Judgment:
1. Four applicants have filed this OA seeking directions to the official respondents to cancei/set aside or quash the impugned order of readiness and call letters dated 16.2.2001 and 5.3.2001, Annexures 'A/5' and 'A/6' and also to call the applicants for the post of Technicians (Electrical Gr. B).
2. The short facts of the case are these. The applicants are Electrical Khalasi in the scale of Rs. 2550-3200/- under Senior Section Engineer/Diesel/Baliaghata in the Sealdah Division of the Eastern Railway. They are Matriculate and have passed the relevant Fitter Trade and obtained NCVT certificate under the Apprenticeship Act, 1961. The promotional channel for the applicants is the post of Electrical Fitter which is now known as Technician (Electrical Gr. III) in the scale commencing from Rs. 3050/-.
The Railway Board issued circulars dated 28.9.98 and dated 28.1.2000, wherein it was stated that the minimum educational qualification for direct recruitment to the post of Skilled Artisans (including that of Diesel/Electrical Loco/MMG maintenance trades) in scale of Rs. 3050-4590/- will be Matriculation/Apprenticeship passed under the Apprenticeship Act in relevant trade/diploma, with ITI passed in relevant trade from open market with educational qualification as Matriculate. The posts are distributed in three scales i.e., Rs. 2550-3200/-, Rs. 2650-4000 and Rs. 3050-4590/-.
The applicants' case is that having completed the course of relevant trade of Fitter Grades they are eligible for promotion to the higher scale and those who are Welders trained cannot be treated alike the applicants. However, the official respondents issued order of readiness dated 15.12.2001 which is in clear violation of the Railway Board's circular dated 28.9.98 read with dated 28.1.2000. It is averred that the official respondents have deprived the applicants to appear against 60% quota in terms of the circular dated 28.9.98 and instead the Welders have been called for the posts of Technical Electrical Gr. III, which is illegal, arbitrary and malafide.
3. In the reply, the official respondents have averred that the applicants are in the unskilled Grade of Rs. 2550-3200/- and their avenue of promotion is the next grade of Rs. 2650-4000/-. It has been stated that the applicants are much junior to the candidates who have been called by virtue of their seniority, and they have no claim against 60% quota. The further case of the respondents is that the applicants have been given chance against 20% quota available as per para 5(ii) of the RBE circular 228/98.
4. In the rejoinder, the applicants have reiterated the facts stated in the OA. It has been further stated that in the circular RBE No. 222/98, there was no stipulation that against 60% direct recruitment quota, employees of the higher scale only will be called.
5. We have heard the learned Counsel for the parties and perused the documents placed on record.
6. Mr. Mukherjee, learned Counsel for the applicants contended that the applicants cannot be deprived from participating in the trade test for the 60% quota vacancies and the respondent authorities have erred in calling them for 20% quota vacancies only.
7. Mrs. Banerjee, learned Counsel for the official respondents, on the other hand, contended that the applicants are in the lower grade and therefore, their case falls under para 5(iii) of the RBE Circular No.222/98 and they are not eligible for the trade test held against 60% quota vacancies.
8. Mr. Sarkar, learned Counsel for the private respondents adopted the arguments advanced by Mrs. Banerjee.
10. It is not in dispute that the applicants are in the lower pay scale i.e., 2550-3200/-and the persons who have been called by the respondents for appearing in the relevant trade test against 60% quota vacancies are in the grade of Rs. 2650-4000/-.
11. The question for consideration is whether on the ground that the applicants are in the lower grade, they could be deprived from appearing in the trade test against 60% quota vacancies.
12. The matter is to be decided in the light of the RBE No. 222/98.
Keeping in view the arguments advanced on behalf of the parties, it is profitable to reproduce the RBE No. 222/98 below:-- "The recommendation of the Fifth Central Pay Commission, contained in para 54.23 of their Report, on the subject of recruitment of candidates with Apprenticeship pass/Matriculation with ITI as desirable qualification in Diesel/electric/EMU sheds in the grade Rs. 950-1500 (Rs. 3050-4590) has been under consideration of the Board. After examining all aspects, the Ministry of Railway, with the approval of the President, have decided as follows.
2. In terms of Railway Board's letter No. E(NG)II/95/RR-I/8 dated 19.9.1995 (Bahri's RBO 1995, P. 95), the minimum qualification for direct recruitment to the posts of Artisan Khalasis in Diesel/Electric Loco/EMU maintenance trades is matriculation Apprenticeship pass under Apprentices Act in relevant Trades/Diploma in Electrical Mechanical/Electronic Engineering, with ITI pass in relevant trade being an additional desirable qualification in the case of matriculates. These Group 'D' posts are distributed in the ratio of 20% in grade Rs. 750-940 (2550-3200) and 80% in the grade of Rs. 800-1150 (2650-4000) respectively. While 50% of the posts in these two grades as on 1.9.98 will be placed in the grade of Rs.950-1500/(Rs. 3050-4590), 10% of the posts in these two grades as on 1.9.98, will be surrendered in the grade of Rs. 750-940.
