Central Administrative Tribunal - Allahabad
Raj Bahadur Singh vs General Manager N C Rly on 16 February, 2018
_ Reserved
. 7 - . (8 09.52. 2698}
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD GENCH
ALLAHABAD
Dated: This the [6 | day of _ Febeuseg, 2048
Original Application No 230/00376 of 2618
Hon'ble Mr. Gokul Chandra Pati, Member ~A
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Raj Bahadur Singh, S/o Ram Lal, Rfo 189, Hazipur Patenehan,
Museour, Mueour Jalal, District ~ Aligarh.
Ram Abhilash Singh, S/o Batuni Singh, R/o Vill & Post - Selrana
Pachim, District ~ Kaushambt.
Chetan Raj, S/o Pyare Lal, R/o Kriinapuram, Anamika Road, Nai
Basti, Tundla, Distt. Firozabad.
Rais Ahmad, S/o Rashid Ahmad, Rio Kethapula Baba, Barghi
Bahadur, in front Running Guard Roorn, Aligarh.
Zahid Ali, Slo Babu Khan. R/o Vill. Hasauli, Post - KGW Sasni,
Distt: Maha Maya Nagar.
Ram Gopal, S/o Karan Singh. Rio Vill. Mamaula Kala, Post Basai
Kazi, Distt. Hatrash [Maha Maya Nagar}.
Rakesh Kumar, S/o Ram Kishan, R/o Vill) Chabelepur, Post -
Manauri, Distt; Kaushambi.
Anil Kumar, S/o Gulzar
Lakpati Singh, S/o Chaturi
LakhanSingh, S/o Ratan Lal
Suresh Chand, S/o Chottey Lal, R/o 88/1, Anand Nagar, Nai Bazar,
Naini, Allahabad,
Ram Chandra, S/o Sundar Laf, R/fo Village --- Chhimi, Post -- Purain
{Barain Purwa], Tehsil -- Khaga, District Fatehpur.
Amremdra Kumar, S/o Shiv Bali, R/o Village ~ Samda, Post Bari,
Gauhani, District Kaushambi.
Bhola Nath, S/o Bhai Lal, R/o Village -- Sarwa Kazi, Post -- Kasiya
East, Manohar Gang, District - Kaushambi.
Ram Prakash, S/o Deen Nath, R/o Vill. -- Waiwah Post -- Sarai
Rashi Garan, Distt. Aurain [Etawah}.
Bramha Nath, S/o Ganga Prasad, R/o Vill. Kachha Tundla
Matawala Mohalla, Post -- Tundia, District -- Firozabad.
Mahesh Chandra, S/o Jilledar, R/o -- Vill. - Mewa, Post -- Ufleshar,
Distt. -- Firozabad. \V
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a eee yy ARSE
Pape 2 of 18
5 ~ avert, > a ~~ J" ~
F rakash Kumar, s/o Jagannath Singh, R/o Khera, Post ~ Hirgqaan,
Distt. ~ Pirozabad. :
Ramesh Chandra Bari, S/o Bachai Lal, Rfo 154 AM, Kandhaipur,
Dhooman Gang, Allahabad,
Vilay Singh, Sfo Chhutaku Lal Singh, Rfo Vill. ~ Wair, Past ~
asuhar, District ~- Kaushambi,
Deepak Singh, Anant Ram Singh, R/o 11 KG Tola, Rani Mandi,
Allahabad.
Laxmi Narain Singh, S/o Anant Ram Singh, R/o 11 KG Tala, Rani
Mandi, Allahabad.
Aizaj Akhtar, Sfo Late Ahmad Husain, R/o 26/23, Nalband Tola,
Garaiya, Allahabad.
Upendra Kumar, S/o Dhanna Lal, R/o 74/2, Loco Colony,
Allahabad.
Vijay Bahadur, S/o Late Mahadev Singh, R/o 40, Bairahana, District
Allahabad,
.. Applicant
By Adv: Shri O.P. Gupta
VERSUS
Union of Indis through General Manager, NGR, Allahabad.
Divisional Railway Manager, North Central Railway, Allahabad.
CPO,NCR, Allahabad.
General Manager, NCR, Allahabad,
,., Respondents
By Adv: Shri B. Tiwari
ORDER
This OA has been filed with prayer for the following reliefs;
yp, to quash the screening result declared on 18,4.2073 [Ana -- A -- 2] in view of the submission and grounds takon abave at feast pertaining fa the applicants of the prosent OA, ii. fo direct the respondents fo consider the applicants for regular appointments in view of the original report / record of tha screening whieh was produced befors the Hon'ble Tribunal on 25.07.2043 by Se Jata Shankar Tripath! and after perusal af the same Hon'ble Tribunal found that almost every body has been found suitabla axcopt two to three parsans, iil, to direct the myspondents fo issue appeinimont orders to the applicants against regular vacancies Immediately in pursuant to the aforesaid and to allaw them duty without any further delay.
