| SooperKanoon Citation | sooperkanoon.com/54700 |
| Court | Central Administrative Tribunal CAT Ahmedabad |
| Decided On | Oct-26-2005 |
| Judge | A Sanghvi, P A Shankar |
| Reported in | (2006)(2)SLJ55CAT |
| Appellant | J.D. Mehta |
| Respondent | Union of India (Uoi) and ors. |
(B) Be pleased to direct the respondents to absorb the members of the applicant union on those vacant posts which are notified for direct recruitment, as per their seniority in the Live/Supplementary Live Registers, and grant them all consequential benefits from retrospective dates.
(C) Be pleased to declare the impugned advertisement notice to fill up vacancies of gangman, or Rajkot division, from open market, as illegal, unjust and set aside it to that extend and further direct the respondents to fill up the vacancies in Group-D, from amongst ex-casual labourers, as per the combined divisional seniority list, in light of the judgment of Hon. Apex Court, in Indrapal Yadav's case.
(D) Be pleased to direct the respondent No. 2 to pay special cost and compensation for the present litigation to the applicants as he has intentionally flouted the directions of this Hon. Tribunal in earlier O.A. (E) Any other relief to which the Hon. Tribunal deems fit and proper in interest of justice.
2. The case of the applicant in brief is that he worked as Project casual labour from 5.11.83 to 9.9.85. The applicant had earlier approached this Tribunal earlier vide O.A. 262/ 97. After orders in Contempt Petition his name was included in the revised seniority list maintained by Rajkot Division though a copy of the same is not given to him. The respondents in violation of Railway Board instructions and the law on the subject have issued a notice for open market recruitment to frustrate the claims of ex-casual labour, who have worked in the past.
When Mr. Ram Vilas Paswan was the Railway Minister he had directed for absorbing all casual labourers and to reduce the number to zero. This Tribunal in O.A. 444/02 has restrained the respondents from filling up the Group D posts by open market recruitment. Interim relief had been sought for and one post of Gangman/Diesel Khalasi as indicated in the notification had been kept reserved.
The sole applicant had filed a detailed rejoinder. It is reiterated that unless the ex-casual labourers are absorbed the respondents cannot resort to direct recruitment. The contention of relaxation of three years condition is misconceived and has no merits. They do not have to apply pursuant to notification. It is misconceived to say that there is no directions from Railway Board for absorption of casual labour. There are specific provisions in IREM and circulars issued by Railway Board from time to time. (Neither the letter number is referred to nor copies enclosed with the record).
3. The respondents in their reply have stated that the reply is confined to Shri J.D. Mehta only. Pursuant to the directions of the Tribunal in the said O.A. 262/97 and C.P. arising thereafter, a revised seniority list was notified. For implementation of the orders of the Tribunal in some other matter the Headquarters gave approval for opening a live register of ex-casual labour on Rajkot division. The name of applicant appears at Sl. 12 in this register of 18 persons.
Thereafter letter dated 11.12.2001 (Ann.-A/2) has been issued. There is no requirement of casual labour at the moment and no junior to the applicant has been re-engaged. The nodal RRB has issued a notification for filling up posts in various divisions/ Diesel Khalasi (Ann. A/3).
The age limit mentioned in the said notification is 18-33 years and the relaxation in upper age limit can be given to those casual labours, who have put in three years service. O.A. 444/02 relates to Bhavnagar division. The applicant could have participated in the said selection.
He has no right to challenge this notification. There is no direction from Railway Board to regularise all casual labourers. This Tribunal has no jurisdiction to entertain a claim as per Section 25-H of I.D.Act.
4. We have heard Mr. Shevde for the respondents. Mr. Pathak, who was not present at the time of hearing, had been permitted to file written arguments. No arguments have been filed.
5. The sole affected party J.D. Mehta had earlier approached this Tribunal vide O.A. 262/97. The said O.A. was disposed off vide orders dated 13.9.97 with a direction to the respondents to hold an enquiry and decide as to whether the claim of the applicant to be an ex-casual labourer is genuine or not. C.P. 66/98 filed in the said O.A. 262/97 was disposed off with a direction to the respondents to prepare a proper live register indicating the names of only those persons who are still to be re-engaged and their seniority to be determined having regard to the relevant instructions in this regard namely number of days put in as a project casual labour. It was further indicated that the applicant should be re-engaged in his turn.
6. It further appears that yet another C.P. 68/2000 was filed in this C.P. 66/98. The order dated 14.9.2001 shows that the D.R.M. had appeared in person. It further shows that in the review application in O.A. 262/97 the Tribunal had agreed that bottom of seniority in live register be replaced by bottom of seniority list. The Tribunal held: 6. The respondents had filed affidavit dated 16.8.2001 where they brought oat that the term to be used in seniority list and not live register and also indicated that the applicant's name appears at Sr.
No. In the said seniority list. It was also mentioned that in the seniority list names of more than ten thousand ex-casual labourers are appearing but no details such as date of birth, place of initial engagement, place of last working, residential address, date of retrenchment etc. are available. They also mentioned that it is not possible to identify the number of ex-casual labourers still remaining to be re-engaged at this distant date. The Tribunal's direction was quite clear as it wanted the Railway Administration to follow the Supreme Court direction and the Railway Board Instructions and it was necessary for the division to maintain a document which includes the name of ex-project casual labourer waiting for a job and it is not material whether it is called live register or seniority list and the division is expected to follow the directions of the Supreme Court in the case of Inderpal Yadav and also the guidelines issued by the Railway Board.
7. Be that as it may, since a list is being maintained excepting for the fact that it includes casual labourers in employment in addition to those who have not got a job, the division is in a position to offer a job when a vacancy arises in the Department/Division which has to be filled up by the ex project casual labourers. The respondents should offer such a vacancy when it arises to the senior-most person in the seniority list waiting for a job in the Railways. If any person in such seniority list had not been in tough with the Railway Administration and has not intimated his whereabouts, the respondents shall proceed further and offer the job to the next person in the seniority list. The respondents shall carry out the deletion from such list of names of persons who are already working in the Railways within one month from the date of receipt of a copy of this order. There should be no difficulty in undertaking this exercise as the Railway Administration should be in a position to know the details of those who are working with them at present. They shall follow this procedure as and when a vacancy arises which has to be filled up by ex- project casual labourers. We make it clear that no junior to the complainant as per the seniority list prepared in accordance with he instructions of the Railway Board should be engaged prior to the engagement of the complainant as already ordered. We also further direct that the complainant or Mr. Gogia if duly authorised by him shall be allowed access to examine such list, that he will satisfy himself that the laid down procedure is followed and no persons junior to the complainant would be re-engaged overlooking his claim. Mr. Gogia brings out that as per the relevant scheme if the vacancy arises in other department in the division casual labourers of the project Engineering Department to which the complainant belongs can be absorbed there. The division shall follow the rules and instructions of the Railway Board in such matters.
8. We may also mention that the earlier affidavit of the respondents dated 16.8.2001 was worded in such a manner as to cast a doubt about the sincerity of the Railway Administration to carry out the direction of the Tribunal. In the present affidavit dated 14.9.2001 there is an apology of the D.R.M. for delay in compliance with the direction. It is needless to say that the Tribunal's order while disposing of contempt petition only follows the law laid down by the Supreme Court and the guidelines of the Railway Board and we expect that the D.R.M. will conform to such directions and instructions. We accept the apology tendered by him.
