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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1423 OF 2000.
PETITIONER: Rajkumar S/o Mulchand Godi,
aged about 36 years, Occu: Service,
R/o Jaibhole Nagar, Mahandibagh
Road, Post Dr.Ambedkar Marg, Nagpur.
: VERSUS :
RESPONDENTS: 1) The Union of India,
through General Manager,Central
Railway, Chhatrapati Shivaji Terminus,
Mumbai.
2) The Divisional Railway Manager,
Central Railway (personnel), Branch,
Kingsway, Nagpur.
3) The Senior Divisional Electrical Engineer
(TRD), Central Railway Nagpur.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr.A.K.Choube, Advocate for the petitioner.
Dr. R.S.Sundaram, Advocate for the respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM: B.R.GAVAI AND
V.M.DESHPANDE, JJ.
DATE: 29th AUGUST, 2016.
ORAL JUDGMENT (Per B.R.Gavai, J.)
1. The petition challenges the judgment and order passed ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 2 by the learned Central Administrative Tribunal, Mumbai, Camp at Nagpur, dated 8th of March, 2000, thereby dismissing the Original Application No.647 of 1999 filed by the present petitioner.
2. The facts in the present case are not in dispute. On 1st of July, 1982 the petitioner was appointed as a Casual Labour.
The petitioner was, according to the respondents, granted temporary status on 1st of January, 1984. It is not in dispute that from 19th of June, 1986 the petitioner was working as a Jeep Driver. The petitioner was posted as a Tower Wagan Driver on 3rd of January, 1990. It is the contention of the petitioner that the said was a regular appointment. However, it is sternly contended by the respondents that the said work was given to the petitioner on a temporary basis. On 11th of October, 1994 the petitioner's services were transferred from CEEO (TRD) Warora to TRD BPQ in the same grade and capacity time vacancy.
3. It appears that the present petitioner and co-applicant ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 3 contending that they were not being granted pay scale commensurate with their job of Tower Wagon Driver had approached the learned Tribunal by way of O.A.No.679 of 1996.
It further appears that in the meantime the petitioner's services were reverted in Group 'D' Category on 23 rd of June, 1999.
Immediately, after two days of reversion of the petitioner the first Original Application, i.e. O.A.No.679 of 1996, was partly allowed by the learned Tribunal. In compliance to the learned Tribunal's order in O.A.No.679 of 1996, dated 25th of June, 1999, the respondent decided the representation holding therein that since the petitioner did not belong to running category, he could not be posted as a Tower Wagon Driver.
4. Being aggrieved by the order of reversion dated 27 th of June, 1999 the petitioner filed another O.A.No.647 of 1999. The learned Tribunal accepted the contention of the respondents that the petitioner was appointed as a Tower Wagon Driver only on a temporary basis vide the impugned order dated 8th of March, ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 4 2000. However, it appears that the learned Tribunal had at the stage of admission granted an order of status quo and though vide the impugned order it dismissed the Original Application, it directed that the applicant would be entitled to the same salary which he was drawing prior to reversion till the date of the order passed by the learned Tribunal. Being aggrieved by the dismissal of the Original Application, the petitioner has approached this Court.
5. Heard Shri Choube, the learned counsel for the petitioner and Dr. Sundaram, learned counsel for the respondents.
6. Shri Choube submits that the petitioner having passed the test for Tower Wagon Driver was appointed on the post of Tower Wagon Driver on 3rd of March, 1990. He submits that prior to that for the period of four years he has worked as a driver.
He submits that as a matter of fact the petitioner was promoted as a Tower Wagon Driver in pursuance to the provisions of Clause ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 5 '2007' of Indian Railway Establishment Manual (hereinafter referred to as the 'said Manual') in a 25% quota. The learned counsel, therefore, submits that the reversion is totally unsustainable in law.
7. The learned counsel Dr. Sundaram appearing for the respondents, on the contrary, submits that the petitioner was appointed on a project of electrification and his appointment was not on a regular railway establishment. He submits that there is no post of Tower Wagon Driver on the establishment of the electrification project. The learned counsel further submits that for the first time the petitioner's services as a Casual Labour in Group 'D' was regularized in the year 1997 and as such there was no question of petitioner being appointed on the post of Tower Wagon Driver. He submits that the respondents had erroneously filed an affidavit in O.A.No.356 of 1995 filed by one A.N.Kalekar and petitioner cannot take advantage of erroneous admission made therein. The learned counsel further submits that the ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 6 petitioner had not passed Trade Test but certificate is only regarding completion of training.
