Central Administrative Tribunal - Ernakulam
S.Prasannakumar vs Union Of India Represented By The ... on 28 October, 2008
1 OA 630 & 665/07 CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH O.A Nos. 630 & 665 of 2007 Tuesday, this the 28th day of October, 2008. CORAM HON'BLE MR. GEORGE PARACKEN, JUDICIAL MEMBER HON'BLE DR K.S.SUGATHAN, ADMINISTRATIVE MEMBER O.A.630/2007 1. S.Prasannakumar, Technical Mate, Southern Railway, O/o the Executive Engineer, Kayamkulam. 2. M.L.Shaji, Technical Mate, Section Engineer's Office, Southern Railway, Quilon. 3. Anil Raveendran, Technical Mate, Executive Engineer's Office, Southern Railway, Kayamkulam. ....Applicants (By Advocate Mr Sibi J Monippally ) v. 1. Union of India represented by the Chairman, Railway Board, New Delhi. 2. The General Manager, Southern Railway, Park Town, Chennai. 3. The Chief Personnel Officer, Southern Railway, Chennai. 4. Deputy Chief Personnel Officer(Construction), Egmore, Southern Railway, Chennai. 2 OA 630 & 665/07 5. The Senior Divisional Personnel Officer, Southern Railway, Trivandrum Division, Trivandrum. 6. The Chief Engineer (Construction), Southern railway, Trivandrum Division, Trivandrum. ....Respondents (By Advocate Mr K.M.Anthru ) O.A.665/2007 P.Radhakrishnan, Technical Mate, Southern Railway, O/o the Deputy Chief Engineer, Trivandrum. -Applicants (By Advocate Mr Sibi J Monippally) v. 1. Union of India rep. By Chairman, Railway Board, Railway Bhavan, New Delhi. 2. The Senior Divisional Personnel Officer, Southern Railway, Trivandrum Division, Trivandrum. 3. The Chief Personnel Officer, Southern Railway, Chennai. -Respondents (By Advocate Ms P.K.Nandini ) This application having been finally heard on 13.10.2008, the Tribunal on 28.10.2008 delivered the following: O R D E R
HON'BLE MR. GEORGE PARACKEN, JUDICIAL MEMBER Both these O.As are identical and therefore, they are heard together and disposed of by this common order.
2. Applicants have entered service under the Southern Railway as Technical 3 OA 630 & 665/07 Mates which is a Group'C' post. Later on, they were granted temporary status in the said post. As a part of decasualisation process initiated in the Railways, they were empanelled for regularisation to the post of Gangman in the lower category of Group'D' . Aggrieved by the said empanelment, they and other similarly placed persons had earlier approached this Tribunal vide O.A. Nos. 635, 636, 616 and 833 of 1997. Those O.As were disposed of by Annexure A-1 order dated 28.8.2000 directing the General Manager to consider them for absorption in appropriate grade in Group'C' as expeditiously as possible. The relevant part of the said order is as under:
5. We have gone through the elaborate pleadings on record in these cases. The Hon'ble Supreme Court had an occasion to consider an identical issue in V.M.Chandra v. Union of India & others [AIR 1999 SC 1624]. Referring to the contention of the respondents that there is no post of Technical Mates available for absorption and taking note of the Railway Board's Circular dated 13.7.93 which reads as follows:
The Board have communicated their approval for considering the Casual Labour Technical Mates in the Geographical jurisdiction of the division for absorption as Skilled Artizans Gr.III in the scale of Rs.950-1500 against 25% of direct recruitment quota along with serving casual labour artizans. The Apex Court found that the contention is not tenable. Taking into account the fact that the appellant before the Supreme Court had been approaching this Tribunal a number of times as an extra ordinary case without remitting the matter further to the Railway Administration, the Apex Court directed the absorption of the appellants in that case in the scale of Rs.950-1500.
