Central Administrative Tribunal - Ahmedabad
R.D. Parmar And Anr. vs Union Of India (Uoi) And Anr. on 24 September, 1998
JUDGMENT
V. Ramakrishnan, Vice Chairman
1. The first applicant is an ex-casual labourer of the Railways and the second applicant is association of Railway employees which claims to represent the cases of the casual labourers/substitutes, who had worked under the D.R.M. Bhavnagar. They have challenged the move of the Bhavnagar Division of the Railway Administration to make direct recruitment for filling up 132 vacancies in Group D level which according to the Railways is the back-log in respect of the reservation quota earmarked for scheduled castes and scheduled tribes as per their Notice dated 18.9.97 (Annexure A-1). The applicants have challenged this move on the ground that it is incumbent on the part of the Railway Administration to absorb the ex-casual labourers who are still awaiting a posting before making any direct recruitment. As an interim direction the Tribunal had ordered the respondents not to make appointments pursuant to the advertisement dated 18.9.1997 as per the Notice dated 18.9.97--Annexure A-1.
2. We have heard Mr. Pathak for the applicants and Mr. Vin for the Railway Administration.
3. Mr. Pathak brings out that the impugned advertisement dated 18.9.97 as at Annexure A-1 which invites applications for recruitment of SC/ST candidates in Group D categories cannot be sustained as firstly there is no backlog of such SCs/STs in Group 'D' categories. It is his submission that the number of SC/ST employees in Group 'D' is in excess of their quota as a special drive in conducted to fill up posts exclusively by SCs/STs and their quota has been filled-up. He also submits that a number of SC/ST candidates are employed as Safaiwalas who after appointment can be transferred to various departments as Peon, Waterman, Watchman, helpers etc. He contends that the number of SCs/STs who are appointed as Safaiwala also should be counted while assessing the shortfall of SC/ST candidates in Group D category. In the rejoinder statement dated 20.7.98, it has been stated by the applicants that there are 550 S.C. 132 S.T. candidates at present working as Sweepers etc. and they are not included in the total number of vacancies to ascertain whether the quota for SCs/STs have been filled up or not. There is also a contention that after initial recruitment as Safaiwala S.C. candidates are posted in other departments in different posts and are not included in the reservation quota. Mr. Pathak also has contended that even according to the Railways as per their reply statement dated 20.11.97 (para 12.1) the recruitment made in Group D vacancies from 1.7.92 to 30.6.97 is 659 out of which S.Cs, are 60 and STs. are 15 which shows that the shortfall in the case of S.Cs. cannot be more than 40 whereas the present advertisement dated 18.9.97 seeks to recruit 63 S.Cs. He contends that Railways have not established that there is any shortfall in respect of S.Cs./S.Ts. vacancies for which a special recruitment is called for.