Any other order or direction to which his Court may deem fit and proper in the facts and circumstances of the present case may also be passed." \ U rs ay: 4 Page 3 of 18
2. As per the OA, the applicants were working as casual labours under the railways for the periad from 1981 fo 4992 and all of them have claimed to have completed 120 days with their names are there in the live register of the railways. As per the directive of the Railway Board vide letter dated 28.02.2001, the respondents decided to have a screening test for ex-casual labours and issued an advertisement on 17.12.2005 in the newspaper asking ex-casual labours to apply to participate in the - screening test. About 359 persons including the applicants submitted their application and they were informed by the respondents to participate in the screening test to be held from 40.10.2007 to 6.11.2007 and the applicants participated in the test. After the screening the respondents issued appointment letter to one person on 10.12.2007. But for other candidates including the applicants, the result was not declared. The applicant No. 1 received information fram DRM office that in view of the judgment of Hon'ble Supreme Court, the result of the screening test will not be declared. Applicants filed OA No. 738/09 and 741/09 which were disposed of by this Tribunal directing the applicants to submit a comprehensive representation to the respondents, who were directed to dispose of the same. The applicants submitted the representation, which was rejected by the respondents and refused to declare the result citing judgment of Hon'ble Apex Court in Uma Devi case.
3. Thereafter, the applicants filed two OAs which were disposed of by this Tribunal vide order dated 12.05.2011 (Annexure A-1), directing the respondents to declare the result of the screening test within two months and to appoint those who would be found successful in the test in view of the policy of the railway. This was challenged by the respondents in Hon'ble High Court without any success. Then the applicants moved the Tribunal in Execution Application No. 42/2011 in which direction was given to the respondents to declare the result within three months, or else the K "et gee 4 of 18 £04 % salary of the response» No, t and 2 would be attached. raspondarks gectared the results ef the sere]ent {Anneure A?) where only Shree candidates passe.
declared unsuitable for different reasons. This Thbunal, in ease mamined {he raguit and found thal tne reasons oy . Lien it x t y firmed scope & many candidates were nat accepfable, Keeping in view intervention in. the execution proceedings, the execution case was disposed of giving bberty (0 ihe apptigants to fe fresh OA. Accordingly.
the resulls declared this OA has been flad by the applicants to chalisnge by the respondents an fotlowing grounds {ij Result declared by the respondents iS arbitrary, discriminatory and againat relevant rules and in violation of Railway Board's Master Circular No. 48.
bunal in the case of ii} Result declared violates judgment of this TH 208 of 2006 Hiramani & Ors vs. Union of India & Ors - OA No. dated 02.05.2011 (Annexure A-7} and itis aiso contradictary to tne stand taken by the respondents.
iy This Tribunal in Execution case on 25.07.2013 found that except few candidates, all applicants were suitable.
a bie in gj Eight applicants out of 38 candidates had been found suita the screening, but when the sesuill was declared on 48.04.2013 they have been shown as unsuitable 25 approval of they infial engagement was not avaliable. There is no provision under ihe mules to declare suitable candidates unsuitable on this ground.
ivy Three applicants were found unsuitable 4s their total engagement was jess than 120 days. but in the screening committee repor, their engagement was stated to be more as siaied in pata 4(xi}-B of the OA.
iwi TRree applicants were found unsuitable on the ground of being over aged, but a8 per Master Circular No. 48 para 47.9 and 17.10 this MV ivi)
4. Page Saf 18 ground is wrong for requiarization of casual labours. In a similar case Hiramani & Ors. (Supra) this Tribunal has not accepted the overage being 4 ground to declare a candidate unsuitable for requianzation, Three candidates were found underage out of which one had the approval of DRM vide order dated 10.12.2007. Two candidates out of three were found underage put they have been raquiarized and appointed, but in a similar case of the applicant the competent authority did not consider this ground. Hence, there is discrimination, Upon notice, the respondents filed counter reply (in short CR), where it has been stated that:-
(i) Railway Board P.S. No. 9544 (Annexure CR-2) specifies that casual labour engaged after 01.04.1978 without approval of DRM/HODs and engaged after 03.01.1981 without approval of GM shall nat be considered for screening test except where post facto approval has been obtained. Engagements after 03.01.1981 without approval of GM are irregular and the casual labour has ne right te be considered for reguiar absorption.
(ii) As per Board circular No. 7490/2001 (Annexure CR-4) has relaxed the age limit for labour to 40 for general, 43 for OBC and 48 for ScrsT candidates. This has been upheld by Hon'ble Allahabad High Court in Writ Patition No. 21779 of 2006 (Annexure GR-5).
