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Judgment
Per Hon’ble Mr. Pankaj Kumar, Member-Administrative
In this case relating to regularization, the applicant has sought following relief:
“The Hon'ble Tribunal may graciously be pleased to quash the impugned letter dated 10.07.2014, containing the decision of screening committee held in the year 1994 and also the decision of the Railway Board referred to in the above letter, contained in Annexure No. 7 and the applicant further prays for appropriate directions to be issued to the Respondents by the Hon'ble Tribunal to re-consider and pass the formal order of regularization against the regular post of Booking Clerk regularizing his services from the same date from which the services of the other Mobile Booking Clerks screened in the year 1994 were regularized and declared that the entire services rendered by the applicant after his re-engagement as on 09.02.1990 are liable to be treated as qualifying service for extending the applicant the benefit of pension and gratuity etc after his retirement and also direct to give effect to the said declaration.”
The facts of the case are that the Railway Board, vide order dated 21.04.1982, brought out a scheme for regularization of Volunteer/Mobile Booking Clerks (MBC) engaged on payment of honorarium against regular vacancies provided that they had the minimum qualification required for direct recruits and had put in a minimum of 3 years of service as Volunteer/MBC. Vide RBE No. 119/85 dated 20.04.1985, the respondents decided that Volunteer/MBC who were engaged prior to 14.08.1981 may also be considered for regularization. Subsequently, following litigation, vide RBE No. 24/90 dated 06.02.1990, the respondents provided that MBCs who were engaged as such before 17.11.1986 may be considered for absorption and those MBCs who were disengaged consequent to discontinuation of the scheme as a result of Railway Board’s letter dated 17.11.1986 may be re-engaged as MBCs when they approach Railway Administration for such engagement.
The applicant, who was initially engaged as MBC in the year 1983 and was disengaged later, was re-engaged on 02.09.1990 by the respondents in terms of RBE No. 24/90. The applicant represented for his regularization and having failed to elicit a positive response, he approached this Tribunal in OA No. 246 of 2012 and this Tribunal, vide judgment and order dated 22.05.2014, directed the respondents to consider and decide the recommendation of respondent no. 4 submitted to respondent no. 3. However, the applicant’s case for regularization was not agreed to by the respondents vide letter dated 10.07.2014 on the ground that MBCs who were not having the requisite qualification of High School passed with English as one of the subjects were unsuitable to be absorbed as Booking Clerk against direct recruitment quota. The applicant made several representations against the decision, but to no avail. Aggrieved, the applicant has preferred this OA.
The applicant’s contention is that paragraph 126 of the Indian Railway Establishment Manual (IREM) Vol. I, 1968 prescribes the qualification of Matriculation with a pass in English as a compulsory subject or equivalent examination for direct recruitment against Commercial Clerks (Coaching and Goods Work); but this provision was amended in 1989 and in paragraph 127 of the amended IREM (1989 Edition), the qualification is prescribed as Matriculation or its equivalent with not less than 50% marks in the aggregate and the bar of English as a compulsory subject has been removed; therefore, the rejection of his case on the basis of educational qualification prescribed in 1968 Edition of IREM is illegal as the said qualification stood amended in 1989 Edition of IREM and the amended qualification was applicable at the time of the applicant’s re-engagement in 1990 and at the time of consideration of his case for regularization through screening in the year 1994.
Per contra, the respondents have stated that the applicant has not fulfilled the requisite qualification of High School passed with English as compulsory subject prescribed in paragraph 126 of IREM Vol. I and that he was subjected to screening test for MBC conducted in 1994, but he was not placed in the panel declared on 19.12.1994. In the supplementary counter affidavit filed vide M.P. No. 2346 of 2026, the respondents assert that reliance placed by the applicant on provisions contained in IREM Vol. I, Revised Edition, 1989 is misplaced as the said provisions relate to the Commercial Department recruitment rules governing direct recruitment to the post of Ticket Collector/Commercial Clerk and do not govern the engagement, screening or absorption of MBCs whose cases are regulated by separate policy instructions issued by the Railway Board.
We have heard both the parties. Learned counsel for the respondents additionally draws our attention to a similar controversy adjudicated by the Principal Bench of this Tribunal on 05.09.2019 in OA No. 4109 of 2016 A P Pandey vs Union of India & Ors.
