Central Administrative Tribunal - Delhi
Ram Hirday Rai vs M/O Railways on 14 September, 2015
Central Administrative Tribunal
Principal Bench
OA NO. 493/2008
Order Reserved on: 27.08.2015
Pronounced on: 14.09.2015
Hon'ble Mr G.George Paracken, Member (J)
Hon'ble Mr V. N. Gaur, Member (A)
Shri Ram Hirday Rai,
S/o Shri Ramji Rai,
Mason (Ad hoc),
Under Chief Signal Inspector (C),
North Central Railway,
Mathura.
- Applicant
(By Advocate: Sh. Amit Kumar)
Vs.
Union of India through
1. General Manager,
North Central Railway,
Allahabad.
2. Divisional Railway Manager,
North Central Railway,
Agra.
3. Chief Signal Inspector (C),
North Central Railway,
Mathura.
- Respondents
(By Advocate: Sh. Shailendra Tiwari)
ORDER
Hon'ble Shri V.N.Gaur, Member (A) The present OA was filed by the applicant on 23.11.2007 with a prayer for direction to the respondents 2 OA-493/2008 to consider his case for regularisation in terms of Rule 2007 (3) of Indian Railway Establishment Manual (IREM), Volume II with effect from the date from which similar staff in the skilled categories had been regularised. The OA was considered by this Tribunal along with OA- 245/2008 and it was noted in the order dated 22.11.2008 that the applicant had sought benefit of regularisation in skilled category in Group-C post relying on a decision of a Coordinate Bench in OA-827/2005 titled Jagadamba Prasad and another vs. Union of India and others decided on 30.03.2006. In that case the Tribunal had relied on the decision of the Apex Court in Inder Pal Yadav vs. Union of India, WP No.548/2000 decided on 13.01.2003 and also Badri Prasad & others vs. Union of India & others, 2005 (4) SCALE 725 and issued directions to consider absorbing applicants therein against Group-C posts in 25% promotional quota. The Tribunal‟s order in OA-827/2005 was stayed by the Hon‟ble High Court of Delhi in CM no.12966/2006 in WP (C) no.15982/2006 with the following observations:
"It is stated by learned counsel for the respondent that the respondent has been called for trade test for his regularization in Group C service. However, learned counsel for the petitioner submits that in so far as respondent is concerned, he may get regularization in normal course. In so far as impugned judgment is concerned, which will have far reaching effect in other case, operation of the judgment is stayed."
3 OA-493/2008
2. After also noting the Full Bench decision in Ganga Ram and others vs. Union of India and others, wherein it was held that decision of Tribunal remained effective until set aside, reversed or modified, the Tribunal issued the following direction in the present case 22.11.2008:
"7. Be that as it may, in order to avoid conflict and in the wake of doctrine of precedent, these OAs stand disposed of with liberty to the parties to revive them at an appropriate stage, subject to the final outcome either in the stay application or the Writ Petition filed (supra) before the High Court."
3. In the meantime, the applicant who was initially appointed in the skilled category and had acquired temporary status in the grade of Rs.3050-4590 on 14.09.1985 was sought to be regularised by the respondents, finding him suitable for a Group-D post, by an order dated 12.06.2009. This order was stayed by this Tribunal by order dated 25.09.2009 passed in MA no.1317/2009 in OA no. 493/2008. The applicant filed another MA 3198/2014 on 26.08.2014 stating that he was going to retire on 31.01.2015 whereas his status as Group-D or C employee had not been conferred by the competent authority because of the above mentioned orders passed by this Tribunal. It was, therefore, prayed that OA no.493/2008 may be recalled for passing an appropriate order directing the respondents to regularise the applicant in Group-C post in skilled category. By 4 OA-493/2008 order dated 12.01.2015 MA no.3198/2014 was disposed of reviving the present OA.
4. When the OA came up for hearing on 27.08.2015 the learned counsel for the applicant Sh. Amit Kumar submitted that earlier the OA was adjourned sine die because of the plea of the applicant that his case was similar to the case of the applicants in Jagadamba Prasad (supra) in which the order passed by this Tribunal had been stayed by Hon‟ble High Court of Delhi. However, the facts would show that the applicant is not identically placed as the applicants in Jagadamba Prasad (supra) because the applicant in the present case was recruited as casual labour in the skilled category and has never worked in Group-D even on casual/ad hoc basis. The applicants in Jagadamba Prasad (supra) were regularised Group-D employees and thereafter had worked as ad hoc Group-C skilled worker. The applicants had challenged their reversion to their substantive grade in Group-D category. This Tribunal had allowed the OA by directing the respondents therein to consider the applicants for absorption in Group-C post against 25% quota meant for promotion. According to learned counsel the ratio of that judgment that after having worked in Group C post for a long time a person can not be reverted 5 OA-493/2008 to a lower post, would be applicable in this case also. He also referred to full bench judgment in Ganga Ram (supra) to argue that a stay granted by the High Court on the order of the Tribunal would not amount to reversal of the order of the Tribunal. Such an order would not be binding until the decision of the Tribunal is set aside, reversed or modified by a higher court.
