THE HONOURABLE MR v. Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12.10.2007CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.TAMILVANANWrit Petition No.24681 of 2004andWPMP.No.30026 of 2004B.Periyaswamy... PetitionerVs.1.Union of India, rep.by the General Manager, Southern Railway, Chennai.2.The Dy.Chief Signal-C Telecommunication Engineer Microwave/Personnel Southern Railway, Chennai-23.3.The Senior District Signal-C, Telecommunication Engineer Microwave/Construction Southern Railway, More Pevilian, Old SIAA Buildings, Chennai.4.The Registrar, Central Administrative Tribunal, Chennai.... Respondents* * *Writ Petition filed under Article 226 of the Constitution ofIndia, praying to issue a Certiorarified Mandamus calling for therecords pertaining to the order of the 4th respondent inO.A.No.220 of 1998, dated 11.8.2004 and the order bearingNo.MW/M/156/97, dated 26.3.1997 of the 2nd respondent and theorder bearing No.MW/SC/CN/97/6, dated 24.4.1997 of the 3rdrespondent and quash the same and consequently direct therespondents to pay the scale of pay of Rs.1200-1800 admissible toMotor Mechanic Grade-II to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ For petitioner: Mr.R.RameshFor R1 to R3: Mr.V.G.Suresh Kumar* * *O R D E RELIPE DHARMA RAO, J.The petitioner was initially engaged as Project CasualLabourer with the respondents on daily wages from 28.10.1980 andhe was given temporary status with effect from 1.1.1984 and wasplaced in the scale of Rs.750-940 applicable to Khalasis . Whenvolunteers were called to attend suitability test for the post ofMotor Mechanic Grade-II, the petitioner volunteered and passedthe trade-test and based on the result of the said trade test, hewas promoted, on ad hoc basis, to the Higher Grade i.e. MotorMechanic Grade-II, with effect from 1.6.1990. Though the saidpost of Motor Mechanic Grade-II was in the pay scale of Rs.1200-1800 applicable to Highly Skilled Artisan Grade-II, since hisscale of pay was not fixed pursuant to his promotion to theHigher Grade, the petitioner filed O.A.No.1135 of 1993 before theTribunal. The Tribunal, taking into consideration the fact thatthe petitioner is performing the duties of Motor Mechanic Grade-II and applying the principle of 'equal pay for equal work', hasallowed the said Original Application, directing the respondentsto pay the pay and allowances in the pay scale of Rs.1200-1800with effect from 1.6.1990 i.e. from the date when he was promotedon ad hoc basis to the post of Motor Mechanic Grade-II, togetherwith all arrears of pay and allowances. The Review Applicationfiled by the respondents is also dismissed by the Tribunal, byits order dated 24.11.1995. Accordingly, the pay of thepetitioner was revised by an order dated 7.12.1995, fixing hisscale in the pay scale of Rs.1200-1800. 2. Thereafter, by the Office Order No.MW/SG/CN/96/3, dated5.2.1996, the petitioner was re-designated as Project CasualLabour 'unskilled' in the scale of Rs.800-1150 with effect from5.2.1996. This order of re-designation was challenged by thepetitioner in O.A.No.181 of 1996 before the Tribunal and theTribunal, taking into consideration the earlier order passed byit in O.A.No.1135 of 1993, has observed that 'the re-designationcould have only been as Project Casual Labour (skilled) and sincethe matter has already been settled in O.A.No.1135 of 1993, therespondents are barred by principles of constructive resjudicata'and with such observations, the Tribunal has allowed the saidOriginal Application filed by the petitioner, by the order dated14.8.1997. https://hcservices.ecourts.gov.in/hcservices/

