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PETITIONER: MITRANGSHU ROY CHOUDHARY & ORS.

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT:       06/04/1999

BENCH: Syed Shah Mohammed Quadri, S.N.Phukan

JUDGMENT:

     S.N.Phukan,J.

     The  present  appeal is directed against the order  of the  Central  Administrative  Tribunal,  Guwahati  Bench  in Original  Application  No.23  of   1991.   By  the  impugned judgment  the Tribunal rejected the Original Application  of the  appellants for appointment to Group C posts instead  of Group  D  posts under Divisional Railway  Manager,  Lumding, Assam.   We  may  state here that earlier Group C  post  was designated as Class III Post and Group D as Class IV post.

     The  facts of the case are as follows :- All the  five appellants  were  sponsored by the Employment  Exchange  for recruitment  of  Trade  Apprentices  in  Carriage  &   Wagon Department  of N.F.  Railway in Lumding Division along  with others.   They  were  selected as  Trade  Apprentices  under Apprentice  Act, 1961 and successfully completed training in System  Technical  School,  New Bonagaigaon under  the  N.F. Railways.   The  appellants  were  interviewed  against  25% vacancies  of  Fitter in Group C category for  Lumding  Loco Repairing  Shop  and  were selected against  the  vacancies. They  also  joined  as Fitter Grade III but  on  7.6.90  the appointments  were cancelled and instead they were appointed to  the  post of Carriage Khalasi which is a Group  D  post. Their   appeal   being  rejected,    they   approached   the Administrative  Tribunal where their prayer was rejected  by the  impugned  judgment.   We  may state here  that  by  the impugned judgment, the Administrative Tribunal also disposed of  Original Application filed by 20 applicants.  They  also completed  training as Apprentices but instead of appointing them  in Group D post, they were appointed in Group C  post. Their  prayer  for  appointment  in Group D  post  was  also rejected but they are not before us.

     According  to respondents, the present appellants have no  legal right as they have accepted appointment offered to them  in  Group  D post.  They are stopped from  making  any grievance  against the same.  As the Railway  Administration has  acted consistently with the then prevailing policy, the decision  could not be interfered with by the Tribunal.   It has further been pleaded on behalf of the respondents before the  Tribunal  that as the appointment of the appellants  by

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the  initial order of appointment was found to be  erroneous in  view  of  the policy decision that these posts  will  be filled  up by promotion, the appointments were cancelled and instead  of  leaving the appellants high and  dry,  Railways have  given  them  alternative appointment in Group  D  post which they have accepted.  We have heard Mr.Shahid Rizvi for the appellants and Ms.Rekha Pandey for the respondents.

     In  view  of  the contentions raised by the  Bar,  the question  for  determination by this Court is whether  there was  violation of Articles 14 and 16 of the Constitution  on the  ground of arbitrariness and discrimination as according to  the appellants, the appointments were cancelled  without giving  them  any opportunity of being heard.  It  has  also been  urged  that as the appellants were  Trade  Apprentices under  the Apprentice Act, 1961 (for short The Act) and they successfully  completed  the  training as  Fitter  and  were selected  for  appointment for the posts,  the  cancellation order is in violation of the Act.

     According to Rule 159 of the Rules for Recruitment and Training  of Group C and Group D and Workshop Staff, out  of the vacancy in the category of Skilled Artisans Group C, 25% of  the posts have to be filled up by selection from  course completed  ’Act  Apprencices’,  ITI  passed  candidates  and Matriculates  from  the open market;  serving employees  who were  course  completed ’Act Apprentices’ or  ITI  qualified could   be  considered  against   this  quota  allowing  age relaxation as applicable to service employees.  Thus we find that  for 25% of the posts, the three categories were to  be considered  for selection, namely, (1) 25% by selection from course  complete  Act Apprentices (2) ITI passed  candidates and  Matriculates from the open market (3) Serving employees who were course completed Act Apprentices or ITI qualified.

     From  the said Rule, it appears that 50% posts are  to be filled up by promotion of the staff in lower grade as per prescribed  procedure.   Thus it is clear that  the  present appellants are qualified to be recruited for the above post. But  the first question is whether they have got a right  to be  selected  only because they are sent for training  under the Act.  We quote below Section 22 of the Act :-

     "22.   Offer  and  acceptance of employment -  (1)  It shall not be obligatory on the part of the employer to offer any  employment  to  any apprentice who  has  completed  the period  of his apprenticeship training in his  establishment nor  shall it be obligatory on the part of the apprentice to accept an employment under the employer.

