Orissa High Court
Union Of India And Others vs Akshaya Kumar Bahalia And Another on 2 May, 2017
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
HIGH COURT OF ORISSA: CUTTACK.
W.P.(C) No.5553 of 2017
In the matter of application under Articles 226 and 227 of the Constitution
of India.
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Union of India and Others ...... Petitioners.
- Versus-
Akshaya Kumar Bahalia and Another
... ... Opposite Party.
Counsel for Petitioners : Mr. Paresh Kumar sahoo
Counsel for Opp.Parties : Mr. N. R. Routray.
PRESENT:
THE HONOURABLE KUMARI JUSTICE SANJU PANDA
&
THE HONOURABLE SHRI JUSTICE SUJIT NARAYAN PRASAD
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Date of hearing and judgment : 02.05.2017
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S. N. Prasad, J.This writ petition is under Articles 226 and 227 of the Constitution of India preferred by Union of India through its General Manager, East Coast Railway, Bhubaneswar whereby and where under the order passed by Central Administrative Tribunal, Cuttack Bench, Cuttack on 03.01.2017 in O.A. No.260/00008 of 2014 has been assailed wherein the learned Tribunal has granted the benefit of upgradation in pay scale under Assured Career Progression Scheme by counting the period of training undergone by the applicant.
2. The brief facts of the case of the opposite party - applicant before the Tribunal was that he has joined the training after following all the formalities and 2 on successful completion has been taken into the cadre with effect from 30.03.1988 and thereafter has been regularized on 28.08.1998 as skilled Grade- III (Fitter).
The applicant has raised his grievance that he be given the benefit of upgradation in pay scale under the scheme formulated by the authorities by counting the period of 12 years from the date of his initial appointment, but when the same has not been considered by the authorities, he has approached the Tribunal and the Tribunal, after taking note of the entire aspect of the matter, has passed an order holding therein that he is entitled to be given upgradation of pay scale under the Assured Career Progression Scheme by counting 12 years of service from the date of his initial appointment, the said order is under challenge before this court by way of this writ petition inter alia on the ground that the training period ought not to have been counted for the purpose of counting the 12 years of continuous service.
3. Mr. Paresh Kumar Sahoo, learned counsel representing the Union of India has tried to strengthen his argument by submitting that so many circulars have been issued by the East Coast Railway which provides condition that the period undergone on training cannot be counted for the purpose of counting the 12 years of service, rather the 12 years was to be counted from the date when the period of training has been completed.
He submits that the petitioner since has got pre training, i.e. before entering into service, as such the pre training period should not have been 3 directed to be counted by the Tribunal for the purpose of counting the continuous service to extend the benefit of Assured Career Progression Scheme.
He, however, has submitted that if the training period is in service then the 12 years can be counted from the date of initial appointment.
4. Learned counsel appearing for the opposite party - applicant has vehemently opposed the submission advanced on behalf of learned Counsel representing the East Coast Railway.
While arguing, he has submitted that the same issue fell for consideration before this court and this court in series of writ petitions approved the order of the Tribunal, the matter went before the Hon'ble Apex Court, and the Apex Court has affirmed the same by dismissing the Special Leave Petition, hence nothing remains to be decided in this case.
He submits that the opposite party - applicant has been appointed pursuant to an advertisement notified by the authorities being Employment Notice No.M8/476/MCS/ R&S whereby and where under the applications have been invited for recruitment of trainees for being eventually absorbed as Skilled Artisan in the Revised Scale of pay of Rs.260-400 in carriage repair work-shop with the condition that the candidates must have passed from any I.T.I. in the appropriate trade or completed Apprenticeship training in the appropriate trade and possess National Apprenticeship Certificate and the candidates should be in between the age group of 18 to 25 years of age as on 1.1.1985, the other stipulation therein was that the selected persons will have to undergo training up to maximum period of one year at the suitable technical establishment on the railway as the 4 administration may decide, stipend as per rule in force from time to time will be paid to such trainees.
