AI Insights
The case involves 45 petitioners who were appointed as Substitute Gangmen by the East Central Railway under the discretionary powers of the General Manager, specifically for urgent work related to night patrolling and safety of railway tracks in Bihar. Their appointments were for a maximum period of two and a half months, after which they were dismissed. The petitioners challenged their dismissal and the decision of the Central Administrative Tribunal in the Patna High Court, alleging discriminatory treatment as other similarly situated employees were retained. The court examined the discretionary powers of the General Manager and the principles of fairness and non-discrimination in employment.
Appeal Details
Counselvise Citation
[2015] 140 COUNSELVISE.COM (IT) 803428 (HC-PATNA)
Assessee PAN
Bench
Appeal Number
CRN Number
Appellant
Respondent
Appeal Type
Others
Pronouncement Date
03-02-2015
Assessment Year
misc
Judgement Text
"IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.23140 of 2012 =========================================================== 1. Rakesh Mehta S/O Dilip Kumar R/O Jairam Bazar, P.S. Khagaul, District- Patna, Bihar 2. Upendra Kumar S/O Jawahar Lal Paswan R/O Nainchak, P.S. Khagaul, District- Patna 3. Santosh Kumar S/O Chandradeep Paswan R/O Chaklama, P.S. Masaudhi, District- Patna 4. Nasir Samsuddin S/O Syed Samsuddin R/O Milki Mohalla, P.S. Arrah, District- Bhojpur, Bihar 5. Sushil Prasad S/O Nirmal Prasad R/O Mustafapur, P.S. Khagaul, District- Patna 6. Mahesh Kumar S/O Kapil Dev Ram R/O Village- Gochachak, P.S. Fulwari Sharif, District- Patna 7. Anuj Kumar S/O Paras Mehta R/O Village- Gossien Gawn, P.S. Mokama, District- Patna 8. Sadanand Kumar S/O Sri Ganga Thakur R/O Village- Domha, P.S. Bakhtiarpur, District- Patna 9. Ravi Bhusan Kumar S/O Shri Lal Muni Kunwar R/O Village- Nawada, P.S.- Phulwari Sharif, District- Patna 10. Gautam Pandit S/O Shri Ganga Pandit R/O Rly Qr. No. 83/8, P.O.- Jhajha, District- Patna 11. Santosh Kumar S/O Shri Krishnanandan Mandal R/O Village- Khagaur, P.O.- Kiul, District- Lakhisarai 12. Manoj Kumar Rawt S/O Shri Sitaram Rawt R/O Village- Sewa, P.S.- Gidhaur, District- Jamui 13. Ram Pravesh Kumar S/O Shri Singegar R/O Village- Nawada, District- Biharsharif, Bihar 14. Satyendra Kumar S/O Ram Pravesh R/O Village- Narhi, P.O. Jamhor, District- Aurangabad, Bihar 15. Shashikant Tiwary S/O Shri Bindeshwari Tiwary R/O Village- Amridha, P.O.- Fakharabad, P.S. Kudra, District- Kaimur (Bihar) 16. Shivraj Singh S/O Shri Paras Nath Singh R/O Village- Bhaisula, P.O.- Kudra, District- Kaimur (Bihar) 17. Ashok Kumar S/O Shri Bindeshwari Prasad R/O Village- Makdumpur, P.O.- Rafiganj, District- Aurangabad (Bihar) 18. Ranjeet Kumar S/O Shri Vijay Prakash Mandal R/O Village- Lakshmanpur, P.O.- Jamalpur, District- Munger (Bihar) 19. Anil Kumar S/O Late Feku Ram R/O Village- Manthikala, P.O.- Karhana, District- Mau, Uttar Pradesh 20. Shiv Shankar Tiwary S/O Ram Prasad Tiwary R/O Village- Agarpura, P.O.- Babhwangama, P.S.- Barhara, District- Bhojpur 21. Ram Bharos S/O Shri Lal Bahadur R/O Village- Harpur, P.O.- Pusa, District- Samastipur 22. Baleshwar Nath Tiwary S/O Late Premchandra Tiwary R/O Village- Ram Nagar (Karhasi), P.O.- Ram Nagar (Karhasi) 23. Rajesh Kumar Singh S/O Shri Satyadeo Singh R/O Village- Gauri, P.O.- Gauri, District- Siwan (Bihar) 24. Raj Kishore Sharma S/O Shri R.L. Prasad Sharma R/O Village- Kurji, P.O.- Muhammadpur, P.S. Phulwari, District- Patna 25. Ghanshyam Pujari Yadav S/O Shri Shyam Narayan Yadav R/O Village- Patna High Court CWJC No.23140 of 2012 dt.03-02-2015 2 Khadsara, P.- Chhata, District- Kaimur (Bihar) 26. Abhishek Kumar Ojha S/O Shri Tribhuwan Ojha R/O Village- Kuradi, P.O.