6. In view of the ruling of the Apex Court and the Railway Boards' circular dated 8.7.93 (A-4 in O.A.636/97), the contention of the respondents that there is no post of Technical Mate on which the applicants could be regularised has to be rejected. Therefore, the applicants have to be considered for regularisation in their turn as Skilled artizans to the extent of 25% of the posts for direct recruitment. Further according to the railway Board's circular dated 9.4.97 (Annexure R-I in O.A.63697), the respondents have to consider the case of the applicants for regularisation by giving them a chance to appear in the examination conducted by the Railway .
Recruitment Board or the Railways for the post as per their suitability and qualification.
7. Since all the applicants are continuing as Skilled artizans on the basis of the interim order issued by this Tribunal, the 4 OA 630 & 665/07 applications .are now disposed of directing the General Manager to consider the case of the applicants in appropriate grade on Group'C' for absorption in accordance with the directions contained in the Railway Boards Circular dated 8.7.93 as also the Railway Boards order dated 9.4.97 and the ruling of the Supreme Court in V.M.Chandra's case. The above exercise shall be undertaken and the resultant orders issued as expeditiously as possible and till final orders are issued the status quo regarding the posting of the applicants shall be maintained. No costs.
3. The circular dated 8.7.1993 referred to in the aforesaid order was in fact a letter from C.P.O, Madras to the Divisional Railway Managers conveying the approval of the Railway Board to absorb Technical Mates in Group'C' post and it reads as under:
Sub: Absorption of Technical Mates in Group'C' posts Works Branch Board have communicated their approval for considering the Casual Labour Technical Mates in the Geographical jurisdiction of the division for absorption as Skilled Artisans Gr.III in scale Rs.950-1500 against 25% of direct recruitment quota along with serving casual labour artisans.
4. The Railway Board's circular dated 9.4.1997 referred to in the same order and annexed with this O.A as Annexure A-5 reads as under:
Sub: Regularisation of casual labour working in Group 'C' scales.
As the Railways Administrations are aware, instructions have been issued by the Board from time to time on engagement of casual labour, which clearly envisage such engagement to be only in Group'D' categories barring occasional engagement of casual skilled artisans in Group'C' scales in terms of provisions contained in paras 2001 to o2007 of Indian railway Establishment Manual (1089 edition), Engagement of Casual Labour and other Group'C' categories is not permissible as per extant orders.
2. Instances have, however, come to the notice .of the Board where various Railway administrations have resorted to engagement of casual labour (in open line and construction) in Group'C' categories (other than skilled artisans) like Works Mistries, P.Way Mistries, IOWs, Pharmacists, etc. resulting in all sorts of administrative and legal complications.
3. The question of regularisation of the casual labour working in Group'C' scales has been under considerations of the Board. After careful consideration of the matter, Board have decided that the 5 OA 630 & 665/07 regularisation of casual labour working in Group'C' scales may be done on the following lines.
(i) All casual labour/substitutes in Group'C' scales whether they are Diploma Holders or have other qualifications, may be given a chance to appear in examinations conducted by RRB or the Railways for posts as per their suitability and qualification without any age bar.
(ii) Notwithstanding (i) above, such of the casual labour in Group'C' scales as are presently entitled for absorption as skilled artisans against 25% of the promotion quota may continue to be considered for absorption as such.
(iii)Notwithstanding (i) and (ii) above, all casual labour may continue to be considered for absorption in Group'D' on the basis of the number of days put in as casual labour in respective Units.