Accordingly, the revised percentage distribution of the Group 'D' posts existing on 1.9.98 in the Diesel/Electric Loco/EMU maintenance trades will be as indicated below : 3. The posts in the grade Rs. 750-940 (Rs. 2550-3200) to the extent lying vacant, shall stand surrendered with immediate effect and the balance in due course as per serial number 4 in the table above.
These balance posts shall not be adjusted against any additional creation and have to be credited to the surplus staff bank and cannot be used as matching surrender for creation of additional posts.
4. The additional posts in grade Rs. 3050-4590 in terms of these orders will be added to the skilled grade of Rs. 950-1500 (Rs. 3050-4590). However, there will be no consequent increase in the number of posts in the grades higher than Rs. 3050-4590. In other words, the skilled Artisan cadre will not get automatically restructured in accordance with the prescribed percentages with enlarged base in the grade Rs. 3050-4590.
5. In pursuance to the above changes, the revised methodology for filling up the posts of skilled Artisans in grade Rs. 3050-4590 in diesel/electric/EMU maintenance trades will be as under: (i) 60% by direct recruitment from successful course completed Act Apprentices, ITI pass candidates and matriculates from the open market.
(ii) 20% from serving semi-skilled and unskilled staff with three years of regular service with educational qualification as laid down in the Apprentice Act; as outlined in Railway Board's letter No. E(NG)I/96/ PM7/56 dated 2.2.1998; and (iii) 20% by promotion of staff in the lower grade as per prescribed procedure.
6. With a view to give the benefit of the grade Rs. 3050-4590 to the existing staff with the prescribed qualification stated in para 5(i) above in a reasonable time, the following procedure of filling up the posts in grade Rs. 3050-4590 is laid down for the present: (i) The additional posts in the grade Rs. 3050-4590 becoming available in terms of these orders will be filled up by the employees possessing the prescribed qualification indicated in para 5(i) above and who arc on roll as on 1.9.1998, on passing the prescribed trade test.
(ii) The 60% vacancies earmarked for direct recruitment which accrue from 2.9.1998 on wards may be filled up from serving employees on roll as on 1.9.1998 and who possess the prescribed qualifications as in para 5(i) above as outlined in Railway Board's letter No. E(NG)I/ 96/PM7/56 dated 2.2.1998 for a period upto 31.8.2002 or till such time as no such employees eligible as on 1.9.1998, remains awaiting placement in the grade, whichever is earlier.
7. With the coming into effect of the revised procedure for filling up posts in the grade Rs. 3050-4590, direct recruitment in the grade Rs. 2550-3200 will be from amongst persons with 8th class pass qualification. The posts in the grade Rs. 2650-4000 will continue to be filled from amongst staff in grade Rs. 2550-3200 as per the existing procedure.
13. This order was issued in continuation of the Railway Board's letter dated 19.9.95 wherein the minimum qualification for direct recruitment to the post of Artisan and Khalasi in Diesel/Electrical trade was provided. The minimum qualification provided is Matriculation/Apprenticeship passed under Apprenticeship Act in relevant trade/Diploma in Electrical Engineering. For the Matriculate it was desirable that they will also hold ITI passed certificate in the relevant trade.
Para 5 of the order No. 222/98 provides methodology for filling up the post of Skilled Artisan in Diesel/Electrical maintenance trade. 60% vacancies are to be filled by direct recruitment, 20% from serving semi-skilled and unskilled with three years regular service with educational qualification laid down in Apprenticeship Act and 20% by promotion of staff in the lower grade as per prescribed procedure.
14. What the Railway Board did is that the direct recruitment was deferred for some period. It has been provided at para 6 of the circular that 60% earmarked vacancies for direct recruitment shall be filled up from existing staff on their passing the prescribed trade test.
15. The relevant para 6(ii) shows that the 60% vacancies earmarked for direct recruitment which accrued as on 2.9.98 shall be filled up from serving employees on roll as on 1.9.88. The second requirement is that such serving employees must possess the prescribed qualification.
At para 6 it is nowhere stated that only such serving employees will be eligible to compete for 60% vacancies, who are senior or who are in a particular pay scale. Words used at (ii) of para 6 are "serving employees on roll as on 1.9.1998." In our opinion, the words indicate that all the serving employees who possess the required qualification as per para 5(i) are entitled to be considered for the 60% vacancies, provided they were on roll as on 1.9.1998.
16. It may be pointed out that those vacancies have been directed to be tilled up from the serving employees in place of the direct recruitment. In other words, instead of recruitment from the open market the Railway Board has considered the recruitment of 60% vacancies from the serving employees. When there is no mention at sub-para (ii) of para 6 that serving employees in a particular grade are eligible for the vacancies, in our opinion, the applicants, who are on the lower grade, could not be deprived of the opportunity of appearing in the Trade Test.
