Union of India (UOI) and Others vs Sunil Manubhai Waghela

V.M. Sahai, J.—We have heard Ms. Vasavadatta Bhatt, learned Counsel for the Petitioners.

The facts are that the original Petitioner, Respondent herein, along with five others filed O.A. No. 483 of 2002, challenging the oral termination order dated 1.4.2002 passed by the Respondent authority. They also claimed regularisation in permanent cadre against the vacancies in terms of Railway Board''s directions, reiterated by the Tribunal vide order passed in O.A. No. 591 of 2000. Initially, the Respondents were engaged for two hours every day for cleaning the premises of Railway Station. Railway Board issued circular dated 16.1.2007 requiring its administration to regularise their services even creating new post of Safaiwala. Instead of appointing the Petitioners, their services came to be terminated on 1.4.2002 and such posts were assigned to a private contractor. O.A. No. 591 of 2000 was disposed of on 5.11.2004 with the following observations:

It is clear from the above that the Respondents took a decision of not creating the posts and this subsequent action of the Respondents in not creating the posts for full time employment is now under challenge in OA No. 261 of 2003. The decision in O.A.591/2000 has to be seen in the light of these subsequent developments.

We are accordingly of the view that if the Respondents, Railway Administration, are of the opinion that Safaiwalas have to be engaged on a full time basis then the applicants should be given first preference in terms of the Railway Board Circular of 06.02.1997 and give them posting subject to their qualifying the prescribed medical examination. The O.A. Stands disposed of with aforesaid directions. No order as to costs.

The directions given by the Tribunal remained unaccepted and therefore, the Respondents filed Execution Application No. 4 of 2009 with M.A. No. 257 of 2009. The said Execution Application was disposed of on 23.2.2010 with the following order:

Heard. Perused the record.

This is an application for execution of the order of this Tribunal, copy of which has been placed on record as Annexure-A. We find that after the passing of the said order dated 08.11.2004, the concerned authority passed an order dated 30.06.2005. That order has been placed as Annexure-R on the record and it purports to have been passed in compliance of the order under reference. However, as we go deep in the order and we peruse the body of the same, we find that one of the applicants named Shri Sunilbhai M. Vaghela was also required to be appointed in terms of the directions vide para 11 of the CAT''s order under reference. While Annexure-A/2 makes a provision for engagement of persons as a fresh face Safaiwala, it though does not omit Shri Sunilbhai M. Vaghela, also a successful applicant but he has not infact been engaged. Thus, we find that the order though purporting to have been passed with reference to the CAT''s order under reference is actually in orientation not in conformity therewith and there is a complete lack of application of mind so far as engagement of Sunilbhai M. Vaghela is concerned. Therefore, we direct the competent authority to re-consider the case of the applicant and make appropriate order in consonance with the order of this Tribunal. This exercise be completed within two months.

Copy of this order be supplied to both the learned Counsel for its proper use. Accordingly this application stands disposed of. No costs.

In compliance of the order, the Respondents passed a speaking order on 1.6.2010 holding that the Respondent did not fulfill the requisite educational qualification, namely, 8th standard pass, as prescribed vide RBE No. 277/98, his request for appointment as substitute in Railways was not considered and rejected.

Before the Tribunal, it was urged by the counsel for the Respondents that the Railway Board Circular as directed by the Tribunal was not considered by the Respondents. The Tribunal considered this question and thereafter has recorded a finding to the following effect:

We have specifically perused the Railway Board circular dated 6.2.97 which was required to be taken into consideration by the Respondents vide order dated 5.11.2004 in OA 483/2002. At the outset we may note that RBE No. 277/98 makes no reference to the Railway Board earlier circular dated 6.2.1997. Railway Board circular dated 6.2.97 is basically a communication issued by Western Railway, which re-produced Railway Board letter dated 8.1.1997, circulated vide Headquarter office order dated 16.1.1997. As per said circular of Western Railway dated 6.2.97 said circular was applicable to all the departments, i.e., Commercial, Medical, Civil Engineering, Mechanical etc., for the Railway. Said circular was also issued on the approval of the Board. It nowhere prescribed educational qualification of 8th Standard pass, mentioned vide speaking order dated 1.6.2010. Learned Counsel for applicant drew our attention to RBE No. 238/85, issued vide Circular dated 16.8.1985, where for the post in question, the educational qualification prescribed was fifth standard only, which condition was fulfilled by him at the time of initial engagement. At the cost of repetition we may note RBE No. 277/98 makes no reference to Railway Board circular dated 8.1.97, circulated by Western Railway on 6.2.97. As per directions of this Tribunal in OA 483/2002, Respondents were required to regulate applicant''s engagement in terms of Railway Board circular dated 6.2.97 (we may observe this in fact is a Railway Board circular dated 8.1.97, endorsed vide Western Railway on 6.2.1997). Said directions were also reiterated while passing order in E.A. No. 4/2009 dated 23.2.2010. In the given circumstances we have no hesitation to conclude that the Respondents'' communication dated 1.6.2010 endorsed to applicant on 23.6.2010 reflects non-application of mind, which can not be sustained in law. If the Respondents felt that there was some ambiguity in order dated 5.11.2004 in OA 483/2002, they ought to have sought some appropriate clarification, which course of action has been resorted to.

Since the order of the Tribunal dated 5.11.2004 became final and binding between the parties, it was not open to the Respondents to sit over the order of the Tribunal and pass an order without considering the Circular dated 8.1.1997 circulated by the Western Railway on 6.2.1997. We do not find any illegality in the impugned order of the Tribunal dated 14.2.2011 passed in O.A. No. 282 of 2010. This petition is devoid of any merits and is dismissed accordingly.