1991 PLP 432 (PLC)

4. The main question which requires consideration is whether the appellant was a civil servant. The civil servant is defined in section 2(b) of the Civil Servants Act, 1973. Sub-clause (iii) excludes from the definition of civil servant a person defined as workman in the Factories Act, 1934 or the Workmen's Compensation Act, 1923.

5. It is not the case of appellant that he is a workman as defined in the Factories Act, but, it is contended that he is a workman as defined in the Workmen's Compensation Act. Section 2(1)(n) of the Workmen's Compensation Act, defines the `workman' as under:-- "2(1)(n)- "Workman" means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business) who is-- (i) a railway servant as defined in section 3 of the Railways Act, 1890 (IX of 1890) not permanently employed in any administrative, district or sub- divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or (ii) employed on monthly wages not exceeding one thousand rupees, in any such capacity as is specified in Schedule II"

6. Clauses (i) and (xii) of the Schedule II are applicable to the-Railway servants and may be reproduced, as under:-- "(i) employed, otherwise than on a railway in connection with the operation or maintenance of a lift or a vehicle propelled by steam or other mechanical power or by electricity; xx xx xx xx xx (xii) employed, upon a railway as defined in clause (4) of section 3, and subsection (1) of section 148 of the Railway Act, 1890 (IX of 1890). either directly or through a sub-contractor, by a person fulfilling a contract with the railway administration:'

7. The appellant is admittedly a Railway servant and also a school teacher employed in Railway school. The Railway school is not an administrative, district and sub-divisional office and a person working in a school cannot be said to be permanently posted in administrative, district or sub-divisional office. The duties under Schedule II, as prescribed in Clauses (i) and (xii) are not the duties which the appellant was performing as school teacher, therefore, his case falls under the definition of workman as defined in sub-clause (i), reproduced above, I, therefore, hold the appellant to be a `workman'.

8. The grievance of the appellant is that Respondent No.3 had been recruited directly in Basic Pay Scale No.15 in violation of the Railway Boards's directive contained in the letter; dated 3-3-1973, which was circulated through the letter, dated 22-3-1973. Under this directive, .the decision of the Board was conveyed to the effect that 50% quota of the vacancies of teachers for which higher qualifications was prescribed, were to be filled in by selection of teachers already in service having the requisite qualifications for the higher posts and for the remaining posts direct recruitment shall continue to be made, It is submitted that after this letter, 7 persons had been recruited directly and the last being the respondent No.3, who was recruited on. 28-1-1987; whereas the case of the appellant who was working as a teacher since 1966, and possessed the requisite qualification was not considered. The respondents Nos. 1 and 2 contended that the directions were being strictly complied with and the promotion and direct recruitments are Made in cyclic order. They contended that Gul Sher Ahmad, who in para. No.9.of the grievance application is alleged to have been directly recruited on 28-11-1973, was in fact recruited on 4-1-1972 prior to the issuance of the directives, dated 22-3-1973. It is further contended that there were only 5 direct recruits while 5 were promotees. The last direct recruit, namely, Zahid Hussain was appointed on 31-1-1981, when the last promotee, namely Aleemuddin Ghouri was recruited on 15-3-1983. It is contended, therefore, that the next vacancy was to be filled in by direct recruit, consequently, the respondent No.3 was appointed against that vacancy. Annexure `A' produced by, the respondents alongwith the reply statement is dated 27-11-1.973, but, it shows that Gul Sher Ahmad had bken given the Graduate Scale from 4-1-1972.

9. In the cross-examination, the appellant had admitted that Aleemuddin Ghouri was last to be promoted from the quota of inservice candidates. He also admitted that it was correctly suggested that there is 50% quota for direct recruitments and 50% quota for inservice candidates. He had further admitted that the post against which the respondent No.3 was appointed was advertised and was unable to say that if 23 candidates had applied for one post. He also admitted that Grade 15 is a Selection Post.

10. The admitted evidence on record shows that prior to the appointment of respondent No. 3, the last person to be appointed in Basis Pay Scale No.15 was a promotee. As such in accordance with the ratio fixed under the aforesaid letter, dated 22-3-1973, the next vacancy was to go to the direct recruit. He has not been able to show as to how after issuance of the directives, this ratio had been violated. If name of Gul Sher Ahmad is not counted in the list of direct recruits after the issuance of the directive, then, the position would be that there were 5 direct recruits against 5 promotees. The last one was appointed by promotion and, therefore, the next vacancy was to go to the direct recruit against which vacancy, the respondent No. 3 was selected. The dispute appears to be as to whether Mr. Gul Sher Ahmad was directly recruited after issuance of the directives or before that. As pointed above though order of his appointment in Graduate Scale was made after issuance of the directives, but, he was given the post retrospectively from 4-1-1972. The vacancy against which Gul Sher Ahmad was appointed cannot be said to have fallen after issuance of the directive. His name, therefore, was rightly excluded by the management while calculating the ratio of promotees vis-a-vis direct recruits after issuance of the aforesaid directive.

11. The appellant has not counted Mr. Hamid Ali in the list of promotees whereas the respondent in their reply statement, has shown him to have been promoted under,the orders, dated 23-9-1978 of the learned Labour Court in Grievance Petition No.37 of 1975. Under this order, he was given this Graduate Scale from 29-5-1975. This order has been produced as Annexure B' alongwith the reply statement. Admittedly he was inservice candidate.

12. The admissions of the appellant as pointed above and evidence of Mr. Khisal Ahmad witness of the respondents Nos. 1 and 2 does not disclose any violation of the directives.

13. Furthermore, the learned Presiding Officer of the Labour Court had held that Basic Pay Scale No. 15 being a Selection Grade and the promotion cannot be said to be vested right enforceable under section 25-A, I.R.O., 1969. Selection or promotion is always prerogative of the employer and seniority is not the only criteria for promotion or selection, but the seniority-cum-fitness has to be compared for such appointment.

14. In view of the above discussion, I find no merits in this appeal which is accordingly dismissed. M.Y.H./1576/Lb.S Appeal dismissed.