- Kuradi, District- Kaimur (Bihar) 27. Ganesh Kumar Pandey S/O Shri Surendra Kumar Pandey R/O Village- Nagopur, P.O.- Pirauta, P.S. Mofsir, District- Bhojpur (Arrah), Bihar 28. Jitendra Kumar Yadav @ Jitendra Kumar S/O Shri Silli Prasad R/O Village- Kudekhurd, P.O.- Mughal Sarai, District- Chandauli, Uttar Pradesh 29. Vivek Kumar Yadav S/O Late Subhash Chandra Yadav R/O Village- Makhdum Sarai, P.O.- Siwan, District- Siwan 30. Ashlok Kumar Singh @ Ashlok Kumar S/O Nageshwar Singh R/O Village- Tikuli, P.O.- Chakan, District- Gaya (Bihar) 31. Ehsanul Haque S/O Misabahul Haque R/O Village- Saukhra, P.O.- Saukhra, P.S. Chand, District- Kaimur (Bihar) 32. Pradip Kumar Tiwary S/O Late Bishwanath Kumar Tiwary R/O Village- Darauli, P.O.- Darauli, P.S. Darauli, District- Siwan (Bihar) 33. Dilip Kumar Yadav S/O Shri Lakshman Pd. Yadav R/O Villge- Nai Dhari (Fakhar), P.O.- Nai Dhari, District- Chandauli (Uttar Pradesh) 34. Ramesh Kumar S/O Shri S.P. Rajak R/O Qr. No. 140 2(C), Uropian Colony, P.O.- Mughal Sarai, District- Chandauli (Uttar Pradesh) 35. Abhinash Kumar Shrivastav @ Avinash Kumar S/O Shri Ashok Kumar Shrivastav R/O Qr. No. 152 (D), Uropian Colony, P.O.- Mughal Sarai, District- Chandauli 36. Rakesh Yadav S/O Shri Ramchandra Yadav R/O Village- Bhaisaula, P.O.- Kudra, P.S. Kudra, District- Kaimur (Bhabua), Bihar 37. Mudrika Prasad S/O Shri Ram Bachan Vishwakarma R/O Village- Bijali Colony, P.O.- Bhabua, District- Kaimur 38. Jitendra S/O Shri Shiv Kumar R/O Village- Patpara, P.O.- Kurhana, District- Chandauli, Uttar Pradesh 39. Manoj Kumar Shrivastav S/O Shri Thakur Pd. Shrivastav R/O Vir Kunwar Singh Colony, Hajipur, District- Vaishali 40. Pankaj Kumar Sharma S/O Late Samjhawan Ram Sharma R/O Village- Safayabad, P.O.- Jamalpur, District- Munger, Bihar 41. Vikas Kumar S/O Shri Vishwanath Pd. R/O Medical Colony, Qr. No. 593, P.S. Khagaul, District- Patna 42. Mukesh Kumar Tiwary S/O Shri Siyaram Tiwary R/O Road No. 1, East Indira Nagar, Kankarbagh, Patna 43. Sunil Kumar S/O Shri Raibali R/O Village- Amridha, P.S.- Kudra, District- Kaimur 44. Deepak Sinha S/O Shri Pramod Bihari Sinha R/O New Area, Lodi House, Dalmiya Nagar, Dehri On Sone, District- Rohtas 45. Vijay Kumar Kanojiya S/O Shri Sukkhu Ram R/O H. No. 11/1B, Hanumanpur Ahiran, P.O.- Mughalsarai, District- Chandauli ... .... Petitioners Versus 1. The Union Of India through the General Manager, East Central Raiwlay, Hajipur 2. The Divisional Railway Manager, East Central Railway, Hajipur 3. The Divisional Railway Manager, East Central Railway, Mughal Sarai 4. The Assistant Personal Officer, East Central Railway, Mughal Sarai 5. The Assistant Personal Officer, East Central Railway, Danapur 6. The Selection Engineer (P. Way), East Central Railway, Hajipur 7. The Senior Personnel Officer (R), East Central Railway, Hajipur Patna High Court CWJC No.23140 of 2012 dt.03-02-2015 3 8. Railway Recruitment Cell through the Dy. Chief Personnel Officer/Recruitment Roadway, Recruitment Cell E.C. Railway, Palson Complex, Digha Ghat, Patna .... .... Respondents =========================================================== Appearance : For the Petitioners : Mr. Kumar Kaushik, Advocate. For the Respondents : Mr. Madhu Prasun, Advocate. =========================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) Date: 03-02-2015 Heard learned counsel for the petitioners and learned counsel for the Railway and with their consent this writ petition is being disposed of at this stage itself. 