Central Administrative Tribunal - Allahabad
Ashok Kumar Singh vs North Eastern Railway on 22 August, 2024
(Reserved on 21.08.2024)
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 22nd day of August, 2024
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Original Application No. 910 of 2024
1. Ashok Kumar Singh S/o Sri. Lal Bahadur Singh R/o Mahui
Kunwar Post Mirzapur, Barhaj, Dewaria, Uttar Pradesh - 274601
2. Arun Kumar Pandey S/o Indrapal Ram Pandey R/o Rahana,
Bhoti, Reeva, Madhya Pradesh - 486331
3. Umesh Kumar Avasthi S/o Sidhi. Narayan Awasthi R/o
Village and Post-Arak, Arak Baksar, Bihar - 802111
4. Surya Deo S/o Late Sri. Ramadhar Mall R/o Karjaha, Dewaria,
Uttar Pradesh - 274603.
5. Purushottam Mishra S/o Late Sri. Ramji Mishra R/o Village
Bahaluhi Madari Patti Tola Birti, Kushinagar, Uttar Pradesh -
274402.
6. Liyakat S/o Sri. Sakoor R/o Bhaluhi, Fazeelnagar, Kushinagar,
Uttar Pradesh - 274401.
7. Uma Shankar Verma S/o Sri. Sukhram Verma R/o Sukh Shanti
Sadan Sector-A B-36 Sainik Vihar Nagar Post-Kuwarghat, Uttar
Pradesh.
8. Subash Prasad S/o Late Sri. Jagan Nath Prasad R/o Dubria
Khajni, Gorakhpur Uttar Pradesh - 273212.
9. Anirudh Prasad S/o Sri. Paras Nath Pasi R/o Dakshin Tola
Madapar Kusumhi, Gorakhpur, Uttar Pradesh 273002.
10. Prabhunath Singh S/o Sri. Mokhtar Singh R/o Parwalia PO-
Sakhekhas Gopalganj, Bihar - 841438.
11. Dibakar Bhatta S/o Late Sri. BainshidharBhatta R/o PO-
Bhalia dihi Golagain, Nayaghar, Odisha - 752092
1|Page
12. Lakshman Prasad S/o Late Sri. Lalan Prasad Sah R/o Sarna
Sama, Bhojpur, Bihar - 802165
13. Mahendra Singh S/o Sri. Chandrabhan Singh R/o Gram Shiv,
Rajpatty, Dumari, Kushinagar, Uttar Pradesh - 274402
14. Ram Kawal S/o Sri. Ram Naresh R/o Kuin Bazar, Barhi
Gorakhpur, Uttar Pradesh-273405
15. Mahendra Kumar Yadav S/o Ravrikshna Yadav R/o Haraha
Harha, Deoria, Uttar Pradesh - 274208.
16. Ali Imam Ansari S/o Sri. Md-Ramjan Ansari R/o 116/209B 17
Janta Nagar Rawatpur Gaon Kanpur, Kanpur Nagar, Uttar Pradesh-
208019.
17. Rakesh S/o Sri. Setu Ram R/o 28 Marha, Belghat Gorakhpur,
Uttar Pradesh-273404.
18. Vinod Kumar Mall S/o Late Sri. Jagdish Mall R/o Mahuadih,
Bearpar, Barawa Dewaria, Uttar Pradesh 274001.
19. Ram Prawesh Yadav S/o Sri.Babu Ram Yadav R/o Tahseel
Salempur, Babhnauli Pandey, Dewaria, Uttar Pradesh-274502
20. Rama Shankar Pandey S/o Late Sri. Ganesh Pandey R/o Nagri
Bhojpur, Bihar-802223.
21. KapildeoSah S/o Sri. Shiv Poojan Sah R/o Rupan Chak, PO-
Hatwa, Hathua, Gopalganj, Bihar 841436
22. Mithlesh Prasad Yadav S/o Sri. Jata Prasad Yadav R/o Village
Bhatwali, Post Kamalpur, PS-Manjhagarh, Kamalpur, Gopalganj,
Bihar - 841405.
23. Uday Shankar Sah S/o Late Sri. Hira Sah R/o Sohagpur,
Gopalganj, Bihar - 841436.
24. Akhtar Khan S/o Sri. Gul Mohammad Khan R/o Vill- Mohani,
PO Shivpur, Rohtas, Bihar - 802212
25. GurendraMishra S/o Sri. Kanhiya Mishra R/o Tahseel
Gopalganj, Barahara, Gopalganj, Bihar-841426.
2|Page
26. DiwakarKumar S/o Sri. Jageshwar Prasad Jaiswal R/o Gram-
Tirassa Tola-Aoghakopa, District Puriya, Bihar-854204.
