Bombay High Court
Shyamsunder Harigir Gosawi & 7 Ors vs Union Of India Thr.Central Rly.Mumbai & ... on 10 March, 2016
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.2111 OF 2001
Shri Manohar s/o. Atmaram Mangle,
Motor Vehicle Driver working in
O/o. The Deputy Chief Engineering(Construction),
Central Railway, Ajni at Nagpur. : PETITIONER
...VERSUS...
1. Union of India,
through General Manager,
Central Railway, General Manager's Office,
2nd Floor, Chhatrapati Shivaji Terminus,
Mumbai.
2. The Chief Administrative Officer,
(Construction), New Administrative Building,
Chhatrapati Shivaji Terminus, Mumbai.
3. The Divisional Railway Manager,
Central Railway, Kingsway,
Nagpur.
4. The Deputy Chief Engineer,
(Construction), Central Railways
at Ajni, Nagpur.
5. The Deputy Chief Electrical Engineer,
(Const), Central Railway, Nagpur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr. M.Y. Wadodkar, Advocate for the Petitioner.
Mr. R.S. Sundaram, Advocate for the Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
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WITH
WRIT PETITION No.2112 OF 2001
1. Shyamsunder Harigir Gosawi.
2. Moreshwar Namaji Lokhande.
3. Shivaji Raghoji Digrase.
4. Ramu Anandrao Sawarkar.
5. Wasudeo Pandurang Shinde.
6. Ganpat Tularam Rahangadale.
7. Kaitram Dokari Raut.
8. Manohar Urkuda Menwade.
All Motor Vehicle Drivers working in
O/o. The Deputy Chief Engineer (Construction),
Central Railway, Ajni at Nagpur. : PETITIONER
...VERSUS...
1. Union of India,
through General Manager,
Central Railway, General Manager's Office,
2nd Floor, Chhatrapati Shivaji Terminus,
Mumbai.
2. The Chief Administrative Officer,
(Construction), New Administrative Building,
Chhatrapati Shivaji Terminus, Mumbai.
3. The Divisional Railway Manager,
Central Railway, Kingsway,
Nagpur.
4. The Deputy Chief Engineer,
(Construction), Central Railways
at Ajni, Nagpur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr. M.Y. Wadodkar, Advocate for the Petitioners.
Mr. R.S. Sundaram, Advocate for the Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
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WITH
WRIT PETITION No.2243 OF 2001
Bhaskar Laxman Kurrewar,
Motor Mechanic-cum-Motor Vehicle Driver, working in
O/o. The Deputy Chief Engineering(Construction),
Central Railway,
Ajni at Nagpur. : PETITIONER
...VERSUS...
1. Union of India,
through General Manager,
Central Railway, General Manager's Office,
2nd Floor, Chhatrapati Shivaji Terminus,
Mumbai.
2. The Chief Administrative Officer,
(Construction), New Administrative Building,
Chhatrapati Shivaji Terminus,
Mumbai.
3. The Divisional Railway Manager,
Central Railway, Kingsway,
Nagpur.
4. The Deputy Chief Engineer,
(Construction), Central Railways
at Ajni, Nagpur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr. M.Y. Wadodkar, Advocate for the Petitioner.
Mr. R.S. Sundaram, Advocate for the Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
AND
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WRIT PETITION No.2245 OF 2001
Gajanan Laxman Ghane,
Motor Vehicle Driver working in
O/o. The Deputy Chief Engineering(Construction),
Central Railway, Ajni at Nagpur. : PETITIONER
...VERSUS...
1. Union of India,
through General Manager,
Central Railway, General Manager's Office,
2nd Floor, Chhatrapati Shivaji Terminus,
Mumbai.
2. The Chief Administrative Officer,
(Construction), New Administrative Building,
Chhatrapati Shivaji Terminus, Mumbai.
3. The Divisional Railway Manager,
Central Railway, Kingsway,
Nagpur.