(ii) in the present case no approval was taken from GM before engagement. in such cases, as par judgment of Hormbie Apex Court in RN. Nanfundappa Vv. T. Thimmiah reported in AIR qa72 8C 1767, Wegal appointment against rules or Constitution, cannot be requiarized.
(iv) The Hon'ble Apex Gourt in the case of Hindustan Shipyard Limited and ofher vs. Dr. P. Sambasiva Rao and orhers reparted in (1990) 7 sco 499 has rejected the case for requiarization on the ground that in Gase at regularization the rules to be strictly adherad to and regularization iS not automatic, R ,
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(vi)
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5. Page @ of 18 depends upon the availability of vacancies, suitability and eligibility of the ad-hoc appointee.
The applicants in this case did not fulfil the eligibility at the time of initial engagement or at the time of consideration for regular absorption as per rules. General Manager has not granted post facto approval about the screening of a number of applicants whom the GM's approval was not there.
As per para 2006 of Indian Railway Establishment Manual Vol Hf (in short REM), absorption of casual labourers in regular Group 'D' post has to be considered in accordance with Board's instructions subject to availability of vacancies, suitability and eligibility. The applicants whe were engaged as casual labourers without approval of GM have been engaged irregularly. In the light of judgment of Hon'ble Supreme Court in the case of Pramod Kumar vs. U.P. Secondary Education Services Selection Board and others reported in (2008) 2 SCC 244 it has been held that the appointment which is contrary to the rules would be void in law. Therefore, the engagements of the applicants without approval are void and they cannat seek regularization, Regarding less than 120 days engagement of two applicants as per Live Register, it was stated that subsequent verification showed that their engagements was less than 120 days.
The applicants have filed Misc. Application Na. 1063/17 summarizing their case and enclosed copy of the order of this Tribunal in OA No. 996/07 where applicant's case for regularization was considered.
In reply, the respondents also filad Suppl. Counter Reply enclasing the following two judgmants:-
a. VWrit~ A No. 7006 of 2076 - Union of India and 4 others vs. Ashok Kumar and 8 others, (Hon'ble High Court) b. Pramod Kumar vs. U.P. Secondary Education Services Commissian and others ~ (2008) 2 SCC (L&S) 244.
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EB ea # Z ty # gy ad ve 'ts Hy off # 7 LY wb Ey Ms Zz eA z i f, core Eo re) Ge ke £4 os Page 8 of 18 oS "= S = 3 = = z = not have baen called for screening. Hence, the submission of the respondents that the engagement of such applicants without approval of the GM is illegal and arbitrary. Regarding some of the applicants being OVATHGS. learned counsel argued that the case of the applicants has been dalayed because of delay iy declaration of resull py the respondents inspite of order of this Tahumal. Hf on account of delay in declaration of the applicants have rasuit due to faull of the respondents, same of bacarne average, than decision should not be against the applicants, because they were not responsible for delay or being overage subsequent to consideration af thair case by the sereening committee.
ficant vehemently argued that the + The teamed counsel for the app decisions of the screening committee in respect of the applicants were wrong, Since the grounds mentioned for rejection are the following:-
declared unsuitable as their initial engagement A) 15 applicants were al of the competent authority.
was without approv it) 3 applicants were unsuitable as they are over age.
Hy 2 applicants were unsuitable for two reasons Le, initial engagement was without approval and their working was less than 120 days.
wy 4 applicant was unsuitable due to working tess than 120 days.
4 applicant was unsuitable as he had not completed 120 days.
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6. Leamed counsel for the respondents reiterated the stand as per the pleadings and reved upon the following judgments out of which he fled copy of judgment at (jj) and {ii} at the time of hearing and copy of (iii) within three days of hearing aS permitted by the Cour-
R.N. Nanjundappa vs 7. Thimmiah and Anr ~- (1972) 7 SCC 409 i U.P. State Road Transport Corporation vs, State of UP and anather~ (2005) 7 SCC 444 hil. Oshiar Prasad and others vs. Employecs in Relation to Management of Sudamdih Coal Washer of Mis Sharat Page gal UX Ceking Go Linnted, Bhanbad, Jharkhand ~ c20ts) 7 BOG (La) Fa teamed counsel for the ragpondents arqued tial fhe applicants have been duly considered by jhe screening earner and they Were cantention 1D y the Gishag rules. He raitarated (he feannd unsuiies 88 yes the GE that without approval af the OM, the engagement of the applicants ag cas jabaur WAS requ and herics they have ne fight fe be roquiated, Learned gona SEO raised the iggue that the OA 18 defective any ant applicant HAS siqned the yatificntion after declaring Pig PRATER, {inther's TRAN, aildtess and BOP and no ather applicant has nideclaralion & required under the rules. He r due varifientic « signed afer verifying his giqned ale further arqued that the applicant Ne. 1 whe ha agen fo be HA yeare at the time af filing the OA, would be about 56 years as an date, Nance. t is clear that he was average aver on the date of filing the OA. He stated that the ense af other applicants who have nat signed the verification, ahould not be considered as per rules. Even if it is sidered, (hey will alsa be average, out g, i have gone through the pleadings by the parties and also ; , aie considered the submissions by the jaarned counsel for applicants and the 20 tv ~ respondents, Admittedly, the appheants applied in response to news pap
- S aper advertisement by the re spande tS & es X 2 SS ERSS 4 > or 4 t ey NOPD all 4 3 re + gt s TOSS aPits& AHC hay were ca ed to appec befo & The gcenning test Bat the res W not oe y¥ € als 3 2 Ree Ls es z eesult 35 + ad cla 3 $1 y SM ? , sdet ts.
