Om Prakash vs Union Of India And 5 Others
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Allahabad High Court

Om Prakash vs Union Of India And 5 Others on 1 July, 2024

Author: Chief Justice

Bench: Chief Justice

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2024:AHC:106128-DB
 
Judgement reserved on: 30.05.2024
 
Judgment delivered on: 01.07.2024
 
Chief Justice's Court
 

 
Case :- WRIT - A No. - 13788 of 2021
 

 
Petitioner :- Om Prakash
 
Respondent :- Union Of India And 5 Others
 
Counsel for Petitioner :- Dr. Rajesh Kumar Srivastav
 
Counsel for Respondent :- Praveen Kumar Srivastava,Vivek Kumar Rai
 

 
Hon'ble Arun Bhansali,Chief Justice
 
Hon'ble Vikas Budhwar,J.
 

1. Impugned in the present proceedings is the order dated 24.08.2021 passed in O.A. No. 330/1697 of 2021 (Om Prakash v Union of India and others) passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad (in short 'the Tribunal') whereby the writ petition preferred by the writ petitioner has been dismissed.

2. The case of the writ petitioner before the Tribunal was that he was engaged as a casual labour under the Loco Foreman, Northern Railway, Allahabad from 24.12.1976 to 22.11.1981 for a period of 326 days. Since the writ petitioner was not reengaged so he preferred representation for inclusion of his name in the live casual labour register, by letter dated 30.08.1993, an inquiry is stated to have been conducted pursuant whereto the writ petitioner was required to submit documents. Being aggrieved against the inaction of the respondents in not engaging him as casual labour, the writ petitioner preferred O.A. No. 1751 of 1993 (Om Prakash v. Union of India and Others) before the Tribunal which came to be disposed of on 29.08.2000 with a direction to the respondents herein to include the name of the writ petitioner in the live casual register from the date he was medically examined and be permitted to work according to his seniority and as per the rules without the entitlement of back-wages. According to the petitioner, since he was not reengaged as casual labour so a Miscellaneous Application, M.A. No. 1734 of 2001 in Original Application No. 1751 of 1993 was preferred which came to be decided on 01.04.2002 while passing the following orders:

"Respondents have also said that the work could not be provided to the applicant as steam Loco Shed has been closed where the applicant was working as casual labour and it has been replaced by Diesel/ Electrical/ Loco. It is submitted that even regular staff become surplus and with great difficulty they have been re-deployed against their posts. However, it has been stated that applicant will be re-engaged as per the rules and in order of seniority whenever any vacancy come in existence in future.

In the circumstances, in our opinion, the order has been complied with and nothing more is required. The MA is disposed of."

3. It appears that an advertisement was published in the newspaper 'Rojgar Samachar' on 28th June/ 4th July, 2003 for filling up the Class-IV post in Allahabad Division/ Northern Central Railway i.e. Khalasi, Gangman, etc. The writ petitioner thereafter preferred O.A. No.1031 of 2003 (Om Prakash v. State of Union of India and Others) seeking relief for re-engagement against a regular Class-IV post. The said original application came to be dismissed on 21.11.2003 by the Hon'ble Tribunal while observing as under:

"..........I do not think, we can accept the contention raised by applicant counsel because it is settled by now that 'General' candidates cannot be considered against the vacancies reserved for ST, ofcourse, if there was a single vacant post meant for general category, the applicant could have made a grievance that he should also be considered as per the respondents' own undertaking given in the Court. In the instant case, since there is no vacancy for 'general' candidates, we do not think that the applicant can have any valid grievance. In these circumstances, the OA is, therefore, without any merits. The OA is, accordingly, dismissed at admission stage itself with no order as to cost."

4. Challenging the order dated 21.11.2013 passed in O.A. No. 1031 of 2003, the writ petitioner preferred writ petition No. 38511 of 2004 which came to be dismissed for non-prosecution on 23.02.2010.

5. Subsequently, another advertisement came to be published on 05.08.2013 in the newspaper 'Rojgar Samachar' making recruitment of group 'D' post. The writ petitioner again preferred O.A. No. 330/1697 of 2014 (Om Prakash v. Union of India) seeking the following reliefs:

"(i). The respondents may be directed to amend the advertisement for recruitment of Group (D) to the effect that one vacancy in regular category may be kept reserve or applicant may be appointed as per the earlier direction of this Hon'ble Tribunal on the said post.

