Central Administrative Tribunal - Ernakulam
Prajaj C vs Union Of India Represented By The on 23 February, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. No.1107 of 2010
Thursday, this the 23rd day of February, 2012
CORAM:
HON'BLE Dr.K.B.S RAJAN, JUDICIAL MEMBER
HON'BLE Ms. K. NOORJEHAN, ADMINISTRATIVE MEMBER
Prajaj C, aged 32 years
S/o.K Chandra Bhanu (Late)
Technician (C&W II)
Carriage & Wagon/Coaching Depot/Southern Railway/
Trivandrum Railway Station/Trivandrum
Residing at: "Om Shakthi", Kureepuzha West
Kavanadu Post, Kollam - 3 - Applicant
(By Advocate - Mr.T.C Govindaswamy)
Versus
1. Union of India represented by the
General Manager, Southern Railway
Headquarters Office, Park Town P.O
Chennai - 3
2. The Chief Personnel Officer
Southern Railway, Head Quarters Office
Park Town P.O
Chennai - 3
3. The Sr.Divisional Personnel Officer
Southern Railway
Trivandrum Division
Trivandrum - 14 - Respondents
(By Advocate - Mr.Thomas Mathew Nellimoottil)
The application having been heard on 16.02.2012, the Tribunal on
23.02.2012 delivered the following:
O R D E R
HON'BLE Dr.K.B.S RAJAN, JUDICIAL MEMBER
1. The applicant entered the services under the respondents on compassionate grounds. He has at his credit SSLC plus I.T.I (Electrician). By virtue of this qualification, he was entitled to be considered and appointed as Technician Grade III. Rule 159 of the Indian Railway Establishment Manual Vol.I (as subsequently amended) provided for the minimum qualification for Skilled Artisan as under:-
" (i) Course completed Act Apprentices
trained in Railway Establishment
or
(ii) Course completed Act Apprentices
trained in non-Railway Establishments with 6 months training or
(iii) I.T.I passed candidates with 6 months training or
(iv) Matriculates with 3 years training. "
2. The amendment to the above, was to the extent that the I.T.I should be in relevant trades and that item iv, "matriculates with 3 years service" was deleted. Vide R.B.E Circular No. 152/2001, certain modifications in the educational qualifications were considered for various posts in respect of Skilled Artisan and the said order reads as under:-
Sl. Post Existing Revised qualification
No. qualification
1 xxxxxx
2 xxxxxx
3 xxxxx
4 Skilled Artisan Act No Change.
(Rs.3,050-4,590) Apprenticeship/ITNote:- Diploma in Engineering I in relevant should not be considered as an alternative higher qualification.
Act Apprenticeship/ITI in
relevant trade is the only
qualification and no other
qualification should be
accepted on the ground of being
a higher qualification in the
same line of training.
3. In their advertisement for employment notice 1/2008, in respect of Technician Grade III (Carriage and Wagon) the educational qualifications prescribed are Course Completed Act Apprentice/I.T.I in Fitter/Welder/Electrician Trades and the period of training indicated was 6 months.
4. In the appointment order given to the applicant, the period of applicant's training was reflected as 3 years. The applicant commenced his services as Technician Grade III (Carriage and Wagon) from 06.06.2003. The applicant came to know that one Shri Unnikrishnan who was also appointed as Technician Grade III (Carriage and Wagon) like the applicant on compassionate grounds and who also possessed I.T.I certificates in the Welder trade, was subjected to only 6 months training and on completion of such 6 months training, he was deemed have been regularly appointed. In the case of the applicant, however, his regular appointment commenced only from 06.06.2006. The applicant therefore, requested the authorities to consider his case and reduced the period of training from 3 years to 6 months. However, vide Annexure A-4 letter dated 06.09.2005 the respondents rejected the representation of the applicant, as according to them I.T.I in Electrician trade cannot be treated as a relevant trade. Hence, the exemption was not given as in the other case and the applicant's 3 years training was kept intact. The applicant made a representation to the DPO Trivandrum vide Annexure A-5 dated 01.04.2008 and requested for reconsideration of his representation for curtailment of the training period to 6 months and fix the seniority accordingly and extend all other benefits. There was, however, no response even after Annexure A-7 reminder. Hence, this Original Application has been filed claiming the following releifs:-
"(i) Call for the records leading to the issue of
Annexure A-4 and quash the same;
(ii) Declare that the applicant is entitled to have
been absorbed against a working post of Technician (C&W) on and with effect from 06.12.2003, with all consequential benefits arising there from and direct the respondents accordingly;
(iii) Direct the respondents to grant the benefit of the declaration and direction in para 8(ii) above within a time frame as may be found just, fit and proper by this Hon'ble Tribunal;
(iv) Award costs of and incidental to this
Application."
5. The respondents have contested the Original Application. They have maintained that the applicant has to undergo 3 years training as ITI Electrician cannot be considered as the relevant trade for the post of Technician Grade III (C&W). They have also referred to RBE 113/2000 wherein, in respect of compassionate appointments the minimum prescribed qualification was 10th pass and it has been stated that the training period for such compassionate appointment will be 3 years as against the training period of 6 months for open market recruitment.