5. Giving factual details of the case, learned counsel stated that the applicant was appointed as casual Mason (Group-C) on 18.12.1975 and was conferred temporary status in the year 1984-85 as MRCL in the skilled category of Mason Grade in the pay scale of Rs.260-400 which was revised to Rs.3050-4590 with effect from 01.01.1996 and Rs.5200-20200 with Grade Pay of Rs.1900 with effect from 01.01.2006. The applicant while working as Mason (Group-C) retired on 31.01.2015. The applicant could not have been considered for regularisation in Group-D post as he never worked in that capacity starting from his engagement as a casual employee in 1975. It was for this reason that the applicant had approached this Tribunal for staying the operation of the order dated 12.06.2009 passed by the respondents regularising the applicant in Group-D while 6 OA-493/2008 another similarly placed MRCL has been regularised in Group C. Relying on the Apex Court decision in Ram Kumar & other vs. UOI, 1987 SCALE (2)1192, learned counsel stated that the applicant cannot be regularised in Group-D as that would tantamount to reversion from Group-C post held by him in the past, in violation of Rule 2007 (3) of IREM Vol-II. He further referred to OA 1124/1996, Ram Singh & Others v UOI & Others, in which the Allahabad bench of this Tribunal had, relying on Ram Kumar, had directed the respondents to regularised the applicants in that case.
6. Per contra the learned counsel for the respondents argued that Rule 2007 (3) of IREM Vol-II was not applicable to the applicant, as was held by the full bench of this Tribunal in the case of Aslam Khan vs. Union of India and others, 1997-2001 AT Full Bench Judgments
152. He further relied on the Apex Court judgment in Inder Pal Yadav (supra) in which it was held that working on the provisional promotional post of Group-C would not confer any right to be straightway put to Group-C post without subjecting to the due process as the higher position was earned provisionally on the said post. Referring to the Railway letter no.
7 OA-493/2008 E(MW)II/77/CL/46 dated 08.06.1981 and Railway Board circular dated 09.04.1997, the learned counsel stated that the applicant had to be absorbed in Group-D post first and only thereafter he could be considered for promotion against 25% quota. He further brought out that it was not correct that his representations have not been considered by the respondents. He cited the DRM (P), Agra letter dated 11.01.2008, acknowledged by the applicant on 02.02.2008, that the applicant could only be considered for Group-D post. Learned counsel further clarified that even for consideration for promotion against 25% promotion quota, there has to be a vacancy which in the present case did not exist as there were only four sanctioned posts in the Mason cadre and there was no vacant post against 12-½% Departmental Artisan Staff. According to the learned counsel for the respondents, once the order of this Tribunal in Jagadamba Prasad (supra) has been stayed by the High Court no decision can be taken in the matter of the present applicant.
7. We have heard the learned counsels and perused the record. This OA was at first disposed of by this Tribunal by order dated 22.11.2008 with liberty to the parties to revive it at an appropriate stage subject to the 8 OA-493/2008 final outcome either of the stay application or writ petition filed (supra) before the High Court. The case is still pending in the High Court, but the prayer of the applicant, who has already retired from service without getting his retiral dues either in Group-C or Group-D, is to pass an appropriate order in this OA without keeping it pending any further.
8. The questions that we have to consider are:
(a) Whether the ratio of Jagdamba Prasad case would apply to the applicant. If yes, whether this Tribunal can pass any order in face of stay granted by the High Court on the order of this Tribunal.
(b) Whether the applicant has to be first regularised in Group D before he can be considered for regularisation in Group C
(c) Whether the applicant can be regularised in Group C in accordance with the rules after his retirement.
