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2009 DIGILAW 589 (GAU)

Onker Bose v. Union of India

2009-08-20

AMITAVA ROY

body2009
JUDGMENT Amitava Roy, J. 1. The Communication dated 3.3.2009 of the Dy. Chief Commercial Manager (TC & Catg.) terminating the services of the Petitioner No. 2 as a commissioned vendor and also the notice dated 9.4.2009 issued by the Assistant Manager (Catering), Indian Railway Catering & Tourism Corporation Ltd., Regional office, Guwahati requiring the Petitioner No. 1 to return his stock and to clear the outstanding dues as a commission vendor under the Railways form the subject matter of challenge in the instant proceeding. As the Petitioners construe that the above steps tantamount to termination of their services as commissioned vendors, they are before this Court seeking redress. 2. I have heard Mr. A.K. Roy, learned Counsel for the Petitioners, Mr. Nair, learned Standing Counsel, Railways and Mr. GN. Sahewalla, learned Senior Advocate assisted by Mr. A. Singh, Advocate for the Indian Railway Catering & Tourism Corporation Ltd. (hereafter for short referred to as the 'Corporation'). 3. In short, the Petitioners' pleaded case is that, after the death of the father of the Petitioner No. 1 who had been engaged as a commission vendor of a tea stall at the Guwahati Railway Station under the Respondent railways on 6.11.1999, he (Petitioner) on his application, was granted a commission vendor licence in place of his father. That was with effect from 7.4.2000. According to the Petitioner No. 1, he has been continuing as such at the Guwahati Railway station since then till date. The husband of the Petitioner No. 2 was also a commission vendor of a pan shop at the said Railway Station and after his demise, she (Petitioner No. 2) had obtained a licence to the said effect on and from 1.2.1989 and has been engaged as such since then till date. The Petitioner No. 3 also claims to be a licensed commission vendor of a tea stall at the Guwahati Railway Station since 1967. He is presently aged 71 years. 4. In the year 2006, the Railways took a decision not to renew the licences of the commission vendors and initiated a process of screening such vendors for the purpose of their absorption in Group D posts, limiting the exercise, however, to the persons who had not attained the age of 60 years. In connection with the said process, the Petitioner Nos. In connection with the said process, the Petitioner Nos. 2 and 3 were called for necessary medical test which they did not attend being of the view that if they are absorbed with only 8 years of service left to them, they would not be adequately benefited thereby. As in view of the steps taken by the Railways the future of the commissioned vendors became uncertain, a few of them approached this Court with several writ petitions in which interim orders were passed maintaining the status quo of their engagement. While the matter rested at that, the impugned communication was issued. 5. The Railways have not filed any affidavit In their affidavit the Respondent Nos. 6 and 7 have pleaded that in terms of the policy formulated by the Railways the commission vendors who have not attained the age of 60 years and are medically fit and also satisfy the other conditions of eligibility as stipulated in a series of official communications starting from the one 13.12.1976, it has been decided to absorb them in Group D posts. It has been inter alia contended that till the process is complete, the registered licensed commission vendors are allowed to continue on the identical terms and conditions as before under the Corporation. As the Petitioner No. 3 has meanwhile attained the age of 71 years. according to the Corporation, he is not eligible to be considered for absorption in terms of the said policy. However, the Petitioner Nos. 1 and 2 though eligible, did not respond to the calls for medical test and therefore, the impugned action is valid. 6. Mr. Roy has submitted that the Petitioner No. 1 though had been initially misled by the fact that his absorption in Group D post under the Railways would be disadvantageous to him, has on second thought submitted a representation on 3.3.2009 before the Chief Commercial Manager, N,F. Railway, Maligaon, Guwahati agreeing to surrender his commissioned vendor licence with a request to allow him to participate in the ongoing process of absorption subject to the conditions of eligibility formulated in connection therewith. He therefore submits that the Petitioner No. 1 be granted one more opportunity in terms of the request made in the said representation. He therefore submits that the Petitioner No. 1 be granted one more opportunity in terms of the request made in the said representation. When queried by this Court, the learned Counsel could not point out any averment in the writ petition pertaining to any such request made on behalf of the Petitioner No. 2. Admittedly, the Petitioner No. 3 as on date, has crossed the age limit of 60 years and is not eligible in terms of the policy to be absorbed in a Group D post under the Railways. 7. Mr. Sahewalla while supporting the impugned action has drawn the attention of this Court to the letter dated 21.1.2009 of the Dy. CPO (HQ), N.F. Railway which discloses that inspite of the opportunities granted to the Petitioner Nos. land 2 to participate in the process pertaining to absorption in Group D posts under the Railways, they had failed to do so and that therefore, their claim if any, therefore stands forfeited. 8. Upon hearing the learned Counsel for the parties and on a consideration of the pleaded facts and the documents available on record, this Court is of the view that the Railways having formulated a policy to be uniformly applicable to the existing licensed commissioned vendors for their absorption in Group D posts subject to the criteria of eligibility as prescribed, it would not be expedient to issue any direction that may amount to requiring them to depart from such a policy. The very nature of the policy suggests a wholesome and considerate approach of the Corporation being alive to the practical difficulties of the licensed commission vendors that would befall them on the discontinuation of their present pursuit and it is therefore expected of them to respond to the related process. Consequently, if they fail without any justification, in the opinion of this Court, in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India, no order ought to be passed which may either have the effect of relaxing the rigour of the policy or undermining the sanctity thereof. This Court is therefore, not inclined to accede to the prayer made in the instant petition for a direction to the Railways to permit the Petitioners to continue as licensed commission vendors. The challenge made to the impugned action therefore fails. 9. This Court is therefore, not inclined to accede to the prayer made in the instant petition for a direction to the Railways to permit the Petitioners to continue as licensed commission vendors. The challenge made to the impugned action therefore fails. 9. The above notwithstanding, as the Petitioner No. 1 has submitted a representation before the Chief Commercial Manager, NF Railway, Maligaon, Guwahati seeking an opportunity to participate in the ongoing process for absorption in Group D post, it would be in the fitness of things, that a decision be taken thereon by the aforementioned authority. It is made clear that this Court has not made any comment on the merit of the Petitioner's prayer made in the said representation and it would be within the exclusive discretion and domain of the Respondent authority concerned to decide on the issue. 10. The petition stands closed in the above terms. No costs.