Central Administrative Tribunal - Jaipur
Surendra Kumar vs M/O Railways on 13 April, 2021
Central Administrative Tribunal
Jaipur Bench, Jaipur
O.A. No.40/2015
Reserved on :07.04.2021
Pronounced on:13.04.2021
Hon'ble Mr. Dinesh Sharma, Member (A)
Hon'ble Mrs. Hina P. Shah, Member (J)
Surendra Kumar S/o Shri Kishan Lal, aged 33 years,
qualified Trade Apprentice under Chief Works Manager, N.W.
Railway Ajmer and R/o 266/34, Near Dayal Beri Factory, Pal
Beechla, Ajmer.
...Applicant.
(By Advocate: Shri N.K.Gautam)
Versus
1. Union of India, through, General Manager, North
Western Railway, Jaipur.
2. Chief Works Manager, Loco Workshop, North Western
Railway, Ajmer.
3. General Manager, West Central Railway, Indra Market,
Jabalpur (MP).
4. Chief Personnel Officer, West-Central Railway, Indra
Market Jabalpur (MP).
...Respondents.
(By Advocate: Shri Anupam Agarwal)
ORDER
Per: Dinesh Sharma, Member (A):
In this OA, the applicant has prayed for the following reliefs:
"(i) the inclusion of the name of applicant in the list of 147 candidatures may be treated as (OA No.40 /2015) (2) application for engagement in class D service.
(ii) respondent No.1,3 & 4 may be directed to engaged the applicant under the control of any of them.
(iii) The seniority of the applicant may be fixed above the juniors.
(iv) Cost of this application may be awarded to the applicant.
(v) Any just and reasonable relief, the Hon'ble Tribunal consider just and reasonable in the facts and circumstances of the case."
2. Applicant has stated that he has competed 3 years Trade Apprentice course in the batch of 25 candidates in the year 2006 under the control of Respondent No 2. While Respondent No.3 was no inspection duty (in the year 2008), a list of 33 Trade Apprentices were submitted to him, in which 6 persons junior to the applicant in the batch of 2006 were included while his name was not included. Thereafter, on Respondent No.4 seeking further candidates (by letter dated 15.05.2008), a list of 33+147 candidates, including the applicant's name, was sent to Respondent No.4 on 17.09.2008 and 11.11.2008. Applicant came to know that all the 33 candidates were engaged by the Railways but the applicant was ignored. The applicant has filed two OAs before this Tribunal on this matter. The first one, OA No.214/2011 was disposed of with direction to decide on the applicant's demand. Another OA, (OA No.36/2012), during the pendency of which, the applicant alleges, 121 more (OA No.40 /2015) (3) candidates of 2009 to 2012 batches were engaged by the Railways, was decided, without going into merits, directing the applicant to apply as and when notifications are issued. The applicant applied on 27.04.2013 but has come to know (thorugh reply to his RTI query annexed at A/1), that no action has been taken to engage the applicant and hence this OA.
3. The Respondent No.2 (Chief Works Manager, Loco Workshop, NWR, Ajmer) has filed a reply denying the claims of the applicant. It is stated that the applicant has not cited any rule or law under which the respondent is obligated to engage him. The OA does not show any notification disclosing vacancies against which the applicant applied following the directions of this Tribunal in the earlier OA No.36/2012. Thus, there is no new cause of action. The reply also mentions that, though no longer relevant in the light of the judgment of the OA No.36/2012, even the apprentices already engaged were sought to be removed but stayed by the interim order of the Hon'ble Supreme Court and no course completed apprentices were being employed in the North Western Railways. The reply denies bias or discrimination against the applicant. It repeatedly stresses that in the absence of there being any notification calling for (OA No.40 /2015) (4) applications against vacancies, and the applicant applying against these, the applicant cannot ask for consideration.
4. The Respondents No.3 and 4 (General Manager, West Central Railway & Chief Personnel Officer) have also denied the claims of the applicant stating that the Apprentice Act has been enacted to regulate the training of the apprentices in designated trade. There is no obligation to appoint or absorb the trained apprentices. The only obligation is to provide training. The reply cites decision of the Apex Court in Chairman/MD Mahanadi Coalfields vs. Sadashiv Behera & Another [2005 (1) SC SLJ 254] and the judgment of this Bench of the Tribunal in Anil Kumar Gupta and Ors. vs Union of India to support this claim. Regarding the engagement of 33 apprentices and sending of a further list of 153 course completed apprentices, the reply gives details of a cases (then) pending in the Hon'ble High Court (Civil Writ Nos 4272/2005, 4273/2005 and 4274/2005, in which the Hon'ble High Court by their order dated 05.12.2007, had directed to terminate all the 370 apprentices. Following this decision of the Hon'ble High Court, it was decided not to engage anyone from the list of
153. The respondents have quoted from the decision of the Hon'ble High Court in these cases, where the Hon'ble High Court found consideration of course completed candidates (OA No.40 /2015) (5) only from Railway establishment (without considering other persons who had similar training from other institutes) to be violative of the Articles 14 and 16 of the Constitution of India. It also quotes from another decision from the Hon'ble High Court for discontinuance of substitute employees when regular employees are available. The reply also states that pursuant to the constitution of the Railway Recruitment Cell, the process of filling of vacancies of Group 'D' has become a constant process and as such there is no urgent need to resort to engagement of course completed apprentices (without fulfilling the proper recruitment process). The engagement of substitutes is, in any case, a stop gap arrangement and proper recruitment process should be followed so that equal chance is given to equally qualified candidates who apply for a job.
