Central Administrative Tribunal - Allahabad
Ram Saran S/O Late Nanhkoo Lal vs Union Of India - The General Manager on 5 October, 2012
[RESERVED ON 28.09.12] CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD (THIS THE 05th DAY OF October 2012) Present HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) HONBLE MS. JAYATI CHANDRA, MEMBER (A) ORIGINAL APPLICATION NO. 03 OF 2006 (U/S 19, Administrative Tribunal Act, 1985) 1. Ram Saran S/o Late Nanhkoo Lal. 2. Avinash Kumar Tiwari S/o Shri Radhey Shyam. 3. Hukum Singh S/o Shri Jagdeo Prasad. 4. Dharam Pal S/o Shri Masuriadeen. 5. Durga Prasad S/o Shri Ram Bahadur. 6. Ram Lakhan S/o Shri Beni Prasad. 7. Sobh Nath S/o Shri Jawahar Lal. 8. Mahesh Kumar S/o Shri Nanhkoo. 9. Lalloo Prasad S/o Shri Ram Murti. 10. Ram Vishal S/o Shri Prabhu Ram. 11. Arun Deo Pandey s/o Shri Keshav Deo Pandey. 12. Gomati Prasad S/o Late Ram Palat. 13. Fazal Karim S/o Late Shri Mohd. Kadim. 14. Dan Singh S/o Late Mahaveer Prasad. 15. Ram Das Maurya S/o Shri Ram Pyare. 16. Mohd. Ashfaq S/o Shri Mohd. Kadim. 17. Rama Shanker S/o Shri Bansh Dhari. 18. Ram Pyare S/o Shri Mahangu. 19. Tilak Dhari S/o Shri Bansh Dhar. 20. Lalloo Ram S/o Shri Kunjan lal. 21. Krishan Kumar S/o Shri Munni Lal 22. Shri Nath S/o Shri Mahipat 23. Mohan lal S/o Sampat Lal. 24. Rajpati S/o Shri Deo Saran. Applicants V E R S U S 1. Union of India - The General Manager, North Central Railway, Headquarters Office, Allahabad. 2. The General Manger, North Central Railway, Headquarters Office, Allahabad. 3. The Divisional Railway Manager, North Central Railway, Allahabad. ..Respondents WITH ORIGINAL APPLICATION NO. 140 OF 2006 (U/S 19, Administrative Tribunal Act, 1985) 1. Ram Sajiwan, S/o Shri Ram Jaman, aged about 48 years. 2. Sukhpat, S/o Shri Maiku Lal, aged about 49 years. 3. Kamal Narain, S/o Shri Sahdeo, aged about 44 years. 4. Radhey Kishan, S/o Shri Ram Nath, aged about 36 years. 5. Jang Bahadur, S/o Shri Raj Bali, aged about 40 years. 6. Brij Lal, S/o Shri Sahdeo, aged about 48 years. 7. Shyam Lal, S/o Shri Ram Jag, aged about 40 years C/o Ram Sajiwan, House No. 850 B, Smith Road, Allahabad. Applicants V E R S U S 1. Union of India through the General Manager, North Central Railway, Headquarters Office, Allahabad. 2. The General Manger, North Central Railway, Headquarters Office, Allahabad. 3. The Divisional Railway Manager, North Central Railway, Allahabad. ..Respondents WITH ORIGINAL APPLICATION NO. 141 OF 2006 (U/S 19, Administrative Tribunal Act, 1985) 1. Suleman, S/o Shri Abdul Khan, aged about 44 years. 2. Hafiz, S/o Shri Jumman, aged about 43 years. 3. Vijay Bahadur Lal Srivastava , S/o Late S.L. Srivastava, aged about 45 years. 4. Om Prakash, S/o Shri Basideo Prasad, aged about 48 years. 5. Ram Raj, S/o Shri Chantu Ram, aged about 47 years. 6. Hassan Hussain, S/o Shri Lakakhu, aged about 42 years. 7. Basir Ahmad, S/o Shri Habib Khan, aged about 41 years. 8. Ratan Lal, S/o Shri Shyam Lal, aged about 46 years. 9. Kunwar, S/o Shri Ram Lal, aged about 55 years. 10. Mahboob Khan, S/o Shri Makakhoo, aged about 47 years. 11. Rasul Bux, S/o Shri Sekh Mullah, aged about 49 years. 12. Harish Chandra, S/o Shri Baij Nath, aged about 49 years. 13. Vijay Bahadur Singh, S/o Late Mahadeo Singh, aged about 43 years. 14. Peer Mohd., S/o Amir Bux, aged about 38 years. 15. Niamuddin, S/o Shri Lali alias Lal Mohd. , aged about 38 years. C/o Suleman, S/o Abdul Khan, Sumerpur, Distt. Hamirpur Applicants V E R S U S 1. Union of India through the General Manager, North Central Railway, Headquarters Office, Allahabad. 2. The General Manger, North Central Railway, Headquarters Office, Allahabad. 3. The Divisional Railway Manager, North Central Railway, Allahabad. ..Respondents Advocates for the applicants:- Mr. S. S. Sharma Advocate for the Respondents:- Mr. Anil Kumar Mr. A. K. Pandey O R D E R
DELIVERED BY:-
(HONBLE MR. SANJEEV KAUSHIK, MEMBER-J) By means of the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 applicants seek quashing of the notification dated 17th December, 2005 with further prayer to issue a writ in the nature of mandamus directing the General Manager, North Central Railway/Respondent No.2 to grant age relaxation in the case of the applicants to the extent they are overaged as mentioned in para 4.32 of this Original Application. Further prayer has been made for a direction to the respondents that after relaxing the age in favour of the applicants they be considered for recruitment/ appointment in Group D post in Allahabad Division as per notification dated 17th December, 2005 issued by respondent No.2 (Annexure-A-1).