Se War SURENQAT | an QA where the res ants AP EL ti A SEO RS pondents were dire : oe 3 cted a a ecdare { yet ga Fy "i "by sa PRES, wi - y " St om TAA y e results, he rest WBS fr ally decls red by nati ying th r it SOT a i u e@ Tas a Ue BAVETHAQ CU NUE? aa.201 =), whic s x whet a SUT es on Beal : x 0 a q ADH x fAnNneRule A, } ich i : : ae ay ti h is apie in ths QA, sank i yee AACE be unsuitable ' se REAL ON baTetsy ue applic ants WE - cS as SOS ' aY 4 ui echar ay y to 2 i Y . Lae Ht te ny thy Feast e ats :
ay tha Ramuit deactacesd by the respondents \ { ee "
"ny pe on which the adverisement was issued by Afishabac Givss 47.12.2005 as stated in the OA. Neither the applicant 66F Ses respondents have fled the copy of the Board's ieier 6 and copy of the advertisement issued by Alighabad dswinn, though Ss respandents have encios sed a copy of the Board feker r dated < iRBE 4977/2004} at Annexure OR-4 to the counter reply Pans critena. Since the decision of the respandants to rejact the sandkiahes & the applicants in the gereening lest has bean challenged in the OA, f was necessary for the applicants to prove that the impugned deckians of fixe respondents are Bot as per the Board's letter dated 28 US. SENT OF GS Ess the advertisament issued by Allahabad division th pursuance fe dated 28.02. 2001 instead af rafaning ta the sordiieons &: ihe! Sirqular No. 48 in ths OA.
1%. Tt 8 noted fram the cases siied by ihe raspordenia ke the supplementary counter that ii 8 sidan Case relating io requiadgstion of ay-cagual labourers, Hon'ble Altahi abad High Caurt in the case of Union of india and 4 athers va, Ashok Kuntar and & otiars in Writ A-Nom 1006 of 2076, the onder of the Thbunsl directing raguiart izatinn af the ex- casual labourers Gaspondents in the wrt petition), wae challenged by Union of india vide the judgment dated 04 02.2018 (Annexure SCR- to Re VA.
AS fae BER Had ho the emuse ; oo ;
fhe SOR filed by the pesroncents. Hearrbie High Csurt Peary twa i. 3) shscussion afear the position o Jabs te expand exerindy 8 _ weg - ok :
ighours, set agkie the order of the Tabuod! mary GF ess gery da epercgt: aeti Bse 5 ast com 7 a ; He HEE IN SS rete regularization will be in violation of rules and conditions Siyayia lates Say t 4 A AN . ik eee pat Peoe Reariet ma ar fetter datad 28 (2.201 of he Radway Board and has heist as uniet-
"Brief tacts giving rise to the present writ potition are that ihe rss nas.t to 8 din short "contesting respandenis the Raifway Department. They have put in pore than 120 days' core service on several times ano their nantes wert found i tre caeus register and consequentiy Wey were eligible for ROSEN regularisation. in pursuance of the notifiestien daied 97.12.2008. applied for their regularization. They were called for scrporing inst asi their screening test was conducted in the month of Octeay, SONF, Wet their result fad not been declared by the pottionsrs, Prey Sager direction to declare their result of sereening test and giso prayed for reguiarisation of their services as per existing Rules, if they are fouurret successtuf in the screening test. itis reflected from the record in queshet that the contesting respondents, in this regard, eartier fied OA. No. Fdts of 2009 for similar relief, which was disposed of by the Tridenal ov 47.12.2008 with direction fo the competent authority [0 consitey aod Pass reasoned and speaking order on their representation, As par Us directives issued by the Tribunal, the Divisional Raiiway Manager fed cansidered their claim and rejected the same vide order dated MZ IOTS applying the ratio of the judgment of Hon'ble Supreme Caurt in Saceeiny. State of Karnataka & Ors. v. Umadevi & Ors,, (2008) # SEC 1.
