M. Malarvannan v. Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 10..6..2008Coram:The Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW. P. No. 23578 of 2003andW.P.M.P. No. 29138 of 2003M. Malarvannan... Petitioner-vs- 1.Union of IndiaThrough the General ManagerIntegral Coach FactoryMinistry of RailwaysChennai – 382.The Chief Personnel OfficerIntegral Coach FactoryMinistry of Railways,Chennai3.The Chief Medical SuperintendentICF HospitalChennai4.Union of IndiaRep. by the SecretaryRailway BoardRaj Bhavan, New Delhi5.The Central Administrative TribunalRep. by its RegistrarMadras High Court CompoundChennai ... RespondentsPetition under Article 226 of the Constitution of Indiapraying to issue a writ of Certiorarified Mandamus calling forthe records relating to O.A. No. 1044 of 2001 dated 24.10.2002passed by the fifth respondent and order No. Nil dated 04.4.2001passed by fourth respondent order No. O.O. No. PB/SIB/O.A. No.1475/2000 dated 25.4.2001 passed by the second respondent, OrderNo. PB/SIB/1592 dated 27.9.2001 passed by the first respondent https://hcservices.ecourts.gov.in/hcservices/ Order No. E (NG) II/99/SB-SR/29 dated 21.11.2001 passed by thefourth respondent, quash the same and direct the first respondentto reinstate the petitioner inservice and regularise his serviceas Radiographer Gr. III with all consequential benefits includingarrears of pay and allowances in the said post.For Petitioner : Mr. P.V. S. Giridhar AssociatesFor Respondents 1-4 : Mr. V. Radhakrishnan, SC and Standing Counsel for RailwaysORDERK. CHANDRU, J.Heard the arguments of Mr. P.V.S. Giridhar, learned counselappearing for the petitioner and Mr. V. Radhakrishnan, learnedSenior Standing Counsel appearing for the Railways and perusedthe records.2.The petitioner, an unsuccessful applicant before theCentral Administrative Tribunal (CAT) in O.A. No. 1044 of 2001has filed the present writ petition. After seeking to set asidethe order dated 24.10.2002, confirming the order dated 04.4.2001passed by the fourth respondent Union of India, he seeks forreinstatement and regularisation in the post of Radiographer -III with all consequential benefits.3.The brief facts leading to the termination of thepetitioner are as follows:-3.1.On 23.7.1993, the post of Radiographer became vacant inthe Hospital at Integral Coach Factory (ICF) due to the death ofthe permanent. It is stated that the Southern Railway is thecadre controlling authority to place indent with the RailwayRecruitment Board (RRB) for the said post. On 24.11.1993, thepetitioner was engaged as a substitute Radiographer for a periodof three months and subsequently, it was extended by anotherthree months up to 26.5.1994. By an order dated 12.5.1994, thepetitioner was granted temporary status. But by every order ofextention, he was informed that it will not give him the right ofpermanent absorption. 3.2.Under paragraph 164(2) of the Indian RailwaysEstablishment Manuel (for short, 'IREM'), the qualificationprescribed for the post of Radiographer is a Matriculation withPhysics and Chemistry and also a Diploma from recognisedInstitute. One experience in routine work in X-Ray andElectrographic Branch is a desirable condition and Science https://hcservices.ecourts.gov.in/hcservices/ Graduate with Diploma in Ragiography will be given preference.Subsequently, the said qualification was amended by the RailwayBoard by proceedings dated 23.6.1994 and the qualification forthe post of Radiographer was prescribed as follows:-"Qualification for direct recruitment areMatriculation with Physics and Chemistry andDiploma in Radiography (2 years course) fromrecognized institute. Science Graduates withDiploma in Radiography (2 years course) will bepreferred".3.3.Between 1994 and 1996, the petitioner had applied forrecruitment to the post of Radiographer pursuant to thenotifications issued for vacancies which arose atThiruvananthapuram, Bengaluru and Mumbai. His applications wereentertained since the notifications calling for applications werepursuant to the indent placed on RRB before the amendment to theRR. The following were the result of his attempt to getpermanent employment:-Sl.No.Name of the RailwayRecruitment BoardNotificationReferenceResult of Selection1RRB/Trivandrum'1/94Not successful2RRB/Bangalore'3/94Not successful3RRB/Bangalore'6/94Not successful4RRB/Mumbai'1/95Not successful3.4.However, when notification for the vacancy at Chennaiwas issued by Notification No. 2/97-98 calling for applications,it was noticed that the petitioner did not have the qualificationas per the amended Rule. But then he filed an O.A. No. 971 /98 and sought for a direction to the RRB to sit for theexamination. The CAT, by its order dated 12.11.1998, directedthe RRB to permit the petitioner to sit for the written test andfor attending the viva-voce. But it was directed that theresults may not be published pending the O.A. The petitionerattended the test and interview but was not successful.Therefore, his O.A. was closed as infructuous. 3.5.Thereafter, the petitioner sent a representation dated07.11.2000 and sought for regularisation of his services. Thepetitioner was informed by the respondents that his servicescannot be regularised on the basis of his past service. It wasstated that he was allowed to continue till such time, a regularcandidate is appointed to the said post. The CAT, by its orderdate 20.12.2000, directed the Ministry of Railways to consider https://hcservices.ecourts.gov.in/hcservices/ his representation and till the disposal of the representationdirected status quo to be maintained. 