Central Administrative Tribunal - Mumbai
Melchizedec Balasingh vs Union Of India on 29 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL,
BOMBAY BENCH, MUMBAI.
O.A.Nos.471/2006, 512/2006 & 514/2006.
Dated this Monday the 29th day of November, 2010.
Coram : Hon'ble Shri Jog Singh, Member (J)
Hon'ble Shri Sudhakar Mishra, Member (A).
Melchizedec Balasingh,
Working as Technician Grade-III,
SSE(C&W) Wadi Bunder,
Quality System Cell,
Central Railway,
Mumbai 400 010.
Residing at:
C/202, Riddhi Park,
Thakurli (East),
Thane 421 201. .. Applicant in
OA.471/2006.
Akbar N. Sayyed,
Working as Technician Grade-III,
SSE/C&W/LTT, Central Railway,
Lokmanya Tilak Terminus,
Mumbai 400 089.
Residing at:-
R.No.4, Garib Nawaz Chawl,
Krishna Nagar, Patri Pool,
Kalyan (E),
Mumbai 421 306. .. Applicant in
OA.512/2006.
Vinod R. Prasad,
Working as Fitter Grade III
under SSE(C&W),
Central Railway,
CSTM, Mumbai-400 001.
Residing at:-
324, Shivesh Apartment,
Pandurang Nagar,
Chinchpada Road,
Kalyan (East), Thane.
Pin 421 806. .. Applicant in
OA.514/2006.
( By Advocate Shri G.S. Walia ).
Versus
1. Union of India, through
General Manager,
Central Railway,
Headquarters Office,
CST Mumbai,
Mumbai 400 001.
2. Divisional Railway Manager,
Mumbai Division,
Central Railway,
CST Mumbai.
Mumbai 400 001. .. Respondents.
in all OAs.
( By Advocates Shri V.S. Masurkar
and Smt.H.P. Shah ).
O R D E R
Per : Shri Sudhakar Mishra, Member (A).
The applicants before us in these 3 OAs have a common grievance against the same set of respondents. The parties have been represented by the same learned counsels. Under the circumstances, the OAs were heard together for the sake of convenience and are presently being disposed of through this common order.
1.1 The applicants are working as Technician Grade III under the quality system cell of the Central Railway at Mumbai. They mainly seek the following relief:-
8(a) The Hon'ble Tribunal may be pleased to call for the records and proceedings which led to the issuance of the impugned letter dated 25.08.2005 and after considering its legality, validity and constitutionality quash and set aside the same.
(b) This Hon'ble Tribunal will be pleased to hold and declared that Railway circular dated 07.04.1997 is unconstitutional and is not applicable in case of Applicant.
(c) This Hon'ble Tribunal will be pleased order and direct the respondents to declare the results of the Applicant and if he is passed, sent them for the requiring training and promote them as Junior Engineer Grade-II on successful completion of training with all consequential benefits.
2. The short facts of the cases are that the applicants were initially appointed on compassionate ground as Trainee/Apprentice Artisan Fitter. They were Matriculates. On successful completion of training period of 3 years as applicable to Matriculates, they were appointed as Fitter Grade III. Although the pay scale of Fitter Grade III is Rs.3050-4590, during training the applicants were paid stipend in the scale of Rs.2820-70-2960. The relevant dates in respect of each applicant depicted in the following table:-
_________________________________________________ Applicant Date of appt. as Date of appt.
Trade Apprentice as Fitter G.II _________________________________________________ O.A.471/06 23.11.2000 05.12.2003 O.A.512/06 10.01.2000 18.02.2003 O.A.514/06 18.08.2000 27.08.2003 _________________________________________________
2.1 On 31.3.2005 the respondents issued a notification inviting applications from eligible staff for selection and empanelment for promotion to the post of Junior Engineer Gr.II, for filling up vacancies against the 25% rankers' quota. The vacancies allocable to rankers quota were 8 in General category, 3 in SC category and 2 in the ST category; thus altogether numbering 13, as on 01.03.2005. The prospective candidates (employees) were to satisfy the following conditions:-
(i) 3 years non-fortuitous service, in skilled artisan grade in Carriage & Wagon Department,
(ii) ITI/ACT Apprenticeship pass or 10+2 in Science stream,
(iii) Below 45 years of age.
The eligible candidates had to go through a process of selection, which included a written test. The eventually selected/empanelled candidates were to undergo training of 18 months, on successful completion of which they were to appear at a final written test. Only those qualifying in that final test were to be given regular posting.
