Central Administrative Tribunal - Ahmedabad
Roshan V Vaghela vs Railway Board on 10 June, 2025
::1 :: OA No.294/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BECH
Original Application No. 294/2022
Orders reserved on 05.05.2025
Order pronounced on 10.06.2025
CORAM : Hon'ble Shri Jayesh V Bhairavia, Member (J)
Hon'ble Dr. Hukum Singh Meena, Member (A)
Roshan Vishnuprasad Vaghela
Aged: 41 years (Date of Birth: 20.04.1981)
Son of Shri Vishnuprasad Vaghela
Presently serving as App.Telecom Maintainer
(App.TCM) Gr.III, in the Divisional Office (S&T)
Ahmedabad Railway Division, Western Railway Zone, &
Presently residing at House No.2, Vaghela House,
Valmiki Niwas, Airport Road, Hansol,
Post: Sardarnagar, Ahmedabad 382 475.
... Applicant
(By Advocate Mr. M S Rao)
V/s.
1. Union of India
(to be represented through the Special Secretary to the
Govt. of India & the Ex Officio Chairman, Railway Board,
Ministry of Railways, Rail Bhavan, New Delhi 110 001.
2. Western Railway
(to be represented through its General Manager,
W. Rly. Zone, Office of the General Manager,
W. Rly. Hqrs. Office, Church Gate,
Mumbai 400 020.
3. The chief Signal & Telecom Engineer,
Western Railway Zone,
Western Railway, O/o CSTE
Western Railway Headquarters Office,
Churchgate, Mumbai 400 020.
4. The Divisional Railway Manager
Ahmedabad Railway Division,
Western Railway, O/o DRM, ADI,
Near Chamunda Mata Bridge,
Naroda Road, Ahmedabad 380 025.
::2 :: OA No.294/2022
5. Shri Ranjeet Kumar
Divisional Signal & Telecom Engineer (DSTE)
O/o DSTE, Ahmedabad Railway Division,
Western Railway, Signal & Telecom Department,
Near Chamunda Mata Mandir
Opp. GCS Hospital, Post Saijpur Bagha,
Ahmedabad 382 345.
6. The Senior Section Engineer
O/o. SSE (Telecom-I), ADI
Ahmedabad Division, Western Railway
Signal & Telecom Department,
Near Chamunda Mata Mandir,
Opp. GCS Hospital, Post: Saijpur Bagha
Ahmedabad 382 345.
... Respondents
(By Advocate Ms. R R Patel)
ORDER
Per: Hon'ble Shri Jayesh V Bhairavia, Member (J)
1. The applicant has filed the present OA, under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs: -
"Para 8 A. Call upon the respondents herein to place before this Hon'ble Tribunal for its perusal the entire original file / noting file /documents exchanged amongst all the official respondents herein, which can be said to have given rise to the impugned action on the part of the respondents herein in not treating the applicant herein as a regular Telecom Maintainer Gr.III in the Signal & Telecommunication Department;
B. Upon the close scrutiny and perusal of the aforesaid original file/noting file /documents, your Lordships may be graciously further pleased to:-
B-1 hold and declare that the applicant herein is lawfully entitled as of right to be treated as a regular Telecom Maintainer Gr.III in the Signal & Telecommunication Department of Ahmedabad Railway Division, with all consequential benefits flowing therefrom, not only in view of the fact that the applicant herein has successfully completed the 3 year training period in February 2022 including the Initial Course for Apprentice Technician (Tel) Gr.ll held by the Signal & Telecom Training Centre, Sabarmati, but also even in view of the fact that the applicant herein has indisputably secured more than 40% marks in the retention test held on 07.03.2022, as will be observed from the copy of the ::3 :: OA No.294/2022 answer sheet for 07.03.2022 supplied to the applicant herein under the RTI Act, 2005.
B-2 issue appropriate directions commanding the respondents herein more particularly the respondent no.5 herein to forthwith treated as a regular Telecom Maintainer Gr.III in the Signal & Telecommunication Department of Ahmedabad Railway Division, with all consequential benefits flowing therefrom including all the allowances admissible to a regular TCM Gr.ll in S&T plus seniority, arrears of salary, etc. B-3 issue appropriate directions commanding the respondents herein more particularly the respondent no.5 herein to restrain themselves, their officers, representatives, agents, etc., from discontinuing the applicant herein from the services of the railways on the alleged ground of not clearance the retention test by the applicant herein;
C. Grant such other and further relief/s as may be deemed fit and proper in the peculiar facts and circumstances of the present case.