2. The facts of the case are not in dispute; therefore, the brief note thereon is sufficient. The applicants were engaged as Hot Whether Staff, on the post of Casual Waterman during the summer season during the year 1981-92 under the Divisional Railway Manager, Northern Railway, Allahabad. As per Railway Boards order dated 25.01.1985 the services of the applicants were regularized as temporary on the post of Waterman and they were allowed regular pay scale of the post of Waterman and they also become entitled for all the benefits admissible to a Temporary Railway Servant as laid down in Chapter XXIII of the I.R.E.M. The Respondents department issued a notification on 29.06.1988 notifying 548 vacancies of regular Group D staff in Traffic & Commercial Branch in Allahabad Division (Annexure-A-2). As per above notification those Substitute/Casual/Hot Whether Staff who were appointed after 01.08.1978 and have completed four months service as on 01.05.1988 were to be screened. Concerned Officers of the Traffic & Commercial Branch were directed to send list of eligible staff upto 15.07.1988. The applicants who are eligible in terms of the advertisement are liable to be screened. The names of all the applicants were sent by the Traffic & Commercial Branch to the Divisional Railway Manager, Northern Railway, Allahabad for inclusion in the seniority list of the staff for screening from August, 1989 to October, 1989. The respondents conducted the screening as per seniority list dated 23.12.1988 (Annexure-A-3) circulated by Divisional Railway Manager. The applicants, who were working in the same Branch and having all the eligibility conditions as per notification, were not called for screening. The result of the screening was declared on 03.02.1990 whereby 394 candidates were declared successful (Annexure-A-4). It is alleged that several persons junior to the applicants were empanelled and regularized against the 548 vacancies of regular Group D. Against the above action of the respondents applicants made representation on 20.03.1991 (Annexure-A-6). When no decision was taken on the above mentioned representation then the applicants approached to this Tribunal by way of Original Application No.964 of 1992. This Tribunal vide its order dated 03.11.1995 disposed of the Original Application with direction to the respondents to consider the case of the applicants for regularization in their turn. Incase, any junior has been so regularized, the applicants be considered for regularization from the date of regularization of such juniors (Annexure-A-7). It was also provided in the order that in the meanwhile they shall be considered for reengagement as Casual Waterman in preference to their juniors). The applicants represented on 11.12.1995 to the respondents apprising about the order passed by this Tribunal dated 03.11.1995 which was supplemented by reminders. It is averred in paragraph No.4.16 of the Original Application that sufficient number of permanent posts in Group D category in Traffic & Commercial Branch were filled up by appointment from other department by transfer. The scheme for engagement of Hot Whether Staff/Seasonal Waterman was discontinued by order dated 16.03.1992. A letter was issued on 01.01.1996 by the Divisional Railway Manager, Northern Railway, Allahabad for filling up vacant posts in the Transport Division of the Respondents Department. A letter was also issued by the General Manager, Northern Railway, Baroda House, New Delhi on 28.05.1996 directing the Divisional Railway Manager, Northern Railway, Allahabad to fill up remaining 148 vacant posts from Casual Labour, who were not empanelled earlier, may now be screened against the existing vacancies in the Traffic & Commercial Department (Annexure-A-10). When the claim of the applicants was not considered in terms of the direction of this Tribunal dated 03.11.1995 then the applicants filed Civil Misc. Contempt Petition No.94 of 1996 in O.A. No. 964 of 1992. The respondents filed reply to the Contempt Petition annexing letter dated 11.08.1998 stating therein that no person junior to the applicants have been engaged or screened or regularized in Group D. On the basis of above this Tribunal disposed of the Contempt Petition by order dated 25.11.1999 with observations that, if the applicants are aggrieved by the said order then they can agitate the said matter by filing the Original Application. Being aggrieved the applicants filed Civil Misc. Writ Petition No.3258 of 2000 before the Honble High Court which was later on withdrawn on 01.08.2002. Despite the above litigation the names of the applicants are still existing in the Casual Live Register and they are awaiting for their reengagement in terms of order of this Tribunal dated 03.11.1995. The Railway Board issued order on 25.04.1996 and subsequently on 09.10.1998 whereby decided to absorb all Casual Labour on the role under the special drive during the period from 01.05.1996 to 31.03.1998 whose names were borne on Live Register and after exhausting them the persons who are on Supplementary Live Register their cases will be considered (Annexure-A-13 & A-14). Accordingly notification was issued on 17.12.2005 (Annexure-A-1) published in the Amar Ujala, Newspaper notifying 5,000 vacancies, circulated by Divisional Railway Manager, Northern Railway, Allahabad vide order dated 21.12.2005 notifying application from Ex-casual labours. As per condition stipulated in the advertisement (Annexure-A-1) all the applicants are not eligible in terms of age as they have become overage. Hence the O.A.
3. Pursuant to notice respondents resisted the claim of the applicants by filing detailed Counter Affidavit. It is the categorical stand of the respondents that as per the Railway Boards instructions dated 28.02.2001 upper age limit has been prescribed and since the applicants have crossed the upper age limit, therefore, they are not eligible in terms of the advertisement. Subsequently, the Railway Board issued instructions on 25.09.2001 wherein, the conditions for grant of age relaxation to Ex-Casual Labour borne on Live/Supplementary Casual Register have been regularized and it was increased from 28 years to 40 years for General Category, 33 years to 43 years for O.B.C. and 45 years for S.C. paragraph Nos.9 to 14 of the Counter Affidavit reads as under:-
9. That, the Railway Board have issued instructions on the subject Absorption in the Railways of ex. Casual Labour borne on the Live Supplementary Live casual labour register vide their letter No. E(NG) II 99/CL/19 dated 28.02.2001 (RBE No.42/2001), wherein the minimum Education Qualification has been prescribed as VIII passed. In para-4 of aforesaid letter, it has been clarified that this will not be applicable on the category of Gang men and for other category the minimum qualification prescribed is essential.
10. That, further, age relaxation to the extent of service put in as casual labour/substitute, subject to upper age limit 40 year in the case of General Candidtes and 45 years in the case of SC/ST, candidates not being exceeded, may also be granted in the case of casual labour/substitute for recruitment against group C and D posts. It is further provided that OBC candidates will also get age relaxation upto the upper age limit of 43 years, as has been granted to serving Railway Employees.
