JUDGMENT (Per A. P. Bhangale, J) :
1. Heard the submissions at the Bar.
2. The petitioners question the Judgment and Order, dt.16.9.1998 passed by the Central Administrative Tribunal,
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Mumbai in Original Application No.78 of 1998 seeking setting aside and quashing thereof, with a prayer for issuance of direction against the respondents to regularise the services of the petitioners in the pay scale of Rs. 1400-2300 (revised as Rs.5000-8000) and to quash and set aside the reversion order dt.10.9.1997 and 28.10.1997 on the premise of their continuous service.
3. The petitioners claim that they are qualified engineers having Diploma in Civil Engineering. They were appointed as casual Overseers on 17.12.1984 and later, in the Railway Electrification Project at Nagpur, Nagpur Division, Central Railway. Their employer General Manager, Central Organisation, Railway Electrification paid them daily wages at the rate of Rs. 20.25 per day for 180 Days in the higher scale of Rs.1400-2300. Their designation was changed to the casual Progressman with effect from 2.4.1987 and was reduced to Rs.950-1500. They were treated as monthly rated casual labour after 180 days and were given the scale of highly skilled Progressmen in the
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pay scale of Rs.1200-1800 and revised pay scale of Rs. 1320-2040 due to Judgment delivered in O.A. No. 54 of 1997 by the Tribunal at Hyderabad. Petitioner no.1 not being a party in that O.A., was left out and is drawing the scale of Rs.1200-1800 and petitioner nos. 2 and 3 are drawing the scale of Rs.1230-2040. Thus, there is discrimination in the pay scale which continued. After completion of the Railway Electrification Project, the petitioners were transferred to various places like Vijaywada, Vishakhapatnam etc. as casual workers as Artisans in Group 'C' cadre as if they were ITI pass employees.
4. Learned Advocate for the petitioner invited our attention to the ruling in the case of Inder Pal Yadav and Others vs. Union of India and Others, (1985) 2 SCC 648, in which it is observed thus :
" To avoid violation of Article 14, the scientific and equitable way of implementing the scheme is for
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the Railway Administration to prepare, a list of project casual labour with reference to each division of each railway and then start absorbing those with the longest service. If in the process any adjustments are necessary, the same must be done. In giving this direction, we are considerably influenced by the statutory recognition of a principle well known in industrial jurisprudence that the men with longest service shall have priority over those who have joined later on. In other words, the principle of last come first go or to reverse it first come last go as enunciated in Section 25G of the Industrial Disputes Act, 1947 has been accepted. We direct accordingly."
Reference is also made to the ruling in the case of PritPal Singh vs. Union of India and Others reported in
(2005) 4 SCALE 747.
5. According to the respondent/Railways, the petitioners were working as casual progressmen in the Railway Electrification Project and as per Railway Policy, they were regularised in group 'D' post and a proper lien has
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been maintained and they were continued to work at different places. The petitioners demanded the post of Inspector of Works in the pay scale of Rs.5000-8000, which is a selection post and can be available as per recruitment in accordance with rules requiring candidate concerned to pass the written examination and the viva voce test. The petitioners though appeared for the written test, failed to qualify in the viva voce test and hence, they were not eligible to be selected for the post of Inspector of Works in the pay scale of Rs.5000/--8000/-. Mr. Arun Namdeorao Wasekar - party/ applicant in O.A. No. 78 of 1998 had challenged the order passed by the Tribunal in Writ Petition No.2091 of 1999 on 1.9.1999 dismissing the petition. The petitioners who are similarly placed were also parties to O.A. No 78 of 1998 and hence, their petition is liable to be dismissed.
6. It appears that the Government of India through the Ministry of Railways ( Railway Board ) issued Indian Railways Establishment Manual Volume 1 in Chapter II,
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Section B mentions rules applicable to promotion of non- gazetted Croup 'C ' staff employed in Railway and all other subordinate Offices of the Railway Board. Rule 213 mentions thus :-
(a) A railway servant may be promoted to fill any post or a non-selection post only if he is considered fit to perform the duties attached to the post. The General Manager or Head of Department or Divisional Railway Manager may prescribe the passing of specified departmental or other post as condition precedent to a railway servant being considered fit to hold specified post; such rules should be published for the information of the staff concerned
(b)………………..
Rule 215 Selection Post :
(a) Selection post shall be filled by a positive act of selection made with the help of Selection Boards from amongst the staff eligible for selection. The positive act of selection may consist of a written test and / or viva voce test; in every case viva voce test being must. The staff in the immediate lower grade with a minimum of 2 years' service in that grade will only be eligible for promotion. The service for this purpose will include service if any, rendered on ad hoc basis followed
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by regular service without break. The condition of two years' service should stand fulfilled at the time of actual promotion and not necessarily at the stage of consideration.
7. Having considered the facts of the case in the light of the Rules stated above, we find that the petitioners are unable to make out the case of any legal right to be promoted as all the petitioners had failed to qualify in the viva voce test required for promotion to any group 'C' promotional post. Hence, without requisite eligibility, they could not have been absorbed in the higher promotional post in group 'C' without going through the scrutiny/ screening test as per the Rules stated above. Petitioner's promotion could not have been considered to higher group. The policy of the Railways, therefore, to regularise the petitioners in the same group 'D' cannot be faulted with. Hence, the petitioners have failed to make out the case in their favour. In the result, the petition is dismissed. No order as to costs.
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8. We leave alternative remedy open for the petitioners and the petitioners are at liberty to avail of the alternate remedy of representation, if any, made in accordance with the prevalent Rules or if amended and available to them to redress their grievances. Rule is discharged accordingly.
JUDGE JUDGE
jaiswal
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