HARI SHANKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) HARI Shankar is assailing before us order dated 04.07.2012 passed by the Central Administrative Tribunal, Allahabad in Original Application No.1353 of 2006 (Hari Shankar Sen Vs. Union of India and others).

(2.) BRIEF background of the case, as reflected from the record is that petitioner was initially engaged as Casual Labour waterman on 01.04.1987 and permitted to work up to 28.04.1987, then 01.04.1988 to 28.08.1988 and from 10.04.1989 to 28.07.1989. Thereafter, the petitioner was sent for medical examination on 28.03.1989 and as he was declared fit for appointment in B -1 category, he was granted temporary status w.e.f. 01.04.1989. Petitioner submits that he was again permitted to work w.e.f. 1.4.1990 to 6.7.1990 and then from 1.4.1991 to 22.7.1991 under the respondents. The petitioner had thus worked however, in broken spells more than 556 days as casual labour.

(3.) PETITIONER has submitted that Railway Board decided to absorb the ex -casual and accordingly vide its notification No. E(NG)II -99/CL/18 dated 11.5.1999 (i.e. RBE No. 103/99), directed to ascertain labour register as well as supplementary casual labour register. By the aforesaid notification, it was provided to determine the upper age limit of the ex -casual labour born on the live register -supplementary live casual labour register as on 1.4.1999 and directed to do screening accordingly as to whether the general candidates are within 40 years, OBC, are within 43 year and SC/ST candidates are within 45 as on 1.4.1999. Petitioner further submits that thereafter in the year 2001, the Railway Board issued the absorption scheme in respect to regularize the services of ex -casual labourer whose name were born on live -supplementary live casual labour register as per their turn according to seniority based on the total number of days but in by them as casual labour. It was further provided that age relaxation subject to upper age limit of 40 years in case of General candidates and 45 years in the case of SC/ST candidates and 43 years in the case of OBC candidates may also be granted. But in the said notification, cut of date for determination of upper age was not mentioned. Petitioner submits that vide circular dated 20.09.2001 issued by Railway Board, the aforesaid scheme dated 28.2.2001 was partially modified and it has been provided that ex -casual labour who had put in minimum 120 days casual services, whether continuous or in broken spells and were initially engaged as casual labour within the prescribed age limit, would be given age relaxation up to upper age limit of 40 years in General, 43 years in OBC and 45 years in SC/ST candidates. Petitioner submits that earlier this relaxation of upper age limit was available only if the candidate had put in minimum 3 years service in continuous spell or in broken spells but after modification the said relaxation was provided available subject to working in minimum 120 days casual service in continuous spells are broken spells. Petitioner submits that in compliance of aforesaid notifictions issued by Railway Board, the respondent no.2 issued letter dated 30.8.2001 and invited particulars of casual labours that were born on live/supplementary live casual register for regularisation in Group -D category in different department. In the said letter it was clearly mentioned that " it should neither be construed as an employment notice nor re -engagement notice or notice for screening, this is only for assessing the number of eligible casual labour available in the register still available". The last date for submission of the particulars by the ex -casual labour was fixed 30.7.2001. Petitioner submits that his particular was forwarded to the office of respondent no.2 by the respondent no.3 after completing verification of application as well as live/ supplementary live casual register. The petitioner was further screened and his name finds place at serial No. 120/511 in list prepared by the office of respondent no.2 after verification and further screening done some time as last days of year 2004. Petitioner submits that he was approaching the office of respondent no.2 from time to time and he was being assured that no sooner than the out come of the report of screening committee would be arrived at, the petitioner and other person will be absorbed in the Railway on Group -D post under the regularisation scheme 2001. But when the petitioner could not be called for medical examination whereas few person junior than the applicant were absorbed, the petitioner preferred original application no. 1353 of 2006 before this Hon'ble Tribunal at Allahabad. Partitioner submits that in the aforesaid O.A. No. 1353 of 2006, the respondents had filed its counter affidavit and admitted the facts that petitioner's name was born on casual labour live register at serial no. 511, that the total working days of the petitioner was 556 days and after verifying the record and screening by the screening committee, the petitioner was placed at serial No. 120/511. The respondents also admitted the petitioner's date of birth as 11.5.1958 and that he belong to OBC category and his application was received in proforma on 24.9.200. Thereafter, the original application was finally heard on merit and the same was allowed vide judgement and order dated 5.8.2010 directing the respondents to consider the case of applicant for regularisation as per Rules and treating him eligible in terms of age as on the cut of date. Thereafter, Misc. Application was filed on behalf of the respondent authorities to recall the said order dated 5.8.2010 on the reason that learned counsel for the respondents could not appear on that day because of his illness and subsequently due to continuous illness, he had died. Thus the Tribunal vide its order dated 17.9.2010 recalled the order dated 5.8.2010 and further directed to list the case for hearing on 4.10.2010. Thereafter the case was heard finally on merit and the judgement was reserved by the Tribunal, but vide its judgement and order dated 25.11.2011 claim was turned down. Petitioner Petitioner against the order dated 25.11.2011, preferred Civil Misc. Writ Petition No. 3768 of 2012 before this Court. The said writ petition was allowed by this Court vide its judgement and order dated 19.1.2012 and thereby, the order of Tribunal dated 25.11.2011 was set aside and the matter was remanded to decide it afresh in accordance with law. Thereafter fresh decision has been taken by the Tribunal and claim has been turned down and accordingly petitioner is before this Court.