2.2 In response to that notification all the 3 applicants herein applied. The respondents notified a provisional eligibility list on 28.6.2005, in which the names of the applicants appeared against sl.no.41,42 and 20 respectively. The written test was conducted on 25.7.2005 in which the applicants had appeared. The result of the written test was notified on 25.8.2005, as per which only 6 of the aspirants had qualified in the written test. None of the applicants before us was among the successful candidates. Aggrieved by their non selection the applicants have filed these OAs.
3. The case of the applicants is that they have been illegally declared ineligible for being considered for promotion, as in counting the required 3 years of service period the time spent by them on training has not been counted. Apparently that decision is based on Railway Board's circular dated 07.04.1997, as per which the 3 years training given to Matriculates recruited as skilled artisans is not be counted towards qualifying service of 3 years in skilled grade, thereby making them eligible for being considered against the 25% rankers' quota. The applicants challenge the legality and constitutionality of the said letter dated 07.4.1997.
3.1 The learned counsel for the applicants has submitted that as per circular letter dated 25.4.1981 of the Railway Board the period of training would count as qualifying service for the purpose of appearing in departmental examination. That decision was in fact the outcome of deliberations of the committee of National Council as circulated under DOP&T's OM. Dated 04.9.1980. The respondents having accepted in principle that the training period would count as service for the purpose of writing departmental examinations, artificial discrimination could not be made against one category of applicants of the same stream just because they were Matriculates. Therefore, the Railway Board's directive as per its circular letter dated 07.4.1997 is violative of Articles 14 and 16 of the Constitution of India and is otherwise violative of the policy decision as communicated through the aforesaid letter dated 25.4.1981 and is unconstitutional and illegal.
3.2 It is further submitted that as per the provisions of Paragraphs 2 and 5 of the Indian Railway Establishment Manual (in short IREM), the prescribed period of service is to be reckoned as on the date of actual promotion. Since the stage of actual promotion was not attained, it was premature on the part of the respondents to have outright rejected the claim of the applicants for promotion as JE Grade II. Since all the applicants had actually completed 3 years of service including the period spent on training, they were entitled to be empanelled for the post of JE Gr.II.
3.3 On the same date i.e. on 25.8.2005 the respondents issued another notification pertaining, inter alia, to the applicants herein, in which reference was made to Paragraph 5 of the above mentioned letter dated 28.6.2005 (notifying provisional list of candidates eligible to appear at the written test). For ready reference the said paragraph 5 is reproduced hereunder:-
The list of eligible employees at Annexure A is provisional. If, for any reason they are found ineligible for the above selection their candidature will be cancelled. Also the candidates who have completed 3 years service counting training period are permitted to appear for the written test provisionally, subject to confirmation from HQ's Office. Apparently on receipt of clarification in the matter it was declared that the applicants were not eligible for being considered by counting the periods spent by them on training.
4. On behalf of the respondents a preliminary ground has been taken challenging the maintainability of the O.A. It has been submitted that without impleading the Railway Board as party respondent challenge to the validity and legality of its letter dated 07.4.1997 is not maintainable for non-joinder of necessary party.
4.1 The second preliminary objection is that without impleading the successful candidates as per the panel dated 25.8.2005, the O.A. is not maintainable in law due to non-joinder of the necessary parties as the applicant is challenging his non-selection and consequent non-promotion to the post of JE-II.
4.2 As to the merits proper, it has been submitted that the prescribed eligibility conditions required that the applicants should have completed 3 years non-fortuitous service as skilled artisan in the Carriage & Wagon Department. Being a selection post, in accordance with Paragraph 215(a) of IREM Vol.I the post of JE-II is to be filled in by positive act of selection from among staff eligible for selection. The applicants not having put in 3 years of non-fortuitous service to their credit, they were not eligible to be empanelled. Being Matriculate the applicants had to undergo training for 3 years before being absorbed and regularized as Fitter Gr.III, that too only after successfully passing the requisite trade test. The original appointment of the applicants was as Trainee Technician and not as Trade Apprentice. Under the circumstances it is only with effect from the dates that they were actually absorbed on functional basis that actual duration of their service commenced.
