Central Administrative Tribunal - Allahabad
Harish Chandra vs Union Of India on 14 July, 2023
Reserved on 12.07.2023
Central Administrative Tribunal, Allahabad Bench, Allahabad
This the 14th day of July, 2023
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Original Application No. 1080 of 2010
Harish Chandra S/o Sri Mewa Lal R/o Mohalla Post - Nausarh,
District Gorakhpur.
........... APPLICANT
By Advocate: Shri Ashish Srivastava
Versus
1. Union of India through Director Establishment (N)II, Railway
Board, New Delhi.
2. The General Manager, N.E. Railway, Gorakhpur.
3. The Chief Administrative Officer (Construction) N.E. Railway,
Gorakhpur.
..........RESPONDENTS
By Advocate: Shri Mahendra Prasad Mishra
ORDER
Shri Ashish Srivastava, learned counsel for the applicant and Shri M. P. Mishra, learned counsel for the respondents, were present at the time of hearing.
2. The instant original application has been filed seeking following relief:
"(i) This Hon'ble Tribunal may be pleased to quash the impugned letter dated 8/9.10.2009 (Annexure - A-1 to the original application) passed by the Chief Administrative Officer (Construction) Gorakhpur.
(ii) This Hon'ble Tribunal may be pleased to quash the impugned order dated 19.04.2010 (Annexure A-2 to the original application) passed by the Chief Administrative Offier (Construction) Gorakhpur.
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(iii) This Hon'ble Tribunal may be pleased to quash the impugned notification dated Board's letter dated 23.3.2010 (Anneuxre A-3 to the original application) issued by respondent No. 1.
(iv) This Hon'ble Tribunal may be pleased to issue direction to the respondents to appoint the applicant in Group D post against the existing vacancies without putting any embargo in the upper age limit.
(v) Any other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case may be given in favour of the applicant."
3. The compendium of the facts narrated in the instant original application is that the applicant is an ex-casual labour initially engaged by the respondents sometime in 1980 and was retrenched later. He is aggrieved from the fact that although some of those retrenched casual labours have been reengaged by the respondents pursuant to the orders passed by different Courts including the Apex Court, he has been denied the same. His case was rejected pursuant to the screening the result of which was declared on 25.03.2010 and communicated vide order dated April, 2010 merely on the ground of overage despite being similarly situated to those employees. By way of the instant application, the applicant has alleged that contrary to the statutory rules and ruling of the Apex Court, respondents have appointed those persons who are junior to him thereby denying his reengagement. Applicant has prayed for quashing of the impugned order dated 08/9.10.2009 which was passed by the department in compliance with the Tribunal's direction given in OA No. 692 of 2009 thereby rejecting his representations dated 22.07.2009 and 12.08.2009. He also seeks quashing of the impugned order dated April 2010 whereby his claim for absorption has been denied by the respondents. He also seeks quashing of impugned notification dated 23.03.2010 whereby respondents stated that only those cases of the applicants will be considered who fulfill the eligibility condition including the prescribed age limit. He also seeks quashing of fresh
2|Page recruitment process issued vide notification dated 06.12.2007. The applicant also seeks a direction to the respondents to appoint him in Group - D post against the existing vacancies without putting any embargo in the upper age limit.
4. Initiating his arguments, learned counsel for the applicant submits that the applicant shall be deemed to have acquired temporary status as he had discharged the minimum required days of service which is required for granting temporary status and therefore applicant's retrenchment from service without complying with the provisions prescribed under Section 25 of the Industrial Disputes Act is illegal. The said act specifically rules that no workman in any industry shall be retrenched by the employer unless the workman is given one month notice in writing indicating the reasons for retrenchment and for the period of notice, the workman will be paid wages. In the present case, the applicant had attained the temporary status and was thrown out from the department without following the norms of the act stated above.
5. Learned counsel for the applicant further submits that one similarly placed candidate namely Shri Indra Pal Yadav filed a petition bearing Writ Petition No. 147 of 1983 before Hon'ble Supreme Court of India which was allowed by the Apex Court thereby directing the respondents to open a casual labour register and include the name of all the project casual labours in it. The said direction was complied with by the respondents although not in letter and spirit. Learned counsel submits that consequent to the direction of the Apex Court, casual labours were added in several batches in an absolute surreptitious manner without issuing any notification and also by way of discriminating a few casual labours on the basis of category. Learned counsel further submits that in absolute contradiction to the norm laid down by the Apex Court in Inder Pal case (supra) wherein it was specifically held that there shall be a live casual register and those persons will be offered appointment whose names are there in live casual register on the basis of their position and no recruitment will be made from the open market, respondents
3|Page engaged many fresh hand casual labours in the year 1993 and 1994 in several batches. After discharging duties of 120 days, they were granted temporary status in the railway department. Furthermore, vide their letter dated 06.12.2007, the respondents later notified about 5000 group D post through employment notice which clearly reveals that huge number of vacancies was lying vacant and they were not being disclosed earlier just to avoid any engagement through ex- casual register. This act of the respondents is in contradiction to their own Circular issued on 17.01.2003 which provides that any appointment by way of fresh recruitment can be resorted only after the casual labours enrolled in the live casual register are completely exhausted.