2. The brief facts of the case are as under: -
2.1 Mother of the applicant while working as Safaiwale under ACMS-KKF (Railway Hospital), Ahmedabad died in harness on 02.09.2017. Thereafter, in pursuance of an application submitted by the applicant herein for grant of compassionate appointment, the railway administration in terms of the policy decision stipulated in Railway Board's Master Circular No.16 (Annexure A/2 refer) had considered the case of the applicant and was permitted to take part in the two hour written test for the post of Group 'C' appointments on compassionate grounds on 03.07.2018 (Annexure A/3 refer). The local Committee constituted for the purpose under the aforesaid Master Circular No.16 having been satisfied with the applicant's performance in the said written test followed by his passing of the prescribed medical examination held on 16.07.2018, had recommended the applicant's case for appointment against a Group 'C' post on compassionate grounds in Ahmedabad Railway Division against a vacancy earmarked for direct recruitment quota.::4 :: OA No.294/2022
2.2 In pursuance of the accord of requisite approval from the competent authority in Western Railway Hqrs., Mumbai, the applicant herein came to be issued a formal letter dated 22.01.2019 (Annexure-A/4 refer) came to be issued to the applicant herein whereby he was appointed as APP.TCM Gr.III in Level-2 (Rs.1900/- GP) and posted at ADI to work under SSE(TELE), ADI.
2.3 It is submitted that the post of Apprentice Technician (Signal) Grade-III (App. TCM Gr.III) in the Signal & Telecommunication (S&T) Department of the Ahmedabad Railway Division is a technical post requiring specific qualifications, such as ITI certification. However, for reasons best known to the Railway Administration, the applicant, despite not possessing the requisite technical qualifications, was appointed to the said post under compassionate grounds, instead of being considered for a suitable non-technical post in another department of the Division. Further it is submitted that at the time of the offer in January 2019, the applicant's family was facing acute financial hardship following the demise of the employee (mother of the applicant), and under such compelling circumstances, he had no option but to accept the offer of appointment. Accordingly, the applicant joined the post of App.
TCM Gr.III on 22.01.2019, as recorded in the joining report dated 23.01.2019 (Annexure A/5 refer).
2.4 As per the terms and conditions stipulated in the Railway's offer of appointment dated 22.01.2019, the applicant was required to undergo three years of Apprenticeship Training and was accordingly deputed to the Signal & Telecommunications Training Centre (in short 'STTC'), Sabarmati, Ahmedabad. During the course of this training, the applicant was paid a stipend along with annual increments, as specified in the said appointment letter. While undergoing the 35 weeks of field ::5 :: OA No.294/2022 training in the Signal & Telecommunication (S&T) Department, Ahmedabad Division (ADI), the applicant was subjected to mental harassment by Shri Ranjeet Kumar, Divisional Signal & Telecommunication Engineer (DSTE), who was heading the S&T Department. It appears that Shri Kumar harboured reservations regarding the applicant's appointment on compassionate grounds to a technical post, despite the applicant not possessing the requisite technical qualifications.
In view of the above circumstances, and instead of raising a formal dispute before higher authorities, the applicant, in good faith and with utmost humility, submitted a written representation dated 09.09.2021 (Annexure-A/7) addressed to the Divisional Railway Manager (DRM), Ahmedabad, requesting that he be considered for posting against a suitable non-technical post in any non-technical department of the Division.
2.5 Subsequently, the applicant successfully underwent both Phase-
I and Phase -I training (comprising online as well as on-campus components) at the Signal & Telecommunications Training Centre (STTC), Sabarmati. The Phase-I training was conducted from 04.10.2021 to 04.12.2021, followed by Phase-II training from 20.12.2021 to 19.02.2022. It is submitted that, despite the applicant's non-technical background and lack of prior technical qualifications, he, through sheer hard work, commitment, and a strong willingness to learn, successfully completed both phases of the training.
2.6 The Respondent No.6, at the instance of Respondent No.5, vide an inter-office note dated 03.03.2022 (erroneously typed as 03.02.2022) (Annexure-A/9 refer), addressed to Respondent No.5, informed that the applicant, having completed the ::6 :: OA No.294/2022 requisite initial training course, was being relieved on 03.03.2022 to report to the Divisional Office for the purpose of attending a so-called "retention test".
It is submitted that, in view of the terms and conditions outlined in the applicant's appointment letter dated 22.01.2019 and considering the fact that the applicant had successfully completed the stipulated three-years training period, including the aforementioned Initial Course for App. TCM Gr.III conducted by STTC, Sabarmati, the applicant was unable to comprehend the rationale or legal basis for being subjected to a "retention test" at this stage.
