Allahabad High Court
Union Of India And 4 Others vs Ashok Kumar And 8 Others on 4 February, 2016
Bench: V.K. Shukla, Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 29 Case :- WRIT - A No. - 1006 of 2016 Petitioner :- Union Of India And 4 Others Respondent :- Ashok Kumar And 8 Others Counsel for Petitioner :- Ashok Kumar Gaur Counsel for Respondent :- T.S. Pandey Hon'ble V.K. Shukla,J.
Hon'ble Mahesh Chandra Tripathi,J.
(Oral: Hon. M.C. Tripathi, J.) Union of India through Secretary, Ministry of Railways, Government of India and four others are before this Court challenging the validity of the order dated 06.11.2015 passed by the Central Administrative Tribunal, Allahabad (in short "the Tribunal") in Original Application No.187 of 2011 (Ashok Kumar & Ors. v. Union of India & Ors.).
On 12.01.2016, when the matter was taken up, the Court has proceeded to ask learned counsel for the Union of India to bring entire facts by way of supplementary affidavit as to how many original applications have been filed in reference to notification dated 21st December, 2005 and the Screening Test held pursuant thereto. Details of various writ petitions filed in respect of present matter and the outcome of the said writ petitions was also required to be submitted. Coupled with this, details were also required as to whether in the past, post facto age relaxation has been given to the incumbents or not.
In response to the aforesaid direction, a detailed supplementary affidavit sworn by Shri Satish Kumar posted as Divisional Personnel Officer, N.C. Railway, D.R.M. Office, Allahabad has been filed and the same is taken on record.
Brief facts giving rise to the present writ petition are that the respondent nos.1 to 8 (in short "contesting respondents") were ex-casual labourers in the Railway Department. They have put in more than 120 days' continuous service on several times and their names were found in the casual live register and consequently they were eligible for screening and regularisation. In pursuance of the notification dated 17.12.2005, they applied for their regularization. They were called for screening test and their screening test was conducted in the month of October, 2007. When their result had not been declared by the petitioners, they sought direction to declare their result of screening test and also prayed for regularisation of their services as per existing Rules, if they are found successful in the screening test. It is reflected from the record in question that the contesting respondents, in this regard, earlier filed O.A. No.1315 of 2009 for similar relief, which was disposed of by the Tribunal on 17.12.2009 with direction to the competent authority to consider and pass reasoned and speaking order on their representation. As per the directives issued by the Tribunal, the Divisional Railway Manager had considered their claim and rejected the same vide order dated 14.2.2010 applying the ratio of the judgment of Hon'ble Supreme Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors., (2006) 4 SCC 1.
Aggrieved with the same, the contesting respondents had proceeded to approach the Tribunal by means of Original Application in question with following reliefs:-
"(i) to quash rejection order dated 14.02.2010 passed by the respondent no.2 (Annexure A-1).
(ii) to direct the respondents to declare the result fo the screening test held in the month of October, 2007 in pursuance of the notification dated 17.12.2005 (wrongly written as 17.12.2003) (Annexure A-4).
(iii) to direct the respondents to regularize the services of the applicants as per the existing rules and to provide them duty in case they are found successful in the aforesaid screening test.
(iv) Any other order or direction to which this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case also be passed.
(v) to award cost of the application to the applicants."
After exchange of the affidavits, the Tribunal has proceeded to allow the said O.A. vide order dated 06.11.2015 with following observations:-
"Accordingly, the OA is allowed and impugned order dated 14.2.2010 (Annexure-A-1) passed by respondent no.4 is quashed. The respondents are further directed to declare the result of screening test held in the month of October, 2007 in pursuance of notification dated 21.12.2005. In case the applicants are found successful in the screening test after giving post facto approval or age relaxation as has been done earlier, they must be considered for regularization as per their service record and according to rules. The respondents are directed to declare the result of screening test 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 regularised as per the provisions contained in Railway Rules 2001, 2003 and 2004 of Chapter XX of IREM Vol.II.