3. Pending disposal of the said O.A.No.181 of 1996 beforethe Tribunal, by the orders dated 26.3.1997 and 24.4.1997, therespondents have absorbed some staff members, including thepetitioner, as Group 'D' Permanent Khalasi. This action of therespondents was challenged by the petitioner before the Tribunalin O.A.No.220 of 1998. Since the said O.A. was dismissed by theTribunal, the petitioner has filed this writ petition.4. The term 'casual labour' was defined in sub-para (a) ofPara 2001 of the Indian Railway Establishment Manual as follows:"Casual Labour refers to labour whose employment isintermittent, sporadic or extends over short period orcontinued from one work to another. Labour of thiskind is normally recruited from the nearest availablesource. They are not ordinarily like to transfer. Theconditions applicable to permanent and temporary staffdo not apply to casual labour.a. Casual Labour (Open Line):- Casual Labour are primarily engaged to supplement theregular staff in work of seasonal or sporadic nature,which arises in the day to day working of the Railwaysystem. This includes labour requires for unloadingand loading of materials, special repair andmaintenance of track and other structures, supplyingdrinking water to passengers during summer months,(recoupment of man-days lost on account ofabsenteeism), patrolling of tracks etc. Casual Labourso engaged in the operation and maintenance of railwaysystem is referred to as open line casual labour, asdistinct from Project Casual Labour, described in Para(b) infra.b. Casual Labour (Project): Casual Labour are alsoengaged on Railway for execution of railway projects,such as new lines, doubling, conversion, constructionof building, track renewals, route relay interlocking,railway electrification, setting up of new units etc.Casual Labour so engaged are referred to as 'ProjectCasual Labour'."5. We are able to understand that granting temporary statusto project casual labourers was introduced in the year 1986 withretrospective effect from 1.1.1981 on the basis of the judgmentof the Honourable Supreme Court of India in INDER PAL YADAV ANDOTHERS vs. UNION OF INDIA AND OTHERS [(1985) 2 SCC 648] and therespondents have taken the decision in the Railway Board's LetterNo.E(NG) II/78/CL/12, dated 14.12.1980, granting temporary statusto Project Casual Labourers with effect from 1.1.1981 andreckoning 50% of their temporary status service from 1.1.1981 https://hcservices.ecourts.gov.in/hcservices/ upto the date of regularisation as qualifying service forpensionary benefits.6. In UOI vs. K.G.RADHAKRISHNA PANICKER AND OTHERS [1998 (5)SCC 11[ the Honourable Apex has held that 'the benefit of pastservice as casual labourers will apply only to casual labourersworking in open line and not to casual labourers working on aproject'. 7. As could be seen from the impugned orders passed by therespondents, the petitioner was absorbed as Group 'D' PermanentKhalasi. But, the petitioner is challenging the same on theground that at present he is working as Motor Mechanic Grade-IIand as per the earlier orders of the Tribunal and therefore he isentitled to the pay scale of Rs.1200-1800. There is no disputeregarding the fact that the petitioner was only a Casual Labour(Project), which is temporary in nature and liable to bedismissed from engagement once the Project is over. Furthermore, even while the petitioner was promoted on ad hoc basis tothe higher grade viz. Motor Mechanic Grade-II, by the OfficerNo.MW/OB/CN/90/43, dated 16.5.1990, it has been made clear to himthat 'the benefits granted are purely as temporary measure andwill not confer any claim with regard to seniority, protection ofpay, retention etc. at the time of empanelment/permanentabsorption.'8. The learned counsel for the petitioner strenuously arguedthat the status and pay of the petitioner is protected by way ofthe earlier orders passed by the Tribunal, which have becomefinal and the respondents are trying to nullify such orders ofthe Court by administrative orders. In support of hiscontention, he relied on a judgment of the Honourable Apex Courtin STATE OF HARYANA AND OTHERS vs. RAM KUMAR AND OTHERS [(2002) 9SCC 703], wherein it has been held that 'the administrativeorders cannot overturn a judicial order'.9. There is no dispute regarding the above said propositionheld by the Honourable Apex Court. In the case on hand, on boththe earlier occasions, the disputes arose when the petitioner wasnot paid his salary as per his post viz. Motor Mechanic Grade-IIbut was paid only the scale of Khalasi and when the petitionerwas re-designated as Project Casual Labour 'unskilled' in thescale of Rs.800-1150 with effect from 5.2.1996. While on thefirst occasion, the Tribunal considering the principle of 