2.7 It is also submitted that applicant appeared in the said retention test on 03.03.2022 which is of three hours written test (comprising of both objective and descriptive) held in the office of the respondent No.5. As per the applicant, the performance of the applicant in the said retention test was very good. However, at the behest of respondent No.5 the said test of the applicant held on 3.3.2022 was not declared and Respondent No.6 orally directed the applicant to appear before the office of Respondent No.5 to undergo a "retention test" once again on 07.03.2022 without issuing any formal written communication. The applicant appeared again on 07.03.2022 in which he has secured 52 marks which came to his notice later on despite the fact that his answersheet was partly evaluated by the authorities.
Thereafter, on 11.03.2022, the applicant received a communication dated 11.03.2022 (Annexure-A/10) from Respondent No.6 (issued at the behest of Respondent No.5), informing him that a retention test was scheduled to be conducted on 14.03.2022 at the Divisional Office, Ahmedabad.
::7 :: OA No.294/20222.8 On the very next day, i.e., 12.03.2022, the applicant was relieved by Respondent No.6 vide communication dated 12.03.2022 (Annexure-A/11 refer), addressed to Respondent No.5. It is submitted that the applicant was reluctant to appear for the so-called retention test for the third time, particularly in the absence of any justification or explanation regarding the cancellation of earlier retention test in which the applicant had appeared on the scheduled dates, i.e., 03.03.2022 and 07.03.2022 at the office of Respondent No.5. In these circumstances, and due to the lack of transparency and procedural fairness, the applicant abstained from attending the retention test scheduled for 14.03.2022.
2.9 Subsequently, on 08.04.2022, Respondent No.6, in purported compliance with the advice issued by Respondent No.5 vide communication dated 07.04.2022, informed Respondent No.5 through an inter-office note of the same date (Annexure-A/12 refer) that the applicant had been relieved on 07.04.2022 to appear for the retention test scheduled to be held on 08.04.2022 at the Divisional Office, Ahmedabad. In response, the applicant submitted a formal representation dated 08.04.2022 (Annexure- A/13) addressed to Respondent No.5, wherein he respectfully requested that he be treated as a regular Technician Grade-III based on his performance in the earlier retention tests purportedly held on 03.03.2022 and 07.03.2022. However, as no decision was forthcoming from Respondent No.5 on the said representation, the applicant was left with no alternative but to escalate the matter. Accordingly, he submitted another representation dated 13.04.2022 (Annexure-A/14) to the Divisional Railway Manager (DRM), Ahmedabad Division, requesting intervention in light of the fact that his appointment was made on compassionate grounds.
::8 :: OA No.294/20222.10 For the first time, vide written communication dated 28.04.2022 (Annexure-A/15 refer), Respondent No.5 informed the applicant of the reasons for requiring him to reappear in the retention tests. It was alleged that: (i) during the test conducted on 03.03.2022, the applicant had committed 'cheating' and had made excessive overwriting, thereby necessitating a re- examination; and (ii) during the test on 07.03.2022, the applicant was purportedly caught using a mobile phone, and upon oral examination, was unable to answer the questions, which again led to the direction for a re-test.
In the same communication, Respondent No.5 further informed the applicant that another retention test was scheduled to be held on 02.05.2022 and that, in the event of non- appearance, the applicant would be treated as having failed, and necessary action would follow accordingly.
Immediately upon receipt of the said communication, the applicant had submitted a formal reply dated 29.04.2022 (Annexure-A/16 refer) to Respondent No.5, wherein he categorically denied the allegations made against him. He further clarified that he did not admit to any act of cheating or misconduct, and in light of the repeated and arbitrary insistence on re-appearing in retention tests, he expressed his unwillingness to attend the test scheduled on 02.05.2022.
2.11 On 25.05.2022, Respondent No.5 once again orally instructed the applicant to appear for a retention test in his office on the same day. In response to this oral instruction, the applicant submitted a formal written representation dated 25.05.2022 (Annexure-A/17 refer) to Respondent No.5, wherein he respectfully called upon the said authority to forthwith declare the results of the earlier retention tests held on 03.03.2022 and 07.03.2022. Surprisingly, instead of declaring the results of the ::9 :: OA No.294/2022 aforementioned tests, Respondent No.5, on the very same day, issued another written communication dated 25.05.2022 (Annexure-A/18 refer), merely reiterating the allegations and assertions previously made in his earlier communication dated 28.04.2022. He further informed the applicant that yet another retention test was now scheduled to be held on 30.05.2022.
2.12 On 30.05.2022, the applicant, not being inclined to appear in yet another retention test in the absence of any formal declaration of the results of the earlier tests held on 03.03.2022 and 07.03.2022, submitted a representation dated 30.05.2022 (Annexure-A/19 refer) through proper channel to Respondent No.5. In the said representation, the applicant once again reiterated his request for the declaration of the results of the aforementioned two retention tests.
