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2010 DIGILAW 1611 (ALL)

Jaideep Shukla & Ors. v. Union of India & Ors.

2010-05-14

SATISH CHANDRA, UMA NATH SINGH

body2010
Dr. Satish Chandra, J.:- By this writ petition, the petitioners have assailed the order dated 20th January, 2009 as well as dated 4.2.2009 passed by the Central Admin­istrative Tribunal in Original Application Nos. 569/06; 148/05; 509/04; 523/04; and 4.2.2009 also in Review Petition No. 3 of 2009. 2. The brief facts of the case are that the petitioners are diploma holders in mechani­cal engineering and had gone for the Appren­tice Training as per the Apprentice Act at Loco Workshop of Railway. The General Manager of the Northern Railway gave the approval to fill up Group-D vacancies i.e. Khalasi available in mechanical workshops, so the petitioners have made requests on 19.2.1999. The petitioners want the post of Khalasi which falls in Group-D posts. It is alleged by the petitioners that they were called for veri­fication and call letters were issued to them for Group-D posts in the month of Septem­ber, 2004. On 27.9.2004, without assigning any reason, verification of the documents was postponed/suspended, while the same was done for the other Trade Apprentices. Ag­grieved by the order, the petitioners filed Original Applications before the Central Ad­ministrative Tribunal. The Central Administrative Tribunal has dismissed the Original Applications. Not being satisfied, the petition­ers have filed the review petition which was also dismissed by the impugned order. Still not being satisfied, the petitioners have knocked the door of this Court through the present writ petition. 3. With this background, learned counsel for the petitioners Sri Shachindra Pratap Singh submits that the order passed by the learned Central Administrative Tribunal is arbitrary and unreasonable and, therefore, is liable to be quashed. He further submits that the Tribunal has erred in passing the order dated 20.1.2009 on the same pleadings on which the order dated 20.12.2004 was passed and the same was quashed by this Hon'ble Court. According to the counsel, the Central Administrative Tribunal has lost the sight of the fact that the opposite-parties have failed to produce any documentary evidence which would indicate that the diploma holders were barred for consideration for engagement in the Group-D posts. The Railway Board vide order dated 21.6.2004 has directed to engage Trade Apprentices but not the petitioners. H also submits that it was beyond the scope a General Manager's power to permit only the Trade Apprentices for engagement and not permitted the other Course Completed Act Apprentices (like the petitioners). The Railway Board vide order dated 21.6.2004 has directed to engage Trade Apprentices but not the petitioners. H also submits that it was beyond the scope a General Manager's power to permit only the Trade Apprentices for engagement and not permitted the other Course Completed Act Apprentices (like the petitioners). He further submits that more qualified persons are not disqualified for consideration to a post when the opposite-parties themselves appointing the Diploma Holders and Trade Apprentices on the post of Training Assistant and loco Pilot. Therefore, the petitioners cannot be deprived of their right of being considered for Group-D post. For this purpose, he also repeats the case-laws which were already discussed in the impugned orders. 4.The learned counsel also submits that the Tribunal has not decided the petition finally and left the matter to the Railway Board who took a negative decision after a period of six years. He has drawn the attention to Annexure No.6 of the writ petition, which is ac of a letter dated 21.6.2004 wherein it mentioned that:- "Some of the Railways have in the past approached board to satisfy as to whether course completed Act apprentices can be engaged as substitutes in group 'D' It is clarified that Course completed Act Apprentices can be engaged as substitutes in Group' under G.M's power in administrative exigencies subject to their engagement of the s instructions prescribed for such engagement. 5. The learned counsel for the petitioner further submits that vide letter dated 17.6.1998, the recruitment of substitution in Group-D posts in mechanical and electrical department was mentioned and petitioners were called for the viva-voce. According to him, during pendency of the writ petition, the General Manager, Northern Railway, New Delhi vide order dated 8.9.2009 with regard to the verification process of the service of the petitioners observed that Group-D I posts do not require technical education at the level of Diploma/Degree in Engineering, as such the induction of Diploma/Degree holder would be counter-productive as they will never have job satisfaction, being better qualified. The stand of the General Manager was confirmed by the Railway Board in its letter dated 4.2.2010 in a most arbitrary manner. According to the counsel for the petitioners, the appointment is the fundamental right of the petitioners and imposition of the ban against the employment in Government ser­vice is pertaining to the right under Article 16 of the Constitution of India. According to the counsel for the petitioners, the appointment is the fundamental right of the petitioners and imposition of the ban against the employment in Government ser­vice is pertaining to the right under Article 16 of the Constitution of India. For this pur­pose, he relied on the ratio laid down in the case of Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi & others, (1978) 1 SCC 405 : ( AIR 1978 SC 851 ) and emphasized on para 8 of the said judgment which is reproduced as under:- "The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji. Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by pub­lic authorities are meant to have public effect and are intended to affect the actings and con­duct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." 6. Lastly, he submits that the impugned orders passed by the Central Administrative Tribunal may kindly be quashed and a direc­tion in the nature of mandamus commanding the opposite parties be issued to consider the case of the petitioners for appointment/en­gagement for Group-D posts as substitutes against the posts reserved. 7. On the other hand, learned counsel for the Railways submits that the petitioners have achequered history of litigation to their credit. They along with several other persons had earlier filed O.A. No. 509/2004 before the Central Administrative Tribunal, Lucknow which was connected with other original applications and were dismissed on 20.12.2004. The petitioners preferred Writ Petition No. 36 of 2005 challenging the said order of the Tribunal by which the matters were remanded back to the Tribunal for deciding the matter afresh. The petitioners preferred Writ Petition No. 36 of 2005 challenging the said order of the Tribunal by which the matters were remanded back to the Tribunal for deciding the matter afresh. In compliance to the order of Hon'ble High Court, the Tribunal decided the matter with a direction to the General Manager, Northern Railway, New Delhi to take up the matter to the Railway Board for a specific answer to the query made in letter dated 19.2.1999. Thus, the matter has already been settled finally. Review application was also preferred before the Tribunal which was also dismissed on 4.2.2009. Not being satisfied, the applicants/petitioners of O.A. No. 5097 2004 before the Central Administrative Tri­bunal, Lucknow Bench, Lucknow, preferred W.P. No. 36 of 2005 (S/B) in this Hon'ble Court challenging the Tribunal's order dated 20.1.2009 passed in O.A.No. 509/2004 which was decided along with the other connected original applications. O.A. No. 569/2004 be­ing the leading case; two applicants of O.A. No. 148/2005 (M.C. Srivastava and another v. Union of India and others) have filed Civil Contempt Petition No. 41/2009 alleging non-compliance of the Tribunal's order dated 20.1.2009 which is impugned in the present writ petition. In view of the pending CCP No. 41/2009, it was decided to comply with the Tribunal's order dated 20.1.2009 passed in O.A. No. 569/2006. In compliance of the or­der dated 20.1.2009 passed by the Central Ad­ministrative Tribunal, Lucknow Bench, Luc­know, the Railway Board have duly considered/deliberated on the matter directly and substantially the issue in the aforesaid origi­nal applications and confirmed the stand taken by the General Manager, Northern Rail­way, New Delhi holding that the induction of Diploma/Degree Holders as substitutes in Group-D level posts would be counter-pro­ductive. Lastly, he made a request to dismiss the writ petition. 8. We heard counsels of the parties at length and gone through the material avail­able on record. 9. From the record, it appears that the pe­titioners were having technical qualification than the formal educational required for Group-D posts, as they were the diploma holders. For this purpose after having the di­ploma in Mechanical Engineering, they were evidently attached as Apprentice in the Loco Workshop of Northern Railways where they were getting stipend at the rate of Rs. 1400/-per month. After completing the apprentice­ship, the opposite parties have denied Group-D posts to them only for the reason that they were over qualified. For this purpose after having the di­ploma in Mechanical Engineering, they were evidently attached as Apprentice in the Loco Workshop of Northern Railways where they were getting stipend at the rate of Rs. 1400/-per month. After completing the apprentice­ship, the opposite parties have denied Group-D posts to them only for the reason that they were over qualified. No other adverse mate­rial is brought on record against them. 10. It may be mentioned that unemploy­ment is an abuse to youth. Though it has no definition but when referring to some one as unemployed, most people have in mind a state consistent with the definition given by Inter­national Labour Organisation that a person who does not have a job, is available for work, and is actively looking the work but not get­ting the same and is unemployed. 