6. Learned counsel Shri Ashish Srivastava further argues that upon the said illegal action of the respondents as stated in preceding paragraphs, applicants who were similarly situated with the applicant in the instant case approached the respondents expressing their resentment. Subsequently, respondents decided to fill up the vacancies of Group - D amongst the ex-casual labours existing in the roll of the N.E. Railway. A large number of ex casual labours were issued call letters regarding their screening and absorption in the department and 01.04.1999 was fixed as the cut-off date. The applicant was also issued letter dated 28.04.2008 and he had to appear in the screening on 08.07.2008. Consequently the applicant appeared however the result of the screening was not declared for a long time period. Being aggrieved from the non-declaration of results, the applicant along with other similarly situated candidates filed OA No. 692 of 2009 titled Nand Lal and others Vs. Union of India and others wherein the applicant has specifically prayed that in terms of the Railway Board's scheme pursuant to the decision of the Apex Court in the case of Indra Pal Yadav Vs. Union of India and others the result of the screening may be declared forthwith and the applicant may be reengaged in the department. The said OA was disposed of with a direction to decide the representation of the applicant by way of a reasoned and speaking order. Simultaneously,
4|Page the result of screening was also declared on 19.04.2010 wherein the applicant was declared unsuitable by a non-speaking order.
7. Learned counsel for the applicant submits that the respondents intentionally delayed the screening of ex casual labours despite the fact that it was to be carried out sometime in the year 1999 after the preparation of the seniority list as 1.4.1999 as it is apparently and intentionally delayed by the office of the respondents and thus the applicant may not be put to suffer because of the action or inaction on the part of the respondents. The applicant also lay his hand to the Railway Board's letter dated 5.7.2004 and 18.1.2008 whereby the Board has specifically fixed responsibility upon the N.E. Railway for taking considerable time in arranging the screening of ex casual labours. Learned counsel submits that by the N.E. Railway administration about 6000 vacancies were kept vacant for long time and no reasons have been recorded as to why the same could not be filled in the appropriate time.
8. Learned counsel for the respondents vehemently opposes the submissions of the learned counsel for the applicant and by way of his counter affidavit, he submits that casual labours are engaged by the department due to the work load that arises because of establishment of new units and the process of appointment is initiated in accordance with the relevant rules and provisions that govern the subject matter. Once the workload reduces and the department feels no necessity of keeping such huge workforce engaged further, the casual labours are retrenched. The same was done in the instant case of the applicant as he was retrenched on account of reduction of workload and paucity of fund with due adherence to the rules laid down in Industrial Disputes Act, 1947 and others statutory provisions.
9. Learned counsel for the respondents further submits that in compliance of the directions given by the Apex Court in the case of Indrapal Yadav Vs. Union of India and others reported in 1985 2 SCC 648 which was decided on 18.04.1985, a seniority list of all project casual labours was prepared for their engagement /
5|Page reengagement and casual live register was also prepared in this regard. As per the need of casual labours in new project, they were reengaged from the aforesaid casual live register. A few of the casual labours who were already managing the work of new projects were enrolled and there was no additional requirement of casual labours to carry out the project works. All the casual labours who were enrolled were regularized later. In order to update the live register which was prepared earlier, a notification was issued advising all the ex-casual labours whose names were mentioned in the said register to present themselves before the department on specified dates for their screening. That for the year 2007-08, budget outlay was increased and hence stood demand of workforce due to which 500 work charged post for engagement of track man were created only for the financial year 2007-08. All the ex-casual labours along with the applicant whose names were there in the above said live register were called for screening. The screening result was declared and the applicants were informed that they have been found unsuitable.