Aggrieved with the same, the contesting respondents had proceatad & appraach ihe Tribunal by means of Original Application in question wit fatlowing reliefs ;« "fi te quash rejection order dated 18,03. 2010 passed Ly tre respondent no.2 (Annexure Ath tii} fo direct the respondents to declare the result of the sereening test held in the month of Gctoher, NAYS & pursuance of the notification dated PAZ ANGS fersrgyy written as 17.12.2003} [Annexure A-d), {ill} to direct the respondents to regularize the services oe tee applicants as per the existing rules amd fo poovickt Grae duty in case they are found suctesafil in the atoongant screening test tiv} Any other onder or direction to whith: Gis Har tts Tritienal may deem fit aed prper in ihe frets and cheuaateiwes af tire present Cage alsa be passed.
fv) to awartl coat af ihe application ta fee apnlicants,~ Aiter axchange of the affidavits, ihe Tribunal has proceanied ty alfow the said O.A, vide order dated 06.77, 2018 with fallawing shaereations "Accordingly, the OA is alfawed and inipuyned onter date 14.22.2010 (Annoxure-Ad) passed by respondent Had is quashed.
The rospondenta are further directed ta declare the result af screening test held in the manth of October, 2007 Br pursuands OF notifipatiog dated 27.12.2005. ja ease the applicants are found successful in the serauning fas? after ghvrgy post facta apprival or age relaxation as has heen done varier, they must be cusaldered for regularization as per thee service recond aad ascording to rules. The respondents are directed to declare tia result of screening test N ' tS s ?
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aos FELT within a period of two months from the date of receipt of certified copy of this order. No order as to costs."
The approach of the Tribunal is that the case of Uma Devi (Supra) is not applicable in the instant case as the applicants have put in more than 120 days' continuous service at several times and their services are liable to be reguilarised as per the provisions contained in Railway Rules 2001, 2003 and 2004 of Chapter XX of REM Volt.
The casual labours are governed by the statutory provisions and instructions issued by the Railway Board from time to time. It is relevant to indicate that time to time the Railway Board issued instructions on the subject "Absorption in Railway of Ex-Casual labour borne on the five/ supplementary live Casual Labour Registers" vide Letter No.E (NG) IV99/CL/19 dated 28.02.2001 (R.B.E. No.42/2001) wherein the minimum educational qualification has been laid down as 8th passed for Ex-casual labours (except those who have worked as Gangman) borne on Live/ Supplementary Live Casual Labour Register. In Para 2 of the aforesaid letter dated 28.02.2001, the Railway Board has issued instructions in regard to age relaxation applicable to Ex-Casuaf Labour on Livef Supplementary Live Casual Labour Registers, which is extracted below:-
"Eurther in terms of Ministry of Railway's letter No.E (NG) {/91/CI/7 1 dated 25.07.91, age relaxation to the extent of service put in as Casual labour/ Substitute subject to upper age limit of 40 years in case of General candidates and 45 years in the case of SC/ST candidates not being exceeded, may also be granted in the case of Casual labour & Substitutes for recruitment against Group-C & Group-D posts. The OBC candidates will also get age relaxation up to the upper age limit of 43 years, as has been granted to the serving OBC employees vide Rly. Board's letter No.E (NG) 95/oml/1 dated 1.6.1999. "
Consequently, the Railway Board further considered the matter of age relaxation to Ex-Casual Labours borne on live/Supplementary live casual Labour Registers and issued the detailed guidelines in Letter No.E (NG) 11/99/CL/19 dated 20.09.01, which reads as under:-
"Syb: Absorption in the Railways of Ex-casual Labour borne on the live/ supplementary live casual labour registers.
4. In terms of para 6 of this ministry's letter dated 28.2.2001, relaxation of upper age for absorption of Ex- casual Labour borne on the live/ supplementary five casual labour registers has been allowed up fo 40 years in the case of general candidates, 43 years in the case of OABC and 45 years in the case of SC/St candidates, provided that they have been put in minimum three years service in continuous spell in broken spells as per instructions contained in this ministry's letter No. E ( NG) IV91/CL/71 dated 25.7.91, read with their letter No. E (NG)1/95/PM-5/1 dated 11.1.1999.