2. The 45 writ petitioners have a common grievance. They were duly selected and appointed as Substitute Gangmen. Their services have been dispensed with. They moved the Central Administrative Tribunal (for short `the Tribunal’) without any success. They are here before this Court challenging not only the order of the Tribunal, but also the order dismissing them from service. They also have a further grievance in relation to discriminatory treatment meted out to them. 3. Countering the contentions of the writ petitioners, learned counsel for the Railway submits that the extra-ordinary discretionary powers had been conferred on the General Manager to Patna High Court CWJC No.23140 of 2012 dt.03-02-2015 4 recruit Substitute Gangmen upon certain exigencies of work, which employment was restricted to the maximum period of two and a half months. Bihar being sensitive area, specially for night patrolling and safety of Railway tracks, apart from others, the petitioners were selected and appointed. Upon expiry of the maximum period of two and a half months, their services automatically came to an end. They cannot, thus, say that they were dismissed without cause. 4. To the second contention of discriminatory treatment, learned counsel for the Railway submits that the General Manager has been given special powers to be exercised in special circumstances upon special consideration to re-employ such persons, or to employ such other persons for such purpose. These are totally discretionary powers and no right can be claimed in respect thereof. 5. Having considered the matter, in our view, so far as the first contention of the petitioner is concerned, that merits no consideration for the simple reason that it is not disputed that their employment was for a maximum period of two and a half months itself and after expiry thereof, they had no right to continue. They were not permanent employees in the Railway establishment. It was only because of certain exigencies that they had been selected and employed. However, that may not be the case when we come to the second limb of submission. What is submitted by the petitioners is Patna High Court CWJC No.23140 of 2012 dt.03-02-2015 5 that several people, who were similarly situated and similarly recruited for the same job in the same transaction and that too juniors to the petitioners, have been retained. The effect of this retention was that having completed 120 days continuous service in the Railway, they became temporary employees, with the right to get retiral benefits as well. 6. Learned counsel for the Railway points out that there are different categories of persons. Some are persons, who had lost their land to the Railway and by way of compensation package they had been granted such employment and they have been continued. There were other discretionary quotas available, but surely this does not confer a right on the petitioners to claim continuous employment. The right conferred on the General Manager being purely discretionary, no writ would lie. 7. We are afraid, we cannot accept the said second argument as broadly advanced on behalf of the Railway, for it is well- settled that where there is provision of discretionary power, it sets out certain circumstances under which it can be exercised as held by the Apex Court in the case of L. Hirday Narain vrs. Income Tax Officer, Bareilly and others, since reported in AIR 1971 Supreme Court 33, the discretion becomes a duty and it cannot be said that even though the circumstances for exercise of power do exist, the Patna High Court CWJC No.23140 of 2012 dt.03-02-2015 6 authority can refuse to exercise the power. That case arose out of the Income Tax Act, 1922 and, in particular, Section 35 thereof, which deals with the power of rectification. It is provided therein that the Income Tax Officer may rectify a mistake apparent on the