IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No. 9847 of 2007 Hari Shankar Prasad Singh, son of Sri Sahdeo Prasad, resident of Pathak Ghat, Mokdiar Tola, P.O. & P.S. – Mokama, District – Patna – 803302. ……………….. Petitioner Versus 1. The Union Of India through the Chairman, Railway Board, New Delhi 2. The Executive Director, Establishment (N), Railway Board, Ministry of Railway, Government of India, New Delhi 3. The Joint Director, Establishment (N), Railway Board, New Delhi 4. The General Manager, East Central Railway, Hajipur 5. The Chief Personnel Officer (IR), Eastern Railway, Kolkata 6. The Chief Personnel Officer, East Central Railway, Hajipur 7. The Divisional Railway Manager, East Central Railway, Danapur 8. The Divisional Railway Manager (P), East Central Railway, Danapur 9. The Secretary, Consumer Cooperative Society, Mokama, PO & P.S. – Mokama, District – Patna. ………………….. Respondents ---------------------------------- For the Petitioner : Ms. Ratna Das, Advocate For the Railway: Mr. Bijay Kumar Sinha, Advocate ************* 02. 08.12.2011 Petitioner is working as a quasi administrative staff, i.e., a Salesman in the Consumer Cooperative Society at Mokama. It falls under the Danapur Division of East Central Railway. Engagement of the petitioner according to him was w.e.f. 01.03.1981 on the orders of the Executive Committee of the said Consumer Society. He has continued in that capacity all these years. Petitioner is a Graduate and by now has a long period of service behind him in the capacity of his engagement. In terms of a policy decision as well as certain decisions rendered by the Apex Court, it was decided by the respondents to regularize the service of such persons on Group-D post. Cases of many a persons amounting to 49 in number were put under scrutiny. 21 persons were found to be eligible and their 2 names were recommended for absorption in Group-D post. This exercise was done way back in the year 2000-2001. Many persons lost a right for such regularization on the spacious ground that when the petitioner or some such persons were engaged, they were less than 18 years of age. That reason became a milestone around the neck of such employees including the petitioner, because they have lost their right for regularization on the so called illegality / irregularity in their engagement at an age less than 18 years committed by responsible persons of the Railways. The bone of contention in the present case is as to what exactly was the date of engagement of the present petitioner. Whether it was 01.03.1981 or 03.01.1981? If 03.01.1981 is taken as date for such engagement petitioner is less that 18 years of age by three days. It has been persistent stand of the petitioner that the date of initial engagement shown in the said exercise was a mistake in the data entry done by the concerned person. Instead of 01.03.1981, he typed it as 03.01.1981 and the said error has had the effect of robbing the petitioner of his claim for regularization which is said to be a welfare measure. There are many a documents, which have been annexed with the Writ Application, which does support the petitioner that the date of his initial engagement was 01.03.1981 and one of them is a letter written from the office of the General Manager (Personnel), at Hajipur and is dated 27.01.2004. This letter does indicate that a welfare officer was deputed to enquire 3 into the matter and the date of engagement of the petitioner was found to be 01.03.1981 and not 03.01.1981. Instead of taking any decision at the level of the General Manager, matter was referred to the Railway Board for appropriate decision or guidance, but, only seven years, have gone past and the local respondents including the present petitioner is still awaiting a decision or guidance. In what bureaucratic maze the file has got stuck and the reason for such delay is neither explained nor understood, because the counter affidavit is equally vague, if not delightfully vague on all the aspects, which have been raised by the petitioner, in assertion of his right for such regularization. There is no denial of most of the averments of the petitioner with regard to the inaction or non-decision or the mis- decision on the part of the respondents to deny him benefit of regularization on a Group-D post. Shorn off all other aspects of the matter, in the opinion of this Court, the issue falls within a very narrow compass. If the engagement of the petitioner was on 01.03.1981, of which there is some reflection and not 03.01.1981, which is a creation of the inefficiency of the man creating the database, then the petitioner can not be held responsible for such mistake or omission, which is of a clerical kind, but is playing havoc with the life of the present petitioner in his right for regularization. It is not such a big dispute that a decision could not be taken by the respondent-authorities at the ECR headquarters and required the wisdom of the Railway Board on this count. The Court has always been given impression that the Railway Board is 4 saddled with the responsibility of much higher kind than delving into such trivialities of administrative decision, which ought to have been taken as a matter of routine at the field. Court gets an impression that the object of referring such matter to the Railway Board was to delay the matter rather than get the matter expedited. Even if, the submission or the stand of the respondents are taken into consideration that the date of engagement of the petitioner was 03.01.1981 the question which arises for consideration whether the petitioner appointed himself or engaged himself as a Salesman in the so called Consumer Cooperative Society at Mokama? That engagement was done by somebody responsible at that level who knew what he was doing. Its only three days that the petitioner runs short in terms of reaching the age of 18. Engagement was of the year 1981. Question of regularization is still an issue in the year 2011. The Court does ponder whether a citizen of this country does have a right of legitimate expectation, from a welfare state, to waive the technicality coming in the way of the regularization of the petitioner by ignoring those three days, if at all it is required to be waived. If the petitioner’s