National Federation Of Railway ... vs Union Of India And Anr.
1994 Latest Caselaw 357 Del

JUDGMENT

K. Shivashankar Bhat, J.

(1) Petitioners seek the quashing of an order dated 12.2.1993 issued by the Divisional Railway Manager (Northern Railway); further, they seek an appropriate writ directing the respondents not to interfere with the working of the petitioners as regularly employed persons on the post of salaried vendors etc. Petitioners allege that the impugned order is contrary to the judgment of the Supreme Court governing the very subject matter, between the parties.

(2) In the year 1976, the Railway Board issued a notification providing for the absorption of the Commission Vendors and bearers in the regular employment of the Railway. Subsequently, in the year 1978, it was notified that initially the 'bearers' would be absorbed and thereafter, the 'vendors' would be absorbed. In Sital Singh and others Vs. Union of India ( Writ Petition No-6804/1982) it was ordered by the Supreme Court on 13.8.1983, that in view of the notification of the year 1976, the Railway Board would first absorb all the Bearers (who are registered) and thereafter the Vendors and that until all the Bearers and Vendors are absorbed the Railway cannot appoint any person either as Bearer or Vendor on permanent basis. In view of this, no further order was made by the Supreme Court and the Writ petition was disposed of.

(3) C.W.P. 575 of "AS per Ministry of Railways existing instructions, the commission vendors first come in e cadre of bearers and only after that they are to be considered for their regularisation. But no vendor wants to join the cadre of bearers as the vendors earn more than the bearers. No policy exists for regularisation of commission vendors. It is respectfully submitted that as per interim orders dated 14.5.1987 passed by this Hon'ble Court, 56 Commission Vendors on Lucknow Division on Northern Railway have been regularised. All dues to each of them from 1.12.1983 have been paid. Out of these 56,20 vendors had earned commission more than the salary due to them and therefore, recoveries amounting to more than Rs.20,000.00 per vendor in certain cases are being made by the Northern Railway Administration."

Petitioners rely on this affidavit stating that 56 Commission Vendors have been regularised and that 20 out of them had earned commission more than the salary and therefore, the excess is being recovered from them. Petitioners point out that atleast these 56 persons absorbed already cannot now be 'de-absorbed' by stopping the payment of salary. The learned counsel for the respondents submitted that there was some mistake in the said affidavit because, as per his instructions. Commission Vendors did not come forward for absorption, because these earnings were far higher than the salary payable on regular absorption, and the policy did not envisage absorbing of the Commission Vendors.

(4) On 11.5.1987 while issuing rule nisi in the said C.W.P.575/1987, the Supreme Court made an order that "pending notice returnable four weeks after Summer Vacation all the employees covered by this Writ petition shall be paid salary in the same rate with effect from December 1, 1983, as salaried bearers of the railway catering are being paid".

(5) On 8.9.1987, in another petition, in T.I.Madhavan Vs. Union of India and others, the Supreme Court referred to the earlier order made in Sital Singh's case on 13.12.1983 and the submissions of the learned Additional Solicitor General to abide by the terms of the earlier order. But the learned Additional Solicitor General sought modification of the said order as it required payment of salary w.e.f. 1.12.1983. The Supreme Court ordered that all persons working as Commission bearers and vendors on various Railway Platforms belonging to the Central Railway and the South Central Railways would be absorbed progressively, as and when vacancies to the posts occur. The earlier order was modified as to the date of payment of salary and it was ordered that "the vendors and bearers so absorbed in the Railway Catering Service shall be entitled to salary as from the date of their absorption and not from December, 1,1983". This order was reiterated in another order dated 22.9.1992.

(6) Mr. Arun Jaitley, for the petitioner contended that the impugned order dated 12.2.1993 nullified the above order of the Supreme Court, because, it says that whoever was paid salaries, as per the interim order of the Supreme Court, are entitled to the salary only from the respective dates of absorption; therefore, excess will be recovered from them. The learned counsel further submitted that 56 commission vendors were absorbed already as per the affidavit filed by the respondents before the Supreme Court and if so, the said absorption cannot be nullified. The order of the Supreme Court does not envisage 'de-regularisation' of those who have been paid the salaries all these years.

(7) The learned counsel for the respondents raised a preliminary objection as to the jurisdiction of this Court to entertain this writ petition. It was contended that the dispute raised pertains to the service matter, which is covered by the Administrative Tribunals Act and the forum if at all, is the Central Administrative Tribunal and not Article 226 of the Constitution. Alternatively the learned counsel contended that if an order made by the Supreme Court is violated, the remedy is to approach the Supreme Court, either for clarification or initiate proceedings for contempt of court. On merits, it was argued that, the order of the Supreme Court nowhere required absorption w.e.f. 1.12.1983; in fact, the date was modified and the salary payable was only with effect from the regular absorption and this absorption is to be in a phased manner.

(8) Relying On The State of Assam and others Vs. Kanak Chandra Dutta; , the learned counsel for the petitioners urged that the dispute did not pertain to any 'civil post' and hence this court is competent to entertain the writ petition. It was, further argued, that the Administrative Tribunals Act is attracted only after a person is employed to a post and an anterior dispute with respect to the process of employment could be resolved by recourse to the writ jurisdiction.

