P M BALAN Vs. UNION OF INDIA

JUDGEMENT

(1.) AS the issue involved in all these three Original Applications are the same these three O.AS. were heard together and are being disposed of by this common order. For the purpose of convenience, the facts of; O.A. No. 1309/99 are being given and are being dealt with in this order.

(2.) Applicants two in number aggrieved by A-3 order dated 5.4.99 filed this Original Application seeking the following reliefs:

(3.) ACCORDING to the averments of the applicants in the O.A, they were at the time of filing the O.A., working as Non-Artisan Khalasis which were earlier designated as Khalasis. They were initially engaged as Casual Khalasis in the Palghat Division. On completion of 120 days they were given the benefit of Pay Commission scale of Rs. 196-232. They continued as Casual Khalasis under the Inspectors of Works (now designated as Section Engineer (Works). During 1989 pursuant to de-casualisation 150 posts of Khalasis were created and volunteers were called for to fill up the vacancies from among Gangmen who belong to another seniority unit of the Engineering Department viz. Permanent Way Inspector's Section (now designated as Section Engineer (P/Way). Apprehending denial of regular posting, the first applicant and similar others filed O.A. No. 186/89 before this Tribunal. This Tribunal following the earlier decisions allowed the Application by A1 order dated 28.2.90. By A2 order dated 20.7.90 in Review Application No. 65/90, A1 order was modified. It was submitted that these decisions were following the earlier decisions of this Tribunal in A. Sainul Abdeen and Ors. v. Union of India and Ors., 1990(30) SLR 482. Referring to A3 letter dated 5.4.99 applicants submitted that by the said circular volunteers were called for filling up the vacancies of Artisan Khalasis in the Painter category. It was also submitted that similar circulars were issued for filling up the posts of Artisan Khalasis in grade Rs. 2650-4000 in Carpenter/Bricklayer Welder, etc. categories. Applicants averred that the intention of the Department all throughout was to induct Gangmen to the unit of Inspector of Works at the lowest stage and the same was not agreed upon by this Tribunal. It was submitted that the promotion posts of the Gangmen were Senior Gangmen, Trolly Man, Gangmate, Keymen, Permanent Way Maistry, Permanent Way Inspectors etc. It was submitted that the initial post of Gangman were filled up by the existing casual labourers from the Works Branch based on their Divisional Seniority. In the process of empaneling Gangmen some of the casual labourers in the Works Branch did not choose to be posted as Gangmen on account of the fact that they had the opportunity to be absorbed as Khalasis in the Works Branch itself. As the Railway objected to retention of the casual labourers in the Works Branch for eventual absorption as Khalasis and forced many of the casual labourers to accept the post of Gangmen failing which threatened termination of service many of the casual labourers had approached this Tribunal and obtained various orders to the effect that they need not be forcibly sent against their willingness and they need be considered against the de-casualised vacancies of Khalasis. It was submitted that the orders issued by the Railway Board in the matter of de-casualisation provided only for the creation of posts of Khalasis and they were not designated as Non-Artisan or Artisan Khalasis. The Railways at local levels had adopted various steps to (sic) absorption of Khalasis in the Works Branch itself. They resorted to various methods to support those casual labourers who accepted the order of posting as Gangmen. As a result of this, the authorities without following any basic Recruitment Rules and orders converted certain number of de-casualised posts of Khalasis as into Artisan Khalasis and the remaining were re-designated as Non-Artisan Khalasis in the pay scale of Rs. 2550-3200. It was claimed that irrespective of designation, the Khalasis in the Works Branch could not but associate with the artisan nature of works by helping the skilled Artisan. ACCORDING to them the new nomenclature as Artisan Khalasis in the lower pay scale and that of Khalasis was only after a catena of decisions in the matter of existing Khalasis. It was claimed that the applicants and similar other de-casualised as Khalasis had never been given the option to be re-designated as Artisan Khalasis. At the initial stage of the scheme some of the seniormost Khalasis were re-designated as Artisan Khalasis which made them believe that the applicants in the normal course as non-Artisan Khalasis would be elevated as Artisan Khalasis according to their