7. The respondents informed the applicant that his name appears at Sl.
No. 3341 in the revised seniority list of ex-casual labour. Annexure R-1 is the letter dated 11.12.2001 of the Railway Administration showing that the seniority list of ex-casual labour engaged in the geographical jurisdiction of the Rajkot division prepared by the Construction Department and notified/published earlier vide letter dated 24.12.87 is hereby revised and notified.
8. Para 2002 of IREM (1990 edition) (para 2503 of earlier edition) makes it abundantly clear that the casual labour have only such rights as are conferred on them by statues like Workmen's Compensation Act, Minimum Wages Act, etc., or those specifically sanctioned by the Railway Board from time to time.
IREM further provided for three types of casual labourers namely; casual labours on open line, project casual labour and casual labour on works of seasonal nature. While the scheme initially provided for being treated temporary (conferment of temporary status) on casual labour in open line and on work of seasonal nature, there was no such provisions in the case of Project Casual Labour.
9. The Apex Court made certain observations in this regard in para 23 of its decision in L. Robert D'Soza v. Executive Engineer Southern Railway and Anr. 1982 SCC (L&S) 124 : 1982(1) SLJ 319 (SC). The Railway Board prepared a scheme for treating them temporary (conferring them temporary status) and the same was approved with certain modifications in the case of Inderpal Yadav v. Union of India 1985 SCC (L&S) 526 : . The relevant part of the said decision is as 4. By and large the scheme certainly is an improvement on the present situation though not wholly satisfactory. However, the Railways being the biggest employer and having regard to the nature of its work, it would have to engage casual labour and therefore, as a preliminary step towards realisation of the ideal enshrined in Article 41 and 42, we propose to put our stamp of approval on the scheme with one major variation which was proceed to herein set out.
5. Burdened by all these relevant considerations and keeping in view all the aspects of the matter, we would modify part 5.1 (a) (i) by modifying the date from January 1, 1984 to January 1,1981. With this modification and consequent rescheduling in absorption from that date onward, the scheme framed by Railway Ministry is accepted and a direction is given that it must be implemented by recasting the stages consistent with the change in the date as herein directed.
6. To avoid violation of Article 14, the scientific and equitable way of implementing the scheme is for the Railway Administration to prepare, a list of project casual labour with reference to each division of each railway and then start absorbing those with the longest service. If in the process any adjustments are necessary, the same must be done. In giving this directions, we are considerably influenced by the statutory recognition of a principle well known in industrial jurisprudence that the men with longest service shall have priority over those who have joined later on. In other words, the principle of last come first go or to reverse it first come last go as enunciated in Section 25-G of the Industrial Disputes Act, 1947 has been accepted. We direct accordingly.
The question as to whether this scheme circulated vide letter dated 11.9.86 applied to project casual labour who were not in actual service as on 1.1.81 came up for consideration in the case of Dakshin Railway Employees Union v. General Manager, Southern Railway .
The Apex Court negatived the plea that this scheme is no applicable to such persons. It further held: 3. Shri Krishna Murthy, learned Counsel for the Railway Administration brings to our notice the difficulty which will been experienced by the Railway Administration if without any limitation persons claiming to have been employed as casual labour prior to January 1, 1981 keep coming forward to claim the benefits of the scheme. We understand the difficulty of the Administration and we, therefore, direct that all persons who desire to claim the benefits of the scheme on the ground that they had been retrenched before January 1, 1981 should submit their claims to the Administration before March 31, 1987. The Administration shall then consider the genuineness of the claims and process them accordingly. The writ petition is allowed accordingly.
10. The Railway Board had also issued a general circular that no fresh faces should be engaged as casual labour with effect from 1.1.81 without the prior approval of General Manager. The Railway Board Circular dated 19.11.86 provides that fresh faces engaged thereafter with prior approval of General Manager shall have the educational qualifications for Group 'D' posts and in Diesel/Electric Loco/EMV Sheds candidates trained under Apprentices Act or ITI diploma holder shall be engaged.
[RB E(NG) II-84/RR-1/26 of 19.11.86 quoted at pages 640-41 of K.P.Sharma's Railways Establishment Rules & Labour Laws, 2002 edition].
11. The decision in Inderpal Yadav case was further explained by a Three Judge Bench in Union of India v. K.G. Radhakrishna Panicker .Inder Pal Yadav v. Union of India , this Court approved the said scheme but modified the date 1.1.1984 in Para 5.1 (a) (i) to 1.1.1981 and as a result there was consequent re-scheduling in absorption from that date onwards. The Court, while accepting the scheme with the modification gave a direction that it must be implemented by re-casting the stages consistent with the change in the date as directed. As per the aforesaid scheme temporary status was conferred on Project Casual Labour with effect from the dates specified therein and on the basis of such temporary status they were also extended the benefit of the order dated October 14, 1980 and the temporary service after attaining the temporary status was counted for pension and other retiral benefits.
11. The submission that prior to the acceptance of the scheme by this Court in Inder Pal Yadav Project Casual Labour were entitled to grant of temporary status on completion of 180 days of continuous service is neither borne out by Para 2501 of the Manual nor by the decision of their Court in Inder Pal Yadav. The acceptance of the contention of Mr. Ramamurthi that earlier Project Casual Labour could be treated as temporary after completion of 180 days of continuous service would mean that as a result of the scheme that was accepted by this Court in Inder Pal Yadav the position of Project Casual Labour became worse than what it was prior to the acceptance of the scheme because under the scheme acceptance of the scheme because under the scheme they could be treated as temporary only on completion of 360 days of continuous service. The decision in Inder Pal Yadav does not support such a view. It must, therefore, be held that prior to the Scheme which was accepted by this Court in the case of Inder Pal Yadav Project Casual Labour could not claim temporary status and such temporary status only be acquired by them on the basis of the Scheme as accepted in Inder Pal Yadav .
12. A Division Bench Of the Apex Court in Secretary State of Karnataka and Ors. v. Umadevi and Ors., and other Civil Appeal 2004 SCC (L&S) 935 after referring to the six decisions mentioned- therein on the subject of regularisation of casual labour/ad hoc employees observed as under: 1. In this connection reference has been made to two decisions of this Court rendered by three Judges Benches, namely, Ashwani Kumar v. State of Biharand State of Haryana v. Piara Singh. It is submitted that in both these cases it has been held that regularisation is possible only against sanctioned permanent vacancies. If such vacancies are not available or the candidates lack in eligibility or qualifications in any manner, then too it would not be possible to order for regularisation, of such employees, besides the requirement of compliance with selection procedure. Thus, long duration of service would not be relevant consideration to regularise the services on this point. Our attention has been drawn to a recent two Judge Bench decision of this Court in Dr. Chanchal Goyal v. State of Rajasthan.
3. Looking to the position as it stands under the law regarding regularisation, namely different views expressed in different decisions of this Court, we feel that is would be appropriate that the matter may be heard by a three-judge Bench, so as to appropriately appreciate the legal position and decide the matter accordingly.A. Umarani v. Registrar Cooperative SocietiesIn State of Haryana v. Tilak Raj a Division Bench of this Court held that person appointed as daily-wager holds no post and thus, is not entitled to claim the benefit of equal pay for equal work.
62. In Jacob M. Puthuparambil whereupon Mr. Balakrishnan placed strong reliance, a three Judge Bench of this Court noticed that by reason of the statutory rules, regularisation was sought to be made of such employees who were appointed under posts required to be filled if (i) it is necessary in public interest, and (ii) where an emergency has arisen to fill any particular post which has fallen vacant, immediately. Therein it was further noticed that Clause (e) of Rule 9 provides for regularisation of service of any person appointed under Clause (i) of Sub-rule (a) if he had completed continuous service of two years on 22.12.1973, notwithstanding anything contained in the Rules.
