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Judgment
S.N.Terdal, J
We have heard, Mr.Sanjay Parikh, counsel for applicant and Mr. S.M.Arif, counsel for respondents, perused the pleadings and all the documents produced by both the parties.
In this OA, the applicant has prayed for the following reliefs:
"(A) Direct the respondents to absorb the Applicants/helpers herein the Railway Department in view of the facts mentioned in the Application and to provide them equal protection under Article 14 and 21 of the Constitution.
(B) Pass such other order(s) as this Hon'ble Tribunal deem fit and proper in the facts and circumstances of the present case."
Though several facts and several judgments of the various Courts including the orders and judgments of the Hon'ble Supreme Court have been quoted and narrated with respect to Commission Vendors, the relevant facts of the case are that the applicants claim to have been working as helpers with the Commission vendors since 1983 and that in view of the Railway Board's letter dated 28.08.1969, the Commission vendors were permitted to have helpers wherever the Commission vendors considered necessary and that the Railway Board further directed that the helper should be subjected to medical examination on the same line as in the case of Commission Vendor and that the applicants indeed underwent the aforesaid medical examination and that they were issued identity cards. On the above said facts and averments the applicants seeking equal protection and regularization which was given to the Commission Vendors approached this Tribunal in this OA.
The respondents in their counter affidavit admitted that in view of the directions issued by the Hon'ble Supreme Court from time to time from 1982 regarding absorption of Commission Vendors they had taken all steps and complied with the orders of the Hon'ble Supreme Court, but, however, their case is that the orders of the Hon'ble Supreme Court and the High Court are all regarding Commission vendors and their absorption, but, however, the helpers are not recognized by the respondent-Railways and that as per the Railway Board's letter dated 28.08.1969 it is not compulsory that vendors should appoint a helper and that the helper is not even a regular staff of the Commission Vendor and even if the Commission Vendor has appointed any helper it was only on daily basis that the Commission Vendors had appointed the helper and that there is no policy of the Railways nor any direction of any Court regarding recognition or regularization of the helper in the Railways and on these grounds the respondent-Railways submit that the OA be dismissed. The relevant portion of the submissions of the respondents are extracted below:-
"1. That the whole issue of absorption of Commission Vendors arose after the directions passed by the Hon'ble Supreme Court of India vide order dated 13.12.1983 in W.P ( C ) No. 6804 of 1982. Wherein the Hon'ble Supreme Court directed the Railways to firstly absorb all the Commission Bearers who were registered and then the Vendors. A true copy of the Order dated 13.12.1983 passed by the Supreme Court of India in W.P (C) No.6804 of 1982 is annexed hereto and marked as Annexure R-1.
That as per the directions of the Hon'ble Supreme Court the Railway Authorities took steps and vide letter dated 25.08.1989 being letter no. 23/DC/19-M/17 the DRM/NDLS wrote to CIC/DLI & NDLS to provide him the list of each commission bearers/vendors showing the length of service and other particulars for the purpose of screening of commission bearers/vendors. A true copy of the letter dated 25.08.1989 being letter No. 23/DC/19-M/179 is annexed hereto and marked as Annexure R-2.
That on 18.09.1989 vide letter no UC/5/Staff/89/37 Chief Catering Inspector/NDLS wrote to Area Rly. Manager, New Delhi that all the vendors refused to get absorb in regular class-IV Scale. It is further stated that the same has also been annexed in W.P (C) No. 6373-6402 of 2006 titled as Shri Lekh Raj & Ors Vs. Union of India. A true copy of the letter dated 18.09.89 being letter no. UC/5/Staff/89/37 and the copy of the refusal alongwith all the signatures are annexed hereto and marked as Annexure R-3 (Colly).
That the Railways had every intention to absorb the Commission Vendors/Bearers whose work would have come to an end because of the catering activities being transferred to IRCTC. Railway has given option to the Petitioners to get absorbed in Group 'D' post. The question of absorbing the person in Group 'C' does not arise which as per the extent of the recruitment rules is a post wherein the person come directly through tests conducted by the Railway Recruitment board and/or persons who come through promotion from Group 'D' to Group 'C' after having acquired sufficient experience as required under the rules.