11. That, in para-5 of Railway Boards letter dated 28.02.2001, it has been mentioned that Boards approval will however, be continued to be required for resorting to direct recruitment for filling up all the group D vacancies on Railways either by absorption of ex Casual labours born on live/supplementary live casual labour register or by doing fresh recruitment from open market. This in the line with the existing practice of taking Boards approval for such open market recruitments for filling up the vacancies in group D in accordance with the instructions contained in Boards letter No.E(NG)II91/PR-1/21 dated 16.09.1991 wherein all group D recruitment on the Railways from Open Market had bee stopped.
12. That, para-6 of Boards letter dated 28.02.2001 (RBE No.42/2001) may be read as under:-
As for as age limit is concerned it has been decided that the instructions contained in Boards letter No.E(NG) II/91/C1/7 dated 25.07.1991 would continue to be applicable as before in the case of General, OBC, SC and ST candidates. In the case of OBC candidates however, the age relaxation to ex. Casual labour will be available upto the upper age limit of 43 years. The photo copy of the Railway Boards letter dated 28.02.2001 (RBE 42/2001) is hereby marked and annexed as Annexure-r-1 to this reply.
13. That, the Railway Board issued instructions on the subjection Absorption in the Railways of ex. Casual labours borne on live/supplementary live casual labour register vide letter No.E(NG) II/99/CL/ 19 dated 20.09.2001, wherein the condition for the grant of age relaxation to Ex. Casual labours borne on live/supplementary casual labour register have been relaxed further by the Railway Board, which may be read as under:-
It has been decided that in partial modification of the instruction quoted above, the ex. Casual labour who had put in minimum 120 days casual service, whether continuous or in broken spells and were initially engaged as casual labour within the prescribed age limit of 28 years for general candidates and 33 for SC/ST candidates would be given age relaxation upto the upper age limit of 40 years in the case of general candidates, 43 years in the case of OBCs and 45 years in the case of SC/ST candidates. Other provisions for their absorptions in group D will remain unaltered.
14. That, it has also been decided that ex. Casual labour, who become eligible as a result of above modification will be considered for absorption with prospective effect. The photo copy of the Railway Boards letter dated 20.9.2001 as mentioned above is hereby marked and annexed as Annexure-R-2 to this reply.
4. It is further submitted in paragraph No. 15 of the Counter Affidavit that the matter regarding age relaxation came up for consideration before the Honble High Court in Civil Misc. Writ Petition No.10457 of 2000 and the Honble High Court vide its order dated 05.08.2005 dismissed the writ petition (Annexure-R-3). It is submitted in paragraph No. 25 that the respondents conducted a screening for casual/substitute/hot whether staff of Traffic & Commercial Department in the year 1988-89 and the panel was declared on 03.02.1990, wherein the name of last person who had completed 337 days working in Traffic & Commercial department on 01.05.1998 was placed in panel. Since none of the applicants have completed 337 days working in Traffic & Commercial department, therefore, their names could not be included. The respondents have also taken objection with regard to delay as the applicants have filed instant Original Application more-than after 6 years from the date when their contempt petition was disposed of.
5. Applicants have filed Rejoinder Affidavit. The respondents have also filed Supplementary Counter Affidavit along-with judgment of the Honble High Court of Allahabad dated 03.08.2006 annexed as (Annexure-SCA-1) passed in writ petition No.21799 of 2006 in the case of Union of India and Ors. Vs. Ajay Kumar & Anr.
6. We have heard Shri S. S. Sharma, learned counsel for applicants and Shri Anil Kumar learned counsel for the Railways.
7. Shri Sharma, learned counsel for applicants vehemently argued that the impugned notification dated 17.12.2005 prescribing the age limit for ex-Casual Labour is against the judgment of the Honble Apex Court delivered in the case of Inder Pal Yadav Vs. Union of India & Ors. 1985 (2) SCC 648. In order to substantiate his arguments he submitted that the Honble Apex Court has held that those Casual Labours who have completed 360 days of service are entitled for absorption, therefore, the condition stipulated in the impugned notification restraining the claim of the applicants is illegal arbitrary and liable to be set aside. He further argued that in terms of para 2001 (b) of I.R.E.M. Vol.-II after completion of continuous 120 days a Casual Labour is entitled for all admissible benefits as permissible to a Temporary Railway Servant, therefore, also the condition is in violation of provisions of I.R.E.M. He also placed reliance on the judgment passed by Honble High Court of Kerla at Earnakulam in the case of Union of India Vs. Sasidharan and others in writ petition No.21777 of 2007 and argued that the Honble High Court of Kerla has already quashed the circular of Railway Board dated 28.02.2001 and 20.09.2001. He argued that once the above circulars have already been set aside by the competent Court of Law, therefore, respondents are duty bound to consider the case of the applicants on the strength of above judgment. He further referred to order dated 12.05.2011 passed by the coordinate Bench of this Tribunal in O.A. No.1568 of 2009 whereby this Tribunal after considering the same controversy has allowed the O.A and directed the respondents to consider the case of the applicant for regularization. He further placed reliance upon the order dated 20.05.2011 passed in O.A. No. 208 of 2006 by the coordinate Bench of this Tribunal who also considered the similar controversy allowed the O.A.
8. On the other hand Shri Anil Kumar, learned counsel representing the respondents argued that the applicants are on Live Casual Labour Register, but in terms of the impugned notification respondents have laid down the condition of upper age limit, but since the applicants have crossed upper age limit, therefore, their cases could not be considered for absorption. He placed reliance upon the judgment of jurisdictional High Court in the case of Union of India and Ors. Vs. Ajay Kumar and another in Writ A No.21799 of 2006 and argued that this controversy has already been settled by Honble High Court, therefore, this O.A. be also liable to be dismissed by following the dicta of the Honble High Court. He further placed reliance upon the judgment of the Honble High court of Delhi in the case of Dhiyan Singh Vs. Union of India and Ors. in W.P. (C.). No.7396 of 2008 decided on 19.05.2010 and submitted that the Honble High Court of Delhi has also considered the same controversy and have dismissed the writ petition filed by the similarly situated persons by holding that no relaxation in age can be given contrary to circular issued by Railway Board.