63. Jacob M. Puthuparambil has been distinguished by this Court in several decisions including a three-Judges Bench of this Court in Director, Institute of Management Development, U.P. v. Pushpa Srivastava and Ashwin Kumar.
64. We do not intend to say any more on the subject as even constitutionality of such a provision is pending for consideration before the Constitution Bench of this Court.
68. In a case of this nature this Court should not even exercise its jurisdiction under Article 142 of the Constitution of India on misplaced sympathy.In Teri Oat Estate (P) Ltd. v. U.T. Chandigarh 36. We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order which would be in contravention of a statutory provision.
37. As early as in 1911, J.L. in Lathan v. Richard Johnson & Nephew Ltd., observed: We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o' the wisp to take as a guide in the search for legal principles.Ramakrishna Kamat v. State of Karnataka this Court rejected a similar plea for regularisation of services stating: We repeatedly asked the learned Counsel for the appellants on what basis or foundation in law the appellants made their claim for regularisation and under what rules their recruitment made so as to govern their service conditions. They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zila Parishad in view of the Government orders and that their cases need to be considered sympathetically. It is clear from the order of the learned Single Judge and looking to the very directions given, a very sympathy in the given facts and circumstances of the case. While being sympathetic to the persons to the large number of eligible persons waiting for a long time in a long queue seeking employment.
14. Section 215 & 216 of the Indian Railway Establishment Code provide for recruitments to Groups 'C' & 'D' posts. These are as under: 215. Authorities competent to make first appointment. - The authorities competent to make first appointments to Group 'C '& 'D' posts in the offices detailed below shall be as shown against each- (b) Other Office/Project/Organisation directly under the control of the Railway Board - Head of Office/Project/Organisation.
(c) Indian Railway and other Railway Administration e.g.
Chittaranjan Locomotive Works, Integral Coach Factory, etc. - The General Manager or lower authority to whom he may delegate the power.
(1) No appointment shall be made unless a sanctioned post exists against which it can be made: (2) The authorities empowered by or under this rule to make first appointments, may, subject to such condition as they may impose, re-delegate to a lower authority the power to appoint Grade 'D' railway servants.
216.(1) Group 'C' and Group 'D' posts on Indian Railways and other Railway Administrations shall be filled in either of the following ways according to the relevant recruitment rules or other extant orders, if any - (iii) by transfer of suitable staff, if necessary, from other Government offices.
(2) Direct recruitment to Railway Services, Group 'C' shall be made through he agency of the Railway Recruitment Board unless otherwise specially authorised by the Railway Board.
15. Para 179 of IREM (1989 edition) provides for recruitment of Group 'D' staff. Sub-clause (xiii) is regarding screening and absorption of casual labour. The same is as follows: (a) Substitutes, casual and temporary workmen will have prior claim over others to permanent recruitment. The percentages of reservation for Scheduled Castes and Scheduled Tribes should be observed in recruitment to temporary or permanent vacancies.
(b) Substitutes, casual and temporary workmen who acquire temporary status as a result of having worked on other than projects for more than 120 days and for 360 days on projects or other casual labour with more than 120 days or 360 days service, as the case may be should be considered for regular employment without having to go through Employment Exchanges. Such of the workmen as join service before attaining the age of 25 years may be allowed relaxation of maximum age limit prescribed for group 'D' posts to the extent of their total service, which may be either continuous or broken periods.
(c) A register should be maintained by all Divisions concerned to indicate the names of casual labour, substitutes and temporary workmen who have rendered 6 months service either continuous or in broken periods, for the purpose of future employment as casual workmen and also as regular employees, provided they are eligible for regular employment. The names should be recorded strictly in the order of their taking up casual appointment at the initial stages and for the purpose of empanelment for regular Group 'D' posts, they should as far as possible, be selected in the order maintained in the aforesaid registers. In showing preference to casual labour over other outsiders due consideration and weightage should be given to the knowledge and experience gained by them. Other conditions being equal, total length of service as casual labour, either continuous or in broken periods, irrespective of whether they have attained the temporary status or not, should be taken into account so as to ensure that casual labour who are senior by virtue of longer service are not left out.
NOTES: Absorption of casual labour/substitutes in regular vacancies will be subject to each casual labour/substitutes being found eligible and suitable for such absorption.
16. It appears that the Railway Board had thereafter issued a policy circular RBE 1347 1991 dated 25,7.91 regarding relaxation of upper age for absorption of casual labour. It is as follows: In terms of Ministry of Railway' s letter No. E (NG) II/79/CL/17 dated 28.04.1979, the Casual Labour/Substitutes who have put in 3 years service (at one stretch or in broken periods) are granted age relaxation up to the period of service put in as Casual Labour/Substitutes subject to the age 35 years not being exceeded.
The Ministry of Railways have since reviewed the position and decided that age relaxation to the extent of Casual Labour/Substitutes service put in subject to upper age limit of 40 years in the case of general candidates and 45 years in the case of SC/ST candidates not being exceeded may also be granted in the case of Casual Labour/Substitutes, as has been agreed to in the case of serving Railway employees vide Board's letter No. E(NG)I/90/PM-1/30, dated 17.05.1991 (RBE 103/1991).
The Railways have thereafter issued Master Circular No. 48 dated 30.6.92 on the subject consolidating the existing instructions. Paras 5, 11.8, 17, 17.1, 17.2, 17.4(c), 17.5, 17.6, 17.7, 17.9, 17.11,21 are as under: 5. Candidates from the open market to be engaged as fresh casual labour should conform to the age(*) laid down for regular recruitment to Group 'D' post. Casual labour should, at the time of initial engagement be below 28 years of age, relaxable by 5 years in case of Sch. Castes and Sch. Tribes. They should (*) be retained beyond 58 years of age. Also they should possess the minimum educational qualification and standards laid down for the particular department.
11.8. Relaxation in age limit for direct recruitment in Group 'C' Posts.
Casual Labour/Substitutes who have put in 3 years (at one stretch or in broken periods) are granted age relaxation upto the period service put in as Casual Labour/ Substitutes subject to the age relaxation limit 40 years in the case of general candidates and 45 years in the case of SC/ST not being exceeded.
All vacancies in Group 'D' posts, barring the following, becoming available upto 30.6.92 would, as per the extant ad hoc arrangement, the filled from amongst casual labour and substitutes empanelled on the basis of screening; (i) vacancies against which appointment on compassionate grounds is done; (ii) vacancies provided for recruitment of sports persons and artists; Note: Due to special recruitments of workshops in the Mech. Deptt., vacancies in Gr. 'D' are filled as per the instructions contained in Board's letter No. E9(NG)II 73 CL/41 dated 23.8.73, inclusive of transfer of Railway servants who volunteer from other departments and transfer of Gangmen and Stores Khalasis against a prescribed limit. The resultant vacancies in other departments are available for the absorption of casual labour and Substitutes.
(Ref. Board's letters No. E(NG)II/84/CL/92 dated 15.12.84, E(NG)II/84/CL/5 dated 22.6.90) 17.1. On the Northeast Frontier Railway vacancies in Group 'D' should be filled to the extent of 50% from amongst casual labour and the rest through the Employment Exchange.
17.2. Absorption i.e., appointment against a regular vacancy, will be on the basis of screening and not by selection. The Screening Committee should at least consist of three members including an officer belonging to SC/ST community and another to minority community.