In this background, Respondent No.6, vide his communication dated 30.05.2022 (Annexure-A/20) addressed to Respondent No.5, informed him about the applicant's refusal to appear in the test scheduled for 30.05.2022 and further stated that the applicant had been relieved from the office of Respondent No.6 to report to the Divisional Office. Additionally, in the said communication, Respondent No.6 sought advice from Respondent No.5 regarding the matter of drawal and disbursement of the applicant's payment.
2.13 In view of the above, the applicant invoked his right under the Right to Information Act, 2005 and submitted a formal RTI application dated 08.06.2022 (Annexure-A/21 refer) to the Central Public Information Officer (CPIO), Ahmedabad Railway Divisional Office, seeking copies of the relevant information and documents pertaining to the retention tests held on 03.03.2022 and 07.03.2022. In response thereto, the applicant received a reply dated 27.06.2022 (Annexure-A/22 ::10 :: OA No.294/2022 refer) from the said office, wherein the requisite information and documents relating to the aforementioned retention tests were supplied.
2.14 The applicant submitted that upon close and careful scrutiny of the documents received under the RTI Act, it becomes evidently clear that:
(i) The applicant's answer sheet for the retention test held on
03.03.2022 was evaluated only partially by the competent authority, while the remaining answers were not evaluated at all, for reasons best known to the Railway Administration;
(ii) Similarly, the applicant's answer sheet for the retention test held on 07.03.2022 was also evaluated only in part, with several answers left unevaluated, again for reasons best known to the Railway Administration. However, upon perusal of the marks awarded for the answers that were evaluated, it is evident that the applicant has secured a total of 52 marks. It is pertinent to note that the applicant belongs to the Scheduled Caste (SC) category, and as per the relevant Railway Rules, the minimum qualifying marks for candidates belonging to reserved categories in such retention tests is 40 marks. In other words, the applicant has clearly secured marks above the prescribed qualifying threshold in the retention test held on 07.03.2022.
That being so, the Railway Administration was under a bounden duty to treat the applicant as a regular Trackman (TCM) Grade-II, with all consequential benefits flowing therefrom, including continuity of service, seniority, and pay fixation, in accordance with the applicable rules and ::11 :: OA No.294/2022 instructions. However, despite the applicant fulfilling the qualifying criteria, the aforesaid benefits are being unjustifiably denied, allegedly due to the undue intervention of Respondent No.5, who is believed to be harbouring a prejudicial attitude against employees belonging to the Scheduled Caste (SC) category, more particularly the applicant.
It is further submitted that the applicant was appointed as an Apprentice TCM Grade-II on compassionate grounds by the competent authority, notwithstanding his non-technical background, as per the extant rules and policy provisions governing such appointments.
3. Per contra, respondents have filed their reply and denied the contentions raised by the applicant and submitted that:
3.1 After completion of training from STTC/SBI, a retention test is to be conducted by the Division before final appointment (Annexure R/1 refer) and as the applicant had not passed the retention test, he could not be regularized. Thereafter, on 03.03.2022 during the retention test, applicant was found committing cheating and had overwritten in examination paper which was witnessed by the exam invigilator and he had informed the same to DSTE/ADI. Consequently, re-examination was scheduled on 07.03.2022. However, it is further submitted that failure in the test will lead to repetition of training (Annexure-R/2 refer), the officer decided to ask him about his weak areas so that appropriate training may be imparted before re-test.
3.2 Thereafter, DSTE/ADI asked some questions from the conducted Retention Test and found that he could not give answers of the questions he had just written. Then, DSTE/ADI concluded and mentioned with remarks: "Cheated, also he could ::12 :: OA No.294/2022 not answer any question in my office. Conduct re-examination after 2-days."
Applicant was informed by SSE/Tele/I/ADI to appear in Retention Test on 14.03.2022 and he was relieved on 12.03.2022 Afternoon as next day i.e. 13.03.2022 was Sunday. On 14.03.2022, applicant informed the office that, he had injury in his right hand from 08.03.2022 and he could not appear for the written test (Annexure-R/3 refer). Applicant also reported sick on the same day i.e. 14.03.2022. Thus, the claim of the applicant that, he willingly abstained from attending the "retention test" scheduled on 14/03/2022 is false.
3.3 It is further submitted that the applicant was once again directed to appear for the retention test scheduled on 08.04.2022, and accordingly, he was relieved on 07.04.2022 to enable his appearance for the said test. The applicant did report for the test; however, instead of attempting the examination, he submitted a written application requesting that his appointment be considered on the basis of the retention tests already conducted earlier. He further expressed his inability to participate in the test on account of ongoing personal and familial difficulties (Annexure-R/4 refer).
