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Judgment
By aforesaid writ petitions, the Union of India and its officers have challenged the judgment and order dated 26.11.2010 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad in Original Application No. 886 of 2004 Raj Kumar and Ors. v. Union of India and Ors. and Original Application No. 508 of 2006- Devendra Kumar Singh v. Union of India and Anr. Both the original applications have been decided together by the Tribunal by the said common judgment and order dated 26.11.2010.
Since the issue involved in both the writ petition is identical, therefore, both the petitions are decided together by this common judgment.
The private Respondents of both the writ petitions were applicant before the Tribunal. They have filed said applications with the allegations that they were functioning as Engine cleaners in Lucknow Devision of the North Eastern Railway. When the Railways switched over from steam engine to diesel, all such engine cleaners were rendered surplus and with a view to redeploying them, certain policy decisions had been taken by the Railway Board, wherein such cleaners were to be imparted certain training in Diesel Shed and the System Technical school. The General Manager, North Eastern Railways had issued necessary instructions to all the Divisional Railway Managers (D.R.Ms) coming under him in this regard and it was the case of the applicants that the training in respect of all other divisions lasted for 12 months-six months at Diesel Shed, Gonda and six months at System Technical School at Gorakhpur, in so far as the applicants and others in the Lucknow Division are concerned, they were imparted training only for a period of six months which was totally inadequate consequent to which, though they participated in the written examination conducted by the Railway recruitment Board for selection to the post of Diesel Assistant, they could not pass. It was further the case of the applicant/private Respondents that even the selection was not conducted as per the Rules, as such they had challenged the conducting of the examination in pursuance of the notification of the Railway Recruitment Board and asked for quashing the same with a further prayer that the applicants/private Respondents should be considered for appointment to the post of Diesel Assistant. Yet another grievance of the applicant was that when they were rendered surplus instead of keeping them in the Mechanical Department, some of them were shifted to other units in Group D post, which has reduced their promotion prospects of becoming Diesel Assistant.
The grounds of challenge include mainly the fact that there has been hostile discrimination in as much as whereas all the other divisions followed strictly the instructions of the General Manager, North Eastern Railway, it is only the Lucknow Division which ignored the same and conducted the examination without conducting the training for full tenure of twelve months.
The Petitioners-herein, who were the Respondents before the Tribunal, had contested the aforesaid original applications. According to them, surplus Engine Cleaners were absorbed as Carriage Khalasi in Carriage and Wagon Department vide office order dated 30.7.1999. One of the applicant was engaged against the Group ''D'' post in the Carriage and Wagon Department as per order dated 12/13.11.2001. The applicants were asked for option for the selection of Diesel Assistant. None of the applicants could pass the above mentioned selection, as is evident from the result vide office order dated 9.12.2002. It was also the case of the Petitioners/Respondents before the Tribunal that when the applicants before the Tribunal participated in the selection process and failed in the examination, they cannot turn around to challenge the very notification and ask for quashing of the same.
After hearing the learned Counsel for both the parties and going through the record and authorities cited by the learned Counsel for the respective parties, in paragraphs 15 to 18, learned Tribunal has held as under:
Now, a look at the counter against the aforementioned facts contained in para 4(c) to 4(f) of the O.A. The reply in general is that the said paragraphs need no comments. However, the applicants have failed in the selection of Diesel Assistant. There has been no indication that training for a substantial duration as imparted in other Divisions was imparted to the applicants before holding the examination. But the applicants are keen enough to mention in their rejoinder that whereas training in other Divisions was for a tenure of 12 months-6 months training in Gonda and 6 months at Gorakpur, both being of different scope and extent, in so far as Lucknow Division is concerned, the training is only for a duration of six months, which is discriminatory. Again, if the Respondents have accommodated some of the engine cleaners in some other discipline due to non availability of vacancies, the reasonable course would have been to accommodate them as and when vacancies arose under any direct recruitment quota in the cadre of Mechanical Department.
Non imparting of training for a full tenure of twelve months is thus the main difference between the engine cleaners of other Divisions and the applicants herein. Whether this has led to discrimination is the question that arises for consideration. The doctrine of discrimination is founded upon existence of enforceable right. When similarly situated persons have been given some relief, the applicants are also entitled to the same relief. It is not the case of the Respondents that there has been an element of discretion available to the D.R.M. Lucknow and it was by use of that discretion that the Lucknow division had followed a different pattern compared to others. As stated earlier, even if some discretion is available the same should have been used judicially and of capriciously or casually.
The General manager, North Eastern Railway, Gorakhpur has been impleaded as one of the Respondents in this case. The Chief Personnel Officer has also been impleaded as one of the Respondents in this case. In fact a duty is cast upon such Respondents to keep the Tribunal informed of the actual fact, when some averment concerning them has been made in the application. As for example, when the allegation is that the Lucknow Division had not followed uniformly the directions of the G.M. in matters of imparting of training before consideration of the case of the engine cleaners for appointment as Diesel Assistant, the matter could have been sorted out then and there by the G.M. by ascertaining the fact and asking the D.R.M. Lucknow to ensure that the directions given by the G.M. to all the D.R.Ms is followed in letter and spirit. If such an action had not been taken at the material point of time, at least when the applicants had filed this Original Application in 2004, the same could have been ascertained. This obviously has not been done. Perhaps, the G.M. would not have been informed by the D.R.M. of the filing of the case before the Tribunal. The counter has been filed only by the D.P.O. in the office of D.R.M. Lucknow.