On the strength of this advertisement, submission has been advanced by the learned counsel that since the opposite party - applicant has been appointed pursuant to Employment Notice No.M8/476/MCS/R&S after having the I.T.I. or the Apprenticeship Certificate, he has got his appointment and thereafter he has been directed to go for training which itself suggests that same was in-service training and in no stretch of imagination the in-service training undergone by him can be taken away from the length of service.
He countered the argument of learned Counsel representing the East Coast Railway by submitting that the opposite party - applicant has not got his appointment on the basis of pre training rather the pre training was one of the eligibility criteria for his participation in the selection process and he having pre- training, Apprenticeship certificate or I.T.I., has participated and thereafter when entered into service he has undergone training in terms of offer of appointment and on completion of successful training has been taken under regular establishment, hence the submission advanced by the learned Counsel representing the East Coast Railway in this regard is not acceptable and not factually correct.
He submits that if the appointment would have been made on the basis of Apprenticeship certificate and without any direction to go for in-service training, in that situation, the period undergone training under Apprenticeship certainly would not have been counted for the purpose of counting the length of 5 service, but that is not the fact in this case and that is not the prayer of the applicant which has been adjudicated upon by the Tribunal, rather before the tribunal, the factual aspect was as to whether the training undergone by the applicant in service can be counted for the purpose of counting the length of service period or not and that has been answered.
5. While countering this submission, learned Counsel representing the East Coast Railway, has submitted that the question involved in this case is pre training period and the Tribunal has misconstrued this aspect of the matter while adjudicating the issue.
He further submits that in other similar matters, the order of tribunal has been challenged before the Hon'ble Supreme Court and the Supreme Court is now in seission of the matter by issuing notice in the Special Leave Petition which is now pending before the Hon'ble Supreme Court.
6. We have heard learned counsels for the parties and perused the documents available on the record and on the basis of that their argument has been appreciated.
On the basis of the factual aspect which has been canvassed before us by the learned counsels for the parties, the question which is to be looked into by this court is as to whether the period of training would be counted if the training is by one or the other employees in course of service or the pre service.
In order to examine this issue, we have gone into the pleading of the respective parties. It is evident from the notice inviting application being Employment Notice No.M8/476/MCS/R&S which has been notified inviting 6 application for recruitment of trainees for being absorbed as skilled artisan in revised scale of pay of Rs.260-400 in carriage repair workshop in Mancheswar near Bhubaneswar. The minimum qualification for recruitment as skilled artisan, as stipulated that the candidate must have passed from any I.T.I. in appropriate trade or completed apprenticeship training in appropriate trade and possess national apprenticeship certificate.
The other condition stipulated in the said advertisement is that the selected persons will have to undergo training up to maximum period of one year at a suitable technical training establishment on the Railways as the administration may decide, stipend as per rules in force from time to time will be paid to such trainees. In all other respects the appointment will be governed by the Railway Rules in force from time to time, the trainees are required to find their own residential accommodation at the place of training.
The opposite party - applicant, in pursuance to the said employment notice, has made his application being eligible as per the minimum qualification prescribed, he has been appointed on successful completion of training since he was found suitable in the test conducted for absorption, has been regularized and posted against existing vacant post of Skilled Grade-III (SMW) in scale 950-1500 plus allowances.
While he was working, the South Eastern Railways has come out with a scheme known as Assured Career Progression scheme to grant upgradation in pay scale wherein the provision has been made that first upgradation of pay would be granted after 12 years of regular service and second upgradation after 12 7 years of regular service from the date of first financial upgradation, subject to fulfillment of prescribed condition, as would be evident from the circular dtd.25.11.2013 appended to the writ petition.