9. The stand of the learned counsel for the applicant is that the facts of the present case are different from the facts of OA-827/2005 (Jagdamaba Prasad) though the ratio of that order would be applicable in the present case also. According to him the case of the applicant is on a stronger footing than the applicants in Jagdamba Prasad case as the present applicant never worked in a Group D post and therefore regularising him in a lower post is against the rules. He has also relied on the full bench judgment in Ganga Ram (supra) in support of this argument that stay granted by the High Court in OA-
9 OA-493/2008 827/2005 would not be a bar on this Tribunal in passing a similar order in the present OA.
10. From the order dated 22.11.2008 passed in this OA it is seen that this Tribunal had not gone into the merits of the case and only noted the submission of the learned counsel for the applicant that this case was covered by the decision of this Tribunal in Jagadamba Prasad (supra) on all fours, which was opposed by the learned counsel for the respondents.
11. In Jagadamba Prasad case the applicants initially appointed in Group-D in the year 1980-81, later promoted as Fitter/Janitor on Group-C posts on ad hoc basis, had continued for about 19 years in the higher post. Applicants were also subjected to trade test and placed in the pay scale of Group-C of Rs.950-1500 on 11.03.1993. They were also screened in Group-D posts in the interregnum for regularisation in Group-C posts, as per Rule 2007 (3). The respondents had passed an order on 05.04.2005 wherein the applicants had been transferred to open line in Group-D post on which they held lien on substantive basis. This Tribunal after considering Ram Kumar (supra), Badri Prasad (supra), 10 OA-493/2008 and State of Mysore vs. M.H.Bellary, AIR 1965 SC 868 ordered as follows:
"23. In the result, for the foregoing reasons, when a provision which applies to both the project and open line casual workers and the applicants having passed the trade test they have a right to be considered, having rendered long service under 25% quota meant for promotion for absorption against Group „C‟. Accordingly, allowing this OA impugned order is set aside. Respondents are directed to consider applicants for absorption in Group „C‟ posts against 25% quota in terms of directions in OA-347/1996, as per rules and instructions mentioned therein, within a period of three months from the date of receipt of a copy of this order."
12. It can be seen that applicants in OA 827/2005 were regular Group D employees who had been subjected to trade test before ad hoc promotion and also been screened for regular promotion to Group C against 25% promotion quota.
13. In the present OA the applicant was appointed as casual Mason (Group-C) on 18.12.1975, acquired temporary status in 1984-85 in the scale of Rs.260-400 and finally retired on 31.01.2015 as Mason Group-C Temporary. It is not the claim of the applicant that he was ever subjected to a trade test any stage. The facts of this case therefore do not place the applicant on the same footing as the applicants in Jagdamba Prasad case. In our view the order of the Tribunal in that case will not apply to the applicant. It follows that a stay on the order 11 OA-493/2008 in Jagdamba Prasad case will not impact the proceedings in this case and therefore the Full bench order in Ganga Ram will not be attracted. For similar reasons that the applicants therein had been trade tested and found suitable, the case of Ram Singh (supra) will also not be applicable in this case.
14. Rule 2007 (3) of IREM Vol-II reads as under:
"Casual labour engaged in work charged establishment of certain department who get promoted to semi skilled, skilled and highly skilled categories due to non-availability of regular departmental candidates and continue at work as casual employees for a long period can straightaway be absorbed in regular vacancies in skilled grades provided they have passed the requisite trade test to the extent of 25% of the vacancies reserved for departmental promotion from the unskilled and semi-skilled categories. These orders also apply to the casual labours who are recruited directly in the skilled categories in work charged establishments after qualifying in the trade test." (emphasis supplied)
15. The applicant who is a directly recruited Mason in the skilled category would be covered by the above rule provided-
(1) He has passed the requisite trade test. (2) Vacancies are available against 25% of the posts reserved for departmental promotion.
16. Respondents in their counter have referred to the Railway letter dated 08.06.1981 and circular dated 09.04.1997 and stated that:
12 OA-493/2008 "the casual labour in Group-C scale could be considered as skilled artisan in 25% of promotion quota but this will only apply to casual labour engaged purely in construction organisation, and therefore, they have to be absorbed in Group-D post and thereafter they could be considered for promotion against 25% quota. It has been further stated that the statutory rule, i.e., para 189 of IREM Vol-I provides that any appointment/promotion to the Group-C post is by way of subjective act of selection and the casual basis having temporary status would not confer upon any employee, the right to be considered for being regularised to Group-C post.
The relevant portion of the counter is reproduced below:
"The Respondent Department craves leave to refer Railway letter No. E(MW)II/77/CL.46 dated 08.06.1981 (Para-VIII).