17.4(c) For purposes of screening and absorption, the instructions provide as follows: Division should be treated as a unit. Having, how you, regard to the situation and varied practices on the Railways in regard to absorption of casual labour, it has been left to the individual Railways to evolve suitable guidelines, in consultation with recognised labour, for absorption of both Project casual labour and open line casual labour in regular employment, against normal vacancies as well as in posts sanctioned for decasualisation, in an equitable manner.
17.5. After working out the vacancies in Group 'D' to be provided for the absorption of casual labour in regular employment in accordance with the instructions in force, a list of casual labour eligible to be considered should be drawn equal to the number of vacancies worked out plus 25% thereof. In drawing the list, only those who are borne on the current casual labour register, excluding those who had been absent on two occasions when called for screening earlier, should be considered. The list should be prepared in the order of seniority of all eligible casual labour in the unit of screening which may be fixed by the Railway, based on the total service/cumulative aggregate service.
17.6. Casual labour working in the offices of the Railways Recruitment Boards should also be considered for absorption on the basis of screening along with other open line casual labour in the Division, where the office of the RRB is located.
17.7. Casual labour engaged seasonaly viz., water carriers/punkha pullers etc., should also be considered for screening for absorption along with others based on their total length of service.
17.9. At the time of screening of casual labour relaxation in age should be automatic if it is established that the individual was within the prescribed age limit and had born more or less regularly working. In old cases, where the age limit was not observed, relaxation of age should be considered sympathetically, the CPOs, DRMs and the Chief Engineers (Construction) are competent to grant the relaxation in age.
17.11. As per the requirement prescribed, casual labour will be eligible to be considered for absorption against Group 'D' vacancies in all the wings of the Electrical, Mechanical, in the workshops of the S&T Departments, only if they have the minimum qualification of ITI or they are Course Completed Act Apprentices. However, this requirement has been kept in abeyance upto 30.6.92.
21. (i) While referring to this master circular the original letters/references mentioned herein should be read for a proper appreciation. This circular is only a consolidation of the existing instructions and should not be treated as a substitution of the original letters. In case of doubt, the original letters should be relied upon as authority; (ii) The instructions contained in the original letters referred to have only prospective application, unless indicated otherwise; and (iii) If any letter, having a bearing on the subject which has not been superseded, has been lost sight of in the preparation of this master circular, the said letter, which has been missed through oversight, should not be ignored but should be treated as valid and operative.
17. The decision in O.A. 625/97 refers to a Master Circular 157 dated 30.6.92. This Master Circular 48 bears the issue number E(NG)II/91/CL/Master Circular/157 dated 30.6.92. The same para 17 has been quoted with the difference that the date mentioned in the judgment is 30.6.97 and not 30.6.92 as is quoted in this circular.
Reference has also been made to Railway Board circular dated 19.3.97 which was as under: Attention is invited to Board's wireless message No. 91/E(SCT)I/30/10 dated 21.7.92 wherein it was advised that Board's instructions contained in letter No. B (NG)II P1/RR/1/21 dated 16.9.91 banning direct recruitment in Group 'D' posts shall not apply in filling up posts reserved for SC/STs. In this connection, it is desired that when there is no ban on the Direct Recruitment in Group 'D' to make good the shortfall, Railways/PVs need not send any proposal for Direct Recruitment from open market against Group 'D' shortfall due to non-availability of SC/ST casual labourers. The matter may rest at the end of General Manager.
18. K.P. Sharma's Railway Establishment Rules and Labour Laws, 2002 (Bahri Brothers) quotes at page 39 the Railway Board Circular E(NG)II 92/CL/65 of 4.9.92.
All Group 'D' vacancies, excluding Workshops, are to be filled from the existing Casual Labour after due screening wherever such casual labour are available. In the administrative and other associate offices casual labour may not be available for such screening to fill in Group 'D' vacancies. Board, therefore, desire that in such cases, the requirement should be met from screened Group 'D' Panels, locally available.
19. It appears that the Railway Board had thereafter issued their circular RBE 78/96 indicating therein that all the 56,000 casual labourers on roll as on 8.8.96 (date not very clear) have to be regularised by 1997-98 and with a view to ensuring this objective of no casual labour on roll all possible action is to be completed by December 1997. The operative portion of the said instructions is as follows: (ii) All the vacancies in the lowest grade in Group 'D' including the resultant vacancies due to promotion within Group 'D' and from Group 'D' to Group 'C' upto Dec.' 97 in each department should be assessed and casual labour available in the department equal to the number of group 'D' vacancies thus worked out, should be screened for regularisation.
(iii) After the screening of casual labour against the vacancies of the department as above has been completed, the left over unscreened casual labour of the department should be screened for regularisation in other departments against vacancies in the lowest grade in Group 'D' including the resultant vacancies due to promotion within Group 'D' and from Group 'D' to Group 'C' upto Dec.' 97.
(iv) In the process of posting after screening as above, it is possible that some of the casual labour may have to be posted to stations other than those at which they are working. It should be made clear to them that any refusal to move on transfer on their part would result in forfeiture of the benefit of screening for regularisation.
(v) In the process of screening it should be ensured that the quota for SC, ST and OBC is strictly adhered to and in case sufficient candidates are not available from these categories for screening, the posts are kept vacant and not de-reserved.
20. The Railway Board have thereafter issued circular RBE 232/1998 dated 9.10.98 on the screening of casual labour borne on the live/supplementary live casual labour register. Para 2 to 3 are as under: 2. Board's letters No. E/(NG) II/63/CL/13 dated 16.9.1963, E(NG)II/78/CL/ 2 dated 21.2.1984 & 22.11.1984, E(NG)II/78/CL/2 dated 25.4.1986 (RBE 82/1986), E(NG)II/87/CL/38 dated 12.6.1987:- Now that the Casual Labour on roll have been absorbed under the special drive during the period from 1.5.1996 to 31.3.1998, further, vacancies in the different departments of a Division/Unit may be filled up by screening the casual labour borne on the Live register (s) and after exhausting them, by screening those borne on the Supplementary live register of the Division/Unit.
2.1 E(NG)II/78/CL/2 dated 08.12.1988 (RBE 268/1988): In case of the casual labour borne on casual labour live registers, the regularisation will continue to be as per their turn according to seniority based on the number of day s put in by them as casual labour.
2.2 Board's letters No. E(NG)II/78/CL/l 8 dated 21.2.1094, E(NG)II/79/CL/2, dated 3.3.1982, E(NG)II/88/CL/18, dated 1.10.1988 (RBE 250/1988). However, in case of the casual labour borne on supplementary live register, the extant instructions which stipulate that the persons borne on Supplementary live register will be considered for regularisation based on the service after re-engagement after 1.1.1981 (it may be noted that after such re-employment they would have in any case appeared in the live register as well) have now lost relevance. The same are, therefore, modified to provide that the regularisation of casual labour borne in casual labour supplementary live register will be considered in accordance with the number of days put in by them prior to 1.1.1981, those falling in this category being placed enbloc below any who may have rendered service after re-engagement after 1.1.1981.
3. Board desire that the notices of screening along with the lists of persons to be screened out of the persons borne on the Live Register and/or Supplementary Live Register as the case may be (the total No. of persons on the List being equal to the number of vacancies required to be filled up by the screening), shall be issued under the signature of an officer of the Personnel Branch of the Division concerned. In addition to displaying the Notice along with the List, on the Notice Board(s) etc., he will also send a letter under his signature enclosing a copy of the Notice and the List to each of the individuals concerned by Registered Post A/D advising that in case the individual does not turn up, his name will be deleted from the Casual Labour Live Register/Supplementary Casual Labour Registers as the case may be, and that thereafter he would have no further claim for consideration for absorption by screening in Group 'D' so that there is no difficulty in taking action for deleting of the names of those who do not turn up.