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ve As per the Railway Board's letters dated 28.02.2001 and 20.09.2001, the age relaxation to the extent of service put in as Casual Labour/ Substitute, subject to upper age limit of 40 years in case of General Candidates and 45 years in the case of SC/ST candidates not being exceeded, may also be granted in the case of Casual Labour & Substitutes for recruitment against Group-C & Group-D posts. The OBC candidates will also get age relaxation upto the upper age limit of 43 years, as has been granted to the serving OBC employees vide Rly. Board's letter No.E (NG) iv/95/pmis/t dated 1.6.1999 and which clearly provides that ax-casual labour, which becomes eligible as a result of above modification will be considered for absorption with prospective effect.
On the directives issued by this Court, the department/petitioners has come up with clear stand that in the past no post facto age relaxation had ever been accorded in favour of casual labours beyond the age prescribed by the aforesaid Rules. In this context, they have also relied upon the judgment passed by this Court in Writ Petition No.21788 of 2006, y me Page Liat Oi Ghee this fs the eategarical stand, (he ihe Pedliiaial BAS elafinltaty procanded ont (he wrong promise with (he finding Hat some pinrauns wore accorded age ralaxation and reguisrisadian 1 gotd, Penne the per used ef ihe details regarding the age af tha contesting pagpabonds, this auch is roflectedt that aif have crossed 80 years aanied cegsnsesnqenaensddye Tt fh Het af the Railway Ueara's Letter dated ga. 200 and du SHOT, fe postive thas raguiarisaliert et directions can be issued do (eis laveat Mareaver, pay never fin claimed as a aaiiter of dight as fag een Headed hy Hon'bls Supreare court in the case at Vindaa FY Uaiversity of Calieut, £002 (4) See 736 and Matauitea i, dain & Ors. v- brighhtto Davelapment Authority & Ors, (F005) ESOC IG. Hou'bla the Apex <eugert i Hoyt inet rf OHSSA & Amr, v. Haniohaill Boy & Ors, (INSU) Oot wi bas conaitaigel (re ease where tha Apex Count had granted the rabiyadion ad service cH One. The Apex Court held that tha Court eannal faker pant [tsel? (he task af ihe statutory authurity. The sane wew fas alee Deon ratfarated fy the Hon'ils Apex Caurt fo Seemtary, Shue pt Karnataka ¥. tea Davi (reapsesad. Res refavant fo indicate deat ia Wat Patien No. 27708 of ade (Uaian at inncliet & Ors. vo Ajal Kumar & Ors), 4 review application Was tied by Bh Ajel Kuntar sit the Division Rane af this Contd vide afder hate! piped had praceaded to dismiss Ure coviow application hotiing iat where the Rufos provide for raexinii rataxation of obigihilify inctading Wie Age ihe Sourts do not ardiyjarily issae dirgetians ta exorel sa discraiint Gr go bayornd Unit maximun Hout. Horrble the Apex Court ie tia Davi (Dupee) had proceeded (o obsanve that there cannot be racrultment fo (he rogalar posts deharse the recruigrend rales and Gierofore the appligant pannal claim that he is gaiitied for rngalarisation.
The Court also flads substance in te eontantian of ihe petilionss that under Rale P57 of tie Railway Establishment Cade, Volaniel, whit has been framed by His Excellency tho Prosidant of tadin under Article 309 of the Constitution of India and bas got statutory foree, {fi Gangral Manager has bean provided rule raakiog authority for the condition af sorvled af the Group 'C' and 'D' Employeos, thus the Insuetions isaned by the Railway Board regarding absarptton, recruitment and promotion in regpoct of Group 'D' employens have got statutory force. The sams has also been uphold by Hon'ble Apex Court in tha case of OS, Vader ¥ Union of india, AIR 7969 &C 118, tha relevant part of which is extracted below:
"The indian Railway Establishment Codo has boon issued, ly the Presidani, in the avercisa of his powers, «ander the provisa to Art, 3209, Under Ruts 187 tho, Prosidant fins directed the Railway faaril, to make rules, of goneral application fo nan-qazetted rallway servants, ander thelr contral. The rutos, which are ambodiad in the Schemes, framed by tho Hoard, under Annexuras 4 anit 7, ara within the powars, coaterred under Rula YS7; and, fa the absence of any Act, having boat pasead by the 'appropriate' Lagislatura, 00 the gald matter, the rules, framod by tha Railway Beart, wil have fall affect and, If so indicated, ratrospoctively alsa. Such Indication, about rotrospoctive affect, as has already been polnted out by 0s, ig clearly there, in the impugned provisions.
