- (1.) The petitioner claimed that he had rendered voluntary service to the Railways acting as a Ticket Collector at Burdwan Railway Station for years together. Hence, he should be considered for regular appointment. He approached the Tribunal. The Tribunal rejected his case. Hence, this petition. Mr. Roy, learned counsel appearing for the petitioner filed a written argument inter alia raising the following issues -- i) It was not possible for the petitioner to arrange for proof for the service rendered by him voluntarily. Hence, the Railway should be asked to produce records to find out veracity of such claim. ii) The Railway Board Circulars referred to in the judgment would have no application in the instant case. iii) The fact that the petitioners served the railway voluntarily, must carry weightage while considering his prayer for regularisation. iv) Once the railway recognised the volunteers and shortlisted them there was no scope to ignore the petitioner. v) The Tribunal did not discuss in detail before coming to conclusion that the petitioner had not been able to justify his claim While elaborating his submission, Mr. Roy relied on the Railway Board Circular No.220 of 1986 dated November 17, 1986 that would recognize voluntary service being given to the Railway Administration. The Railway Administration was cautioned that in future they should not engage any person on "daily" or "voluntary" or "rate" basis. He relied on Section 22 of the Administrative Tribunal Act, 1985 wherein the Tribunal was given power as a Civil Court to appoint Commissioner to find out a state of fact. Mr. Roy contended that it was a fit and proper case where this Court should appoint an independent agency to find out the veracity of the claim. Mr. Roy also vouched the claim of the petitioner as and by way of his special knowledge, rather he was prepared to be the witness to support the claim of his client. On the issue of judicial activism, Mr. Roy relied on a passage from the article titled "role of judiciary in the present day context" by Binod Kumar Roy, J. wherein Lord Denning was quoted as under:- "every new decision or every new situation is a development of law. Law does not stand still. It moves continually. Once this is recognized, then the task of the judge is put on a higher plane. He must consciously seek to mould the law so as to serve the needs of the time. He must not be a mere mechanic, a mere working mason laying brick on brick, without thought to the overall design. He must be an architect thinking of the structure as a whole building for the society, a system of law, which is strong, durable and just. It is on his work the civilised society depends."
(2.) Mr. Roy lastly contended that all other similarly circumstanced persons were considered for regular appointment in terms of earlier orders passed from time to time by the Tribunal. Hence, the identical benefit should be extended to the petitioner. Mr. Roy relied on the Apex Court decision in the case of Sri-la Sri Subramania Desika Gnanasambanda Pandarasannidi VS State of Madras and Another, 1965 AIR(SC) 1578.
(3.) Opposing the application Mr. Priyabrata Mukherjee, learned counsel appearing for the Railway contended that the claim of the petitioner could not be considered in absence of evidence. Moreover even if his claim is given full credence there would be no law which could support his claim after the Apex Court decision in the case of Secretary, State of Karnataka VS Uma Devi, 2006 4 SCC 1. Mr. Mukherjee contended that the voluntary service, if any, rendered by the petitioner could not give any right to him to claim appointment or regularisation. To become a railway employee, the petitioner would have to compete for a regular recruitment process along with all eligible candidates and become successful for the same. His past service, if any, rendered to the Railway on voluntary basis or otherwise would have no role to play. Mr. Mukherjee prayed for dismissal of the writ petition.;