Shri A.K. Gaur, learned counsel for the petitioners vehemently submitted that the order passed by the Tribunal suffers from manifest error of law. Since the contesting respondents have not been given any appointment on the regular basis, as such, the service conditions were not applicable in their case. He further makes submissions that the contesting respondents has neither fulfilled the prescribed norms nor they were successful in the screening test and more over they are also not under the prescribed age limit/ educational qualifications and as such the regularisation cannot be ensured. Admittedly, all the contesting respondents become overage. He further makes submissions that learned Tribunal could not give any directives regarding age relaxation, as the same is wholly arbitrary and without jurisdiction. As such once the contesting respondents did not fulfil the criteria of age limit and educational qualifications, contrary directions could not sustain in the light of the judgment passed in Union of India & Ors. v. Ramakant & Ors., 2014 (2) UPLBEC 1402, wherein it is ruled that the order of the Tribunal must not be contrary to the scheme regarding age limit and educational qualifications. Moreover, the said directives of the Tribunal cannot sustain on the ground that the same are in the teeth of various Railway Board circulars/ letters. The Railway Board circulars dated 23.3.2010, 28.2.2001 and 20.09.2001 are statutory and mandatory in nature and as such no directives can be issued contrary to the said circulars.
Learned counsel for the petitioners has also placed reliance in the judgment passed by this Court in Writ Petition No.21799 of 2000 (Union of India v. Ajay Kumar), the relevant portion of which is extracted below:-
"In view of the above, we are of the considered opinion that the directions issued by the Tribunal are in futility and issuing such a direction, which cannot be carried out in accordance with law, are not permissible in law. As the claim of the respondent employee cannot be considered in accordance with law and he is not entitled for any relief the direction issued by the learned Tribunal is in contravention of scheme framed by the present petitioners. The Court or Tribunal cannot pass an order in contravention of law."
On the other hand, Shri T.S. Pandey, learned counsel for the contesting respondents has vehemently opposed the writ petition on the ground that the judgment of Hon'ble Supreme Court in Uma Devi (Supra) would not be attracted in the present matter on the ground that the Divisional Railway Manager while denying the claim of the contesting respondents, had not refuted that they were the ex-casual labourers and put more than 120 days continuous service at several times. Once the names of the applicants were inducted in the casual live register, as per the relevant Rules, they were fully eligible for screening and regularisation. It had also not been denied that screening test was held in the month of October, 2007 and the applicants-contesting respondents were also called upon and they had infact participated in the said test. Once they were allowed to participate in the said screening test, then it was incumbent upon the petitioners to declare the said result.
The contesting respondents had earlier filed O.A. for declaration of result of screening test and to consider them for regularisation as per the Rules, if they were found successful in the said test. The result of the screening test, which has been filed along with the supplementary affidavit as Annexure No.SA-7 is not the correct copy, the same is forged and fabricated document. The same is not signed by the competent authority and has been filed only to mislead the Court, whereas the correct copy has been filed along with the counter affidavit as Annexure No.CA-4 and as such the petitioners have committed the offence punishable under Section 192 and 193 of Indian Penal Code.
He further makes submission that the contesting respondents were seeking the relief within the fore-corners of Railway Rules 2001, 2003 and 2004 of Chapter XX of IREM Vol.II, whereas in the case of Uma Devi (Supra) there were no Rules, therefore, the said case is not applicable in the present case and as such the Tribunal had rightly proceeded in the matter.
The similar issues were engaging the attention of the Tribunal in O.A. No.1233 of 2009 and 1568 of 2009, which were allowed and the same was affirmed by this Court in Writ Petition No.6879 of 2011. The same view was also adopted by this Court in Writ Petition No.49441 of 2011 and 48102 of 2011. As such, there is no occasion or reason to deviate from the ratio of the said judgments and the same would be binding on the petitioners. Consequently, it has been urged that the writ petition is devoid of merit and liable to be rejected.
Shri T.S. Pandey, learned counsel for the contesting respondents has also placed heavy reliance on the judgment passed by this Court on 10.08.2011 in Writ Petition No.1758 of 2010 (Union of India & Anr. v. Central Administrative Tribunal at Allahabad & Anr.), which has been affirmed by Hon'ble the Apex Court.
Heard rival submissions and perused the record.
