1. As the issue involved in all these three Original Applications are the same these three O.As. were heard together and are being disposed of by this common order. For the purpose of convenience, the facts of; O.A. No. 1309/99 are being given and are being dealt with in this order.
2. Applicants two in number aggrieved by A-3 order dated 5.4.99 filed this Original Application seeking the following reliefs: (i) To call for the records leading upto Annexure A3 and all further proceedings pursuant there to in filling up the vacancies of Artisan Khalasis in the Engineering Department of the Southern Railway, Palghat and quash the same.
(ii) To issue a direction to the respondents to fill up the post of Artisan Khalasis from among the Non-Artisan Khalasis of the Works Branch of the Engineering Department with due regard to their seniority as Khalasis/Non-Artisan Khalasis.
(iii) . To issue such as orders or direction as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
3. Annexure A-3 order dated 5.4.99 is the circular letter issued by the 3rd respondent on the subject of filling up of vacancies of Artisan Khalasis/Painter category in the Engineering Department and is addressed to All SE/P.way/Works/Bridges PGT division. The said letter reads as under: Filling up of the vacancies of Artisan Khalasis/Painter category/Engg. Department.
The application form intending volunteers having "Bee One" Medical classification to fill up the vacancies of Artisan Khalasis in scale Rs. 2550-32000 are invited in the prescribed promotees enclosed.No. of posts: 9 Application submitted by the employee other than in the prescribed proforma-will not be accepted. An employee can volunteer only for any one category of Artisen Khalasis Cadre. They will be called for a suitability test.
Supervisory Officials are advised to verify and submit the list of volunteers in a consolidated statement along with applications containing all particulars mentioned in the proforma arranging them according to strict seniority in their Unit concerned, so as to reach this office on or before 30.4,99 certain. The particulars furnished by the employees should be checked and certified before consolidating and forwarding the same to this office along with SLR.4. According to the averments of the applicants in the O.A, they were at the time of filing the O.A., working as Non-Artisan Khalasis which were earlier designated as Khalasis. They were initially engaged as Casual Khalasis in the Palghat Division. On completion of 120 days they were given the benefit of Pay Commission scale of Rs. 196-232. They continued as Casual Khalasis under the Inspectors of Works (now designated as Section Engineer (Works). During 1989 pursuant to de-casualisation 150 posts of Khalasis were created and volunteers were called for to fill up the vacancies from among Gangmen who belong to another seniority unit of the Engineering Department viz. Permanent Way Inspector's Section (now designated as Section Engineer (P/Way).
Apprehending denial of regular posting, the first applicant and similar others filed O.A. No. 186/89 before this Tribunal. This Tribunal following the earlier decisions allowed the Application by A1 order dated 28.2.90. By A2 order dated 20.7.90 in Review Application No.65/90, A1 order was modified. It was submitted that these decisions were following the earlier decisions of this Tribunal in A. Sainul Abdeen and Ors. v. Union of India and Ors., 1990(30) SLR 482. Referring to A3 letter dated 5.4.99 applicants submitted that by the said circular volunteers were called for filling up the vacancies of Artisan Khalasis in the Painter category. It was also submitted that similar circulars were issued for filling up the posts of Artisan Khalasis in grade Rs. 2650-4000 in Carpenter/Bricklayer Welder, etc. categories.