4.3 Referring to the provisions of Paragraph 159(3) of IREM Vol.I the respondents have submitted that candidates having Matriculation qualification who are directly recruited as skilled artisan Grade III, they have to undergo training period of 3 years. As against that much lesser training period of six months or no requirement of training is mandated in cases of other categories of aspirants. The training given to Matriculates, unlike in other cases, is not a case of induction/orientation training. It is more of an academical and technical training. Only after successful completion of training the candidate would be absorbed and thereafter the period of probation would start. That is why, in cases of Matriculates, the training period of 3 years is not counted as service as artisan, unlike in the other cases. Under the circumstances, there is no artificial discrimination against the applicants. It is just a method of ensuring that persons of comparable merit and experience are selected for the same post. The respondents have submitted that the O.A. is devoid of merit and hence deserves to be dismissed.
5. We have perused the materials on record and have carefully considered the submissions made by the learned counsel for the parties. The applicants' trump card is the Railway Board's letter dated 25.4.1981 which is reproduced hereunder:-
An extract of the Report (interim) of the Committee of the National Council (8th/9th November 1979) as circulated under the Department of Personnel O.M.No.3/10/80/JCA dated 4.9.80 is reproduced below for necessary action so far as counting the period of training for appearing in departmental examination is concerned:
After some discussion, official side agreed that the time spent by Government Servant under training immediately before appointment to service would count as qualifying service for purpose of pension and gratuity. They also agreed that the period of training would count as service for the purpose of appearing the departmental examination.
Regarding counting the training period for pension and gratuity, the case is separately under consideration of this office. Relying on the above letter applicants challenge legality and constitutionality of the Railway Board's circular/letter dated 07.04.1997 and they seek quashing of the impugned order dated 25.8.2005.
5.1 The Railway Board's circular/letter dated 07.04.1997 was issued in response to a letter dated 25.1.1996 sent by the Western Railway Headquarters office. Under identical circumstances of an employee who had undergone induction training of 3 years, the Western Railway had made that reference. Relevant portion of Western Railway's letter is reproduced hereunder:-
While on the subject it is also advised that in the above case the employee was required to undergo 3 years training prior to his regular absorption as Artisan staff. Granting eligibility for appearing in the above selection is likely to result in other Apprentice Artisan staff who might have been absorbed in a regular working posts prior to the employee in reference, after having completed six months of training as is admissible to ITI passed candidates or those who might have undergone training under Apprentice Act 1961 in Railway workshop. In terms of extant orders, wherever a junior becomes eligible for appearing certain selections, his seniors even if they have not put required period of qualifying service also become automatically eligible. In response to that letter the Railway Board gave the following clarification in its Circular/letter dated 07.04.1997:-
2. The matter has been considered carefully by the Board. It is clarified that the 3 year training given to Matriculates recruited to fill up the posts of skilled artisans is not to be counted towards qualifying service of three years service in skilled grades for the purpose of eligibility for appearing in the selection for Intermediate Apprentice Mechanics against the 25% quota for eventual absorption as Chargeman in the pay scale of Rs.1400-2300. 5.2 Based on the above said letter dated 07.04.1997 the applicants were informed through the impugned letter dated 25.8.2005 that all of them are not eligible for being considered for the above selection.
6. The learned counsel for the applicants has submitted that the Railway Board's letter dated 07.04.1997 is unconstitutional as it makes artificial discrimination against a section of the rankers eligible for promotion. The respondents have submitted that the argument put forth by the applicants cannot be entertained without the Railway Board being impleaded and that Railway Board is a 'necessary party. Counsel for the applicant draws support from the decision of the Hon'ble Supreme Court in the case of Ranjeetmal Vs. G.M. Northern Railway and another [AIR 1977 SC 1701] for contending that the Union of India having already been made a party through the General Manager, Central Railway, separate impleading of Railway Board as a Respondent is not called for.
7. On the other hand the Counsel for respondents places reliance on a judgment dated 30.9.2010 of the Hon'ble Supreme Court of India in the case of State of Assam Vs. Union of India & Others in C.A.Nos.8378 and 8392/2010 for contending that the Railway Board has to be impleaded as a party respondent for challenging the constitutionality of its letter dated 07.04.1997.
8. We find force in the submission of the respondents that the Railway Board is a necessary party and it had to be impleaded as party respondent. The learned counsel for the applicants would argue that the Union of India having been made a party through the General Manager, Central Railway it was no more necessary for the Railway Board to be separately inducted as a respondent so as to challenge the constitutionality of its circular/letter dated 07.04.1997.
8.1 The General Manager, Central Railway however, alike the applicants, is a servant of the Union. The applicants have not adduced any material to establish that the General Manager of Central Railways is a delegate of the Union of India. In matters relating to the Indian Railways the Railway Board acts on behalf of the Union of India. The circular/letter dated 07.04.1997 was issued by the Railway Board. Under the circumstances impleading of the Union of India would have been appropriately done if the Railway Board were made a party respondent.