     (2) Notwithstanding anything in sub-section (1), where there  is  a condition in a contract of apprenticeship  that the apprentice shall, after the successful completion of the apprenticeship  training,  serve the employer, the  employer shall,  on  such  completion,  be bound  to  offer  suitable employment  to  the apprentice, and the apprentice shall  be bound to serve the employer in that capacity for such period and on such remuneration as may be specified in the contract :

     Provided  that  where such period or  remuneration  is not,   in  the  opinion  of  the   Apprenticeship   Adviser, reasonable,  he may revise such period or remuneration so as to  make  it reasonable, and the period or  remuneration  so revised  shall  be deemed to be the period  or  remuneration

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agreed to between the apprentice and the employer."

     There  is  no  dispute at the Bar that  there  was  no guarantee  or  promise  for  employment  while  sending  the present  appellants  to undergo the  apprenticeship  course. Therefore,  the  appellants  do  not have the  right  to  be appointed  under  the  Act  in view of  the  specific  legal provision under Section 22 of the Act.

     In  view  of the settled position of law though  under Rule  159  of the Rules of Recruitment and Training, 25%  of the  posts  are  to be selected from  the  course  completed Apprentices   like  the  appellants,   the  appellants   and similarly  situated  persons cannot claim appointment  as  a matter  of right for this post.  Railways may consider their cases for selection which was done in the present case.

     The  appointment  letters to all the  appellants  were issued on 28.5.90 and by letter dated 7.6.90 i.e.  less than one  month the appellants were informed that in view of  the decision   at   the  Headquarter   level  by   the   Railway Administration  after  discussion  with both the  Unions  on 27.11.89   it   was  decided   that  the  course   completed Apprentices  are to be absorbed only in Group D category and therefore,  the earlier letter of appointment was  cancelled and  the appellants were given fresh appointments in Group D post.

     From the appointment letters dated 28.5.90 vide clause 2  of the letter, the appellants were informed that if their services  would  be terminated, they shall be entitled to  a notice  of  11  days or pay in lieu of.   Thus  this  letter clearly  shows that the appellants were appointed purely  on temporary  basis  and their services could be terminated  by giving  11  days notice or pay in lieu thereof.  In view  of the  nature  of appointment, the above clause of the  letter dated  7.6.90 cannot be said to be violative of Articles  14 and  16 of the Constitution and at best the appellants would be entitled to get 11 days’ notice or pay in lieu thereof.

     Respondent-Railways  have stated that the  appointment letters were issued due to bonafide mistake as the decisions taken  on 27.11.89 by the administration were not within the knowledge  of  Divisional Personnel Officer of the  Railway, Lumding,  who  issued  appointment  letters.   There  is  no allegations  that  the letter dated 7.6.90 was  issued  with malafide  intention.  In fact, Railways have clearly  stated in  the counter before the Tribunal that instead of  leaving the  appellants high and dry, they were offered appointments in  Group  D  category in view of the  decision  arrived  at between the Administration and the Unions.

     In  the  Lumding Division of N.F.Railways,  there  was stagnation of the existing employees in Group D category and there  was  surplus  staff, as a result,  closure  of  Steam Lumding  Loco  Shed.   Therefore, the matter  was  discussed between the Administration and the Unions and it was decided that  there will be no direct entry to Group C post and  all the vacant posts will be filled up by promotion from Group D post.   This  policy decision was reasonable one and it  was taken to keep industrial peace, which fact was taken note of by the Tribunal.

     It is urged on behalf of the appellants that the above

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policy  was communicated by the Railway Board subsequent  to the  appointments  of the appellants, therefore, it  is  not applicable  in  case  of the appellants.  We are  unable  to accept  the  contention  as the decision was  taken  in  the meeting  held  on  27.11.89  i.e.    prior  to  letters   of appointment  issued  to the appellants on 28.5.90.  For  the reasons  stated,  we hold that action of the respondents  is not   arbitrary  or  discriminatory   and,  therefore,   not violative of Articles 14 and 16 of the Constitution.

     In  the  result, the appeal is dismissed.  But in  the facts  and  circumstances of the case, parties are  to  bear their own costs.