Applicants averred that the intention of the Department all throughout was to induct Gangmen to the unit of Inspector of Works at the lowest stage and the same was not agreed upon by this Tribunal. It was submitted that the promotion posts of the Gangmen were Senior Gangmen, Trolly Man, Gangmate, Keymen, Permanent Way Maistry, Permanent Way Inspectors etc. It was submitted that the initial post of Gangman were filled up by the existing casual labourers from the Works Branch based on their Divisional Seniority. In the process of empaneling Gangmen some of the casual labourers in the Works Branch did not choose to be posted as Gangmen on account of the fact that they had the opportunity to be absorbed as Khalasis in the Works Branch itself. As the Railway objected to retention of the casual labourers in the Works Branch for eventual absorption as Khalasis and forced many of the casual labourers to accept the post of Gangmen failing which threatened termination of service many of the casual labourers had approached this Tribunal and obtained various orders to the effect that they need not be forcibly sent against their willingness and they need be considered against the de-casualised vacancies of Khalasis. It was submitted that the orders issued by the Railway Board in the matter of de-casualisation provided only for the creation of posts of Khalasis and they were not designated as Non-Artisan or Artisan Khalasis. The Railways at local levels had adopted various steps to (sic) absorption of Khalasis in the Works Branch itself. They resorted to various methods to support those casual labourers who accepted the order of posting as Gangmen. As a result of this, the authorities without following any basic Recruitment Rules and orders converted certain number of de-casualised posts of Khalasis as into Artisan Khalasis and the remaining were re-designated as Non-Artisan Khalasis in the pay scale of Rs. 2550-3200. It was claimed that irrespective of designation, the Khalasis in the Works Branch could not but associate with the artisan nature of works by helping the skilled Artisan. According to them the new nomenclature as Artisan Khalasis in the lower pay scale and that of Khalasis was only after a catena of decisions in the matter of existing Khalasis. It was claimed that the applicants and similar other de-casualised as Khalasis had never been given the option to be re-designated as Artisan Khalasis. At the initial stage of the scheme some of the seniormost Khalasis were re-designated as Artisan Khalasis which made them believe that the applicants in the normal course as non-Artisan Khalasis would be elevated as Artisan Khalasis according to their seniority in the unit if they were not otherwise unfit. When A3 notice was issued the applicants did not oppose the same in view of the fact that if anybody was not willing to be considered in the post of Artisan Khalasis in the Works Branch the same could be filled up from volunteers from other Branches also. The applicants were called for suitability test in September, 1999. There was no trade test practical or written except few oral personal questions were asked to the applicants. The applicants had the opportunity to be considered for promotion as skilled Artisans which benefit was now being taken away by induction of persons from outside. The limited promotion opportunities available to the Khalasis were the skilled categories in different trades in the works Branch. In view of the induction of the new category called "Artisan Khalasis" in the same grade as that of Non-Artisan Khalasis, the opportunity of being considered for promotion to the skilled category was being eroded as far as the applicants are concerned. The Gangmen were to be considered for transfer as provided in the Indian Railway Establishment Manual. The respondents could not act arbitrarily to gain undue advantage to the Gangmen category by taking away the meagre benefits of promotion opportunities available to the Khalasis in the Works Branch of the Engineering Department. It was submitted that against 9 posts of Artisan Khalasis in the Painter category 161 persons volunteered and they were interviewed. Out of the above 92 persons belonged to the category of Senior Gangmen in the scale of pay of 2650-4000. Only on publishing the list of volunteers it was noticed that inspite of sufficient number of Khalasis there was an attempt to weed out the Non-Artisan Khalasis. The post of Artisan Khalasis being the posts converted from the 150 posts of Khalasis de-casualised during the year 1989, the persons in the other seniority unit like the Gangmen could have the right to be considered only in the absence of the Non-Artisan Khalasis. It was submitted that the results had not been published so far. The applicants opposed the manner of conduct of the aptitude test along with other volunteers in other seniority units.
According to them only in the absence of fully qualified and eligible hands from the category of Non-Artisan Khalasis others could be considered limited to the maximum of 10% of the vacancies as was provided in the IREM. It had not been specifically stated as to whether the filling up of Artisan Khalasis was by way of promotion or direct recruitment or transfer. No Recruitment Rules were framed for the post of Artisan Khalasis. This being the lowest grade of Group-D no stringent method could be applied in making posting to deny the reasonable opportunity of the applicants for a posting as Artisan Khalasis. The Gangmen/Senior Gangmen who were in another seniority list could not be considered for appointment as Non-Artisan Khalasis when employees like the applicants in the seniority units were available.
