Central Administrative Tribunal - Allahabad
Gopal vs General Manager, N E Rly on 8 February, 2019
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Original Application No. $30/01718 of 2014
Dated: This the 284 day of Sebuwny 2019.
PRESENT:
HON'BLE MR. RAKESH SAGAR JA\ IN. MEMBER {J}
t 56 years son of Shyam Lal, resident of Village
fice Gangi Bazar, Tehsil Sadar, District Moharajgarj,
.. Applicant
By Adv: Shri $.K. Om
VERSUS
1. Union of India through the General Manager,
Gorakhpur.
2. The Divisional Railway Mana
Ashoka Marg, Lucknow.
3. The Senior Divisional Commercial Manager,
Lucknow Division, Ashoka Marg, Lucknow,
4. The Chief Personnel Officer, N.E, Railway, H.Q Gorakhpur.
N.E. Railway,
ger, N.E. Railway Lucknow Division
NE. Railway
.. Respondents
By Adv: Shri L.M. Singh
ORDER
BY HON'BLE MR. RAKESH SAGAR JAIN, MEMBER {J} |. The present Original Application has been filed by the applicant seeking following reliefs:-
"A} That the order dated 13.8.2014 Passed by Divisional Railway Manager, Lucknow (Annexure A-] to the iin en fi td iW ille and Compilation No. 1) may be declared illegal same be quashed.
B) That the respondents be directed fo regularize fhe services of the applicant on the post of Booking Clerk respectively fromm the date, his immediate junior has been regularized and also assign his senionty and other consequential benefits accruing fhereupon regular basis in the department of Railway similar to other Mobile Booking Clerk and paid his saiary regularly without any obstructions.
C} That any otner and further rellef which this Hon'bie Tribunal may deem fit and proper be also awarded to the applicant.
D) Cost of proceeding be awarded to the applicant".
2. Case of applicant is that he was appointed as Mobile Booking Clerk Railway Station Gorakhpur w.e.f. 28.5.1983 and at the time of his appointment, the minimum qualification was Junior High School. Affer passing Junior High School, applicant passed High School examination in 1977 and tntermediate examination in 1979, The applicant appeared in the screening test for regularization of services of Mobile Booking Clerk on 30.8.1994 and thereafter came to know that his result has not been declared since he is not fulfilling the requisite educational qualification for regularization. He was informed orally by the respondents that if is essential that the candidate should have the subject of English in High School examination for regularization on the post of Mabile Booking Clerk and since applicant has not passed the examination with English subject, his resulf has not been deciared.
oS Applicant has further averred that he had Passed High School examination with Sanskrit sublect but in 1997, he passed the English subject of High Schaci from the Board of High School and intermediate Examination U.P. He informed the respondents of a ak a .
Se Ar _ Pw. SAA pete ae 3 yas i ; 4 eenecd 33 eed passing the English paper and his represeniation. was CONSCELE by respondents in pursuance of order dated 242012 of the Tribunal in O.A. No. 1503 of 2009. The respondents published! the list of Mabile Booking Clerks (M.B.C}) for appearing in the screening fest of regularization on 20.1.2014 in which ihe name oi applicant was not included. Meanwhile respondents vide order dated 13.8.2014 rejected the claim of applicant on the ground that he had not passed the High School examination wilh English subject as per para 126 Volume 1 of LRE.C, which prescribes that English subject is essential in High School examination for appoiniment to post of M.B.C. . ff is the case of applicant that he fulfilled all the conditions mentioned in LR.E.C Volume 1 and, therefore, the impugned order dated 13.8.2014 be quashed and respondents be directed to regularize his service.
. Before proceeding further, reference may be made fo impugned order dated 13.8.2014, which reads as under:-
uma he/gaeta 8 ER Wea we Wen 02/2013 (fa ardaa we 1503/2009) & area fete 23.7.2014 @ arora A arra oe fae fear wa, Asa | araga gfa weret 9 amt War Pee @ fay ter vents ae area fan en Rr wed FY ga wea gre Reve 252.09 mm) Hea erfa affrarl weer al FT ones aT qa aon war ff years EAT o2 sRTWA Te saws 18 waodiowto (ea 20 TAodlo Wo) a) arene wat vis @ @ ga Pret dg GE or wher aed asda a eer art ar aaa Prefer @ aeavey FY opqeter forar Wear 7.