3.4 It is submitted that the applicant did not appear for the retention tests scheduled on 14.03.2022 and 08.04.2022, citing ongoing family issues as the reason for his non-appearance, which he duly communicated to the administration. In view of the same, the applicant was afforded another opportunity to appear for a re-test scheduled on 02.05.2022, the intimation of which was communicated to him on 28.04.2022. However, on the scheduled date of examination, the applicant once again expressed his unwillingness to appear in the test. He was thereupon counseled by the Assistant Personnel Officer (APO), ADI, and following such counseling, the applicant consented to ::13 :: OA No.294/2022 appear for the retention test scheduled on 20.05.2022. (Annexure-R/5 refer).
3.5 Subsequently, the applicant requested that the test be rescheduled to 25.05.2022 (Annexure-R/6 refers). However, even on the rescheduled date, the applicant refused to appear for the test. In view of this, the Divisional Signal and Telecommunication Engineer (DSTE), ADI, extended yet another opportunity, scheduling the test for 30.05.2022. It is pertinent to note that this was the sixth occasion on which the retention test was rescheduled, following the incident of alleged cheating by the applicant during the test held on 07.03.2022. Despite this leniency, the applicant again declined to appear for the test on 30.05.2022, reiterating his request to be appointed based on the tests conducted on 03.03.2022 and 07.03.2022. However, as the answer sheets for those tests had already been cancelled due to the incident of cheating, and given the applicant's continued unwillingness to appear in the test despite six opportunities, he was ultimately relieved from the department and directed to report to the Personnel Department of the Divisional Office for further instructions.
3.6 It is also submitted that the applicant's contention that the passing marks for the retention test is 40% is factually incorrect. As per the relevant Railway Board guidelines, the prescribed passing percentage for safety category examinations is 60%, and no relaxation is provided for any category of candidates, including those belonging to Scheduled Castes (Annexure-R/7 refer).
Further, the stipend of the applicant was initially released by the Personnel Department. However, due to non-availability of the absentee statement, no stipend has been paid to the applicant from September 2022 till date.
::14 :: OA No.294/2022Additionally, as per directions issued by the Divisional Railway Manager (DRM), ADI, it was decided that a fresh retention test would be conducted by another competent authority, independent of DSTE/ADI. Accordingly, the applicant was called to appear for the test scheduled on 30.08.2022. Despite this, the applicant again refused to appear in the test, thereby violating the clear instructions issued by the Head of the Unit (Annexure-R/8 refer).
The allegations levelled against DSTE/ADI by the applicant are therefore baseless and devoid of merit, particularly in view of the fact that the applicant declined to appear for the test even when conducted by a different competent authority. This conduct clearly indicates a mala fide intention on the part of the applicant to avoid the due process.
Lastly, it is submitted that the Original Application (OA) is devoid of merit and is liable to be dismissed.
4. Applicant has filed rejoinder besides denying the contents of the reply reiterating the submissions made in the OA.
5. Mr. M.S. Rao, learned counsel for the applicant mainly argued that:
5.1 The applicant was given appointment on compassionate grounds as Apprentice Telecom Maintainer Grade-II in the Signal & Telecommunication Department, Ahmedabad Railway Division. It was a conscious decision of the Railway Administration to post him in this technical cadre, despite full knowledge that the applicant does not hold any technical qualifications such as an ITI, nor did he study Science subjects in HSC or HSSC. It was well within the administrative discretion of the authorities to post the applicant in a non-
technical department such as Commercial, Operating, or Personnel.
::15 :: OA No.294/2022Significantly, during the 3-year training period, when the applicant was facing difficulty in understanding the technicality of the said technical post, the applicant had submitted a representation dated 09.09.2021 (Annexure A/7 refer), requesting foe transfer/posting on a non-technical post and had also stated that after the death of his mother, he is facing family problems and he is the only responsible person to look after his ailing father and other members. However, this request was neither considered nor responded to despite the fact that the same was forwarded to DRM (E) ADI for needful action in the matter.
Notwithstanding the above facts, the applicant successfully completed the prescribed 3 year training, including the Initial Course for Apprentice Technician (Tele) Grade- III conducted at STTC, Sabarmati, in February 2022.
Despite successful completion, the applicant was not regularized as Telecom Maintainer Grade-II. Instead, on the specious ground of non-clearance of a so-called "retention test", he was relieved on 30.05.2022 and placed at the disposal of the Divisional S&T office. He was only paid a stipend for June 2022 thereafter. This action, particularly by respondent no.5, is arbitrary, whimsical, discriminatory, and violative of the applicant's fundamental and statutory rights. It is also relevant to note that the offer of appointment was against one of the 5% permanent vacancies earmarked for direct recruitment under compassionate grounds.
