ffi^ C^i'^s^- \ BEFORE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. .5^^ /2009 PETITIONER ^^^" ^.-•< $?L^" ^-* ^•^" ^ ^y'" t^"" Phool Chand Yadav, S/o Shri Gouri Shankar Yadav, aged about 42 years, R/o Quarter No. 275/2, Rly, Station Road, Manendragarh, District Korea (C.G.) VERSUS RESPONDENTS -^' 1) Unionoflndia Through: its General Manager, south East Central Railway, Bilaspur (C.G.) ,,2) The Divisional Railway Manager (P), south East Central Railway, Bilaspur (C.G.) 3) TheAssistant Personal Officer, South East Central Railway, Bilaspur(C.G.) 4) Sr. Divisional Personal Officer, South East Central Raitway, Bilaspur (C.G.) WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA. ^ •^^ ^: HKHLCQURT OF CHHATTISGARH : BILASPUR Writ Petition (S) No. 5062 of 2009 Petitioner Phool Chand Yadav Versus Respondents Union of India & others WRIT PETITOIN UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA DB: Hon'ble Shri Satish K. Agnihotri & Hon'ble Shri Manindra Mohan Shrivastava, JJ Shri Basant Dewangan, Advocate for the petitioner. Ms Naushina Afrin Ali, Advocate for the respondents. O R D ER (orall (Passed on this 10th day of February, 2010) Per Manindra Mohan Shrivastava, J. 1. The petitioner has filed this petition challenging the legality and validity of the impugned order dated 29.8.2008 (Annexure P/l), passed by the Central Administrative Tribunal, Jabalpur Bench, Circuit Court Sitting at Bilaspur, in Original Application No. 688/2007. 2. Brief facts, in nutshell, as projected by the petitioner, are that pursuant to the order dated 11.3.1988 (Annexure P/2) the petitioner was engaged as casual category (skilled) to work as vehicle Driver on daily wages. On 29.6.1989 (Annexure P/3) he acquired temporary status in servrice. By order dated 3.8.1996 (Annexure P/4) the petitioner was directed to report on 5.8.1996 for attending screening test for regularization of his services. The screening test of the petitioner was held on 5.8.1996 but result of the same was never intimated to him. Earlier, vide order dated 2.9.1993 he was promoted to the post ofTower Wagon Driver which is evident from the relevant portion of the ser^ice book ^. h^^iK' (Annexure P/5). The petitioner also underwent the required training for the post of T.W. Driver at Zonal Training Centre. Accordingly, a certificate was granted to him on 20.4.1993 (Annexure P/6). Subsequently, in the year 2001 the petitioner attended the refresher training course (Annexure P/7). In the provisional seniority list of Casual Drivers (TS)/Gr. I, II, III, Elect. Deptt. (Annexure P/8) the petitioner was placed at serial No.4 of Tower Wagon Driver Grade-III in the pay scale of Rs. 1320-2040. 3. According to the petitioner, on 11.9.1997 (Annexure P/9) the petitioner moved an application for his regularization. The petitioner continued to work in Group C post and he was never sent for screening test for Group D post. On 11.11.1997 the petitioner was on duty thus, there was no question of his appearing in the screening test for Group D post. The petitioner sought information from the department about his status under the Right to Information Act. By communication dated 6.2.2007 (Annexure P/10) the Senior Divisional Personnel Officer, South Eastern Central Railway, Bilaspur informed the petitioner as under : "2. ^t Ift. '<(ft. ^TK^ 3RS[T^ ^T^? I^PT ^PT^? (Adhoc) ^t Pl^Rvl ^t.^.^rr?.^. ^ ^rcpf^r ^f^T-ft ^my ^' f^rf^ 01.06.1988 ^t 3R%rpft ^^ ^ ^T ^' ^, R-if<fr 11.11.97 ^t ^ ^ti^r^ ^ TR^K[ ^€ailtcpT cTT^''T ^' MR^Id'1 f^fpT ^ ^q ^t TK^" ^n^ f^TT "^PTT CTSTT &ll^"llI^T? (Line) PlR^ld f^TT ^TZTT t 1 W^ ^ ^ ^TIhr: 3>R®rpfti^pm ^ ^t.STR.^t. ^m^\ ^ pTt^T ^ STTeTR ^K ^T^? t7TTT ^T^? ^ ^T ^' ^N ^? ^t a^ I ^T ^T^ TR ^I^T ^t^ ^TFTPT-T ^Tf^T? ^t' ^TT I ^Rf: pl^+ll^l^ ura ^5^" ^TPft f^qr 1rqr cn ^T^T qKun1^ra»K ^R^iid-i f^rpr ^' ^ ^t^r t^ ^sn IH^TT i 3)icf^ct» v^ftf) cTSTT 3TT^?T ^ TT^T q?T ^ ^TTST 'M'd^ t I ^^TT 31<1d1<t»Tl ^' | " "-•^.