Under the circumstances, the present mode of filling up the post by calling for volunteers from other seniority units was contrary to rules and against the principles of natural justice. By the present method of filling up the vacancies of Artisan Khalasis the chances of promotion of Non-Artisan Khalasis were deprived. The total number of posts of Khalasis in the seniority unit of Works had been spilt up and certain number of posts made as Non-Artisan and the remaining as Artisans in the same grade unilaterally by the Department. Had this not been done the applicants would have continued to be as Khalasis entitling for eventual promotion as skilled Artisan depending upon their suitability and availability of vacancies. This Tribunal had earlier in A1 and A2 orders held that the seniority of Gangmen if appointed as Khalasis in the event of non-availability of the casual labourers to be absorbed as Khalasis, the seniority of such Gangmen would be considered only from the date of such appointment as Khalasis. If there was any proposal for intervention by the department to re-designate some of the post of Khalasis as Artisan Khalasis and to induct the Gangmen from other seniority unit, the applicant and some other could not have requested them to be retained in the works unit. The procedure of filling up the vacancies of Artisan Khalasis now adopted by the Railway was quite alien to the rules provided in the IREM. By inducting to fill up the vacancies, the valuable right of the applicants for being considered for posting as Artisan in it's true and correct perspective was being denied to the applicants. Hence, the applicants filed this O.A. and sought the above reliefs.
5. Respondents filed reply statement resisting the claim of the applicants. According to them the O.A. was not maintainable or sustainable either in law, facts or on the circumstances of the case.
The applicants volunteered in response to A-3 and attended the suitability test conducted by the Committee nominated for the purpose.
The names of the applicants were not recommended by the Committee. It was submitted that reliance on the ruling of the Hon'ble Supreme Court in Om Prakash Shukla v. A.K. Sukla, AIR 1986 SC 1043=1986(3) SLJ 235 (SC), that having participated in a selection one could not challenge the legality of the selection. Hence the applicant could not challenge the legality of A3 and the OA was liable to be dismissed in limine on the above score alone. It was submitted that the panel of selected employees was published on 1.11.1999 and the selected persons had joined duty. Relying on A1 order it was submitted that the said order would not apply in filling up the normal vacancies of Khalasis which arise due to retirement, promotion, death etc. of the regular incumbents. Such vacancies could be filled up by calling for volunteers from regular Gangmen and others. It was submitted that as per the procedure followed in the Division the list of Casual Labourers was prepared based on the number of days of service rendered by them irrespective of the wing to which they were attached and considered for regular absorption against the total number of vacant posts in Engineering department. After regular absorption to particular Wing they had to seek career progression in the respective Wing. It was submitted that the decasualisation posts were filled up with Khalasis of the particular Wing and the remaining such casual labourers in the Wing were absorbed in other Wings wherever vacancies existed at the material time to avoid retrenchment. The directions of the Tribunal mentioned by the applicants not to force the casual labourers to join the Gang was complied with. It was submitted that the applicants as well as others who were similarly situated were having no grievance about filling up of de-casualisation vacancies all these years and they were very well continuing in the post in which they were absorbed disregarding the Wing to which they belonged earlier. The applicants had not stated as to the provisions of law violated by the respondents to the detriment of the interest of applicants. The applicants have also not stated the names of seniormost Khalasis re-designated as Artisan Khalasis. There was no question of elevation from the post of Non-Artisan Khalasis to Artisan Khalasis as contended by the applicants. According to them in A1 and A2 orders the normal vacancies of Artisan Khalasis excluding de-casualisation vacancies could be filled up by following the existing procedure of calling volunteers from among Gangman and others. There was no arbitrariness in issuing A3 notification. Non-Artisan Khalasis like the applicants had no avenue of promotion to the Artisan category and hence there was no question of taking away any due benefits. The entire proceedings of suitability test had been completed as per the rules in consonance with the orders of this Tribunal in O.A. 186/89. There was more than 60 Non-Artisan Khalasis senior to the applicants and many of them volunteered in response to the notification. However, none could secure a place in the panel in accordance with their seniority. Hence, the applicants could not have any grievance at all. The contention that there were no rules framed for filling up for the post of Artisan Khalasis was not correct.
