CIVIL WRIT JURISDICTION CASE No.10000 of 2004 ******* In the matter of an application under Article 226 of the Constitution of India. ******* 1. The Union of India, through General Manager, East Central Railway, Hajipur. 2. Divisional Railway Manager, East Central Railway, Sonpur. …. …. Petitioners. Versus 1. Subodh Singh, son of Ram Prit Singh, resident of Shahpur, P.S. Shahpur, District- Saran. 2. Rajeshwar Rai, son of Baijnath Rai, resident of village- Shahpur Tola, P.S. Shahpur, District- Saran. 3. Laldeo Rai, son of Dukhan Rai, resident of Village- Parliabad Badurahi, P.S. Shahpur, District- Saran. 4. Niranjan Prasad Singh, son of Shaket Bihari Singh, resident of village- Mithapur, P.O. Garkha, P.S. Shahpur, District- Saran. 5. Rishideo Rai, son of Beni Rai, resident of Village- Kharika Chausia, P.O. Govind Chak, District- Saran. 6. Central Administrative Tribunal, Patna Bench, Patna. .... .... Respondents. ******* For the Petitioners: Mr.Bindhyachal Singh with Mr. Satya Prakash, Advocates. For the Respondents: Mr. Satish Narain Singh and Mr. Jyoti Shankar, Advocates. ******** P R E S E N T THE HON’BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON’BLE MR. JUSTICE VIKASH JAIN ******** S.K. Katriar, J. This writ petition is directed against the order dated 9.9.2003, passed by the Central Administrative Tribunal, Patna Bench, Patna, in O.A. No.127 of 2002 (Subodh Singh and others vs. The Union of India and another), whereby the original application preferred by the applicants (respondent nos.1 to 5 herein), has been allowed and the Railways have been directed to re-engage the five applicants forthwith on the same post of Group 2 „D‟ category with temporary status and consequential relief. The Railways are aggrieved by the order of the learned Tribunal and have, therefore, preferred the present writ petition. The applicants of the original application (respondent nos.1 to 5 herein) have placed on record their counter affidavit. 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. Respondent no.1 had started working as a substitute on 21.11.1980, and had acquired temporary status on 29.6.1983; respondent no.2 herein had started as a substitute prior to 1981, and had got temporary status on 10.4.1985; respondent no.3 had started working as a substitute on 7.6.1977, and had got temporary status on 30.7.1987; respondent no.4 had started working as substitute on 25.11.1977, and had got temporary status on 29.8.1985; and lastly respondent no.5 had started working as substitute on 1.6.1980, and was given temporary status on a date not disclosed in the proceedings, as per the scheme of the Indian Railways indicated in Master Circular on Appointment of Substitutes on the Railways bearing R.B. No.12/91, dated 29.1.1991. The five respondents were discontinued sometime in the year 1990. The further case of the respondents before the Tribunal was that they submitted representation(s) which remained unattended. One such representation is on record. In view of 3 complete inaction on the part of the authorities, the respondents preferred the aforesaid original application which has been allowed in full. The authorities have been directed to be reinstated with Status Quo Ante, i.e. with temporary status as on the last date they had worked with consequential reliefs, and the further direction to consider their cases for regularization in service. The operative portion of the order is reproduced hereinbelow: (I) The applicants shall be re-engaged forthwith on the same post of Group „D‟ category with temporary status on which they were working at the time of their dis-engagement. (II) The names of the applicants shall be entered in the live casual labour register maintained by the respondents in accordance with their seniority on the basis of period of their services from the date of their initial appointment while treating the applicants in continuous service from the date from which their services were disengaged, for the purpose of counting of their seniority for regularization of their services as casual labour. (III) Thereafter, to consider the case of the applicants for their regularization in accordance with their seniority against the available posts positively within a period of three months from the date of receipt/production of a copy of this order. ” 3. The stand of the Railways before the Tribunal was that the original application was hit by delay. They had last worked in 1990, and the original application was filed in 2002. Their further case was that the persons who have worked as substitutes, or, after they acquired temporary status, have no enforceable right. They are 4 casual workers. They are employed to meet the exigency of situation caused by leave etc. 4. We have perused the materials on record and considered the submissions of the learned counsel for the parties. Substitute has been defined in the aforesaid Master Circular No.12/91, paragraph 3 of which is reproduced hereinbelow: “3. Circumstances under which “Substitutes” can be appointed: Ordinarily, there should be no occasion to engage “Substitutes” having regard to the fact that practically in all categories of Railway Servants leave reserve has been provided for. Occasions may, however, arise when owing to an abnormally high rate of absentees, the leave reserve may become inadequate or in-affective, e.g., heavy sickness etc., or where leave reserve is available but it is not possible to provide the same, say, at a wayside station. On such occasions, it may become absolutely necessary to engage substitutes even in vacancies of short duration as otherwise the Railway service may be adversely affected.” 