O.A. Nos. 238, 264 and 265 of 2004. Case: Krishan Kanhaiya Tanwar and Ors. Vs Union of India (UOI) and Ors.. Central Administrative Tribunal
| Case Number | O.A. Nos. 238, 264 and 265 of 2004 |
| Counsel | For Appellant: S.N. Trivedi and Nitin Trivedi, Advs. and For Respondents: J.P. Joshi, Sr. Railway Adv. and Manoj Bhandari, Adv. |
| Judges | J.K. Kaushik (J) and M.K. Mishra (A), Members |
| Issue | Administrative Tribunal Act, 1985 - Section 19; Apprenticeships Act, 1961; All India Railway Act; Apprenticeship Rules, 1991; Constitution of India - Articles 14 and 16; Industrial Disputes Act |
| Citation | 2006 (1) SLJ 14 (CAT) |
| Judgement Date | February 24, 2005 |
| Court | Central Administrative Tribunal |
Order:
J.K. Kaushik, Member (J), (Jodhpur Bench)
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Shri Krishan Kanhaiya and Ors., Vijay Srivastava and Ors. and Salim Malik and Ors., have filed their respective O.A. Nos. 265/2004, 238/2004 and 264/2004, under Section 19 of A.T. Act, 1985 on identical set of facts and grounds for seeking similar reliefs. The common question of law is involved in all these cases hence they are being decided through a single order.
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We have heard the elaborate arguments advanced by Mr. S.N. Trivedi and Mr. N. Trivedi representating applicants in all these O.As., Mr. J.P. Joshi Sr. Railway Counsel along with Mr. Manoj Bhandari Railway Panel Lawyer representing official respondents and Mr. G.K. Vyas representing interveners in O.A. No. 238/2004, and have given our anxious thought to the pleadings and records of these cases. The official respondents have also made certain records available.
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For the purpose of adjudication of these cases, we are taking notice of the facts narrated in O.A. No. 265/2004. The applicants have undergone the apprenticeship training course from various I.T.I. Institutes at Bikaner in different trade, under Apprenticeships Act, 1961. All the applicants have successfully qualified apprenticeship examination and have obtained the National Trade Certificate from National Council for Vocational Training (for brevity NCVT). It is further averred that the Railway Administration invited applications in the prescribed format for the purpose of recruitment to the post of Fresh Face substitute in Group 'D' in Bikaner Division vide communication dated 10.9.2004 (A/8). The said recruitment is restricted to the candidates from amongst the course Act Apprentices who have been given apprenticeship Training in respective Divisions/Workshop of the Railways as indicated in the impugned order dated 30.8.2004 (A/1-A). The National Certificate of Training is issued by NCVT to all the candidates on passing the common examination. There is no mention in the notification dated 10.9.2004 as regards the requirement of undertaking the said training from Railway establishments only.
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The applicants have, inter alia, have challenged the policy decision dated 30.8.2004 (A/1) and have sought for its setting aside with further direction to the respondents to consider their candidature also for the purpose of engagement to the post of Fresh Face substitute in Group 'D' and provided with appointment with all consequential benefits. The O.A. has been grounded on diverse grounds enumerated in Para 5 and its sub-paras, which we shall deal in later part of this order.
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The respondents have contested the claim of applicants and have files a detailed and exhaustive counter reply to the O.A. It has been averred that the impugned order is a policy decision taken to engage the fresh faces substitutes as a time gap arrangement purely on temporary measure till regular selection takes place. If the applicants' grievances is to be redressed, it will become a direct recruitment which is otherwise within the domain of the Railway Recruitment Board (for brevity RRB), to whom the indents have already been placed. The very purpose of engagement of Apprentice Trainees, who have taken the training in the Railways is as a time gap arrangement, would be rendered as redundant. Therefore, on this preliminary objection itself, the O.A. cannot be sustained. The further objection regarding maintainability of the O.A. as set out in the reply is that GM has framed the policy in accordance with the power conferred by the Railway Board vide letter dated 21.6.2004. There are instructions, which envisage that the Course Completed Act Apprentice in Railway Establishment can be given preference over the Course Completed Act Apprentice in establishments other than Railways. Thus no legal right of the applicants has been infringed and challenge of the impugned policy is not justified.
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There is yet another preliminary objection that it is not a case of direct recruitment but is an engagement of the causal labour as fresh face substitutes on temporary basis and the incumbents shall have no right to regularisation. A clear declaration to this effect is required to be submitted by the candidates. But the applicants are on the premises as if a direct recruitment to the Group 'D' post were being made ignoring their candidatures. Therefore, the O.A. is not maintainable. The communication dated 10.9.2004 is issued to each candidate who is Course Completed Act Apprentice of the Railways. But the case projected is as if it was a case of direct recruitment and thereby a misstatement of facts has been made. This bench of the Tribunal does not have any jurisdiction to decide the disputes pertaining to the engagement of fresh face substitutes and has jurisdiction only pertaining to Government/civil services. They have efficacious alternative remedy under I.D. Act. Hence, the O.A. is liable to be dismissed for want of jurisdiction.
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On facts, it has been averred that applicants have neither submitted their particulars nor shown any common cause; hence joint application is not maintainable. The applicants do not fulfill the eligibility criterion since they have not undergone training from any of the Railway Establishment of Bikaner Division and Bikaner Workshop as per the policy issued by the GM. The whole exercise is being taken as per the circular issued by the Railway Board on dated 21.8.2004. The policy decision taken by the Railways in administrative exigencies cannot be permitted to be assailed. The Course Completed Act Apprentices in Railway have been specially trained in the Railways for safety. where is no requirement to hold direct recruitment for recruiting the substitute purely on temporary basis. The further defence as set out in the reply is that Course Completed Act Apprentice trained in Railway establishments are much better to deal with contingency occurring in the Railway as far as workers are concerned. Such candidates can be preferred on whom the Railways have also spent certain amount of money so that they can be trained according to their needs. The moment, direct recruitment takes place the applicants shall have opportunity to compete with all candidates including the Course Completed Act Apprentice in Railways establishments. There is also no question of back door entry. The applicants have miserably failed to demonstrate to show as to in what way the policy decision is inconsistent to the instructions of Railway Board. The grounds enunciated in the O.A. have been denied by repeating the factual aspects as noticed above.
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Mr. S.N. Trivedi, the learned Counsel for the applicants has reiterated the facts and grounds mentioned in the pleadings of the applicants and has strenuously contended that the respondents are resorting to recruitment in the garb of engagement as fresh faces. Such candidate would acquire certain rights with the passage of time and the vacant posts of Group 'D' are intended to be filled in from amongst the Course Completed Act Apprentice trained in Railway...
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