Central Administrative Tribunal - Kolkata
Somnath Dutta vs S E Railway on 22 April, 2022
1 0.A/350/1778/2015 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA.
OA/350/01778/2015 Date of Order: 22.04.2022 Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member
1. Somenath Dutta, aged about 30 years, son of Sri Biswa Nath Dutta, residing at 193/15, B.K. Moitra Road, Baranagar, Police Station-Baranagar, Kolkata-700036.
2. - Somenath Maitra, son of Amar Nath Maitra, residing at 29, Joy Narayan Banerjee Lane, Post Office and Police Station- Baranagar, Kolkata- 700036.
vssttneeeeee Applicants
-Versus-
1. Union of India, service through the General Manager, South Eastern Railway, 11, Garden Reach Road, Kolkata-700043.
2. The Chairman, Railway Board, Ministry of Railways, Government of India, Rail Bhawan, New Delthi-110001.
3. The General Manager, South Eastern Railway, . 11, Garden Reach Road, Kolkata-700043.
4, The Chief Personnel Officer, South Eastern Railway, 11, Garden Reach Road, Kolkata-700043.
bint 2 OA/S5R/17 78/2035
5. The Senior Personnel Officer (.R.}, South Eastern Railway, 11, Garden Reach Road, Kolkata-700043.
&, The Chief Personnel Officer (Admn.}, South Eastern Railway, 11, Garden Reach Road, Kolkata-700043.
7, Dhananjoy De, son of Late RL.
De, working to the post of Gangman (Engineering Department) under the Divisional Railway Manager, South-
Eastern Railway, Ranchi Division, Post Office-Ranchi, Jharkhand, Pin-834006.
peseaes Respondents erations CESS are oer >) j om For The Applicant(s! Mr, N.S. Chakraborty, counsel For The Respondent(s): Mr. 8. K. Das, Counsel ORDERORAW Per! Hon'ble Dr. (Mg.) Nandita Chatterice, Administrative Member Aggrieved at not having being engaged as "Substitutes" by the respondent authorities, the applicants have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, in second round of litigation to seek the following rele:
"a) Leave be granted to mave ane single upplication jointly vader Rule 4{Sia} of the Central Administrative Trigunal (Procedures) Rules, 1987 as both the ugplicants have gota common grevunces dnd beth of them are similfarty circuristanced persons;
b) To quash and/or set aside the impugned speaking order dated iGth September, 2025 issued by the railway respondent in favour of the opplicast No. 4 and 2 by rejecting the ciaim of the applicants on the ground which is bgt.
3 O.AFSSO/LPTB{2O1S nat entertainuble at all being Annesure A-T6 of this origing! application since the applicants are belonged ta OBC categary and their names appeared at top in the gone? sent hy the Railway Bourd vide letter duted 19/21 10.2014 whereas the sane of the private respondent in the said panel appeared at serial No. & who got the appointment after attaining the age af S4 years which is evident' from Annexure 4-19 of this original cnplication, therefore, being a better merit candidates, your geoicants are entitled to get the aapoltment and the railway respondents be directed ta issue the order of appointment in favour of Mie apnficants in the light of the pend! sent by the Railway Roard vide letter dated 19/22,20.2011 within a very sirert period of time. ond alsa to grant relaxation of their age as tre apolicamls ore befanged to OBC category ad they are not become oge bar by setting aside the impugned sneaking order dated 10.02.2015 as stuted above. c} Te duash andéer set-aside the im pugned rejection fetter Fa x FON dated O3.04¢ 2013 issued By the General Monager, South A aS . , ; suey a .