in view of above, the Court is of the considered opinion that Rallway Board boing the competant authority has Issued various instructions fram dime ta time in respect of sorvicn conditions of Grovp 'D and Group staffs, in continuation of tho same (he matter of age relaxation in respuct of Ex-Casual Labourors nad working Casual labour was vansidered antl number of Rallway Beard initers has boen issued for grating age rofaxation as wall as regarding ellgibility eniorfa. AS por fa Rallway Board Clreufar dated 29.2,2007 in continuation of tho Ralbvay Board's latter dated 2§.7.1987, aga rolaxation was further tied a8 upper age flimit of 40 years in case of General candidates; 48 yoars In case of SC/ST ane 43 yoars in case of OBC and the santo has alsa been grantod It ase of Casual' substitute Group C' and Group "O° posts, As aueh the Ex-Casnal Lebaurs are entited to be considered In tha fight of the aforasald Railway Board Letters and the incumbents' claims are Hable ta be considared tor absorption with prospective effect, Tha Railway Board ia rate making authority for Group 'C' and 'D" emplayans in view of Rule 157 of the Railway Establishment Code, Volunte-d, thus, abave instructions whiter have hoon issued for absorption! regularisation af excausal "fatiouen? Sraup 'OD' omployees and ance the Han'ble Apex Caurt in saris at nN / aa Page 14 of 18 judgments had categorically held that Railway Board has gat ruta making authority, then the same has statutory force and having binding effect.
Consequently, we are of the opinion that the contesting respondents are over age and as such no positive directives can be issued by the Tribunal for absorption under the existing Rules. Once the report of Screening Committee has already been brought on record through supplementary affidavit, whereby ail the contesting respondents have failed and relying on the judgment passed by this Court in Ajai Kumar (Supra}, we are of the considered opinion that the directions issued by the Tribunal are in futility and issuance of such direction is not permissible in Jaw and as such the contesting respondents are not entitled for any relief, The direction issued by the Tribunal is in contravention of the scheme framed by the petitioners and the Court is of the considered view that the Tribunaft cannot pass such an order, which is impermissible in law."
43. {tis seen that in above case before Hon'ble Allahabad High Court in the Writ A-No.-1006 of 2016, ex-casual labours had applied in response to notification dated 47.12.2005 (same advertisement as in present case) and they also had appeared in the screening fest in October 2007 and like present applicants, their results were also not declared by the Railway authorities. Like ihe respondents in the Writ Petition before Hon'ble Allahabad High Court, in this case also all the applicants have become overage. The facts in this case are almost identical to the facts in the Writ-A-No.-1006 of 2016. Hence, above decision of Hon'ble High Court squarely covers the applicants' case in ihe present OA and in respect of the overage applicants, the said judgment dated 4.02.2016 is binding on this Court.
44. For the applicants found unsuitable for want of approval of the GM, jearned counsel for the applicants had argued that obtaining post-facto approval of the GM for engagement of the applicants was the responsibility of the respondents and applicants should not suffer for the same. It is noted that approval of the GM is an administrative action, for which no direction can be given by this Tribunat unless it is established that the respondents were bound by the rules or instructions of the Railway Board to ensure such approval by the GM regarding engagement of the applicants as casual labour. In absence of any specific rules, it is the discretion of the GM to accard or not to accord such approval, if there Nate wera ts :
NS 3 rer * Mey TUlSes ay imstruchons eee ahs TR UA Sf EY UA Q agoticants have faled to cite any rule or} < Hed to Me any rule or imstruckONs under which such way authorities.
clencies can be cyertoa! es can be everlooked of relaxed by the Rall noted that filing up or not filing up a post as per 3 Sead 3 i] wre ao ich sy) int ¢2.
ay w "3 te Apex Court in the case of Mats) edt yt y N . N * ; soe ss Ue SKIS ruies 1S a policy CEcision. Hand) State of Orissa and others vs. Bhikari Charan Khuntia and others reported in (2003) 10 SCC 144 has neen pleased to observe as under:-
"8. As was observed by this Court in Government of Orissa through Secretary, Commerce and Transport Department, Bhubaneswar ¥. Haraprasad Das and Ors., {1998} 7 scc 487, whether to filf up or not to fill up a post, is a policy decision and unless it is arbitrary, the High Court or the Tribunal has no jurisdiction to interfere with such decision of the Government and direct it to make further appointments. In the present case, even no selection was made and nof even any select list was in existence. inclusion of any of the Even if there had been any such sefection oF in names in the select fist, same could not have given any right.
Therefore, mere sending of name by the employment axchange eould not have and in fact has not conferred any right. The writ ons yrere thoroughly mis-concelved, and the court mis-
applicati directed itself as fo the nature of relief to be granted.
g, iw cannot be fast sight of that because of certain circumstances and policy decision which were afso brought to the notice of the High Court, appointments could not be made, The reasons which persuaded the Government {© absorb those who were rendered surplus 07 account of abolition of octroi and the decision taken fo abolish substantial number of posts to minimize expenditure cannot be said to be either extraneous or irrelevant for the purpose, to be ignored by the Court in according relief to the writ petitioners. But the High Court notwithstanding chose to give directions aS quoted abave. The appointments made in respect of some who got empanelied on regular selections made by the recruitment Board pursuant to the selection process undertaken does not give any sustenance to the writ petitioners fo claim parity of treatment when their claims cannot be equated to those of such ampanelled candidates."