4.1) Paragraph 4.4 deals with confirmation of temporary status of such substitute and are reproduced hereinbelow: “4. Benefits: 4.1. Substitutes engaged should be paid regular scales of pay and allowances admissible to the post against which they have been appointed irrespective of the nature or duration of the vacancy. 4.2. They should be allowed all the rights and privileges as are admissible to temporary Railway employees on completion of four months continuous service. 5 4.3 Substitute school teachers may, however, be afforded temporary status after they have put in continuous service of three months. Their services to be treated as continuous for all purposes except seniority on their eventual absorption against regular posts after selection. 4.4. The conferment of temporary status after completion of four months continuous service in the case of officers and three months continuous service in the case of substitute teachers mentioned in paras 4.2 and 3 above does not entitle them to automatic absorption/appointment to Railway service unless they are selected in the approved manner for appointment or absorption to regular posts. 4.5. Service of substitutes will count for pensionary benefits from the date of completion of four months (3 months in the case of teachers) continuous service provided, it is followed by absorption in regular Group „C‟ (Class III)/Group „D‟ (Class IV) service without break. 4.6. Age limit for recruitment to Group „D‟ (Class IV) service may be relaxed to the extent of their total service rendered as substitute which may be either continuous or in broken periods. The above provisions of age relaxation apply equally to such cases of regularization in Group „C‟ (Class III) skilled or highly skilled grades also. 4.7. Substitutes as have put in 3 years service (at a stretch or in broken spells) who are matriculate/Diploma holders and who wish to apply for the posts advertised by the Railway Service Commission (now Railway Recruitment Boards) may be given relaxation in age to the extent of service put in by them, continuous or in broken spells, subject to age of 35 not being exceeded. 6 4.8. Festival/Flood advances. - The substitutes who have attained temporary status and have put in three years continuous service should be treated on par with the temporary status Railways servants and granted these advances on the same conditions as are applicable to temporary Railway servants, provided they furnish two sureties from the permanent Railway servants. 4.9. Substitutes are eligible for medical facilities for self only in the out-patient department. The service cards etc., of the employee may be utilised as identification cards for this purpose. 4.10. When substitutes selected for absorption in regular service and sent for medical examination the standard of medical examination should be of a relaxed standard as prescribed for re-employment during service. (Emphasis added) 5. It is thus evident on a plain reading of paragraphs 3 and 4 of Master Circular No.12/91, that substitutes are in the nature of casual and daily-wage employees, who are engaged in the event of high rate of absenteeism , the leave reserve becoming inadequate or ineffective, so that the work of the Railways do not suffer. It further appears from a plain reading of the relevant provisions of paragraph 4 that such substitutes who have worked continuously for a minimum period of four months may be given temporary status which will not entitle them to automatic absorption/appointment to the Railways service unless they are selected in approved manner for appointment/absorption in regular course. The substance is that, 7 after they have acquired temporary status, they can be considered for absorption/appointment in the Railway service provided the Railways formulate the scheme in that behalf. It is inherent in such a situation that, in view of the nature of engagement, the Railways can at will drop any substitute or a person with temporary status. In other words, working as a substitute even with temporary status cannot give rise to any enforceable right. It only gives rise to a right for consideration for absorption/appointment, if the Railways prepare a scheme. Subject to exceptions, the Railways cannot normally be directed to prepare a scheme for regularisation. A substitute, with or without temporary status, can be discontinued for various valid reason, e.g. the temporary phase of absenteeism and the emergent situation is over, such a substitute is not working efficiently or honestly, etc. In view of the nature of engagement as per the scheme, the reasons for discontinuance are non-justiciable. Therefore, the circumstances in which the respondents were disengaged and discontinued from work way back in 1990, are not justiciable. Law is well settled that the employer must be allowed some play in the joints. The position of a substitute, even with regular status in the scheme of things, is very vulnerable. 