10. Learned counsel for the respondents goes on to submit that the main ground on which the case of the applicant was rejected was him being overage. This fact was cogently highlighted in Railway Board's Circular vide RBE No. 42 of 2001 dated 28.02.2001. The case of the applicant was meticulously considered and examined in light of the rules framed in the said letter dated 28.02.2001. The case of the applicant was considered by the respondents in light of the above stated rules and he was found unsuitable thereafter. And thus, no illegality or arbitrariness can be attributed to the procedure that was followed in this regard by the respondents.
11. As regards to the contentions of the applicant that 5000 vacancies were released but applicant was not considered for reengagement, learned counsel for the respondents submits that construction organization is having work charged post, which depends on the financial budget for running the construction work. Out of total 4549 group D posts, only 500 posts were meant for construction organization and the rest were for other departments. In
6|Page the said advertisement, applications were invited from Ex-Casual labours also, who fulfills the eligibility criteria. The entire process was done in accordance with relevant rules and the same stands completed on this date.
12. I have heard and considered the rival contentions advanced by the learned counsel appearing for the parties.
13. Learned counsels for the applicant has relied upon the judgment dated 18.04.1985 of the Hon'ble Supreme Court of India passed in Inder Pal Yadav and others Vs. Union of India and others reported in 1985 (2) SCC 648. For the sake of clarity, the relevant portion of the said judgment is quoted herein below:
"5. The Scheme envisages that it would be applicable to casual labour on projects who were in service as on January 1, 1984. The choice of this date does not commend to us, for it is likely to introduce an invidious distinction between similarly situated persons and expose some workmen to arbitrary discrimination flowing from fortuitous court's order. To illustrate, in some matters, the court granted interim stay before the workmen could be retrenched while some other were not so fortunate. Those in respect of whom the court granted interim relief by stay/suspension of the order of retrenchment, they would be treated in service on January 1, 1984 while others who fail to obtain interim relief though similarly situated would be pushed down in the implementation of the Scheme. There is another area where discrimination is likely to rear its ugly head. These workmen come from the lowest grade of railway service. They can ill afford to rush to court. Their Federations have hardly been of any assistance. They had individually to collect money and rush to court which in case of some may be beyond their reach. Therefore, some of the retrenched workmen failed to knock at the doors of the court of justice because these doors do not open unless huge expenses are incurred. Choice in such a situation, even without crystal gazing is between incurring expenses for a litigation with uncertain outcome and hunger from day to day. It is a Hobson's choice. Therefore, those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are
7|Page entitled to similar treatment, if not by anyone else at the hands of this Court. Burdened by all these relevant considerations and keeping in view all the aspects of the matter, we would modify part 5.1 (a) (i) by modifying the date from January 1, 1984 to January 1, 1981. With this modification and consequent rescheduling in absorption from that date onward, the Scheme framed by Railway Ministry is accepted and a direction is given that it must be implemented by recasting the stages consistent with the change in the date as herein directed.
6. To avoid violation of Article 14, the scientific and equitable way if implementing the scheme is for the Railway administration to prepare, a list of project casual labour with reference to each division of each railway and then start absorbing those with the longest service. If in the process any adjustments are necessary, the same must be done. In giving this direction, we are considerably influenced by the statutory recognition of a principle well known in industrial jurisprudence that the men with longest service shall have priority over those who have joined later on. In other words, the principle of last come first go or to reverse it first come last go as enunciated in Section 25-G of the Industrial Disputes Act, 1947 has been accepted. We direct accordingly."
14. Learned counsel for the applicant has also relied upon Section 25G and Section 25H of the Industrial Disputes Act, 1947 claiming that the applicant was not retrenched in accordance with the statutory provisions prescribed in the above said Act. For the sake of clarity, the relied upon paragraphs are quoted herein below:
"25G. Procedure for retrenchment - Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.
25H. Re-employment of retrenched workmen - Where any workmen are retrenched, and the employer proposes to take into
8|Page his employ any persons, he shall, in such manner as may be prescribed, given an opportunity [to the retrenched workmen who are citizens of India to offer themselves for re-employment and such retrenched workman] who offer themselves for re- employment shall have preference over other persons."