(ii) The impugned advertisement dated 5.8.2013 published in Rojgar Samachar may be set aside on the ground that the same is circulated without considering the seniority of ex-casual labour.

(iii) It is further prayed that the respondents authorities may be directed to abstain from making direct recruitment in Group D post unless and until all the ex casual labour who are waiting for re-engagement/absorption in railway recruitment services.

(iv) Issue such other and further order or direction which this Hon'ble Tribunal may deem fit and proper in the nature and circumstances of the present case.

(v) The Hon'ble Tribunal may graciously be pleased to allow heavy cost in favour of the applicant."

6. In the said Original Application, during the course of hearing, the learned counsel for the petitioner made a statement that he was only pressing relief no. 1. The said original application on contest came to be rejected on 24.08.2021.

7. Questioning the order dated 24.08.2021 passed in O.A. No.330/1697 of 2014, the writ petitioner has been filed the present writ petition.

8. The writ petition was entertained by this Court on 08.10.2021, the following orders were passed:

"Heard learned counsel for the petitioner.

Union of India and all other five respondents have absented themselves.

The petitioner is an ex-casual labourer who assails the order of the Central Administrative Tribunal dated 24.8.2021 in Original Application No. 330 of 2014. Though, he was an employee since 1981, more particularly March 1981, it submitted that juniors were given seniority over the petitioner and was allowed to remain in service as casual labour and consequently absorbed in the regular service. Mohd. Shabbir, Abdul Wahab, Rajendra Prasad and Sahayak Ali were appointed though they were juniors. The Tribunal has not at all considered this aspect.

The respondents shall consider the case of the petitioner during this interregnum period and file reply within eight weeks from today.

List on 20th December 2021."

9. A counter affidavit has been filed on behalf of respondents to which a rejoinder affidavit has been filed by the writ petitioner.

10. Dr Rajesh Kumar Srivastava, learned counsel for the writ petitioner has sought to argue that the order passed by the Tribunal cannot be sustained for a single moment inasmuch as the legitimate claim of the writ petitioner to be engaged as casual labour has been illegally denied. Elaborating the said submission, the learned counsel for the writ petitioner submitted that though the writ petitioner was engaged as a casual labour for a period of 326 days from 24.12976 to 22.11.1981 but an order came to be passed by the Tribunal requiring the respondents to include the name of the writ petitioner in the live casual labour register from the date, he was medically examined and be provided to work according to his seniority as per the rules. He submits that firstly on 28th June/ 4th July, 2003, an advertisement was published by the respondents in newspaper 'Rojgar Samachar' for filling up of group 'D' post, however, the claim of the writ petitioner for re-engagement was sidetracked on the pretext that the writ petitioner belongs to General category and the vacancy which was advertised was of scheduled tribe. He further submits that again an advertisement came to be published on 05.08.2013 for filling up of group 'D' post ignoring the claim of the writ petitioner for re-engagement which is in violation of Article 14 of the Constitution of India.

11. Submission is that in view of the circular of the General Manager (P) Northern Railway, New Delhi on 23.03.1990, all the casual labours who are retrenched after 01.01.1981 are to be included in the live casual labour register till they are absorbed. It is, thus, sought to be argued that the writ petitioner had a legally enforceable right of being placed in the live casual labour register and then re-engaged and in failing to do so, discrimination has been meted to the writ petitioner and the Tribunal in overlooking, the said crucial aspects has committed illegality. Hence the order of the Tribunal cannot be sustained.

12. Countering the said submission of the learned counsel for the writ petitioner, Shri Praveen Kumar Srivastava appears for the respondents has sought to argue that the order of the Tribunal needs no interference in the present proceeding, particularly, when the writ petitioner as per his own saying had been engaged as a casual labour from 24.12.1976 and 22.11.1981 and after that the writ petitioner had not worked for even a single day. He further submits that the circular relied upon the writ petition would not be of any assistance, since the re-engagement is subject to various factors, occurrence of the vacancy, position in the seniority as well as suitability.