STI TS Eustern Railway. Garden Reach, Kolkuta- FOGOsS agoinst the applicants whereby and whereunder the cose of the present upplicanis has been rejected on frivalaus grounds in the light of tHe recommendation made by the Raihway Board vide letter dated 19.20.2011 aleng with detailed list wherein the names of the applicants appeored at Serial No. 2 and 3 for giving anpalatmes&l te the post of Seustitule; d} Te pass an appropriate ortier directing the respandent No. 3 fo consider the case of the present gapticants for appaintment to the post of Substitute and ip issue necessary appointment orders in respect thereof in favour of the applicanis un ternis of the Railway Board's letter dated 19.10.2011 and in terms of Raflway Sourad's Circulars for giving appointment te the post of Suastitute, e] Ta puss an appropriate order directing the respondent No. 2 to produce the relevant records in carmection ath the Substitute angointment by then G eneral Managers with effect from 2009 to 2013 at the time of hearing of {AS original anplication for proper adjudication of the entire Case;
f) Te pass an appropricte arder directing the respondent No. 2 to issue uppointment letters in fovour of the applicants being the emparielied candidates as 'Sulastitutes' iy Group-D category in any Division of the South Fastern Roilway being Annesure A-8 of this original application."
2. Heard both Learned Counsel. Examined pleadings and documents on record,
3. According to Learned Counsel for the applicant, as per Railway Rules, as provided in Chapter-XV of IREM, VYolume-t, the General Manager of a Zonal Railway can appoint 'Substitutes' in Group-D category fo engage them in case Poa at 4 GAL3S0/17 78/2018 gencies which is against the pasts fallen vacant on account of a railway servant being on leave or due to non-availability of perrnanent or Temporary railway servants which cannot be kept vacant. According to the applicants, till the date of filing of this GA in November, 2015, there were 12,000 vacant pasts in. Group-D category fexcept for the Adra Division) with the respondent zonal ralways. That, the then General Manager, considering the prevailing exigencies of administration, decided to prepare a panel to appoint Substitutes in Group-D category. A total of 746 candidates applied w.e.f. November 2007, and, 122 candidates were salectad and approved for appointment as Substitutes in Group-D category in the respondent zonal railway. Accarding fo the applicants, although many candidates from such list had joined in 2005-2007, the present candidates, despite recommendations, were not appointed by the authorities concerned. The applicants represented to the authorities In August, 2007, December, 2008, August, 2009 and November, 2009 respectively to fil up the vacancies from the recommended and approved list of Graup-D Substitutes, but to no aval. That, an identical issue was decided by Hon'ble High Court at Calcutta in WPCT No. 100 of 2010(Sk. Fakhruddin & Ors. vs. UO! & Ors.) with WPCT No. 122 of 2010(Amit Sanyal & Ors. vs. UO! & Ors.) wherein the Learned Additional Solicitor Genera! had submitted that the authorities are prepared to consider the case of the petitioners provided they are found medically fit to adnan oggntete '$ 5 OAS SOPLIPBI2B15 discharge their duties, and, the Hon'ble Court had hoped that the Railways would not reject any petition on account of age bar of the petitioners. That, certain identically circumstanced candidates, namely, Chaitali Das and others, had moved an original application being OA No. 1014 of 2012 hefore this Tribunal. The Tribunal held as follows :-
"The respondents are, therefore, directed to fix a date giving reasonable time to the applicants by which ony missing documents fin case there are any according to the respondents} may be produced by them. This time should be reasonable, preferably a month, end each individual applicant would be addressed separately by the respondents through @ letter, In case the documents ore produced by the applicants they shall be appointed as Substitutes. in arder to leave ng scope for ambiguity, the documents shall be as per the order dated 02.41.2005 Le. {f application with two passport size photos signed by the epplicant, fil} educational qualification certificate, {iil} date of birth certificate), {Iv} case certificate where applicable, and (v}] documentary proof of being a ward in case of a Railwoy eriployee's ward"
The applicants, thereafter, met the office of respondent no. 3, General Manager, to request him to consider them for appointment in the post of Substitutes as their narnes appeared in the list at Serial No. 2 and 3 in the list dated 08.09.2011/19.10.2011 (annexed at Annexure-A/8 , page- 110 to the OA) forwarded by the Railway Board to the General Manager, South- Eastern Railway, respondent no. 3.
