Central Administrative Tribunal - Kolkata
Md Elias Khan vs Steel Authority Of India on 4 May, 2020
abi.
H. 1 t.a. 1.2013 with m.a. 719.2018
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CENTRAL ADMINISTRATIVE TRIBUNAL'
KOLKATA BENCH, KOLKATA
No. T.A. 1 of 2013 Reserved on .12.12.2019
i M.A. 719 of 2018 Date of order:
Present HotiTdIc Ms. Bidisha Banetjee, Judicial Member
HonT)le Dr. Nandita Chatterjee, Administrative Member
Md. Elias Khan,
Son of Late Md. Yeasin Khan,
Residing at Village - Panagarh Gram,
Post Office - Panagarh Bazar,
Police Station - Kanksa,
District - Burdwan,
West Bengal.
... Petitioner
VERSUS-
1. The Steel Authority of India Limited,
A Government of India Undertaking,
Service through its Chairman,
Having its office at 'Ispat Bhawan',
Lodhi Road,
New Delhi.
2. The Chairman,
Steel Authority of India Limited,
Having his office at Ispat Bhawan',
Lodhi Road,
New Delhi.
3. The Durgapur Steel Plant,
A Unit of Steel Authority of India Limited,
Having its office at Main Administrative Building,
(Ispat Bhawan),
Durgapur - 3,
District- Burdwan,
West Bengal.
4. The Managing Director,
Durgapur Steel Plant,
Having its Office at
Main Administrative Building,
(Ispat Bhawan),
Durgapur rr,3,
District - Burdwan,
West Bengal.
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5. The Executive Director (Personnel & Administration),
Durgapur Steel Plant,
Having its Office at Main Administrative Building
(Ispat Bhawan), 'A*.--
Durgapur - 3,
District - Burdwan,
West Bengal.
6. The General Manager (Personnel & Administration),
Durgapur Steel Plant,
Having his office at
Main Administrative Building (Ispat Bhawan),
Durgapur - 713203,
District - Burdwan,
West Bengal.
7. The Assistant General Manager - Pers. (NW & IR),
Durgapur Steel Plaint,
Having his office at
Main Administrative Building (Ispat Bhawan),
Durgapur - 3,
District - Burdwan,
West Bengal,
8. The Senior Manager - Pers. (CS),
Durgapur Steel Plant,
Having his office at
Main Administrative Building (Ispat Bhawan),
Durgapur - 3,
District - Burdwan,
West Bengal.
9. The Deputy General Manager (Law),
Durgapur Steel Plant,
Having his office at
Main Administrative Building (Ispat Bhawan),
Durgapur - 3,
District - Burdwan,
West Bengal.
10. Sri Dipak Kumar Mondal,
Working for gain as Technician (S-5 Grade),
Water Management Department,
Durgapur Steel Plant,
Durgapur -3,
District - Burdwan,
West Bengal,
Ticket No. 318877.
.... Respondents
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3 t.a. 1.2013 with m.a. 719.2018
For the Applicant Mr. J.R. Das; Counsel
Mr. S. Banerjee, Counsel
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For the Respondents : Mr. A. Roy, Counsel
Mr. T.K. Banerjee, Counsel
ORDER
Per Dr. Nandita Chatteriee, Administrative Member:
The instant matter has been taken up in compliance to the orders and judgment of the Hon*ble High Court at Calcutta dated 4.9.2018 passed in WPCT No. 36 of 2018 (The Durgapur Steel Plant, an unit of Steel Authority of India Limited & Anr. - vs.- Md. Elias Khan & ;<• :' ors.}. The directions of the Hon Tile Court upon the Tribunal were as 7 I follows:-
s . « Therefore, we are of the considered view, that the order passed in the writ application, has merged with the order passed by the Division Bench, where there was no direction upon the petitioners-Authorities to absorb the respondent No. 1 in an appropriate grade. As a result, in the second round of writ application, when the writ application was filed by the respondent No. 1, challenging the order of regularization of his services in the post of Jr. Technician, grade S-l, the learned Tribunal was under an obligation to arrive at a conclusion as to whether Junior Technician,-. Grade S-l was the appropriate post for regularization of services of the respondent No. 1.
On perusal of the order impugned to this writ application, we do not find that such a finding was in the order passed by the learned Tribunal.
Therefore, both the orders, which are impugned to this writ application, are quashed and set aside with a direction upon the learned Tribunal to adjudicate the issued involved in the transferred application expeditiously and preferably within a period of three months from the date without granting any unnecessary adjournments to either of the parties."
In the transfer Writ Petition, renumbered as TA. No. 1 of 2013, this Tribunal has been directed to adjudicate on the issue as to whether Jr. Techician, Grade S-I, was the appropriate post for regularization of services of respondent No. 1.
