IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.6.2009 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM W.P. NOS.4881, 7616 AND 12317 TO 12319 OF 2008 1. The Union of India, Ministry of Railways, Railway Board, rep. By the Joint Director, Estt.(N)-II, Railway Board, New Delhi-1. ..Ist Petitioner in all WPs. 2. The General Manager, Southern Railway, Chennai-3. 3. The Chief Personnel Officer, Southern Railway, Chennai-3. ... Petitioners 2 & 3 in WPs.4881 & 7816/2008 4. The General Manager, Integral Coach Factory (ICF), Chennai - 38. 5. The Chief Personnel Officer, Integral Coach Factory (ICF) Chennai - 38. ..Petitioners 2 & 3 in WP.12317 to 12319/08 Vs. 1. The Registrar, Central Administrative Tribunal, Chennai-104. 2. M.Raja ... R.2 in WP 4881/2008 (O.A.No.237/2007) 3. K. Ashok Kumar ... R.2 in WP 7616/2008 (O.A.No.235/2007) 4. M.Karnan ... R.2 in WP 12317/2008 (O.A.No.240/2007) https://hcservices.ecourts.gov.in/hcservices/ 5. K.Sundar ... R.2 in WP 12318/2008 (O.A.No.236/2007) 6. L.Palanivelu ... R.2 in WP 12319/2008 (O.A.NO.238/2007) Petitions filed under Article 226 of the Constitution of India praying for the relief stated therein. For Petitioners.. Mr.R.Thiagarajan, Senior Counsel for Mr.V.G.Suresh Kumar For Respondents.. Mr.R.Singaravelan for R.2 in all WPs. COMMON ORDER (Order of the Court was made by ELIPE DHARMA RAO, J.) These writ petitions have been filed seeking to issue Writs of Certiorari calling for the records relating to the Tribunal's common order dated 31.8.2007 made in O.A.Nos.235 to 238 and 240 of 2007 and quash the same. 2. The brief facts of the case are as follows:- The applicants before the Tribunal belong to Scheduled Caste community, excepting the applicant in O.A.No.236 of 2007, who belongs to OBC Community. These applicants were selected for Course Completed Act Apprentice on merits. While so, there was an advertisement inviting applications from eligible candidates with 8th Std. pass for the Act Apprentice Course, published in the Notice Board of Railway Workshop, pursuant to which, the applicants had applied for the said course and subsequently, after passing the relevant tests, they were selected for the said course and had undergone the training during various periods between 1984 and 1988. It is the specific case of the applicants that upto 18.8.1999, there were appointments from the list of Certificate holders of Course Completed Act Apprentices on the basis of their seniority and all of a sudden, a ban was imposed on recruitment by the Railway Board, by order dated 19.8.1999, which was lifted subsequently by order dated 24.8.2004. Thereafter, the petitioner herein, viz., the Chief Personnel Officer, Southern Railway, Chennai, invited applications by order dated 29.11.2004 from the eligible Course Completed Act Apprentices for appointment to the post of Substitute Helper Grade https://hcservices.ecourts.gov.in/hcservices/ II, stating that the said post was temporary in nature i.e. for a period of four months and thereafter they would be appointed as regular Khalasis. Thus, the cut off date mentioned in the notification was that as on 1.7.2004, the candidate should be within the age limit of 38 + Training Period (three years) and he should not have crossed the said age limit. 3. It is to be noted that in view of the cut off date mentioned in the above notification, the applicants were over aged (the applicant in O.A.No.237/2007 (WP 4881/2008) was over aged by 5 months; the applicant in O.A.235/2007 (WP 7616/2008) was over aged by 1 year and 3 months; the applicant in O.A.No.236/2007 (WP 12318/2008) was over aged by 4 days, and the applicant in O.A.NO.238/2007 in WP 12319/2008 was over aged by 8 months and 15 days. 4. In view of the above, the applicants were not considered for appointment and others, who have not crossed said age limit, plus the training period of three years, were appointed during 2006. Thereafter, the applicants made representations to the authorities concerned. Finally, by order dated 4.5.2006, the Railway Board relaxed the age limit by 5 years to OC candidates i.e. from 33 years to 38 years and 2 years to OBC candidates i.e. from 36 to 38 years. However, no age relaxation was granted to the candidates belonging to SC/ST. In view of the above decision of the Railway Board, the candidates belonging to OC and OBC were benefited and the candidates belonging to SC /ST were not benefited. The applicants have relied upon the judgment reported in AIR 1995 SC 115 (U.P.S.R.T.Corpn. v. U.P.Parivahan N.S.B.Sangh) with regard to age relaxation. Therefore, contending that while giving age relaxation by 5 years to all the OC candidates, the relaxation already given to SC/ST candidates was taken away, resulting in treating them on par with the OC and OBC candidates, thus the Board has violated the constitutional mandate of Articles 14 and 16 of the Constitution of India, thereby treating both equals and unequal on the same footing, which is against the scope of the rule of reservation. 