11. It may also be mentioned that employ­ment is widely regarded as a major, social and economic global problem. India is the second largest country in this regard where the employment opportunities are not too many and human resources have not been utilized properly which resulted the frustra­tion among youths. Every youth is able to work but is not getting the work. So, his abil­ity and capability are going to be wasted. However, everyone has the minimum require­ments for life like food, clothes etc and un­employed persons are not exception to it. So, they need some job for their survival. 12. Unemployment has obvious to eco­nomic disadvantage and has also been con­nected to higher crime rates (Ottosen and Thompson, 1996), suicide and homicide. It also contribute to increase in the incidences of alcoholism, child abuse, family break­down, psychiatric hospitalization, and a va­riety of physical complaints and illness apart from heinous crimes like murder, theft dacoity etc. The unemployment among youth not only causes current hardship, but may also hinder future economic success. The unem­ployment compels the higher qualified per­sons to look for the petty jobs even then they are not getting the petty jobs for the reason that the same were not of their standards, then it cause frustration and impacts notably in creased violence, crime and political insta­bility. Desperation can drive many people into living outside the law both to survive as a means of expressing dissatisfaction at the apparent neglect of their very existence. 13. Desperation can drive many people into living outside the law both to survive as a means of expressing dissatisfaction at the apparent neglect of their very existence. 13. It is very difficult to place the sod cost that unemployment imposes on the individuals, his family, and society given the grav­ity of the problems created, the cost won seem to be enormous. Attempt have, however, been made to estimate economic cost associ­ated with unemployment. According to Peter Kanyan (ILO Report, 1998), it is equival of one year's worth of GDP of a country. If provided with an environment and opportu­nities, youth in India can be key agent for social change, economic development and technological innovation. Youth bring with them boundless energy, imagination, creativ­ity, ideals and a limitless vision for their fu­ture and the society in which they live. If not utilized, they are a wasted resources. Thus, it is imperative that youth are harnessed as part of society. This can be achieved by provid­ing sustainable and dream employment and livelihood opportunities for them. 14. In the instant case, the petitioners are the diploma holders in the mechanical engi­neering but they are not getting the suitable job according to their qualification. So, they made a request to provide them Group D post, commonly known as Khallasi. The Railway Administration has denied the same by stat­ing that they were over qualified and they will never have job satisfaction, being better quali­fied. But fact remains that they are the qualified persons having imagination, creativity which can be utilized for further development, and research of the railway mechanism. We are sure, if an opportunity in the form of em­ployment will be provided to the petitioners, they will certainly make valuable contribu­tion towards technological innovation and economic development not only for the em­ployer i.e. railway but also for the nation. 15. In the instant case, petitioners have a history of a litigation for getting job of Group D which shows that they are eager to get the job. Needless to say that it is the interest of the State that there should be an end of litiga­tion as per the maxim INTEREST REIPUBLICAE UT SIT FINIS LITIGUM. 16. Moreover, in the Government sector including railway for a particular post, some minimum qualification is prescribed but no­where it is mentioned that higher qualifica­tion is a disqualification. Needless to say that it is the interest of the State that there should be an end of litiga­tion as per the maxim INTEREST REIPUBLICAE UT SIT FINIS LITIGUM. 16. Moreover, in the Government sector including railway for a particular post, some minimum qualification is prescribed but no­where it is mentioned that higher qualifica­tion is a disqualification. No adverse mate­rial is brought on record against the petitioner except that they are over qualified for the post of Khallasi which falls in Group D posts. 17. In view of the above and without say­ing much, we set aside the impugned letter written by the Railway Board as well as the impugned orders passed by the Tribunal and direct the opposite parties to consider the case of the petitioners sympathetically for the posts of Khallasi which falls in group D posts, if the petitioners are otherwise qualified as per law. A considerable time has already been elapsed in the litigation, so, we issue a man­damus to consider the candidature of the pe­titioners for Group D posts within a period of three months after receiving the certified copy of this order. The writ petition is allowed. No cost. Petition allowed.