The arguments advanced" by the petitioner/applicant in support of his claim that he was entitled to regularization w.e.f. 24.11.2006 in the S-4 Grade are based on the following grounds:-
(i) That, the petitioner/applicant to the T.A. has been deprived twice by the respondent authorities in according him ^41---(j^ iir» Mr 4 t.a. 1.2013 with m.a. 719.2018 regularization. Firstly, he was not absorbed in the Durgapur / f Steel Plant (DSP) along with 55 other candidates in the year 4 4 1999, immediately after completion of the training period whereby all 55 candidates, save and except the present applicant had been appointed in S-I Grade and that he was forced to discontinue for no fault of his own.
Furthermore, it is only after a period of seven years, that he was absorbed pursuant to the judgment and order dated 8.6.2006 issued in Writ Petition No. 14939 (W) of 2002.
(ii) Being an unemployed youth, who was subject to harassment by the respondent authorities, he had no option but to accept such regularization orders dated 24.11.2006, and, that, although he accepted the said letter of appointment, he had immediately objected to the S-l Grade in which he was regularized.
(m) That, the respondent authorities, while acknowledging the same, had informed him that the said objection would be taken care of immediately after the orders of the Honhle Division Bench in FMA. 696/2007.
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(iv) That, all other 55 candidates were offered S-3 grade immediately after 18 months of their service in S-l Grade, but the present petitioner/applicant was offered S-3 Grade after a period of 8 years of his service in S-l grade indicating discriminatory treatment against the instant applicant. (V) That, although certain other trade apprentices, who had been similarly declared medically fit for 'non-works' area were absorbed immediately after completion of their training, the 'Hsfd'l..- \v.. ^ _■ - -a.
5 t.a. 1.2013 with m.a. 719.2018 if applicant has been singled out for discriminatory treatment / by the respondent authorities.
■f-; 2. The respondents, per contra, would argue as follows:-
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(i) That, the transfer Writ Petition renumbered as TA No. 1 of 2013 was disposed of by the Tribunal earlier on 24.2.2016 whereby the respondent authorities were directed to regularize the appointment of the petitioner/applicant in appropriate grade.
(ii) The respondent authorities had sought certain clarifications for better understanding of this Tribunal's order of 24.2.2016 but such prayer was dismissed by this Tribunal upon which, the authorities, being aggrieved by both orders of the Tribunal, approached the Honhle High Court at Calcutta in WPCT No. 36 of 2018, and, the Honble Court, having quashed both orders, directed the Tribunal to adjudicate the issues involved in appropriateness of the post in which the petitioner/applicant was regularized.
(mi That, the applicant had applied for Apprenticeship Training in •-•••- :• Durgapur Steel Plant while responding to an advertisement dated 15.10.1993, and, that, on selection, he was sent for medical examination before he could be engaged as a trainee. The applicant could not qualify in the medical examination, and, consequently, was not allowed to participate in the said Apprenticeship Training. Consequent to initiation of legal proceedings by the petitioner/applicant in C.O. No. 22326 (W) of 1995, and judgment and orders thereupon, the applicant was permitted to train as an apprentice with effect from 21.10.1996 and he completed his training on 21.10.1999.
The applicant was allowed to participate in the 71st All India Trade Test upon the interim directions of the Hon hie High Court at ', -•» ■< V 6 t.a. 1.2013 with m.a. 719.2018 ■ "T-' I! Calcutta in the petitioner's second round of litigation in W.P. No. 17126 (W) of 1999 and AST 40383/99. HonTde Court further m directed that his results could not be disclosed without leave of the court.
(iv) The petitioner/ applicant's results in the All India Trade test was declared on 12.7.2000, but, prior to considering him for appointment in the Durgapur Steel Plant, another medical examination was held (as per Rules) on 25.1.2001, whereby he was found medically unfit for "works area" and was, therefore, not offered any appointment by the authorities. Being aggrieved, the applicant again filed a Writ Petition No. 5438 (W) of 2001 (third stage litigation), inter alia, claiming to be eligible for appointment in < .i the "works area" of the Durgapur Steel Plant. On the basis of his submission that he could work in "non-works" area, the HonT>le Court directed that the applicant's vision is to be checked by the Burdwan Medical College and Hospital and, that, the respondent authorities were to consider the medical report from the Burdwan ' i'.V • -:,v Medical College arid Hospital so as to decide on offer of appointment to the petitioner, failing which they had to disclose the reasons of their refusal to the said petitioner/applicant. The authorities filed an appeal [MAT No. 46 of 2002 with CAN No. 615 of 2002] against the said order, upon which, the authorities were directed to constitute a medical board at the DSP Hospital for medical examination of the petitioner. The said medical board opined that the applicant was not fit for appointment in "works area" as per company regulations but was eligible to be considered in "non-works" area in Category-C post. / 7 t.a. 1.2013 with m.a. 719.2018
(v) The respondent authorities, after having considered the advice of I the medical board, could not ascertain any Category {C' post in m which his skills as a trainee in "plumbing" could be utilized m the interest of the Company. Further, based on the extant corporate strategy for rationalization of non-essential manpower, the respondents informed him of their inability to appoint him in •-
any such post.