6. Learned counsel for the appellants is right in his submission that respondent nos.1 to 5 herein had approached the 8 Tribunal 12 years after they were discontinued. Law is well settled that aggrieved persons must approach the court before parallel rights are created and allowed to be entrenched by lapse of time, acquiescence, inaction or negligence, attributable to such aggrieved persons. The enormous delay of 12 years in approaching the court goes to the root of the matter and operates seriously against the original applicants (respondent nos.1 to 5 herein). To this has to be added the formal period of limitation engrafted in Sections 20 and 21 of the Act. Such delay will have a bearing on the issue of relief to be granted to the respondents. 7. Learned counsel for the respondents has rightly invited our attention to the two documents marked Annexures R/1 and R/2, annexed to the counter affidavit of the respondents. Annexure R/1 comprises of two charts prepared by the authorities, one of which is dated 29.3.2001. These charts show consideration of cases of those of substitutes, inter alia, for the reason whether or not any injustice was done to them in matters of regularization. The chart dated 29.3.2001 appears to be in various parts. The portion relevant for respondent nos.1 to 4 is headed “2- 01&01&81 ds iwoZ fu;qDr fofHkUu foHkkxksa ds vuLdhUM ,oth”, column no.11 of which records the following comments: “ifjpkyu ,oa okf.kT; foHkkx ds vuLdhUM ,oth ftudk dk;Z fnol 437 (ejsiz egksn; n~okjk vuqeksfnr iSusy& 1999 dks U;wure 9 fnu) ds cjkcj ;k mlls vf/kdA ;s lHkh iz’kklfud =qVh ds dkj.k LdhUM ugh fd;s x;s tcfd buds ckn ds deZpkjh fu;fer gks pqds gSA ” 7.1) Respondent nos.1 to 4 herein have figured in this list. It thus appears to us that the authorities had prepared a scheme for screening and regularization of such employees. In view of the comments recorded in Column no.11, it is evident that the cases of persons mentioned in this chapter including respondent nos.1 to 4 herein could not be screened because of administrative lapses. 7.2) Just the same is the position with respect to respondent no.5 occurring in another chart compendiously marked R/1. 7.3) In such a situation, we are of the view that cases of respondent nos.1 to 5 which are mentioned in these charts, have to be considered for regularization as per the scheme prepared by the authorities. This has to be read with the following portion of paragraph no.1 of the communication dated 28.4.2008 (Annexure R/2), issued by the Ministry of Railways (Railway Board): “Please refer to your Railway‟s letter quoted on the above subject. The matter has been considered by this Ministry and the instructions on the absorption of ex-casual labour in the Railways are reiterated as under: 1. The names of such of casual labourers as were discharged from employment at any time after first January 1981 on completion of work or for want of further productive work can continue to be borne on the live casual labour register. Accordingly, where the name of casual labourers 10 who had been discharged for want of work or on completion of work had been deleted in terms of the instructions of 22.11.84 cited above, be restored to the live casual labour Register where, however, a casual labour who was discharged prior to 1.1.1981 and has not been reengaged thereafter for any reason his name would be continue to stand deleted from the live casual labour register.” 8. The combined reading of Annexures R/1 and R/2 leads us to the conclusion that the Railways must consider the claims of the five respondents for the benefits envisaged in the scheme under reference in these three documents marked Annexures R/1 and R/2. We wish to make it clear that we do not find it possible to reinstate the respondents to their position of Status Quo Ante, as on 1990, because of the delay in approaching this Court, but nothing will prevent the respondent authorities from giving them the benefit of absorption/appointment to Railway service under the scheme(s) in question since 1990 if found fit. 9. In conclusion, we modify the order dated 9.9.2003, passed by the learned Tribunal in O.A. No. 127 of 2002. We decline to reinstate the five respondents herein as substitutes with temporary status since 1990, but we do direct the appellants to consider their cases for absorption/appointment in the services of the Railways under the scheme(s) in question. It will be open to the Railways to give them the benefit of regularization/appointment 11 from 1990, if found permissible under the scheme(s). The appellants shall also consider whether or not, in the circumstances of the case, the respondents would be entitled to due seniority. In view of the position that the appellants have taken no action ever since they detected the mistake of non-screening of cases of the five respondents way back in 2001, we are of the view that the appellants should be mulcted with costs quantified at Rs.10,000/- (Ten thousand) payable to each of the five respondents. 10. In the result, this writ petition is allowed in the manner indicated above. This Court will be pleased if the entire process is completed within a period of six months from today. (S.K. Katriar, J.) Vikash Jain, J. I agree. (Vikash Jain, J.) Patna High Court, Patna. Dated the 28th day of July, 2011. S.K.Pathak/ (AFR).