The instant applicants also filed an original application being OA No. 350/00344/2014 earlier before this Tribunal, and the Tribunal disposed of the same with the following orders :-
"The apaticants would state that their case is in parameterta with the persons appointed earlier hy the Railway administration, as itis found evidenced in the arder of the Han'ble High Court dated 02.04.2018. and accordingly they would seek appointment. Whereas the respondents
- would contend that the positive of the agalicants here are different from those persons referred to in the WPCT fsupra) inclining te enter deep io those fretual detail, However, we could see considerable force in the submissions made by both sides and hence suitable direction is given ta the Raflways to consider the case of the appleants os per jaw and pass a reasoned order
6 O.APSSO/ 1778/2035 thereon, within o period of 2 months from the sate of receipt of ao copy of tits order ead communicate the same to the applicants within 19 days thereafter." Thereafter, the authorities issued an order dated 10.09.2015 rejecting the prayer of the applicants on grounds of overage, upon assailing which, the applicants have come forth in this Tribunal praying for the aforementioned relief.
4, The applicants would support their claim on the following grounds :-
(i) That, the Railway Board, vide letter dated 19.10.2011 had sent a list of candidates for appointment to the post of Substitutes to the General Manager, South Eastern Railway, and the names of the applicants appeared at serial no. 2 and 3 therein.
(ii) That, an identical issue has been decided by the Hon'ble Division Bench of the Hon'ble High Court at Calcutta in WPCT No. 100 of 2010 (Sk.
Fakhruddin (supra) with WPCT No. 122 of 2010 (Amit Sanyal {supra} dated 27" June, 2011 along with correction order dated 5° July, 2011 wherein it was held as follows - "In view of the submissions made by the Learned Additional Solicitor General, we dispose of this matter by observing that the railways would be free to consider the petitioners strictly in accordance with the Rules and the petitioners would be obliged to participate in the regular recruitment pracess to be held for their consideration and in case they pass through physical endurance test and/or recruitrnent process as per the Rules, they would be absorbed as regular employee. That, a5 applicants are identically placed, similar -- directions ought to issue for their absorption as regular employees. 7 'O.Af 350/17 78/2015 Gi} That, the applicants have come to know that appointments as 'Substitute' in Group-D category in South Eastern Railway are regularly being made with respect to candidates who are not included in the panel published on 3 November, 2005. The applicants have further come to know that, an each month, a few appointments as Substitutes are being made clandestinely, violating the applicants' right to get the sald ad appointment. As the list of successful candidates as published an < &y ul November, 2005 is still subsisting, appointments should be issued to No candidates from such list.
{iv} That, some identical persons namely Chaitali Das & Others moved an original application being OA No. 1014 of 2012 before this Tribunal. The said matter was finally disposed of by this Hon'ble Tribunal on 08.10.2013 with observations as under:-
st is clear thot the procedure adopted by the outhorities is absolutely arbitrary and
- ggainst the principie of equity and fair piay ang also clearly ogainst their own circular cited above. Perhans the best course would have been to cancel aif te anpointments made by this General Monager and order o fresh process with fresh invitation of agpiicatians but in the interest of Administration we refrain from passing Such en-order However, we record our extreme displeasure ot the way the Generel Manager has canducted himself. The order possed by the Tribunal is dated 18.07.2012 und three months' time had been given to the respondents to setile this matter and as we have pointed out obove, in the case of Chaitait Dus, it is seen from the order passed on 12.07.2012 that the Administration bas somehow tried to circumvent this Tabunal's order, We are satisfied Nat justice is not being dane to these applicants by the resgandents. ThE respondents ore, therefore, airected ta fix a date giving reasonable time to the applicants by which any missing documents fin-case there ore any according to the respondents} may be produced by them, This time should be reasonable, greferably @ menth, aad each individual spalicant would be addressed separately by the respondents through a ietter, la case tie documents are produced by the opalicants they shall be appoldted as Substitutes. in arder to leave ao scoue for ambiguny, the documents shall be as per the order dated 02.11.2005 Le. fi} pplication with two passport size photos signed by the applicant, {i} educational qualification certificate, (iH) date of birth certificate, {\) case certificate where apniicoble and fu} documentary proof af being a ward fp case of a Railway employee's ward.
