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2.Heard Ms.R.Vaigai, learned Senior Counsel appearing for Ms.Anna Mathew, learned counsel appearing for the petitioners and Mr.A.R.L.Sundaresan, learned Additional Solicitor General of India appearing for Mr.K.Srinivasa Murthy, learned Senior Panel Counsel appearing on behalf of the respondents 1 to 8.

3. Ms.R.Vaigai, learned Senior Counsel appearing for the petitioners would submit that the first petitioner is a registered Trade Union in the Southern Railways and the second respondent is its member. She would further submit that the present Writ Petition had been filed to espouse the cause of 202 members belonging to the petitioner Union who were originally engaged as House Keeping Assistant – Medical (hereinafter referred to as 'HKA') on full time contract basis to work in various divisions. The 202 HKAs were engaged directly by the Southern Railways pursuant to the notification issued by the Railway Recruitment Cell (hereinafter referred to https://www.mhc.tn.gov.in/judis as 'RRC'). The policy of Reservation was also followed in the engagement of the 202 HKAs on contract basis. The said notification also further prescribed relaxation with regard to various communal categories in respect of educational qualification also Thereafter, an examination was also conducted and the applicants were short listed for interview. The successful candidates had also undergone Physical Efficiency Test and after conducting the interview, the 202 HKAs were appointed. The HKAs were posted mainly in the Railway Hospital and the staff quarters premises attached to the Railway Hospital and they were also assigned duties on daily basis with one weekly off. However, they were not entitled for any other leave as available to regular workers and in the case of absence from duty, proportionate amount of pay per day would be deducted. They were also entitled for Hospital Patient Care Allowance, when they are posted in the Railway Hospital. The HKAs have also been assigned with specified duties as listed in the Indian Railway Medical Manual. She would further submit that initially the contract was for a period of six months and since, some of the workers did not opt to continue in the job, 72 other candidates who were provisionally selected were appointed on full time basis and their https://www.mhc.tn.gov.in/judis contract was also renewed periodically. The service of the HKAs were also given an artificial break after each term of engagement and they were re- engaged after the said artificial break. The contract also specifies that their engagement would be continued till the regular candidate is selected through RRC or candidates on compassionate grounds or transfers and posted against the said sanctioned post of HKA whichever is earlier. Thereafter, when the re-engagement was issued to the contract workers working in the Palghat Division, they were informed that their engagement would be till 30.09.2022 or until the date of finalisation of contract through Government e-Marketing (hereinafter referred to as 'GeM'), whichever is earlier. The engagement orders or re-engagement orders also specify that the contract workers cannot have any claim or right for their continuity or regularization or absorption in the Railway service.

5. She would further submit that the post of HKAs all have been sanctioned post and in the rules framed under Article 309 of the Constitution https://www.mhc.tn.gov.in/judis and the Railway Department cannot continue to engage contract workers to a sanctioned post that too without conducting a regular recruitment process. She would further submit that the contract HKAs engaged for the Department are all over aged and even if recruitment process is initiated, they would not be eligible to participate in such recruitment process. Since their services have been engaged regularly in the perennial nature of work, the HKAs appointed on contract basis are entitled to be regularised in service. However, without considering these aspects, the Tribunal had rejected the claim of the petitioners by holding that the HKAs appointed on contract basis have knowingly entered the services and had given a undertaking that they would not claim any absorption or regularisation in service and rejected the claim for regularization of services. Further pending this Writ Petition, the petitioners have also sought to amend the pleading in the Writ Petition so as to challenge the communication dated 03.07.2023 issued by the first respondent for surrendering the post of HKAs.