On the directions issued by this Court on 12.01.2016, the detailed supplementary affidavit has been filed by the petitioners, wherein details regarding date of birth, caste and present age of contesting respondents have been given, which is reproduced as under:-
Sl.No. Name Caste DOB Present Age 1 Ashok Kumar S/o Kallu SC 06/03/61 Abed about 55 years 2 Daya Ram Maurya S/o Matafer Maurya OBC 01/02/65 Aged about 51 years 3 Gulab Chand S/o Ram Vishal OBC 08/08/63 Aged about 52 years 4 Ram Das S/o Ram Pyare OBC 02/07/61 Aged about 55 years 5 Jafar Abbas S/o Asgar Abbas General 31/05/66 Aged about 50 years 6 Vijay Bahadur Lal Srivastav S/o Sabhapati Lal Srivastava General 08/08/59 Aged about 56 years 7 Arjun Singh S/o Ram Harakh OBC 15/05/63 Aged about 53 years 8 Prithvi Raj S/o Ram Bharose SC 05/09/64 Aged about 51 years It is relevant to indicate that the work and services of casual labourers in the Railway Department are governed by the statutory provisions and instructions issued by the Railway Board from time to time. The Rules regarding absorption/ re-engagement/ regularisation of casual labourers are available in IREM Volume-II (1990 Edition) in Para 2001 to 2007. This much is also reflected that the Casual Labours refers to labours whose employment is intermittent, sporadic or extends over short period and continued from one work to another. In such category, the induction is initially made by the nearest available sources and as such they are not ordinarily liable to be transferred. The conditions applicable to permanent and temporary staff do not apply to casual labours (Para 2001 to IREM Vo.II 1990 Edition). As per instructions contained in Para 2 of N.Rly.PS.No.9544, no regular or temporary posts are required for engagement of Casual labours and for granting temporary status to Casual labour in terms of Para 2511 (C) of Chapter XXV IREM and Rule 102 (13) R-1, casual labour are not treated as Rly. Servants. Various categories of Casual labour attaining temporary status, casual labour appointed as substitutes in skilled/unskilled categories are treated as casual labour. Such of the casual labours, who are posted against posts sanctioned for de-casualization under order of competent authority or are absorbed against regular vacancies by conducting screening will be treated regular ones and after such regularization, they will be entitled to all privileges as admissible to regular/ temporary employees. For ready reference, Para 2005 (b) of IREM Vol.II (1990 Edition) may be read as under:-
"Such casual labour who acquire temporary status, will not however be brought on to the permanent or regular establishment or treated as in regular employment on Railways until and unless they are selected through regular selection Board for Group "D" posts in the manner laid down from time to time. Subject to such orders as the Rly. Board may issue from time to time, and subject to such exceptions and conditions like appointment on Compassionate Ground, quota for handicapped and Ex-servicemen etc. as may be specified in those orders that will have prior claim to over other to recruitment on a regular basis and they will be considered for regular employment without having to go through Employment Exchanges. Such of them, who join as casual labour before attaining the age of 28 years should be allowed relaxation of maximum age limit prescribed for Group-"D" posts to the extent of their total service which may either continuous or in broken periods."
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 live/ supplementary live Casual Labour Registers" vide Letter No.E (NG) II/99/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-Casual Labour on Live/ Supplementary Live Casual Labour Registers, which is extracted below:-
"Further in terms of Ministry of Railway's letter No.E (NG) II/91/CI/71 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) II/95/pmI/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:-
Sub: Absorption in the Railways of Ex-casual Labour borne on the live/ supplementary live casual labour registers.
1. 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 live casual labour registers has been allowed up to 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) II/91/CL/71 dated 25.7.91, read with their letter No. E (NG)1/95/PM-5/1 dated 11.1.1999.
The question of removal of minimum three years service conditions (continuous or broken) for the purpose of grant of age relaxation to Ex-Casual Labour has been taken up on the PNM-NFIR vide Agenda Item No.41/2001. AIRF have also taken up the question of enhancing the upper age limit. The same had been considered by the Ministry and consequently partial modification have taken place and it had been decided that the Ex-Casual labour, who had put in minimum 120 days casual service, where continuous or in broken spells and were initially engaged as Casual Labour within the prescribed age limit of 28 years for general candidates and 33 years for SC/ST candidates, would be given age relaxation upto upper age limit 40 years in the case of General candidates, 43 years in the case of OBC and 45 years in the case of SC/ST candidates. Other provisions for their absorption in Group-D will remain unaltered. It had also been decided that the Ex-Casual who become eligible as a result of above modification will be considered for absorption with prospective effects.