(Vi) The applicant, thereafter filed another Writ Petition No. 14939(W) of 2002 in fourth round litigation which was disposed of on 8.6.2006 by directing the respondents to absorb him as a trade apprentice vis-a-vis the 55 candidates, who had been engaged as trade apprentice in that particular year. Although the respondent authorities appealed against the said order, they failed to obtain a stay thereupon, and, in response to the Contempt notice served by the petitioner/applicant, the respondents were constrained to appoint the petitioner/applicant as Jr. Technician S-I Grade in "non-works"
area making it abundantly clear in such appointment letter was issued without prejudice to their rights and contentions with respect to the pending appeal [FMAT 2907 of 2006]. The appeal * -W was finally heard by the Honhle Court, and, having noted that i the applicant had started working and is still working for a considerable period in DSP in SI grade, and, that, the respondents were not inclined to remove him from such job, the i.
Hon hie Court directed that his services could be regularized •i subject to results of the appeal. The Honhle Court, having recorded the submissions of the respondent in the appeal, (petitioner/applicant in the T.A.), appreciated the gesture of the
8 t.a. 1.2013 with m.a. 719.2018 appellants/respondents in the T;A. and directed the authorities to regularize his services in the appropriate grade and scale 4 within a specified time period. On 4.2.2009, the respondent authorities regularized the services of the petitioner as Junior '•* '• r' > ' Technician in S-I grade.
(vii) The applicant had unconditionally accepted the offer of the respondent authorities dated 24.11.2006 to be engaged as Junior Technician S-I Grade in DSP [Annexure P5 to WP 7251 (W) of 2009]. He, however, preferred a representation on 3.1.2008 staking his claim to S-4 grade.
(viii) While disposing of WPCT No. 36 of 2018, the HonTole Court had categorically observed that the orders of the HonTde Single Judge in WPCT No. 14939(W) of 2002 was merged with the final orders passed by a Coordinate Bench of the Court while disposing of the appeal. It was also noted that the appellate court had directed the authorities to decide on the regularization of the respondent to the appeal (petitioner/applicant to the TA), in an appropriate scale at an early date, implying thereby that j n the HonT)le Court while finally disposing of the appeal, did not / pass any mandatory directions on the scale or the grade to ! which the applicant should have been regularized. Also, vide orders in Writ Petition No. 36 of 2018, the HonTde High Court at •S ■ Calcutta has remanded the matter back to the Tribunal for adjudication on that specific issue.
(ix) Under the Apprenticeship Act, 1961, the petitioner had no legal right to be absorbed in a company even if he was engaged as a i.
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Trade apprentice as noted by Honhle Court while adjudicating r ■ ■ fr-
W.P. No. 5438 (W) of 2001.. Absorption in service being the f, V 9 t.a. 1.2013 with m.a. 719.2018 ■ -j* ■% prerogative of the employer, 55 candidates were absorbed as per r vacancies, their medical fitness and skills in relevant trades. The . ...
* applicant was found fit only for category 'C' post as per report of the medical board that had examined him under directions of the Hon^ble Court. The category 'C' posts, however, did not include 'plumbing', the trade in which, the applicant was trained as an apprentice. Accordingly, there was no available post to accommodate the petitioner/applicant.
(x) Although the orders of the Single Bench were merged with the orders of the Appellate Court, the applicant had never alleged violation of the appellate court's orders.
(xi) That, trade apprentices on completion of training and after qualifying in the trade test are all appointed in S-I category as per Rules subject to requirement of such manpower and availability of vacancies in the respondent company. Hence, all 55 appointees were initially appointed S-I category and that nobody could have been appointed outright in S-4 category at their initial stage of appointment. Accordingly, compliance to the directions of the appellate court that the authorities should regularize him in appropriate grade and scale could only be ensured as per regulations of the company governing initial appointment.
(xii) The petitioner/applicant had unconditionally accepted the offer of appointment'dated 24.11.2006. He took more than a year to object to the same, whereas, on the other hand, the respondent authorities had offered him the appointment without prejudice, subject to the decision of the appellate court. The said appellate court only directed regularization in appropriate scale / 10 t.a. 1.2013 with m.a. 719.2018 f -7! / and grade which, as per the extant rules of the respondent authorities, was S-I grade.
DISCUSSION
3. We have considered the rival contentions, examined pleadings, : documents on record as well as the written arguments filed by both Ld. Counsel.
4. The moot question before us is whether the petitioner/applicant has been regularized in the appropriate post and grade upon his initial appointment.
5.1. The history of litigations, when analyzed, reveal as follows:-
(a) That, the petitioner/applicant was an aspirant to engagement as a trade apprentice in the Durgapur Steel Plant (DSP).
(b) As he failed to qualify in the medical test, initially he was not '.V engaged as an apprentice and was so permitted.upon directions of the HonTde Court in CO No. 22326 (W) of 1995 (1st round of litigation).