^' Thereafter the petitioner come to know that by order dated 20.11.1996 (Annexure P/11) similarly situated persons have been absorbed in service in Group - C. Thus, the petitioner filed an appeal on 2.1.1998 (Annexure P/13) but of no avail. Although, the petitioner continued to work as Tower Wagon Driver in the pay scaleof Rs. 4500-7000 (Annexure P/14), by impugned order dated 7.5.2007 (Annexure P/15) the petitioner was reverted to the post of Khalasi. Being aggrieved, the petitioner filed O.A.No. 491/2007 before the Central Administrative Tribunal, which was disposed of by order dated 20.7.2007 with a direction to the respondents to decide the representation of the petitioner dated 22.6.2007. The respondents/authorities, by order dated 30.8.2007 (Annexure P/17) rejected the representation ofthe petitioner. Thereafter, the petitioner preferred O.A.No. 688/2007 challenging the reversion order dated 7.5.2007 (Annexure P/15) and the order dated 30.8.2007 (Annexure P/17), passed on the representation of the petitioner. Learned Central Administrative Tribunal by impugned order dated 29th August, 2008 (Annexure P/l) partly allowed the original application with a direction to the respondents to consider the prayer of the petitioner (applicant) made in the original application at para 7(v)(a) i.e. "Command the respondents to protect applicant's pay in group D post as per the law laid down by the Hon'ble Apex Court in ajudgment reported in 2005(11)SCC pg.298??. It was further directed by the Tribunal to protect the pay being drawn by the petitioner (applicant) while working as TWD on ad hoc basis, as on the date of his reversion to the group -D post, with consequential benefits and release the arrears to him within a ..^^.^-^ NNI»^ period of three months from the date of receipt of a copy of this order. 6. Shri Anoop Majumdar, learned counsel appearing for the petitioner submits that the fixation of the petitioner's line in Group - D post is bad in law as at no point of time the screening test of the petitioner for that purpose was conducted. The petitioner was duly screened for Group - C post. The petitioner was working as officiating Tower Wagon Driver, therefore his reversion to the post of Khalasi is not sustainable. Similarly situated persons to that of the petitioner have been absorbed in ser^ice against Group - C posts. The petitioner had successfully undergone the required training and he has long experience of working on the post of Driver. The conduct of the respondents is violative of Articles 14 and 16 of the Constitution of India. The Tribunal has failed to see that no screening test of the petitioner was held on 11.11.1997 for Group - D post and that pursuant to the letter dated 3.8.1996 (Annexure P/4) the screening test of the petitioner was held on 5.8.1996 for TWD (TIS). 7. On the other hand, Ms Naushina Afrin Ali, learned counsel appearing for the respondents, supports the impugned order dated 29th August, 2008 passed by the Tribunal. 8. We have heard learned counsel appearing for the parties and have perused the pleadings and documents appended thereto. 9. It is true that in the provisional seniority list of casual drivers (Annexure P/8) the name of the petitioner is placed at serial No.4 in the cadre ofTower Wagon Driver Gr. 1320-2040, showing his date of birth as 2.7.66, date of initial appointment as 1.6.88, date ofTS N^ h- as 1.6.89, date of promotion as Driver and scale as 2.9.93 - 1320- 2040, medical category as AI and educational qualification as HSC. 10. It is further evident from the letter dated 3.8.1996 (Annexure P/4) that the petitioner was directed to report on 5.8.1996 for attending screening for regularization, when the petitioner