W.P.(C)/426/2008 of MADAN SINGH & ORS. Vs UOI & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ W.P.(C) 426/2008

MADAN SINGH & ORS. ..... Petitioner Through: Mr. H.P. Chakravorti, Adv. versus

UOI & ORS.

..... Respondent

Through: Ms. Madhulika for Mr. J.K. Singh, Standing Counsel for Railway with Mr. Harsh Pandit, Adv.

CORAM:

HON’BLE MR. JUSTICE S. RAVINDRA BHAT HON’BLE MR. JUSTICE PRATEEK JALAN

O R R% 22.11.2018

The petitioners are aggrieved by the order of Central Administrative Tribunal (CAT) which rejected their application; which had questioned series of 11 orders issued by the respondents (hereafter “Indian Railways”) between 24.12.1999 to 01.08.2003. The facts which appear from the record are that the petitioners along with several others were initially employed as casual labourers in the Signal & Telecom Department of Construction Division of the Northern Railway from 1970 onwards. In accordance with then prescribed norms, they were screened for absorption in the regular Group service in the Delhi Division in 1980. The Railways however, did not –regularize them and rather went ahead to dispense with their services this became point of contention and subject matter of the decision of the Supreme Court in Inder Pal Yadav & Ors. v. Union of India & Ors., (1985) 2 W.P.(C) 426/2008 page 1 of 7

SCC 648.There was further litigation on this aspect since the orders of the Supreme Court were interpreted in manner so as to confer accelerated advantage upon existing Group employees who were promoted to the higher position of ESM (which could be done only upon the satisfaction of prescribed pre-condition i.e. the qualification and trade test by the incumbent). The Supreme Court upset the order of the Allahabad Bench of the CAT, and directed that the norms for promotion to the post of ESM ought to be followed, in its judgment reported as Union of India & Anr. v. Moti Lal & Ors., (1996) 7 SCC 481.

The controversy involved in this case pertains to the promotions given to about 99 Group employees to the position of ESM pursuant to trade test held by the Indian Railways between 28.06.1999 and 20.11.1999. The result was published on 24.12.1999. It shows that, out of 874 employees who appeared in the test, only 99 could qualify.

The petitioners had previously approached the CAT complaining inter alia that the promotions pursuant to the trade test were irregular inasmuch as the Group employees who were directed to appear in the examination were not even regularized. It was also contended that Rule 189 of the Indian Railways Establishment Manual (IREM) was not complied with. At the time, when the CAT was approached at the first instance, certain orders which had an impact upon the petitioners’ claim were not available; therefore, they were permitted liberty to withdraw their claim and approach the CAT again in the light of the subsequent development, which they did. The second petition (O.M. No.3266/2002) was disposed of on 18.12.2002. The CAT W.P.(C) 426/2008 page 2 of 7

page 2 of 7

directed the General Manager of Northern Railways to consider the petitioners’ representation of 24.07.2002, which had comprehensively sought to present their case. The General Manager by his speaking order communicated to the petitioners (a copy of which is on record) that he has considered the issue of applicability of the IREM. He considered Para 2007 of the IREMto be applicable. After noticing the relevant norms, the General Manager also took note of the Railway circular on 21.02.1996 and proceeded to reject the petitioners’ representations. The relevant extract of the General Manager’s speaking order reads as follows:

“In compliance of these orders, I have carefully considered the

representation of the applicants and I find that the applicants have initially represented against the promotion of S/Shri Hira Prasad, Shri Chhedi Lal and Shri Raghunath, ESM Grade-III on the following grounds:

1. That they have been promoted to ESM Grade-III when

they were declared unsuitable in the Trade Test held in year 1999 on Delhi Division.

2. That their trade test held by construction Organization is not in order as Construction does not have authority to conduct trade test and also the test was not conducted for ESM-III but for Technician.

I find that as per Para 2007 of IREM “Casual Labour

engaged in work charged establishment of certain department who get promoted to semi-skilled and highly skilled categories due to non-availability of regular departmental candidates and continue to work as casual employees for long period can straightway be absorbed in regular vacancies in skilled grade 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 skilled categories in work charged establishment after qualifying in the trade test”.

page 3 of 7

W.P.(C) 426/2008

Accordingly Trade Test was conducted by Construction Organization in year 1998 wherein casual wiremen working in Construction Organization were regularized. The decision to conduct such trade test by construction Organization was taken as special case after taking into account the prevailing circumstances at that time which necessitated early regularization of such casual wiremen. In the said Trade Test Shri Hira Prasad, Shri Chhedi Lal and Shri Raghunath were found suitable as Technician (Signal).

I further find that instructions contained in Railway Board‟s letter No.E (NO) 1-75 PM1/266 dated 21/2/1976 circulated on Northern Railway under PS No.6491, also provide that persons having already qualified in the suitability test on Construction Organization need not be called for the suitability test again in open line and they may be promoted in order of their seniority (as said when due in their turn).