4. The Deputy Chief Engineer,
(Construction), Central Railway
at Ajni, Nagpur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr. M.Y. Wadodkar, Advocate for the Petitioner.
Mr. R.S. Sundaram, Advocate for the Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : B.P. DHARMADHIKARI &
P.N. DESHMUKH, JJ.
th
DATE : 10 MARCH, 2016.
ORAL JUDGMENT :
1. We have heard Advocate Mr. M.Y. Wadodkar for ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:25:19 ::: J-wp2111,2112,2245 & 2243.odt 5/14 petitioner and Advocate Mr. R.S. Sundaram for respondents for quite some time.
2. We find that Central Administrative Tribunal has not appreciated the facts presented to it and has gone by the precedents even to answer the disputed issues. It is apparent that five different original applications were presented to it and there were total 17 employees in those matters. The employees claimed a declaration that notifications issued on 27.5.1998 and 3.7.1998 by which the Chief Administrative Officer (Construction) did not allow them to apply for post of Motor Vehicle Drivers deserved to be set aside.
They also challenged the letter dated 2.9.1998 and 29.12.1998 by which said respondents mentioned them as class-IV category employees. They contended that said mention and communications were contrary to the Railway Board instructions contained in letters dated 20th December 1985 and 29.5.1995. They also prayed that letters issued by respondent No.2 to the employees, who were juniors to the applicants and who were not from basic seniority list dated 6.10.1995 be set aside. Lastly, they also assailed communication dated 26.7.1999 issued by respondent No.3- Divisional Railway Manager at Nagpur by which applicants were granted lien on Group-D post. They sought absorption and ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:25:19 ::: J-wp2111,2112,2245 & 2243.odt 6/14 permanency as Class-III Artisan/Motor Vehicle Driver with effect from date of appointment or from the date of grant of temporary status.
3. Perusal of impugned judgment delivered by Central Administrative Tribunal on 16th March, 2001 reveals that it is common judgment in all original applications before it. In paragraph 3 to 6, case of applicants/petitioners has been referred to and thereafter in paragraph 7,8 and 9 the contention of the respondents has been narrated. Consideration is contained in paragraph 10 and 11. In paragraph 11 Central Administrative Tribunal has pointed out judgment of Hon'ble Apex Court in the case of Union of India and others vs. Motilal and others , reported in 1996 SCC (L & S) 613 where the Hon'ble Apex Court has held that all initial regularizations must be done in Group "D"
category. Thereafter, it has observed that there cannot be any direct appointment to Class-III, if it is promotional post. It was further stated that in view of the relevant rules, the administrative instructions direct appoint as Mate to Class-III is impermissible.
The persons appointed directly as casual labour mate may continue as such for a considerable period, acquire temporary status, but ipso facto do not become entitled to regularization. The Central ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:25:19 ::: J-wp2111,2112,2245 & 2243.odt 7/14 Administrative Tribunal has also observed that direct appointment to exclusively promotional post even if continued for a considerable period does not entail regularization therein.
4. Thus, the reasons are contained only in one paragraph and that paragraph No.10 reads as under :
"We have carefully heard the learned counsel for the applicants and the respondents.
We observe that the applicants initially appointed in group "D" category as Khalasis. As he has been pointed out in para above, all the employees are first required to be screened in "D" category before being screened for "C" category and therefore the respondents have rightly screened them for "D"
category and has regularised them in group "D"
post from 31.12.1997 onwards. Adhoc promotion in the Construction Division does not entitle applicants for regular promotions. It has to be according to the Recruitment Rules. The legal position as has been brought out by the applicants in their rejoinder does not lend any support to the applicant's case. The underlying principle is not to regularise anyone directly in group "C" which is a promotion post. As far as the applicants are concerned, they have not been reverted to group "D" though they have been regularised in group "D" post. They have been allowed to continue in the present job in the construction organisation and their pay has also been protected. This is again as per the provisions contained in the Indian Railway Establishment Manual as well as in the instructions issued by the Railways from time to time. There is therefore no contradiction in the instructions of the Railways issued vide circular dated 8.4.1997 and the provisions in the Indian Railway Establishment Manual. The applicants ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:25:19 ::: J-wp2111,2112,2245 & 2243.odt 8/14 on the date of issue of the notification in 1998 for filling up of the regular vacancies of Motor Vehicle Drivers had not completed three years regular service and therefore rightly they have not been allowed to apply for the regular vacancies of Motor Vehicle Drivers."