13. Submission is that even if the case of the writ petitioner is taken into face value then to the writ petitioner is over aged as in view of the circular railway board dated 20.09.2001 relaxation of the age for re-engagement to ex-casual labour is 40 years for general candidates, 43 years for OBC, 45 years for SC/ST where as the age of the writ petitioner is 63 years on the date of the filing of the writ petition. Reliance has been placed upon the judgment in the case of Union of India and others v. Ajay Kumar and others, in Civil Misc. Writ Petition No. 21799 of 2006 decided on 03.08.2006 of this court.

14. We have heard the learned counsel for the parties and perused the record carefully.

15. It is not in dispute that the writ petitioner was engaged as a casual labour for the period from 24.12.1976 to 22.11.1981 and he worked for 326 days. An Original Application No. 1751 of 1993 came to be filed by the writ petitioner which got decided on 29.08.2000 with a direction to the respondents to include the name of the writ petitioner in the live casual labour register from the date, he is medically examined and was permitted to work according to his seniority and as per the rules. Alleging non-compliance of the order passed in the Original Application No. 1751 of 1993, M.A. No.1734 of 2001 was preferred by the applicant which came to be decided on 01.04.2002 observing that the order of the Tribunal stood complied with as the respondents had come up with the stand that the writ petitioner would be reengaged as per rules and in order of seniority as and when vacancy is available.

16. Challenging the advertisement dated 28th June/ 4th July, 2003 published in Rojgar Samachar for filling up of group 'D' post, the writ petitioner preferred O.A. No.1031 of 2003 which came to be dismissed on 21.11.2003 by the Tribunal on the premise, the vacancy which was being filled up was of ST category whereas the writ petitioner belongs to General category. The said order came to be challenged by the writ petitioner before this Court in Writ Petition No.38511 of 2004 which though was entertained on 20.09.2004, however, it finally came to be dismissed in default on 03.02.2010. Thereafter another advertisement came to be published by the respondents on 05.08.2013 for filling of group 'D' post which was also subject matter of challenge and the relief so confined was for a direction to amend the advertisement for recruitment of group 'D' post to the effect that one vacancy in regular category be kept reserved and the applicant may be appointed as per the earlier direction of the Tribunal of the said post. The Original Application No. 330/1697 of 2014 came to be dismissed on 24.08.2021. The grievance of the writ petitioner is that as per the order of the Hon'ble Tribunal, his name was required to be included in the live casual labour register and accorded engagement, however, the respondents while acting in discriminatory manner kept on filling up the group 'D' post so as to create a situation whereby there is no room available against which the writ petitioner can be accommodated.

17. Notably, the writ petitioner has not been engaged after 22.11.1981 and the period of working from 24.11.1976 to 22.11.1981 is 326 days. Though there happens to be a direction to the Tribunal for including his name in the live casual register but in the opinion of the Court that does not give an indefeasible right to the writ petitioner to be engaged, particularly, engagement is subject to availability of vacancies, suitability and obviously work. The question of discrimination being alleged to have been meted to the writ petitioner while sidetracking his claim and absorbing Mohd. Shabbir, Abdul Wahab, Rajendra Prasad and Sahayak Ali who are claimed to be junior also loses its relevance, particularly, when more than 42 years have passed and the writ petitioner as per his own saying on the date of the filing of the writ petitioner was 63 years of age. The Hon'ble Tribunal has rightly observed in the impugned judgment that there is nothing to show that there was any direction to the respondents to accord engagement to the writ petitioner, more so when the only direction was to include the name of the writ petitioner in the live casual labour register and to engage him subject to seniority and as per the rules.

18. Nonetheless the writ petitioner as per the circulars of the Railway Board can only be absorbed, in case, he fulfills the suitability criteria which also includes the age limit which was as per the Railway Board circular is 40 years in case of general category whereas the writ petitioner is a senior citizen. The said issue stands decided in the case of Ajay Kumar (supra).

19. Pertinently, we further find that there is nothing or record to show that group 'D' post is vacant against which the writ petitioner can be re-engaged.

20. Viewing the case from all the angles, we find that the writ petitioner has miserably failed to show any infirmity in the order of the Tribunal warranting interference in the present proceeding.

21. Accordingly, the O.A. is wholly misconceived and is liable to be dismissed.

22. Resultantly, the writ petition stands dismissed.

Order Date :- 01.07.2024

A. Prajapati

(Vikas Budhwar, J.) (Arun Bhansali, C.J.)