9. We have considered the rival submissions and have gone through the records. The question arises for our consideration is whether the Casual Labour, whose names have been entered in the Live Casual Labour Register, are to be subjected to any condition as imposed/stipulated in the impugned notification. Secondly, whether their cases are to be considered for absorption in terms of the Judgment of the Honble Apex Court passed in the case of Inder Pal Yadav (Supra). In the case of Inder Pal Yadav (Supra) Honble Apex Court has approved the scheme framed by the Ministry of Railways with certain modifications and nowhere it talks about the age limit. It only stipulates that whosoever have completed 360 days their names be included in the Live Casual Labour Register and they be absorbed as per seniority. By the impugned notification dated 17.12.2005 the respondents for the first time decided to absorb Ex-Casual Labours who have completed and their names are in the Live Casual Labour Register. Certain eligibility conditions have also been given in which one of the condition is that a candidate should not have crossed the upper age limit of 40 years for General, 43 for O.B.C. and for S.C. 45 years.
10. Admittedly, all the applicants have worked with the respondents between 1981 to 1992 and on the date of issuance of notification all of them have crossed the upper age limit as stipulated in the impugned notification. The circulars issued by the Railway Board dated 28.02.1991 and 20.09.2001 which prescribed the age limit reads as under:-
Boards letter No. E(NG)II-99/CL/19 dated 28.02.2001 (RBE No.42/2001).
Sub: Absorption in the Railways of ex-casual labour borne on the live/ supplementary live casual labour registers.
In terms of the instructions contained in Boards letter No.E(NG)Ii/98/CL/ 32 dated 09.10.98, the ex/casual labour borne on live casual labour registers, will first be considered for absorption on the Railways strictly as per their turn according to seniority based on the total number of days put in by them as Casual Labour. Thereafter, the ex-casual labour born on supplementary live casual labour register will be considered in accordance with the number of days put in by them prior to 1.1.81, those falling in this category being placed enbloc below the ex-casual labour who may have rendered service on reengagement after 1.1.81 and his name is, therefore, born on live Casual Labour Register.
2. In terms of the instructions contained in Boards letter No.E(NG)Ii-98/RR-1/107 dated 4.12.98, minimum educational qualification for direct recruitment to Group D posts in scale Rs.2610-3500 has been laid down as Class VIII passed. Further, in terms of Ministry of Railways letter No.E(NG)Ii/91CL/71 dated 25.7.91, age relaxation to the extent of service put in as casual labour/substitute, subject to the upper age limit of 40 years in the case of general candidates and 45 years in the case of SC/ST candidates not being exceeded, may also be granted in the case of casual labour/substitutes for recruitment against Group C and D posts. The OBC candidates will also get age relaxation, upto the upper age limit of 43 years, as has been granted to the serving OBC Railway employees vide Boards letter No.E(NG)I-95/PMI/1 dated 1.6.99.
3. Both the Federations have been requesting for relaxation of the minimum educational qualification and age in the case of ex-casual labour borns on the Live/Supplementary Live Casual labour Registers, while considering them for absorption against Group D vacancies.
4. After considering the views of both the recognized Federations, the Board have now decided that, for filling up 60% of the open market recruitment vacancies for each recruitment in the category of Gangman, scale Rs.2610-3500, in the Civil Engineering Department, the minimum educational qualification of Class VIII passed need not be insisted upon while considering the ex-casual labour borne on live/supplementary live casual labour registers. The remaining 40% of open market recruitment vacancies in the category of gangmen in Civil Engineering Department will be filled in through direct recruitment from open market, in which ex-casual labour, who are lower in the seniority position (based on the total number of days of casual service put in) in the live/supplementary live registers, but possess minimum qualification of Class VIII pass can also apply. For all the other departments, only those ex-casual labours borne on live/supplementary live casual labour registers, who fulfill the minimum educational qualification of Class VIII pass would be considered for direct appointment against Group D: vacancies.
5. Boards approval will however, be continued to be required for resorting to direct recruitment for filling up all Group D vacancies on Railways, either by absorption of ex-casual labour borne on live/supplementary live Casual Labour registers or by doing fresh recruitment from open market. This is in line with the existing practice of taking Boards approval for such open market recruitment for filling up vacancies in Group D in accordance with the instructions contained in Boards letter No.E(NG)Ii/91/RR-1/21 dated 16.09.91, wherein all Group D recruitment on the Railways, from open market, had been stopped.
6. As far as age limit is concerned, it has been decided that the instructions contained in Boards letter No.E(NG)Ii/91/CL/71 dated 25.7.91 would continue to be applicable as before in the case of general, SC and ST candidates. In the case of OBC candidates however, the age relaxation to ex-casual labour will be available upto the upper age limit of 43 years.
Sd/-
(Devika Chhikara) Director Establishment (N) Railway Board Copy of Railway Boards letter No.E(NG)-II/99/CL/19 dated 20.09.2001 from Shrimati Devika Chhikara, Executive Director Establishment (N), Railway Board, New Delhi addressed to the General Manager /Northern Railway, other Production Units and copy endorsed to others.
Sub:- Absorption in the Railways of ex-casual labour borne on the Live/Supplementary Live Casual Labour Register.
Interms of para 6 of this Ministrys letter of even number dated 28.02.2001, relaxation of upper age limit for absorption of ex-Casual Labour borne on Live Casual Labour/Supplementary Live Casual Labour Registers has been allowed upto 40yeras in the case of General candidates, 43 years in the case of OBC candidates and 45 years in the case of SC/ST candidates, provided that they have put in minimum three years service in continuous spell or in broken spells as per instructions contained in this Ministrys letter No.E(NG)-II/91/CL/71 dated 25.7.1991, read with their letter No.E(NG)-I/95/PM-I/1 dated 11.1.1999.