5. The appellant in V.M.Chandra's case referred to in Annexure A-1 order was also initially engaged as a daily rated Technical Mate. Later on, she acquired temporary status in Group'C'. Her request for absorption in Group'C' was rejected by the respondents. The Original Application filed by her before this Bench of the Tribunal was also rejected on the basis of the affidavit filed by the Chairman of the Railway Board as under:
There are no category of posts designated as Technicalmates on the Railways.. Zonal Railways have no power to introduce any new designation/category of posts. Further, designations are meant to describe the incumbents of posts in regular scales. Casual labourers who do not hold any post are not to be described by any 'designation' prescribed for regular employees and are to be described only as casual labour. However, the Apex Court vide its judgment dated 6.4.1999 (Annexure A-12) allowed the Appeal with the direction to the Railways to absorb her as a Skilled Artisan Gr.III and it reads as under:
The order dated October 30, 1985 by which the appellant was appointed clearly indicates that her services had been engaged as a Technical Mate since she had completed the course of diploma in technical subjects. The view taken by the Chairman of the Railway Board that there is no post of Technical Mate available for absorption itself appears to be incorrect inasmuch as the Railway Board by its communication No.P(S) 443/I/Misc./MP/MAS/Vo.X as follows:
The Board have communicated their approval for considering the Casual Labour Technical Mates in the Geographical jurisdiction of 6 OA 630 & 665/07 the division for absorption as Skilled Artizans Gr.III in the scale of Rs.950-1500 against 25% of direct recruitment quota along with serving casual labour artizans. This communication clearly indicates the manner in which a person whose services have been engaged as a Technical Mate on casual basis has to be treated. If this is the mode of providing an employment, then we fail to understand as to how the Chairman of the Railway Board could not apply the same to the appellant and give appropriate relief. Considering the long period of service the appellant had put in and the qualification possessed by her, namely, a diploma in technical subjects, it would certainly entitle her to be absorbed as a skilled Artisan in Grade III in scale 950-1500 against post available in respect of direct recruitment quota. If this aspect had been borne in mind by the Chairman of the Railway Board, we do not think that he would have rejected the case of the appellant.
The view taken by the Chairman of the Railway Board that there cannot be any designation assigned to a casual employee baffles all logic because there can be engagement of a peon on casual basis and it cannot be said that both are casual employees and, therefore, there cannot be any distinction between a peon and a clerk as they are engaged on casual basis. In that of the matter we do not think that the view taken by the Chairman of the Railway Board was justified.
Considering the number of occasions the appellant had approached the Tribunal and the authorities for relief, we do not think that any useful purpose will be served by merely setting aside the order of the authorities and remitting the matter to them. On the other hand, it would be an extraordinary case where we should direct the respondents to absorb the appellant as a skilled Artisan in Grade III in appropriate scale as indicated in the communication No.P(S) 443/I/Misc./MP/MASD/Vo.X of the Board and the benefit thereof should be given to the appellant. However, the appellant will not be entitled to any higher monetary benefits than what she was drawing hitherto. The appellant will be fitted in the appropriate scale by giving increments and continuity in service on that basis. Therese directions shall be, given effect to within a period of three months from today.
We allow this appeal by setting aside the order made by the Tribunal and allow the application filed by the appellant before the Tribunal. But in the circumstances of the case, there shall be no order as to costs.
6. According to the Annexure A-2 letter of Senior DPO, Chennai dated 14.8.2001, complying with the aforesaid order of this Tribunal dated 28.8.2000, the General Manager, Southern Railway individually considered the cases of the 7 OA 630 & 665/07 Applicants vide letter No.P(S)443/I/98/CAT/MAS/Vol.III dated 3.8.2001and sought option for their absorption in Group'C' Skilled Artisan category. Again, vide Annexure A-3 letter dated 7.2.2006, the Deputy Chief Engineer, Construction, Trivandrum, addressed to Senior DPO, Trivandrum reconfirmed that the 4 Technical Mates, including the applicants, have exercised their option for absorption as Skilled Artizans Gr.III in scale Rs.3050-4590 in terms of the aforesaid letter of the General Manager dated 3.8.2001 and requested to consider them for absorption in Group'C' cadre against 25% direct recruitment quota in Trivandrum Division after holding the suitability test and completing the training in terms of the judgment of the Apex Court in the case of V.M.Chandra v. Union of India & others (supra). However, the applicants continued to work as Technical Mates with temporary status. While so, the respondents have issued the Annexure A-4 letter dated 14.8.2007 inviting volunteers for selection to the post of JE/Gr.II/Works in the scale Rs.5000-8000 against 15% Intermediate Apprentices Quota. According to the said letter, employees working on regular basis in skilled grades in scale Rs.5000-8000, Rs.4500-7000, Rs.4000-6000 and Rs.3050-4590 in Works Branch are eligible to be considered for the said post provided they have the educational qualification of ITI/Act Apprenticeship Pass or 10+2 in science stream, 3 years of service in skill grades on regular measure as on 14.8.2007 i.e. the date of issue of Annexure A-4 letter and they have not exceed age of 45 years on that date. In terms of the aforesaid letter, the applicants, have submitted the Annexure A-6, A-7 and A-8 applications on 14.9.2007. When they came to know that they were not being considered and allowed to appear in the selection process, they have approached this Tribunal with the present O.A.