(c) He attended his training from 21.10.1996 to 21.10.1999, but, as his course completion was delayed, he could not participate in the All India Council Trade Test in accordance with the original schedule. Vide interim orders in W.P. No. 17126 (W) of 1999 and AST. 40383/99, (second round of litigation), the Honhle Court directed the authorities to allow him to appear in the said examination.
(d) Upon completion of the trade test, and, disclosure of results i thereof, the applicant had to once again appear in another medical i examination wherein he was found medically unfit for the "works i area". Upon his approaching the Honhle High Court in WP No. '• v>* i.
5438 (W) of 2001 (third round litigation), and, in conjunction with ; i t 11 t.a. 1.2013 with m.a. 719.2018 % w the directions in MAT No. 46 of 2002 filed by the respondents, the authorities were directed to constitute a medical board at DSP for S* ■ ■•••■ • ■-
his medical examination.
(e) The medical board constituted under directions of the HonTole Court considered him eligible for Category 'C' post as per their findings on his medical status.
(f) The trade of 'plumbing' was not included in the list of Category 'C' posts.
(g) Corporate strategy of the company mandated rationalization of manpower in Category 'C' posts.
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(h) The applicant approached the Honble High Court in 14939 (W) of 2002 (fourth round of litigation) and .obtained,a direction to be absorbed by respondents as a trade apprentice belonging to the particular year where 55 candidates were given employment out of 56 candidates.
The respondent -authorities approached the Hon ble High Court in appeal but failed to obtain any stay and, under the threat of contempt, issued an offer of appointment in S-I grade to the petitioner/applicant without prejudice to their rights and contentions in the said appeal.
(i) The orders of the Single Bench of the Honble High Court at .....• i Calcutta was merged with orders in FMA. 696/2007. In their ii ii orders, the Honble appellate court, having acknowledged that the r ?:
applicant had unconditionally accepted the offer of appointment in If-
S-I grade, permitted the respondent authorities to regularize his a i services in appropriate grade and scale as per rules. The respondent authorities, thereafter, regularized the applicant in S-I ];
;■ grade and the applicant who had kept silent for more than a year ! ,1 rj '-vr ■i / 12 t.a.l.201B with m.a. 719.2018 'A' after receiving the offer of appointment, and, having joined such y post unconditionally, objected to the same in January, 2008 and / approached the Hon^ble Court in Writ Petition No. 7251 (W)/2009 ft in fifth round litigation. The said Writ Petition being renumbered as T.A. No. I of 2013, upon remand by HonTole High Court in WPCT No. 36 of 2018, is the subject matter of present adjudication.
5.2. We have carefully noted the respondents' submissions that there was no inclusion of "plumbing", the trade in which the applicant was trained, in Category 'C' posts.
7": ■ u-, In this context, the analysis of the medical reports and conclusions drawn thereupon by the Respondents as disclosed vide ' ' their communication dated 11.9.2002, is relevant. This communication was issued in compliance to Hon'ble Court's directions in WP No. 5438 (W) of 2001.
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The said letter, annexed at P3 to the WP No. 7251 (W) of 2009 is reproduced as below:-
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By Rogd* Post v/lth A/D, i
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STEEL AUTHORITY OF INDIA LIMITED
DUFGAPUR STEEL PLANT
No .PL-1/10 .42/TA/2002/196 Datod H1th September, 2002
.Md# Elias Khan
S/o*^ LateMd. Yoasin Khan
Village Panaqaxah Gram
P .0, Panagarh Bazar,
P,S. KanJesa,
Dl st ♦ Burdwan.
Ro j-MAT No, 46 of 2002 With CAN 615'of 2002 SAIL-" Vs - Md* Elias Khan .
Dear Sir, In pursuance of the order dated 1st July, 2302 In the j matter and the order dated 28th November/ 2001 in .the matter'of i W.P. No. 5438(w) of 200 1 pas sod by tha Hon'.bid High Court, Cal-d your casa has boon considered by tho undorsignod ao horeundor*.
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1. In pursuance of tho order dated 15th July, 2002 in the above matter and thg order dated 2(3th November,' 2001 in th'o ' Biatter in W.P, 5438 (W) of* 2001 passed by" tho Hoh'bio Calcutta High Court the Case of Md./Elias Khan has been epneidored by the:
undersigned as General Manager (P&A) sinco'thora ls;tho ono :
functioning at present as Executive Director (P£A) V The .under signed is exercising the power of Executive Director :(P£A) ifi OS5. On consideration of the case the. following points emerge .»'
a) Md*. Elias Khan S/o Late Yeasin Khan resident of Vlllagd •*> % .1.2013 with m.a. 719.2018 14 t.a M * '
2 -
Panagarh Gram » P*0. Panagarh Bazar, P.SKanlcsa, Dist.v Burdwan -
\ on being selected through an intorviw fox ongagomont as a Trade Aporentice'ln DSP In 1993 was referred for Medical Bxo/nination in Durgapur Steel Plant Main Hospital on 2nd December/ 1993 ♦ where he was found until duo to poor vision • Therefore, leter of engagement as Trade Apprentice was not issued to him♦> Three other candidates of 1994 batch/ namelv S/Sri Flanjit Kumar Mondal/.-i Debasis Mondal and Partha Chatterjoo were declared unfit duo to colour blindness*. These four candidates wore once again referred to DSP Main Hospital to assess thoir fitness for non- wetis area*. On examination the medical authority found them fit for non-works area*.
