Delhi High Court
Dhiyan Singh vs Union Of India & Others on 19 May, 2010
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C.) No.7396/2008
% Date of Decision: 19.05.2010
Dhiyan Singh .... Petitioner
Through Mr.U.Srivastava, Advocate.
Versus
Union of India & others .... Respondents
Through Ms.Geetanjali Mohan, Advocate for the
respondent/UOI.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
*
The petitioner has challenged the order dated 28th November,
2007 passed by the Central Administrative Tribunal, Principal Bench in
O.A.No.2368 of 2006, titled as 'Dhiyan Singh v. Union of India through
The Chairman, Railway Board & others', dismissing the application of
the petitioner seeking quashing of the order dated 12.4.2005 declining
absorption/regularization of the petitioner and also declining the relief
for relaxation of age for the purpose of granting appointment in regular
Group D service.
The petitioner had contended that he was engaged as a Casual
Labour, Gangman in Civil Engineering Department of Moradabad
Division on 26th august, 1978. He alleged that he completed 298 days
of work on 14th January, 1985 with artificial breaks. The petitioner was,
however, discharged on completion of work.
The petitioner on the basis of various circulars of the Railway
Board submitted an application on March 23, 2001 and May 18, 2001
for his absorption/regular appointment on the basis that his name was
entered at serial No.28 in the Live Casual Labour Register of
PWI/Hapur. The petitioner also sought regular appointment on the
ground that the persons having lesser number of days and junior to
him from the date of initial appointment and who were older than 45
years of age, had been regularized. The petitioner was however, declined
regularization on the ground that he is over 45 years of age and he did
not fulfill other requirements. The petitioner also gave particulars of
some of the persons who were alleged to be 45 years or more and
having lesser service than the petitioner and juniors to him who had
been regularized. The petitioner had relied on R.B.E. No. 42/2001 as
well as on para 179 of IREM.
The petition was contested before the Tribunal by the
respondents contending, inter-alia that no person junior to the
petitioner has been re-engaged as a casual labour in the Unit of
PWI/Hapur and that the name of the petitioner at serial No.28 in the
Live Casual Labour Register only entitled him for re-engagement, but
that does not entitle him for appointment to the regular post of Group D
service. According to the record of the respondents, it was asserted that
his date of birth is January 1, 1960 and he was over 47 years, whereas
as per instructions, contained in relevant notification the candidates of
Scheduled Caste/Scheduled Tribe Category could be re-engaged up to
the age of 45 years and since the petitioner was 47 years, he was not
eligible even for re-engagement. Relying on Railway Board's instructions
dated November 27, 2001, it was contended that the recruitment to all
Group D posts was to be done by Railway Recruitment Board only, and
therefore, the name of the petitioner could not be screened.
During the pendency of the Original Application, an application
filed by the petitioner being M.A.No.1269 of 2007, the Central
Administrative Tribunal, Principal Bench, New Delhi by order dated
July 23, 2007 had directed the respondents to pass the appropriate
order looking into the record of the petitioner. The respondents had,
therefore, passed an order dated October 9, 2007 stipulating that the
age relaxation in the case of Scheduled Caste/Scheduled Tribe Category
candidates was 45 years, which was also subject to the casual labour
having put in three years of service at one stretch. It was held that the
petitioner had completed only 298 working days as a casual labour and
therefore, on both the counts he was not eligible.
Reliance was also placed on RBE No.230/2001 dated November
27, 2001 holding that the recruitment to all Group D posts was to be
done through the Railway Recruitment Board. The order dated October
9, 2007 also stipulated that the petitioner had not applied for
recruitment to Group D posts which were notified from time to time
which is apparent from the fact that no such averments were made by
the petitioner in O.A.No.2368 of 2008. Reliance was also placed by the
respondents on 'Secretary, State of Karnataka v. Umadevi and others',
2006 (4) SCALE 197, holding that it would not be appropriate to
jettison the Constitutional Scheme of appointment and to take the view
that a person who is temporarily or casually employed should be
continued permanently. It was also held that though the name of the
petitioner was at serial No.28 of the Live Casual Labour Register of
PWI/Hapur, however, even seniors to the petitioner have not been
alleged juniors who had been permanently absorbed, it was stated that
the matter was got examined and those persons whose names had been
given by the petitioner had initially worked as a casual labour under
PWI/Bijnore and were re-engaged as per their priority in that Unit and
that those persons who had worked for more working days than that of
petitioner and who were engaged prior to petitioner had been absorbed.
In the circumstances, the plea of the petitioner that the persons who
are juniors to him and who had worked for lesser number of days have
been given regular appointment was negated.
The petitioner had challenged the order dated April 12, 2005,
September 15, 2005, August 22, 2005 and November 25, 2005,
however, the Tribunal noted that since the age of the petitioner was
about 47 years, he was not entitled for age relaxation contrary to the
circulars of the respondents, nor the petitioner was entitled for
absorption as he had only worked for 298 days, whereas the
recruitment could be of those casual labors who had put in three years
of service at one stretch or in broken period as stipulated in para 11.8
of Master Circular No.48 of Casual Labour. The Tribunal also noticed
that the allegation that the juniors to the petitioner had been engaged
was incorrect, as no persons below the applicant at serial No.28 have
been re-engaged. Consequently, the Tribunal did not find any merit in
the claim of the petitioner and dismissed the petition, which is
challenged before this Court.
Learned counsel for the petitioner has again reiterated the pleas
and contentions raised before the Tribunal. Learned counsel for the
petitioner is unable to show any circular or any rule which would entitle
a candidate belonging to Scheduled Caste/Scheduled Tribe Category for
age relaxation beyond 45 years. The learned counsel has not denied
that the date of birth of the petitioner is January 1, 1960 and therefore,
his age being more than 45 years, he is not entitled for any age
relaxation. It also cannot be denied that even according to the allegation
made by the petitioner, he had worked only for 298 days as on January
14, 1985. Para 11.8 of Master Circular No.48 of Casual Labour
contemplates three years of continuous work as casual labour or in
broken period, whereas the petitioner has only worked for 298 days,
and therefore, even on these counts the petitioner is not eligible for the
relief claimed by him.
Therefore, the conclusion and interference of the Tribunal that
the petitioner cannot be appointed to the regular post cannot be
faulted. Reliance of the Tribunal on Secretary, State of Karnataka v.
Umadevi (Supra), also cannot be faulted in the circumstances especially
in view of the decision of the Railway Board to fill up all the posts of
Group D through the Railway Recruitment Board in consonance with
the propositions of law as laid down in the said judgment. There cannot
be recruitment to the regular post de hors the recruitment rules and
therefore, the petitioner cannot claim that he is entitled for
regularization.
In the circumstances, learned counsel for the petitioner has failed
to show any such illegality or irregularity or perversity in the order of
the Tribunal which will necessitate any interference by this Court in
exercise of its jurisdiction under Article 226 of the Constitution of India.
The writ petition, in the facts and circumstances is without any merit,
and is therefore, dismissed.
ANIL KUMAR, J.
May 19, 2010 MOOL CHAND GARG, J.
'vk'