It is noted that the sole reason for not considering the regularization of applicant’s service was that he did not have ‘the requisite qualification of High School passed with English as one of the subjects’ as mentioned in the respondents’ letter dated 10.07.2014 addressed to the applicant which is extracted below:
“Sub: Implementation of order dated 22.05.2014 Hon’ble CAT/LKO in OA No. 246/2012 Ram Kumar Yadav vs UOI & others. The D.R.M./Lucknow wrote a letter date 25.08.2009 to Chief Personnel Officer/Gorakhpur to regularize the services of Mobile Booking Clerks including Shri Ram Kumar Yadav. Vide letter dated 27/29.11.2013 Head Quarter communicated the decision on letter dated 25.08.2009 which is as under:
“In the case of following MBCs, it has been established on record that 07 MBCs had been screened in the year 1994 and 02 MBCs in March, 2002. It has been found in cases of these 09 MBCs that they were not fulfilling the required minimum educational qualification required for their recruitment as Booking Clerks against DR quota as laid down in IREM, Vol. I (1968 Edition). Cases of following MBCs who were screened in 1994 but not having the requisite qualification of High School passed with English as one of the subjects, were referred to Board vide this Railway’s letter No. E/227/15/5/MBC/Pt.VI/VI dated 06.06.2008. Board did not give approval for relaxing the recruitment rules enforced for the time being because of case being sub-judice. Secondly screening committee in March, 2002 have found Shri Indra Pal and Shri Rajendra Prasad unsuitable on the same ground. As such these all 09 MBCs are therefore unsuitable to be absorbed as Booking Clerk against DR quota under the provisions as laid down in the Establishment Rules enforced for the time being.
1.Shri Ram Kumar Yadav (Sl. No. 3 of DRM’s letter dated 25.008.2009)”
(emphasis supplied)
It is noted that in IREM Vol. I (1968 Edition), under Commercial Department, the following qualification was prescribed for Commercial Clerks (for coaching and goods work) in paragraph 126:
“Qualifications: (a) Age : between 18 and 21 years
(b)Education : Matriculation with a pass in English as a compulsory subject or its equivalent examination”
(emphasis supplied)
Admittedly, the applicant did not have English as a compulsory subject in his Matriculation and so he did not fulfil the prescribed qualification at the time of his initial engagement in 1983.
Subsequently, however, in IREM Vol. I (1989 Edition), under Commercial Department, the following qualification was prescribed for Commercial Clerks (for coaching and goods work) in paragraph 128:
“128(2) Qualification for direct recruitment are as under:
(i)Educational : Matriculation or its equivalent examination with not less than 50% marks in the aggregate”
(emphasis supplied)
It is noted that two changes were brought about in the educational qualification for Commercial Clerks in IREM Vol. I (1989 Edition): firstly, the requirement of English as a compulsory subject was dropped; and, secondly, minimum 50% aggregate marks in Matriculation or its equivalent examination were prescribed.
It is observed that when the applicant was re-engaged (in 1990) and when his case came up for screening in the year 1994, the educational qualification as revised in the 1989 Edition of IREM was in force. This being the position, it was not open to the respondents to apply the earlier educational qualification prescribed in the 1968 Edition of IREM in the applicant’s case, in our opinion.
Turning to A P Pandey (supra) cited by learned counsel for the respondents, the relevant paragraphs in that judgment are quoted below:
“4.After hearing both the learned counsel for the parties and perusing the record, it is an admitted position that the applicant was called for screening to regularize as Booking Clerk in the year 1994 but he could not qualify the same because he was not having the requisite qualification, i.e., High School pass with English as a subject as shown from the documents annexed by the applicant himself at Annexure A/5. We have also examined the Railway Board letter No. E(NG)II-77/PCT/30 dated 21.04.1982 which reads as under:
“2.The question of regularization of these volunteer booking clerks through screening a departmental committee for absorption on the railways was again discussed by the NFLR during PNM meeting held with the Board on 23rd and 24th December, 1981. After taking into account all aspects of the case, the Ministry of Railways have decided that these volunteer/mobile booking clerks who have been engaged on the various railways on certain rate of honorarium per hour or per day may be considered by you for absorption against regular vacancies provided they have the minimum qualifications required for direct recruits and have put in a minimum 3 years service as volunteer/mobile booking clerks. The screening for their absorption should be done by a committee of officers including the Chairman or a member of the railway service commission concerned.”
5.From above letter issued by the Railway Board, it is clear that the applicant should have minimum requisite qualification i.e. High School pass with English as a subject which is necessary for consideration for absorption against regular vacancies but his services could not be regularized as Booking Clerk as he did not possess the aforesaid minimum requisite educational qualification.”
(emphasis supplied)
From perusal of the judgment in A P Pandey (supra), it is evident that this Tribunal (Principal Bench) relied upon the educational qualification as prescribed in the 1968 Edition of IREM and the revised educational qualification in the 1989 Edition of IREM was not noticed by the Tribunal at all. Therefore, we are left with no alternative but to observe that the judgment win A P Pandey (supra) passed by the Single Bench is rendered per incuriam and it would not apply to the facts and circumstances of the instant case and it would not be binding on this Division Bench.
In conclusion, the applicant has made out a case for grant of relief to him.
In view of the foregoing, this OA is allowed. The impugned order dated 10.07.2014 is quashed and set aside and the respondents are directed to reconsider the regularization of the applicant’s service in terms of the educational qualification prescribed in IREM Vol. I (1989 Edition) from the date the service of other MBCs was regularized on the basis of the screening conducted in the year 1994 with consequential benefits within three months of receipt of certified copy of this order.
Associated MAs also stand disposed of.
Parties shall bear their own costs.