Central Administrative Tribunal - Mumbai
Central Administrative Tribunal vs Union Of India on 31 January, 2013
1 OA.503/2008 CENTRAL ADMINISTRATIVE TRIBUNAL, BOMBAY BENCH, MUMBAI. O.A.No.503/2008. Dated this Thursday the 31st Day of January, 2013. Coram: Hon'ble Shri Justice A.K. Basheer, Member (J) Hon'ble Shri R.C. Joshi, Member (A). Mr.Rl Krishnan Kutty Nair, Welder (Group 'C') working under DY. CEE(C) Dadar, Central Railway, Mumbai Division and residing at B-5, Chandradershan Co.op.Hsg.Society, L.T. Pawshe Road, Hanuman Nagar, Katemanivali, P.O., Kalyan (E), District Thane, PIN. 421 306. ..Applicant. ( By Advocate Shri S.N. Pillai ). Versus 1. Union of India, through The General Manager, Central Railway, CST, Mumbai-400 001. 2. The Divisional Railway Manager, Mumbai Division, Central Railway, CST Mumbai 400 001. 3. DY. Chief Electrical Engineer(C) Dadar, Central Railway, Mumbai Division, Central Railway, Dadar. .. Respondents. ( By Advocate Shri R.R. Shetty ). O R D E R
Per : R.C. Joshi, Member (A).
In this Original Application the Applicant has impugned Exhibit A-4 letter dated 07.04.2003, Exhibit A-3 letter dated 15.02.2005 issued by the Chief Administrative Officer (Construction), Central Railway, Exhibit A-2 letter dated 29.04.2005 issued by 2 OA.503/2008 the Chief Administrative Officer (Construction), Central Railway and Exhibit A-1 containing the decision held in PNM Meeting on 15/16.11.2006.
2. Briefly, the Applicant was initially engaged as a Casual Khalasi (Group 'D') on 23.01.1982 in Central Railway and attained temporary status after 180 days of continuous service as per Rules. He was subsequently promoted/posted as Casual Labour Welder (Group 'C') on 16.06.1983 after a trade test and was granted the temporary status as Welder with effect from 01.01.1984. The Applicant has been working as an ad-hoc Welder Group 'C' in the Construction Organization and seeks absorption with effect from 30.04.1997 as an Artisan Group 'C' employee with consequential benefits.
3. The Applicant in the pleadings has averred that a list of skilled staff (Artisan) working in the Construction Organization was prepared vide dated 31.03.1997 by way of an office order. In the said list (Exhibit A-9) dated 05.02.1998, the Applicant figures at Sl.No.9. The Applicant's contention is that he was posted as Welder on 16.06.1983 after a Trade Test and has been continuously working as a Welder since 16.06.1983 and many of his juniors in the Casual Labour Khalasi were promoted as Casual Labour Artisan after 16.06.1983 were regularized earlier and promoted 3 OA.503/2008 to Artisan Grade II and thereafter to Grade I. It was also contended that the Applicant had preferred an O.A.No.984/1998 and vide order dated 02.12.2002, the said O.A. was disposed of directing the Respondent No.2 to furnish the integrated seniority list referred to in the last paragraph of the order dated 05.02.1998 to the Applicant within one month from the date of receipt of copy of the order. In this respect, a copy of the Annexure-A-4 letter dated 07.04.2003 is reproduced herein below for reference:
CENTRAL RAILWAY Divisional Office, Personnel Branch, Mumbai C.S.T. NO: BB/P/202/G/ELDR/Court April 7, 2003 Shri R.K. Kutty Nair Monthly Rated Welder Dy. CEE(C)DR Sub: OA No.984/98 before Hon'ble CAT Mumbai filed by you V/s Union of India and others.
Ref: Hon'ble Tribunal's order dated 2/12/2002. Dy. CEE(C) DR's letter dated 5/2/1998.
As per the directives of Hon'ble CAT vide order dated 2/12/2002, Dy. CEE(C)DR's letter dated 5/2/1998 has been examined and the following order is passed
1. You have been appointed initially as daily rated Khalasi w.e.f. 23/1/1982 and subsequently given the benefit of monthly rated Welder w.e.f. 16/6/1983 by Construction Organisation.
2. You have been screened and found fit for regular absorption in Group D as per the panel published vide this office letter dated 31/3/1997. But you have not come forward to fulfil the formalities for regularisation till date.