The opposite party - applicant raised his demand that he be given the first upgradation in pay scale after completion of 12 years of service from the date of his initial appointment, the same having been rejected by the authorities on the ground that his 12 years would be counted from the date when he has been taken into regular establishment i.e. with effect from 28.08.1998, the opposite party - applicant, being aggrieved with the same, has approached the Tribunal and the tribunal after taking into consideration the fact that similar issue has been decided by it, which has been affirmed by this court in series of writ petitions which ultimately been affirmed by Hon'ble Supreme Court in Special Leave Petitions, has passed an order directing the authorities to count the period of service from the date of his initial training and directed them to grant the 1st upgradation from the date of his initial appointment, that order is under challenge in this writ petition.
7. Learned Counsel representing the East Coast Railway has relied upon one communication dtd.14.3.1998 which stipulates that the service of the trainees would be taken under the regular establishment subject to their successful completion of training against the available vacancy, after completion of the training they will have to serve the railway administration for a minimum period of 5 years if required by the administration and the trainee will not been allowed to withdraw from training except for any reasons beyond his / her control. 8
We have also come across the scheme of upgradation in pay scale dtd.25.11.2013 which stipulates a condition that the benefit of first upgradation in pay scale would be granted after completion of 12 years of regular service and second upgradation on completion of 12 years from the date when the first upgradation has been granted.
We have also come across the office order dtd.28.08.1998 by which the services of the opposite party - applicant has been regularized on successful completion of his training with effect from 28.8.1998 while he has joined his services in training 30.03.1988.
8. Learned Counsel representing the East Coast Railway has put emphasis on the circular dtd.1.12.1998 which contains a provision that the benefit of upgradation in pay scale would be granted on the basis of completion of regular service of 12 years and 24 years for first and second upgradation respectively.
He has also relied upon the Indian Railway Establishment Manual which has been notified in pursuance to the provisions of Apprenticeship Act, 1961, placing reliance up the same it has been submitted that if a person is directed to undergo training under the Apprenticeship Act, 1961 or the Indian Railway Establishment Manual as contained in Annexure-6 to the addl. affidavit filed by them, the period rendered by the employee under the apprenticeship cannot be counted for the purpose of counting the length of regular service.
He has also relied upon the Indian Railway Establishment Code which also is under the Apprenticeship Act stipulating the meaning of the 9 apprenticeship. He further relied upon one clarification as contained order no.257/ 2004 wherein it has been stated that the period of training would be counted for the purpose of pensionary benefit and for no other purpose that period would be counted.
He has also relied upon the Master Circular No.37 wherein under the eligibility condition head, it has been provided that the service for this purpose shall be the service rendered on regular basis, service rendered on ad hoc basis shall, however, be taken into account for this purpose if it is followed by regularization without break.
9. While on the other hand learned counsel for opposite party - applicant has relied upon the employment notice No.M8/476/MCS/R&S which is the advertisement, in pursuance of which he has been appointed under the post with the condition that he has to go for training. He has also relied upon Annexure-C dtd.22.6.1992 wherein it has been stipulated that the period rendered on training would be counted for the purpose of increment.
He has relied upon the order passed by this court in W.P.(C) No.12425 of 2012 wherein similar issue has been decided by this court by approving the order passed by the Tribunal wherein the same view has been taken by the Tribunal which has been challenged before the Hon'ble Apex Court in Special Leave Petition No.110404 of 2013 wherein the order passed by this court has been affirmed, on the strength of these documents it has been submitted that the issue has already been decided by this court having been affirmed by Hon'ble 10 Apex Court, as such noting remains to be decided in this case, hence he has prayed to dismiss the writ petition.
He has also relied upon another order passed by this Bench in W.P.(C) No. 19250 of 2016 wherein taking into consideration the fact that the same issue has already been decided by this court having been affirmed by the Hon'ble Supreme Court, this court has declined to interfere, as such the writ petition has been dismissed approving the order passed by the tribunal.
Learned counsel for opposite party - application, on the strength of these documents, has submitted that the writ petitions may be dismissed.
10. Learned Counsel representing the East Coast Railways submitted that other matters also went before Hon'ble Apex Court wherein notice has been issued and now the matter is pending but no document to that effect has been produced before this court.
