The Union of India, Ministry of Railways, Railway Board v. The General Manager, Southern Railway, Chennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.6.2009CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOAND THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAMW.P. NOS.4881, 7616 AND 12317 TO 12319 OF 20081. 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 & 7816/20084. 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 12319/08Vs.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 Indiapraying for the relief stated therein.For Petitioners..Mr.R.Thiagarajan,Senior Counsel for Mr.V.G.Suresh KumarFor 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 ofCertiorari calling for the records relating to the Tribunal's commonorder dated 31.8.2007 made in O.A.Nos.235 to 238 and 240 of 2007 andquash the same.2. The brief facts of the case are as follows:-The applicants before the Tribunal belong to ScheduledCaste community, excepting the applicant in O.A.No.236 of 2007, whobelongs to OBC Community. These applicants were selected for CourseCompleted Act Apprentice on merits. While so, there was anadvertisement inviting applications from eligible candidates with 8thStd. pass for the Act Apprentice Course, published in the NoticeBoard of Railway Workshop, pursuant to which, the applicants hadapplied for the said course and subsequently, after passing therelevant tests, they were selected for the said course and hadundergone the training during various periods between 1984 and 1988.It is the specific case of the applicants that upto 18.8.1999, therewere appointments from the list of Certificate holders of CourseCompleted Act Apprentices on the basis of their seniority and all ofa sudden, a ban was imposed on recruitment by the Railway Board, byorder dated 19.8.1999, which was lifted subsequently by order dated24.8.2004. Thereafter, the petitioner herein, viz., the ChiefPersonnel Officer, Southern Railway, Chennai, invited applicationsby order dated 29.11.2004 from the eligible Course Completed ActApprentices 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 aperiod of four months and thereafter they would be appointed asregular Khalasis. Thus, the cut off date mentioned in thenotification was that as on 1.7.2004, the candidate should be withinthe age limit of 38 + Training Period (three years) and he should nothave crossed the said age limit.3. It is to be noted that in view of the cut off date mentionedin the above notification, the applicants were over aged (theapplicant in O.A.No.237/2007 (WP 4881/2008) was over aged by 5months; the applicant in O.A.235/2007 (WP 7616/2008) was over aged by1 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 WP12319/2008 was over aged by 8 months and 15 days.4. In view of the above, the applicants were not considered forappointment and others, who have not crossed said age limit, plus thetraining period of three years, were appointed during 2006.Thereafter, the applicants made representations to the authoritiesconcerned. Finally, by order dated 4.5.2006, the Railway Boardrelaxed the age limit by 5 years to OC candidates i.e. from 33 yearsto 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 toSC/ST. In view of the above decision of the Railway Board, thecandidates belonging to OC and OBC were benefited and the candidatesbelonging to SC /ST were not benefited. The applicants have reliedupon 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 OCcandidates, the relaxation already given to SC/ST candidates wastaken away, resulting in treating them on par with the OC and OBCcandidates, thus the Board has violated the constitutional mandate ofArticles 14 and 16 of the Constitution of India, thereby treatingboth equals and unequal on the same footing, which is against thescope of the rule of reservation.5. It is replied by the Railway Board before the Tribunal thatunder the Act Apprenticeship Act, it is not obligatory on their partto provide employment to the Course Completed Act Apprentices.However, as clarified by the Railway Board in their letter dated21.6.2004, the course completed Act Apprentices can be engaged asSubstitutes in Group 'D' under General Managers' power inadministrative exigencies, subject to their fulfilment of the extantinstructions prescribed for such engagement, and it was decided toengage the course completed Act Apprentices as Substitutes in orderto fill up the existing vacancies. As per the rules provided forrecruitment/engagement, the maximum age limit prescribed for SCcandidates for appointment to Group 'D' is 38 years duly relaxing theupper 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 ofApprenticeship for all such candidates as a one time exemption. Asthe applicants did not fall within the age limit prescribed by theBoard under letter dated 4.5.2006, their applications were notconsidered. It is the specific case of Board that even afterextending relaxation to the extent of three years, being the periodof Apprenticeship training undertaken, the applicants did not comewithin the prescribed age limit, resulting in their non-selection.6. The Tribunal, considering the facts and circumstances of thecase, quashed the impugned orders dated 4.5.2006 and 5.6.2006 anddirected the Railway Board to review the age relaxation given forSC/ST and OBC candidates, in the light of the Official Memorandumsissued by the Board, and issue necessary revised guidelines to theauthorities by providing appropriate age relaxation. Aggrieved, theRailway Board has filed these writ petitions.7. Heard the learned counsel on either side and perused thematerials placed on record. In consideration of the facts andcircumstances