2. The question of removal of minimum three years service conditions (continuous or broken) for the purpose of grant of age relaxation to ex-casual labour as mentioned above has been taken up in the PNM-NFIR vide agenda item No.41/2001. AIRF have also taken up the question of enhancing the upper age limit. The matter has been carefully considered by this Ministry. It has been decided that, in partial modification of the instructions quoted above the ex-casual labour who had put in minimum 120 days casual service, whether continuous or in broken spells and were initially engaged as casual labour within the prescribed age limit of 28 years for general candidates and 33 years for SC/ST candidates, would be given age relaxation upto the upper age of 40 yeas in the case of general candidates, 43 years in the case of OBCs and 45 years in the case of SC/ST candidates. Other provisions for their absorption in Group-D will remain unaltered.
3. It has also been decided that the ex-casual labour, who become eligible as a result of above modification will be . considered for absorption with prospective effect.
4. please acknowledge receipt.
11. They came up for interpretation before the Honble High Court of Kerala at Earnakulam in Civil Misc. Writ Petition (C).No.21777 of 2007 (S) Union of India and Ors. Vs. A. Sasidharan and ors. and the Honble High Court has approved the orders of the C.A.T., Earnakulam Bench by dismissing the writ petition filed by Union of India and while allowing the writ petition the Honble High Court has set aside the above two circulars. Not only this a direction has been given to the respondents to consider the case of the applicant therein in terms of the decision given in the case of Inder Pal Yadav (Supra) relevant part reads as under:-
9. In answer, the learned counsel for the Railways would rely on Annexures-R4, R7 as also Exhibits P12 and P13. Those documents would show that even in the case of persons, who have acquired temporary status, they can be absorbed in the regular establishment in Group D post, if only they are within the prescribed age limit. The Learned counsel appearing for the party respondents in W.P. (C) No.16330/06 submitted that the party respondents therein were persons, who were retrenched before 1.1.1981 and they have applied for absorption before 31.3.1987 in the light of the directions contained in the judgment of the Apex Court in Dakshin Railway Employees Union, Trivandrum DivisionV. General Manager, Southern Railway ((1987) 1 SCC 677). The learned counsel also pointed out that there was considerable delay from the part of the Railway to consider their claim for absorption and there, they became over aged. It is also pointed out that the person, like the party respondents herein, were ordered to be absorbed in regular establishment in Group posts. No restriction, with reference to the age limit, was ordered either in Inder Pal Yadavs case (cited supra) or in Dakshin Railway Employees Unions case (cited supra). The Railways cannot take advantage of their own default to implement the scheme in this, it is submitted.
10. The learned counsel for the Railways, in answer, submitted that as per the Rules, there was an existing scheme to grant temporary status to the casual employees with 120 days of service in the open line. The casual workers in the projects were never considered for absorption. The clamour was for equal treatment. The same was ordered to be granted by the Apex Court as per Inder Pal Yadavs case (cited above). So, the casual workers in the projects, who are the beneficiaries of the said scheme, cannot be put on a higher pedestal than the existing casual employees in the open line, who were entitled to be granted temporary status on completion of 120 days service and later, absorption to regular service. In fact, vacancies were not available for absorption of the beneficiaries of the decision in Inder Pal Yadavs case (cited supra). There is no willful delay or laches. By the time the vacancies arose and the applicants concerned were considered, hey crossed the prescribed age limit and therefore, they were rightly screened out by the Railway, it is submitted.
11. Finally, the learned counsel for the Railways contended that the Tribunals order runds counter to the decision of the Apex Court in Secy., State of Kanakata V. Umadevi (3) ((2006) 4 SCC 1) and therefore, the same is liable to be set aside.
12. We have given anxious consideration to the contentions of both sides. Going by Inder Pal Yadavs case (cited above), those who acquire 360 days service are entitled to be absorbed into the regular establishment. It is common case that before, 2001 without any reference to the age limit and in many cases, without insisting for the completion of 360 days service, the persons included in the live register of casual labourers were absorbed into Group D post. After the judgment of the Apex Court in Inder Pal Yadav (cited supra), there was considerable delay in considering the claim of the party respondents before, who were the applicant before the Central Administrative Tribunal. The party respondents would accuse the Railways for the delay, as a result of which they became over-aged. The Railways would submit that there were not sufficient number of vacancies and as and when vacancies arose, the exercise of absorption was being undertaken.
13. We notice that the applicants belong to a vanishing category and a liberal view was taken by the Tribunal in their case. The said view taken in a similar case by the Central Administrative Tribunal has been affirmed by a Division Bench of this Court also in W.P. (C) No.30832/04. The relevant portion of the said judgment reads as under:-
The Tribunal had noticed that these instructions had come long after the petitioner had been brought to the live register and the Railway Administration had not taken note of the circumstances that it was not a case of fresh recruitment as such. There was no such embargo, prescribed as could be gathered from the judgment of the Supreme Court in Inderpal Yadav. It was for the above reason that the cases of the applicants should be considered ignoring the age factor.
The applicants are vanishing group and as the view point of the Railway Administration had also been taken of, we do not think that the stand taken by the Tribunal was so unreasonable for this Court to interfere. We notice that the above judgment has become final, as the Railways did not challenge it before the Honourable Supreme Court. So, we are also of the view that it is not just or proper to interfere with the order of the Central Administrative Tribuna, insofar as it directs absorption of casual labourers, who have completed 360 days service. The Tribunal has set aside the Railway Boards Circular Nos.E(NG)II/99/CL/19 dated 28.2.2001 and E(NG)II/99/CL/19 dated 20.9.2001. We notice that, in these writ petitions, there was no prayer for quashing those circulars. Therefore, the same is unjustified. Even if those circulars are not quashed, still, the applicants are entitled to get relief, as they were being absorbed on the strength of the judgment in Inder Pal Yadavs case (cited supra). The said judgment and the subsequent orders issued by the Railways do not prescribe any age limit in the matter of absorption. Only for the first time age limit was insisted after the issuance of the above said circulars. So, we declare that both the circulars will not apply to the absorption of casual labourers, who have completed 360 days service and are being absorbed as per the decision in Inder Pal Yadavs case (cited supra. The Umadevis case (cited supra) has no application to the facts of this case, as in this case, the absorption is being made by the Railways as per the order of the Apex Court in Inder Pal Yadavs case (cited supra). The only dispute is regarding the age limit. The liability for absorption does not emanate from the order of the Tribunal.