The prayer in the O.A. is for quashing of the notification, which cannot be agreed to at this late stage. However, the injustice meted to the applicants in not treating them at par with their counterparts in other Divisions could be set right even at this stage. There are at present four applicants in this O.A. of whom some is Gateman and some Carr. Khalassi. Similarly, there are four applicants in the other O.A. No. 508 of 2006. If they are still desirous to becoming the diesel assistants, they could be given due training for six months and sent for the examination to be conducted as the Railway Board may decide either at the Zonal Railway level or if Railway Recruitment Board are given the training, and if the applicants qualify, then, they could be considered for appointment/promotion as Diesel Assistant. In that case, their seniority would be fixed only after they join the post as by then the seniority of those who have been functioning as Diesel Assistants would have been ''settled'' and crystallized and it is totally inappropriate to settle the unsettled thing.
Thereafter vide impugned judgment and order dated 26.11.2010 both the original applications have been disposed by issuing certain directions contained in paragraphs 19 and 20 of the said judgment which are as follows:
The O As are disposed of with the following directions:
(a) The General Manager would ascertain whether there had been training for 12 months (six months at Diesel Shed Gonda and six months at System Training School at Gorakhpur) in respect of engine cleaners in other Divisions (than Lucknow Division) during late 90s a the time when the switching over took place from steam engine to the diesel engine and in contrast, whether the training imparted to the Engine Cleaners at Lucknow was only for six months.
(b) If the answer to (a) is in negative, the individual be informed that there has been no difference in imparting the training to their counterparts at other Divisions and as such, there is no hostile discrimination meted to him.
(c) If the answer to (a) is in affirmative, Respondents shall send the applicants for training for six more months and meanwhile the Railway Board be requested to pass suitable orders for holding the examination either by the N.E.R. Gorakhpur, or the R.R.B. Gorakhpur. Their willingness for being sent for training and examination may be obtained in advance and those who are satisfied with their present position may be allowed to continue in their own discipline.
(d) If the applicants are through in the examination, they be promoted as Diesel Assistants from a prospective date and their seniority be fixed accordingly. Pay protection of the pay drawn last should be afforded in addition to other benefits of pay fixation for normal promotion under the relevant provisions of the Fundamental Rules.
(e) If the applicants do not qualify in the examination or for that matter if there be no discrimination in imparting the applicants not being entitled to any relief they be informed accordingly.
As this a time consuming process, we do not calendar any particular time schedule in implementing this order. The Respondents may expeditiously decide and implement this order as the applicants are in their late forties and inordinate delay in holding the examination may not be appropriate.
We have heard Sri. S.K. Anwar, learned Counsel for the Petitioners and perused the record.
From the close analysis and scrutiny of the impugned judgment and order, we find that in para 15 and 16 of the judgment the Tribunal has categorically held that non imparting of training for a full tenure of twelve months is thus the main difference between the engine cleaners of other Divisions and the applicants before the Tribunal. Whether this has led to discrimination is the question that arises for consideration. The doctrine of discrimination is founded upon existence of enforceable right. When similarly situated persons have been given some relief, the applicants are also entitled to the same relief. Thereafter, vide para No. 17 of the impugned order the Tribunal has further pointed out the short comings of the counter affidavit filed by the Petitioners in the aforesaid original applications before the Tribunal and by moulding the reliefs claimed in the aforesaid applications, vide para-19 the Tribunal has directed the General Manager to ascertain whether there had been training for 12 months (six months at Diesel Shed Gonda and six months at System Training School at Gorakhpur) in respect of engine cleaners in other Divisions ( than Lucknow Division) during late 90s at the time when the switching over took place from steam engine to the diesel engine in contrast, whether the training imparted to the Engine Cleaners at Lucknow was only for six months.
The tribunal further held that if the answer to aforesaid question is in negative, the individuals be informed that there has been no difference in imparting the training to their counter parts at other Divisions and as such, there is no hostile discrimination meted to him and if answer to aforesaid question comes in affirmative, the Respondents before the Tribunal were directed to send the applicants for training for six more months meanwhile the Railway Board be requested to pass suitable orders for holding the examination either by the North Eastern Railway Gorakhpur or the R.R.B. Gorakhpur. Their willingness for being sent for training and examination may be obtained in advance and those who are satisfied with their present position may be allowed to continue in their own discipline. Thereafter further following up actions are directed to be taken up in the matter pursuant to such examination.
In this view of the matter we are of the considered opinion that the impugned judgment and order passed by the Tribunal does not call for any interference by this Court as justice has been done between the parties and no party can be said to be prejudiced by the impugned order. The impugned order does not suffer from any illegality. Both the writ petitions are devoid of merit and are dismissed accordingly.