(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. We have heard learned counsel Mr Sudhir Mehta for the petitioners. Being aggrieved by and dissatisfied with the impugned order dated 21.7.2011 passed by Central Administrative Tribunal, Ahmedabad Bench in Review Application No.22 of 2011 and order dated 23.11.2010 passed in Original Application No.360 of 2008, the petitioners have preferred this Special Civil Application on the grounds, more particularly, as narrated in the memo of the petition.
2. Petitioners herein are the original respondents and the respondent herein is the original applicant in O.A No. 360 of 2008 filed before the Central Administrative Tribunal, Ahmedabad (hereinafter referred to as “the Tribunal”). The facts of the present case are that the respondent herein i.e. the original applicant was engaged as project casual labourer in the Viramgam-Okha project on 30.12.1979 and was continued as such upto 21.11.1980. Services of the respondent were terminated. As per the scheme framed by the Railway Board for absorption of casual labourers, he submitted his claim before the Railway Administration for re-engagement as casual labourer wherein finding no response, he had filed O.A. No.
399/87 with M.A. No.415/98 before the Tribunal challenging the decision of the petitioners/original respondents which was disposed of on 15.12.1998 with a direction to the petitioners/original respondents to conduct enquiry and come to a finding regarding the genuineness of the claim, if on the basis of such inquiry it transpires that the respondent/original applicant's claim is genuine, the Railway shall proceed to engage him as per his turn.
3. It is not in controversy that after the inquiry, claim of the original applicant was found genuine in the year 1998-99 and name of the original applicant was registered/inserted in the live register/seniority list for the purpose of engagement in the next vacancies as per turn. After a lapse of about 10 years, the present respondent had received a letter from petitioners/original respondent No.3 vide EE/891/1(G.Man) Vol.II dated 25.09.2008 informing that the original applicant has completed 44 years 10 months and 5 days of age as on 1.1.2006 whereas the maximum age limit can be allowed to him is 43 years, he being an OBC candidate and therefore, he could not be given appointment in Railway services as per Railway Board instructions mentioned therein. In the said letter dated 25.9.2008, the original respondents have referred and relied on a judgment dated 26.10.2005 passed in O.A.
No.108 of 2004 filed by one J D Mehta. Hence the respondent/original applicant has preferred O.A. No.360/2008 and challenged the above referred letter dated 25.9.2008 issued by the original respondent No.3 to be declared as illegal, arbitrary and sought further relief to grant and release the appointment forthwith to the applicant in class IV service on the basis of his age not as on 1.1.2006 as cut off date but on the basis of his age as and when he had filed O.A. No.590/1997 and/or his name was entered in live register/seniority list as the court deemed just and proper.
3.1. It was also the issue for consideration before the Tribunal that whether the respondent/original applicant is similarly placed as applicant Smt.Lilaben Ravjibhai of O.A. No.315/2004 and E.A. No.23/2007 in O.A. No.315/2004. After hearing the learned Advocates for the parties the Hon'ble Member (A) of the Tribunal has discussed the same in paragraph No.7 and recorded its finding in paragraph No.8 of the order dated 23.11.2010 in O.A. No.360/2008.
4. Before proceeding and considering the submissions made by the learned counsel for the petitioners/original respondents, it is important to note that the above referred order dated 23.11.2010 passed in OA No.360/2008 was sought to be challenged by the petitioners/original respondents before the Tribunal by preferring the Review Application No.21/2011 in OA No.360/2008 which was dismissed by order dated 21.7.2011. It is also important to note that the grounds averred in the said Review Application are almost the same grounds of challenge as in the present Special Civil Application.
4.1. Learned counsel Mr Mehta for the petitioners/original respondents has mainly argued that the case of the respondents/original applicant in OA No.360/2008 is not similar to the case of OA No.315/04 because in OA No.315/04 the Notification issued by Railway Recruitment Board, Ajmer dated 10.7.2002 and Railway Recruitment Board, Ahmedabad dated 9.7.2003 were challenged but no such steps were taken by the present respondent/original applicant in OA No.360/2008. Moreover, he also submitted that the respondent/original applicant has not challenged the policy decision of the Railway Board to consider 1.1.2006 as cut-off date and the decision in the case of Lilaben Ravji is not a decision in rem.
5. We have carefully gone through the order passed by the learned Tribunal in OA No.360/2008 and in our view the Tribunal has elaborately discussed the issue in question that how the case in OA No.315/04 is similar to that of the case of the present respondent/original applicant in OA No.
360/08. The learned Tribunal has specifically recorded its finding that request of Smt. Lilaben Ravji, applicant of OA No.315/04 was rejected by the respondents on the ground that she had completed 44 years and 6 months and therefore was over-age as on 1.1.2006 which was prescribed as the cut-off date. Subsequent to said decision the applicant therein had filed EA No.23/07. In EA No.23/07 the Tribunal had directed that the respondents/original petitioners herein should consider the eligibility of the applicant in respect of age with reference to Notification issued on 10.7.2002 and 9.7.2003 instead of 1.1.2006 which was complied by the respondents/original petitioners herein. Referring to the decision dated 25.9.2008 of the petitioners/original respondents, it is clear that the claim of the respondent/original applicant had been rejected on the ground that he has crossed the age limit of 43 years, he being OBC candidate as on 1/1/2006. It is clear that respondent/original applicant was eligible in respect of the vacancies which were notified prior to 1.1.2006. Under the circumstances, we do not find any force in the submissions made by the learned Advocate for the petitioners/original respondents that case of the present respondent/original petitioner in OA 360/08 is not similar to the case of OA No.315/04. Applying the principles of equality under Article 14 of the Constitution, simply because two Notifications i.e. RRB, Ajmer dated 10.7.2002 and RRB, Ahmedabad dated 9.7.2003 were not challenged by him, it cannot be said that case of the applicant in OA No.360/08 is not similar to case of OA No.315/04. We are in complete agreement with the finding of the Tribunal that the facts of OA No. 360/08 are identical to facts of OA No.315/04 and so the Tribunal has rightly come to the conclusion that the contentions of the petitioners/original respondents that the applicant of OA No.360/08 is not similarly placed as the applicant in OA No.315/04 is not acceptable.
6. We have considered the above discussed facts forthcoming on the record and in our view the petitioners/original respondents have miserably failed to show anything that the case of OA No.315/2004 is substantially and materially different from the facts of the case of OA No.360/2008 filed by the present respondent/original applicant. In view of the aforesaid we do not find any infirmity or illegality in the above referred orders passed by the Tribunal. This petition lacks merits and is accordingly dismissed at the admission stage itself.
[D H WAGHELA, J.] msp [G B SHAH, J.] msp