11. We, in the light of these documents and submissions, have examined the issue in detail.
It is not in dispute that the authority has come with a scheme for grant of upgradation in pay scale and to that effect the decision has been taken to grant first upgradation after completion of 12 years of continuous regular service.
It is also not in dispute that the training undergone in-service by an employee cannot be excluded from counting the entire length of service. 11
It is also not in dispute that the apprenticeship period under the Apprenticeship Act, 1961 cannot be counted for the purpose of counting the length of service.
In the light of these settled propositions we have examined the factual aspect of the instant cases.
We have taken into consideration the notice inviting application which contains a condition by inviting application for the post of trainees for being eventually absorbed as skilled artisan having minimum qualification of having passed from any I.T.I. in appropriate trade or completed Apprenticeship training with possessing a national apprenticeship certificate.
Learned counsel representing the opposite party - applicant is not disputing the fact that on the basis of the advertisement as contained in employment notice No.M8/476/MCS/R&S, he has been engaged as trainee after having possessed I.T.I. or the apprenticeship certificate. He has been appointed as trainee with a condition to undergo training up to maximum period of one year at a suitable technical training establishment of the railways. After completion of the period of training he has been absorbed under the regular establishment vide order dtd.28.08.1998 after passing the test conducted for absorption.
On the basis of the admitted position that the opposite party - applicant has been appointed in pursuance to the advertisement No.M8/476/MCS/R&S, as such there is no dispute about the fact that he has been appointed after getting either I.T.I. certificate or apprenticeship certificate under the Apprenticeship Act, 1961 and got his engagement in pursuance to the 12 said advertisement as trainee and on successful training he has been taken under regular establishment on 28.08.1998, as such we are not in hesitation to hold on the basis of this factual aspect which has been placed before us that the said training period is in service training.
It is not res integra that in-service training period would not be counted for counting the length of service, learned counsel for the East Coast Railway has submitted that it is the pre service training as has been obtained by the applicant under the Apprenticeship Act, 1961, this argument is not acceptable to us in view of the admitted position in the case that the applicant has been appointed in pursuance to the advertisement No.M8/476/MCS/R&S which requires minimum qualification to have I.T.I. or the certificate of apprenticeship, hence we are of the considered view that the training obtained by him is during service period and as such the said period would not in any stretch of imagination not be counted for the purpose of counting the length of period of service.
12. So far as the contention of learned Counsel representing the East Coast Railways by putting reliance upon the manual / code issued by the Railways, but that is not applicable in the facts and circumstances of the present case since we have reached to the conclusion that the said training period has been obtained by him while he was in service having been appointed in pursuance to the advertisement No.M8/476/MCS/R&S. The same issue fell for consideration before the tribunal and the tribunal has passed an order directing the authorities to count the period of in- service training period for the purpose of counting the length of service, the same 13 matter fell for consideration before this court in series of writ petitions, one of them have been annexed by the applicant in his reply, i.e. W.P.(C) No.12425 of 2012 which has even been affirmed by Hon'ble Apex Court in Special Leave Petition No.11040 of 2013 and subsequently thereafter following the order passed by this court having been confirmed by Hon'ble Apex Court, the other writ petition have been disposed of being W.P.(C) Nos.18880 of 2015, 19680 of 2015, 19678 of 2015 and 19250 of 2016.
13. So far as the contention raised by the learned Counsel representing the East Coast Railways that in another Special Leave Petition, having the same issue, the Hon'ble Apex Court has issued notice and the same is pending, but no such document to that effect has been placed, hence we are bound by the order passed by this court having been confirmed by Hon'ble Apex Court as has been reflected herein above and accordingly we are of the view that the order dtd.03.01.2017 passed by the Tribunal in O.A. No.260/00008 of 2014 needs no interference by this court.
Accordingly the writ petition stands dismissed.
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S.N.Prasad, J. Sanju Panda, J. Orissa High Court, Cuttack, Dated the 2nd May, 2017/mkp