The posts were filled up by calling volunteers and conducting a suitability trade test. Even though regular post of Khalasis carry lesser pay than that of Gangman, the Gangman who had previously worked as CLR and had the aptitude for the post of Artisan Khalasis would prefer to become Artisan Khalasis. If the procedure was discontinued it would be detrimental to the regular Gangman who were erstwhile CLR Khalasis with the aspiration of coming back as regular Khalasis and further promotion to Artisan Posts in due course. This would unsettle settled things of long years and would be prejudicial to the interest of senior persons. The claim of the applicants was barred by estoppel and acquiescence. The sanction for the Artisan cadre was limited and the percentage of distribution among Skilled and Unskilled category existed and hence the posts of Artisan Khalasis were operated in proportion to the sanctioned posts of Artisans in various categories in accordance with the percentage fixed. Hence the entire posts of Khalasis could not be treated as Artisan Khalasis since it would be violative of law and rules on the subject. Hence the posts of Khalasis other than Artisan Khalasi would have a separate identity and their service would be utilized for various unskilled activities. The applicants had not challenged the extant instruction on the subject and hence they were estopped from raising such grounds as urged in the O.A.The applicants could not have any grievance at this stage about the methodology adopted by the respondent to fill up the vacancies of Artisan Khalasi. In fact the respondents had treated the applicants on par with those who were similarly placed and absorbed as Gangman rather than extending preferential treatment to applicants who were screened and absorbed in the regular vacancy on a later date. The Application was not maintainable since the applicants had not exhausted the departmental remedy available. The O.A. was liable to be dismissed on that score. The post of Artisan Khalasis is not in the normal avenue of Non-Artisan Khalasis. The Gangman have avenue promotion in their cadre itself apart from limited opportunity in other areas also considering the hard manual labour. The limited promotional prospects available in other areas like that of Artisan Khalasis were covered by the extant instructions. The contention that adopting of the procedure of calling volunteers was to wipe out the Non-Artisan Khalasis in the matter of selection was without any basis and stoutly denied. The applicant had not stated as to which rule be procedure adopted is opposed to as contended by them. At any rate there was no grievance what so ever for the applicants against the mode of filling up the post of Artisan Khalasis at any point of time. When Artisan Khalasis are utilised for assisting the Artisans doing skilled nature of work Non-Artisans were utilised for unskilled nature of work. However, they could volunteer for Artisan Khalasi subject to suitability test and seek avenue of promotion in the Artisan cadre if got selected. There was nothing which nullify the spirit of various judgments in the mode of filling up of normal vacancies of Artisan Khalasis.
6. In this O.A. the Annexure A3 notification dated 10.5.99 inviting applications was for filling up the vacancies of Bricklayer Khalasis and Annexure A-4 order dated 10.11.99 publishing the list of 19 candidates selected as Bricklayer Khalasis were challenged. In this O.A., there were 7 applicants. The selected candidates were also made as respondents. Even though notices were issued to private respondents none put in appearance.
7. This O.A. was filed by 19 applicants and the impugned orders were Annexure A-3 notification dated 30.3.99 for filling up the vacancies of Artisan Khalasis (Carpenter Category) and Annexure A-4 order dated 1.11.99 publishing the list of candidates found suitable for the post of Carpenter Khalasi. The selected candidates were made as respondents.
Eventhough notices were issued none appeared for the private respondents.
9. We have given careful consideration to the submission made by the learned Counsel for the parties, the rival pleadings and have perused documents brought on record.
10. The basic issue invoulved in these three Original Applications is how the posts of Khalasis who assist the Artisan staff such as Painter/Carpenter/Bricklayer, etc. are to be filled up. For filling up these posts respondents have issued A-3 circular letters in all the O.As. calling for volunteers from all the Wings of the Civil Engineering department. Applicants even though participated in the suitability test contend that the designation of posts as "Artisan Khalasis" is without authority and procedure of filling up the said posts affects their legitimate chance of becoming such Khalasis.