In the result, these writ petitions are disposed of issuing the following modification to the order of the Central Administrative Tribunal:-
The age limit prescribed as per Circular Nos.E(NG)II-99/CL/19 dated 28.2.2001 and E (NG)II-99/CL/19 dated 28.2.2001 and E(NG)II-99/CL/19 dated 20.9.2001 will not be applicable to the casual labours, who have completed 360 days service. Quashing of the above said circulars is set aside. Even though the age limit is not applicable to absorption, other stipulations in the Rules like medical fitness, etc. can be insisted by the Railways..
These writ petitions arise out of the dispute regarding absorption of casual labours in Palakkad Division. The point that arises for decision in these writ petitions is also identical to the point considered in the above writ petitions, which we have already disposed of. Therefore, it is ordered that the directions issued in w.p. (c)No.16330/06 and connected cases will govern these cases also. No costs.
12. Learned counsel for the applicant submitted that above circulars have already been set aside, therefore, it was incumbent upon the respondents to extend the same benefits to the applicants as the above judgment is not in personam and same is in rem. Not only this even a coordinate Bench of this Tribunal vide its order dated 20.05.2011 in O.A. No. 208 of 2006 have considered the same very controversy and after relying upon the judgment of the Honble High court of Kerla allowed the O.A. with direction to the respondents to consider the case of the applicant in terms of the judgment of the Honble High Court of Kerla and directed the respondents to regularize the services of the applicant relevant part reads as under:-
11. As regards age limit, the entire thrust of the respondents is based on the Railway Board letter No. E(NG) II/99/CL/19 dated 28-02-2001 and, 20-09-2001. These already stood quashed and set aside by the CAT, Ernakulam Bench in OA No. 271 of 2006. Writ petition No. 21777 of 2007 filed by the respondents Railways against the above order was also dismissed. And, a detailed discussion about the non applicability of age restriction in respect of those cases which are similar to those referred to in Inder pal Yadav case has also been made by the High Court of Kerala in the above judgment.
12. Even if there be any age limit, as rightly pointed by the applicants in order dated 08-06-1981 as well as para 2006 of IREM Vol. II, provision does exist for age relaxation at the level of DRMs. Further, in the case of luggage porters the Railway Board has allowed regularization of such porters in Group D post, without any age limit vide RBI No. 50 0f 2008, dated 1.4.2008.
13. Taking into account all the above factors, we have no hesitation to hold that the applicants have made out a cast iron case in their favour. As such, the OA is allowed. it is declared that the applicants are entitled to regularization as Group D and if the respondents had already conducted the screening test as per the order dated 16-11-2007 they may act on the basis of the same and subject to the applicants fulfilling the other conditions such as medical standard, they be absorbed as Group D employee in accordance with the rules. In case no screening has taken place, the respondents shall conduct the same now, within a period of three months from today and if found fit, the applicants shall be absorbed in the next available vacancies. Their seniority would, however, date back to 2005 when for the first time, after the issue of order in the earlier OA filed by the respondents, action for absorption or recruitment of Group D had taken place, vide Annexure A-1.
13. Even in the case of Ramesh Chandra Bari & Ors. Vs. Union of India & anr. In O.A. No.1568 of 2009 decided on 20.05.2011 this Tribunal directed the respondents to absorb the Ex-casual labours borne on Live Casual Labour Register in terms of the judgment delivered in the case of Inder Pal Yadav (Supra) relevant part reads as under:-
10. Admittedly, there was a policy and scheme of the Railway. It was framed in pursuance of the direction of the Honble Apex Court in the case of Indra Pal Yadav and subsequently reiterated in different other judgments. Under these circumstances in my opinion the law laid down by the Honble Apex Court in the case of Uma Devi is not applicable to ex-casual labour borne on casual live register, because for regularization/absorption of these casual labours there is a policy of the Railway Board and that applicants also submitted applications fulfilling requisite qualification on the date of submission of application form in pursuance of the notification issued by Respondent No.2. Only result is to be declared of the screening test and when the applicants were permitted to participate in the screening test hence presumption can be drawn that these applicants were fulfilling all the requisite qualification and entitled to be participated in the screening test, then result must be declared of the screening test, and the respondents cannot be permitted to reject the application of the applicants for absorption/regularization submitted in pursuance of the notification issued by Respondent No.2 and the respondents No.2 also alleged that the applications are being invited in pursuance of the Railway Boards policy.
11. I have also perused the order passed by the respondents on the representation of the applicants and except citing the judgment they have not dealt with the grounds of the applicant raised in the representation. It will not be out of place to reproduce the order passed by the respondents on the representation of the applicants in pursuance of the judgment of the Tribunal which as under:-
I have gone through the orders dated 07.08.2009 passed by the Honble Administrative Tribunal in O.A. No. 738/2009 filed by Sri Ramesh Chandra Bari and others. In compliance of orders of the Honble Tribunal I have also gone through the contents of the O.A. and considered the joint representation dated-NIL submitted by the applicants on 24.8.2009 in accordance with the extant rules and settled legal propositions for their absorption in Railway service.
Honble High Court, Allahabad in identical matter vide judgment dated 28-1-2008 in W.P. No. 5437/08 M. Lal Vs. CAT & others has held that it is settled legal proposition of law that a person who is not in service since long can not claim any relief of regularization.
Honble High Court, Allahabad in identical matter vide judgment dated 23-3-2007 in CMWP No.22807/1997 in the case of Union of India and others Vs. Sri Dhanna Singh & others have also held that prior to the decision of Constitution Bench authority of Supreme Court reported in Secretary Vs. Uma Devi AIR 2006 SC 1806 ad-hoc work charge, temporary or even daily wage employees had a right to regularization and continuance in service but after the said authority, no such right is available. Therefore, the circulars quoted by the applicants in the O.A. are not applicable in their case.