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b) On the basis of the said Medical Ro-£xamination/ three candidates namely S/Sri Ranjit Kumar Mondal, Dabdas Mondal and Partha Chatterjee who were colour blind cases, joined in 1994 as trade apprentices in non-works area Md^Khan havir^j poor vision/ was not engaged Md*( Khan preferred a v;xlt petition be- ■ fore the Hon'blo High Court , Calcutta in 1995 inter alia claiming that ho should bo engaged as a trade apprentice in DSP*
c) Pursuant to direction of Hobble Court on hie writ peti tion, Md*, Ellas Khan was subsequently allowed to report for apprenticeship training on 22..10 *,1996, He completed the training on 21*(10 •11999 • <0 *.* •.
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AlT.T'he 'was acain modlcally oxaminad on 26i0i*(2001 ^ Ho v/as .. ■ . i found ur.iiw ;cr ti'. q v.or;;? -roa hence no offored employmont f. DSP .
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•) Being aggr'.u ved i-o triad another writ petition No.)
- 5433 (:.V) /'SC'o I before t.)a Mon^lc Calcutta'.High..Court v.hich
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was disposod-of cr. 23th .'^cvcaber,1 2001 intor alio .v/ith. the ,
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dlrocticn that 'respondent authority shall roquos.t ttho' Bur.dwan ■
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::< • Medical College & Hospital! to constitut-o a'medical^board for , .
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the Medical 2>:a;nir\ation- of the potitiibhdr as to..whether ho has .perfect vision in one oye and he#is capable Pt doing tho job . I in works area. It was further, directed that the respondent authority snail consider ino caso of petltionor in Ihe works aro of non-works area as he case may bo #4 Such decision is to be .. taken within throe ircnths from the date of receipt of medical . report^ It was further orcoro'd by the Hon'blo Court that ,In ' ... * v. , . * ' ease Cl? fines anv diff 1 cuity'In giving, appointod to the potit •• . V.'. 'v oner ,t CS? mu si disclose, specific driftaaph therbof end cofrcounicat the reason to the potitiono r>,.. ■ rr *• *- ■ s -; <r ■ An appeal v:as filed against th'o said oraor dated 2Gth Nov ember,'• 200 1 *. In'pursuance of the order of the Hon^blo Appa Court Md, Elias Khan was examined -by-^a- duly'Constituted medica board of DSP on p4*;j5*2002v He was. found unf.it for Works area and u said fit for non-v.!orks area in category' *C|r .posts montic .1 in the Regulations for medical examination .of- candidates fbj t 4 contd*,*;
i !( 16 ta . 1.2013 with m.a. 719.2018 i / J r -- A *» A appoint-aent In i'-.lL1' Tho Medical Report dated 4th f.tayf2O02 .
. is reproduced : -low The coord consldored tho report dated 07*p2*p002 of Burd^an Modicaj Collogo £ Hospital and also Regulations for : "medical .e*ajLini-.-icn o; candidates for appointment in SAIL, As Paragraph of tho said regulation'it states ■ 'that the procedure applfced in case of all the drrployoos to .be *
- recruited in SAIL, which includes in fioruoxocutivos-also(6*^,4i) •" .t. ■ Since:Khan was a Trade Apprentice it falls undorthoycatego.ry
- - B (6 ,2.4 *2-vm), ■The Medical examination of tho non executives given ''at para 6.3.3., and category 13 workers at 6.3'.p.2r On Medical Examination tho Board found . 1 * * Acuity of Vision v Acauity of Naked' With glasses#/ Vision- • •RE ••• . 1 :0/Q6V.O': *6^^jwith:0^75 Doyl P0° Distance Vision LE' . 6/9 0/9 with -0.25 Doyl 90° RE Near Vision LE l-I. Colour Vision - Normal r v • 111 . Cptholmi-c Examination - RE Ambbopro. ' • . LE - formal,' .
