Bombay High Court
Bhaskar Laxman Kurrewar vs Union Of India & 3 Others on 10 March, 2016
Bench: B.P. Dharmadhikari
J-wp2111,2112,2245 & 2243.odt 1/14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.2111 OF 2001
Shri Manohar s/o. Atmaram Mangle,
Motor Vehicle Driver working in
O/o. The Deputy Chief Engineering(Construction),
Central Railway, Ajni at Nagpur. : PETITIONER
...VERSUS...
1. Union of India,
through General Manager,
Central Railway, General Manager's Office,
2nd Floor, Chhatrapati Shivaji Terminus,
Mumbai.
2. The Chief Administrative Officer,
(Construction), New Administrative Building,
Chhatrapati Shivaji Terminus, Mumbai.
3. The Divisional Railway Manager,
Central Railway, Kingsway,
Nagpur.
4. The Deputy Chief Engineer,
(Construction), Central Railways
at Ajni, Nagpur.
5. The Deputy Chief Electrical Engineer,
(Const), Central Railway, Nagpur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr. M.Y. Wadodkar, Advocate for the Petitioner.
Mr. R.S. Sundaram, Advocate for the Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:25:20 :::
J-wp2111,2112,2245 & 2243.odt 2/14
WITH
WRIT PETITION No.2112 OF 2001
1. Shyamsunder Harigir Gosawi.
2. Moreshwar Namaji Lokhande.
3. Shivaji Raghoji Digrase.
4. Ramu Anandrao Sawarkar.
5. Wasudeo Pandurang Shinde.
6. Ganpat Tularam Rahangadale.
7. Kaitram Dokari Raut.
8. Manohar Urkuda Menwade.
All Motor Vehicle Drivers working in
O/o. The Deputy Chief Engineer (Construction),
Central Railway, Ajni at Nagpur. : PETITIONER
...VERSUS...
1. Union of India,
through General Manager,
Central Railway, General Manager's Office,
2nd Floor, Chhatrapati Shivaji Terminus,
Mumbai.
2. The Chief Administrative Officer,
(Construction), New Administrative Building,
Chhatrapati Shivaji Terminus, Mumbai.
3. The Divisional Railway Manager,
Central Railway, Kingsway,
Nagpur.
4. The Deputy Chief Engineer,
(Construction), Central Railways
at Ajni, Nagpur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr. M.Y. Wadodkar, Advocate for the Petitioners.
Mr. R.S. Sundaram, Advocate for the Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:25:20 :::
J-wp2111,2112,2245 & 2243.odt 3/14
WITH
WRIT PETITION No.2243 OF 2001
Bhaskar Laxman Kurrewar,
Motor Mechanic-cum-Motor Vehicle Driver, working in
O/o. The Deputy Chief Engineering(Construction),
Central Railway,
Ajni at Nagpur. : PETITIONER
...VERSUS...
1. Union of India,
through General Manager,
Central Railway, General Manager's Office,
2nd Floor, Chhatrapati Shivaji Terminus,
Mumbai.
2. The Chief Administrative Officer,
(Construction), New Administrative Building,
Chhatrapati Shivaji Terminus,
Mumbai.
3. The Divisional Railway Manager,
Central Railway, Kingsway,
Nagpur.
4. The Deputy Chief Engineer,
(Construction), Central Railways
at Ajni, Nagpur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr. M.Y. Wadodkar, Advocate for the Petitioner.
Mr. R.S. Sundaram, Advocate for the Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
AND
::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:25:20 :::
J-wp2111,2112,2245 & 2243.odt 4/14
WRIT PETITION No.2245 OF 2001
Gajanan Laxman Ghane,
Motor Vehicle Driver working in
O/o. The Deputy Chief Engineering(Construction),
Central Railway, Ajni at Nagpur. : PETITIONER
...VERSUS...
1. Union of India,
through General Manager,
Central Railway, General Manager's Office,
2nd Floor, Chhatrapati Shivaji Terminus,
Mumbai.
2. The Chief Administrative Officer,
(Construction), New Administrative Building,
Chhatrapati Shivaji Terminus, Mumbai.