That with a view to absorb the Commission Vendors/Bearers working in Northern Railways, applications were further called for them vide letters dated 22.03.1999 and 07.06.2000 but only 3 applicants appeared for screening tests who were not found suitable.
That the Commission Vendors/Bearers were again given chance and were again asked to appear before the screening Committee on or before 12.03.2004. But as per letter dated 30.07.2004 of CIC/DLI to CGM (NZ), IRCTC in Delhi Division only two persons gave their willingness to get absorbed. A true copy of the letter dated 30.07.2004 of CIC/DLI to CGM (NZ), IRCTC is being annexed herewith and marked as Annexure R-4.
That the Hon'ble High Court by an order passed in W.P (C) No. 4566/2001, 9603/2003 and 2502/2003 dated 25.08.2005 had observed as under:-
"If they apply absorption in Group 'D' their request may be acceded to and they may be given duty corresponding to that of a commission vendor. All these persons, if they apply, maybe absorbed in Delhi Region itself, subject to their being not more than 59 years of age on the date of filing the application."
A true copy of the Order dated 25.08.2005 as passed in W.P (C) No. 4566/2001, 9603/2003 and 2502/2003 is being annexed and marked herewith as Annexure R-5.
That on 01.02.2005 the Railway Board vide letter no. 2004/TG-III/639/2 passed a Policy stating as under:-
"All Commission Vendors/Bearers should retire at an age of 60 years."
A true copy of the Railway Board's Policy vide letter no. 2004/TG-III/639/2 dated 01.12.2005 is being annexed and marked herewith as Annexure R-6.
That the Commission Vendors/Bearers were again called for screening on 06.02.2006 but they did not turned up on that day. Therefore, time and again Respondents have given opportunity to the Commission Vendors/Bearers (the Petitioner herein) for getting them absorbed in the Railways in Group 'D' posts but they have repeatedly failed to give their willingness and have not come for screening tests.
That it is also pertinent to mention herein that similar issues has been already challenged by the Commission Vendors in Writ Petition being W.P (C) 5175 of 1998 and also in few other Writ Petitions. The order dated 05.11.2012 passed in the above mentioned Writ Petition was also challenged in an Appeal being LPA No. 798 & 800 of 2012 which was dismissed vide order dated 18.12.2012. A true copy of the order dated 05.11.2012 in W.P (C) No. 5175/98 and Order dated 18.12.12 passed in L.P.A. No. 798 & 800 of 2012 are being marked and annexed herewith as Annexure R-7 (Colly).
It is stated that the applicants herein are all helpers of the Commission Vendors and are not recognized by Railways. It is further stated that the helpers are not even regular staffs of the Commission Vendors and they are being taken by the Commission Vendors on daily basis and they were not even kept on a regular basis by Commission Vendors and were being changed by even by the Commission Vendors. Moreover, neither there is any policy in Railways nor any judgment of any Court of law which allows the 'Helpers' to get regularize in Railways as have been claimed by the Applicants herein. Hence, the applicants cannot be given liberty as have given to the Commission Vendors."
The counsel for the respondents referring to above stated identity card and medical examination submitted that the medical examination was conducted so as to ensure safety of the members of the platform where the helper used to have access in helping the above referred Commission Vendor and that the identity cards were issued to have proper identity of the helper. From the perusal of the records produced by the applicants it is clear that though the applicants claim to have been appointed from 1983, the identity cards are only of the year 2014 and the medical certificates are also only of the year 2013. When specifically asked by the Tribunal the counsel for the applicants has not produced any specific provision under which the applicants are entitled to be regularized.
In view of the facts and circumstances of the case and in view of the various orders and judgments passed by the Hon'ble High Court and Hon'ble Supreme Court referred to in the counter reply extracted above, there is no merit in the contention of the applicants.
Accordingly, OA is dismissed. No order as to costs.