High Court · 2009

The petitioners who are mostly common in both the petitions clai m to be engaged as commission vendors at the Gauhati Railway Station (hereafter referred to as the Railway Station) running tea stalls, vending with Pandallas a nd pursuing catering units on licence being issued by the Railways. Being aggrie ved by the decision of the Railways to discontinue them as the commission bearer /vendor on their failure to submit themselves for the medical examination prior to the consideration of their cases for absorption in Grade D posts, they in WP( C) 1948/2006 seek the intervention of this Court in exercise of its power under Article 226 of the Constitution of India. 2. Their challenge in WP(C) 1291/2009 is to the tender notice dated 9/3/2009 issued by the Indian Railway Catering and Tourism Corporation Ltd. (he reafter referred to as the Corporation) inviting tenders for awarding licences t o vending and catering stalls mentioned therein. This Court, in the interim, by the order dated 5/5/2006 passed in WP(C) 1948/2006 had directed maintenance of s tatus quo with regard to the petitioners. By order dated 27/3/2009, the award of licence in terms of the aforementioned tender notice had been made subject to t he final orders to be passed in WP(C) 1948/2006. 3. I have heard Mr. M.K. Choudhury, Sr. Advocate assisted by Mr. M. Dutta, Advocate for the petitioner, Mr. U.K. Nair, learned Standing Counsel for the Railways and Mr. G.N. Sahewalla, Sr. Advocate assisted by Mr. M. Singh, Adv ocate for the Corporation. The petitioners’ pleaded case is that as licensed commission ven 4. dors at Gauhati Railway Station as above they are paid commissions by the Railwa ys on their daily sale proceeds. They have continued as such for a period rangin g between 40 to 50 years and their licences have since been renewed from time to time upto 30/12/2004 whereafter there had been no further renewals. They claim, however, to continue as commission vendors as before. The Sr. Personnel Officer (Traffic), N.F. Railway, Maligaon, on 6/1/2005 directed medical examination of the listed commission vendors for their absorption as Grade-D employees under th e Railways. The petitioner represented against the same seeking to be acquainted with the proposed conditions of service on such absorption. While their represe ntations remained pending, by the impugned letter dated 9/3/2006, the Sr. Person nel Officer (Traffic), N.F. Railway, Maligaon, required them to submit themselve s for medical examination on the date(s) mentioned therein intimating them that on their failure to do so, they would have no claim for appointment/regularisati on of services in Group D posts and that further they would not be retained as c ommission bearer/vendors. The petitioners have, in the factual premise, question ed the validity of the decision and/or the policy for absorption of commission v endors in Group D posts under the Railways as well as the letter(s) dated 9/3/20 06 of the aforementioned authority addressed to them. 5. The challenge to the notice dated 9/3/2009 has been laid by t hem comprehending that on the completion of the process initiated thereby, they would stand replaced by the successful tenderers which according to their percep tion is illegal and unconstitutional in the contextual facts. 6. The Railways in their affidavit in WP(C) 1948/2006 have pleaded that in view of its catering policy of 2005, the catering services earlier admin istered departmentally had been handed over to the Corporation w.e.f. 13/2/2006 so far as the N.F. Railway is concerned. They have contended that in terms there of, the erstwhile catering services at New Jalpaiguri, Guwahati and Tinsukia Rai lways stations through the commission vendors is sought to be abolished in a pha sed manner for which the licences to them are not being renewed and instead a po licy decision has been taken to absorb the registered commission vendors who are below 60 years of age in Group D posts under it subject to their medical fitnes s. According to the answering respondents, the new catering policy of 2005 has b een in supersession of old existing policy guidelines and administrative instruc tions and new allotment of catering contracts are being made by the Corporation. The Railways have maintained that in terms of the said policy, an administrativ e decision has been taken to handover the catering and vending services to the C orporation in the interest of quality and decongestion of platforms in public in terest. Realising the consequential tribulations of the existing commission vend ors, the Railways have therefore decided to absorb them in Group D posts subject to their compliance of the conditions of eligibility prescribed therefor. In or der to obviate the possibility of the commission vendors being immediately denud ed of their means of livelihood pending the process of absorption, they have bee n allowed to conduct the business as before as stop gap arrangement bearing also in mind the convenience of the commuting passengers. The Railways have insisted that in the above facts and circumstances, the challenge to the letter dated 9/ 3/2006 requiring the commission vendors to subject themselves to medical test ca n by no means be repudiated as illegal and arbitrary. 7. The Corporation in a separate affidavit while endorsing the abov e has referred to a series of official correspondences embodying the aforementio ned policy and the norms of eligibility for absorption in Group D posts under th e Railways. According to the Corporation, inspite of due notice to the petitione rs as commission vendors/bearer and repeated reminders they have not associated themselves with the process undertaken in terms of the policy and, therefore, th e impugned letter dated 9/3/2006 cannot be faulted with. The Corporation has als o brought on record, a letter dated 21/1/2009 of the Deputy Chief Executive Offi cer (H.Q.), N.F. Railways, Maligaon, forfeiting the claim of the commission vend ors/bearers named therein for absorption/regularisation against Group D posts in Railways for their failure to accept the offer of appointment thereto though ma de on several occasions. The Corporation in its affidavit in WP(C 1291/2009 have substant 8. ially reiterated its stand taken in WP(C) 1948/2006. According to it, as the cla im of the petitioners for being appointed to the Group D posts under the Railway s stands forfeited, the impugned tender notice has been issued. The Corporation has maintained that it has been unable to complete the process in view of the in terim order of this Court. Emphasising the expediency of modernising the existin g platforms so as to provide better catering facilities to the travelling passen gers, the answering respondent has contended that in public interest as well the challenge to the tender process, which is even otherwise frivolous, ought to be negated.