11. A very interesting feature we find in these Original Applications is that neither the applicants nor the respondents have produced the Recruitment Rules for the of Artisan Khalasis or for the post of Artisans such as Painter/Carpenter/Bricklayer etc. to show the feeder category for filling up Artisan posts. The only document which had been produced by the applicants other than the impugned orders were the orders of this Tribunal in O.A. 186/89 and RA 65/90 in O.A. 186/89.
Respondents plea is that the procedure adopted is in line with A-1 order.
12. Admittedly O.A. 186/89 was filed in connection with the filling up of 150 posts of Non-Artisan Khalasis which occurred pursuant to de-casualisation. A reference to a circular issued by the Railway Board pointing out that 25% of the vacancies earmarked for serving semi skilled and unskilled categories and the same being filled up only from Khalasis is also made. A reading of A-1 order in O.A. 186/89 indicates that the said order was disposed of on the basis of an identical question considered in O.A. 613/89. Further, we find that the said order in O.A. 186/89 does not given any indication that there were separate posts of Artisan Khalasis under the respondents at that time.
All unskilled posts were Khalasis. Moreover, the averment of the applicants in the O.As. that they were "Non-Artisan Khalasis earlier designated as Khalasis" had not been specifically denied by the respondents.
12A. One of the grounds raised by the applicants for the reliefs sought for was that no competent authority has issued any order for Creation of new posts of Artisan Khalasis under the Inspector of Works.
According Jo the respondents, the applicants who had accepted the existence of the post of Artisan Khalasis and appeared in the suitability test could not now turn around and say that the existence of Artisan Khalasis was without the sanction of the competent authority. The applicants were estopped from bringing this ground.
According to the respondents the posts were operated and sanctioned by the competent authority. According to them the said creation of posts etc. had no relevance since the post of Artisan Khalasis was not a newly created post and that the applicants were put to strict proof of the same. In spite of these averments in the reply statement we found that the respondents did not produce either the sanction memorandum or the number of posts of Artisan Khalasis or at least any authority for the designation of the posts of "Artisan Khalasis." No Recruitment Rules were also produced in support of the contentions of the respondents to show that there was a procedure prescribed for filling the posts of Artisan Khalasis. Instead according to them the applicants were put to strict proof. We have already on scrutiny of A-1 held that at that time there were no posts of Artisan Khalasis. Therefore we find substance in the ground raised by the applicants.
13. Another ground raised by the applicants is that the method adopted by the respondents for filling up the posts by volunteers was contrary to rules laid down. According to the respondents this Tribunal in O.A.No. 186/89 permitted that normal vacancies could be filled up by calling volunteers. On considering the rival pleas and A-1 and A-2 orders we find that the directions of this Tribunal in O.A. 186/89 as reviewed by this Tribunal in RA No. 65/90 are as follows: (a) The posts of Khalasis created under the de-casualisation scheme shall in the first instance, be filled up by calling volunteers from casual labourers in the Division who are waiting for regularisation according to their seniority in the Division and after subjecting them to an aptitude test.
(b) The regular post of Khalasis may be offered to such casual labourers in the divisional seniority list who are waiting for regularisation. But if any casual labourers is not willing to be absorbed as Khalasi, it can be presumed that he is not interested and he cannot later claim any higher seniority over any of his juniors who have accepted the post of Khalasi and thus got regularisation from an earlier date. All casual labourers should be warned in advance about this.
(c) If on this basis, it is found that there still remain vacancies of Khalasis created in connection with the de-casualisation scheme, these vacant posts can be filled up as a residuary measure by calling volunteers from regular Gangman and by conducting aptitude test amongst them.
(d) The inter-se seniority as between the casual labourers appointed as regular Khalasis and regular Gangmen appointed as regular Khalasis shall be determined from the date from which the persons were first regularised as Khalasis.
(e) This order, however, will not apply to the filling up of normal vacancies of Khalasis which arise due to retirement, promotion, death etc, of the regular incumbent. Such vacancies can be filled up by the Respondents by calling for volunteers from regular Gangmen.
The Gangmen so inducted will count their seniority from the date they were absorbed as Khalasis.
14. It is evident from (a) above that the applicants had to be subjected to an aptitude test before their regularisation as Khalasis.