7, Learned Counsel for the applicant states thot becouse of this litigation and consequent delay there may be cases of applicants crossing the oge fimit ond therefore the age bor aN ae 8 O.ASSG/II 78/2015 should he relaxed to that extent. We agree with this and direct that in case age relaxation is required to this. extent, the respandents will allaw the age relaxation"
vy) That, since the present applicants are the identically situated, they would seek the same relief before this Tribunal,
(vi) That, the respondents had passed an impugned speaking order on 10"
September, 2015 with respect to the applicants rejecting the claim of the applicants on grounds of age bar . Such rejection is untenable as the applicant nos. 1 and 2 belong to Other Backward Classes (OBC) and are entitled to age relaxation on such count as per para 4.5 of RBE 137/2010.
(vii) The age of the applicants should be calculated from the date when they had applied for appointment as Substitutes,
(viii) That, the applicants abtained Information under Right to Information Act, 2005 as communicated to them by the Railway Authority vide their letter dated 16.09.2015, thet the private respondent, namely, Dhananjoy De got an appointment to the post of 'Substitute' after attaining the age of 54 years as his date of birth is 16.02.1957 . The private respondent is also much junior than the present applicants as per the pane! published by the Railway Board vide letter dated 49/21.10.2011.
5. Per contra, the respondents would rebut the claim of the applicants primarily on the following grounds >
(i) That, every General Manager was vested with the discretionary power to appoint substitutes In exigencies of service and, therefore, it is for the ncumbent official functioning as General Manager at the material point of time to decide whom to consider for appointment as su bstitutes. There is hy ?
ral 9 O.A/FSO/L77 8/2018 me vested right of individual applicants to be considered for such appointment, just because the previous or/erstwhile General Managers have so consented.
(if) Substitutes and regular employees do not fall under the same category and hence the decisian in WPCT No. 100 of 2010 (Sk. Fakhruddin {supra} with WPCT No. 122 of 2010 (Amit Sanyal {supra} , as cited by the applicants, cannot be made applicable to the applicants. {ill} After the issue of the interim stay order of Hon'ble High Court/Calcutta in WPCT No. 478/2013-U0l & ors. vs Chaitali Das & Ors. no further. substitute has been engaged till date except those so nermitted vide the orders of Hon'ble High Court/Calcutta, {iv} The validity of the list prepared in 2005 cannot be said to be held to be legally valid as there is no such rule in IREM which lays down the validity period of the panel of substitute appraved by one General Manager will be binding on his consecutive successors. Substitutes are only to be engaged in the exigency of services. This is not a regular source of appointment.
(v) After the formation of RRC all Group- 0 posts are filled up from the select jist af RRC,
(vi) Chaitali Das & Ors. in OA No. 1014/2012 went on appeal before the Hon'ble High Court/Caleutta which was registered as WPCT No. 478/2013 in which Hon'ble High Court/Calcutta has been pleased to pass an interim order restraining the General Manager from engagement of further _ substitutes in Group-D posts.
TERENAS STANIS 8 A AAAS ARASANSSSARS SSN OL 4 AA AAAAAA MAT ASANTE ER EEMRNSN Sette ee tEEE MuAH Veesesereteesee 10 CLASSSO/LPFBSEN1S (vil) That, para 4.5 of RBE {37/2010 refers to regularization of Substitutes and not to those seeking fresh engagement.