7. The grounds taken by the applicants in support of their claim to appear in the selection process for the post of J.E/Gr.II/Works in terms of the Annexure A 8 OA 630 & 665/07 4 letter dated 14.8.2007 and to absorb them in that category on their selection are the following:
(i) The refusal of the respondents to include them for appearing in the examination is against equality justice and good conscience.
(ii)They satisfy the stipulations contained in the Annexure A-4 and therefore, there is no justifiable ground to exclude them from appearing the examination. By virtue of the Annexure A-5 letter of the Ministry of Railways dated 9.4.1997 they are fully qualified for absorption.
(iii)By the order of this Tribunal dated 28.8.2000 in O.A.635/1997 and connected cases, this Tribunal directed the respondents to absorb the applicants in Group'C' post at the earliest.
(iv)They are eligible and qualified to be considered for absorption in Group'C' post i.e. JE/Gr.II(Works) in terms of Annexure A-9 Railway Board's letter No.E(NG)1/99/PM7/17 dated 28.7.2003.
(v)The Apex Court in the judgment of V.M.Chandra v. Union of India & others (supra) directed the respondents to absorb similarly placed Technical Mates as skilled artisan in Grade-III in appropriate scale.
(vi)Similarly placed persons on the direction of the Madras Bench of this Tribunal in O.A.1218 and 1219 of 1997 dated 24.3.1998 (Annexure A10) have been permitted to appear in similar examination and consequently they were absorbed in the Group'C' post. The relevant parts of the said order reads as under:
These two Pas have been combined together since the issues raised and the reliefs prayed for are identical.
2. The applicants in these OAs are functioning as Technical Mates/Works Assistants in the construction organisation of the Southern Railway. These posts are in Group'C' and are work-
charged. The respondents sought to absorb them against Gr.D posts. This has been challenged by the applicants claiming that they are eligible to be absorbed in Group'C' posts. This litigation has been going on for quite some time and currently the OAs filed by the applicants, viz, OA Nos.134, 466, 476 and 484 of 1997 are under consideration by this Bench of the Tribunal. When these OAs were admitted, interim orders have been passed staying the operation of the orders of the respondents empanelling the applicants in Gr.D posts. Subsequent to the passing of the interim order, the respondents have issued notifications dated 16.9.1997, 17.9.1997 and 20.8.1997 for filling up various posts in Gr.C in the pay scale of Rs.1400-2300 under the scheme of general departmental competitive examination against the direct recruitment quota. In all these notifications, regular staff possessing the 9 OA 630 & 665/07 necessary qualifications are eligible to apply. However, when the applicants submitted their applications, their applications are not entertained on the ground that they have not yet been regularised. At this stage, those OAs have been filed. Interim orders have been passed directing the respondents to admit the applicants for the examination wherever they possess the necessary qualifications and the results were not to be published until further orders of this Tribunal.