5. It is replied by the Railway Board before the Tribunal that under the Act Apprenticeship Act, it is not obligatory on their part to provide employment to the Course Completed Act Apprentices. However, as clarified by the Railway Board in their letter dated 21.6.2004, the course completed Act Apprentices can be engaged as Substitutes in Group 'D' under General Managers' power in administrative exigencies, subject to their fulfilment of the extant instructions prescribed for such engagement, and it was decided to engage the course completed Act Apprentices as Substitutes in order to fill up the existing vacancies. As per the rules provided for recruitment/engagement, the maximum age limit prescribed for SC candidates for appointment to Group 'D' is 38 years duly relaxing the upper age limit to the extent of the period of Apprenticeship https://hcservices.ecourts.gov.in/hcservices/ Training. Later, the Railway Board, by letter dated 4.5.2006, relaxed the upper age limit as 38 + the training period of Apprenticeship for all such candidates as a one time exemption. As the applicants did not fall within the age limit prescribed by the Board under letter dated 4.5.2006, their applications were not considered. It is the specific case of Board that even after extending relaxation to the extent of three years, being the period of Apprenticeship training undertaken, the applicants did not come within the prescribed age limit, resulting in their non-selection. 6. The Tribunal, considering the facts and circumstances of the case, quashed the impugned orders dated 4.5.2006 and 5.6.2006 and directed the Railway Board to review the age relaxation given for SC/ST and OBC candidates, in the light of the Official Memorandums issued by the Board, and issue necessary revised guidelines to the authorities by providing appropriate age relaxation. Aggrieved, the Railway Board has filed these writ petitions. 7. Heard the learned counsel on either side and perused the materials placed on record. In consideration of the facts and circumstances of the case, we are of the view that neither the reply affidavit nor the arguments advanced by the learned Senior Counsel appearing for the Railway Board would indicate under what circumstances the uniform age limit was considered in respect of candidates belonging to OC, OBC and SC/ST candidates, in spite of the fact that a specific age limit is prescribed in respect of candidates belonging to OC, OBC and SC/ST, as per the recruitment rules. 8. Even according the learned Senior Counsel appearing for the Railway Board, the upper age limit fixed for OC candidates is 33 years and in respect of OBC candidates, it is 36 years and in respect of the SC/ST candidates, the upper age limit is fixed as 38 years. The only reason for imparting training to these candidates is to appoint them as Substitute Helper Grade II, for which a notification had been issued and a list had been prepared on the basis of the marks obtained by them during the training period. But, as seen from the facts and circumstances of the case, when different age limit is prescribed for different categories, viz., OC OBC, SC/ST, fixation of uniform age limit for all the above four categories is contrary to the provisions of the Constitution or the recruitment rules. Even, as held by the Apex Court in the judgment reported in AIR 1995 SC 1115 (U.P.S.R.T.Corpn. v. U.P.Parivahan N.S.B.Sangh), while dealing with the aspect of age relaxation to the trainees, in para., 12(3), it is held that if age bar would come in the way of the trainee, the same would be relaxed in accordance with what is stated in this regard, if any, in the concerned service rule; If the service rule be silent on this aspect, relaxation to the extent of the period for which the apprentice had undergone training would be given. https://hcservices.ecourts.gov.in/hcservices/ 9. If the above said observation of the Apex Court is applied to the facts of the case, all the above four categories of candidates are eligible for relaxation to the extent of the period for which they had undergone training, but not to the original age limit as prescribed under the recruitment rules, in these petitions. 10. As indicated above, the upper age limit prescribed for OC candidates was 33 years, for OBC it was 36 years and for SC/ST, it was 38 years. In view of the ruling laid down by the Apex Court, if the said rule is applied to the facts and circumstances of the case, keeping in mind the training undergone by them i.e. for a period of three years, the upper age limit has to be fixed as 36 years in respect of OC, 39 years for the OBC and 41 years in respect of SC/ST candidates. Therefore, relaxing the upper age limit by 5 years in respect of OC candidates and 2 years in respect of OBC candidates, and not relaxing the same age limit in respect of candidates belonging to SC/ST candidates amounts to discrimination. When the minimum age limit prescribed for the candidates belonging to OC and OBC candidates is relaxed, the same has to be extended to the candidates belonging to SC/ST also, by virtue of which action, no benefit was extended to SC/ST candidates and on the other hand, it has only benefited the OC and OBC candidates, which decision of the Railway Board is arbitrary and prejudicial to the interest of the candidates belonging to SC/ST community, thereby offending Articles 14 and 16 of the Constitution of India. 