This Court in Writ Petition No.21799 of 2006, by its judgment dated 3.8.2006, while dealing with the similar controversy in detail regarding the age limit prescribed for the general, OBC and SC/ST category, has observed as under:-
" Undoubtedly, there is scheme framed by the present petitioners for re-employment and regularisation of those casual workers who had been retrenched. The maximum age for consideration of re-employment and regularisation in the same scheme is 40 years. However, a relaxation has been provided upto certain age, i.e. in case OBC category candidate, it can be relaxed upto 43 years and in case of SC/St candidates, upto 45 years. The respondent employee admittedly belongs to OBC category and he is about 50 years of age. Thus, in view of the admitted facts, no purpose would be served if his case is considered for re-employment and regularisation, as no relaxation is permissible beyond the age of 43 years to the OBC candidates."
Moreover, it is also relevant to indicate that Shri T.S. Pandey, learned counsel for the contesting respondents has placed heavy reliance on the judgment passed by this Court on 10.08.2011 in Writ Petition No.1758 of 2010 (Union of India & Anr. v. Central Administrative Tribunal at Allahabad & Anr.)., the operative portion of which is reproduced as under:-
"The Tribunal has however disposed of the Original Application filed by the respondent no. 2 with the following directions, which is contained in paragraph 6 of the order. The said directions are quoted below:-
"In view of the above, I set aside the impugned order dated 01.05.2009 and direct the Respondents to consider the applicant for regularization in accordance with Rule, Notification etc. treating him within age limit. Keeping in mind the observations made above within two months of receipt of certified copy of this order and place him above his juniors in seniority with all consequential benefits/privileges"
From the above, it is clear that besides the direction for considering the case of the respondent no. 2 for regularization within two months, after treating him within the age limit, the Tribunal has further directed that the respondent no. 2 be placed above his juniors in seniority with all consequential benefits/privileges. The latter part of the order providing for the respondent no. 2 to be placed as senior to such persons who were his juniors, cannot be justified and such direction is liable to be quashed on the ground that it pre-supposes that the regularization of the respondent no. 2 has already been allowed. Even otherwise, the prayer made by the respondent no. 2 before the Tribunal was only for quashing the order dated 1.5.2009 and considering his absorption on suitable group 'D' post as per the notification of the Railway Board dated 11.5.1999. In our view, the Tribunal has thus erred in law in issuing directions in the latter part of paragraph 6 of its order dated 27.11.2009.
In view of the aforesaid, we modify the order of the Tribunal dated 27.11.2009 to the extent that the latter part of the direction given in paragraph 6, whereby it has been directed that the respondent no. 2 shall be placed senior to and above his juniors with all consequential benefits/privileges, is hereby quashed. The other direction to consider the case of the respondent no. 2 for regularization in accordance with rules/notification etc. applicable in his case treating him within the age prescribed limit is confirmed. The petitioner no. 2 (Divisional Railway Manager, Northern Central Railway, Jhansi) shall take appropriate decision in the matter with regard to regularization of the respondent no. 2 within two months from the date of filing of a certified copy of this order before the petitioner no. 2.
This writ petition stands allowed only to the extent as indicated above.
There shall be no order as to costs."
The said judgment has been assailed by Union of India before Hon'ble Apex Court in Special Leave to Appeal (Civil) CC No.3205 of 2012, but the same had been dismissed with following observations:-
"Delay condoned.
Having regard to the facts and circumstances of the case, we do not find it to be a fit case for exercise of our jurisdiction under Article 136 of the Constitution. The special leave petition is dismissed accordingly, keeping open the question of law sought to be raised in the petition."
This much is reflected from the perusal of the said judgment that though Hon'ble the Supreme Court had dismissed the special leave to appeal but had clearly proceeded to observe "keeping open the question of law sought to be raised in the petition".
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) II/95/pmI/1 dated 1.6.1999 and which clearly provides that ex-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.21799 of 2006, mentioned above.