27. PapuKumar S/o Sri. Sitaram Singh R/o Sarsyan, Saghar
Sultanpur Siwan, Bihar-841417.
28. Sushil Kumar Singh S/o Indradev Singh R/o Jalalpur, Near
Talab Bishunpura Saran, Bihar-841211
29. Ramesh Singh Yadav S/o Sri. Jagarnath Singh Yadav R/o
Palia, Gazipur Roohipur, Uttar Pradesh-233300.
30. Rajeshwar Prasad S/o Sarvu Prasad R/o Shahpur, Danapur
Near Hanuman Mandir, Patna, Bihar-801503
31. Rambhu Kumar S/o Shankar Chaudhry R/o Repura Urf
Rampur Bishunath, Jayantpur Estate, Muzaffarnagar, Bihar -
843123.
........... APPLICANTS
By Advocate: Shri Suhail Ahmad Ansari
Versus
1. Union of India through Secretary, Ministry of Railways, Rail
Bhavan 1, Raisina Road, New Delhi.
2. General Manager, North East Railway, Gorakhpur.
3. Divisional Railway Manager, North East Railway, Varanasi.
4. Divisional Railway Manager, North East Railway, Gorakhpur.
..........RESPONDENTS
By Advocate: Shri Chakrapani Vatsyayan
ORDER
(Delivered by Hon'ble Mr. Justice Om Prakash VII, Member (J) At the outset, it is pertinent to mention that although the instant case was listed today under the head of Fresh Admission, with the consent of parties, the same is heard and decided finally at this stage itself.
3|Page
2. Shri Suhail Ahmad Ansari, learned counsel for the applicants and Shri Chakrapani Vatsyayan, learned counsel for the respondents, were present at the time of hearing on admission.
3. The instant original application has been filed by the applicant seeking following relief:
"i. Suitable direction be issued to respondent authorities to grant regularization by expeditiously adjudicating applicants pending representations dated 23.11.2023 (Annexure No. 3) and 01.02.2024 (Anneuxre No.) by means of which the applicants are seeking regularization of their service and consequential benefits thereupon, within a stipulated frame of time as this Hon'ble Tribunal deems fit and proper.
ii. Suitable direction be issued directing Respondent No. 2, to grant salary in the correct pay scale as per the service conditions given in Indian Railway Establishment Code.
iii. Issue any other suitable order or direction as this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the present case.
iv. Award the cost of the original application to the applicant."
4. A synopsis of the controversy prevailing in the instant case is that the applicants, who are ex-servicemen of the armed forces and currently serving in the respondents department on contractual basis, are aggrieved by the fact that their services have not been regularized by the respondents. Applicant are claiming regularization as a parity alleging that similar benefits have already been extended to several other similarly situated employees. Applicants have further claimed that they are bound to be regularized in view of the department's own rules and provisions stipulated on the subject matter. By way of this OA, they seek a direction to the respondents' authorities to either
4|Page decide their representations or regularize them in accordance with rules.
5. We have heard the learned counsels for the parties and gone through the records.
6. Disclosing a brief history of the case, learned counsel for the applicant submitted that the Railway appointment cell, North East Railway, Gorakhpur issued an advertisement dated 14.12.2018 for appointment of gatemen especially for ex-servicemen on contract basis, initially for a period of one year which may further extend from time to time. The posts of Gateman advertised in the aforesaid advertisement were substantive posts and lying vacant due to non- appointment of regular employees. Learned counsel further argued that the applicants applied for the posts of Gateman and after due process of appointment, they were appointed on contract basis for one year on 18.12.2018. Upon expiry of the one year period, their contracts were renewed periodically. Despite the fact that the applicants have been continuously working on contract basis for several years now, they have not been regularized and are still being paid the minimum wage. Being aggrieved, the applicants preferred representation dated 31.07.2021 before the respondents' authorities but for no avail as no decision has been taken upon it till date.
7. Learned counsel for the applicants further argued that since 2018, the applicants have been continuously working on the same pay as was fixed during their engagement and the same has not been revised till date for even once. This is seriously violative to the principle of natural justice including the principle of equal pay for equal work as similarly situated regularized employees are drawing higher pay for the same work as has been done by the applicants. Learned counsel further argued that earlier Government of India, Ministry of Railways (Railway Board) have been regularly issuing circulars for the benefit of Ex-servicemen who have put in 15 years of service and have got retired thereafter to be appointed on Group C and Group D posts. A reservation of 20% has also been offered to the
5|Page Ex-servicemen by the Government of India through circular dated 10.09.2010. Learned counsel further argued that another circular dated 12.10.2021 was issued by the Railway Board wherein the Board was considering the issue of extension of the scheme of engagement of Ex-servicemen on contract basis for further period. In the said circular, it was decided that the Ex-Servicemen will be engaged in the category of gatemen should not be more than 50% of the total strength.