9. Mr. Choudhury has strenuously urged that as the petitioners are admittedly continuing as commission vendors/bearers at the Gauhati Railway Stati on under the Railways, on the strength of their licences, there being no complai nt against the quality of the services rendered by them, the policy of discontin uing this arrangement is per se illegal and unconstitutional. According to the l earned Sr. Counsel, the petitioners had not been acquainted with the conditions of service to which they would be subjected on their absorption in Group D posts and, therefore, insistence on the part of the Railways to associate themselves with the related process is patently arbitrary. Pointing out that the cut off ag e of 60 years as a condition of eligibility for absorption being wholly unrealis tic as many commission vendors on the measure thereof would have 1 to 2 years of service, and thus be left high and dry on their retirement, Mr. Choudhury has u rged that the policy ipso facto therefore is imprudent and illogical. As thereby a classification is sought to be made amongst the commission vendors without an y intelligible differentia it is discriminatory as well. In all the learned Sr. Counsel on the above counts has contended that the impugned policy and the lette r dated 9/3/2006 are liable to be quashed. Consequently the tender notice dated 9/3/2009 and the process initiated thereby ought to be adjudged null and void, h e urged. Mr. Nair has submitted that as a policy of uniform application h 10. as been formulated by the Railways, bearing in mind, the possible predicament of the existing licensed commission vendors/bearers on the transfer of the vending and catering service to the Corporation, the challenge thereto is unsustainable . As in order to rationalise the process of absorption to Group D posts under th e Railways, the essential conditions of eligibility had to be prescribed to indu ct only the deserving candidates bearing in mind also the administrative exigenc y, the impugnment made is obviously untenable, he insisted. The policy as formul ated being to promote public interest as well as to rehabilitate the commission vendors satisfying the norms of eligibility, the plea of illegality, arbitrarine ss and discrimination is fallacious. Mr. Nair contended that the petitioners hav ing consciously dissociated themselves from the related process, they are estopp ed from questioning the validity thereof. 11. Mr. Sahewala, while endorsing the stand taken on behalf of the R ailways has maintained that the steps taken being in furtherance of public inter est, this Court, in the exercise of its power of judicial review would refrain f rom interfering with the ongoing process. As an early completion of the exercise initiated by the impugned tender notice is urgently necessary to offer better a nd organised vending and catering services, the challenge ought to be negated to facilitate the same, he urged.

12. The rival pleadings and the arguments advanced have received the due consideration of this Court.

13. The petitioners herein who are commission vendors/bearers of the Gauhati Railway Station have volunteered to stay away from the process initiate d on the basis of the policy for their absorption to Group D posts under the Rai lways. Their contention that their representations to be apprised of their condi tions of service on absorption had remained unresponded even if acceptable, the same per se does not, in the opinion of this Court, justify their wilful abstent ion from the process inspite of repeated advisories inviting their participation . In the background of the catering policy of 2005 of the Railways which is not under challenge contemplating transfer of the vending and catering service to th e Corporation, understandably a working arrangement had to be devised within the purview whereof a provision for rehabilitation of the existing commission beare rs/vendors had to be envisaged. Having regard to the fact that such commission v endors/bearers are engaged at Railway Stations all over the country, certain par ameters of uniform application had to be formulated. The policy in this regard, as is proclaimed by the official correspondences, noted herein above demonstrate the concern of the Railways to rehabilitate the commission bearers/vendors to t he extent possible without being oblivious of the administrative exigencies and infrastructural limitations as well as organisational efficiency. The criteria o f eligibility as the official communications on the subject reveal are the basic essentials for appointment to any Group D posts and can by no means be denounce d as oppressive or over stringent. This insistence on the part of the petitioner s who in law as such have no subsisting right to have their vending licence rene wed, to be apprised of their prospects as a condition precedent for their partic ipation in the process pertaining to the policy of absorption, in the estimate o f this Court, cannot be either countenanced or appreciated. The criteria of elig ibility envisaged by the policy having been applied uniformly to all the commiss ion vendors, the imputation of discrimination also is flawed. Had the petitioner s participated in the exercise in full and on their absorption in Group D posts had represented with the Railways or the Corporation, as the case may be, for ad ditional service benefits, having regard to the background of their continuous e ngagement as commission vendors/bearers, there might have arisen a cause of acti on for judicial scrutiny in case of refusal thereof without any justification. T he comprehension of the petitioners of being disadvantageously placed even on th eir absorption, as the purported ground of their non-cooperation cannot, in the facts and circumstances of the case be recognised as a valid basis of the challe nge made herein. The varying prospects in service on the basis of the difference in age of the petitioners are fortuitous circumstances. The learned Sr. Counsel for the petitioner, in course of the arguments, had highlighted that on their a bsorption they might be made to perform duties different from commission vendors which is not acceptable to them. To say the least this only demonstrates a tota l recalcitrant and recusant attitude of theirs which having regard to the nature of their engagements verges on insolence. In the estimate of the Court, the policy formulated by the Railw 14. ays in the matter of absorption of commission vendors/bearers in Group D posts a s such does not suffer from any vice to impeach the same as unconstitutional. Th e petitioners have at their risk and peril refused to participate in the process initiated in connection therewith. In the exercise of the power of judicial rev iew, this Court, therefore, is not inclined to intervene. In view of this determ ination, the challenge to the tender notice, which the Corporation asserts on so lemn affirmation, is with an objective of improving and enhancing the quality of vending and catering services at the Railway Stations also does not warrant any interference of this Court in public interest. On a totality of the circumstances as above, the petitions lack in merit and are dismissed. No costs.