6. The applicant has filed his rejoinder reiterating the stand taken by him. He has also annexed a copy of order dated 04.11.2010 in O.A 329/10 in an identical case wherein this Tribunal held that for ITI qualified candidates, six months training would suffice. This order was in fact preceded by Annexure A- 12 order dated 14.01.2010 in O.A 154/09, wherein also the Tribunal has held that for ITI qualified candidates 6 months training would suffice.
7. Counsel for the applicant argued that Annexure A-12 & A-13 would confirm the fact that any one with I.T.I qualification in the relevant trade would be eligible for the post of Technician Grade III and for them the training period is only 6 months.
8. Counsel for the respondents submitted that in so far as Annexure A-12 is concerned, the same relates to direct recruitment and not a compassionate appointment. As regards, Annexure A-13, it has been stated that the same was challenged before the High Court of Kerala and a stay has been obtained. The counsel further stated that in so far as another case of Mr.Unnikrishnan referred to in para 4(d) of the O.A, the said individual was issued with a show cause notice dated 08.11.2011 annexed as Annexure R-2 to the additional reply statement.
9. Arguments were heard and documents perused. Rule 159 spells out qualification requirements and therein for ITI qualified candidates who had undergone training in non-Railway establishment, in service training would be only 6 months. For matriculates however, it was reflected as 3 years. The qualification of matriculate with 3 years was deleted, meaning thereby there cannot be any direct recruitment for the post of Technician Grade III with matriculation qualification. However, for compassionate appointments matriculation qualification has been retained and corresponding three years training has been made compulsory for them. In the case of I.T.I qualified candidates, the amendment to Rules reflected I.T.I "in relevant trade". The contention of the respondents is that I.T.I (Electrician) is not relevant trades in so far as Technician Grade III (C&W) is concerned. The contention of the applicant however is that for Technician Grade III (C&W) I.T.I (Electrician) is one of the relevant trades. In this regard he has referred to the Railway Board circulars as referred to in para 1 and 2 above. Especially employment notification vide Annexure A-10 has been relied upon by the applicant's counsel wherein, specifically for the said post of Technician Grade III (Electrician), the relevant trades include ITI Fitter/Welder/Electrician. The above employment notification pertains to South Central Railway and East Coast Railways. It has been held in the case of Abid Hussain Vs Union of India and others (1987 1 SCC 532) and held as under:
" It is not disputed that the Air-conditioned Coach Incharges- Attendants are being paid overtime allowances for extra duty hours exceeding 96 hours in two weeks in the Western Railway, Central Railway and Eastern Railway. There is no justification for denying overtime allowances on the same basis to the Air-conditioned Coach Incharges-Attendants in the Northern Railway. We accordingly direct the Union of India and the Railway Administration to pay with effect from July 1, 1984 the overtime allowances to the Air-conditioned Coach Incharges-Attendants working in the Northern Railway on the same basis on which the Air-conditioned Coach Incharges-Attendants in the other three Railways, referred to above, are paid. All arrears of such allowances up to date shall be paid as early as possible and in any event not later than four months from today. The benefit of this order shall be extended to all such employees including those who have retired and those who have not joined as peritioners herein. "
10. Taking cue from the above, it can be readily held that though there may be different Railways, the policy shall be only one.
11. Counsel for the respondents has stated that one of the orders of this Tribunal (Annexure A-13) relied upon by the applicant has been stayed by the Hon'ble High Court. Such a stay does not make the order non-est but only keeps that particular order under suspension till the disposal of the case by the Hon'ble High Court. Judgments stayed could well be followed as indicated in the case of Shree Chamundi Mopeds Ltd Vs Church of South India Trust Association CSI Cinod Secretariat, Madras (1992 3 SCC 1) where the Apex Court has held as under:-
" While considering the effect of an interim order staying the operation of the order under challenge a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. "
12. In so far as Annexure A-12 order was concerned, the submission by the counsel for the applicant that the same contained finality and also implemented has not been rebutted by the counsel for the respondents.
13. In view of the above, the O.A is allowed. It is declared that the applicant was required to undergo training only for 6 months. As such, his training is deemed to have been over by 06.12.2003. Consequently, the period of training thereafter is considered as appointment against regular post of Technician Grade III in the pay scale of 3050-4590 (under 5th CPC) and revised pay band of Rs.5200-20200 with Rs.1900 as Grade Pay. If the applicant had been paid only stipend during the period of training of 3 years, he is entitled to the pay in the above grade for the period beyond 05.12.2003 and is entitled to the payment of difference in pay. The respondents are directed to work out the same and make the payment to the applicant within 4 months from the date of communication of this order. The date of appointment of the applicant in the post of Technician Grade III shall be reflected in the seniority list with effect from 06.12.2003.
14. Under the above circumstances no orders as to costs.
(Dated, this the 23rd day of February, 2012)
K. NOORJEHAN DR.K.B.S RAJAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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