As per (e) above for filling up normal vacancies volunteers from regular Gangmen could be called. Thus, we find calling volunteers from Khalasis like the applicants and subjecting them to an aptitude test along with Gangmen for filling up the normal vacancies is not in consonance with the direction of this Tribunal in O.A. 186/89.
Moreover, we fail to understand as to why the applicants must be subjected to an aptitude test when they would have already been subjected to such a test before their regularisation. Hence we find substance in this ground raised by the applicants.
15. The applicants relied on para 179 (xiv) of Indian Railway Establishment Manual Vol. I and submitted that transfer of Gangmen to the extent of 10% of the Annual intake of the works side of Engineering Department is only permitted. Respondents submitted that the 10% of the annual intake was not relevant to the facts and circumstances of the case. The said paragraph 179 (xiv) reads as under: "179 (xiv) Recruitment by transfer:- Gangmen may be transferred to the Mechanical Engineering and Transportation (Power) department, Traffic & Commercial department, and to the Works side of Engineering department. Such transfers should not, however, exceed 10% of the annual intake of Gangmen or 10% of the annual intake in the relevant recruitment categories of each of these departments to which Gangmen are transferred. Khalasis of the Stores Department and Safaiwala of all departments may likewise transferred to the Mechanical workshops but will be reckoned against the same 10% annual quota of vacancies in the workshops as is open for absorption in all respects." We find a reading of the above paragraph that Gangmen to the extend of 10% of the annual intake of the Gangmen or 10% of the annual intake on the Works side of the Engineering Department could be transferred to the Works side of the Engineering Department. As the respondents have not produced any authority to show that this para is not applicable in the present case, we are unable to accept the respondents defence.
16. The next ground advanced by the applicants is that as per the decision of this Tribunal, seniority in the post of Khalasis should be based on the date of absorption as Khalasis and Gangmen would be entitled for seniority as Khalasis only from the date of their posting as Khalasi and not as Gangmen. According to the respondents the posts of Artisan Khalasi was respondents have not produced any document to prove that the category called Artisan Khalasis exists leave of filling up the same. Hence we are unable to accept the plea of the respondents.
Moreover we find from the directions of this Tribunal contained in the order in O. A. 186/89 reproduced above that the Gangmen volunteering for Khalasis cannot get seniority over the Khalasis like the applicants.
17. Respondents have advanced the plea that the applicants are estopped from challenging the legality of A3 and similar other orders after having participated in the suitability test pursuant to the said orders. As nothing had been produced before us to show the existence of the posts of Artisan Khalasis and as in the directions of the Tribunal contained in A-1 and A-2 orders only the posts of Khalasis had been referred to, we have already held that no separate posts of Artisan Khalasis exist. Thus when the very basis of the existence of the posts of Artisan Khalasis had not been accepted by us we are of the view that the applicants could challenge the legality of A-3 and similar other orders, notwithstanding their participation in the above said suitability tests.
18. While we hold that it is for the respondents to decide as to who should work where and lay down rules as to how the different posts are to be filled up, it is equally necessary that these are done in a transparent manner. If the respondents had created a new category of posts called "Artisan Khalasis," the details of the same as well as the orders of the competent authority as to how the same are to be filled up should have been brought on record. The very fact no such authority had been produced before us along with the reply statement leads us to conclude that there is no such authority.
19. In view of the foregoing, we are unable to sustain A-3 notification dated 5.4.99 in O.A. 1309/99, A-3 notification, dated 10.5.99 and A-4 letter dated 10.11.99 both in O.A. 1352/99 and A-3 notification dated 30.3.99 and A-4 letter dated 1.11.99 both in O.A. No. 1353/99.
Accordingly we set aside and quash the above said notifications and letters. Respondents are at liberty to fill up the posts of Khalasis on the works side of the Engineering Department in accordance with the directions contained in O.A. 186/89 as reviewed in RA 65/90.
20. The three Original Applications 1309, 1352 and 1353 all of 1999 are allowed to the extent indicated above with no order as to costs.