continuance and engagement right from the year 1981 till 2011 is still not an issue because he was three days short of 18 years then how come it has become an issue at this stage when he has spent more than half his life serving the organization, under the Indian Railways directly or indirectly. The Court is constrained to record that we are still a 5 welfare state and the obligation created under the mandate of the Constitution, can not be whished away whatever be the change in perception in the way, things are supposed to be run in the present changed times. This is a matter, which does require a decisive intervention, especially when the petitioner happens to be a hapless citizen and has to take on a mighty state for a small indulgence of regularization on a Group-D post after having regularly served the respondents-authorities for many a decades. The Court would like to rely on some passages of a decision rendered by the Apex Court in the case of Harjinder Singh Versus Punjab State Warehousing Corporation, reported in (2010) 3 SCC 192 as to the obligation of the State in such situations and has been aptly enunciated as under “22. In Y. A. Mamarde V. Authority under the Minimum Wages Act, this Court, while interpreting the provisions of the Minimum Wages Act, 1948, observed: (SCC pp. 109-10) “The anxiety on the part of the society for improving the general economic condition of some of its less favoured members appears to be in supersession of the old principle of absolute freedom of contract and the doctrine of laissez faire and in recognition of the new principles of social welfare and common good. Prior to our Constitution this principle was advocated by the movement for liberal employment in civilized countries and the Act which is a pre-Constitution measure was the offspring of that movement. Under our present Constitution the State is now expressly directed to endeavour to secure to all workers (whether agricultural, industrial or otherwise) not only bare physical subsistence but a living wage and 6 conditions of work ensuring a decent standard of life and full enjoyment of leisure. This directive principle of State policy being conducive to the general interest of the nation as a whole, merely lays down the foundation for appropriate social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its contribution to the progress of national economic prosperity.” 23. The Preamble and various articles contained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic devise to mitigate the sufferings of the poor, weak, Dalits, tribals and deprived sections of the society and to elevate them to the level of equality to live a life with dignity of person. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation of every section of the society. 24. In a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice. The philosophy of welfare State and social justice is amply reflected in large number of judgments of this Court, various High Courts, National and State Industrial Tribunals involving interpretation of the provisions of the Industrial Disputes Act, Factories Act, 1948; Payment of Wages Act, 1936; Minimum 7 Wages Act, 1948; Payment of Bonus Act, 1965; Workmen‟s Compensation Act, 1923; Employees‟ State Insurance Act, 1948; Employees‟ Provident Funds and Miscellaneous Provisions Act, 1952 and Shops and Commercial Establishments Act enacted by different States. 31. It need no emphasis that if a man is deprived of his livelihood, he is deprived of all his fundamental and constitutional rights and for him the goal of social and economic justice, equality of status and of opportunity, the freedoms enshrined in the Constitution remain illusory. Therefore, the approach of the courts must be compatible with the constitutional philosophy of which the directive principles of State policy constitute an integral part and justice due to the workman should not be denied by entertaining the specious and untenable grounds put forward by the employer - public or private. 38. Having posed the question, the learned Judge answered the same in his inimitable words and which I may quote: (Bidi Supply Case, AIR p. 487, para 23) “23. …. I am clear that the Constitution is not for the exclusive benefit of Governments and States; it is not only for lawyers and politicians and officials and those highly placed. It also exists for the common man, for the poor and the humble, for those who have businesses at stake, for the „butcher, the baker and the candlestick-maker.‟ It lays down for this land „a rule of law‟ as understood in the free democracies of the world. It constitutes India into a Sovereign Democratic Republic and guarantees in every page rights and freedom to the individual side by side and consistent with the overriding power of the State to act for the common good of all” 39. The essence of our Constitution was also 8 explained by the eminent jurist Palkhivala in the following words: “Our Constitution is primarily shaped and moulded for the common man. It takes no account of „the portly presence of the potentates, goodly in girth‟. It is a Constitution not meant for the ruler „but the ranker, the tramp of the road, The slave with the sack on his shoulders pricked on with the goad, The man with too weighty a burden, too weary a load.‟ ” (N. A. Palkhivala, Our Constitution Defaced and Defiled, MacMillan, 1974, p. 29) I am in entire agreement with the aforesaid interpretation of the Constitution given by this Court and also by the eminent jurist.” The Writ Application is thus allowed. A direction is issued upon the General Manager (Personnel), East Central Railways at Hajipur, Respondent No. 4, that he shall give a categorical direction for regularization and absorption of the petitioner on a Group-D post within a period of eight weeks from the date of production of a copy of this Order, especially in the light that the Railway Board has not taken a decision or given any guidance in the last seven years and there is a failure to perform a public duty. Any failure on his part will be viewed seriously by this Court if the issue comes to this Court again on the question of non-implementation of this Order as much time has already been lost on this issue at the cost of the petitioner. SKM (Ajay Kumar Tripathi, J.)