K.P. Sharma in his Railways Establishment Rules & Labour Laws 2002 edition quotes as follows from Railway Board Circular dated 11.5.99 at page 651.
Separate lists of casual labour borne on the Live Register/Supplementary Live Casual Labour Registers as on 1.4.99 with the prescribed particulars may be made out to the Board.
21. The Railway Board Circular RBE 42/01 dated 28.2.2001 refers to earlier circular dated 9.10.98, the Railway Board Circular of December 1998 regarding enhancement of educational qualifications and Railway Board Circular of July, 1991 regarding relaxation of upper age limit in case of recruitment of casual labour. Para 3 of this circular refers to the request of the Federations for relaxation of the minimum educational qualifications, and age in case of ex-casual labour borne on the Live/Supplementary Live Casual Labour registers, while considering them for absorption against Group 'D' vacancies. The following instructions have been issued.
4. After considering the views of both the recognized federations the Board have now decided that for filling up 60% in the open market recruitment vacancies for each recruitment in these category of Gangmen, scale Rs. 2610-3540 in the Civil Engineering Department, the minimum educational qualification of Class VIII passed need not be insisted upon while considering the ex-casual labour borne on live/supplementary live casual labour registers. The remaining 40% of open market recruitment vacancies in the category of gangmen in Civil Engineering Department will be filled in through direct recruitment from open market, in which ex-casual labour, who are lower in the seniority position based on the total number of days of casual service put in the live/supplementary live registers, but possess minimum qualification of class VIII pass, can also apply.
For all the other departments, only those ex-casual labour borne in live/supplementary live casual labour registers, who fulfill the minimum educational qualification of class VIII pass would be considered for direct appointment against Group 'D' vacancies.
5. Board's approval will however, be continued to be required for resorting to direct recruitment for filling up all Group 'D' vacancies on Railways, either by absorption of ex-casual labour borne on live/supplementary live casual labour registers or by doing fresh recruitment from open market. This is in the line with the existing practice of taking Board's approval for such open market recruitment for filling up vacancies in group 'D' in accordance with the instructions contained in Board's letter No. E(NG) II/91/RR-1/21 dated 16.9.91, wherein all Group 'D' recruitment on the Railways, from open market had even stopped.
6. As far as age limit is concerned, it has been decided that the instructions contained in Board's letter No. E(NG)II/91/CL/71 dated 25.7.91 would continue to be applicable as before in the case of general, SC and ST candidates. In the case of OBC candidates however, the age relaxation to ex-casual will be available upto the upper age limit of 43 years.
22. The Railway Board thereafter issued a circular RBE 190/2001 dated 20.9.01 in the background of PNM WFIR agenda item 41/01. Upper age limit of 40 years in case of general candidates, 43 years in case of OBC and 45 years in case of SC/ST for absorption of ex-casual labourers borne on live casual labour/supplementary live casual labour register, was available to only those casual labourers who had put in three years of service in continuous or broken spells as per Railway Board circular dated 25.7.91 read with letter dated 11.1.99. Para 6 of RBE 42/01 has therefore been clarified as under: 2. It has been decided that, in partial modification of the instructions quoted above, the ex-casual labour who had put in minimum 240 days casual service, whether continuous or in broken spells, and were initially engaged as casual labour within the prescribed age limit of 28 years for general candidates and 33 years for SC/ST candidates, would be given age relaxation upto the upper age limit of 40 years in the case of general candidates, 43 years in the case of OBCs and 45 years in the case of SC/ST candidates. Other provision for their absorption in Group 'D' will remain unaltered." 3. It has also been decided that the ex-casual labour, who become eligible for above modification, will be considered for absorption with perspective effect.
(These circulars produced in O.A. 587/03 R.D. Parmar v. Union of India).
23. It appears that pursuant of the decision of Apex Court in the case of Excise Supdt., Malkapatnam v. KBN Visveshwar Rao, the Railway Board had issued instructions vide its letter dated 17.9.98 that apart from sending the Employment Notices to concerned employment exchanges and recognised associations of SC/ST it shall be published in employment news also. Those who apply in response to employment news shall be considered on equal footing with those sponsored by employment exchange.
Substitutes, casual and temporary workmen who acquire temporary status as a result of having worked on other than projects for more than 120 days and for 360 days on projects or other casual labour with more than 120 days or 360 days service, as the case may be, should be considered for regular employment without having to go through Employment Exchanges.
24. The Railway Board have thereafter issued policy circular RBE 277/1998 on the subject of educational qualification for Group 'D' posts. It is as under: The revision of the minimum educational qualification for recruitment to Group 'D' posts on the Railways has been under consideration of the Board for some time.
Board, after carefully considering the matter, have decided that in supersession of all previous instructions on the subject, the minimum educational qualification for recruitment to Group 'D' posts in scales 2550-3200 (RSRP) Rs. 2610-3540 (RSRP) on the Railways irrespective of the category or trade or department etc., will henceforth be class eight passed.
25. The Railway Board thereafter issued a policy circular RBE 167/2000 dated 21st September, 2000. It amends Chapter VI of RRB Manual to provide that recruitments for Group 'D' posts will be done by Zonal Railway as was the practice prior to 21.4.99.
26. The letter dated 29.12.2000 has laid down detailed guidelines regarding recruitment unit. Periodicity of recruitment eligibility criterion approval for open market recruitment method of recruitment including detailed guidelines, employment notice, mode of application, conduct of recruitment, preparation and currency of panel. The relevant part is as follows: The education qualification for recruitment to all Group 'D' categories in the Railways shall be Class VIII passed, as already stipulated in Railway Board's letter number E(NG)-II/98/RR-l/107 dated 4.12.98.
The age for recruitment should be as per extant instructions, with relaxations for specified categories as admissible under specific orders issued by the Railway Board from time to time.
Existing directives for obtaining Board's prior approval for filling up Group 'D' vacancies through open market recruitment will continue to apply.
The procedure laid down in Para 179 of IREM-Vol.-I shall be followed for recruitment in Group 'D' categories, subject to the modifications contained in Railway Board's letter No. E(NG)II/96/RR-l/62 dated 17.9.98 issued in reference to Supreme Court judgment in the case of Excise Superintendent, Malkapatnam, Andhra Pradesh v. KBN Visweshwara Rao and Ors. which provides for publication of recruitment notice in 'Employment News', besides issue of such notices to Employment Exchanges, recognised Associations of SCs and STs, display on Notice Boards etc.
Wherever considered necessary, the General Managers may introduce written screening test as a method of selection. In other cases, selection will be held thorough viva-voce test of all the eligible candidates. In both the cases, the selected candidates shall be subjected to a physical efficiency test.
The detailed procedure to be adopted for conduct of selection for recruitment to Group 'D' posts shall be as per the guidelines given in enclosed Annexure.
Any other specific instructions, issued by Railway Board, not covered in these guidelines will continue to apply.
27. It appears that thereafter the Railway Board have vide their letter RBE 230/01 dated 27.11.2001 in modification of their earlier policy dated 21.9.2000 and letter dated 29.12.2000 have taken a policy decision that recruitment of Group 'D' staff shall now be done through the agency of RRB. The said policy circular also lays down the name of the modal and participating RRBs for the different zonal Railways. The detailed guidelines for recruitment have also been enclosed. They provide for recruitment unit, periodicity of recruitment, eligibility criterion, approval of Board for placing indent employment notice, procedure for recruitment, currency of panel and as general clause.