11. Though the learned Senior Counsel appearing for the Railway Board, while arguing the matter, submitted that it is not obligatory on the part of the Railway Board to provide employment to the Course Completed Act Apprentices, but a decision is taken to engage them as Substitutes in Group 'D' vacancies, we are of the view that when once they have taken a decision to engage the trainees as Substitutes in Group 'D' vacancies, the Railway Board should have followed the recruitment rules, prevailing in the department. Moreover, once the decision is taken to relax the upper age limit, they should have relaxed the same for all the four categories as per the recruitment rules. As we have already held, the act of relaxation of the upper age limit only benefits the candidates belonging to OC and OBC candidates and not the candidates belonging to SC/ST. 12. As the petitioners/Railway Board have taken a policy decision to relax the upper age limit by 5 years uniformly to all the categories, we hold that the said decision is advantageous to the OC candidates and disadvantageous to candidates belonging to SC/ST, and therefore, we direct the petitioners/Railway Board to extend the above said benefit of 5 years to the OBC and SC/ST candidates also, who are figuring as respondents 2 to 6 herein. https://hcservices.ecourts.gov.in/hcservices/ 13. It is pertinent to note that even as per the extant orders in force at the time of issue of notification, the concession of age- relaxation was provided to the candidates belonging to OBC as well as SC and ST candidates. It is evident from the impugned notification dated 5-6-2006 that OBC candidates were extended 3 years age- relaxation, and SC/ST candidates were given the age-relaxation of 5 years over and above the upper age-limit prescribed for the Open Category candidates. The original age criteria fixed for the candidates belonging to Open Category was 33 years plus 3 years' training period, i.e. 36 years; for the candidates belonging to Other Backward Class, it was 36 years plus 3 years' training period, i.e. 39 years and for the candidates belonging to Scheduled Caste/Scheduled Tribe, it was 38 years plus 3 years' training period, i.e. 41 years. This differential age criterion was prescribed for candidates belonging to different categories in consonance with the constitutional mandate enshrined in Articles 14 and 16 of the Constitution of India. When the Board, by the impugned notifications, had taken a decision to fix the upper age limit as 38 years plus the period of apprenticeship undergone by the candidates belonging to all the categories, viz., General, OBC, SC and ST candidates, it should have extended such age-relaxation in consonance with the reservation rules relating to upper age limit. By fixing the uniform upper age limit at 38 years, plus the period of apprenticeship undergone by the candidates, to all categories of candidates, the Board had breached the constitutional safeguards provided to the reserved category candidates in the matter of employment. By the fixation of such uniform application of the enhanced age-limit, the real beneficiaries were the candidates belonging to Open Category and OBC and inasmuch as by such enhancement, the upper age limit in respect of OC candidates was increased from 33 years to 38 years (five years); for OBC candidates, it was from 36 years to 38 years (two years) and no benefit inured to the SC/ST candidates, as already they have the benefit of five years age-relaxation vis-a-vis the candidates belonging to OC and to some extent OBC. When the SC/ST candidates are already in enjoyment of the age-relaxation of five years in terms of the reservation rules, the Board, while fixing the upper age limit for the present recruitment, should have correspondingly effected the upper age-limit based on the category of the candidates. By the benefit of age-relaxation of five years and three years, the candidates belonging to OC and to some extent OBC were considered on par with the candidates belonging to SC/ST, which is in violation of the well-settled principles laid down under Articles 16(4A) and 16 (4B) of the Constitution of India. The decision of the Board in applying the upper age limit of 38 years, plus training period, to all class of candidates irrespective of their categorisation as OC, OBC, SC, ST is contrary to law and the well-established rules of reservation. It is only the candidates belonging to OC have reaped the full benefit of five years' age-relaxation. To put it more https://hcservices.ecourts.gov.in/hcservices/ plain, by such uniform application of upper age limit of 38 years, while the OC candidates gained the full advantage of five years since their upper age limit under the original recruitment rules was 33 years and the OBC candidates have gained two years since their upper age limit under the original recruitment rules was 36 years, the candidates belonging to the reserved category, viz., SC and ST, however, derived no benefit, inasmuch as even as per the original recruitment rules, their upper age limit was 38 years. 