Once this is the categorical stand, then the Tribunal has definitely proceeded on the wrong premise with the finding that some persons were accorded age relaxation and regularisation in 2010. From the perusal of the details regarding the age of the contesting respondents, this much is reflected that all have crossed 50 years and consequently in the light of the Railway Board's Letter dated 28.2.2001 and 20.9.2001, no positive directions can be issued in their favour. Moreover, the regularisation can never be claimed as a matter of right as has been held by Hon'ble Supreme court in the case of Vindon T v. University of Calicut, 2002 (4) SCC 726 and Mahendra L. Jain & Ors. v. Indore Development Authority & Ors., (2005) 1 SCC 639. Hon'ble the Apex Court in Government of Orissa & Anr. v. Hanichail Roy & Ors., (1998) 6 SCC 626 has considered the case, where the High Court had granted the relaxation of service conditions. The Apex Court held that the Court cannot take upon itself the task of the statutory authority. The same view has also been reiterated by the Hon'ble Apex Court in Secretary, State of Karnataka v. Uma Devi (Supra).
It is relevant to indicate that in Writ Petition No.21799 of 2006 (Union of India & Ors. v. Ajai Kumar & Ors.), a review application was filed by Shri Ajai Kumar and the Division Bench of this Court vide order dated 3.12.2011 had proceeded to dismiss the review application holding that where the Rules provide for maximum relaxation of eligibility including the age, the Courts do not ordinarily issue directions to exercise discretion to go beyond that maximum limit. Hon'ble the Apex Court in Uma Devi (Supra) had proceeded to observe that there cannot be recruitment to the regular posts dehorse the recruitment rules and therefore the applicant cannot claim that he is entitled for regularisation.
The Court also finds substance in the contention of the petitioners that under Rule 157 of the Railway Establishment Code, Volume-I, which has been framed by His Excellency the President of India under Article 309 of the Constitution of India and has got statutory force, the General Manager has been provided rule making authority for the condition of service of the Group 'C' and 'D' Employees, thus the instructions issued by the Railway Board regarding absorption, recruitment and promotion in respect of Group 'D' employees have got statutory force. The same has also been upheld by Hon'ble Apex Court in the case of B.S. Vadera v. Union of India, AIR 1969 SC 118, the relevant part of which is extracted below:-
"The Indian Railway Establishment Code has been issued, by the President, in the exercise of his powers," under the proviso to Art. 309. Under Rule 157 the, President has directed the Railway Board, to make rules, of general application to non-gazetted railway servants, under their control. The rules, which are embodied in the Schemes, framed by the Board, under Annexures 4 and 7, are within the powers, conferred under Rule 157; and, in the absence of any Act, having been passed by the 'appropriate' Legislature, on the said matter, the rules, framed by the Railway Board, will have full effect and, if so indicated, retrospectively also. Such indication, about retrospective effect, as has already been pointed out by us, is clearly there, in the impugned provisions."
In view of above, the Court is of the considered opinion that Railway Board being the competent authority has issued various instructions time to time in respect of service conditions of Group 'D' and Group 'C' staffs, in continuation of the same the matter of age relaxation in respect of Ex-Casual Labourers and working Casual labour was considered and number of Railway Board letters has been issued for granting age relaxation as well as regarding eligibility criteria. As per the Railway Board Circular dated 28.2.2001 in continuation of the Railway Board's letter dated 25.7.1991, age relaxation was further fixed as upper age limit of 40 years in case of General candidates; 45 years in case of SC/ST and 43 years in case of OBC and the same has also been granted in case of Casual/ substitute Group 'C' and Group 'D' posts. As such the Ex-Casual Labours are entitled to be considered in the light of the aforesaid Railway Board Letters and the incumbents' claims are liable to be considered for absorption with prospective effect. The Railway Board is rule making authority for Group 'C' and 'D' employees in view of Rule 157 of the Railway Establishment Code, Volume-I, thus, above instructions, which have been issued for absorption/ regularisation of ex-causal labours/ Group 'D' employees and once the Hon'ble Apex Court in series of judgments had categorically held that Railway Board has got rule 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 all 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 law 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 Tribunal cannot pass such an order, which is impermissible in law.
In view of above, the writ petition is allowed and the impugned order dated 06.11.2015 is quashed and set aside.
Order Date :- 4.2.2016 SP/