A comparison with the earlier guidelines indicates that the conditions regarding eligibility criterion, approval for open market recruitment and general clause are identical. While the earlier circular indicated that the General Manager may introduce a written screening test wherever considered necessary the present guidelines make the written test obligatory. There is no viva-voce, now, which was the mode of selection on previous occasion. Physical Efficiency Test has been prescribed on both the occasions.
(i) The provisions contained in para 179 of IREM speaks of prior claim/ preference in appointment. It further provides that ex-casual labour with temporary status need not register with employment exchange, while others have to register themselves. It refers to trade test/interview.
(ii) The Railways have thereafter followed an adhoc policy of filling up the Group 'D' posts only by screening of casual labour as indicated in para 17 of Master Circular & Circular dated 4.9.92.
They have thereafter, followed a policy of regularising all casual labour on roll.
(iii) The Railway Board has thereafter issued a circular dated 9.10.98 for absorption of ex-casual labourer on live register/supplementary live register. The seniority has to be on the basis of number of days before 1.1.81. People engaged after 1.1.81 have to be placed enbloc below those on live register and supplementary live register and who had worked before 1.1.81. The educational qualification for the post of Group 'D' staff has been enhanced to class VIII pass in December 1998. Pursuant to the decision of Apex Court instructions have been issued for wide publicity. RBE 42/2001 and RBE 190/01 have also been issued on the subject of regularisation of casual labourer. The Railway Board have issued RBE 230/2001 dated 27.11.2001 regarding recruitment for Group 'D' posts by RRB. They provide for recruitment by written test.
29. The Railway Board circular issued in 2000 and modified in 2001 provide that prior approval of Railway Board has to be obtained before resorting to open market recruitment (para 10 of 2001 policy). Para 5 of RBE Circular 42/01 dated 28/02/2001 suggests that Board's prior approval is required for filling up Group 'D' vacancies on Railways either by absorption of ex-casual labour borne on live/supplementary live casual labour registers or by doing fresh recruitments from open market. This paragraph points out that a ban has been imposed from open market recruitment in 1991. This circular has been issued in the context of the request of the Federations for relaxation of minimum educational qualification and the age in the case of ex-casual labour borne on he Live/Supplementary Live Register while considering them for absorption against Group 'D' vacancies. The Railway Board circular of September, 2001 further provides that the earlier condition of three years service as prescribed in July, 1991 circular to avail of the relaxation of upper age has now been reduced 120 days. A question therefore arises as to whether there is any conflict between Railway Board Circular providing for recruitment through RRBs and the circulars regarding absorption of casual labour referred to in para 20 to 22 above.
30. The arguments advanced in the O.A. as well as in the rejoinder can be summarised as follows: (a) It is the duty of respondents to observe the principles laid down in 25-H of I.D. Act, as observed in Inder Pal Yadav case.
(b) The decision in O.A. 444/02 provides that posts have to be filled up first from amongst casual labour.
31. We first note that Section 25-H of the Industrial Disputes Act and Rule 78(1) of Industrial Disputes (Central) Rules as under: Where any workmen arc retrenched, and the employer proposes to take into his employ any persons, he shall, in such manner as may be prescribed, give an opportunity "to the retrenched workmen who are citizens of India to offer themselves for re-employment, and such retrenched workmen" (a) who offer themselves for re-employment shall have preference over other persons." (1) At least ten days before the date on which vacancies are to be filled, the employer shall arrange for the display on a notice board in a conspicuous place in the premises of the industrial establishment details of those vacancies and shall also give intimation of those vacancies by registered post to every one of all the retrenched workmen eligible to be considered therefor, to the address given by him at the time of retrenchment or at any time thereafter: 32. A Division Bench of the Kerala High Court in O.M. Vishawambaran v.State of Kerala 1982(3) SLR 637 was considering the question as to whether temporary employees appointed under Rule 9(a) of Kerala State and Subordinate Service Rules can obtain a writ of prohibition of restrain the respondents from terminating their service and place fresh hands recruited through the Public Service Commission. The Division Bench held: 7. The problem now pointed out is that when once this Court has held that these temporary employees are workmen entitled to the benefit of Chapter V-A under the Industrial Disputes Act as against their employer, logically it must follow that they cannot be replaced by any junior and all fresh recruits would be junior. They cannot be sent out and fresh recruits taken, for, whatever may be the provisions of Article 16(1), provisions of the Industrial Disputes Act would be violated if the petitioners are sent out with a view to appointing the Public service commission hands. The answer to this is simple. The provisions of the Industrial Disputes Act cannot override the Constitutional rights of the persons who have been selected by a due process of selection by the Public Service Commission. The latter are persons who, being eligible to be appointed, have undergone a regular process of selection. They have been afforded an opportunity to be eligible for appointment and are accordingly advised. Rights of persons temporarily appointed by way of stop-gap arrangement cannot be read so as to defeat the Constitutional rights as otherwise it would defeat the rule of equal opportunity envisaged under Article 16(1) of the Constitution and the provisions of Article 320 which enable the Public Service Commissioner to resort to regular recruitment in order to secure that opportunity to the applicants.
8. There is yet another aspect of the matter to which we should advert in this context. Art 16(4) of the constitution envisages reservation by the State of posts in favour of backward classes of citizens which in the opinion of the State are not adequately represented in the services under the State. By way of working out this guarantee, provisions have been made in the Kerala State and Subordinate Services Rules for reservation Scheduled Castes and Scheduled Tribes. Temporary appointments made in accordance with the rules. The perpetuate temporary appointment on the plea that otherwise Section 25H of the Industrial Disputes Act would contravene, would be to nullify the constitutional protection given under Article 16(4) of the Constitution by making the rules of reservation in the Kerala State and Subordinate Services Rules to backward classes as well as Scheduled Castes and Scheduled Tribes inapplicable. Such a result is certainly not envisaged and would certainly be unconstitutional. It is in this background that we have to read down the rights of the temporary employees particularly in relation to the provisions of Section 25H of the Industrial Disputes Act.
9. Therefore, we are of the view that the rights of the temporary employees who, we have found are entitled to the protection of Chapt. V-A of the Industrial Disputes Act, will not operate so as to defeat the rights of recruits advised by the Public Service Commission. In this view the petition is without any merit and is dismissed in limine.
33. The applicant Vardiben in Vardiben D/o. Zapda Parmar v. Secretary, Railway-Board, SCA 1712 of 2004 in High Court of Gujarat was a daily rated casual worker. She had sought for a direction to the respondents Railway Administration to give preference to the petitioner in recruitment prior to fresh recruitment in accordance with Section 25-H of I.D. Act r/w. Rule 78(1) of I.D. (Central) Rules. Reliance was also placed on sub Clause (xiii) of Rule 179 of IREM. The Hon'ble High Court held: 4. Having considered the above, it appears that there is no dispute on the point that the petitioners were not appointed by selection process and they are casual daily rated employees. Therefore, status of casual daily rated employee cannot be equated with the permanent regularly selected employee nor any casual daily rated employee can march over regular selection process or regularly selected employee.
Section 25H of the I.D. Act would apply only if the employer wants to engage other casual daily rated employees, then only there will be right of reemployment by preference. Section 25H of the Act can not be read so as to nullify the regular selection process from amongst qualified persons in public employment. It is not the case of the petitioners that the railway has given advertisement for reemployment of any casual daily rated employees but it is by way of regular selection process and therefore Section 25H has no applicability at all. If Section 25H does not apply the argument that a registered notice is required to be given for offering reemployment would not survive. Therefore, in my view, those who are daily rated employees can not assert their right so as to stall the regular selection process and, at the most, the right which can be read is that if they are qualified for applying for the post they have right to apply and their applications can be considered at par with the other qualified and eligible persons.