5.2 The applicant contends that upon completing the training, being compassionate appointee, he ought to have been regularized as per service conditions and was not subjected to clear any separate "retention test". The test conducted at STTC, ::16 :: OA No.294/2022 Sabarmati, was in fact a 'retention test', which the applicant has duly passed.
5.3 Without prejudice to the above, assuming arguendo that a separate retention test was required:
The applicant appeared in the said test held on 07.03.2022 and was awarded 52 marks, though his entire answer sheet was not evaluated. As per applicable norms for SC category candidates, the relaxed qualifying mark is 40, which the applicant clearly crossed even in the partial evaluation.
Thus, the applicant qualifies the test as per extant policy.
However, due to mala fide intention and bias harbored by respondent no.5, possibly due to the applicant's posting in a technical cadre without a technical qualification, the applicant is still being treated as an Apprentice TCM Gr.III, and not regularized.
Further, the communications issued by respondent no.5 are based on baseless, imaginary allegations. At no point has the Railway Administration formally communicated that the applicant failed the retention tests held on 03.03.2022 and 07.03.2022. If cheating was suspected, standard procedure mandates confiscation and sealing of answer sheets, which was not followed. Notably, respondent no.5 himself was the invigilator on both test dates and failed to take any such procedural step.
5.4 The applicant comes from a financially weak background and has become over-aged for any alternate employment. His appointment in the Railways was secured after the death of his mother, who served as a Safaiwala in ACMS, KKE, Ahmedabad. Any action for discharging him from service for not having passed a supposed "retention test" would amount to ::17 :: OA No.294/2022 an unconstitutional deprivation of his right to livelihood under Article 21 of the Constitution of India, adversely affecting both him and his dependent family members.
5.5 The applicant is willing to accept a posting in any non-technical Group-C post within the Ahmedabad Railway Division. His earlier written representation dated 09.09.2021 (Annexure A/7 refer) seeking such alternative posting remains unanswered. The learned counsel therefore, argued that such just and reasonable request ought to have been considered by the respondents.
5.6 Lastly, learned counsel for the applicant emphasized that applicant being given appointment on compassionate ground in view of demise of his mother working as a Safaiwale and the applicant has already faced trauma of acquiring the knowhow of the technical post, in above given circumstances, either the applicant be regularize TCM Gr.II or in an alternative, consider him for posting in a suitable non-technical post in any department under Ahmedabad Division, on compassionate grounds, preserving his service continuity.
6. During the course of hearing, learned counsel for the respondents has reiterated the submissions as stated on behalf of the respondents in the reply, as noted above.
7. We have heard learned counsels for the parties and perused the material placed on record.
8. There is no dispute that applicant is a compassionate appointee. We reiterate that the compassionate appointments are made as an exception to general recruitment rules to alleviate the immediate hardship of the family of a deceased government employee. Once such an appointment is made, the employer cannot treat it arbitrarily or punitively.
::18 :: OA No.294/2022The Hon'ble Supreme Court in the case of Umesh Kumar Nagpal v. State of Haryana (1994) 4 SCC 138, held that "The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis."
Further in the case of Director of Education (Secondary) v. Pushpendra Kumar (1998) 5 SCC 192, the Hon'ble Supreme Court held that 'once a person is found eligible and is appointed on compassionate grounds, he must be treated fairly and not discriminated against'.
Further in the case of Balbir Kaur v. Steel Authority of India Ltd. (2000) 6 SCC 493, the Hon'ble Supreme Court held that 'the benefit of compassionate appointment should be meaningful and not illusory'.
8.1 We find that it is not in dispute that mother of the applicant, who was working as Safaiwale under the ACMS-KKF (Railway Hospital) Ahmedabad, died in harness on 02.09.2017. Therefore, the applicant who is son of deceased Railway employee and studied upto 1st year of Bachelor of Arts, has been considered for grant of appointment of compassionate grounds in light of provisions contained in Railway Board Master Circular No.16 by the respondents on being satisfied with the poor financial conditions of the deceased Railway servant.
8.2 Further Local Committee was constituted under Master Circular 16, who having being satisfied with the applicant's performance in the two hours written test for the post of Group 'C' held on 03.07.2017 followed by his passing of prescribed medical examination held on 16.07.2018, his name/case was recommended for appointment against Group 'C' post on compassionate ground in Ahmedabad Railway Division against the vacancy earmarked for direct recruitment quota.
::19 :: OA No.294/2022Accordingly, vide letter dated 22.01.2019, the competent authority in Western Railway (HQ) Mumbai issued a formal letter to the applicant whereby he was appointed on compassionate ground as an Apprentice App. TCM Grade-III in level-II in (GP Rs.1900/-) and posted at Ahmedabad to work under SSE (Tele) ADI.
