Rajasthan High Court - Jaipur
Union Of India And Ors vs Nehrumal Jain And Ors on 16 November, 2017
Author: K.S. Jhaveri
Bench: K.S. Jhaveri
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Special Appeal Writ No. 963 / 2011
1. Union of India (notice to Be Served Through the Ministry of
Railways), Railway Board Director (catering), Rail Bhawan, New
Delhi
2. The General Manager, West Central Railway At Jabalpur After
Formation of the Zones, Kota Division Lie in West Central Railway
in Place of Western Railway, Head Quarter Office At Jabalpur, in
Place Church Gate, Mumbai (maharastra)
3. Chief Commercial Manager (catering), West Central Railway At
Jabalpur After Formation of the Zones, Kota Division Lie in West
Central Railway in Place of Western Railway, Head Quarter Office
At Jabalpur, in Place Church Gate, Mumbai (maharastra)
4. Divisional Railway Manager, West Central Railway At Jabalpur
After Formation of the Zones, Kota Division Lie in West Central
Railway in Place of Western Railway, Head Quarter Office At
Jabalpur, in Place Church Gate, Mumbai (maharastra)
5. Senior Divisional, Commercial Manager, West Central Railway,
Kota (raj.)
6. Assistant Commercial Manager (catering), West Central Railway,
Kota (raj.)
7. Railway Catering Inspector, West Central Railway, Railway
Station, Kota (raj.)
----Appellants
Versus
1. Nehrumal Jain S/o Shri Chiranji Lal Jain, Asaya Bhawan, Kota
Junction, Kota (raj.)
2. Rakesh Kumar Yadav S/o. Shri Anurag Rai Yadav, Jain Marshal
Colony, Mala Road, Kota Junction, Kota (raj.)
3. Smt. Geeta Devi S/o Late Shri Hari Prasad Ji Sharma,
Refreshment & Tea Staff Railway Platform No. 1, Kota Junction,
Kota (raj.)
----Respondents
_____________________________________________________
For Appellant(s) : Mr. Shailesh Prakash Sharma
For Respondent(s) : Mr. Satyavarat Sharma
_____________________________________________________
(2 of 4)
[SAW-963/2011]
HON'BLE MR. JUSTICE K.S. JHAVERI
HON'BLE MR. JUSTICE VIJAY KUMAR VYAS
Judgment
16/11/2017
1. By way of this appeal, the appellant has challenged the
judgment and order of the learned Single Judge whereby the
learned Single Judge has allowed the petition preferred the by the
original petitioner-respondent herein.
2. The original petitioner herein preferred a writ petition before
this Court challenging the action of respondent whereby by order
dated 21.5.2001 (Annex.5), they issued guidelines for screening
of the existing commission vendors who were running the stalls at
Railway Stations more particularly to set aside condition No.4
where they have restricted activities for licence.
3. The learned Single Judge while considering the same
considering the original contract entered between the parties set
aside condition No.4 holding as under:-
11. Similarly situated persons as the petitioners
took up the matter and the Hon'ble Supreme
Court recognizing the right of the commission
bearers and vendors disposed of the petition
taking note of the earlier circular dated
13.12.1976 observing that "we hope that the
Government would take steps to absorb all the
bearers and vendors as mentioned above as
early as possible". One is constrained to observe
that the hopes expressed by the Hon'ble
Supreme Court in the aforesaid order which is
available as Annexure-R/2 with the reply at page
91 were belied and it was not till the order
Annexure-4 came to be issued by the
respondents on 6.11.2000 issuing the guidelines
and the directions for absorption of the persons
working as commission bearers/vendors and it
took further 6 months for issuance of guidelines
for the absorption on 21.05.2001 which are now
(3 of 4)
[SAW-963/2011]
challenged. The above facts only go to show that
the matter had remained under consideration
with the Railway Establishment over since 1976
and it was not till May 2001 that finally the
guidelines were issued by the Railway
department determining the criteria for the
absorption of the persons working as commission
vendors/bearers despite directions of the Hon'ble
Supreme Court in 1983. It has thus taken nearly
25 years despite the circular of 1976 and nearly
18 years from the order of the Hon'ble Supreme
Court dated 13.12.1983 for issuing the guidelines
in this behalf for absorption of the petitioners.
Therefore, there appears to be some substance
in what learned counsel for the petitioners
submitted that during this long period many such persons as the petitioners became ineligible on account of the inaction on the part of the respondents to frame the policies as was expressed by the Hon'ble Supreme Court under their order dated 13.12.1983. It is no doubt true that a person who enters service, enters the same with the hope of some amount for regularity and with a reasonable expectation for pensionary benefits. It is true that the time which was consumed by the respondents in issuing guidelines only as late as 21.05.2001 has been lost so far as the petitioners are concerned from 1976 to 2001 which if they had been absorbed by framing the scheme in time would have not only made them eligible for absorption but also retiral benefits on completion of qualifying service.
13. The Railway therefore cannot turn round and take advantage of their own wrong and inaction and say that now the petitioners are ineligible for being absorbed as they have attained 60 years of age and also that they would not be permitted to continue as commission vendors or perform the work which they are otherwise performing on failure to submit for screening. The exercise of the aforesaid option would in fact tantamount to their being rendered unemployed in their old age with nothing to fall back upon. In their case the Railways should, in the facts and circumstances which should have been narrated above, be directed to allow them to continue and perform their duties as license vendors and commission bearers and vendors as they had been performing prior to the issuance of the order dated 06.11.2000 and also the guidelines Annexure-5 dated 21.5.2001 prescribing the age of 60 years as the maximum age for being eligible for screening cannot be faulted. The writ (4 of 4) [SAW-963/2011] petition is liable to be dismissed so far as the aforesaid challenge is concerned.
15. However, in view of what has been held hereinabove, it is directed that such of the petitioners who wish to continue to perform their duties in accordance with the policy and the terms of their license as commission vendors/bearers should be permitted to continue despite their having attained the age of 60 years. The para 4 of the order dated 21.05.2001, Annexure-5 is accordingly quashed as being violative of Article 21 of the Constitution of India. It was submitted by the learned counsel for the petitioners that there is no upper limit for the commission vendors/bearers under the aforesaid policy. It is not in dispute that the petitioners No.1 and 3 have been continuing as commission vendors during the pendency of this petition also under the interim orders of this Court and they shall be permitted to continue if they shall be permitted to continue if they so desire on the same term and condition of their license.
4. However the learned Single Judge has upheld condition No.5 with respect to persons who are going to take after 2001.
5. We have heard counsel for the parties.
5.1 On condition NO.5 we are in complete agreement with the view taken by the Ld. Single Judge. It goes without saying that either side would be at liberty to take the appropriate action if there is any breach of contract.
6. The appeal stands dismissed.
(VIJAY KUMAR VYAS),J. (K.S. JHAVERI),J.
BMG 55