14. Learned senior counsel for the petitioners argued that the decision taken by the Board to uniformly apply the upper age limit of 38 years to all class of candidates is a policy-decision and an one- time benefit. This argument is unsustainable. Whatever be the decision taken by the Board, either policy-decision or otherwise, it must satisfy the tests of reasonableness and fairness. If the decision taken is in breach of the constitutional principles of equality, fairness and arbitrariness, it is always subject to judicial review and it cannot be argued the decision being a policy decision and it is outside the purview of judicial review. As we have held that the decision of the Board in applying the uniform upper age limit to all class of candidates is in violation of Arts.14 and 16 of the Constitution and in breach of the constitutional safeguards given to the candidates belonging to reserved category and in violation of the well-settled principles of reservation in the matter of employment, the petitioners cannot be allowed to plead that the decision so taken was a policy-decision and, therefore, it is outside the purview of judicial review and that the age-relaxation given was one-time exemption. 15. For the reasons stated above, we have no hesitation to hold that the decision of the Board in giving uniform age relaxation of 38 years, plus 3 years training, to all the candidates belonging to Open Category, Other Backward Class, Scheduled Caste and Scheduled Tribe, is violative of Arts.14 and 16 of the Constitution of India, by virtue of which, the benefit of age concession given to the reserved class of candidates (OBC, SC & ST) had been taken away in matters of employment, which is nothing but an infringement of the rights conferred upon them by the Constitution. 16. For the discussions held above, the impugned orders dated 4-5-2006 and 5-6-2006 are liable to be quashed and that the Tribunal was right in doing so. At this juncture, we hasten to point out that till 18-8-1999 there were appointments from the list of certificate- holders of Course Completed Act Apprentices on the basis of their seniority, but this selection process was stopped by the Railway Board's order dated 19-8-1999. The ban on such recruitment was lifted by the Board's order dated 24-8-2004, whereupon applications were invited from the eligible Course Completed Act Apprentices for appointment to the post of Substitute Helpers Grade-II. The Board, https://hcservices.ecourts.gov.in/hcservices/ while inviting applications, should have considered this long period of ban on recruitment and should have appropriately enhanced the age- limit in terms of the rules relating to reservation. 17. As we have held that the OBC candidates are entitled for 3 years age-relaxation and that the SC/ST candidates are entitled for 5 years age-relaxation in accordance with the rules of reservation, the rejection of candidature of the applicants/respondents by the Board, on the ground that they are over aged, is unsustainable. In view of our above conclusions, the applicants/respondents are within the upper age-limit prescribed for the present recruitment. 18. For the reasons stated above, the writ petitions are dismissed with a direction to the Railway Board to consider afresh the case of the applicants/respondents 2 to 6 herein, and appoint them w.e.f. 31.3.2007 i.e. the date on which the order of the Tribunal was made, if they are otherwise eligible. We, however, make it clear that the applicants/respondents are not entitled to any monetary benefits on the principle of 'no work, no pay', but they are entitled to claim all other service benefits such as seniority, continuity of service, promotion, etc. This exercise shall be punctually be carried as expeditiously as possible, at any rate, not later than six months from this day. However, in the circumstances of the case, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gs. To 1. The Joint Director Estt.(N)-II, The Union of India, Ministry of Railways, New Delhi-1. 2. The General Manager, Southern Railway, Chennai-3. 3. The Chief Personnel Officer, Southern Railway, Chennai-3. https://hcservices.ecourts.gov.in/hcservices/ 4. The Registrar, Central Administrative Tribunal, Chennai-104. 5. The General Manager, Integral Coach Factory (ICF), Chennai - 38. 6. The Chief Personnel Officer, Integral Coach Factory (ICF), Chennai - 38. 2 cc To Mr.V.G.Suresh Kumar, Advocate, SR.22685. 5 cc To Mr.R.Singaravelan, Advocate, SR.23187. W.P. Nos.4881, 7616 and 12317 to 12319 of 2008 KG(CO) RVL 22.06.2009 https://hcservices.ecourts.gov.in/hcservices/