Union of India (UOI) and Another vs The Central Administrative Tribunal and Another

We have heard Shri Tarun Verma, learned Counsel for the Petitioner. Shri Ashok Khare, Sr. Advocate assisted by Shri Sanjay Kumar Om appears for the Respondent.

The Union of India through General Manager, North Eastern Railway, Gorakhpur and the Divisional Railway Manager, North Eastern Railway, Sonapur have filed this writ petition against the judgment of Central Administrative Tribunal dated 28.9.2001 in O.A. No. 1845 of 1992 by which the order of termination dated 8.12.1992 of late Shri Ram Raj, who has died during the pendency of the writ petition on 7th September, 2006, and has been substituted by his heirs, was set aside with all consequential benefits. The applicant was made entitled to the back wages only at 50%. He was to be reinstated as Junior Draftsman w.e.f. 12.10.1985, the date on which he had acquired temporary status in service. The period from 11.12.1992 to the date of reinstatement was to be treated as on duty for all purposes including increment and promotion.

This Court passed interim order dated 11.4.2002 as follows:

Until further orders of this Court we direct that Respondent No. 2 shall be reinstated in service in pursuance of the impugned order dated 31.8.2001 passed by the Respondent No. 1 but he will not be paid any back wages till further orders. However, he will get current salary.

Shri Tarun Verma submits that the Respondent-applicant was serving as casual Khalasi. He was appointed as Causal Tracer on daily wages of Rs. 13.50/- per day for six months from 14.5.1985 to 14.12.1985 for which sanction was given by Memorandum No. 781 dated 14.6.1985. The order of appointment dated 14.6.1985 provided that his services are purely casual and he will have no right to be in railway service in future. If his work and conduct is found unsatisfactory, his services may be terminated.

It is submitted that the Petitioner continued to serve upto the year 1992. Inspite of ban on the engagement on the post of Tracer put on 25.6.1985 and a decision taken by Ministry of Railways that direct recruitment quota in the category of Tracer is frozen and that any index placed by Railway Recruitment Board for recruitment of Tracer were withdrawn.

The services of Shri Ram Raj were terminated on 8.12.1992 on the ground that his service were not required by Division. The Railway Board by letter No. PC/III/84/4PB/9 dated 25.6.1985 had banned engagement on the post of Tracer. The last sanction on the post obtained had expired on 31.8.1987 and as per the original terms of engagement at the expiry of sanction of the post, his services were to be terminated.

The Tribunal found that the applicant was appointed prior to the ban placed on appointment of Tracer and that sanction of his post was given from time to time. He continued to serve for 7 years and became entitled for regularisation w.e.f. 12.10.1985, when he attained temporary status. The Tribunal relied upon the judgment of the Ernakulam Bench of the Central Administrative Tribunal in P.N. Augustin v. Union of India and Ors. (1994) 27 ATC 500 and the judgment in State of Haryana and Ors. v. Piara Singh and Ors. 1992 ATC (21) 403 and held that termination order was bad in law. In para 11 of the judgment the Tribunal observed:

We have also perused the entire correspondence between General Manager N.E. Railway and D.R.M. Sonepur filed as annexures of supplementary rejoinder reply which shows that DRM Sonepur has been continuously justifying applicant''s appointment and recommending his regularisation from 1989 to 1992. It is, therefore, very strange that DRM Sonepur issued the impugned order of termination dated 8.12.1992 (Annexure A-I) which is illegal.

It is submitted by Shri Tarun Verma that the Respondent-applicant''s appointment was casual in nature. He was not appointed against any sanctioned post. The appointment on the post of Tracer was stopped and any advertisement made for appointment on the post was withdrawn. In any case his appointment could only be made by the Railway Recruitment Board. He also relies upon Union of India (UOI) and Others Vs. Vartak Labour Union, of which is quoted as below:

We are of the opinion that the Respondent Union''s claim for regularization of its members merely because they have been working for BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. (See: Secretary, State of Karnataka and Others Vs. Umadevi and Others, Official Liquidator Vs. Dayanand and Others, State of Karnataka and Others Vs. Ganapathi Chaya Nayak and Others, Union of India (UOI) and Another Vs. Kartick Chandra Mondal and Another, Satya Prakash and Others Vs. State of Bihar and Others, and Rameshwar Dayal Vs. Indian Railway Const. Co. Ltd. and Others,

Shri Tarun Verma states that in view of para 228 of the Indian Railway Establishment Manual, the Railway authorities were justified in taking action, if appointment was made without any authority of law. The applicant''s appointment was not valid in law.