of the case, we are of the view that neither the replyaffidavit nor the arguments advanced by the learned Senior Counselappearing for the Railway Board would indicate under whatcircumstances the uniform age limit was considered in respect ofcandidates belonging to OC, OBC and SC/ST candidates, in spite of thefact that a specific age limit is prescribed in respect of candidatesbelonging to OC, OBC and SC/ST, as per the recruitment rules.8. Even according the learned Senior Counsel appearing for theRailway Board, the upper age limit fixed for OC candidates is 33years and in respect of OBC candidates, it is 36 years and in respectof the SC/ST candidates, the upper age limit is fixed as 38 years.The only reason for imparting training to these candidates is toappoint them as Substitute Helper Grade II, for which a notificationhad been issued and a list had been prepared on the basis of themarks obtained by them during the training period. But, as seen fromthe facts and circumstances of the case, when different age limit isprescribed for different categories, viz., OC OBC, SC/ST, fixation ofuniform age limit for all the above four categories is contrary tothe provisions of the Constitution or the recruitment rules. Even,as held by the Apex Court in the judgment reported in AIR 1995 SC1115 (U.P.S.R.T.Corpn. v. U.P.Parivahan N.S.B.Sangh), while dealingwith 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, thesame would be relaxed in accordance with what is stated in thisregard, if any, in the concerned service rule; If the service rule besilent on this aspect, relaxation to the extent of the period forwhich 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 tothe facts of the case, all the above four categories of candidatesare eligible for relaxation to the extent of the period for whichthey had undergone training, but not to the original age limit asprescribed under the recruitment rules, in these petitions. 10. As indicated above, the upper age limit prescribed for OCcandidates was 33 years, for OBC it was 36 years and for SC/ST, itwas 38 years. In view of the ruling laid down by the Apex Court, ifthe 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 ofthree years, the upper age limit has to be fixed as 36 years inrespect of OC, 39 years for the OBC and 41 years in respect of SC/STcandidates. Therefore, relaxing the upper age limit by 5 years inrespect of OC candidates and 2 years in respect of OBC candidates,and not relaxing the same age limit in respect of candidatesbelonging to SC/ST candidates amounts to discrimination. When theminimum age limit prescribed for the candidates belonging to OC andOBC candidates is relaxed, the same has to be extended to thecandidates belonging to SC/ST also, by virtue of which action, nobenefit was extended to SC/ST candidates and on the other hand, ithas only benefited the OC and OBC candidates, which decision of theRailway Board is arbitrary and prejudicial to the interest of thecandidates belonging to SC/ST community, thereby offending Articles14 and 16 of the Constitution of India.11. Though the learned Senior Counsel appearing for the RailwayBoard, while arguing the matter, submitted that it is not obligatoryon the part of the Railway Board to provide employment to theCourse Completed Act Apprentices, but a decision is taken to engagethem as Substitutes in Group 'D' vacancies, we are of the view thatwhen once they have taken a decision to engage the trainees asSubstitutes in Group 'D' vacancies, the Railway Board should havefollowed 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 perthe recruitment rules. As we have already held, the act ofrelaxation of the upper age limit only benefits the candidatesbelonging to OC and OBC candidates and not the candidates belongingto SC/ST.12. As the petitioners/Railway Board have taken a policydecision to relax the upper age limit by 5 years uniformly to all thecategories, we hold that the said decision is advantageous to the OCcandidates and disadvantageous to candidates belonging to SC/ST, andtherefore, we direct the petitioners/Railway Board to extend theabove 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 ordersin force at the time of issue of notification, the concession of age-relaxation was provided to the candidates belonging to OBC as well asSC and ST candidates. It is evident from the impugned notificationdated 5-6-2006 that OBC candidates were extended 3 years age-relaxation, and SC/ST candidates were given the age-relaxation of 5years over and above the upper age-limit prescribed for the OpenCategory candidates. The original age criteria fixed for thecandidates belonging to Open Category was 33 years plus 3 years'training period, i.e. 36 years; for the candidates belonging to OtherBackward Class, it was 36 years plus 3 years' training period, i.e.39 years and for the candidates belonging to ScheduledCaste/Scheduled Tribe, it was 38 years plus 3 years' training period,i.e. 41 years. This differential age criterion was prescribed forcandidates belonging to different categories in consonance with theconstitutional mandate enshrined in Articles 14 and 16 of theConstitution of India. When the Board, by the impugned notifications,had taken a decision to fix the upper age limit as 38 years plus theperiod of apprenticeship undergone by the candidates belonging to allthe categories, viz., General, OBC, SC and ST candidates, it shouldhave extended such age-relaxation in consonance with the reservationrules relating to upper age limit. By fixing the uniform upper agelimit at 38 years, plus the period of apprenticeship undergone by thecandidates, to all categories of candidates, the