3. The Divisional Railway Manager,
Central Railway, Kingsway,
Nagpur.
4. The Deputy Chief Engineer,
(Construction), Central Railway
at Ajni, Nagpur. : RESPONDENTS
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr. M.Y. Wadodkar, Advocate for the Petitioner.
Mr. R.S. Sundaram, Advocate for the Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : B.P. DHARMADHIKARI &
P.N. DESHMUKH, JJ.
th
DATE : 10 MARCH, 2016.
ORAL JUDGMENT :
1. We have heard Advocate Mr. M.Y. Wadodkar for
J-wp2111,2112,2245 & 2243.odt 5/14
petitioner and Advocate Mr. R.S. Sundaram for respondents for
quite some time.
2. We find that Central Administrative Tribunal has not
appreciated the facts presented to it and has gone by the precedents
even to answer the disputed issues. It is apparent that five different
original applications were presented to it and there were total 17
employees in those matters. The employees claimed a declaration
that notifications issued on 27.5.1998 and 3.7.1998 by which the
Chief Administrative Officer (Construction) did not allow them to
apply for post of Motor Vehicle Drivers deserved to be set aside.
They also challenged the letter dated 2.9.1998 and 29.12.1998 by
which said respondents mentioned them as class-IV category
employees. They contended that said mention and communications
were contrary to the Railway Board instructions contained in letters
dated 20th December 1985 and 29.5.1995. They also prayed that
letters issued by respondent No.2 to the employees, who were
juniors to the applicants and who were not from basic seniority list
dated 6.10.1995 be set aside. Lastly, they also assailed
communication dated 26.7.1999 issued by respondent No.3-
Divisional Railway Manager at Nagpur by which applicants were
granted lien on Group-D post. They sought absorption and
J-wp2111,2112,2245 & 2243.odt 6/14
permanency as Class-III Artisan/Motor Vehicle Driver with effect
from date of appointment or from the date of grant of temporary
status.
3. Perusal of impugned judgment delivered by Central
Administrative Tribunal on 16th March, 2001 reveals that it is
common judgment in all original applications before it. In
paragraph 3 to 6, case of applicants/petitioners has been referred to
and thereafter in paragraph 7,8 and 9 the contention of the
respondents has been narrated. Consideration is contained in
paragraph 10 and 11. In paragraph 11 Central Administrative
Tribunal has pointed out judgment of Hon'ble Apex Court in the
case of Union of India and others vs. Motilal and others ,
reported in 1996 SCC (L & S) 613 where the Hon'ble Apex Court
has held that all initial regularizations must be done in Group "D"
category. Thereafter, it has observed that there cannot be any
direct appointment to Class-III, if it is promotional post. It was
further stated that in view of the relevant rules, the administrative
instructions direct appoint as Mate to Class-III is impermissible.
The persons appointed directly as casual labour mate may continue
as such for a considerable period, acquire temporary status, but ipso
facto do not become entitled to regularization. The Central
J-wp2111,2112,2245 & 2243.odt 7/14
Administrative Tribunal has also observed that direct appointment
to exclusively promotional post even if continued for a considerable
period does not entail regularization therein.
4. Thus, the reasons are contained only in one paragraph
and that paragraph No.10 reads as under :
"We have carefully heard the learned
counsel for the applicants and the respondents.
We observe that the applicants initially appointed
in group "D" category as Khalasis. As he has been
pointed out in para above, all the employees are
first required to be screened in "D" category before
being screened for "C" category and therefore the
respondents have rightly screened them for "D"
category and has regularised them in group "D"
post from 31.12.1997 onwards. Adhoc promotion
in the Construction Division does not entitle
applicants for regular promotions. It has to be
according to the Recruitment Rules. The legal
position as has been brought out by the applicants
in their rejoinder does not lend any support to the
applicant's case. The underlying principle is not to
regularise anyone directly in group "C" which is a
promotion post. As far as the applicants are
concerned, they have not been reverted to group
"D" though they have been regularised in group
"D" post. They have been allowed to continue in
the present job in the construction organisation
and their pay has also been protected. This is
again as per the provisions contained in the Indian
Railway Establishment Manual as well as in the
instructions issued by the Railways from time to
time. There is therefore no contradiction in the
instructions of the Railways issued vide circular
dated 8.4.1997 and the provisions in the Indian
Railway Establishment Manual. The applicants
J-wp2111,2112,2245 & 2243.odt 8/14
on the date of issue of the notification in 1998 for
filling up of the regular vacancies of Motor Vehicle
Drivers had not completed three years regular
service and therefore rightly they have not been
allowed to apply for the regular vacancies of
Motor Vehicle Drivers."