5. It is to be noted that while dismissing all original applications Central Administrative Tribunal has found applicants before it not entitled to be considered against regular vacancies of motor vehicle drivers in Class-III until and unless they complete three years regular service. However, it directed respondents not to disturb the applicant, but to allow them to continue in Class-III till they are regularized as per Rules.
6. In O.A. No.221/1999 there were three applicants and only one of them, namely, Gajanan Laxman Ghane is petitioner in Writ Petition No.2245/2001. Applicant Manohar Atmaram Mangale in O.A. No.223/1999 is petitioner in Writ Petition No.2111/2001, applicant Bhaskar Laxman Kurrewar in O.A. No.224/1999 is petitioner in Writ Petition No.2243/2001 and applicant Arun Ramchandra Khupat in O.A. No.235/1999 is petitioner in Writ Petition No.2245/2001.
7. In Original Application No.222/1999 there were ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:25:19 ::: J-wp2111,2112,2245 & 2243.odt 9/14 11 applicants. Only 8 out of them have filed petition together i.e. Writ Petition No.2112/2001. Petitioner No.2-Moreshwar Lokhande and petitioner No.8-Ganpat Tularam Rahangadale have expired during the pendency of the writ petition. Their legal heirs have not been brought on record. As such, challenge at their instance has already abated. Petitioner No.5 Ramu Anandrao Sawarkar, petitioner No.6-Wasudeo Pandurang Shinde have already superannuated. Thus, this petition is being prosecuted effectively only for the benefit of four petitioners.
8. We find that the facts before Central Administrative Tribunal warranted a proper finding on each assertion of respective applicant before it. Applicant Manohar in OA 223/1999 has in paragraph 4 stated that he was appointed on 19.4.1983 as a Motor Vehicle Driver in artisan category as Class-III employee in grade of Rs.260-400 (AS)/equated grade of Rs.3050-4590 (CPS) by Deputy Chief Engineer (Construction) at Ajni, Nagpur in Central Railway.
The other applicants have also given dates of appointment. Reply copy presented to this Court and filed before the Central Administrative Tribunal by respondents does not specifically deny this aspect. Advocate Mr. R.S. Sundaram has, however, taken us through entire reply in order to urge that its tenor itself shows that ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:25:19 ::: J-wp2111,2112,2245 & 2243.odt 10/14 such an appointment could not have been there. He also insists that the facts looked into by this Court also militate with appointment of such a nature.
9. Advocate Mr. M.Y. Wadodkar, however, has pointed out that in paragraph 10 the finding that all applicants were initially appointed in Group "D" category as 'Khalasis' may at the most apply to case of Gajanan Laxman Ghane, who is petitioner in Writ Petition No.2245/2001. He submits that this is not the position in all matters.
10. It can be seen that the Central Administrative Tribunal has not recorded its own finding on any disputed question of fact.
11. The petitioner-Manohar claims that he was given temporary status on 26th August, 1985 and thereafter vide order No.33/1997, he was regularized against newly created post with effect from 17.3.1997. We find that said order contains total 12 names and they are petitioners before this Court. Name of Gajanan Laxman Ghane appears at Sr.No.12 in that order. The order itself shows that because of sanction of construction authority conveyed vide letter dated 31.3.1997 the jeep/truck drivers were regularized against newly created posts. Efforts of Advocate Sundaram is to urge that this order contains some error and those errors have been ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:25:19 ::: J-wp2111,2112,2245 & 2243.odt 11/14 corrected on 1.10.1997. Perusal of that order dated 1.10.1997 shows that it partially modifies the order dated 19.5.1997. It mentions that MRCLs regularised as Skilled Categories as temporary and ad-hoc basis and in exigencies of service and it will not confer upon them any prescriptive right for promotion and continuity with above grades over their seniors in same category.