7) 6. Having heard both Learned Counsel, and, having examined the. . documents on record, this Tribunal would decipher the following + {i} RBE No. 144/2005 provides as follows :-
"Substitutes instructions on the subject "Substitutes" are contained in Chapter 23-A {il} of IREM 1968 and also in various letters and circulars issued from time ta time from Railway Board. The question of issue of a consolidated instructions has been engaging the attention of the Rollway Board for quite some thme. [tf fias now been decided by them to issue o consalidated instructions in the formn of a Master Circular on the subject "Substitutes as below for the information and guidance of all concerned. 2, Definition :
* "Substitutes" refer to persons engaged in indian Railway Establishments on regular scales of pay and allowances applicable to posts falling vacunt because of absence of leave or otherwise of perrnanent or temporary Railway Servant and which cannat be kept vacant.
(No. EINGJGS/LR/UA2 dated 1.9.65} 3, Circumstances under which "Substitutes" can be appointed : Ordinarily, there should be no occasion to engage "Substitutes" having regard | to the fact that practically in all categories of Railway Servants leave reserve has been provided for. Occasions may, hawever, arise when awing fo an abnormal high rate of absentees, the leaye reserve moy become inadequate or ineffective, eg. Peavy sickness, ete. or where leave reserve is available but it is not possible to provide the some, say, ate wayside station. On such ocrasions, it may become ubsalutely pecessary te engage substitutes even in vacancies af short duration as otherwise the Railway service may be adversely affected.
3.1 Substitutes should, a¢ far as possible, be drawn from a panel of sulteble candidates selected far Graup 'C' (Class itl) and Group "O° (Class 1V) posts and should be engaged 42 O.APS5O/ 1778/2085 upto the age of 23 years only subject to the observations made above, only in the following circumstances <~ i} Against regular vacancies of unskilled and other categories of Group 'D' (Class iV} staff requiring replacement for which arrangements cannot be made within the existing leave reserve;
ii} Against a chain vacancy in the lower category of Group 'pt (Class IV) staff arising out of the incumbent ina higher Group 'D' (Class iV) category being on leave, where if is not possible to fill the post from within the existing feave reserve and when otherwise the Reilway service will be affected, Accordingly, it is inferred that in 2005, the respondent authorities did have an arrangement in place for engagement of substitutes. (fi} it appears, however, that although 4 eligible petitioners, namely, (1) Chaitall Das, 0/o Late Dulal Chandra Das; (@) Subhasis Sengupta, 5/o Late Rajmohan Sengupta; (3) Ramkant Barik, S/o Rabindra Nath Barik and (4) Kousik Banerjee, 5/o Late Anadi Banerjee, were appointed vide orders of Hon'ble High Court at Calcutta In CPAN 1154 of 2014 in WPCT 478 of 2013, the respondents would vociferously submit that further appointment to Substitutes has been kept on hald by the orders of the Hon'ble High Court at Calcutta.
7, The final judgement in WPCT 478 of 2013 has not been brought before us by either of the parties.
Admittedly the applicants were candidates for the post of Substitute, and, their names were contained in 51. No. 2 and 3 of the panel contained in Railway Board's letter dated 19/21.10.2011 {annexed at Annexure-A/18 to the OA).
bgt _ catenin ntg AE LEU SESE OC Seas POET TOE O.ASSSU/L7 78/2015 it is not disputed that they were not similarly circumstanced as Chaitali Das and three others whose appointments as Substitutes were canfirmed in Hon'ble Calcutta High Court's orders dated 02.04.2015 in CRAN 1154 of 2015 in WPCT 478 of 2013.
Hence, once the final Judgement in WPCT 478/2013 is made available, or, whenever, the respondent authorities decide to resume their process of engagement of Substitutes, the prayer of the two instant applicants should be so considered, particularly as because their names were included in a panel of recommended candidates, subject to their satisfying the requisite criteria, to merit such engagement. With these directions, the instant OA stands disposed of. No.costs, (Nandita Chatterjee) {Bidisha Banerjee} Member (A) Member (3 2 Es ivevatr wenn nnn enh rN NSS i ea nS SAIN UL MM PTET SLITS PSSST SSS SLL LLL LAAT