3. Though in the applications a number of grounds have been advanced in support of the contention that the applicants have a case to be regulariszed in Gr.C posts, it is not necessary for us to enter into this issue at this stage. Suffice it to note that the impugned notifications dated 16.9.1997, 17.9.1997 and 20.8.1997 merely stipulate that the applicants should be regular staff of the railways. There is no mention that such staff should be only in Gr.C or Gr.D. The only ground taken by the respondents for rejecting the case of the applicants with reference to the impugned notifications is that these applicants are not yet regularised. We are unable lto appreciate the stand of the respondents. Admittedly the applicants were empanelled as Gr.D prior to the impugned notifications and the applicants have filed O.A Nos.134, 466, 476 and 484 of 1997, claiming that they should be regularised in Gr.C. This Tribunal had passed orders staying the absorption of the applicants in Gr.D posts. In these circumstances, to hold that the applicants are not regular staff on the date of the notification, would be incorrect. But for the stay granted by this Tribunal, the applicants would have been regularised at least in Gr.D posts. The applicants have fairly claimed that they may be permitted to take the examination without prejudice to their rights in the cases which they have filed separately. The argument of the respondents that on the date of the notification, the applicants have not been regularised is too technical for acceptance. It is this Tribunal which had stayed the absorption in Gr.D while considering their eligibility for absorption in Gr.C posts. It cannot be denied that the applicants have to ultimately get absorbed either in Gr.C or Gr.D. The rejection of the case for absorption in Gr.C if at all, cannot result in Gr.D absorption being denied from the original date.
In view of the circumstances explained above, the OAs are allowed to the extent indicated below:
The applicants shall be considered for the posts notified in the impugned notifications, subject to their fulfilling other qualifications.
There will be no order as to costs.
(vii)Similar orders have been passed by this Bench in O.A.1619/1997.
7. In the reply statement, the respondents have submitted that the applicants 10 OA 630 & 665/07 do not fulfil the eligibility conditions as prescribed in Annexure A-4 notification dated 14.8.2007. They have pointed out that one of the eligibility conditions for selection to the post of J.E/Gr.II/Works in scale Rs.5000-8000 was that the volunteer considered should have completed 3 years of service in the skilled grade on regular measure as on 14.8.2007. However, admittedly, the applicants are still casual labourers though in the skilled grade and they are yet to be regularised. They have also submitted that the maximum age limit of 45 years prescribed in the Annexure A-4 notification is not being fulfilled by some of the applicants herein. Further, they have submitted that Annexure A-4 notification has been issued for selection to the post of J.E/Gr.II/Works in the scale Rs.50008000 against 15% intermediate apprentice quota and the applicants are not entitled to be appointed against the said quota and they are entitled to be considered against the 25% promotional quota only. They have also taken the objection that the respondents have not challenged the Annexure A-4 notification dated 14.8.2007 and therefore, their prayer to direct the respondents to allow them to appear in the selection process as stated in the said notification has to be rejected. They have also stated that the Railway Board letter dated 9.4.1997 (Annexure A-5) deals with the regularisation of the casual labourers working in Group C scales by 3 different methods and only one such method was. For that purpose All casual labour/substitutes in Group'C' scales whether they are Diploma Holders or have other qualifications, may be given a chance to appear in examinations conducted by RRB or the Railways for posts as per their suitability and qualification without any age bar. According to them, this Tribunal has already considered the aforesaid letter dated 9.4.1997 of the Railway Board in O.A.635/1997 and connected cases (supra) and held that the applicants have to be considered for regularisation in their turn as skilled artisan to the extent of 25% of the posts for direct recruitment after giving .them a chance to appear in the examination conducted by the RRB or the Railways for 11 OA 630 & 665/07 the post as per their suitability and qualification. They have also submitted that the applicants were given chances earlier to appear in many of the examination conducted by the RRB and the Railways but they could not come out successful on their own merit so as to be selected and, therefore, they are still continuing as Group'C' casual labourers.