was working as TWD (TIS). It does not appear from this document asto for which category post that screening test was to be held. 11. It is clear from the impugned office order of reversion dated 7.5.2007 (Annexure P/15) that the petitioner was working as Ty. Tower Wagon Driver (Ad-hoc) in the pay scale of Rs. 4500 -7000 (RP) at OHE/MDGR in Elect. TRD department of Bilaspur Division and was a line holder of Optg. Deptt. BSP Divin., in Group (D? category in the pay scale of Rs. 2550-3200 (RP). The reason for reversion, as mentioned in the impugned order dated 7.5.2007 is that in order to be repatriated in parent department i.e. in Optg. Department/accommodation in Elect. TRD department, the petitioner submitted his willingness to work in Elect. TRD department, thus the line of the petitioner was transferred from Optg. Department to Elect. TRD department in Group 'D' category and the petitioner was posted as Khalasi in the pay scale of Rs. 2550-3200 (RP), on reversion from the post of Tower Wagon Driver (Ad-hoc). 12. By order dated 30.8.2007 (Annexure P/17) the representation of the petitioner was decided wherein it is clearly mentioned that the petitioner was appointed as Casual Driver on 1.6.1988 and he got temporary status on 1.6.1989. The promotion of the petitioner on 2.9.1993 to the post ofTower Wagon Driver was purely on ad hoc basis with a condition that the order was provisional and liable to ^ ../ :^.—^ ^. -—^K '^ i '^.,. '^ "^^^^ be withdrawn at any time. On repatriation to the parent department he was reverted to the post of Khalasi. There is no document with the department that the petitioner was screened on 5.8.1996 for Group - C post. For Group - D post, the screening of the petitioner was done on 1.4.1997 on the basis of scrutiny of service records, date ofbirth, educational qualification etc. and the line was fixed by letter dated 11.11.97. Since the petitioner was regularized and absorbed in open line in Group D category, there is no reason to absorb him in Group C category. No junior of the panel of the petitioner has been posted in Group C category. 13. It is evident from the letter dated 11.3.1988 (Annexure P/3) that the engagement of the petitioner was purely on temporary basis in casual category (skilled) to work as vehicle Driver. The petitioner was never appointed in accordance with the constitutional scheme of employinent. The nature of appointment of the petitioner was purely on daily wages basis. The same was not done in accordance with rules and as such the petitioner does not acquire any right to the post. It is well settled principle of law by a catena of decisions that the employee appointed de-hors the constitutional scheme of employment and not in accordance with law, has no right to continuation, reinstatement or regularization in service. (See Secretary, State of Karnataka and others Vs, Umadevi (3) and others1, Official Liquidator Vs. Dayanand and others2). 14. On perusal of the impugned order dated 29th August, 2008 (Annexure P/1) we found that learned Tribunal has considered all the facts in detailed and has passed a reasoned order. 1 2'006 (4) SCC 1 2 2008 (10) SCC 1 ^^•^. ^ .•y ''"€- H ^ ^ f; -tea^^ ^^-:-.••^^. 15. 16. Praveen It is well-nigh established that this Court in exercise of its supervisory jurisdiction should refrain itself from interfering with the order passed by the Courts below, except in such cases where perversity, illegality, irregularity or jurisdictional error is writ large on the face of the record, which is not in the present case. For the reasons stated herein above, the impugned order dated 29th August, 2008 (Annexure P/l) is unexceptionable and needs no interference by this Court. Accordingly, the petition is dismissed. No order asto costs. Sd/- SatishK.Agnihotri Judge Sd/- ManindraMohanShrivastava Jude