Further, Honble Supreme Court in their judgment dated 10.4.2006 in Civil Appeal No.3595-3612 of 1999, 1861-2063 and 3849/2001, 3520-24/2002 and 1968/2006 (arising out of SLP (C) 9103-9105 of 2001) in the case of Uma Devi (issued by the Railway Board vide letter No. E(LL)2006/AT/NRE/1 dated 23-6-2006) have held that when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of his appointment being temporary, casual for being confirmed in the post. The Honble Supreme Court have further held that 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.
In view of the aforementioned facts and judgment of Honble High Court, Allahabad as well as Supreme Court of India. I do not find any merit in the claim of the applicants of the applicant of O.A. for absorption in Railway Service.
This disposes of the representation dated 24-8-2009 of the applicants.
12. Hence perusal of the order shows that the representation of the applicant was rejected merely on the ground of law laid down by the Honble Supreme Court in the case of Uma Devi and also in view of the judgment laid down by the Honble High Court of Allahabad. But in the matter of regularization/absorption of the ex-casual labour who submitted their application in pursuance of the notification issued by Respondent No.2 in pursuance of the policy of the Railway Board their representation can not be rejected merely on the ground of law and in my opinion result of the screening test must be declared.
13. For the reasons mentioned above I am of the opinion that the representation of the applicants was rejected only on the basis of the judgment of Honble High and Honble Apex Court in violation of the policy/scheme of the Railway Board for regularization of the ex-casual labour born on the live casual labour register. Because the representation was not rejected on the ground that the applicants were not fit or not eligible as per policy of the Railway Board to participate in the screening test rather the applicants were permitted to participate in the screening test and this fact itself shows that the applicants were found eligible to participate in the screening test hence the respondent No.2 had illegally rejected the representation of the applicant on the ground not available to him. The regularization/absorption had not been claimed as matter of right it is being claimed in pursuance of the policy/scheme of the Railway Board. It is immaterial that the applicants were not engaged as casual labour after conducting the proper selection. Because the Railway Board framed policy in pursuance of the direction of the Honble Apex Court in the case Indra Pal Yadav for regularization of the ex-casual labours and the policy updated from time to time and the applications were invited from the ex-casual labours for screening test. O.A. deserves to be allowed and the order deserves to be quashed.
14. O.As. are allowed, order dated 17th September, 2009 (in O.A. No. 1568 of 2009) and impugned order dated 10th September, 2009 (in O.A. No. 1233 of 2009) passed by the respondent No.2 on the representation of the applicants Annexure-A-1 are quashed. The respondent is further directed to declare the result of the screening test held in the month of October, 2007 in pursuance of the notification dated 21st December, 2005 Annexure-A-5, and in case the applicants were found successful in the screening test then they must be regularized as per their service record and according to rules. The respondents are directed to declare the result of the screening test within a period of two months from the date when the copy of this order is produced before them, and within that period the applicants who are found successful they shall also be regularized and engaged. The applicants shall produce the copy of this order before the respondent No.2 forthwith. No order as to costs.
14. In the case of Umashankar Sharma Vs. Union of India and ors. In O.A. No.231 of 2004 decided on 29.10.2010 this Tribunal has considered the same controversy and held as under:-
9. Learned counsel for the applicant argued that there is catena of judgments in which it has been held that in the matter of regularization there is no bar regarding age. He also argued that applicant was not to be appointed fresh rather he had temporary status and he was only to be regularized and hence it has wrongly been alleged that as the applicant is overage hence not entitled to be regularized. We have already stated above that the applicants name found place in Casual Labour Live Register. It is also undisputed fact that applicant ought to have been regularized in view of different circulars and letters of the Railway Board. And the applicant is contesting his matter since 1999 before the Tribunal and also before the Respondents. It has not been alleged that in the year 1999 applicant was overage. It has also been alleged by the learned counsel for the applicant that he belonged to the category of O.B.C. and in his case the upper age limit must be 43 years. But in the year 1999 as the applicant was within the permissible age limit hence it were the respondents who were responsible for delaying the matter of the applicant hence they cannot take the benefit of their delaying tactics and laches. Learned counsel for the applicant argued that the C.A.T. Bench of Earnakulam in O.A. No. 866 of 2006 V.A. Chandran Vs. Union of India and others delivered on 06th June, 2007 relied on the judgment of Honble High Court of Kerla has quashed the Ministry of Railways letter to the extant it relates to the retrenched Casual Labour. And the Tribunal ordered that the case of the applicant may be considered for regular absorption in the existing vacancies having regard to the seniority. Learned counsel for the applicant further argued that Honble High Court of Kerla confirmed the judgment of the Tribunal of Ernakulam Bench in O.A. 633 of 2003 in W.P. (C) No.21777 of 2007 Union of India Vs. A. Sabidharan and others as follows:-
The Tribunal had noticed that these instructions had come long after the petitioner had been brought to the live register and the Railway Administration had not taken note of the circumstances that it was not a case of fresh recruitment as such. There was no such embargo, prescribed as could be gathered from the judgment of the Supreme Court in Inderpal Yadav. It was for the above reason that the Tribunal that the Tribunal had directed that the case of the applicants should be considered ignoring the age factor.
10. In view of the above judgment the embargo of over age will not be applicable in the case of the applicant. Learned counsel for the applicant argued that there are various other judgments of different Honble High Courts and Honble Supreme Court that embargo of overage cannot be applicable in the case of regularization. We have also stated above that it is the Respondents who are responsible for delaying the matter for 11 years of the applicant.
