Union Of India vs Md. Samim Azad

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1382 OF 2019 [Arising out of S.L.P.(C)No.22212 of 2018]

Union of India & Ors. ... Appellants

Versus

Md. Samim Azad ... Respondent

J U D G M E N T

R. Subhash Reddy, J.

1. Leave granted.

2. This civil appeal is filed by the Union of India

through the General Manager, Eastern Railway and others,

aggrieved by the order of the Division Bench of Calcutta

High Court passed on 31st August 2017 in F.M.A. No.878 of

2017.

3. The dispute relates to appointment of a halt

contractor at the railway station. On instructions, we

were informed by the learned Additional Solicitor General

that there are three types of railway stations, viz.,

Block Signature Not Verified Station, Flag Station and Halt Station. Halt Digitally signed by MAHABIR SINGH Date: 2019.02.01 16:27:46 IST Reason: station, is a station where signalling system is not

1 C.A.@ SLP(C)No.22212/18

available and train stoppages are controlled by railway

time table. Halt contractor is a contractor who is

appointed by Railways to sell tickets (printed card

tickets) on commission basis and as per the terms of the

contract.

4. The deceased father of the respondent-original

petitioner in Writ Petition No.12126 (W) of 2017, filed

before the Calcutta High Court, was appointed as a halt

contractor and the contract period had expired in the year

2010. There was no renewal of the contract for the period

beyond 2010. Father of the respondent-original writ

petitioner had died on 05th December 2016. On the request

made by the respondent-original writ petitioner, during

the lifetime of his father he was allowed to sell tickets

in the halt station at Pirtala. By notification dated

16th February 2017, the appellants have issued

advertisement inviting applications for appointing the

contractor. The respondent-original writ petitioner also

participated in the selection process for the purpose of

appointment as a contractor. Though he was one of the

shortlisted candidates, in the method adopted for

finalisation of contract by draw of lots, he was not

successful.

2 C.A.@ SLP(C)No.22212/18

5. When the respondent-original writ petitioner was not

appointed, having participated in the selection process,

he filed abovementioned Writ Petition before High Court of

Calcutta mainly on the ground that as he has continued as

a halt contractor in the place of his father and having

regard to guidelines issued in Circular

no.99/TIV/Halts/Policy dated 17.05.1999, he is entitled

for preference in appointment. The learned Single Judge of

the Calcutta High Court, by order dated 25.04.2017, by

recording a finding that on the date of death of the

father of writ petitioner, the contract between Railways

and the deceased father of the original writ petitioner,

was not existing, rejected the claim made by the

respondent-original writ petitioner.

6. Against the said order, the respondent-original writ

petitioner has filed intra-Court appeal before the High

Court and Division Bench of the High Court has allowed the

appeal by setting aside the order impugned in the petition

with the direction to the Railway authorities to grant

preference to the original writ petitioner in terms of

clause VI of the Circular dated 17.05.1999 and to appoint

him as a halt contractor at Pirtala Halt Station within a

period of four weeks from the date of the order.

3 C.A.@ SLP(C)No.22212/18

7. We have heard Ms. Pinky Anand, learned Additional

Solicitor General assisted by Mrs. Anil Katiyar, learned

counsel for the appellants and Mr. R.K. Gupta, assisted by

Mr. Shekhar Kumar, learned counsel appearing for the

respondent-original writ petitioner.

8. Having heard the learned counsel on both sides, we

have perused the order passed by the learned Single Judge

and also the impugned order passed by the Division Bench

of the Calcutta High Court and other material placed on

record.

9. It is not in dispute that the father of the

respondent-original writ petitioner was appointed as a

halt contractor, but contract period expired in the year

2010. Thereafter, there was no renewal of contract either

in the name of the deceased father or in the name of the

writ petitioner. The father of respondent-original writ

petitioner died on 05.12.2016. Though the contract in

favour of the original petitioner expired in the year

2010, on request made by the respondent-original writ

petitioner, he was allowed to sell tickets on behalf of

the Railways. Clause VI of the circular dated 17.05.1999

of which benefit is claimed by the respondent-original

writ petitioner, reads as under :

4 C.A.@ SLP(C)No.22212/18

“VI. Appointment of heirs and successors of deceased halt contractors :

Appointment of heirs and successors of deceased halt contractors, in the event of death of the halt contractor, may be considered along with other applicants and preference will be given to the heirs, all other things being equal.”

10. In the impugned order, the Division Bench of the

Calcutta High Court has held that as the appellants have

permitted the respondent-original writ petitioner to work

in the place of his ailing father, as such, he is to be

given the benefit of the circular. It is not in dispute

that the contract was valid only up to the year 2010.

Merely because the respondent-original petitioner was

permitted by the appellant-Railway authorities to work in

the place of his ailing father, he cannot, as a matter of

right, claim preference as an heir of contractor.

Further, it is also to be noticed that when the

notification was issued inviting applications, he has

participated in the selection process but when he was not

emerged as a successful person for award of the contract,

he has filed writ petition questioning the appointment of

new contractor. As the contract which expired in the year

2010, was not renewed either in the name of the deceased

5 C.A.@ SLP(C)No.22212/18

father of the original writ petitioner or in the name of

the writ petitioner, we are of the view that the High

Court committed error in directing to give preference and

to appoint him as the halt contractor. Merely because, the

respondent-original writ petitioner was permitted to act

as a halt contractor on his request, he cannot be treated

as an existing contractor. Undoubtedly, the contract which

was granted to his late father was expired in the year

2010. It appears from the notification issued by the

appellant authorities inviting applications for award of

contract for selling tickets that they have permitted, the

existing contractors and the contractors whose term is

coming to an end within a period of 90 days, to apply in

response to notification.

11. In view of the expiry of the contract of his late

father in the year 2010, the respondent cannot claim as an

heir of contractor for giving preference, as pleaded by

him. In any event, we are of the view that no right of

the writ petitioner, much less any fundamental right, is

violated so as to seek directions for his appointment as a

halt contractor as granted by the Division Bench of the

High Court.

6 C.A.@ SLP(C)No.22212/18

12. It is also brought to our notice by the learned

Additional Solicitor General, in the course of hearing, by

referring to the rejoinder affidavit filed by the

appellants, that the respondent was allowed only on his

request when it was represented that his father was sick

and in his place he was allowed to work temporarily on

sympathetic and humanitarian grounds. It is specifically

stated in the rejoinder that the father of the writ

petitioner was also working as a Primary School Teacher

under the Department of Primary School Education,

Government of West Bengal and gained unlawfully pecuniary

benefits from both Central Government and State Government

organisations.

13. For the aforesaid reasons, we are of the view that

the order impugned is liable to be set aside.

Accordingly, same is hereby set aside. Civil appeal is

allowed with no order as to costs.

.................... J.

[R. Banumathi]

.................... J.

[R. Subhash Reddy] New Delhi February 01, 2019

7