Mr. Pathak goes on to submit that even if there is any such shortfall, it is not open to the rail ways to make direct recruitment of SCs./STs. from the open market. They are required to make good the shortfall from SC/ST candidate among the ex-easual labourers. He refers to the Master Circular dated 30.6.92 issued by the Railways consolidating the various instructions on the subject of casual labourer. As per para 16 which deals with the records and registers, it is essential to enter the name of all casual labourers both for open line and for project casual labourer. In the case of Project Casual labourer a register will be maintained as per the territorial jurisdiction of the Division. This has been brought out in para 16(d) of the master circular. Para 16(e) refers to a Supplementary live register which would show the names of casual labourers both in the open line and in the project who are discharged prior to 1.1.81 for want of work or due to completion of work and not re-engaged thereafter. These instructions make it clear that it is essential for the railways to maintain live register/ supplementary live register. This is as per the scheme prepared by the Railways in respect of Project Casual labourers pursuant to the directions of the Supreme Court in Inder Pal Yadav's case. The Supreme Court had envisaged that all such casual labourers shall be absorbed over a period of time. The counsel submits that the Railways have to exhaust the names in the live register before making direct recruitment to fill up vacancies in Group 'D'. He refers in this connection to the letter of the Railway Board dated 9.1.97 on the subject of relaxing the ban on direct recruitment for filling up the shortfall of SCs/STs in Group D as at Annexure R enclosed with the reply statement of the respondents. Mr. Pathak highlights the fact that para 2 of the Railway Board Circular says that the direct recruitment for Group D can be made only in respect of shortfall due to non-availability of SCs/STs casual labourers. He contends that a number of persons including members of Association (Applicant No. 2) belonged to SCs/ STs community and they are ex-casual labourers of Bhavnagar Division and whenever vacancy arises in Group D, their claim should get precedence over others and only after they are absorbed the question of direct recruitment from the open market will arise. The counsel also contends that the Bhavnagar Division has not maintained the live register/supplementary live register as required by the Railway Board Circular and the D.R.M. Bhavnagar have not acted in accordance with the instructions of the Railways which provide for direct recruitment only when the shortfall cannot be filled up from among SC/ST ex-casual labourers. He also refers to para 3 of the Master circular which says that strength of casual labourers has been fixed after taking into account all the relevant factors and it should not be exceeded and fresh candidates (fresh faces) should not be engaged from the open market.
4. Mr. Vin for the Railway Administration submits that the O.A. is without any merit. He argues that the first applicant does not belong to S.C. or S.T. and there is nothing to show that the second applicantconsists of persons who are ex-casual labourers and who belonged to SC/ST. He questions the locus standi of the applicants in filling the present O.A. Mr. Vin contends that the impugned notice has been issued in order to fulfill the constitutional mandate to ensure adequate representation of SC/ST in public services and to make good the shortfall in the representation which has fallen below the quota earmarked for them. He does not agree with the contention that there is no short-fall. He refers in this connection to the details submitted by the Railway Administration pursuant to the directions of the Tribunal by its order dated 5,2.98, The Sr. D.P.O. Bhavnagar Division has filed affidavit dated 5.3.98 where he has given in detail the representation of each categories showing separately SC/ST/OBC and General in various years. Mr. Vin says that the contention of the applicants that there is no back log for reserved communities is factually incorrect. As regards the submission in para 12.1 of the reply statement dated 20.11.97, the learned counsel contends that the back log is not to be worked out only on the basis of the recruitment made in particular years. This paragraph only states that the recruitment made in Group D vacancies from 1.7.92 to 30.6.97, is 659 out of which S.C. is 60 and S.T. is 15. In addition to back log of about 40 for SCs in these years, there was already a shortfall in these categories earlier. Mr. Vin draws attention to the letter dated 1.9.97 as at Annexure R-1 enclosed to the reply statement that the S.P.O. (RP) was deputed to Bhavnagar Division and after thorough scrutiny of records he found that there was short-fall of 63 SCs and 69 STs. upto 30.6.97. Mr. Vin says that once the back log of SCs/STs has been established the Railway Administration was entirely justified in trying to wipe out the same by launching a special drive in accordance with the policy in such matters.
Mr. Vin does not agree with the argument that the direct recruitment is not permissible in such situations. He says that reference to para 3 of the Master Circular dated 30.6.1992 is misconceived. This para says that the authorised strength of casual labourers serving both in the open line and in the projects after taking into account all the relevant factors should not be exceeded and fresh candidates (fresh faces) should not be engaged from the open market. According to him, this means that there should be no engagement of fresh casual labourers. It does not preclude direct recruitment in appropriate cases. In the present situation, the Railway Board found that there is a sizable back log in the reserved quota and had related the ban on direct recruitment only to fill up the shortfall of SCs/STs in Group 'D'. Mr. Vin also draws attention to the orders of the Tribunal while disposing of MA/838 of 97 in OA/880 of 95 and similar M.As. in connected O.As. where the Tribunal had not agreed to the prayer for an interim direction to stay further action on that advertisement dated 18.9.97. He refers to the stand of the Railways that the casual labourers had liberty to apply in response to the advertisement for special recruitment for SCs/STs and if the applicants, had done so, they would have been considered along with others, who had responded to the advertisement. Mr. Vin submits that in the present case also the same principle may be followed as it was open to the applicants here to have responded to the advertisement of 18.9.97 and to have taken their chance alongwith others. According to Mr. Vin they have no claim for preferential treatment. He therefore says that the O.A. should be dismissed.