Shri Ashok Khare, assisted by Shri Sanjay Kumar Om on the other hand submits that though the applicant was appointed on casual basis, his appointment was made after seeking sanction by Office Memorandum dated 14.6.1985 prior to the ban on the appointment of Tracer. He was allowed to continue and attained temporary status w.e.f. 12.10.1985. In V.M. Chandra v. Union of India and Ors. AIR 1999 SCW 1234 the Supreme Court held:

The order dated October 30, 1985 (sic) by which the Appellant was appointed clearly indicates that her services had been engaged as a Technical Mate since she had completed the course of diploma in technical subjects. The view taken by the Chairman of the Railway Board that there is no post of Technical Mate available for absorption itself appears to be incorrect inasmuch as the Railway Board by its communication No. P(S) 443/I/Misc./MP/MAS/Vo.X stated as follows:

Board have communicated their approval for considering the casual labour technical mates in the Geographical jurisdiction of the division for absorption as skilled Artisans Gr. III in scale Rs. 950-1500 against 25% of direct recruitment quota along with serving casual labour artisans.

This communication clearly indicates the manner in which a person whose services have been engaged as a Technical Mate on casual basis has to be treated. If this is the mode of providing an employment, then we fail to understand as to how the Chairman of the Railway Board could not apply the same to the Appellant and give appropriate relief. Considering the long period of service the Appellant had put in and the qualification possessed by her, namely, a diploma in technical subjects, it would certainly entitle her to be absorbed, as a skilled Artisan in Grade III in scale 950-1500 against post available in respect of direct recruitment quota. If this aspect had been borne in mind by the Chairman of the Railway Board, we do not think that he would have rejected the case of the Appellant.

The view taken by the Chairman of the Railway Board that there cannot be any designation assigned to a casual employee baffles all logic because there can be engagement of a peon on casual basis and there can be engagement of a clerk on casual basis and it cannot be said that both are casual employees and, therefore, there cannot be any distinction between a peon and a clerk as they are engaged on casual basis. In that view of the matter we do not think that the view taken by the Chairman of the Railway Board was justified.

Considering the number of occasions the Appellant had approached the Tribunal and the authorities for relief, we do not think that any useful purpose will be served by merely setting aside the order of the authorities and remitting the matter to them. On the other hand, it would be an extraordinary case where we should direct the Respondents to absorb the Appellant as a skilled Artisan in Grade III in appropriate scale as indicated in the communication No. P(S) 441/I/Misc./MP/MAS/Vo.X of the Board and the benefit thereof should be given to the Appellant. However, the Appellant will not be entitled to any higher monetary benefits than what she was drawing hitherto. The Appellant will be fitted in the appropriate scale by giving increments and continuity in service on that basis. These directions shall be given effect to within a period of three months from today.

We allow this appeal by setting aside the order made by the Tribunal and allow the application filed by the Appellant before the Tribunal. But in the circumstances of the case, there shall be no order as to costs.

Appeal allowed.

We have considered the respective submissions and find that the Petitioner was appointed after obtaining sanction by the competent authority on 14.6.1985. He was allowed to continue by the Division upto the year 1992. There was some correspondence regarding the authority under which he was continuing and questions were asked from Senior Divisional Personnel Officer on 18.11.1990, but that the order of termination, stating that there was no sanction for the post was made on 8.12.1992. By that time he had attained temporary status. The facts and circumstances of the case are the same as in the case of V.M. Chandra (Supra). Late Ram Raj was holding Diploma in Engineering and was a skilled artisan. His appointment made after seeking sanction of the post by the competent authority could not have been terminated on the ground that the Division did not require the services, after 7 years. He had during this period attained temporary status.

We are further persuaded not to interfere in the matter on the ground that the Petitioner has since died on 7th September, 2006 during the pendency of the writ petition. He was reinstated in pursuance to the order of this Court on 28.3.2003. It is stated by Shri Sanjay Kumar Om that he was reinstated as Technical Mechanic, whereas the Tribunal had directed him to be reinstated on the post of Junior Draftsman in a higher pay scale. The Petitioner has been paid salary w.e.f. 28.3.2003 to 7.9.2006. His terminal benefits have also been paid to him. The question in this case is only with regard to payment of 50% wages to the Petitioner from 12.10.1985 as Junior Draftsman upto 28.3.2003.

In the special facts and circumstances, we do not find any good ground to interfere with the judgment of the Tribunal.

Both the writ petitions are dismissed.