9. We have heard Shri Sibi J Monippally, counsel for applicants, Shri K.M.Anthru and Ms P.K.Nandini, counsel for respondents. There was already a direction to the respondent-Railways by this Tribunal vide the Annexure A-1 order dated 24.8.2000 in O.A.635/1997 and connected cases filed by the applicants to consider them for absorption in Group'C' grade in terms of the Railway's letter dated 8.7.1993 and 9.4.1997 and the judgment of the Apex Court in V.M.Chandra's case (supra). According to the letter dated 8.7.1993, the Technical Mates were to be absorbed as Skjilled Artisans .Grade.III against the 25% direct recruitment quota. The letter dated 9.4.1997 issued by the Railways is another General Circular detailing the manner in which the casual labourers working in Group'C' scales are to be regularised. One such method was to give them a chance to appear in examinations conducted by RRB or the Railways for posts as per their suitability and qualification without any age bar, whether they are Diploma Holders or have other qualifications. V.M.Chandra's case (supra), being an extra ordinary case the Apex Court straight away given a direction to the respondent-Railways to absorb the appellant therein as Skilled Artisans in Gr.III in appropriate scale. By the letter dated 8.7.1993, the Railways have also specifically decided to absorb the Technical Mates in Group'C' as Skilled Artisans Gr.III. In spite of the aforesaid orders of this Tribunal dated 28.8.2000, the respondent-Railways have not absorbed applicants as Skilled Artisans in Gr.III for the last about 8 years. Still they are continuing only as Casual Labourers with temporary status and with the designation as Technical Mates.
12OA 630 & 665/07 Now the respondents have issued the Annexure A-4 letter inviting volunteers for the selection to the post of Junior Engineer/Gr.II(Works in scale Rs.5000-8000 against 15% Intermediate Apprentice Quota. First of all, in our view, Intermediate Apprentice Quota is a misnomer. The said letter only says that the applicants should have the educational qualification of ITI or pass under the Apprenticeship Act or 10+2 in science stream. It is not that the vacancies are reserved exclusively for employees who belongs to any category known as Apprentices. It is open to all employees working on regular measure in skilled grades in scale Rs.5000-8000, Rs.4500-7000, Rs.4000-6000, Rs.3050-4590 in Works Branch. According to the applicants, they are ITI holders (Draftsman Civil) and thereby fulfil the prescribed educational qualifications. The respondents are not considering them for selection only because they do not have the regular service of 3 years as on 14.8.2007 and they have crossed 45 years of age on that date. Same issue was considered by the Madras Bench of this Tribunal in O.As 1218/1997 and 1219/1997 and the applicants have relied upon the order therein (Annexure A-10). In the said cases, the selection was being held for Group'C' posts against the direct recruitment quota. The applicants therein were also Technical Mates waiting for absorption in Group'C' posts. The objection of the respondents therein was also the same, that is, the applicants were not regular staff. The Tribunal allowed those O.As holding that the objection of the respondents that the applicants were not regularised was too technical to be accepted. Again, this Bench had also considered the very same issue in O.As 1272/1997, 1619/1997, 87/1998 and 145/1998 and the following the aforesaid order of the Madras Bench, by a common order dated 28.8.1998, declared that the applicants therein were eligible to be considered for appointment subject to their fulfilling the requirements other than the condition that they should be regular employees.
13OA 630 & 665/07
10. We respectfully follow the aforesaid orders of this Tribunal dated 24.8.2000 and 28.8.1998 and direct the respondents to allow the applicants to appear in the selection process to the post of Junior Engineers Grade II (works) consequent to the notification dated 14.8.2007 (Annexure A-4) and absorb them in the said category without insisting for the conditions regarding the 3 years service and the age limit. The O.As are allowed accordingly. There shall be no order as to costs.
Dated, the 28th October, 2008.
DR K.S.SUGATHAN GEORGE PARACKEN ADMINISTRATIVE MEMBER JUDICIAL MEMBER trs