Thus contention of representations that as shri Hira Prasad, Shri Chhedi Lal and Shri Raghunath who were subsequently trade tested in year 1999 by Delhi Division for the post of ESM Grade-III (revised designation: Technician (Signal Grade III) had failed and should not have been promoted as ESM Grade III (revised designation: Technician (Signal) does not hold good as no additional trade test for Technician (Signal) Grade III post (earlier designation ESM Grade III) was required to be conducted for them in terms of Board‟s instructions dated 21/2/1976 as above, they having already passed the trade test for the post of Technician (Signal) in year 1998 while working in construction organization.”

The petitioners approached the Tribunal yet again, by filing OA –No.279/2005 this time impugning the 11 orders (mentioned previously) as well as the speaking order.

After recounting the rather involved facts, the CAT was of the opinion W.P.(C) 426/2008 page 4 of 7

page 4 of 7

that the petitioners’ claim for promotion to ESM, on one hand, and the complaint that unqualified juniors were considered and promoted, were both unmerited. The relevant part of the CAT’s findings is as follows:

“31. The claim of applicants for promotion to the grade of ESM-III and fixation of their seniority for that purpose, has no merit on account of the fact that admittedly they had voluntarily refused to take the test. Consequently, they are not eligible for grant of any relief. As pointed out by the respondents, the question of granting one more opportunity to the applicants as one time exception would open the Pandora box of representations and, therefore, cannot be considered.

32. As regards the number of applicants to be invited for the Trade Test, we are satisfied with the explanation provided by the learned counsel for the respondents with reference to para 179 (b)(ix) of IREM.

33. We also find considerable merit in the averment of the learned counsel for the respondents that the relief sought by the applicant in terms of quashing of orders, which are dated between 24.12.1999 to 18.01.2001, suffers from latches and dely. As matter of fact, it has been pointed out by the respondents that the cause of action for the applicants arose in 1970 when they had completed requisite number of days of service and were scrutinized and screened for absorption in regular Group „D‟ in the year 1980 and 1990. The applicants have already come to the Tribunal on four occasions. However, as further pointed out by the learned counsel for the respondents that the liberty given by this Tribunal to file revised OA cannot be used as an excuse to extend the period of limitation. As matter of fact, this Tribunal in its order dated 18.12.2002 in OA No.3266/2002, pertaining to the applicants, had inter alia made the following observations:-

“All these facts referred to above had happened in 1998-99 pertaining to the Trade Test, if that was so we could well have termed the present application to be not within time.”

W.P.(C) 426/2008

34. The OA was allowed only to the extent of consideration of the joint representation dated 24.07.2002, submitted by the applicants and which was stated to have been pending consideration of the respondents. As stated earlier, this representation was disposed of by the respondents by speaking order communicated vide their letter dated 01.08.2003 (supra). Thus, the relief sought in respect of respondents‟ orders passed between 24.12.1999 to 18.01.2001 do not merit our consideration on account of the fact that some of these have been the subject of earlier applicants as well as and their agitation now suffers from latches and delay.

order communicated vide their letter dated 01.08.2003 (supra).

35. Taking the totality of facts and circumstances of the case into consideration, we find that the respondents have adequately replied to the various issues raised by the applicants. They have also issued speaking and reasoned order in compliance of the direction of this Tribunal in OA No. 3266/2002 (supra). We, therefore, do not consider it necessary to interfere with the decision of the respondents.”

Learned counsel relied upon paras 179 and 189 of the IREM and sought to highlight that the juniors, who were conferred advantage of promotion, did not deserve it. In this regard, it was submitted that the so called Khallasi/Helpers,who are employees in Group category had not in fact been regularized. Whatever their decision vis-à-vis the number of years they put in, the fact remains that without regularization, they were ineligible to appear in the trade test. In these circumstances, that they did and qualified in it could not have resulted in an unfair advantage to them. It was submitted that consequently, the consolidated list of candidates who had successfully qualified for ESM, was illegally drawn. It was submitted besides that, in case, for some reason the Indian Railway’s stand was found to be correct, the W.P.(C) 426/2008 page 6 of 7

petitioners being seniors ought to have been given the same treatment and promoted without insisting upon trade test.

The principal basis of the petitioners’ claim, it is evident is that the contesting respondents, i.e. allegedly ineligible juniors, were not qualified to appear in the trade test. Apart from the bare assertion to that effect, there appears to be no material on record to substantiate this contention. What can be discerned from the records is that the petitioners too appeared in the trade –test but could not clear that as is evident from the result declared on 24.12.1999. Only 99 candidates could in fact clear the test. Though some general allegations with respect to illegality of the test were levelled in the Original Application (OA) before the CAT, this Court is of the opinion that there was no specific challenge to the examination process itself i.e. as to the method of its holding or any manner of unfairness in its conduct. Nor was there any allegation with respect to the violation of prescribed norms in the holding of the examination (other than the petitioners’ objection with respect to the so called juniors having been unfairly allowed to appear in it). In these circumstances, in the opinion of this Court, the CAT’s findings are sound and do not call for any interference.

The writ petition is, therefore, dismissed.

S. RAVINDRA BHAT, J

NOVEMBER 22, 2018/akv

PRATEEK JALAN, J

W.P.(C) 426/2008