Board had breachedthe constitutional safeguards provided to the reserved categorycandidates in the matter of employment. By the fixation of suchuniform application of the enhanced age-limit, the real beneficiarieswere the candidates belonging to Open Category and OBC and inasmuchas by such enhancement, the upper age limit in respect of OCcandidates was increased from 33 years to 38 years (five years); forOBC candidates, it was from 36 years to 38 years (two years) and nobenefit inured to the SC/ST candidates, as already they have thebenefit of five years age-relaxation vis-a-vis the candidatesbelonging to OC and to some extent OBC. When the SC/ST candidatesare already in enjoyment of the age-relaxation of five years in termsof the reservation rules, the Board, while fixing the upper age limitfor the present recruitment, should have correspondingly effected theupper age-limit based on the category of the candidates. By thebenefit of age-relaxation of five years and three years, thecandidates belonging to OC and to some extent OBC were considered onpar with the candidates belonging to SC/ST, which is in violation ofthe well-settled principles laid down under Articles 16(4A) and 16(4B) of the Constitution of India. The decision of the Board inapplying the upper age limit of 38 years, plus training period, toall class of candidates irrespective of their categorisation as OC,OBC, SC, ST is contrary to law and the well-established rules ofreservation. It is only the candidates belonging to OC have reapedthe 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 yearssince their upper age limit under the original recruitment rules was33 years and the OBC candidates have gained two years since theirupper 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 originalrecruitment rules, their upper age limit was 38 years. 14. Learned senior counsel for the petitioners argued that thedecision taken by the Board to uniformly apply the upper age limit of38 years to all class of candidates is a policy-decision and an one-time benefit. This argument is unsustainable. Whatever be thedecision taken by the Board, either policy-decision or otherwise, itmust satisfy the tests of reasonableness and fairness. If thedecision taken is in breach of the constitutional principles ofequality, fairness and arbitrariness, it is always subject tojudicial review and it cannot be argued the decision being a policydecision and it is outside the purview of judicial review. As wehave held that the decision of the Board in applying the uniformupper age limit to all class of candidates is in violation of Arts.14and 16 of the Constitution and in breach of the constitutionalsafeguards given to the candidates belonging to reserved category andin violation of the well-settled principles of reservation in thematter of employment, the petitioners cannot be allowed to plead thatthe decision so taken was a policy-decision and, therefore, it isoutside the purview of judicial review and that the age-relaxationgiven was one-time exemption. 15. For the reasons stated above, we have no hesitation to holdthat the decision of the Board in giving uniform age relaxation of 38years, plus 3 years training, to all the candidates belonging to OpenCategory, Other Backward Class, Scheduled Caste and Scheduled Tribe,is violative of Arts.14 and 16 of the Constitution of India, byvirtue of which, the benefit of age concession given to the reservedclass of candidates (OBC, SC & ST) had been taken away in matters ofemployment, which is nothing but an infringement of the rightsconferred upon them by the Constitution.16. For the discussions held above, the impugned orders dated4-5-2006 and 5-6-2006 are liable to be quashed and that the Tribunalwas right in doing so. At this juncture, we hasten to point out thattill 18-8-1999 there were appointments from the list of certificate-holders of Course Completed Act Apprentices on the basis of theirseniority, but this selection process was stopped by the RailwayBoard's order dated 19-8-1999. The ban on such recruitment waslifted by the Board's order dated 24-8-2004, whereupon applicationswere invited from the eligible Course Completed Act Apprentices forappointment to the post of Substitute Helpers Grade-II. The Board, https://hcservices.ecourts.gov.in/hcservices/ while inviting applications, should have considered this long periodof 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 3years age-relaxation and that the SC/ST candidates are entitled for 5years age-relaxation in accordance with the rules of reservation, therejection of candidature of the applicants/respondents by the Board,on the ground that they are over aged, is unsustainable. In view ofour above conclusions, the applicants/respondents are within theupper age-limit prescribed for the present recruitment.18. For the reasons stated above, the writ petitions aredismissed with a direction to the Railway Board to consider afreshthe case of the applicants/respondents 2 to 6 herein, and appointthem w.e.f. 31.3.2007 i.e. the date on which the order of theTribunal was made, if they are otherwise eligible. We, however, makeit clear that the applicants/respondents are not entitled to anymonetary benefits on the principle of 'no work, no pay', but theyare entitled to claim all other service benefits such as seniority,continuity of service, promotion, etc. This exercise shall bepunctually be carried as expeditiously as possible, at any rate, notlater than six months from this day. However, in the circumstances ofthe case, there shall be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrargs.To1. 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