5. It is to be noted that while dismissing all original
applications Central Administrative Tribunal has found applicants
before it not entitled to be considered against regular vacancies of
motor vehicle drivers in Class-III until and unless they complete
three years regular service. However, it directed respondents not to
disturb the applicant, but to allow them to continue in Class-III till
they are regularized as per Rules.
6. In O.A. No.221/1999 there were three applicants and
only one of them, namely, Gajanan Laxman Ghane is petitioner in
Writ Petition No.2245/2001. Applicant Manohar Atmaram
Mangale in O.A. No.223/1999 is petitioner in Writ Petition
No.2111/2001, applicant Bhaskar Laxman Kurrewar in O.A.
No.224/1999 is petitioner in Writ Petition No.2243/2001 and
applicant Arun Ramchandra Khupat in O.A. No.235/1999 is
petitioner in Writ Petition No.2245/2001.
7. In Original Application No.222/1999 there were
J-wp2111,2112,2245 & 2243.odt 9/14
11 applicants. Only 8 out of them have filed petition together i.e.
Writ Petition No.2112/2001. Petitioner No.2-Moreshwar Lokhande
and petitioner No.8-Ganpat Tularam Rahangadale have expired
during the pendency of the writ petition. Their legal heirs have not
been brought on record. As such, challenge at their instance has
already abated. Petitioner No.5 Ramu Anandrao Sawarkar,
petitioner No.6-Wasudeo Pandurang Shinde have already
superannuated. Thus, this petition is being prosecuted effectively
only for the benefit of four petitioners.
8. We find that the facts before Central Administrative
Tribunal warranted a proper finding on each assertion of respective
applicant before it. Applicant Manohar in OA 223/1999 has in
paragraph 4 stated that he was appointed on 19.4.1983 as a Motor
Vehicle Driver in artisan category as Class-III employee in grade of
Rs.260-400 (AS)/equated grade of Rs.3050-4590 (CPS) by Deputy
Chief Engineer (Construction) at Ajni, Nagpur in Central Railway.
The other applicants have also given dates of appointment. Reply
copy presented to this Court and filed before the Central
Administrative Tribunal by respondents does not specifically deny
this aspect. Advocate Mr. R.S. Sundaram has, however, taken us
through entire reply in order to urge that its tenor itself shows that
J-wp2111,2112,2245 & 2243.odt 10/14
such an appointment could not have been there. He also insists
that the facts looked into by this Court also militate with
appointment of such a nature.
9. Advocate Mr. M.Y. Wadodkar, however, has pointed out
that in paragraph 10 the finding that all applicants were initially
appointed in Group "D" category as 'Khalasis' may at the most apply
to case of Gajanan Laxman Ghane, who is petitioner in Writ Petition
No.2245/2001. He submits that this is not the position in all
matters.
10. It can be seen that the Central Administrative Tribunal
has not recorded its own finding on any disputed question of fact.
11. The petitioner-Manohar claims that he was given
temporary status on 26th August, 1985 and thereafter vide order
No.33/1997, he was regularized against newly created post with
effect from 17.3.1997. We find that said order contains total 12
names and they are petitioners before this Court. Name of Gajanan
Laxman Ghane appears at Sr.No.12 in that order. The order itself
shows that because of sanction of construction authority conveyed
vide letter dated 31.3.1997 the jeep/truck drivers were regularized
against newly created posts. Efforts of Advocate Sundaram is to
urge that this order contains some error and those errors have been
J-wp2111,2112,2245 & 2243.odt 11/14
corrected on 1.10.1997. Perusal of that order dated 1.10.1997
shows that it partially modifies the order dated 19.5.1997. It
mentions that MRCLs regularised as Skilled Categories as
temporary and ad-hoc basis and in exigencies of service and it will
not confer upon them any prescriptive right for promotion and
continuity with above grades over their seniors in same category.
