circular may be read here:

"3. After discussion with the recognised labour orgnaisations, it is observed that the needs of the case would now be met, 'f the pay of these assistant station masters is fixed proforma in the commercial clerks category and their pay as assistant station masters refuted by a grant of advance in as much in the prescribed scale of rs. 80 - 170 the underlying idea that that they should not be worse off in pay than what they should have got if they had continued in commercial clerks in their parent cadre. The proposal will not involve additional financial commitments not envisaged in the earlier orders as within the ambit of the board's orders the employees could have been allowed the scales of the pay appropriate to commercial clerks and their officiating pay as assistant station masters refixed accordingly. But still the matter is being reposted to the board as the procedure proposed does not lie in the normal pattern of implementation of the upgrading order. 4. The board may, therefore, kindly approve of the proposal to refix the pay of all these assistant station masters by giving them suitable advance increments in the assistant station masters' grade. The refixaticn will be made effective from 1st april, 1961 only."

I am told that this recommendation has been approved by the board. The authorities have therefore taken an inconsistent attitude towards the permanent personnel of the station masters - cum - assistant station masters cadre. Whereas the authorities sought to remedy the adverse effects on those officiating in the cadre, they were not considerate towards the permanent personnel of the cadre which is in itself a discrimination.

(15) I should think that the authorities could find appropriate ways of remedying the adverse effects caused to the petitioners by the implementation of the ' new deal. ' i accept the pith and substance of the case that the' new deal' had worked discrimination and that to that extent the 'new deal' is discriminatory and violative of articles 14 and 16 (i) of the constitution and direct the respondents herein the fix the pay of the petitioners in their present cadre so as not to be less than the pay they would have drawn if they had been in the cadre of commercial clerks from which they were promoted, to be effective from the date of the implementation of the 'new deal'.

(16) In the view that i have taken on the main question and in view of directions that shall issue, the relief prayed for by the petitioners that they should be reverted as commercial clerks may not be necessary. However, i would now examine if the other reliefs prayed for could accrue to the petitioners. It is strange that the petitioners of the superior cadre (station masters - cum - assistant station masters) should seek reversion to their original posts in the inferior cadre (commercial clerks). That explains their deep frustration of the service conditions in which the petitioners were placed. The petitioners claim to have a lien over their original posts as commercial clerks and as such claim a right to revert. The authorities take a stand that there is no such lien because the petitioners were confirmed in the station masters - cam - assistant station masters cadre. I agree with the authorities that the petitioners do not have a lien on their original posts as commercial clerks and that the matter is governed by railway fundamental rules 2005 and 2006 (indian railway establishment code) which are as follows :

"2005. (f. R. 12) substantive appointment: - (a) two or more railway servants cannot be appointed substantively to the same permanent post at the same time. (b) a railway servant cannot be appointed substantively except as a temporary measure to two or more permanent posts at the same time. (c) a railway servant cannot be appointed substantively to a post on which another railway servant holds a lien. 2006. (f. R. 12 - a). Lien. - unless in any case it be otherwise provided in these rules, a railwy servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post."

(17) Reading these two rules together, a railway servant is appointed substantively to a permanent post and on substantive appointment acquires a lien on that post and ceases to hold a lien previously acquired on any other post. The petitioners, who have been substantively appointed to permanent posts in the station masters - cam - assistant station masters cadre, acquire liens on the posts that they hold and cease to hold their lien on the posts of commercial clerks which they held previously. The learned counsel for the petitioners has contended that the petitioners' cases comes under railway fundamental rules 2008 (f. R. 14) dealing with suspension of lien and 2009 (b) (f. R. 14 - a) and that the lien has not been terminated previously as contemplated by rule 2009 (b). He reads an illustration under f. R. 14 (a) (2) i. E. , railway f. R. 2008 (a) (2) which is as follows : -

"government of india's decisions - in a case covered by f. R. 14 (a) (2) , where a government servant is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne, f. R. I4 - a (b) precludes permanently the termination of his suspended lien unless and until a written request to that effect is received from him. The result is that it is possible for such a government servant to stop his suspended lien being removed from the parent cadre indefinitely and thus cause inconvenience to the parent office. It has been decided that such a situation may be met by the appropriate executive action being taken by the controlling officer. The centrelling officer may refuse his consent to such a government servant being confirmed or retained in a permanent post outside his cadre, unless he agrees to his lien on the permanent post in his parent office being terminated. (page 163 of the indian railway establishment code, volume ii - third reprint.)"

I do not consider that the question of suspension of lien arises here when under railway fundamental rule 2006, it had ceased. The argument is without substance. I do not therefore consider that the petitioners still hold their liens on the posts of commercial clerks. There now remains to consider the next below rule. The authorities say in their supplementary affidavit that the benefit of the " next below rule " is applicable only to an employee who is working out of his regular line in a temporary capacity and that the petitioners, who were confirmed in the cadre of station masters - cum - assistant station masters cannot claim the benfit of the next below rule in the commercial clerks' cadre. They invited reference to government of india decision no. (4) under f. R. 30 (railway fundamental rule 2026) which is stated thus : -

"guiding principle for the working of the ' next below ' rule. - the secretary of state has sanctioned the adoption of the following guiding principle in regard to the working in future of the ' next below ' rule. The intention of the so called rule was apparently that an officer out of his regular line should not suffer by fortuitous acting promotion which he would otherwise have received had he remained in his regular line. From that it follows that the fortuitous acting promotion of some one junior to an officer who is out of the regular line does not, in itself, give rise to a claim under the " next below " rule. Before such a claim is established it should be necessary that all the officers senior to the officer who is out of the regular line have been given acting promotion, and also the officer next below him, unless in any case acting promotion is not given because of inefficiency, unsuitability or leave. In the event of one of these three bars being applicable to the officer immediately below the officer outside his regular line, then some other officer, even more junior, should have received acting promotion and the officers, if any, in between should have been passed over for one of these reasons. "

(18) Government of india decision no. (5) is thus : -

"outside the ordinary line of service. - it has been held by the government of india and confirmed by the secretary of state that the expression " posts outside the ordinary line of a service " used in the second proviso to f. A. 30 (1) (2026 (1) - r) also includes besides ex - cadre posts, special posts outside the ordinary line which are borne on the cadre of a service and that holders of such posts can be given the benefit of a declaration under that rule, provided that the conditions precedent to the application of the ' next below ' rule are fulfilled in their case. " (pages 171 and 172 of the indian railway establishment code - volume ii - third reprint). "

It is said that the ' d ' circular is an implementation of the ' next below ' rule. It may be that the ' next below ' rule may not in terms apply ; but i have little doubt that the principle underlying that rule lays down that the promotions and pay of the seniors have to be preserved as against their juniors. I am of the view that these form the relevant considerations in carrying out the directions hereinbefore stated.

(19) In the result, therefore, the writ petition is allowed and directions will issue to fix the pay of the petitioners in their present cadre so as not to be less than the pay they would have drawn if they had been in the cadre of commercial clerks from which they were promoted, to be effective from the date of the implementation of the " new deal ". The petitioners will get their costs. Advocate's fee rs. 250. Petition allowed.