8. With the assistance of the learned counsel for both the parties, we have perused the entire record. It will be appropriate to refer to the judgment and order passed by the learned Tribunal in O.A.No.679 of 1996 (i.e. the first Original Application filed by present petitioner with one another). The learned Tribunal has observed thus in paragraph no.4 :-
"4. We have heard learned counsel and perused the records. The applicants are employees in the Railway Electrification Organization. They are qualified for the post of Tower Wagon Driver. They were appointed initially as Jeep/Motor Vehicle Drivers in the scale of pay of Rs.950 - 1500. Later on, they were transferred as Tower Wagon Drivers as evident from Annexure A/4 office order dated 17.1.1990 which reads as follows :::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 7
"Subject : Posting of Tower Wagon Driver in TRD Cadre on Nagpur Division.
The following posting order is issued to have immediate effect to work in TRD organization, Shri Deshraj, Tower Wagon Driver, Gr.III Grade 950 - 1500 (RPS) working in RE is posted in same Grade and Capacity under Divisional Electrical Engineer (TRS) Nagpur."
There is, therefore, no doubt that the applicants are designated as Tower Wagon Driver and they work as such and they are paid in the scale of pay of Rs.950 -
1500. The respondents, however, justify their action on the ground that the Tower Wagon Drivers working in TRD are only Artisans in the grade of Rs.950 - 1500 and, as such they were paid salary appropriate to the grade and Running Allowance according to their pay scale. The post of Tower Wagon Driver in the Railway is in the grade of Rs.1320 - 2040 according to Annexure : 13. We are of the view that an employee is entitled to be paid the salary of the post in which he is working. In the present case, however, we are not in a position to give ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 8 a positive direction regarding the entitlements of the applicants. This is so because in Annexure: 4 above one of the applicants is shown as "Tower Wagon Driver, Grade III". Facts have not been placed before us to show whether in the cadre of "Tower Wagon Driver" there are grades below the grade falling in the scale of pay of Rs.1320 - 2040. At any rate, apparently the "Tower Wagon Driver, grade III" mentioned in Annexure : 13. There are various representations submitted by the applicants which the respondents have not disposed of. In the circumstances, we direct the respondents to dispose of the representations of the applicants and consider their prayer by issuing a speaking order." (emphasis supplied by us)
9. No doubt that Dr.Sundaram is right in contending that by the said order the learned Tribunal has directed the railway authorities to consider the representations of the present petitioner and co-applicant therein. However, an order of the learned Tribunal cannot be construed that what has been observed by the learned Tribunal in the last sentence is only the ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 9 order of the learned Tribunal and whatever has been observed in earlier paragraphs is to be overlooked. A specific finding is given by the learned Tribunal after considering the order issued in favour of one Deshraj Maghale, who was co-applicant with the present petitioner in the said Original Application, that there is no doubt that the present petitioner and the co-applicant are designated as Tower Wagon Driver and have worked as such. The contention of the respondent - railway authorities that Tower Wagon Drivers working in TRD are only Artisans in the grade of Rs.950 - 1500 was specifically rejected by the learned Tribunal.
The learned Tribunal specifically held that an employee was entitled to be paid the salary of the post on which he was working. However, the learned Tribunal found that it was not placed on record whether in the cadre of Tower Wagon Driver there are grades below the grade falling in the scale of pay of Rs.1320 - 2040.
10. It could thus be clearly seen that a specific finding was ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 10 given by the learned Tribunal that the present petitioner and co-
applicant Deshraj Maghale were working as Tower Wagon Driver and they were appointed so. The only issue that was required to be decided by the authorities was, as to whether there were any grade lower in the cadre of Tower Wagon Driver than the scale of Rs.1320 - 2040 and take a decision with regard to the applicability of the pay scale to the applicants. Undisputedly, the said order has not been challenged by the railway authorities and accepted by them.
11. Apart from that, even without consideration of the judgment of the learned Tribunal in O.A.No.679 of 1996, we find that the petitioner was selected and worked as Tower Wagon Driver from 3rd of March, 1990. It is not disputed by the respondents that the petitioner was engaged for doing the work as a Jeep Driver from 19th of June, 1986. It will be relevant to refer to Annexure - II of the petition, which reads thus -
::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 11"RAILWAY ELECTRIFICATIN, NAGPUR.