su mesa & oa frais 258.09 aT Be FU MST wt nerganre (#10) /areage @ aa Petia 27/29413 G ae ura gat og THo Hovlo Brg: (1) Hf WEAR Bey (2) sft eramafr area @) a Bex vara alers (4) A ator ©) at era BR yar (6) a sreqgon wae gray (7) Ar U4 prearaa (8) a szara 6) sf wee var B a wf A 4 ve omy Cs 4 Ferry S er wells wa Ro 27/29413 8 dr 2 a We 8 f ste ahaa wa aed @ area sek waite wel fea on wear) ge aay Fue afl eae 3 fh vee wat ® ge eq amar qeray a tat ad a waia ee re a 4 seater a fen an; gad wer @ err A SMe Ta Ue were af 2002 8 wifin ard) @ grr Sailer art ry 21 yao fo vo wt afer aaah d wy a AST Get BS fore, ain gargs Ss eel adh dy Pathe Ve ater ano azo BO WHO aey-1 DS de 126 3 SIR ety A aPanf wr } wa 7 anfsh S ure Sat sazvaae 2) wader ae wo dio vio 8 Start o wy seq F aftard Aer ds wey atch aa a Sedtel ae ett oft ales ward ates cen aera 3 wr 1997 a sitet or afffter fier S wa AF eese one fen a fe afar fave @ wo a) sq ware of dle cen ame 4 Aqsa S Rr 126 S age gia gaa a eh adh wea at wet a 8) area wey =a 9 en.
Nanjundappa ara T. Thimmiah and others (1972) 1$.C.c 409 @ aa A woe wa @ PeiRa fea 2@ fe ale fod a Profea Peat @ efter ¥ 2 aera after o qual 3 afrpan ¥ 8 al adeaar fillegality) ot Praia ad fear ar aay B | aa: urbe Proa/fafras cen fafa Rea ga Taras, Rea yds fret ws a cer ates wy a qaaiea a S ua aeleecant ge Pred we wgaa 2 fa--
fa area (3) (41) a waar urea (2) a com 8 ater (4) a aura (6) at BAA EAR T Pawar gare asa (7) ah wa fra 0 (9) a asiex vere at yao Ho dio a gier F Y ware adl fear a wear 21 13.08.2014 Huge ta Waray aT"
~~ a In the counter affidavit, respondents have taken the plea that as per Railway Board letier dated 21.4.1982, if has been direcied that absearption against regular vacancies of M.B.C. be considered of persons having minimum qualification required for direct recruits and since applicant in the High School did nol have English as compulsory subject, buf only as additional subject, and as such his candidature was rejected since he did not fulfill the educational qualification as per para 126 of Volume } of LR.E.C. _ in the rejoinder affidavit filed by the applicant, it has been averred that at the time of appointment of M.B.C, ihe minimum qualification was only Matriculation and applicant has passed Junior High School, High School and Intermediate examination and, therefore, he fulfills the educational qualification.
So, the limited question in the present case is confined fo the dispute between the parties as to whether the applicant fulfils the educational qualification required for being regularized to the post of Mobile Booking Clerks.
As per letter dated 21.04.1982 issued by Railway Board, io regularize a person fo the post of M.B.C., the person should have the minimum qualification required for direct recruits. The minimum qualification required for direct recruits fo the post of M.B.C. is governed by para 126 Voll, LR.E.C which lays down that:
6196. Recruitment ~ Initially as trainees who will be sent fo the training schools for appcintment as Commercial Clerks in the grade of Rs.110-200, 80% vacancies In the initial grade are to be filled by recruitment and the remaining vacancies upto a maximum of 20% will be open for promotion of staff in class IV categories. Qualification: {a} Age between 18 and 21 ' Aa .
PAA Bitnr i v
10.
years, {b}) Education Matriculation with a pass in English as a compulsory subject or ifs equivalent examination Training : Stipend Rs. 110 training period 3 months".
Applicant's case is that he cleared the English subject in 1997 in High School and therefore he is eligible to be considered for regularization to the post of M.B.C. On the other hand, respondents' case being that as per para 126 (supra) a candidate should have Matriculation with a pass in English as a compulsory subject and not as an additional subject which is the case of the applicant.
. Learned counsel for the respondents points out that the applicant does not possess the above prescribed qualification under the rules. By referring to the fact that the applicant has not passed High School with English as a compulsory subject, learned counsel for respondents argued that the impugned order cannoi be interfered with for the reason that the same is strictly in accordance with the rules occupying the field of recruitment/regularization to the post of M.B.C. Per contra, learned counsel for the applicant argued that the applicant cleared the English subject in 1997 and therefore has all the educational qualifications for the post in question and invited our attention fo the certificate dated 94.06.1997 (Annexure A-11] issued by the U.P. Secondary & Higher Secondary Education Board. Learned counsel argued that the certificate reflects that applicant has passed the exam of English subject and consequently the applicant is entitled fo be declared that he has the prescribed qualification for the post of MBC. Rebuiting to this submission, learned counsel fer respondents pointed out that the said certificate refers 16 pn , Ss PVA ?
x
13.
15. 16, passing the English subject as a additional subject and not as compulsory paper, We note that the essential eligibility criteria prescribed in the Recruitment Rules for the past of BMC with regard to education Is Matriculation with a pass in English as a compulsory subject.