5. Rejoinders have been filed to both the replies, reiterating the applicant's case, and referring to Railway Board letters suggesting engagement of apprentices on a suo moto basis, notifying age relaxation in some cases, and consideration of candidates prior to year 2010 as substitutes, if suitable. The rejoinders also state that there is no order of the Hon'ble High Court or Supreme Court on record restricting or banning engagement of apprentices.
(OA No.40 /2015) (6)
6. The matter was heard through video conferencing on 07.04.2021. The learned counsels of both the parties repeated the arguments mentioned in their respective pleadings.
7. This is the third OA filed by the applicant on what is more or less the same matter that was agitated in the first two OAs. Prima facie, this should attract the principle of res judicata as the same matter cannot be allowed to linger in courts under one guise or another. In our opinion, the main reason why this Tribunal refrained from deciding this case on merits on last occasion, could be the absence of any prima facie merit in his case. As very clearly stated by the respondents, neither the respondents have notified any vacancy (till the filing of this OA) nor has the applicant applied against any such notification. Thus apparently, there is no new cause of action. We are reproducing our earlier decision in OA No.36/2012 in full here:
"During the course of arguments, a pertinent query is asked by this Tribunal to the learned counsel for the official respondents, whether the applicant is eligible to be given appointment on the post of Trade Apprentice or not? In response to the query made by the Tribunal, learned counsel appearing for the official respondents has submitted that the respondents had advertised for filling up the posts of Trade Apprentice but the applicant has never applied for the said post, as such, the question of considering candidature of the applicant does not arise. It is further submitted by the learned counsel for the official (OA No.40 /2015) (7) respondents that as and when the applications are invited by the official respondents for appointment on the post(s) of Trade Apprentice, the applicant may apply for the same and his candidature will be considered by the official respondents strictly in accordance with the provision of law.
2. In view of this statement made on behalf of the official respondents, without going into the merit of the case, we deem it just and proper to advise the applicant to apply for the post of Trade Apprentice as and when the respondents advertise for filling up the said post (s) and, in such eventuality, it is expected from the official respondents to consider the candidature of the applicant sympathetically and in accordance with the provision of law for appointment on the post of Trade Apprentice.
3. With these observations and directions, the Original Application stands disposed of with no order as to costs."
8. The applicant has not claimed non-compliance of this order or started any process of execution/contempt of court against the respondent for non-compliance. Thus, the only ground that they are seeking further adjudication in this matter is the use of words "without going into the merits of the case" in the above order. It can be argued that this matter is still barred by the principle of res judicata since the same Tribunal, which did not consciously go into the merits of the case at the time of adjudicating this matter last time, cannot now do so. The applicant, who did not file an appeal against this order for a decision on merit on this matter, and chose to live with the "advice" that he should apply whenever respondents advertise, has obviously acquiesced (OA No.40 /2015) (8) with that disposal of the matter. Our order has not given any mandamus to the respondents and has only "expected" them to consider the applicant's candidature, if he applies, "sympathetically". This order, though stated to be without going into merits, clearly implies lack of any legal right or claim. We are, therefore, inclined to conclude that the applicant's claim in this OA, based on the same facts, which were agitated before us in his earlier two OAs, is barred by the principle of res judicata.
9. However, in order not to further fuel continuance of this litigation from our side, we are also going into prima facie merit of the case of the applicant. The applicant's claim is to have himself engaged as a substitute since he is a course competed apprentice and 33 other course completed apprentices (those who completed the course in 2006), which included 6 persons "junior" to him were so engaged. The respondents have stated that the engagement of these 33 and 153 more (including the applicant) was involved in litigation before the courts. There was an interim direction from the Hon'ble High Court which prevented them from engaging anyone from the list, which included the applicant's name. The respondents have also stated that now, as a matter of policy, they are having regular recruitment and following the Hon'ble Court/Tribunal's (OA No.40 /2015) (9) orders in related cases, to consider all applicants fulfilling the conditions of advertisement (irrespective of whether they are course completed candidates from a Railway Training Institute). The applicant has not denied the litigation before the Hon'ble High Court/Supreme Court but has stated that presently there is no stay on taking apprentices. Looking at all these facts, it is clear to us that the applicant has not been able to show any law or rule which obligates the respondents to engage him. The applicant has cited letters from the Railway Authorities allowing engagement of substitutes from amongst apprentices, but none of these can be said to be conferring a right to the apprentices to get engaged. We also cannot apply the rule of seniority or juniority amongst the course completed candidates of any batch in the absence of any rule giving such right of consideration by way of their being in the list of pass out candidates in any order of seniority/merit. The respondents have made it clear that they have not discriminated against the applicant. An act of handing over a list during inspection in the year 2008, in which the applicant's name was missing, is, apparently, the sole ground for applicant to allege bias against him. The fact remains that later, the authorities asked for further list in which the applicant's name was included. It is also a fact that following judicial intervention, all engagements, (OA No.40 /2015) (10) including those of 33, were to be removed (which could not be done due to another intervention by the Apex Court). Be it as it may, in the absence of any legal and justiciable right, we cannot issue a mandamus to the respondents to engage him as a substitute, only because his name was, for whatever reasons, not in a list of 33 candidates (who were later engaged as substitutes) handed over to the inspecting authority in the year 2008.
10. In the aforementioned circumstances, the OA lacks merit and is, therefore, dismissed. No costs (Hina P. Shah) (Dinesh Sharma) Member (J) Member (A) /kdr/