(9) I am of the view that Mr. Arun Jaitley has put a narrow construction on the relevant provisions of the aforesaid Act. It is true that every employment is not a 'post' and casual labourer is not holder of a post. In the above decision in Kanak Chandra Dutta's case , the Supreme Court observed, at page 886: "A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position which a person is appointed and which may exist apart from and independently of the holder of the post.. Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasises the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post. A casual labourer is not the holder of a post. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post. Judged in this light, a Mauzadar in the Assam Valley is the holder of a civil post under the State. The State has the power and the right to select and appoint a Mauzadar and the power to suspend and dismiss him. He is a subordinate public servant working under the supervision and control of the Deputy Commissioner. He receives by way of remuneration a commission on his collections and sometimes a salary. There is a relationship of master and servant between the State and him. He holds an office on the revenue side of the administration to which specific and onerous duties in connection with the affairs of the State are attached, an office which falls vacant on the death or removal of the incumbent and which is filled up by successive appointments. He is a responsible officer exercising delegated powers of Government. Mauzadars in the Assam Valley are appointed Revenue Officers and ex officio Assistant Settlement Officers. Originally, a Mauzadar may have been are venue farmer and an independent contractor. But having regard to the existing system of his recruitment, employment and functions, he is a servant and a holder of a civil post under the State."

(10) On being regularly employed by the Railway, the bearers or the vendors, would undoubtedly become the employees of the Railway; the said employees will be then holding a 'post' under the Railway; Railway directly belongs to the Union of India. In other words, the post that will be held or to which a person is appointed as aVendororabearer,willbea post under the Central Government. Petitioners have raised a dispute that some of them have already become employees of the Railway and that others are entitled to be employed as such. Thus the dispute pertains to the employment to the post of bearers and vendors, even though, such posts may not be immediately available. Section 3(q) of the Act defines the phrase 'Service Matters' thus: "SECTION 3(q): "Service matters", in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the Control of the Government of India, or, as the case may be, of any corporation [or society] owned or controlled by the Government, as respects - (i) remuneration (including allowances) pension and other retirement benefits; (ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation; (iii) leave of any kind; (iv) disciplinary matters; or (v) any other matter whatsoever."

(11) The dispute raised now pertains to the absorption to the service under the Railway, resulting in creating a tenure in favor of the appointee; the dispute, also involves the remuneration paid or payable to the petitioners. This apart, clause (v) of Section 3(q) brings in every kind of dispute relating to the conditions of service, within the concept of "service matters". The phrase 'Conditions of Service" would always include terms or conditions governing recruitment or employment. The scope of the said phrase is not limited to the conditions governing the relationship of employer and employee after a person is employed. The word 'conditions', in the phrase covers the entire gamut of "services" in connection with the affairs of the Union or of any State, etc. The word 'Services', here, is not the individual services of the person employed, but refers to the generality of the 'services'. The idea can be understood if the following two sentences are compared with each other:- (I)Government Servant is employed to render 'service': (ii) He is employed in the 'services' of the State.

The Government servant is in the services of the State, rendering service by virtue of the employment. With reference to the individual, his employment is denoted by the term 'service'. But with reference to the State, the term 'service' reflects the State's establishment, through which, the State functions.

(12) As the Preamble to the Act indicates, the Administrative Tribunal is constituted to provide inter alia, for the adjudication of the disputes with respect to "recruitment and conditions of service.......". These are words of wide amplitude and would cover all phases of employment, commencing with the initial stages to be taken to appoint personnel to the services.

(13) Section 14(1) confers a wide jurisdiction on the Administrative Tribunal. All the jurisdiction, powers and authority exercisable, (immediately before the day of the establishment of the said Tribunal), by all courts (except the Supreme Court), in relation to recruitment and conditions connected to the subjects referred therein, etc. are to be exercised by the said Tribunal. However, the subject matters confined to a "post filled by acivilian". A corresponding bar is imposed by Section 28 on all the Courts (except the Supreme Court and the Industrial Tribunal or Labour Court).

(14) The Supreme Court has already held that even the writ jurisdiction of the High Court is taken away and the Administrative Tribunal is a substitute for the High Court in respect of the matters covered by the Act. (vide J.B.Chopra Vs. Union of India; and S.P.Sampath Kumar Vs. Union of India; Air 1987 Sc 386).

(15) The learned counsel contended that there is no 'civil post' called 'bearer' or 'vendor' and only because, a person could be employed by the State as a 'vendor or a 'bearer', the appointee will not be holding a 'civil post'.

(16) The Act refers to 'post' and defines the same as per Section 3(k) as - "post means a post within or outside India". Section 14, no doubt refers to the term 'civil post'. But Section 14 is quite wide and ropes in every kind of posts filled by a 'civilian'. A post filled by a non-civilian is outside the scope of Section 14. This conveys the idea that army personnel are not covered by Section 14. The term 'civil post' referred in Section 14 is to be understood in contradistinction to a post filled by a non-civilian.

(17) In fact, the facts of the case involved in Kanak Chandra Datta's case indicate that the term 'civil post' is not a phrase of limited meaning.

(18) Petitioners seek their absorption in the service of the State. Absorption is one of the modes of recruitment to the service. Therefore,it follows that the subject matter of the present dispute pertains to and is in relation to the recruitment to the services under the State. Consequently, this court has no jurisdiction to entertain this writ petition.