3. The names of 20 employees mentioned in office letter dated 31/3/1997, are the employees those who were screened and placed on panel of Group D and not Group C. 4 OA.503/2008
4. The relief sought by you on above OA regarding the integrated seniority of Welder, it is to inform you that the names mentioned in Dy. CEE(C)'s letter dated 5/2/1998 were the employees working in Construction Organisation initially appointed as daily rated Khalasis and subsequently given the status of monthly rated Welder against the temporary sanction for different type of works in Construction Organization itself.
5. Since the cadre strength of Welder of EL/TD Group of Mumbai Division is only one in each grade, the issue of integrated seniority as directed by the Hon'ble CAT is not possible in you case.
In light of the above facts, it is confirmed and inform you that the regularization in Welder cadre is not possible in your case. Since you have been screened and found fit for regularization in Group D, you may contact P/Recruitment Section, DRM's office for further posting.
Kindly acknowledge the receipt.
(MRS.MANJULA SAXENA) SR.DPO CSTM Copy to-Dy.CEE(C)DR-For information. The copy of the letter enclosed to be handed over to the employee concerned and his acknowledgement may be sent to this office.
Copy to-APO(Court) For information and necessary action.
4. The Applicant preferred a representation dated 23.06.2003 against which the Applicant did not receive any response. He followed up with reminders dated 10.09.2003 and 31.10.2003. The Applicant thereafter approached the National Railway Mazdoor Union and the Applicant was informed from time to time that the matter is under process. Thereafter, the Applicant was informed vide dated 15.02.2005 that he was initially appointed as Casual Khalasi and not directly engaged in Group 'C' and, therefore, could not be absorbed against the 12.5% of the total post in Group 'C' and that he would be considered for Skilled 5 OA.503/2008 Artisan as per his turn by the Mumbai Division (Exhibit A-3). The Respondents contention is that the Applicant was initially engaged in Group 'D' and not in Group 'C' and hence he could not be absorbed against the quota meant for Group 'C'. The Applicant is aggrieved by the hyper technical and is totally irrational and unjustified contention of the Respondents as the Applicant has been continuously working as Welder Group 'C' for the past 25 years decision taken in PNM Meeting held on there is no justification in continuing him as temporary.
5. The Applicant has sought the following reliefs:
i) To hold and declare that the 15/16 Nov. 2006 (Exh.A-1) (ii), Letter No.HPB/666/E(C)NRMU/3882 dated 29.4.200 issued by the Chief Administrative Officer (Const), Central Railway (A-2),
(iii) Letter No.HPB/666/E(C)NRMU/3883 dated 15.02.2005 issued by the Chief Administrative Officer (Const), Central Railway (Exh. A-3) and (iv) Letter No.BB/P/202/G/ELDR/Court dated 07-4-2003 issued by Sr. DPO, CSTM, Central Railway (A-4) are all illegal, unjust and unreasonable.
ii) To set aside the decision taken in PNM Meeting held on 15/16 Nov. 2006 (Exh.A-1) (ii), Letter No.HPB/666/E(C) NRMU/3882 dated 29.4.2005 issued by the Chief Administrative Officer (Const), Central Railway (A-2), (iii) Letter No.HPB/666/E(C) NRMU/3882 dated 15.02.2005 issued by the Chief Administrative Officer (Const), Central Railway (Exh. A-3) and (iv) letter No.BB/P/202/G/ELDR/Court dated 07.4.2003 6 OA.503/2008 issued by Sr. DPO, CSTM, Central Railway (A-4).
iii) To direct the Respondents to absorb the Applicant as Artisan (Group C) with retrospective effect i.e. With effect from his immediate junior was regularized in Group C category.
OR that this Hon'ble Tribunal be pleased to hold and declare that the Applicant is entitled to be regularized w.e.f.
30.4.1997 as Artisan (Group C) with all consequential benefits, in terms of letter No.LCF/DPRE/DR/3016 dt. 30.4.1997 of the DY.CEE(C)DPRE/DR.
iv) Applicant crave leave to amend the petition as and when required.
v) The Application may be heard and finally disposed of at an early date, at the stage of admission.
vi) Any other and further relief as this Hon'ble Court may deem fit and proper under the circumstances of the case.
vii) Cost awarded. of this Application be
6. We have gone through the pleadings, carefully examined the documents placed in the case papers and have extensively heard Shri S.N. Pillai, learned counsel on behalf of the Applicant and Shri R.R. Shetty, learned counsel on behalf of the Respondents.
7. We have carefully considered the case papers. It is observed that the Applicant was initially appointed as a daily rated casual Khalasi 7 OA.503/2008 with effect from 23.01.1982 in the Group 'D' category. He was subsequently put on monthly rate as a Welder from 16.06.1983 in the Construction Organization. It is further observed that the Applicant was called for screening for being absorbed in the regular cadre but he did not turn up for the screening between 17.07.1990 and 24.09.1990. He was again called for screening in the year 1991 for regularization in Group 'D' but the Applicant did not participate in the screening.