. We have perused the certificate produced by fhe applicant wherein he has passed High Schoo! with Sanskrit and not English language. We also note that the applicant passed English as an additional subject in 1997. But no case has been made by the applicant to prove or show that fhe qualification with additional subject is equivalent to the qualification with compulsory subject.
in view of certificate of 1977, we have no hesitation to hold that the applicant does not have the qualification prescribed for the post of MBC. On examination, we find that the reason assigned by the respondents for deleting the name of the applicant from the list is strictly in accordance with aforesaid Recruiiment Rules Le. Para 126 and the same does not suffer from any legal infirmity. Hence we reject the prayer of the applicant to quash the impugned order dated 13.08.2014 and consequently, the question of issuing any direction as prayed by the applicant does not arise.
We may also note and refer to Union of india v. Pushparani and Others, 2008 {2} SCC (L&S) 851, wherein the Honble Supreme Court held as under:-
"37 xxxx xxxx the settled legal position that matters relating to creation and abolition of pasts, formation and siructuring/ restructuring of cadres, prescribing ihe source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What Man Sty i
18.
19. steas shauld be taken for improving efficiency of the administration is also the preserve of ihe employer. The power of judicial review can be exercised in such matters only if is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannai sii in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of fhe candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of ddrninistration."
Perusal of the educational certificates placed on record by the applicant reveal that he had passed High School in 1977 in compulsory papers which did not include English as a subject but that he passed English subject as an additional paper in 1997, So the certificates would show that the applicant did not pass the High School in 1977 with English as a compulsory subject but passed the exam in subject of English as an additional paper in 1997. Therefore, the contention of the applicant that he had passed English in Matriculation exam and hence he is eligible for regularization to the post of Mobile Booking Clerk cannot be accepied.
Learned counsel for applicant relied upon judgment dated 1.8.2018 filled Narendra Kumar Tiwarl and others Vs. The State of Jharkhand passed by Hon'ble Apex Court in Civil Appeal No. 7423-7429 of 2018, In that case, regularization was permissible since the State of Jharkhand came into existance on 15.7}. 2000, A Mane
20. therefore, Keeping In view this fact, State was directed to take g decision for regularizing the services of the Daily Wage or Contract Workers, which is no} so in the present case and the facts of both the Cases are entirely different and is of no avail to the applicant. Learned counsel for the applicant Upon judgment dated 12.11 ako relied 2017 passed by Hon'ble Apex Court in Civil Appeal No. 18510 of Nagar and other 2017 in case titled Sheo Narain s Vs. State of UP. where the services were regularized since the applicant had compieted 10 years of service and was in circumstances where there were no rule for offering such kind of appoiniments and therefore, could nol be case of back-door entry or being Illegal. in the present case, the direction of the Railway Board is clear that vacancies cannot be filed by absorption of those persons who do not fulfill the qualification laid down for appointments of direct recruits to the post of M.B.C and s0 the judgment is based upon facts which are different from the facts of the present case.
On the other hand, learned counsel for respondents submitted that regularization cannot be effected in violation of the Rules laid down for such regularization and placed reliance upon R.N. Nanjundappa Vs. T. Thimmaiah reported in AIR 1972 Supreme Court 1767 wherein it has been held that:-
"Regularization of appointment by © stating -- that notwithstanding any rules the appointment is regularized strikes at the root of the rules and if the effect of the regularization is fo nullify the operation and effectiveness of the rules, the rule itself is open to criticism on the ground that it is in violation of current rules. Therefore, the relevant rules at the material fime as to promotion and appointment are infringed and the impeached tule cannot be permitied fo stand to operate as a regularization of appointment of one person in utter bho 10 mer? in the case of promotion and consideration of appointment by selection or by compelitive examination".
itmay be noted that applicant has not challenged vires of para 126 Vol-] of LR.E.C. which prescribes the minimum qualification required for regularization fo the post of Mobile Booking Clerk and we may observe that it is a well settled law that prescription of qualifications for a particular post pertain to the field of policy and within the exclusive discretion of the State. Hl is the domain of the employer. In this regard, we may usefully refer fo the judgment of the Hon'ble Supreme Court in the case of P.U. Joshi and Others v. Accountant General, Ahmedabad and Others, 2003 SCC [L&S} 191. The relevant part of the judgment! reads as under:-
*10, We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription -- of qualifications and other conditions of service including avenues of promotions and criteria fo be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and if is nof for the Statutary Tribunals, at any rate, fo direct the Government to have a particvlar method of recruitrnent or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, fis well apen and within the:
campetency of the State fo change the rules relating te a service and alter or amend and vary by additien/sublraction the qualifications, eligibility crtenc and offer condifians of service including cvenues of Sooees ONS SPS bee of PS SDagomate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further Classification, bifurcation or ama! gamation as well as reconstitute = and restructure the -- pattern and cadres/categories of service, as may be required from time fo time by abolishing existing cadres/posts and creating new cacdires/posts. There is no right in any employee of the State fo claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of fime, a Government servant has no right fo challenge the authority of the State to amend, alter and bring into force new rules relating fo * o . e wy even an existing service.
22. In view of facts and circumstances of the case, the O.A. is . Ww eritless and is accordingly dismissed. No order as fo costs.
m rs Ag