7. She would further submit that the post are sanctioned post are continuing and not abolished. Hence, decision to surrender the post is illegal as being violative of the constitutional mandate and the Industrial Disputes Act, 1947. In that context, she had also relied upon the judgment of the Hon'ble Apex Court in the cases of Ajit Singh & Ors., vs. State of Punjab reported in (1983) 2 SCC 217; and A.Madheswaran & Ors., vs. State of T.N., & Ors., reported in 2006 (3) CTC 753 and the decision of the Division Bench of this Court made in W.P.No.14661 etc., of 2004, dated 08.09.2004. Since the post are sanctioned post, governed under the Rules framed under Article 309 of the Constitution of India which had been issued by the President of India, the Railway Board's decision to surrender such post and https://www.mhc.tn.gov.in/judis also engage the contract workers through tenders called through GeM portal are also violative of the execution instructions and the Rules that had been framed under Article 309. She would submit that the Railway Board with the approval of the President of India had published rules governing the Recruitment and Service Conditions of the Railway Servants under which the post of HKRs is also one of the sanctioned post. It is the contention that even though the Rule 157 enables the Railway Board to tinker with the Rules such tinkering can only be made with the approval of the President of India under Article 309 and not otherwise. She also pleaded that the respondents had not showed that the powers exercised by the Railway Board would constitute the Rules under Article 309 or has been issued as approved by the President of India. She would contend that the GeM policy envisaged under the General Finance Rules 2017 cannot violate the Recruitment Rules framed under Article 309 of Constitution of India. The policy does not have a force of the statute nor the effect of rules framed under Article 309. She would further submit that when recruitment made to the sanctioned post by calling tenders, the same would also violate the reservation policy which have to be followed in the matters of recruitment of Railway servant. https://www.mhc.tn.gov.in/judis Hence, GeM policy under the General Finance Rules adopted by the Railway Department is ultra vires, Article 16, 309, 320(3A & 3B) and Article 335 r/w Rule 216 of the IREC. She would submit that these aspects have all been overlooked by the 9th respondent Tribunal in rejecting the Original Application filed by the petitioners. Hence, she would seek interference of the order impugned passed by the Tribunal and also the communication dated 03.07.2023, wherein the post of HKAs was issued to be surrendered in a phased manner and out sourcing such engagement.

https://www.mhc.tn.gov.in/judis

11. He would also rely upon the judgment of the Hon'ble Apex Court in the case of The Railway Board & Ors., vs. P.R.Subramaniyam & Ors., reported in (1978) 1 SCC 158, and contend that the Railway Board's decision has the force of Rule in terms of Section 123 of the Rules framed under Article 309 and since such a decision is made, the same shall have an overriding effect of other Rules in respect of a non-gazetted railway Servants or to a class of them. He would further rely upon the judgment of the Hon'ble Apex Court in the case of State of Uttar Pradesh vs. Abhay Nandan Inter College reported in (2021) 15 SCC 600 and had contended that the post could be abolished indirectly by providing for outsourcing of a particular post and if the same is made pursuant to the policy decision taken by the Railway Administration, such a policy decision is to be presumed in public interest and to challenge such policy decision, there should be a claim of excessive and extreme arbitrariness and the same should be proved. He would further rely upon the judgment of the Hon'ble Apex Court in the case of The Secretary, State of Karnataka & Ors. vs. Umadevi & Ors., reported in (2006) 4 SCC 1 and contend that when an appointment was purely on a adhoc and contractual basis for a limited period, on the expiry of the said https://www.mhc.tn.gov.in/judis period right to remain in the post comes to an end and based upon such contractual employment covered by time, no claim for regularisation can be made by such contracted employees. He would further submit that the terms of employment are equally binding on the employee as well as the Government. If on understanding of the condition that the employment is only for a particular period that too, till an eventuality is to occur i.e., appointment on regular basis/appointment through GeM, then the contract workers cannot turn back and claim to regularise their services that too, particularly when they do not have the qualifications to be appointed on regular basis. He would further submit that the creation, abolition, prescription of qualification and other conditions of service are within the domain of the employer and is liable to be changed by altering, amending or varying or by addition or subtraction and the employee cannot as a matter of right claim that such terms should be forever the same at all times. In support of the said contentions, the learned Additional Solicitor General of India also relied upon the judgment of the Hon'ble Apex Court in the case of P.U.Joshi & Ors., vs. UOI & Ors., reported in (2003) 2 SCC 632. https://www.mhc.tn.gov.in/judis Reiterating his submissions in a nutshell, the learned Additional Solicitor General would pray this Court to dismiss the Writ Petition as the same is devoid of merits.