8. Learned counsel for the applicants further argued that the Hon'ble Supreme Court of India has considered the issue of contractual workers performing perennial and permanent nature of work in the case of Mahanadi Coal fields Ltd Vs Brajrajnagar Coalmines Workers Union Civil Appeal No. 4092-4093/2024 (Arising out of SLP(C) No. 6370-6371/2024) submitting that the Hon'ble Court has held that workers employed to perform perennial / permanent nature of work cannot be treated as contractual workers. While observing the nature of work of a contractual worker the Apex Court has allowed the regularization of the workers performing perennial / permanent nature of work. Thus, referring to the entire facts and circumstances of the case, prayer was made on the part of the applicants to allow this OA thereby directing the respondents to regularize the applicants on the post of gatemen.
9. Learned counsel for the respondents vehemently opposed the submissions of the applicants' counsel and argued that the applicants were appointed on contractual basis and nowhere in their appointment order(s) it was mentioned that there services were regularized after any certain period of time. The tenure of contract was one year and after the expiry of every term, the tenure of the applicants have been extended. However, mere extension of tenure does not confer any right on the employees to claim for regularization of their services. Further, the applicants cannot claim any parity with the regular employees. The applicants were not appointed against any permanent vacancy nor did they ever appear in any screening test which is mandatory for the purpose of recruiting persons on
6|Page permanent posts. Learned counsel further argued that process of regularization can only be done in accordance with the prescribed procedure as has been framed by the department and that it leaves very little scope for judicial interference especially when the claimants were inducted on contractual basis, as in the instant case. Thus, prayer was made by the respondents' counsel that the instant case holds no merit and the same is liable to dismissed accordingly.
10. We have considered the rival contentions and gone through the documents on record and carefully perused the case law relied upon.
11. As the brief facts of the case have already been narrated above, the same are not reiterated for the sake of brevity. The limited controversy which is required to be decided is whether the applicant's prayer for regularization of their services is just and appropriate in light of the existing departmental rules / provisions and also in light of the case laws relied upon. Admittedly, the applicants were engaged in the year 2018 on contract basis for one year. Their services have been extended after every one year in accordance with the approval conferred by the competent authority of the respondents. Just because the applicants have been working on the post of gateman for several years now, they are claiming regularization on the said post along with similar pay benefits as are given to the regular employees holding the post of gateman.
12. Learned counsel for the applicants has placed reliance upon the circular dated 10.09.2010 claiming that vide the said circular, the Railway Board has offered a reservation of 20% to those ex- servicemen who have put in 15 years of service and have got retired thereafter and therefore, the applicants are liable to be regularized in accordance with the aforesaid circular. A perusal of the aforesaid Circular reveals that although it speaks for fixing 20% quota for filling up vacancies from ex-servicemen, it vividly says that those ex- servicemen shall be recruitment exclusively through open advertisement. At no instance, it says anything regarding regularization of those ex-servicemen who have already been
7|Page engaged on contract basis. The said Circular simply specifies reservation for ex-servicemen during appointing through open advertisement. Fresh appointment and regularization are two different things and both cannot be taken as substitute to each other unless specifically laid down. Thus, no help can be drawn from the aforesaid Circular in favour of the applicants.
13. Secondly, learned counsel for the applicants has also placed reliance on the judgment dated 12.03.2024 passed by the Hon'ble Supreme Court of India in Civil Appeal No(s). 4092-4093 of 2024 titled Mahanadi Coalfields Ltd. Vs Brajrajnagar Coal Mines Workers' Union submitting that in the said case, the Hon'ble Court had considered the issue of regularization of contractual workers performing perennial and permanent nature of work. Learned counsel has argued that in the said case, the Hon'ble Court has held that workers employed to perform perennial / permanent nature of work cannot be treated as contractual workers and accordingly he directed the department therein to regularize those workers. However, upon a careful perusal of the aforesaid judgment and comparing the facts and circumstances involved therein with that prevailing in the instant case of the applicants, it is pertinent to mention that in the said case, the Hon'ble Supreme Court highlighted that out of all the workers who were engaged on contractual basis, the Tribunal directed the respondents to regularize only a certain number of workers despite the fact that the Tribunal itself recorded that all the workers performed similar work and therefore they must be treated likewise. Thus, the Apex Court noted that a clear case of violation of right to equality was ascertained and therefore, it redirected the respondents to grant the benefit of regularization to all the workers instead of a selected few. However, in the instant case, all the applicants were engaged on contract basis for one year period and their tenure was extended from time to time. Not a single person amongst all those who were engaged vide advertisement dated 14.12.2018, was regularized. For the sake of clarity, the relevant portion of the aforesaid judgment is quoted herein below:
8|Page "20. It is proved that the remaining workers stand on the same footing as the regularized employees, and they were wrongly not made part of the settlement. This is established by the Tribunal, by examining the nature of work undertaken by the first set of 19 workmen and that of the other 13 workmen. It also examined Shri Arun Ch. Hota (WW3), the Deputy General Manager (MW2), Mr. Udayshankar Gonelal, the Personal Manager (MW3) and Shri S. Agarwal, the Project Officer (MW4). The Tribunal finally came to the conclusion that the nature of the duties performed by the 13 workmen are perennial in nature. The appellant has failed to establish any distinction between the two sets of workers. The Tribunal was, therefore, justified in answering the reference and returning the finding that they hold the same status as the regularized employees.
