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PETITIONER: NITRANGSHU ROY CHOUDHARY & ORS.

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT:       05/04/1999

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 grieyance  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 the  initial  order of appointment was found to be erroneous

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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.

       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  grieyance  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 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  appointment  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 Appearances, 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.

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       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 recuneration so as to         make  it  reasonable,  and  the   period   or         remuneration so revised shall be deemed to be         the  period or remuneration agreed to between         the apprentice."

       There is no dispute at the Bar  that  there  was  no guarantee  or  promise  for  employment  while  sinding  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  Union  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

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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 appointments in Group D category in view of the decision arrived at between the Administration and the Unions.

       In the Lumbing 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   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.