15. From the perusal of records, it is evident that applicant in the instant OA was engaged during the period 1981. Thereafter, he was retrenched / disengaged. It is also evident from the records that the applicant had completed minimum tenure for being granted temporary status. In compliance of the direction of the Hon'ble Supreme Court of India, respondents prepared the live casual labour register for the purpose of absorption of the casual labours who were working by that time and ex-casual labours who have completed the prescribed length of service. It is further evident from the record that respondents held screening of the applicant consequent to which he was declared unsuitable and due to this reason he was not absorbed / regularized. It is also evident that a few of the casual labours who the applicant's counsel had claimed were similarly placed with the applicant had approached before this Bench, Hon'ble High Court of Allahabad and even the Apex Court for the redressal of their grievance. Some of the petitions filed by them were allowed and many of the casual labours were absorbed but few petitions were dismissed and no relief was granted to them either by the Hon'ble High Court or by the Apex Court. In some cases, age relaxation has been granted for the absorption of the causal labours but in many cases no such relief was granted to them. It is also evident from the record that the applicant in the instant OA has crossed the maximum age limit prescribed for service meaning thereby that if he was absorbed earlier he would have already stood retired as on date.
16. Submissions of the learned counsel for the applicant is of many fold, mainly on the ground that the applicant was included in the live casual register and thus he was to be absorbed on his seniority basis but respondents completely ignoring his seniority did not absorb him and instead those candidates who were junior to him had been
9|Page absorbed. It has also been argued that this situation arose due to inaction on the part of respondents. Had the applicant been absorbed / regularized timely, he would have been retired by today. Thus, referring to the aforesaid argument, learned counsel for the applicant has submitted that applicant must not be compelled to suffer due to inaction on the part of respondents. Now the question before the Court is whether this Bench is empowered to give age relaxation to the applicant or can he be granted any sort of monetary compensation. To answer this question, it would be in the fitness of the things to retrace the law laid down in judgment dated 31.01.1996 of the Apex Court in the case of Hindustan Shipyard Ltd. & Ors Vs. Dr. P. Sambasiva Rao reported in 1996 (7) SCC. The operative portion of the said judgment 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 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 10 | P a g e purpose of regular appointment on the post of medical officer has been dispensed with. This, in our opinion, was impermissible."
The above quotation reveals the stand taken by the Apex Court in the instant subject 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.
17. It is also pertinent to refer to the judgment dated 05.05.1998 of the Apex Court in Case No. 793 of 1993 titled Government of Orissa Versus Hanichal Roy wherein it was held that:
"(3) THE Rule requires the government to form the opinion, for reasons to be recorded in writing, that it is necessary or expedient to relax any of the provisios of the Rules in public interest in respect of any class or category of persons. We assume for the purposes of this appeal that the case of the respondents herein falls within a "class or category or persons", but we do not think that the tribunal was right in, in effect, relaxing the appropriate rule itself. Having set out the facts, it should have left it to the government to take the decision under the rule."
The above quotation makes it abundantly clear that Tribunal has got very little scope to interfere in department's policy decisions pertaining to recruitment / absorption / regularization and that government should be left with the responsibility of taking decisions in above cases in accordance with rules.
18. Therefore, taking the above rulings into consideration with regard to the question this Tribunal is posed with, certainly in the facts and circumstances of the present case, Tribunal cannot give age relaxation to the applicant particularly he has crossed the maximum prescribed age limit nor it can grant any sort of compensation.
19. Furthermore, it is also pertinent to refer to the law laid down in the judgment dated 10.04.2006 of the Apex Court passed in the case of Secretary, State of Karnataka & Ors. Vs. Umadevi & Ors reported in 2006 (4) SCC:
11 | P a g e "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 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 12 | P a g e 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 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."
20. As is evident from the above quotation, Hon'ble Supreme Court of India in Uma Devi case (supra) has clearly held that casual labour has no right to seek regularization. This view of the Apex Court came in a Constitution Bench deciding the similar issue as is under contention in the instant original application. The Apex Court had observed that when there is no sanctioned post, there is no question of regularizing the irregular appointment made against the rule and regulation.
21. On the basis of aforesaid discussions and facts disclosed in the above chart, it is abundantly clear that the applicant has neither challenged the initial retrenchment order nor the order passed by the screening committee. It is also pertinent to mention that scheme launched by the government is not in existence anymore and most importantly, the applicant has crossed the age of superannuation. This Tribunal is not empowered to grant age relaxation at a belated stage. Thus, considering the entire facts and circumstances of the case and taking into consideration the deliberations which have been quoted above, this Tribunal is of the view that applicant can not be 13 | P a g e granted compensatory benefits in terms of money and the prayer made in the instant OA is not liable to be allowed. This view also draws strength from the law laid down by the Apex Court in Uma Devi case (supra) and thus, no benefit can be extended to the applicant in the instant case. Accordingly, the instant original application is dismissed, being devoid of merits.
22. All associated MAs stand disposed of accordingly.
23. No costs.
(Justice Om Prakash VII) Member (Judicial) (Ritu Raj) 14 | P a g e