5. We have carefully considered the submissions of both the sides.
6. As regards the interest of the applicants in the subject matter of the O.A. the applicants had given a list as at Annexure A including the names of 186 persons. They also stated that in most cases, they had yellow card which is available to the casual labourers. However, the Annexure A gives details of SC/ST/OBC ex-casual labourers. The special recruitment is in respect of SCs/STs and not for O.B.C. It was also contended that the applicant No. 1 does not belong to SC/ST. Mr. Pathak was therefore directed to file a statement giving some details as to who among the members of the Association of Railway Employees (i.e. Applicant No. 2) belonged to SC/ST. A further statement has been filed on 20.7.98 where Mr. Pathak has submitted as per Annexure A that there are about 90 SCs/STs candidates. In addition, he has also given the names of a few persons - Devji K. Chauhan (OA/96/91), K.N. Chauhan (OA No. 846/96), Shri Dhirubhai Nanjibhai (OA/186/97), Naran Bhavji (O.A./889/95), Jayantilal Meghjibhai Rathod, Jayanti Unjha, Anil Meghjibhai Parmar, Dhanji Punja Shyamji Meghji, Parmar Punja Rathod Maniben Kumba. He contends that these are all S.C. candidates and they belong to the Association who is ApplicantNo. 2. The Railway Administration in their reply had brought out that they have not shown the state of their origin so that the Railways can verify whether their caste is recognised as a Scheduled Caste in the particular state as per the presidential order. We find from Annexure A that the applicants have produced details of their working and the further statement gives the names of persons alongwith the relevant details. The Railway Administration of Bhavnagar Division ought to have informed us whether or not these people figured in the live register/supplementary live register and whether they have produced any certificate at the relevant time of engagement to substantiate their claim that they belong to Scheduled Caste. If they have maintained such register, there should have been no difficulty in making a clear statement in this regard. The omission to do so leads to the inference that railways have not maintained proper records. It is not for the railways to get details and ascertain the state of origin and caste of the applicants and then come to a finding, whether these ex-casual labourers belong to SC/ST or not. All they have to do is to act on a valid caste certificate given by the competent authority and if they have maintained proper records, they should have been able to tell us whether the persons whose names have been brought out were ex-casual labourers or not and whether they do or do not belong to SC/ST. Omission to do so indicates that they have not maintained the office records properly. We therefore proceed on the assumption that Applicant No. 2 which is the Association of Railway employees (Applicant No. 2) consists of persons who are ex-casual labourers who belong to SC/ST and who have an interest in the matter.
7. The next issue to be considered is whether there is at all any back log in the category of SC/ST for Group D in Bhavnagar Division for which special efforts were called for to rectify the position. Mr. Pathak had argued that there are a large number of Safaiwalas exclusively filled in from the SC/ST candidates and that they get transferred to various departments, as Peon, Watchman etc. and therefore the Safaiwalas are required to be included while assessing the shortfall of SC/ST candidates. We do not agree that the shortfall of the SC/ST quota has to be followed in respect of casual labourer taking all cadres of Group D category as a single unit. It is possible that in the cadre of Safaiwalas there may not be any shortfall of SCs/STs candidates. This would not mean that any surplus among Safaiwalas should be adjusted while assessing the shortfall in other cadres like Peons, Waterman, Helper etc. We reject this contention.