We do not find any comment either on order dated 17.3.1997 or then on this corrigendum dated 1.10.1997 in the judgment delivered by the Central Administrative Tribunal.
12. The communication dated 26.7.1999 sent by DRA (P) Nagpur to Central Railway DRA is on subject of Group "D" staff of constructions organization and provision of lien. It mentions that MRCLs of construction organization were regularized and posted against vacancies in various divisions in construction department, their lien will be maintained under the respected A,E,Ns as per list attached. It appears that the names of applicants before the Central Administrative Tribunal figured in that list and, therefore, the applicants approached the Central Administrative Tribunal pointing out that they have never worked as Group "D" employees and as such they could not have been given lien in Group "D" category.
13. In this situation, though Railway may have its own ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:25:19 ::: J-wp2111,2112,2245 & 2243.odt 12/14 procedure and may recruit everybody in Group "D" category first, whether that procedure was adhered to in present matter is the moot question. Provisions of law or judgments delivered cannot be used to record a finding of fact. Facts need to be ascertained on the basis of documents and evidence and thereafter law with the help of precedents can be applied.
14. Here we find that only by looking into facts of one case i.e. case of Gajanan Laxman Ghane all matters have been disposed of. Advocate Mr. R.S. Sundaram has tried hard to explain to us the system in which recruitment is done and to point out how after work in construction division employees therein are required to be brought back to open line and how thereafter they progress further.
All these facts must be pointed out to the Central Administrative Tribunal and the Central Administrative Tribunal has to record a proper finding after appreciating the disputed questions.
Respondents have to plead and prove that post of vehicle driver is a promotional post or then such post exists in Group 'D'.
15. Advocate Mr. R.S. Sundaram has also opposed remand back to Central Administrative Tribunal as according to him the employees have already advanced in their career and some of them have been superannuated or expired or dismissed. He contends ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:25:19 ::: J-wp2111,2112,2245 & 2243.odt 13/14 that in this situation remand to the Central Administrative Tribunal is unnecessary. He also sought a short adjournment to produce copies of orders issued to petitioner from time to time to demonstrate that they did not present true and correct facts either to the Central Administrative Tribunal or to this Court. We can appreciate concern shown by him, however, facts cannot be ascertained for the first time by this Court after looking into such documents. Facts need to be crystalized by Central Administrative Tribunal only after giving both sides necessary opportunity. The petitioners, who were applicants before the Central Administrative Tribunal have narrated their side and if their narration was incorrect or false, it was open to respondents to demonstrate it before the Central Administrative Tribunal. In that situation, it is incumbent upon the Central Administrative Tribunal to evaluate these rival assertions and then to reach a proper finding on facts.
16. In the light of this discussion, we find the judgment delivered by the Central Administrative Tribunal not containing relevant reasons and not sufficient to adjudicate the controversy presented to it. That judgment cannot be explained to us either by petitioners or by respondents by producing certain documents. We, therefore, quash and set aside that judgment.
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17. The matter is placed back before the Central Administrative Tribunal for its fresh consideration to the extent of petitioner mentioned (supra).
18. It is open to the respondents to point out subsequent developments having bearing on controversy to the Central Administrative Tribunal and seek modification in interim arrangement in accordance with law.
19. The parties are directed to appear before the Central Administrative Tribunal on 18th April, 2016 and to abide by its further instructions in the matter.
20. Needless to mention that interim protection given by the Central Administrative Tribunal to petitioners shall continue.
21. Rule is made absolute accordingly. No costs.
JUDGE JUDGE
okMksns
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