8.2 For impleading the Union of India just about anybody in the service of the Union cannot be chosen as a representative of the Union by the litigant concerned. The authority so chosen must be one through which the Union of India can be sued. We would, therefore, accept the contention of the respondents that these OAs are not maintainable due to non-joinder of necessary parties. However, the matters having been heard also on merits it is appropriate that comprehensive discussion is made.
9. As to the constitutionality of the circular/letter dated 07.04.1997 that it violates the principle of equality, we do not find substance in the contention of the applicants. Admittedly, the applicants are Matriculates who did not have any pre-induction training or experience to work as Artisan. Considering that they were only Matriculates, they had to undergo training of 3 years as is prescribed for Matriculates, as against either nil or six months training period for other categories of inductees into Fitter Grade III post. It is, therefore, clear that the Matriculate inductees belong to a different class altogether.
9.1 The Railway Board through its letter dated 07.04.1997 has laid down guidelines for dealing with the training period of the Matriculates as a class. No individual has been singled out. Because of the reasonable classification made, we do not find anything wrong with the letter dated 07.04.1997. Besides, as was properly pointed out in the Western Railway's letter dated 25.1.1996 to the Railway Board, according the same benefit of the training period to the Matriculates would create inequality, besides generating other administrative problems. We, therefore, reject the submission of the applicants that the Railway Board's circular/letter dated 07.04.1997 was either illegal or unconstitutional.
10. The learned counsel for the applicants has relied on several decisions of Hon'ble Supreme Court of India for arguing that the training period has to be taken into consideration for determining eligibility of the applicants for selection and empanelment as Junior Engineer Gr.II. They are -
(i) Krishnan Lal Vs. State of Haryana & Ors. [(2010)1 SCC(L&S) 463],
(ii) Dakshin Haryana Bijli Vitran Nigam & Others Vs. Bachan Singh (citation not given)
(iii) State of Himachal Pradesh Vs. Shri J.L. Sharma & Another (citation not given) and
(iv) Kailash Chandra Rajawat Vs. Union of India & Another [1994 Supp(1) SCC 71].
On close perusal of the judgments in these cases it is found that they are clearly distinguishable on facts and hence would not constitute precedent for the matters under consideration.
11. As against that the learned counsel for the respondents has submitted that the eligibility for selection as Junior Engineer Grade II is 3 years of non fortuitous service in the grade of Skilled Artisan in C&W Department. The applicants before us have not completed 3 years service because it is only after they completed the training that they were regularly posted in the pay scale as Fitter Grade III. Relying on the decision of the Hon'ble Supreme Court in the case of Union of India & Others Vs. C.N. Ponnappan [1996 SCC (L&S) 331] the learned counsel has submitted that it is only regular service in the feeder grade which has to be taken into account as eligible experience for promotion. Pre-induction training period cannot be considered on the same footing.
12. The above mentioned letter dated 25.4.1981 of the Railway Board did instruct that pre-induction training period is to be counted for determining eligibility for writing departmental examination for promotion. But as per their subsequent circular/letter dated 07.04.1997 the Railway Board have made the rule that the 3 years' training undergone by Matriculates recruited to fill up the post of Skilled Artisan is not to be counted for further selection on promotion. Rule making power of the Railway Board for non-gazetted employees has been granted under Rule 157 of the Indian Railways Establishment Code issued by the President in exercise of powers under the proviso to Article 309 of the Constitution.
13. From the initial appointment letters of all the 3 applicants it is seen that they were appointed on compassionate ground as trainee or apprentice Artisan and were paid stipend at a lower scale of pay (para 2 supra refers) than the grade pay of Fitter Grade III. It is only after the completion of training period of 3 years that they were given posting on regular basis against existing vacancy. The applicants have not shown that they have otherwise been accorded service seniority as Fitter Grade III from the initial date of induction as trainee/apprentice artisan. They cannot, therefore, be allowed indirectly to raise that issue on the pretext of challenging the impugned order dated 25.8.2005, which merely says that the applicants are not eligible to be considered for selection.
14. The OAs being devoid of merit are dismissed. No order as to costs.
( Sudhakar Mishra ) ( Jog Singh )
Member (A) Member (J).
H.
NOTE:
(i) To deal with the constitutionality
(ii) Also whether Railway Board necessary party
(iii) Further submissions of Shri V.S. Masurkar and Shri S.C. Dhawan.
(iv) Whether the training period should be counted
(v) Decision.