/' contd * •• t .719.2018 1.2013 with m.a 17 t-a ./ .5.- -/il' / v.'hllo nako tho comparison .vdth tho Bur<^var\ Medical l College & Hospital findings it la observed that on keeping tho i r power of tho .glasses are sa^a as KB 0*75 Doyl 90® ^ 0*25 Oi r' 90° • Tho Acuity o: vislonby tho Board was found to bo 6/24 in RH* The acuity of vision by tho Board was found.to bo 6/24 in ' RE* The Qc*vu ! 4.
i- « y of vision difforo from tho Burcfcvan Medical Colla \ g, Hospital finalising ^ Thoro is-no diffoxonco in findings in lJ A's par thg £A1 regulation distance vision i*o*t Acuity^ of vision should hava boon 6/12 without glasses in case of thos below 35 years of age*. Since Md* Elias Khan is c.v years 3 months' has distance vision with glasses should have boon 6/12* But his distant vision Fli* was found 6/24 which Is below the eligible yio of appointmentv Therefore as per SAIL regulation ho is not fit f< appointment in tho works area* Since in Category of the distant -vision should be 6/is with or without, glasses in both eyes end iri one-oyod person 2 6 in the healthy 0yo considering his LS vision 6/p he may bo said fit for Non-vyorks .aroa.u ' ' •
g), . . As per the SAIL '* Regulations for medical examination of candidates'for appointment in »SAIU» following posts are Included under said category 'C.-post* Category (-C,. Workers engaged in oth^'r Jobs .outoido the plant' or-outside the mines and not covered under catotory tA 1 and contd Lx', 18 t.a 1.2013 with m.a. 719.2018 <- p-jO 6 -
1) All unskilled workers omploybd in township..
Unskilled v/orkers in tho'minoo Ihciudino watar,'
ii) carrior canteen boys and: any other designations not covered..
iii) Canteen Staff. ♦
iv) Horticulture staff
v) Kanistorial staff and kindred occupations •
vi) Para-medical workers nurses and public' health workers; /
. 1 vii) Teachers
viii) Recelptionist
lx) Rciophons Curators,\ telex operators^ wireless
operators lift operators
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xO Time Keeper Staff*
N/h) Md*. Eliae was a Trade Apprentice in the trade of
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plumbing which falls under category' 'D1 in the said regulation
. for medical examination of candidates for appointment in "SAIL1' In the mod cal 'Examination Md*, Elias Khan hae found fit only for category C » posts in the non-works area, listed in above* Para, which does not include any posts on which his skill in plumbing made can ho utilised in the interest of v/oik of the company* Moreover there is no requirement of manpower in any post listed in the saidj category* C In fact that contd*,*.
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I:"- .'U£t.;i (. 1s t thust area for rocJuctlon of monpowor in our on going i-..:
t0 0PitQisQ manpower in DSP,-aa por corporate ctratogv*) ?
j I t jr2* - . is- thereforo, found that there is .no scope to M ['iappoint Md.,.Khan .oither in works area';dr in non^worko. •' 4 rf« ^OSP" area •, i ?v--/ ** ' \i i $ JV.
■■-A,] j ; As per diroctivo of the 'Hori^blo 'High Court the ' .i r> °f your cas 0 r.a 6 Pshderit authority of DSP is1 * ! . , ,v> r conmuhicated' to you . ' 5'' t,' .
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Thanking you,- f r
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<* • a •. Sd/- Niiptpal Roy i
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( Nilotpal Roy) : ! &
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l v General Manager '1/C(P&A)' :
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We find:
(a) That, the respondents had carefully distinguished the cases
of the petitioner/applicant with that of other three candidates of 1994 batch. The other three candidates were 'colour blind' and were allowed to join as trade apprentices in "non-works"
f area whereas the petitioner/applicant, having poor vision, was found fit only for "non-works" area in category "C" posts.
(b) The respondents analyzed the results of the medical examination as per their extant Regulation (6.2.4.2 - VIII) and 6.3.3.2. The applicant's visual disabilities culminated in his ineligibility for appointment in "works area" in the interest of safety of the plant.
(c) The said Regulations entitled him for appointment in Category "C" post. "Plumbing", in which the ivy L''*' . Sg-4*t*0t**m'*~'** k V f ?f fc*^/ 20 t.a. 1.2013 with m.a. 719.2018 .
■*%f y petitioner/applicant had trained, was not included in j Category "C".
1 (d) Further, as VRS had already been introduced in DSP as a part of corporate strategy for rationalization, there was no ill scope to appoint the applicant in non-essential posts. f! Hence, it is well established that the applicant could not have been U appointed prior to Honhle Court's orders in WP. No. 14939 of 2002 as i.! ih his medical status did not entitle him to any post in "works area" on ! grounds of safety and Category 'C posts in "non-works" area in which he > was reportedly fit, did not include the trade in which he was trained as an apprentice. Herein we would refer to the observations of Honhle Court :: dated 28.11.2001 in WP No. 5438 of 2001 which noted as follows:-
1 I « Admittedly, poor vision would be a hindrance for performance of il:.
work in the work area, which may not only endanger the life of the petitioner ! and property of the respondents but also of the lives of other co-workers. 4 I Unless one possesses the standard of health and is medically fit, one cannot claim appointment. At the same time, Section 22 of the Apprenticeship ■! 1 ?
r Act prescribes that such apprentice does not ensure employment. It does not create a right in favour of the workman nor an obligation on the part of the i.
employer. The offer of apprentice itself contained a clause which proves that the !i petitioner by reason of said apprenticeship cannot claim employment. The position in law is well settled. In any event, a training of apprentice does not J entitle a workman to be absorbed nor it confer a right of appointment in favour t of the workman. Neither it creates any obligation on the part of the employer to li give appointment to the petitioner after successful completion of ■ apprenticeship."