We do not find any comment either on order dated 17.3.1997 or
then on this corrigendum dated 1.10.1997 in the judgment
delivered by the Central Administrative Tribunal.
12. The communication dated 26.7.1999 sent by DRA (P)
Nagpur to Central Railway DRA is on subject of Group "D" staff of
constructions organization and provision of lien. It mentions that
MRCLs of construction organization were regularized and posted
against vacancies in various divisions in construction department,
their lien will be maintained under the respected A,E,Ns as per list
attached. It appears that the names of applicants before the Central
Administrative Tribunal figured in that list and, therefore, the
applicants approached the Central Administrative Tribunal pointing
out that they have never worked as Group "D" employees and as
such they could not have been given lien in Group "D" category.
13. In this situation, though Railway may have its own
J-wp2111,2112,2245 & 2243.odt 12/14
procedure and may recruit everybody in Group "D" category first,
whether that procedure was adhered to in present matter is the
moot question. Provisions of law or judgments delivered
cannot be used to record a finding of fact. Facts need to be
ascertained on the basis of documents and evidence and thereafter
law with the help of precedents can be applied.
14. Here we find that only by looking into facts of one case
i.e. case of Gajanan Laxman Ghane all matters have been disposed
of. Advocate Mr. R.S. Sundaram has tried hard to explain to us the
system in which recruitment is done and to point out how after
work in construction division employees therein are required to be
brought back to open line and how thereafter they progress further.
All these facts must be pointed out to the Central Administrative
Tribunal and the Central Administrative Tribunal has to record a
proper finding after appreciating the disputed questions.
Respondents have to plead and prove that post of vehicle driver is a
promotional post or then such post exists in Group 'D'.
15. Advocate Mr. R.S. Sundaram has also opposed remand
back to Central Administrative Tribunal as according to him the
employees have already advanced in their career and some of them
have been superannuated or expired or dismissed. He contends
J-wp2111,2112,2245 & 2243.odt 13/14
that in this situation remand to the Central Administrative Tribunal
is unnecessary. He also sought a short adjournment to produce
copies of orders issued to petitioner from time to time to
demonstrate that they did not present true and correct facts either
to the Central Administrative Tribunal or to this Court. We can
appreciate concern shown by him, however, facts cannot be
ascertained for the first time by this Court after looking into such
documents. Facts need to be crystalized by Central Administrative
Tribunal only after giving both sides necessary opportunity. The
petitioners, who were applicants before the Central Administrative
Tribunal have narrated their side and if their narration was
incorrect or false, it was open to respondents to demonstrate it
before the Central Administrative Tribunal. In that situation, it is
incumbent upon the Central Administrative Tribunal to evaluate
these rival assertions and then to reach a proper finding on facts.
16. In the light of this discussion, we find the judgment
delivered by the Central Administrative Tribunal not containing
relevant reasons and not sufficient to adjudicate the controversy
presented to it. That judgment cannot be explained to us either by
petitioners or by respondents by producing certain documents. We,
therefore, quash and set aside that judgment.
J-wp2111,2112,2245 & 2243.odt 14/14
17. The matter is placed back before the Central
Administrative Tribunal for its fresh consideration to the extent of
petitioner mentioned (supra).
18. It is open to the respondents to point out subsequent
developments having bearing on controversy to the Central
Administrative Tribunal and seek modification in interim
arrangement in accordance with law.
19. The parties are directed to appear before the Central
Administrative Tribunal on 18th April, 2016 and to abide by its
further instructions in the matter.
20. Needless to mention that interim protection given by the
Central Administrative Tribunal to petitioners shall continue.
21. Rule is made absolute accordingly. No costs.
JUDGE JUDGE
okMksns