seniority in the unit if they were not otherwise unfit. When A3 notice was issued the applicants did not oppose the same in view of the fact that if anybody was not willing to be considered in the post of Artisan Khalasis in the Works Branch the same could be filled up from volunteers from other Branches also. The applicants were called for suitability test in September, 1999. There was no trade test practical or written except few oral personal questions were asked to the applicants. The applicants had the opportunity to be considered for promotion as skilled Artisans which benefit was now being taken away by induction of persons from outside. The limited promotion opportunities available to the Khalasis were the skilled categories in different trades in the works Branch. In view of the induction of the new category called "Artisan Khalasis" in the same grade as that of Non-Artisan Khalasis, the opportunity of being considered for promotion to the skilled category was being eroded as far as the applicants are concerned. The Gangmen were to be considered for transfer as provided in the Indian Railway Establishment Manual. The respondents could not act arbitrarily to gain undue advantage to the Gangmen category by taking away the meagre benefits of promotion opportunities available to the Khalasis in the Works Branch of the Engineering Department. It was submitted that against 9 posts of Artisan Khalasis in the Painter category 161 persons volunteered and they were interviewed. Out of the above 92 persons belonged to the category of Senior Gangmen in the scale of pay of 2650-4000. Only on publishing the list of volunteers it was noticed that inspite of sufficient number of Khalasis there was an attempt to weed out the Non-Artisan Khalasis. The post of Artisan Khalasis being the posts converted from the 150 posts of Khalasis de-casualised during the year 1989, the persons in the other seniority unit like the Gangmen could have the right to be considered only in the absence of the Non-Artisan Khalasis. It was submitted that the results had not been published so far. The applicants opposed the manner of conduct of the aptitude test along with other volunteers in other seniority units. ACCORDING to them only in the absence of fully qualified and eligible hands from the category of Non-Artisan Khalasis others could be considered limited to the maximum of 10% of the vacancies as was provided in the IREM. It had not been specifically stated as to whether the filling up of Artisan Khalasis was by way of promotion or direct recruitment or transfer. No Recruitment Rules were framed for the post of Artisan Khalasis. This being the lowest grade of Group-D no stringent method could be applied in making posting to deny the reasonable opportunity of the applicants for a posting as Artisan Khalasis. The Gangmen/Senior Gangmen who were in another seniority list could not be considered for appointment as Non-Artisan Khalasis when employees like the applicants in the seniority units were available. Under the circumstances, the present mode of filling up the post by calling for volunteers from other seniority units was contrary to rules and against the principles of natural justice. By the present method of filling up the vacancies of Artisan Khalasis the chances of promotion of Non-Artisan Khalasis were deprived. The total number of posts of Khalasis in the seniority unit of Works had been spilt up and certain number of posts made as Non-Artisan and the remaining as Artisans in the same grade unilaterally by the Department. Had this not been done the applicants would have continued to be as Khalasis entitling for eventual promotion as skilled Artisan depending upon their suitability and availability of vacancies. This Tribunal had earlier in A1 and A2 orders held that the seniority of Gangmen if appointed as Khalasis in the event of non-availability of the casual labourers to be absorbed as Khalasis, the seniority of such Gangmen would be considered only from the date of such appointment as Khalasis. If there was any proposal for intervention by the department to re-designate some of the post of Khalasis as Artisan Khalasis and to induct the Gangmen from other seniority unit, the applicant and some other could not have requested them to be retained in the works unit. The procedure of filling up the vacancies of Artisan Khalasis now adopted by the Railway was quite alien to the rules provided in the IREM. By inducting to fill up the vacancies, the valuable right of the applicants for being considered for posting as Artisan in it's true and correct perspective was being denied to the applicants. Hence, the applicants filed this O.A. and sought the above reliefs.