Mr. Pathak also has stated that the Railways had recruited 659 persons from 1.7.92 to 30.6.97 in Bhavnagar Division. He says that as per the Railway's own statement, there were 60 SC and 15 ST candidates in such recruitment and if so, the back-log could not be more than 40 SCs and much less than 69 for STs. This argument is also not tenable. As has been brought out by the Railway Administration, we have to take note of the total position in each cadre for ascertaining the adequacy of representation of SCs/STs and not yearwise vacancies. The shortfall has to be calculated on that basis and not on the basis of only recruitment for five years. The Railways have in their reply statement dated 20.1.98 enclosed a copy of letter dated 1.9.97 as at Annexure R-1 which is from C.P.O. Western Railway, Mumbai addressed to Sr. D.P.O. Bhavnagar Division. The first paragraph of this letter reads as follows:
"SPO-(RP) was deputed to your division to reconcile the figure of shortfall in recruitment Group 'D' categories and after scrutinising all the records he has found that there is a shortfall of 63 SC and 69 ST upto 30/6/97."
It will be clear from the above that the assessment of shortfall has been done by an independent authority which had found that shortfall is 63 for SCs and 69 for STs. The applicants have questioned the calculation for such shortfall in their reply dated 18.3.98, which seeks to rebut the Railway Administration. Affidavit of 5.3.98. We find that the Railways have given detailed calculations in their affidavit of 5.3.98 and there is no reason to disbelieve the same. What is more that said assessment has been independently made by S.P.O. (RP). We see no reason to disregard the stand of the Railways that viewed from the total cadre strength, there is shortfall of SCs/STs in Group D category and the extent of such shortfall as indicated by them. We therefore reject the contention that there is no such back log for SC/ST.
8. The main issue that remains to be decided is even if there is shortfall in the quota earmarked for SCs/STs whether the Railways are justified in seeking to make good the shortfall by issuing an advertisement calling for the applications from the open market. Mr. Vin has referred to the orders of the Tribunal while disposing of some M.As in some other cases which had sought for a direction to stop further action on the advertisement issued on 18.9.97. In that case, Mr. Vin had drawn attention to the statement of the Railway Administration that eligible ex-casual labourers belonging to SC/ST community may make application in response to the advertisement. The applicants' counsel stated that in view of this contention, the applicants therein may be permitted to make application in response to the advertisement. Keeping in view the submission of both the counsels the Tribunal disposed of the M.A. stating that if the applicants therein had responded to the advertisement before the last date and if they are otherwise eligible they should be considered among others. This was in the context of a prayer for an interim direction and the main issue was not adjudicated in those OAs. As such the orders of the Tribunal in the M.A. in those OAs is not quite relevant for the final disposal of the present O.A. The special recruitment drive in 1997 had been done in pursuance to the Railway Board's letter dated 19.3.97 (Annexure R) we may reproduce this letter a copy of which is at Annexure 'R'.
"Attention is invited to Board's Wireless Message No. 91/E(SCT)I/30/10 dated 21.7.92 wherein it was advised that Board's Instructions contained in letter No. E/(NG)II91/RR/1/21 dated 16.9.91 banning Direct Recruitment in Group 'D' Posts shall not apply in filling up the posts reserved for SCs./STs.
2. While launching the Special Recruitment Drive to make good the shortfall of SCs/STs during the year 1993 and 1995, some Railways sought for Board's approval for Direct Recruitment from Open Market against Group 'D' Short-fall. This creates unnecessary papers works/correspondence and it delays recruitment. In this connection, it is desired that when there is no ban on the Direct Recruitment in Group 'D' to make good the Shortfall, Railways/PUs need not sent any proposal for Direct Recruitment from open market against Group 'D' shortfall due to non-availability of SC/ST casual labours. The matter may rest at the end of the General Managers."
It is clear from the plain reading of this circular that direct recruitment from the open market can be undertaken only when there is non-availability of SC/ST casual labourers.