No.DY.CEE (X)/RE/AQ/TW/1060 Dt.4th October, 1988.
-CERTIFICATE-
This is to certify that Shri Rajkumar Godi has been declared passed for the post of Tower Wagon Driver as per Principal, ZTS/BSL's Letter No.T.W.Driver/R/2-A, dated 20.9.1988.
ig Sd/- S.K.Wandhare, For Dy.Chief Electrical Engineer (I), Railway Electrification, Ajni, Nagpur - 3.
Though it is the contention of Dr.Sundaram that the said certificate is only a certificate of completion of training, we are unable to accept the said contention. The first number of interpretation is plain and literal interpretation. The Certificate clearly certifies that the petitioner has been declared passed for the post of Tower Wagon Driver. In that view of the matter, we find that the petitioner had passed the trade test. The perusal of the order dated 3rd of March, 1990 appointing the petitioner as a ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 12 Tower Wagon Driver is as under :-
"Shri Rajkumar M.Godi, Casual Tower Wagon Driver working in RE NGP is posted as a Tower Wagon Driver working, Grade Rs.950 - 1500 (RPS) at NGP under DEE (TRD) NGP.
ig The staff concerned may please be relieved immediately with instructions to report to DEE (TRD) NGP."
12. It could thus clearly be seen that the petitioner was posted as Tower Wagon Driver in the Grade 950 - 1500. Not only that, it will also be relevant to refer to order dated 11 th of October, 1994 vide which the petitioner's services were transferred in the said cadre, which reads as under :-
"Shri Rajkumar M.Godi, Tower Wagon Driver, Grade Rs.950 - 1500 (RPS) presently working under CEEO (TRD) Warora is transferred and ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 13 posted at BPQ under TRD BPQ in the same grade and capacity time vacancy.
This has the approval of competent authority. He is eligible for transfer facilities. Please note and advise the staff concerned to carry out the orders immediately."
13. It could thus clearly be seen that the petitioner was posted on 3rd of March, 1990 as a Tower Wagon Driver and again transferred on 11th of October, 1994 in the same cadre. It will also be relevant to refer to notification issued by the Government of India, Ministry of Railway Board, which reads thus :-
"The question of classifying Tower Wagon Driver as Running Staff has been carefully examined by the Board and it has been decided that wherever the Tower Wagon Drivers are not being treated as Running Staff, they may be classified as Running Staff for all purposes, prospectively with immediate effect. Such of the Tower Wagon Drivers re-classified as Running Staff should be ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 14 also paid the running allowance at the rates applicable for Goods Drivers Categorily prospectively. Past cases decided otherwise shall not be re-opened.
This has the approval of the President and issues with the concurrence of the Finance Directorate of the Ministry of Railways."
14. It could thus be seen that the Government of India had in an unequivocal terms decided that the Tower Wagon Drivers were to be classified as a Running Staff for all purposes prospectively with immediate effect. It has also been held that such Tower Wagon Driver would be entitled to the running allowance at the rate applicable for Goods Drivers Catregorily.
15. It will also be relevant to refer to sub-clause 3 of Clause 2007 of the said Manual, which reads as under :-
2007. Employment of Casual labour in skilled categories -::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 15
(1) .........
(2)........
(3) Casual labour engaged in work charged establishment of certain Departments who get promoted to semi-skilled, skilled and highly skilled categories due to non-availability of regular departmental candidates and continue to work as Casual employees for a long period, can straightaway be absorbed in regular vacancies in skilled grades provided they have passed the requisite trade test, to the extent of 25% of the vacancies reserved for departmental promotion from the unskilled and semi-skilled categories. These orders also apply to the casual labour who are recruited directly in the skilled categories in work charged establishment after qualifying in the trade test."
The said Clause clearly provides that Casual labour engaged in work charged establishment of certain departments who get promoted to semi-skilled, skilled and highly skilled categories due ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 16 to non-availability of regular departmental candidates and continue to work as casual employees for a long period, can straightaway be absorbed in regular vacancies in skilled grades provided they have passed the requisite trade test, to the extent of 25% of the vacancies reserved for departmental promotion from the unskilled and semi-skilled categories.