5. The interpretation canvassed by Mr. Shah that Clause (xiii) of Indian Railway Establishment Manual is also illfounded in as much as the substitutes, casual and temporary workers will have prior claim over others can not be accepted and it can not be read as a right qua the posts which are to be filled by regular selection process.
Similarly, the interpretation canvassed by Mr. Shah that Clause (b) is also illfounded in as much as the whole part of Clause (xiii) is for substitutes casual and temporary hands and it cannot be for frustrating the regular selection process for the permanent posts.
In case the petitioners are so qualified to meet with the requirements, they may at the most apply but it cannot be validly contended by the petitioners that employment of the Government and the petitioners should only be considered for the purpose of such posts. If such an interpretation as canvassed by Mr. Shah is accepted, in my view, it would result into frustrating the principles for offering employment to the public at large and to appoint persons of best competence from amongst the eligible persons and any interpretation otherwise than the same would be against the public interest and therefore also the interpretation as canvassed by Mr. Shah cannot be accepted.
34. In any case as the claim is flowing from Section 25-H of the I.D.Act, the matter can only be preferred before a forum created under the I.D. Act as per the decision of Apex Court in Premier Automobiles Ltd. v. K. Wakde .K.P. Gupta v. Controller of Printing and Stationery and CSIR v. Padma Ravindranath 2002 SCC (L&S) 245 has held that this Tribunal has no jurisdiction to consider matters under the provisions of I.D. Act.
35. In view of the above position the contention based on Section 25-H of the I.D. Act has to be rejected.
36. The next contention of the applicant is based on orders passed in OA 444/2002. Para 2 of the decision in the aforesaid O.A. refers to the decision in O.A. 625/97. The said decision has referred to the Master Circular 157. The decision in the said O.A. is based on Master Circular. This Master circular provided that as an adhoc policy it has been decided that Group 'D' posts should be filled up from casual labourer only till 30.6.1992. The judgment indicates that the date prescribed in the master circular is 30.6.97. Para 17 above refers.
The Master Circular itself indicates that for a proper appreciation the main order has to be referred to.
The judgment also refers to a subsequent Railway Board circular that prior approval of Board is not necessary for filling up the backlog of SC/ST vacancies in Group 'D' from open market on account of non-availability of SC/ST casual labour, 37. The decision in the aforesaid O.A. which is given in the context of the then prevailing Railway Board policy that Group 'D' posts have to be filled up from amongst casual labour only. Thus the ratio of the said decision can only apply if it can be shown that a similar policy of filling the posts only from amongst casual labhour exists even today. We have noted in para 18 above that this policy was continued vide letter dated 4.9.92 and thereafter all the 56,000 casual labour on roll had been regularised. We have thereafter two sets of circular, one providing for direct recruitment and other for absorption of casual labour. As there is no policy for filling up the Group 'D' posts by absorption of casual labour only, the earlier decision is of no avail.
38. While referring to the Railway Board circular regarding obtaining prior approval of Railway Board before filling up the vacant post we had briefly mentioned in para 29 above the question as to whether there is a conflict between the Railway Board circular providing for direct recruitment through the agency of RRB and the Railway Board circulars providing for absorption of casual labour.
39. Para 179 of IREM reproduced in para 15 above, provides the procedure for recruitment of Group 'D' staff except RPF Sainiks. Sub Clause (i) to (xii) contains provisions regarding periodicity, recruitment units, eligibility, procedure for recruitment, employment notice and application form, selection Board, panel etc. Sub-clause (ix) provides that number of applicants to be called for trade test/interview should be 3 to 5 times the vacancies.
Sub-clause (xiii) contained provisions relating to casual labour.
Sub-clause (xiii) (a) talks of prior claim of casual labour over others for permanent recruitment. Sub-clause 9(c) provides that in showing preference due consideration and weightage should be given to the knowledge and experience gained by them. Other conditions being equal seniors should not be left out.
Sub-clause (xii) contains provisions relating to recruitment by transfer.
Para 2006 of IREM (1990 edition) provides that absorption of casual labour shall be in accordance with circulars of Railway Board. The absorption is not automatic but is subject to availability of vacancies, and suitability/eligibility of casual labour.
The Master Circular 48 dated 30.6.92 and the circular dated 4.9.92 provided for filling up of Group 'D' vacancies by absorption of casual labour.
40. We note that subsequent to the Railway Board order for absorption of casual labour on roll the Railway Board had issued a circular for filling up further vacancies by screening of casual labour borne on the live register/supplementary live register. The circular also provided for inter se seniority of persons on live register/supplementary live register and for deleting the names of such persons who did not respond to notice in this regard. The Railway Board have thereafter issued a circular dated 11.5.99 asking the Zonal Railways to report separate list of casual labour borne on live register/supplementary casual labour live register.
It is in December 1998, the Railway Board have issued a circular for enhancing the educational qualification for Group 'D' staff and for wide circulation of vacancies. The Railway Board thereafter issued a circular in December 2000 laying down detailed guidelines for open market recruitment for Group 'D' posts by the Zonal Railways. The General Managers could introduce written test, wherever considered necessary. In other cases selection was to be held through viva-voce tests. It was to be followed by physical efficiency tests. This circular also has the proviso "Any other instruction issued by the Railway Board not covered in these guidelines is continued".
The Railway Board have thereafter issued a circular dated 28.2.2001 on the subject of absorption of casual labour in the background of enhancement of educational qualifications relaxation of upper age limit etc.
The February 2001 circular states that prior approval of the Board should be taken before resorting to direct recruitment either by absorption of fresh casual labour borne on live/supplementary live casual labour register or fresh recruitment through open market. This is in view of Railway Board circular of September 1991 putting a ban on direct recruitment. It further provides that 60% of the posts in the open market recruitment vacancies for each recruitment in the category of gangman in the scale of 2610-3540 in Civil Engineering Department the minimum educational qualification of Class VIII will not be insisted upon while considering the ex-casual labour. In the remaining 40% of the posts, ex casual labour, who are lower in the seniority list but have the minimum qualification of Class VIII pass can also apply.
For other departments only those ex casual labour who are Class VIII pass shall be considered for direct appointment. The condition of three years service for relaxation of upper age limit in the case of casual labour had been modified to 120 days by the subsequent circular of September 2001.
The Railway Board have thereafter issued a circular in November 2001 regarding recruitment through RRB. It provides for a major departure in the method of recruitment. While para 179 of IREM referred to interview/trade test, the December 2000 had made written test optional this circular makes written test compulsory followed by physical efficiency test. It does not provide for any viva-voce. It does not have the specific provision in the December 2000 circular. "Any other specific instructions issued by the Railway Board not covered in the guidelines is continued". However, para 3 of the circular is as under: 3. The existing procedure for appointments on compassionate ground, appointments against special quotas (like sports quota, cultural quota, physically handicapped quota etc.) shall continue to be in force.
41. The question that, therefore, comes up for consideration is as to whether the February 2001 circular regarding the absorption of casual labour and the November 2001 circular regarding recruitment through the agency of Railway Recruitment Board on the basis of written test only are conflicting and if so then can they be reconciled and if not then which one overrides the other.