There is also some discussion regarding para 3 which deals with the recruitment of fresh candidates. Mr. Pathak had argued that fresh candidates from the open market should not be recruited. The respondents have taken the line that fresh faces refer to casual labourers and they can make recruitment from the open market. We find that there is a ban on direct recruitment from the open market which however has been relaxed in the context of the special recruitment drive for SCs/STs.
From Para 4 of this affidavit dt. 5.7.91 it is clear that the principle followed is that only casual labourers/substitutes should be engaged for filling up the vacancies and the only exceptions to the principle are (1) compassionate appointment (2) Recruitment against sports quota (3) Recruitment from ex-service personnel (4) vacancies in Diesel and Electric Loco sheds and (5) vacancies in Workshop in Mechanical department. Besides there is also a provision for mutual transfer. The present case does not fall in any of the exceptions and as such vacancies have to be filled up only from among casual labourers/substitutes. The affidavit of course refers to letter dated 19.1.92 but from the letter dated 19.1.97 of the Railway Board referred to earlier, it is clear that the D.R.M. can make recruitment from the open market to fill up the shortfall for SCs/STs only when no SC/ST candidates are available from among the ex-casual labourers/substitutes, It is, therefore, clear that the direct recruitment from the open market can be made only when no casual labourers/substitutes belonging to SC/ST are available.
We have to consider whether SC/ST ex-casual labourers are awaiting absorption. As has been already mentioned the applicants have given some details of ex-casual labourers who claim to belong to SC/ST. Apart from seeking to get details as to the state of origin of the applicants etc. the respondents have not been able to state categorically that such persons are not ex-casual labourers and that they do not belong to SC/ST.
Mr. Pathak also had referred to para 17(3) of the Master circular and according to him this would mean that so far as filling up of shortfall in the category of SC/ST direct recruitment can be resorted to only after ensuring intake of eligible SC/ST casual labourers. He has also contended that para 3 of the Master Circular imposes a ban on recruitment of fresh candidates (fresh faces). In view of this submission of Mr. Pathak on 5.2.98 we directed the respondents to file an affidavit indicating the position. The directions given on 5.2,98 are reproduced below:--
"(i) the import of para 17, particularly para 17.3 of the Master circular (ii) the procedure followed by the Division in the matter of implementation of the Supreme Court direction in regard to absorption of eligible casual labourers and (iii) identification of the SC/ST candidates and whether a screening as required in this circular has in fact been done."
In compliance to such direction in an affidavit has been filed on 5.3.98 by Sr. D.P.O. which was referred to earlier also. Para 4 of this affidavit is as follows:--
"4. That the Master circular No. E(NG)11/91/CL Master circular 157 dated 30.6.1992 is a compilation of instructions on the subject of casual labours issued by Rly. Board from time to time and compiled upto 1992. Para 17 of the--said circular reads as under:--
"Para 17--Absorption :
All vacancies in Group 'D' posts barring the following, becoming available upto 30.6.92 would be as per the extant ad hoc arrangement, be filled from amongst Casual Labour and Substitutes empanelled on the basis of Screening:
(i) Vacancies against which appointment on compassionate grounds is done.
(ii) Vacancies provided for recruitment of Sports persons and artists.
(iii) Vacancies reserved for recruitment of Ex-Service personnel.
(iv) Vacancies in Diesel and Electric Loco Sheds and,
(v) Vacancies in Workshops in Mech. Deptt.
Note: Due to Special recruitment of Workshops in Mech. Deptt. vacancies in Group 'D' are filled as per the instructions contained in Board's letter No. E(NG) II 73 CL/41 dated 23.8.73 inclusive of transfer of Rail way Servants who volunteer from other departments and transfer of Railway Servants who volunteer from other Departments and transfer of Gangmen and Stores Khalasis against a prescribed limit. The resultant vacancies in other departments are available for the absorption of Casual Labour and Substitutes. (Ref: Board's letter No. E(NG) II/84/CL/92 dtd. 15/12/84. E/(NG) II/84/CL/5 dtd. 22.6.90).