17. The emphasis of the learned Counsel for the official respondents was that the lower grade staff can avail of promotion against 20% quota only as per para 5(iii). This argument is not tenable. Had there been direct recruitment of 60%, as is stated at para5(i) then it could be stated that the lower grade staff was entitled to promotion against 20% vacancies only, but when the Railway Board has converted the vacancies of direct recruitment for the serving employees, the applicants, may be in the lower grade, could not be deprived of the opportunity of taking part in the trade test held for promotion to these 60% vacancies. Of course, it is necessary that they possess the requisite educational qualification as provided at para 5(i).
18. The question of seniority or juniority of the staff cannot be said to be relevant consideration to appear in the trade test for 60% vacancies because there is no indication at para 6 to the effect that only senior serving employees of particular pay scales would be eligible for 60% vacancies.
19. It is significant to point out that the arrangement is only upto 31.8.2000. Therefore, whatever vacancies are available, the successful candidates on the basis of the trade test will get the promotion. It goes without saying that if someone has cleared the relevant trade test, yet he has no right of promotion to the higher grade if the vacancy does not exist. Needless to say, that after the trade test a list of successful candidates shall be prepared keeping in view their existing seniority and senior persons will get the opportunity of appointment first.
20. Learned Counsel for the applicant contended that the private respondents who have been permitted to take up the test are not possessing the necessary qualifications, as prescribed at para 5(i). We do not propose to enter into this controversy. We have laid down the principle that whosoever serving employee as on 1.9.98 possessed the qualification as prescribed at para 5(i) shall be eligible to appear in the trade test for the Skilled Artisan grade of Rs. 3050-4590/-. If any of the private respondents who does not possess the said qualification has been allowed in the said trade test, he cannot be empanelled for promotion to the higher grade.
21. One more important contention of Mrs. Banerjee against the claim of the applicants was that they have already appeared in the trade test held for 20% quota vacancies and therefore, they are estopped from challenging the order dated 15.2.2001, Annexure 'A/5'. She has placed reliance on the case of Suneeta Aggarwal v. State of Haryana and Ors.
2000 SCC (L&S) 313=2000(3) SLJ 30 (SC).
22. We have read the observations of their Lordships. That was the case where a post of Hindi Lecturer was advertised by the Management of Hindu Girls' College. The Selection Committee recommended the name of Suneeta Aggarwal, but the Vice-Chancellor did not approve the same and he directed the post to the readvertised. Accordingly, the post was readvertised and Suneeta Aggarwal again applied for the post and appeared before the Selection Committee without any kind of protest. In these circumstances, it was held that Suneeta Aggarwal was estopped by her conduct from challenging the earlier order of the Vice-Chancellor rejecting her selection by the Selection Committee. It may also be pointed out that in the writ petition Suneeta Aggarwal had not disclosed this important fact.
23. In the instant case the applicants were asked to appear in the test for 20% quota vacancies. Their cases was that they ought to have called for 60% quota vacancies. The applicants filed this OA challenging the respondents' action in not calling upon them to appear for 60% vacancies and at the same time they appeared in the test held for 20% vacancies. Evidently there were different posts of different pay scales. The applicants could not take the risk of not appearing in the test for 20% vacancies. It is different thing that they also wanted to appear in the trade test for the 60% vacancies. In our opinion, on the basis of their appearance for 20% quota vacancies, while challenging the action of the respondents depriving them to appear for 60% vacancies, they cannot be estopped from challenging the action of the respondents. In our humble opinion, the case of Suneeta Aggarwal (supra) is clearly distinguishable. Had the applicants not appeared for 20% vacancies, they would have been deprived of promotion against the 20% quota vacancies also. In the peculiar facts and circumstances, the principle of estoppel cannot be applied.
24. Mrs. Banerjee also relied on a decision of Delhi High Court said to be reported as 2001 LAB IC 2597, in the written arguments. However, there is no case at the relevant page of the Journal and therefore, we are not in a position to consider the said case.
25. The further contention of Mrs. Banerjee was that the Court should not interfere in the policy matter of the Railway Board. It is not the question of interference with the policy matter of the Railway Board; it is the question of interpretation of the order issued by the Railway Board. We have hereinbefore interpreted that the order did not imply that only such serving employees were eligible to be considered for the trade test for 60% vacancies who were in the higher Grade. Therefore, the applicants, if they were otherwise eligible, could not be deprived from appearing in the trade test for 60% vacancies on the basis of their pay scale.
26. For the reasons stated above, this OA deserves to be allowed and it is allowed. The respondents are directed to conduct the trade test for 60% vacancies in respect of the applicants also and thereafter prepare a panel of the selected candidates on the basis of their seniority along with the candidates, who are successful in the trade test already held. This exercise be completed within a period of three months from the date of communication of this order.