21. We are also not impressed with the artificial distinction which the appellant sought to bring about between the 19 workers who were regularized and the 13 workers who were left out. The evidence on record discloses that, of the total 32 workmen, 19 workers worked in the bunker, 6 worked in the Coal Handling Plant, and 7 worked on the railway siding. However, of the 19 workers who were regularized, 16 worked in the bunker, and 3 worked in the Coal Handling Plant. However, 3 workers from the same bunker, 3 workers from the same Coal Handling Plant and again 7 workers from the same railway siding were not regularized. "
14. Further, time and again, it has been reiterated by several judicial forums across the country including the Apex Court that process of regularization can only be done in accordance with the prescribed procedure as has been framed by the department and that it leaves very little scope for judicial interference. To substantiate this, it would be in the fitness of things to reproduce the ratio laid down by the Apex Court in its judgment dated 31.01.1996 in the case of Hindustan Shipyard Ltd. & Ors Vs. Dr. P. Sambasiva Rao reported in 1996 (7) SCC which is as follows:
"We are unable to endorse the direction given by the High Court regarding regularisation of the respondents medical officers with effect from April 1, 1986. The process of regularisation involves
9|Page regular appointment which can be done only in accordance with the prescribed procedure. Having regard to the rules which have been made by the appellant-corporation, regular appointment on the post of medical officer can only be made after the duly constituted Selection Committee has found the person suitable for such appointment. Dr. P. Sambasiva Rao, though he had been working since 1976, was considered by the selection Committee for regular appointment in the year 1981 and was not found suitable for such regular appointment. Dr. J. Sanjeeva Kumar and Dr. S. Prasada Rao were never considered by the Selection Committee for regular appointment. The fact that no regular selection has been made after their appointment on ad hoc basis does not mean that they are entitled to be regularised with effect from April 1, 1986. In view of the Rules prescribed by the appellant-corporation, regularisation of the respondent medical officers on the post of medical officer can be made only after they are considered and found suitable for such appointment by a duly constituted Selection Committee. As a result of the direction for regularisation given by the High Court, the requirement in the Rules regarding selection by a Selection Committee for the purpose of regular appointment on the post of medical officer has been dispensed with. This, in our opinion, was impermissible."
15. Similarly, time and again, it has also been held by several judicial forums across the country including the Apex Court that regularization is not a right and no individual can claim it just on the basis of the service he or she has put in on contract basis. Further, the scope of Article 21 and 39(a) of Constitution of India is very limited in this regard. Accordingly, it would be in the fitness of things to refer to the law laid down by the Apex Court in its judgment dated 10.04.2006 in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors reported in 2006 (4) SCC:
"39. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more 10 | P a g e wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.
42. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring
11 | P a g e of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution."
16. Thus, on the basis of above deliberations, and specifically taking into consideration the law laid down in the case of Uma Devi (supra) and Hindustan Shipyard (supra) and also subsequent to dealing with the scope and range of Circular dated 10.09.2010 as well as of the case Mahanadi Coalfields (supra), this Tribunal is of the considered opinion that the instant case of the applicants holds no merit. The applicants were engaged on contractual basis and at this stage, claim for regularization cannot be allowed to them simply on the strength of the service they have rendered on contractual basis and also taking into consideration the fact that no advertisement was issued by the respondents to recruit fresh appointees on the post of Gateman. The instant OA is liable to be dismissed and the same is accordingly dismissed, being devoid of merits at this stage itself.
17. All associated MAs stand disposed of. No costs.
(Mohan Pyare) (Justice Om Prakash VII)
Member (Administrative) Member (Judicial)
(Ritu Raj)
12 | P a g e