face of record, when the assessee approaches the Income Tax Officer and even though he was satisfied that a mistake did appear on the face of the record, he was of the opinion that the power conferred was discretionary and he, accordingly, refused to exercise his discretionary power. The assessee challenged it unsuccessfully before the Allahabad High Court, which Court was of the view that the power being discretionary no writ would lie. Matter went to the Apex Court. The Apex Court overruled the decision of the Allahabad High Court and relying on the judgment in the case of Julius v. Bishop of Oxford, since reported in (1880) 5 AC 214, it held in paragraphs no. 13, 14 and 15 as follows :- “13. In Julius v. Bishop of Oxford (1880) 5 AC 214 it was observed by Cairns L. C. at pp. 222-223 that \"the words \"it shall be lawful\" conferred a faculty or power, and they did not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so Lord Blackburn observed in the same case at pp. 244-245 that the enabling words give a power which prima facie Patna High Court CWJC No.23140 of 2012 dt.03-02-2015 7 might be exercised or not, but if the object for which the power is conferred is for the purpose of effectuating a right there may be a duty cast upon the donee of the power to exercise it for the benefit of whose who have that right when required on their behalf. Lord Penzance and Lord Selborne made similar observations at pp. 229 and 235. 14. Exercise of power to rectify an error apparent from the record is conferred upon the Income-tax Officer in aid of enforcement of a right. The Income-tax Officer is an Officer concerned with assessment and collection of revenue, and the power to rectify the order of assessment conferred upon him is to ensure that injustice to the assesses or to the Revenue may be avoided. It is implicit in the nature of the power and its entrustment to the authority invested with quasi- judicial functions under the Act, that to do justice it shall be exercised when a mistake apparent from the record is brought to his notice by a person concerned with or interested in the proceeding. 15. The High Court was, in our judgment, in error in assuming that exercise of the power was discretionary and the Income-tax Officer could, even if the conditions for its exercise were shown to exist, decline to exercise the power.” 8. Having said so, there cannot be any absolute discretion on any authority. The discretion has to be guided by certain considerations and if those are fulfilled then it ceases to be discretion and it becomes duty. It would be for the authorities, thus, to consider as to why while discontinuing the engagement of the petitioners, others, who were allegedly similarly placed and junior to the petitioners, were allowed to continue. Discretionary powers are conferred on senior officers in aid of proper functioning of an Patna High Court CWJC No.23140 of 2012 dt.03-02-2015 8 institution. It is not to be abused. It is not that the petitioners should make out a special case for special consideration. However, on the facts as pleaded and available on record, we are not in a position to decide factual aspects, which are in dispute in this case. It would be for the authorities to consider the same and, if so desired, they may take appropriate remedial measures in that regard. 9. With the aforesaid observations and directions, this writ petition stands disposed of. MPS/- (Navaniti Prasad Singh, J) (Jitendra Mohan Sharma, J) AFR U T "
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L. Hirday Narain vrs. Income Tax Officer, Bareilly and others, Julius v. Bishop of Oxford
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