8.3 It is not in dispute that the aforesaid post of App. TCM comes under Signal and Telecom Wing of Railway Division and is a technical post requiring the candidate to pass the requisite qualification, such as ITI pass. However, for the reasons best known to Railway Administration instead of allocating the employment on compassionate ground to a non-technical post in other department of Ahmedabad Railway Division since he possess educational of 12th pass and 1st year of BA which undisputedly not a technical required for the post in question, such as ITI.
Since the applicant admittedly has no choice, except to join his service as App. TCM due to his extreme poor financial condition, accordingly joined the Railway service on 22.01.2019.
8.4 Further, it is also not in dispute that as per the terms and conditions for appointment to the post of Apprentice in Signal and Telecom Division, one has to undergo 3 years Apprenticeship Training. Accordingly, the applicant herein was sent for the said requisite training at Signal and Telecommunications Training Centre (referred as 'STTC') at Sabarmati at Ahmedabad. The three years training at STTC, Sabarmati is called 'initial Course for Apprentice Technician (Tele) Grade III', comprises of various training phase wise in respect to course prescribed by the Railway Board's revised training modules stipulated in RBE No.42 of 2020 dated 06.06.2020 (Annexure A/6 refer).
::20 :: OA No.294/2022At this stage, it is required to mention that since the applicant is a non-technical person, he made a request on 09.09.2021 (Annexure A/7 refer) to consider his posting on a non-technical post in any non technical department but the same remained unanswered and he underwent to requisite training at STTC, Sabarmati, Ahmedabad. During the said training, he was paid stipend with annual increment in terms of the appointment letter.
8.5 It is noticed that despite the applicant herein being a non-
technical person was able to successfully complete the said requisite training at SSTC, Sabarmati. On his successful passing of the written test held at SSTC, he was issued a certificate bearing No.STC/TELE/21/22/S&T-312 dated 19.02.2022 by the Signal and Telecom Training Centre, Sabarmati (Annexure A/8 refer).
Therefore, the applicant had a legitimate expectation that the Railway Administration having regard to the aforesaid certificate issued by the SSTC, Sabarmati ought to have begun treating the applicant as a regular TCM Grade-II and paying to the applicant his regular pay with all admissible allowances as is being done in the case of other directly recruited candidates, who have successfully completed the training at SSTC, Sabarmati.
9. On successfully completing the training at STTC, Sabarmati, as noted herein above, the applicant has been called for 'retention test' at the behest of respondent No.5 and No.6. So far as the 'retention test' is concerned, the respondents by referring to Clauses 3 and 3.1 of the Master Circular No.29 would submit that at the end of initial training of directly recruitment non-gazetted staff through the Railway Recruitment Board or office in the case of the applicant, must necessarily be passed the qualifying written test for retention in the service. The said written test is called as a 'retention test'. According ::21 :: OA No.294/2022 to the respondents, the applicant though he had completed his Phase-I and Phase-II training course but could not pass the retention test in spite of various opportunities granted to the applicant herein. Therefore, office of SSE (Tele) ADI is not in position to entrust any work to him in the said technical department.
10. At this stage, it is required to mention that if the applicant was an appointee for Apprentice Telecom Maintainer Grade-II,of the said post by way of direct recruitment process and on completion of requisite training, it is incumbent upon such candidate(s) to pass the retention test as per the conditions stipulated in Clause 3 of Master Circular No.29 issued by the Railway Board.
10.1 However, keeping in view the fact that the applicant was an appointee on compassionate grounds and the respondents had the full knowledge that applicant does not possess the requisite qualifications for the post in question, they gave compassionate appointment to him to the post of Telecom Maintainer Grade-II, we observe that admittedly the applicant despite not having the requisite qualification successfully cleared the 3 year training course as an Apprentice Telecom Maintainer Grade-II and admittedly, the result of the retention test given by the applicant on 03.03.2022 in the office of respondent No.5 had not been declared by the respondents to the reasons best known to them.
10.2 On perusal of the records with regard to applicant's answer sheet of the retention test held on 07.03.2022 in the office of the respondent no.5, we find that on evaluation of the answersheet of the applicant partially, respective marks were given to the said answers, however, for the reasons best known to the Railway Administration why the answersheet was evaluated when there was an allegation of cheating against the applicant. As noted herein above, according to the respondents, since the applicant was found committing cheating in the said retention ::22 :: OA No.294/2022 test dated 07.03.2022, he was directed to appear again for retention test.
It is required to mention that the respondents had not submitted any satisfactory explanation with regard to grievance raised by the applicant as to how and why the applicant's answer sheet for the retention held on 3.3.2022 as well as 7.3.2022 was subjected to evaluation by the evaluator concerned when it is case of the Railway Administration that the applicant had indulged in cheating.