11. Learned counsel for the applicant argued that this defence is not available to the applicant. That the case of Rakesh Kumar Sharma was considered for regularization and his case was considered, when he was over age, as per direction of the Tribunal. The judgment passed by the Principal Bench of Central Administrative Tribunal, New Delhi in the case of Rakesh Kumar Sharma delivered on dated 28th April 2003 has also been enclosed. That as per the direction of the Tribunal the case of the Rakesh Kumar Sharma was considered by the Tribunal. And similarly on same ground the case of the applicant may also be considered with direction to the Respondents to ignore the fact of overage. Learned counsel for the applicant also stated that there are a number of cases of different Benches in which the Casual Labours were regularized irrespective of the fact that they were overage, we are of the opinion that the applicant cant be prohibited for consideration of his case for regularization on the ground of overage. We have to reiterate again that it is respondents who are responsible for delaying the matter for more than 11 years. It has also been argued by the learned counsel for the applicant that junior person to the applicant were regularized. We have earlier stated above that it has not been disputed that S/Sri Raja Ram & Ashok Kumar were not junior to the applicant but it has been alleged that they worked for more number of days in comparison to the applicant. But in the case of S/Sri Raja Ram & Ashok Kumar principle of Pick and Choose was adopted and the applicant was not permitted to resume the duties whereas, S/Sri Raja Ram & Ashok Kumar were permitted to continue as Casual Labour. There appears no force in the submission of learned counsel for the Respondents that it is the applicant himself who deserted working as Casual Labour, but there is no evidence at all to this fact hence this argument of learned counsel for the Respondents is not at all tenable, otherwise there appears no reasons for the applicant to relinquish his work, but as the Respondents did not permitted the applicant, hence he could not work for number days in comparison to S/Sri Raja Ram & Ashok Kumar. Being senior, applicant ought to have been regularized prior to S/Sri Raja Ram & Ashok Kumar.
12. For the reasons mentioned above, we are of the opinion that the O.A. deserves to be allowed and the Respondents are to be directed to regularize the applicant as he is fulfilling all the qualification as provided in Circular and letters.
13. O.A. is allowed. Respondents are directed to consider the case of the applicant for regularization within a period of six months from the date when a copy of this order is produced before them. It is specifically ordered that applicants case shall not be rejected on the ground of overage. Applicant shall produce the copy of this order before the Respondents forthwith. No Cost.
15. Even in the case of Inspector General of Registration, U.O.I and another Vs. Avdesh Kumar and Ors. 1996 SCC (L&S) 1222 the Honble apex Court in para 6 held as under:-
6. It is represented that some of the candidates have become over-aged. If any of the candidates, who are now working on daily wages or who had worked on daily wages, would be barred by age by the date of selection, the Selection Committee would suitably relax the age and then consider their case along-with all eligible candidates and in case the candidate came to be selected on merit according to the rules in the light of the directions, he/they would be appointed.
16. Recently, Honble High Court of Allahabad in the case of Union of India and Ors. Vs. Central Administrative Tribunal, At Allahabad and another in Civil Misc. Writ Petition No.1758 of 2010 decided on 10.08.2011 reported in 2012 (1) ADJ 107 have considered the same controversy and held as under:-
4. From perusal of record , it is clear that as per the circular of Railway Board dated 11.5.1999, different divisions of the Indian Railways were required to maintain Live Register/Supplementary Live Register of all casual labours as on 1.4.1999. Different divisions may have taken up the matter for regularization of the casual labourers at different points of time. In case if the cut of date for the purpose of regularizations taken as the date when the application is considered for regularization by the respective divisions and not 1.4.1999 as directed the Railway Board, there would be confusion and anomaly in the process of regularization. This we say so because different divisions were taking up the matter for regularization on different dates, in which case where the process of regularization was initiated early, many such casual labourers as the respondent No.2 would have been considered for regularization and in other divisions where the process in initiated after a few years, candidates such as the respondent No.2 would be at a disadvantage. There has to be uniformity in the process of regularization and when the Railway Board itself has directed for Live Register to be maintained as on 1.4.1999, the eligibility criteria as on such date ought to have been taken in to account as the cut of date for such purpose. As such, we do not find any discrepancy in the finding recorded by the Tribunal with regard to cut off date for the purpose of considering the age limit for regularization of a candidate.
5. The Tribunal has however disposed of the Original Application filed by the respondent No.2 with the following directions, which is contained in paragraph 6 of the order. The said directions are quoted below:-
In view of the above, I set aside the impugned order dated 1.5.2009 and direct the respondents to consider the applicant for regularization in accordance with Rule, Notification etc. treating him within age limit. Keeping in mind the observations made above within two months of receipt of certified copy of this order and place him above his juniors in seniority with all consequential benefits/privileges
6. From the above, it is clear that besides the direction for considering the case of the respondent No.2 for regularization within two months, after treating him within the age limit, the Tribunal has further directed that the respondent No.2 be placed above his juniors in seniority with all consequential benefits/privileges. The latter part of the order providing for the respondent No.2 to be placed as senior to such persons who were his juniors, can not be justified and such direction is liable to be quashed on the ground that it pre-supposes that the regularization of the respondent No.2 has already been allowed. Even otherwise, the prayer made by the respondent No.2 before the Tribunal was only for quashing the order dated 1.5.2009 and considering his absorption on suitable group D post as per the notification of the Railway Board dated 11.5.1999. In our view, the Tribunal has thus, erred in law in issuing direction in the latter part of paragraph 6 of its order dated 27.11.2009.
7. In view of the aforesaid, we modify the order of the Tribunal dated 27.11.2009 to the extent that the latter part of the direction given in paragraph 6, whereby it has been directed that he respondent No.2 shall be placed senior to and above his juniors with all consequential benefits/privileges, is hereby quashed. The other direction to consider the case of the respondent No.2 for regularization in accordance with rules/notification etc. applicable in his case treating him within the age prescribed limit is confirmed. The petitioner No.2 within two months from the date of filing a certified copy of this order before petitioner No.2.
17. We are afraid that the two reliefs claimed in the O.A i.e. one to quash the order dated 17.12.2005 and to direct the respondents to grant them age relaxation and consider their cases as per Notification dated 17.12.2005 by not treating them over age are self contradictory and cannot be granted simultaneously. However, in view of the above authoritative judgments of the Honble Apex Court as well as jurisdictional High Court and the orders of coordinate Bench of this Tribunal, considering the same very controversy and fully applying the above ratio of law, we allow this Original Application to the extent of directing the respondents to consider the case of the applicants for absorption by not treating them as over-aged. It is made clear that they will be subjected to all other conditions except the condition of age limit.
18. The above exercise will be completed within a period of three months from the date of receipt of certified copy of this order. No order as to costs.
[Ms. Jayati Chandra] [Sanjeev Kaushik]
Member-A Member-J
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36
O.A. No.03 / 2006
With
O.A 140/06 & 141/06