While on this issue, we would refer to the Honhle Apex Court's directions in Lt. CDR. M* Ramesh v. Union of India & ors, (2019) 1 SCC (L&S) 213 reiterated in Dinesh Kumar Kashap v. Union of India Ir f! f|;! & ors. (2019) 3 SCC (L&S) 693, in which the Hon'ble Apex Court had r !f;:M ruled that it is not incumbent upon employers to fill all posts but such discretion should not be arbitrary, capricious and whimsical. In the ■;
m instant matter, the respondent authorities explained that the Company L. was rationalizing category fC' posts. Category 'C' posts did not include a plumbing and also there was no need to engage a plumber. 21 ta. 1.2013 with m.a. 719.2018 5.3. We note therefore that the applicant was appointed on 24.11.2006 to comply with the orders of the HonTole Court in WP No. 14939 of 2002 (Single Bench) subject to outcome of appeal in FMA No. 696/2007. The appellate court issued its orders on 11.12.2008 and the authorities mued the regularization orders on 4.2.2009 in compliance. 5.4. The petitioner/applicant therefore cannot claim any benefits viz-a- viz candidates engaged prior to February, 2009 as because his regular {;
appointment commenced w.e.f. 4.2.2009. 5.5. It is not the petitioner/applicant's case that initial appointment of Jr. Technicians in DSP starts in scale S-4. Regulations of the respondent company also demand that the employees move up a career ladder Grade S-F onwards. The petitioner/applicant has not brought before us any regulation to the contrary that establishes that S-4 is the appropriate grade for the initial appointment of Junior Technician. Rather he has himself averred that all 55 candidates were appointed in 1999 in S-I grade.
5.6. The applicant accepted his initial offer of appointment in 24.11.2006 but he kept silent till January, 2008, before objecting to his ' *-v'* > * .* grade. The arguments of his Ld. Counsel that, being vulnerable, he had no option but to accept such offer does not appear to be convincing as he could have accepted the offer of appointment without prejudice. It is noted here that the respondent authorities, however, had offered him such appointment without prejudice to their rights and contentions in their appeal.
5.7. The appellate court's orders were the final orders on the petitioner's prayer for being appointed in Grade S-4 and appellate court, while passing its orders, categorically observed as follows (emphasis supplied):-
" Going through the offer of appointed dated 24th November, 2006, we find that the writ petitioner was offered appointment as Junior Technician, S-I grade in Non-works area of Durgapur Steel Plant. Although the learned Single Judge tfWJj j A/-''
-f /'S;-..,. 22 t.a. 1.2013 with m.a. 719.2018 V directed the concerned authority of the appellant company to absorb the : petitioner as Trade Apprentice belonging to that particular batch where fifty five candidates were given appointment out of fifty six, the said authority of the appellant company, however, issued offer appointment to the writ petitioner as Junior Technician, Grade - I and the said writ petitioner also accepted such appointment without raising any objection. Therefore, both the offer of appointment made by the appellants and acceptance thereof by the respondent/writ petitioner are not strictly in terms of the order under appeal passed by the Learned Single Judge, The learned Counsel representing the appellants, however, fairly submits that since the said writ petitioner has been working for a considerable period, the said appellants are not inclined to remove him from the job at this stage but his service would be regularized subject to the result of this appeal.
Ms. Debjani Sengupta, Learned Counsel representing the respondent/writ petitioner submits that the said writ petitioner should be absorbed in S-IV grade instead of S-I grade.
We are not inclined to enter into the aforesaid dispute as the concerned authority of the appellants offered appointment to the post of Junior Technician, S-I grade to the respondent/writ petitioner and the said writ petitioner had accepted the same on his own accord without any specific reservation.
In any event, we appreciate the gesture of the concerned authorities of the appellants and dispose of this appeal by directing the appellants herein to regularize the appointment of the writ petitioner in an appropriate grade and scale at'an early date but positively within a period of four weeks from date."
The HonT^le Court appreciated the gesture of the appellate respondents that he was offered appointment in S-I grade. The HonTde Appellate Court also noted that the Writ Petitioner had accepted the same on his own accord without any specific reservation. Accordingly, while directing regularization, there was no indication or orders by the HonT>le appeal court that the petitioner/applicant was to be regularized in any other grade.