'equalpay for equal work' has ordered to fix his pay accordingly, onthe second occasion, it has opined that the petitioner shouldhave been re-designated as Project Casual Labour 'Skilled',instead of 'unskilled'. But, nowhere it has been held that thepetitioner should not be granted a permanent stature like the one https://hcservices.ecourts.gov.in/hcservices/ granted by virtue of the impugned orders, absorbing him as Group'D' Permanent Khalasi. As has already been adverted to supra,the position held by the petitioner in the Project wing istemporary in nature as against a permanent vacancy, now conferredon him by the respondents. 10. In this backdrop, the question that arises forconsideration is 'whether the promotional post enjoyed by thepetitioner in the Project wing would vest any right on him whilebeing absorbed as a permanent employee?' Such a question wasconsidered and well answered by the Honourable Apex Court in theabove said judgment of the Apex Court in INDER PAL YADAV ANDOTHERS vs. UNION OF INDIA AND OTHERS [(1985) 2 SCC 648] asfollows:"From the documents on record, it is clear that thepetitioners have been regularised and continue to holdthe substantive posts of khalasi in Group D categoryin the open line division of the respondents. Theirprovisional local promotion in the projects cannot betaken as having vested in them a right either tocontinue in the project or to resist reversion back tothe cadre, or to enjoy a higher promotion merely on thebasis of locally provisional promotion granted to themin the project in which they had been employed as aparticular point of time. No rules have been pointedout to us to justify this claim on the part of thepetitioners."11. In view of the said categorical finding of theHonourable Apex Court, the petitioner cannot claim any rightvested on him by virtue of his ad hoc promotion to the cadre ofMechanical Grade-II while he was a Casual Labour (Project), whenhe is being absorbed into a post. 12. The petitioner claims that even today, he is functioningonly as Mechanical Grade-II, but his pay has been reduced. Ifsuch is the situation, the respondents are directed to pay thescale of pay of the post of Mechanical Grade-II till thepetitioner actually served in that capacity and fix his pay inthe cadre of Permanent Khalasi on the date when he actually tookcharge as Khalasi, pursuant to the impugned orders issued by therespondents and settle all the amount, due to him, if any, withinsix weeks from the date of receipt of a copy of this order.13. Since the earlier orders passed by the Tribunal areunder different circumstances, as has been explained supra, thepetitioner cannot claim that the same will operate as resjudicataon the respondents, since now he is in a better position as Group'D' Permanent Khalasi than the earlier one i.e. a Casual Labour https://hcservices.ecourts.gov.in/hcservices/ (Project), even though he enjoyed promotion in the said cadre,since being only an ad hoc promotion, which does not confer anyright on him.14. The Tribunal has analysed all the facts andcircumstances of the case in their proper perspective and havingapplied the correct principle of law and following the dictumlaid down by the Honourable Apex Court in INDERPAL YADAV ANDOTHERS vs. UNION OF INDIA AND OTHERS [(1985) 2 SCC 648], hasdismissed the claim of the petitioner in which, for all the abovediscussions, we are unable to find any illegality or perversityin approach thus calling for our interference. In the result, this Writ Petition is dismissed confirmingthe order passed by the Tribunal. No costs. Consequently,W.P.M.P.No.30026 of 2004 is also dismissed.Rao Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The General Manager, Southern Railway, Chennai.2.The Dy.Chief Signal-C Telecommunication Engineer Microwave/Personnel Southern Railway, Chennai-23.3.The Senior District Signal-C, Telecommunication Engineer Microwave/Construction Southern Railway, More Pevilian, Old SIAA Buildings, Chennai. https://hcservices.ecourts.gov.in/hcservices/

4.The Registrar, Central Administrative Tribunal, Chennai. + 1 cc to MR. R. Ramesh, Advocate SR No. 63624/07SJ(CO)SR/26.10.2007 Order in W.P.No.24681 of 2004