Para 17.3 While drawing screened panels for absorption against normal Group 'D' vacancies, the screening committee should ensure intake of SC/STs confirming to the percentage of reservation prescribed in their favour in the event of shortfall in the intake of SC/ST, the deficiency should be made good through direct recruitment. (Ref: Board's letter No. E(SCT)74/CM/15/7 dated 27.4.74. 9.10.1974 and 88. E(SCT/1/88/1 dated 4.10.88").
The Sr. D.P.O. however contends that screening of casual labourers was conducted from time to time and instructions are issued by the Division to prepare a list of eligible ex-casual labourers in the year 1992. He further says that in the meantime as per the directions of the Hon'ble Supreme Court in Inder Pal Yadav's case directions were issued by Railway Board to prepare live register of ex-casual labourers who had worked prior to 1.1.81 and that wide publicity was given and after following the requisite formalities a supplementary live register was issued and notified. Mr. Pathak disputed this assertion of the Railway Administration and says that no registers are maintained. In the affidavit there is no mention as to whether there are candidates belong to SC/ST in the Supplementary live register and whether all such SCs/ STs have been absorbed. No details of the Supplementary live register have been furnished. The specific query regarding identification of SC/ST candidates among ex-casual labourers has remained unanswered. While the affidavit says that advertisement has been issued in accordance with the Railway Board's instructions, there is no averment in the affidavit that all el igible SC/ST employees or eligible ex-casual labourers belonging to SC/STs have been absorbed. The Railways have not clearly denied the contention that there are eligible SC/ST ex-casual labourers awaiting absorption. They also say that the list at Annexure A is not prepared by the Railway Administration. If the records are maintained properly by the Railway, it should have been easy to verify on the basis of details given by the applicants, whether the claim of the applicants is correct or not. The Railways is silent on this question. On the other hand we may extract part of the further reply statement of the Railways dated 26.8.98 :--
"Assuming without admitting that persons sought to be held out by the applicants as belonging to SC or ST are members of SC or ST community, nothing prevented any one of them making an application within the prescribed time, in response to the advertisement for open market recruitment. A copy of which is produced at Ann. A/1. If the persons held out to be SC or ST by the applicant fulfil the qualifications regarding age and education they could have certainly applied in response to the said Ann. A-1 within the prescribed time and their applications would have been duly considered. Rather than waiting for their turn on the basis of being old faces as is sought to be done, their chances of selection would have accelerated by applying in response to Ann. A/1".
The question of competing with others will arise only when preference is not to be given to ex-casual labourers who belonged to SC/ST as per the rules and instructions. This is obviously not the position.
9. In the light of the foregoing discussion we hold that question of direct recruitment in Group D category to fill up shortfall of SC/ST will arise only when all the ex-casual labourers belonging to SC/ST are absorbed. On the basis of materials and records we necessarily have to conclude that some ex-casual labourers belonging to SC/ST are still available and it was incumbent on the part of the Railways to have maintained proper records so that they can be absorbed against the shortfall of SC/ST. This has not been done by the Railways and they cannot seek to make direct recruitment from the open market to fill up shortfall as is sought to be done by the Notice dated 18.9.97. We accordingly direct the Bhavnagar Division not to make any appointments from among the open market candidates who applied in response to the notice dated 18.9.97.
We quash this notice. We hold that the short-fall of SCs/STs quota can be made good only from among the eligible ex-casual labourers belonging to such community as per their seniority.
10. As regards the persons whose names figure in Annexure A and also in the further statement filed on 20.7.98 we do not know that would be their seniority in a properly prepared live register and we do not express any opinion as to whether they are the seniormost among the SC/ST ex-casual labourers who are eligible to be appointed to make good the shortfall in SC/ST quota.
11. With the above directions, the O.A. is finally, disposed of. No orders as to costs. In view of the final disposal of the O.A., M.A. 31/98 also stands disposed of.