4.Pursuant to the said direction, the RRB, by its orderdated 04.4.2001, rejected his case for regularisation which wasalso communicated by the Senior Personnel Officer with a coveringletter dated 25.4.2001. It is stated by the petitioner that theChief Personnel Officer, ICF, by his letter dated 16.6.2001,recommended the regularisation of his services on the ground thathe had put in 7½ years of service. The RRB clearly informedthat the said request cannot be considered in the light of therule position which was already indicated to the ICF.Challenging these communications, the present writ petition hasbeen filed.5.Mr. P.V.S. Giridhar, learned counsel for the petitionercontended that the petitioner had put in 7-1/2 years of serviceand at the time of initial appointment, as a substitutestenographer, he had the necessary qualification. He alsostated that he was working against a permanent post in the ICFHospital and the Chief Personnel Officer had also recommended hiscase for regularization. He further submitted that he has beengiven the status of temporary Railway servant and as perparagraph 5.5. of the consolidated circular dated 29.01.1991, heneed not undergo a regular selection. It is enough if ascreening committee goes through the petitioner's credentials andrecommend his case for absorption. He also submitted that theamended Rules will not apply to the petitioner's case. 6.With this factual matrix, the learned counsel relied onthe decision of the Supreme Court in Y.V. Rangaiah v.J.Sreenivasa Rao [1983 (3) SCC 284] and more particularly, reliedon the following passage found in paragraph 9 of the saidjudgment:- Para 9:".... The vacancies which occurred prior to theamended rules would be governed by the old rulesand not by the amended rules. It is admitted bycounsel for both the parties that henceforthpromotion to the post of Sub-Registrar Grade IIwill be according to the new rules on the zonalbasis and not on the State-wide basis and,therefore, there was no question of challengingthe new rules. But the question is of filling thevacancies that occurred prior to the amendedrules. We have not the slightest doubt that theposts which fell vacant prior to the amended ruleswould be governed by the old rules and not by thenew rules." https://hcservices.ecourts.gov.in/hcservices/

7.He further submitted that the reasoning in Rangaiah'scase (cited supra) came to be approved and followed in B.L.Guptaand another v. M.C.D. [1998 (9) SCC 223]. 8.The said reasoning was also referred to and followed inState of Rajasthan v. R.Dayal and others [1997 (10) SCC 419]and the learned counsel referred to the following passage foundin paragraph 8 of the judgment:-Para 8:".... This Court has specifically laid that thevacancies which occurred prior to the amendment ofthe Rules would be governed by the original Rulesand not by the amended Rules. Accordingly, thisCourt had held that the posts which fell vacantprior to the amendment of the Rules would begoverned by the original Rules and not the amendedRules. As a necessary corollary, the vacanciesthat arose subsequent to the amendment of theRules are required to be filled in in accordancewith the law existing as on the date when thevacancies arose. Undoubtedly, the selection cameto be made prior to the amendment of the Rules inaccordance with law then existing since theanticipated vacancies also must have been takeninto consideration in the light of Rule 9 of theRules. But after the amended Rules came intoforce, necessarily the amended Rules would berequired to be applied for and given effect to.But, unfortunately, that has not been done in thepresent case. The two courses are open to theGovernment or the appointing authority,..." 9.He further referred to the following passage found inparagraph 11 of the judgment of the Supreme Court in Vice-Chancellor, University of Allahabad v. Anand Prakash Mishra (Dr)[1997 (10) SCC 264]:-Para 11:"It is, thus, settled law that the process ofselection must be in accordance with the lawexisting as on the date of selection. Keeping acandidate in the waiting list does not confer anyvested right in his favour much less indefeasibleright...."10.With reference to the argument of the respondentRailways basing upon State of Karnataka v. Umadevi (3) [2006(4) SCC 1], the learned counsel heavily relied upon the https://hcservices.ecourts.gov.in/hcservices/ subsequent judgment of the Supreme Court in U.P. StateElectricity Board v. Pooran Chandra Pandey & others [2007 AIRSCW 6904]. He further placed reliance upon the judgment of aDivision Bench of this Court in M. Gnanasekar v. M.Rameshand others made in W.P. No. 36731 of 2006 and another case,disposed on 11.6.2007. 