46. In another case of Government Of Orissa And Anr. vs Hanichal Roy And Ant. reported in (1998) 6 SCC 626, on the issue of any relaxation of rules ordered by the Tribunal, Hon'ble Apex Court held as under:-
4. The Rule reguires the Government to form the opinion, for reasons fg be recorded in writing, that it is necessary OF expedient to rofax any of the provisions of the Rules in public interest in respect of any class er category of persons. We assume for the purposes of this appeal that the case of the respondents herein falts within a "class or category or persons", but we do not think that the Tribunal was right in, in effect, rejaxing the appropriate rule itself. Having set out the facts, it should have feft ft te the Government to take the decision under the rule."
~"
\ Me vs, Union of jpanara Karat ht 1% in OAH Vy pat fat qplelh an observed as under:
17. As regards age fimit, the entire thrust of the respondents is based on the Railway Board letter No. E(NG)-I/99/CL/19 dated 28-02-2001 and, 20-09-2001. These already stood quashed and set aside by the CAT, Ernakulam Bench in OA No. 277 of 2006. Writ petition No. 21777 of 2007 filed by the respondents Railways against the above order was also dismissed. And, a detailed discussion about the non applicability of age restriction in respect of those cases which are similar ta those referred to in Inder pal Yadav case has also been made by the High Court of Kerala in the above judgment.
12, Even if there be any age limit, as rightly pointed by the applicants in order dated 08-06-1981 as well as para 2006 of [REM Vol. Hl, provision does exist for age relaxation at the fevel of DRMs. Further, in the case of luggage porters the Railway Board has allowed regularization of such porters in Group D post, without any age limit vide RBI No. 50 Of 2008, dated 1.4.2008.
73. Taking into account all the above factors, we have no hesitation to hald that the applicants have made out a cast iron case in their favour. As such, the OA is allowed. it is declared that the applicants are entitled to regularization as Group D and if the respondents had already conducted the screening test as per the order dated 16-11-2007 they may act on the basis of the same and subject to the applicants fulfilling the other conditions such as medical standard, they be absorbed as Group D employee in accordance with the rules. In case no screening has taken place, the respondents shall conduct the same now, within a period of three months from today and if found fit, the applicants shall be absorbed in the next available vacancies. Their seniority would, however, date back to 2008 when for the first time, after the issue of order in the earlier OA filed by the respondents, action for absorption or recruitment of Group D had taken place, vide Annexure A-1."
As discussed in Paragraph 42 of this order, the judgment dated 04.02.2016, which is subsequent to Ernakulam Bench this Tribunal's judgment referred to in the case of Hiramani & Ors. (supra), has referred to the provision relating to age in Railway Board Circular dated 28.02.2001 and held that the age relaxation as per Circular of the Railway Board dated 28.02.2001 cannot be ordered by this Tribunal. As discussed in Paragraph 13 of this order, this judgment dated 04.02.2016 is binding on this Tribunal. Moreover, the operative part of the order of this Tribunal in the case of Hiramani (supra) was to conduct the screening test, if not done and to absorb the applicants in the next available vacancy, if found fit as per rules. In the present OA, the applicants have not been found fit by the respondents for absorption after screening test. Hence, the case of Vv Hiramani (supra) ¢ ™ CSU a : \ . , og oy gg ;
pra} cited hy the applicants (s distinguishable tar the fants in fhe present OA,
19. In view of the above discussions, The case of the appleants is sirnilar to the case of the respondents in the Veil f-Ne 1006 al 2010 before Horble Allahabad High Gourt and ihars in nothing en racartl to prove that ihe case of the applicants in the: present Gase is distinguishable in fact from the said Writ Patition dagided by Horie Allahabad High Court vide order dated 4.02.2016. In addition, the applicants Have failed to show that the decision of the respondents to declare the applaants unsuitable in the screening teet is in violation pf the rules and ins LGHONS of the Raiway Board, In the light of ihe judgment dated 4.02.2016 of Hon'ble Allahabad High Court as discussed in parngraph 14 of this ardes, the issue framed at paragraph No. 40 of this order Is to he answered I negative. Therefore, the OA lacks merit and Is fiable te be dismissed in the light of the judgment dated 04.02.2016 of Hon'ble Allahabad High Caurt.
20. Accordingly, the OA is dismissed. No cols, (Gokul Chandra Pati) Membar ~ A