42. It is evident that in view of the different circulars of the Railway Board on the question of absorption of casual labour the picture is quite hazy. It is true that the Railway Board have made sincere efforts in trying to see that all the casual labours as far as possible get absorbed in regular service and the last major initiative was to absorb about 56,000 casual labours on roll as per the policy decision in 1996. It however, appears that on account of certain administrative difficulties the benefit could not be extended to all casual labours/ ex-casual labours.
Even though the Railway Board had prescribed a time bound exercise for preparing the supplementary live register, the same was either not prepared e.g., Baroda Division, or it was prepared after a great deal of delay (Bhavnagar Division). It appears from the minutes of PNM meeting of Baroda Division produced in O.A. 369/03 that the association had raised a grievance in 1990 regarding utilisation of old face.. and the maintenance of supplementary live register while deciding the O.A., we had also directed the Railway Board to look into maintenance of live/supplementary live register and to find out how many persons were offered reengagement. The Board had been asked to report back to the Tribunal. These directions have been upheld by the Hon'ble High Court in Special C.A. 17417/05 vide its order dated 31.8.2005. Some division did not maintain the live register but maintained only a seniority list (Rajkot Division) (as noted in O.A. 262/97), resulting into the denial of employment or absorption in Group 'D' by Bombay Division (O.A.315/04). There are also cases where large number of casual labours were working on the project and there are very few posts in open line for their absorption resulting into their non-absorption. The net result is that there are a number of ex-casual labour on live register/supplementary live register awaiting reengagement/absorption.
The main difficulty is that many of them are not VIIIth standard pass.
The other question is that while the earlier selection was based on oral interview the open market recruitment will be based on written test.
43. We also note that in O.A. 369/03 the applicant Veersingh Dhana had agitated the same question of Baroda Division going for market recruitment without first exhausting the live register and had sought the reengagement in service. While disposing of that O.A. vide our order dated 31.1.2005 we had given following directions:- 9. For these reasons and since the respondents have not stated that the live register is still to be exhausted or that the applicant's name in the live register figures at a particular serial number, we treating this case of the applicant as a special case, direct the respondents to consider his case for reengagement if he is otherwise suitable for engagement and vacancy exists, and if the vacancy is not available, consider him for reengagement on the next available vacancy on the post of casual labour.
10. We also direct the Railway Board to inquire into the matter of Vadodara Division maintaining live register and the supplementary live register of ex-casual labour and to take appropriate necessary actions, if it is found that the live register is not maintained or maintained but is not traceable as the authorities of Vadodara Division are found to be not acting as per the Railway Board's directions. The Railway Board may also inquire as to how many ex-casual labour from the said live register maintained by the Vadodara Division have been given reengagement and if not given, why they had not been given. We expect that Railway Board shall examine all these questions at the earliest but not later than six months from the date of receipt of a copy of this order and shall submit their report to this Tribunal on completion of the said inquiry.
With this direction O.A. stands disposed of. No order as to costs.
The Hon'ble High Court in Special Civil Application No. 17417/05 has held: Aforesaid conclusions of CAT are absolutely correct and justifiable in the facts and circumstances of this case. Case for interference is not made out.
44. The Railway Board has come out with fresh directions in November 2001 of going for open market recruitment after holding written test for the post of Group 'D' and has prescribed the minimum educational qualification of VIIIth standard pass. Those casual labourers who are still on the roll of the supplementary live register or the live register and do not possess the educational qualification of VIIIth standard pass are clearly being deprived of any opportunity of absorption in the regular service. No clarification issued by the Railway Board after the issue of November, 2001 circular is shown to us. No doubt this circular provides for prior approval of Railway Board before resorting to open market recruitment. The circular of February, 2001 directing the prior approval of the Board to be taken before resorting to the direct recruitment either by absorption of fresh casual labour borne on supplementary casual labour register or fresh recruitment through open market is in fact not superseded by any circular. The subsequent 2001 directions and issue of notification by RRB have given rise to unnecessary litigation as the casual labours, whose names are still in the live register/supplementary live register, are agitating their right to be appointed in Group 'D' prior to the Railway Authorities going for direct recruitment from market in Group 'D'. Since we do not find any clarification from the Railway Board, we are of the considered opinion that to avoid unnecessary further litigation from the causal labourers and also with a view to see that all the policy decisions taken by the Railway Board are harmoniously reconciled, it is necessary that some clarification on the subject be obtained from the Railway Board. We note that even in those cases where we have already given directions to the concerned Divisional Authorities to either incorporate the name of the casual labour in the live register/supplementary live register or to consider him for reengagement/absorption as per his turn in the live register/supplementary live register, many of such directions have remained on paper only as the reply is that either no junior is engaged or that as per the policy he has to participate in written test and that there is no specific direction of the Railway Board on this subject.
In the instant case also the name of the applicant was entered into the Supplementary live register (seniority list) as called by the Rajkot Division pursuant to the direction given by this Tribunal in O.A.262/97 and he is awaiting absorption, though Rajkot Division. A number of vacancies of Rajkot Division have now been notified for open market recruitment and the only reply given is that notification is issued by RRB. In OA 315/04 we had to ask the General Manager Western Railway to clarify as to what proposal had been sent to Board for approval, the approval of Railway Board and the requisition placed with RRB. RRB has now notified for market recruitment in Group 'D' post. He will clearly be a sufferer for none of his faults if the Rajkot Division proceeds ahead with its plan of market recruitment in Croup 'D' with minimum educational qualification of VIIIth standard pass. Obviously, in view of the earlier circulars of the Railway Board which still hold the field, Rajkot Division cannot be permitted to go for market recruitment in Group 'D' without first exhausting the live register/supplementary live register. However, in view of the latest Railway Board's circular, Rajkot Division is not in a position to absorb the applicant in regular service. Now the applicant will have to get recruited through RRB by clearing the written test and establishing that he possesses the educational qualification of VIIIth standard pass.
45. Since the situation as arising arrears to be in direct conflict with the earlier policy decision of the Railway Board and essence of the Hon'ble Supreme Court decision in the case of Inderpal Yadav, we are of the considered opinion that the Railway Board should be asked to issue clarification in this regard and to take appropriate step to see that those casual labours who are still borne on the roll of live register/supplementary live register in different divisions get proper justice. We find that the Railway Board vide its circular dated 9.10.98 has already asked the Railways to delete names of persons who do not respond to notice in it his regard and to furnish information after doing such an exercise. We understand that number of such casual labours who have not been absorbed must not be very large and it would not be very difficult for the Railway Board to issue appropriate directions by way of clarification as far as their cases of absorption are concerned.
46. For the above reasons and in the facts and the circumstances of the case, we direct the Railway Board to issue appropriate clarification on the subject of the absorption of ex-casual labourers who are still on the roll of the live register/supplementary live register or seniority list as called by the Rajkot Division including those who do not even possess the educational qualification of VIIIth standard pass. We hope that the Railway Board, if necessary, would call for the particulars of casual labours still awaiting absorption in each division at least in Gujarat and issue necessary clarificatory instructions for their absorption so that in future there would be no impediment in adopting the policy of market recruitment through RRB in Group 'D'. We hope that this exercise shall be carried out by the Board within six months from the date of receipt of a copy of this order. We however, direct that till such clarificatory instructions are issued by the Railway Board, the respondents herein shall not fill up the one post directed to be kept vacant in Group 'D' in Rajkot Division and also shall not go for further fresh open market recruitment in Group 'D' in Rajkot Division from open market. Copy of this order be sent to the Railway Board and the General Manager, Western Railway. The O.A. stands disposed of with this direction. M.As. also stand disposed off. No order as to costs.