11.Per contra, Mr. V. Radhakrishnan, learned SeniorCounsel submitted that admittedly, the petitioner does notpossess the amended qualification. The consolidated circularissued by the Railways regarding absorption of ad hoc employeesin paragraph 3.2. clearly states that the substitutes will haveto vacate their posts when a regular selection is made by theRailways. He also submitted that the petitioner pursuant to thenotification in 2/97-98 issued by the RRB, applied for the postat Chennai and finding that he was not qualified, moved the CATand with an interim order, he wrote his examination but was notsuccessful. But, he, however, allowed the CAT to dismiss theO.A. as infructuous without arguing the original cause of actionviz., that the qualification prescribed will not apply to hiscase. Having allowed the said order to become final, he isestopped from contending otherwise. The qualificationprescribed will not apply with reference to any vacancy but onlywhen it is notified. In the present case, when the vacancy wasnotified, he was found not qualified.12.With reference to the plea of regularization, hesubmitted that the regularization is not and cannot be a mode ofrecruitment and appointment made contrary to the prescribedqualification will be illegal and such illegality cannot be curedby taking recourse to regularization. In this context, hereferred to the following two decisions and took this Court tothe various passages indicated hereunder:-(i)A. Umarani v. Registrar of Co-operative Societies[2004 (7) SCC 112] (Paragraphs 39, 43 and 45)(ii)State of Karnataka v. Uma Devi (3) [2006 (4) SCC 1](Paragraphs 43, 47, 49 and 52)13.He further submitted that the regularization can bedone only in accordance with the Rules and not de hors the Rules.He referred to the decision in Indian Drugs & PharmaceuticalsLtd. v. Workmen [2007 (1) SCC 408] and placed reliance uponparagraph 34 of the said judgment:-Para 34:"Thus, it is well settled that there is no rightvested in any daily-wager to seek regularisation.Regularisation can only be done in accordance withthe rules and not dehors the rules. InE.Ramakrishnan v. State of Kerala this Court heldthat there can be no regularisation dehors therules. The same view was taken in Kishore (Dr.) v. https://hcservices.ecourts.gov.in/hcservices/ State of Maharashtra, Union of India v. BishamberDutt. The direction issued by the ServicesTribunal for regularising the services of personswho had not been appointed on regular basis inaccordance with the rules was set aside althoughthe petitioner had been working regularly for along time."14.After giving our anxious consideration to the rivalsubmissions made at the bar, we are of the view that the order ofthe CAT impugned in this writ petition does not call for anyinterference. 15.The CAT framed four issues and gave finding on each ofthe four issues against the petitioner. The CAT was correct inholding that the qualification for the post will be the date ofnotification calling for applications and not at the time whenthe alleged vacancy arose. In the present case, by the timewhen the notification was issued, the amended Rules have comeinto force. The CAT also rejected the case of legitimateexpectation put forth by the petitioner on the basis of length ofad hoc service and categorically stated that in the absence ofthe petitioner being qualified to hold the post and also gettingselected in terms of the RR, any direction given will beperpetuating an illegal act. The CAT also rejected the plea forgranting relaxation in terms of Rule 114 of the IREM and alsoheld that getting temporary status of a Railway servant will notautomatically entitle him to get absorption as can be seen fromthe relevant circulars issued by the Railways. Though thepetitioner had gone before the CAT and got an interim order towrite the examination by challenging the prescription of newqualification, but, however, allowed the O.A. to be dismissedthereby putting a seal of finality to the said issue. 16.Even otherwise, the legal precedents relied on by thelearned counsel for the petitioner do not support the case of thepetitioner. The decisions of the Supreme Court relied on by therespondent Railways with reference to regularization has a directapplication to the case on hand and those decisions cannot beexplained away by referring to certain stray passages found inthe subsequent pronouncements of the Supreme Court. Even thereference made to the Division Bench of this Court to theunreported decision in M.Gnanasekar's case (cited supra) will nothelp the case of the petitioner because the challenge madetherein was to the State action in conducting a limitedcompetitive examination in consultation with the TNPSC forabsorbing certain candidates who were initially appointed on adhoc basis. It was in that background, the Division Bench hadreferred to Rule 48 as an enabling provision to hold such aselection process. https://hcservices.ecourts.gov.in/hcservices/

17.We do not find any substance in the writ petition andit is devoid of merits and accordingly, it will stand dismissed.However, there will be no order as to costs. ConnectedMiscellaneous Petition will stand closed.GriSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The General ManagerIntegral Coach FactoryMinistry of RailwaysChennai – 382.The Chief Personnel OfficerIntegral Coach FactoryMinistry of RailwaysChennai3.The Chief Medical SuperintendentICF HospitalChennai4.The SecretaryRailway BoardRaj BhavanNew Delhi5.The RegistrarCentral Administrative TribunalMadras High Court CompoundChennai+ 1 cc to Mr. V. Radhakrishnan, Advocate SR No. 28255 Order in W. P. No. 23578 of 2003SSV(CO)SR/13.6.2008