10.3 It is not in dispute that in respect to the retention test held on 07.03.2022 the copies of partly evaluated answer sheet was supplied to the applicant under RTI which is placed on record and we find therein that answers up to question no.1 to 4(b) have been evaluated and marks were also awarded in the said answer sheet but below the answer No.4(f) remarks have been made by the respondent no.5 to the effect that "cheated, also he could not answer any question in his office. Conduct re-exam after two days.' In this regard it is apt to mention that on the date of hearing of this case on 5.5.2025, learned counsel for the respondents on the instructions of concerned SSE, who is present in the Court Room and by referring the original case file, would submit that the said SSE was present at the time said retention test held on 7.3.2022 and within one and a half hour starting of the written test, the applicant was found with mobile and the same was collected from him and along with it the answer sheet of the applicant was submitted to the Sr. DSTE/ADI. However, no explanation whatsoever has been offered on behalf of the respondents, why the said answer sheet of the applicant was evaluated in respect to retention test held on 07.03.2022 when there is allegation that the applicant indulged in cheating.
::23 :: OA No.294/202210.4 At this stage, it is apt to mention that this Tribunal is not oblivious of the fact that since in the Railway department safety of public at large that too in Signal and Telecom Department is paramount and no compromise to the standard prescribed in the Railways, including recruitment and appointment.
11. Be as it may, we do not intend to delve in this at this stage. Reason is obvious that if any cheating had been committed by the applicant while undergoing the said retention tests, due process ought to have been followed by the respondents, i.e., enquiry, show cause, record of proceedings in consonance with the principle of natural justice (audi alteram partem), which admittedly the respondents have not chosen. The Hon'ble Supreme Court in the case of D.K. Yadav v. J.M.A. Industries Ltd. (1993) 3 SCC 259, an employee cannot be penalized without being given an opportunity to be heard.
11.1 Article 21 of the Constitution guarantees the right to life and personal liberty, which includes the right to livelihood. Arbitrary denial of regularization after years of service violates this constitutional guarantee and that too in the case of a person who is appointed on compassionate ground.
11.2 In the case of Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545, the Hon'ble Supreme Court held that the right to livelihood is a component of the right to life. The applicant's who being a compassionate appointee, his livelihood and career progression are at stake after having completed 3 years of service. Denying him regularization without alternate placement violates Article 21 of the Constitution of India.
11.3 At this stage, we observe that the administration has discretion under the Indian Railway Establishment Manual (IREM) and Railway Board Circulars to transfer or redeploy employees, especially those appointed under compassionate grounds or ::24 :: OA No.294/2022 medically decategorized employees, into suitable posts. As per the Railway Board Letter No. E(NG)II/2002/RC-1/Genl/91 dated 18.01.2002, which provides scope for posting compassionate appointees to suitable posts based on qualification and aptitude. There is no dispute that applicant at the very initial stage requested the respondents to appoint him on a non-technical post vide his representation dated 09.09.2021 (Annexure A/7) admittedly forwarded to the competent authority for decision but the same was not replied and in such circumstances, the applicant had no option except to undergo 3 years training course relating to Apprentice Telecom Maintainer Gr.II
12. We are of the considered view that candidate appointed under compassionate grounds in a technical post without relevant qualification sought transfer to a non-technical post, then non consideration of such just request needs to be considered by the Railway Authority in true letter and spirit of object of compassionate appointment. As such appointing a non-technical candidate to a technical post, allowing him to complete 3 years of training, Conducting a questionable "retention test" with incomplete evaluation, alleging cheating without due process, and refusing to post him even in a non-technical post, is in violation of Articles 14, 16, and 21 of the Constitution of India, as well as principles of administrative fairness and reasonableness.
In above circumstances, this Tribunal is left with no option except to direct regularization or redeployment, especially in view of compassionate appointment policy and social justice considerations in the Railway service.
13. In view of above, the present OA is partly allowed with the following directions:-
::25 :: OA No.294/2022(i) The matter has been remitted to the respondents to consider the case of the applicant in the light of the observations made herein above and place him to the suitable post on regular basis as he is declared duly eligible for appointment on compassionate appointment in the year 2019 and grant him all consequential benefits in accordance with law and rules on the subject;
(ii) The respondents are directed to comply with the aforesaid directions as expeditiously as possible and preferably within six weeks from the date of receipt of a certified copy of this order.
14. There shall be no order as to costs.
15. MA(s), if any, shall stand disposed of.
(Hukum Singh Meena) (Jayesh V Bhairavia)
Member (A) Member(J)
PA