5.8. The respondent authorities had made it clear, that, as per rules, all initial entrants have to be engaged in S-I grade and, there is no scope under their extant rules to appoint a new entrant in S-4 grade and that all others who had been engaged were initially in S-I Grade who gradually moved up to subsequent grades in their years of service. The respondents have painstakingly explained that others were engaged as per their eligibility in both "works" and "non-works" area as per actual requirement of the trades and availability of vacancies, vis-a-vis the 23 t.a. 1.2013 with m.a. 719.2018 .
applicant who was trained as a plumber and whose skills were neither listed nor required in the respondent company. 5.9. The applicant's averments that he was twice deprived does not hold good. The applicant was not initially engaged as a trade apprentice as he lu (1 failed in the medical examination. He was initially appointed vide orders n?
Iff of the Honhle Court's dated 8.6.2006 and thereafter regularized vide Honhle Appeal Court's orders dated 11.12.2018. The fact that he did not object to S-I grade at the initial point of entry on account of his •• ... - .
vulnerability is contradicted by his unconditional acceptance. 5.10. The fact that the applicant was offered S-3 grade after a period of 8 years as compared to others who were offered after a period of 18 months is not correct as because the applicant was regularized only in the year 2009 whereas the other incumbents were regularized right after qualifying in the trade test and medical examination. The fact that others have been engaged despite being medically unfit has been explained by the respondent authorities in justifying the need of such trades, availability of vacancies and medical fitness of cited candidates.
' .vr7',,' 5.11. In (i) Madhya Pradesh Electricity Board v. S.S. Modh, %JT 1997 (7) SC 682;
(H) Transmission Corporation of A.P. Ltd, v, P, Surya Bhagvan, (2003) 6 SCC 353;
(Hi) Safai Mazdoor Sangh v. Municipal Corporation, 1995 Supp (1) SCC 227;
(iv) Syndicate Bank v. Shankar Paul, 1997 (4) SLR 802 (SC);
(v) Union of India v, Kishan Gopal Vyas, (1996) 7 SCC 134;
(vi) K. Gopinathan v. Union of India, (1992) 4 SCC 701;
(vii) Government of TN v, G, Mohamed Ammenudeen, (1999) 7 SCC 499,"
Lc 24 t.a. 1.2013 with m.a. 719.2018 The HonTole Apex Court had laid down the set of consistent principles of absorption as follows:-
(l)The claimant for absorption must be qualified to hold the post.
The relevant date for determining the eligibility criteria for the purpose of absorption is relatable to the point of time of leaving ;i a . i the service by the ex-employees.
ij (2) The staff requirement and financial burden on the employer will have to be considered.
r (3) Absorption cannot be made where it would amount to i • disregarding appointment rules.
(4) The mere inclusion of a name in the panel for absorption does not confer any right to seek permanent absorption. i (5) Basic pay cemnot be reduced on absorption.
.it
■i
s r
(6) Formulation of a scheme for absorption. In the instant case j the applicant had failed in his medical ;■ .&■ examination and, hence, at the outset, was not qualified as to be eligible ft ■A for appointment in the respondents' company. The respondent ■(& n ii authorities were shy in engaging an incumbent suitable for a non-priority IS li w .* fe; area as they were undergoing a rationalization process in order to reduce S;
1 m their financial expenses, particularly, in the case of non-essential staff. PI Accordingly, the first three conditions not having been satisfied in the ii M case of the petitioner/applicant in 1999, his claims for S-4 Grade vis-a- vis other incumbents who were absorbed upon qualifying in examinations, subject to availability of vacancies and requirement of their skills, cannot be entertained. 5.12 Further, in State of UP and others v. Raj Kiran Singh (1998) 8 SCC 528 it was held that continuance in service under interim orders of i 25 t.a. 1.2013 with m.a. 719.2018 the Court does not improve claim of regularization. In particular, the HonTole Court held as follows:-
m •...
"..... Besides, merely because' a person continues under the interim orders of li the Court, such continuance to the post cannot and, in this case, does riot § .i §i confer on him any right for continuance, it does not enhance his case for J II 5 regularization. It is only an interim arrangement pending decision by the Court and cannot disturb the position in law or equities, as on the date of the petition."
i 13 ■!
,i
CONCLUSION
j 6. In this case, the applicant was engaged as a trade apprentice upon 'M ■n .2 hi:
§ 1 directions of the Honlile Court and was allowed to appear in the trade 1 fi test by virtue of interim orders. The matter was finally adjudicated upon f! .M i in appeal in FMA No. 696 of 2007 wherein the Rouble Court noted that I is the applicant had accepted his S-I grade without any objection.
Accordingly, the petitioner/applicant cannot claim benefit of I f enhanced grade S-4 as such claim is not supported by the extant regulations of the respondent authorities. We are hence of the considered view that the applicant was correctly regularized in the post of Jr. Technician in S-I grade in authority's orders dated 4.2.2009.
7. The O.A. is dismissed. There will be no orders on costs.
M.A. No. 350/00719/2018 for early hearing of the O.A. is disposed of accordingly.
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(Dr, Nandita Chatterjee) (Bidishct Banerjee) Administrative Member Judicial Member o.
SP