It could thus be seen that the rule itself provides for promotion to the extent of 25% of the vacancies provided, of a casual labour have passed requisite trade test. As already discussed herein above, the document dated 4th of October, 1988 speaks for itself that the petitioner has passed the requisite trade test. It could thus be seen that the petitioner was rightly posted as a Tower Wagon Driver on 3rd of March, 1990 after he passed the requisite trade test on 4 th of October, 1988. Not only this, we are of the considered view that the respondents also considered the same to be a correct position at least till 2 nd of January, 1996 as would be evident from the affidavit-in-reply filed by the respondents in the original Application, which was filed by one ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 17 A.N.Kalekar being O.A.No.356 of 1995 challenging the posting of the petitioner as a Tower Wagon Driver. The present petitioner was respondent no.5 in the said original application. It will be relevant to refer to reply filed by respondent nos.1 to 4 to the said Original Application, which reads as under :-
"As to para 4.5 & 4.6:- It is submitted that the applicant was diverted to work at Bilaspur Project of Railway Electrification Organization. He was given ad hoc promotion on Project level only. As per the option of Rajkumar Godi, he was regularized as Khalasi under Divisional Railway Manager, Central Railway, Nagpur and against the departmental quota of 25%, he was screened and selected as Driver. The applicant remains as Casual Driver since he has never opted for category of Khalasi.
Therefore, Rajkumar Godi becomes a regular Khalasi and then a regular driver and the applicant remains casual driver only on the project.
5.1. It is correct that the respondent no.5 ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 18 was absorbed in regular capacity as Tower Wagon Driver. It is submitted that the respondent no.5 was absorbed as regular Khalasi and then he was considered against departmental 25% quota and screened and then he was promoted as regular driver under respondent no.2."
16. It could thus be seen that the respondents at more than one places have reiterated that as per the option given by the present petitioner, he was regularized as Khalasi under Divisional Railway Manager, Central Railway Nagpur and against the departmental quota of 25%, he was screened and selected as Driver. It appears that subsequently after reversion of the petitioner, respondents have made a volte-face and tried to change the stand. We find that the stand taken by the respondents in the Original Application filed by Shri A.N.Kalekar was in consonance with Sub-clause 3 of Clause '2007' of the said Manual and as such we are of the considered view that they had ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 19 correctly supported the post of the petitioner as Tower Wagon Driver. However, it appears that subsequently in order to support the order of reversion, the respondents have changed their stand. However, we find that the stand taken by the respondents in the present Original Application is not in consonance with the rule regulating the service conditions.
17. It appears that the order dated 25 th of June, 1999 in O.A.No.679 of 1996 was not brought to the notice of the learned Tribunal when it decided the said original application.
18. Shri Choube learned counsel appearing for the petitioner as well as Dr.Sundaram, learned counsel appearing for the respondents, both rely on the judgment of Apex Court in the case of Bhadei Rai ..vs.. Union of India and ors. reported in AIR 2005 SC 2404. It is the submission of both the learned counsel that judgment supports their case. However, we do not find it necessary to go into that dispute, as to whether it supports the ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 20 case of the petitioner or the respondent inasmuch as rule which we have reproduced hereinabove and considered in the present matter, did not fall for consideration before Their Lordships of the Apex Court. In any case, the said judgment, to some extent, would support the case of the petitioner. In the said case, though Their Lordships have held that the petitioner, who had lost before the learned Tribunal as well as the High Court, was not entitled to promotional post and he was not regularized to the promotional post, observed that taking into consideration the long years of services rendered by the petitioner on higher post, he was entitled to protection of pay scale which was applicable to him at the time of reversion and further directed that his case be considered for promotion to group 'C' post from group 'D' post along with others.
However, in the present case as we have already discussed herein above, we find that the respondents rightly considering Clause No.2007 of Indian Railway Establishment Manual had posted the petitioner as Tower Wagon Driver on 3rd of March, 1990. Not only that, he was transferred from one division to another division ::: Uploaded on - 02/09/2016 ::: Downloaded on - 03/09/2016 00:18:39 ::: wp1423.00 21 in the year 1994 on the same post. Apart from that, the finding of the learned Tribunal in O.A.No.679 of 1996 to the effect that the petitioner was entitled to pay scale of Tower Wagon Driver has not been challenged by the respondents and the same has been accepted.
19. In that view of the matter, we allow the writ petition.
The impugned order passed by the learned Tribunal dated 8 th of March, 2000 passed in O.A.No.647 of 1999 is quashed and set aside. Petitioner is directed to be restored forthwith to the post held by him prior to passing of the impugned order, i.e. Tower Wagon Driver, with all consequential benefits including salary, etc.
Rule made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
chute
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