"Casual labour engaged in work charged establishment of certain departments who get promoted to Semi Skilled/skilled/highly skilled categories due to non-availability of departmental candidates and continue to work as casual employee for long period shall straight way be absorbed in regular vacancies in the skill grade provided they have passed the requisite, to the extent of 25% of vacancies reserved for departmental promotion from the Semi Skilled category."
Further the Railway Board vide letter/circular dated 09.04.1997 RBI No.53/97, casual labour working the Group C scale were presently entitled for absorption as skilled artisan against 25% of promotion quota may continue to be considered for absorption in Group-C post. Thus in view of this circular it has been clearly mentioned by the Railway Board as a Policy Guidelines that the casual labour in Group C scale could be considered as a skill Artisan against 25% of Promotion Quota but this will only apply to casual labour engaged in purely in construction organization, therefore, and they had to be absurd (sic) in Group D post and only thereafter, they could be considered for promotion against 25% quota. The fact that the applicant has been working for quite some time does not automatically entitled him for being given regularization in Group-C post. It is also submitted that the statutory rule i.e. para 189 of IREM Vol.I provides that any appointment/promotion to the Group-C post is by way of subjective act of selection and the casual basis having temporary status would not confer upon any employee, the right to be considered for being regularised to Group-C post."
17. It can be seen that the above stand taken by the respondents does not conform to the provision contained in Rule 2007 (3) of IREM Vol-II. This rule cannot be 13 OA-493/2008 interpreted to mean that a casual labour recruited directly in skilled category in work charge establishments will have to be first regularised in semi-skilled grade, i.e., Group-D and thereafter subjected to a trade test for promotion to Group-C. The rule provides for absorption of directly recruited skilled labour as in Group C post subject to the fulfilment of the conditions of availability of vacancy and passing of trade test. It is not necessary for a casual employee directly engaged in group C to be regularised first in group D before being considered for regularisation in group D. The applicant was however never called for trade test for regularisation in skilled category.
18. The applicant was called for screening for regularisation against Group-D post vide DRM, Jhansi letter dated 20.08.1990 but the applicant did not attend the screening, and therefore, he was not regularised in Group-D post (para 4.3 of the counter reply). Thus, the applicant had taken a conscious decision to continue as a temporary Group-C employee by not getting regularised as Group-D and try his luck for promotion against 25% quota in Group-C in future.
14 OA-493/2008
19. The Railway administration had in Ram Kumar case assured the Supreme Court that there was opening for regularisation of the long serving casual employees though such regularisation will be done only through a proper selection board in class IV only. Relevant paras from that judgement read as follows:
"In the Signal and Telecom Construction organisation under which the petitioners are working, according to the Railway Administration further privileges of being regularised in permanent service is afforded by giving them access to their regularisation against permanent vacancies which mostly occur in open line. For such purpose, casual labour in open line as well as willing project casual labour are combined for the purpose of screening and forming of panel on the basis of seniority depending upon the days of work put in. In view of the submission, learned counsel for the respondents has pleaded that the allegation of discrimination does not exist.
Disputes arising out of termination of employment and inter se seniority came before this Court in the Writ Petition No. 147 of 1983 (Inderpal Yadav & Ors v. Union of India). This Court changed the existing prevalent practice for reckoning seniority and directed that seniority of project casual labourers should be combined and prepared departmentwise and categorywise and in terms of the directions of this Court, steps have been taken. It has been further contended that by the time these writ petitions were filed, the Railway, Board's order of 1st of June, 1984, had not been given but with those directions now holding the field, the ambit of grievances has been very much reduced. Learned Additional Solicitor General has gone to the extent of even saying that nothing survives in the writ petitions. What exactly are the benefits admissible to temporary railway servants have, however, been seriously debated. Paragraph 2511 of the Indian Railway Establishment Manual provides:-
(a) "Casual labour treated as temporary are entitled to all the rights and privileges admissible to temporary railway servants as laid down in Chapter XXIII of the Indian Railway Establishment Manual. The rights and privileges admissible to such labour also include the benefits of the Discipline and Appeal Rules. Their service, prior to the date of completion of six months' continuous service will not, however, count for any purposes like reckoning of retirement benefits, seniority etc. Such casual labourers will, also, be allowed to carry 15 OA-493/2008 forward the leave at their credit to the new post on absorption in regulation service.