8. It has been stated by the Respondents in the pleadings that as per the policy framed by the Railways vide letter dated 20.04.1984 for regularization of Casual Labours working as Skilled Artisan, it has been provided that such Skilled Artisans can be regularized directly in Group 'C' post against 12.5% quota prescribed (Exh.R-I). It has also been averred by the Respondents that the Recruitment Rules do not provide for regularization in Group 'C' category directly as sought by the Applicant in this O.A. It is, therefore, clear that the terms and conditions relating to the Applicant's promotion in Group 'C' are determined by the Recruitment Rules of the parent organization and cannot be in violation of the said Recruitment Rules.
9. The case papers also reveals that in the 8 OA.503/2008 earlier O.A.No.984/1998 where the Applicant was a party (Exh. A-10), the order dated 02.12.2002 at para 4 brings out that the applicants cannot get any seniority prior to their fulfilment of the condition laid down in the recruitment rules and in any case, they can only be regularized initially in Group 'D' post and not in a Group 'C' post, even though they might have been, earlier promoted in the Construction Wing. Therefore, the Applicant's claim for consideration of promotion to the Group 'D' post in the present O.A. is not in consonance with the order in O.A.984/1998 vide dated 02.12.2002. Further, on this analogy, regular promotion of the Applicant can take place only in the Parent Division and not in the Construction Wing, where the applicants in the above OA had been working.
10. It is also important to observe here that the Applicant was informed vide letter dated 07.04.2003 that his regularization in Group 'C' Welder is not possible and he was further directed to approach DRM (Personnel) for regularization in Group 'D' post on the basis of Screening Committee's report held in the year 1997. The Applicant, however failed to follow the direction given vide letter dated 07.04.2003 to seek regularization in Group 'D' post but also did not challenge the letter dated 07.04.2003 9 OA.503/2008 before the appropriate forum and as a consequence the present O.A. suffers from delay and laches and is, therefore, barred by limitation.
11. It is also observed from the case papers that the Applicant had preferred an application for the post of Welder in OHE Organization of the Mumbai Division of the Central Railway vide letter dated 18.03.2006 (Exh.A-17) consequent upon rejection of his request for promotion to the Group 'C' post of Welder which was forwarded to the Dy. CEE (Construction) for further necessary action.
12. During the oral arguments the learned counsel on behalf of the Respondents vehemently stated that the Applicant who has been given pay protection will continue to get the same protection even after his repatriation to the parent organization. This has also been confirmed in the affidavit filed by the Applicant dated 18.09.2012 at Para 11 in which it has been averred that the Applicant who was working as an Artisan (Letter Painter III) in the Construction Organization has been repatriated to the DRM (P) in the month of April, 2012 and now posted as Khalasi. He was drawing Grade Pay of Rs.1900/-in the Construction Organization and his Grade Pay has been protected on his repatriation.
13. In view of the above, therefore, it is amply 10 OA.503/2008 clear that the Applicant was promoted as Welder on purely temporary and ad-hoc basis. It had been made clear to the Applicant vide letter dated 30.04.1997 that no prospective right over seniority, if any, had been conferred upon him. It was also informed to him that his seniority will be in the Electrical (TRD) Department on Mumbai Division consolidated order for regularization issued by DRM (P) CSTM as per integrated seniority of M.R. (Monthly Rated) Artisan. Therefore, the Applicant has not been able to establish any arbitrariness or illegality in denying him the promotion and also that he has been overlooked for promotion and any of his juniors have been promoted to Group 'C' category from Group 'D' category and, therefore, has he acquired a vested right of promotion to Grade 'C'. It has also been rightly argued by the learned counsel on behalf of the Respondents that the Applicant could not be regularized in Group 'C' directly as any direct promotion to Group 'C' would be violative of the Recruitment Rules of the parent organization. The Applicant has been granted pay protection since he had worked on an ad-hoc basis in Group 'C' category. Further, the Applicant has failed to challenge the order dated 07.04.2003 before the Appropriate Forum and, therefore, the present Original Application filed 11 OA.503/2008 on 16.11.2007 is also barred by limitation. No convincing justification has been given for condonation of the delay in filing this O.A.
14. In view of the above, the O.A. is bereft of merit and is also hit by delay and laches and, therefore, the same is dismissed. No order as to costs.
(R.C. Joshi) (Justice A.K. Basheer) Member (A) Member (J).
H.