(b) Such casual labour who acquire temporary status, will not, however, be brought on to the permanent establishment unless they are selected through regular Selection Boards for Class IV staff. They will have a prior claim over others to permanent recruitment and they will be considered for regular employment without having to go through employment exchanges. Such of them who join as casual labourers before attaining the age of 25 years may be allowed relaxation of the maximum age limit prescribed for Class IV posts to the extent of their total service which may be either continuous or in broken periods.
(c) It is not necessary to create temporary posts to accommodate casual labourers who acquire temporary status for the conferment of attendant benefits like regular scales of pay, increments etc. Service prior to the absorption against a regular temporary/permanent post after requisite selection will, however not constitute as qualifying service for pensionary benefits."
20. The action of the respondents conferring temporary status on him in 1985 and offering an opportunity to appear in trade test in 1990 were in conformity with the policy of the Railways placed before the Supreme Court.
21. According to the learned counsel of the applicant the above provision of putting the applicant through a selection board is not applicable to the directly recruited Group C casual employees, but the applicant failed to challenge the order of the respondent asking him to appear in trade test for regularisation in Group D post way back in 1990. He proceeded to file this OA only in the year 2007. Nowhere in the pleadings there is any averment that the applicant had appeared in a trade test 16 OA-493/2008 either for group D or for Group C prescribed in Rule 2007 (3) of IREM Vol-II. It may be that the applicant considers that after having worked as Mason Group-C for more than 30 years, he need not appear in any test. But the fact is that the statutory rules do not provide for any exemption from trade test to a person who is directly engaged in the skilled category or has been in that job for long years. It is relevant here to note that the applicant was engaged as a casual skilled worker apparently without being subjected to any selection test or trade test. Hon‟ble Supreme Court in Ram Kumar has noted the submission made by the Railway Administration that "Such casual labour who acquire temporary status, will not, however, be brought on to the permanent establishment unless they are selected through regular Selection Boards for Class IV staff."
22. The applicant cannot be an exception to the rule and expect an exemption from screening by a Selection Board which in the present context would include clearing the trade test.
23. The applicant retired from service on 17.01.2015. A retired person cannot now be subjected to a trade test even if the rules permit absorption of a casual employee engaged directly to Group C, following trade test and vacancy being available. The applicant therefore can not 17 OA-493/2008 be given the relief of regularization in Group C de hores the rules. The only relief that could be considered is to grant protection of pay if the application is finally regularized in group D in terms of the order of the respondents dated 12.06.2009 in terms of Honble Supreme Court order in Inderpal Yadav. That however also would not be possible once we consider the condition precedent for such protection given in Inderpal Yadav, as the applicant has not passed the trade test:
"However, while the petitioners cannot be granted the reliefs as prayed for in the writ petition, namely, that they should not be reverted to a lower post or that they should be treated as having been promoted by reason of their promotion in the projects, nevertheless, we wish to protect the petitioners against some of the anomalies which may arise, if the petitioners are directed to join their parent cadre or other project, in future. It cannot be lost sight of that the petitioners have passed trade tests to achieve the promotional level in a particular project. Therefore, if the petitioners are posted back to the same project they shall be entitled to the same pay as their contemporaries unless the posts held by such contemporary employees at the time of such re-posting of the petitioners is based on selection.
Additionally, while it is open to the Railway adminsitration to utilise the services of the petitioners in the open line, they must, for the purpose of determining efficiency and fitment take into account the trade tests which may have been passed by the petitioners as well as the length of service rendered by the petitioners in the several projects subsequent to their regular appointment.
Where a trade test is provided under the relevant rules for the purpose of promotion to group C, we make it clear that it will not be necessary for the petitioners to take the trade tests over again, if they have already taken any comparable test while they were on duty in the projects. It is stated by the learned counsel appearing on behalf of the Railway authorities that during the pendency of the writ petitions that several of the petitioners had applied for promotion in the open line from Group D to Group C but only some were
18 OA-493/2008 successful. It is not necessary to go into this question since we proceed on the basis that there was a requirement of passing a qualifying trade test held for the purpose of promotion from Group D to Group C post held in the projects."
24. In the light of the foregoing discussion and the legal position we find the OA devoid of merit and the same is dismissed. With disposal of this application the stay order dated 12.06.2009 is vacated. The respondents are at liberty to regularise the applicant in group D if the applicant gives his consent for the same. On such regularisation the respondents shall release pension and other retiral benefits admissible to the applicant as per rules within a period not exceeding 12 weeks from the date of receipt of the consent of the applicant.
No costs.
(V.N. Gaur) (G.George Paracken) Member (A) Member (J) 'sd'