Kerala High Court
Union Of India vs K.Chellappan on 6 March, 2017
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
THURSDAY, THE 16TH DAY OF NOVEMBER 2017/25TH KARTHIKA, 1939
OP (CAT).No. 288 of 2017 (Z)
-----------------------------
AGAINST THE ORDER IN OA 346/2015 of CENTRALADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH DATED 06-03-2017
PETITIONERS/RESPONDENTS IN O.A.:
---------------------------------
1. UNION OF INDIA,
REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY, HEAD
QUARTERS OFFICE, PARK TOWN P.O., CHENNAI-600003.
2. DIVISIONAL RAILWAY MANAGER,
SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM-695014.
3. DIVISIONAL PERSONNEL OFFICER,
SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM-695014.
BYADV. SRI.S.PRASHANTH, SC, RAILWAYS
RESPONDENT/APPLICANT IN O.A.:
--------------------------------
K.CHELLAPPAN,
S/O.KUTTAN NADAR, TRACKMAN, OFFICE OF THE SENIOR SECTION
ENGINEER, PERMANENT WAY, SOUTHERN RAILWAY, TRIVANDRUM
CENTRAL, RESIDINGAT NEELATHUVILAVEEDU, KEEKOLLA,
VATHAVILA P.O., ARANMULA, THIRUVANANTHAPURAM DISTRICT,
PIN-689533.
R BY SRI.T.C.GOVINDA SWAMY
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 16-11-2017, THE
COURT ON THE SAME DAYDELIVERED THE FOLLOWING:
OP (CAT).No. 288 of 2017 (Z)
-----------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
EXHIBIT P1- TRUE COPY OF O.A.NO.180/00346/2015 FILED BEFORE THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.
EXHIBIT P2- TRUE COPY OF THE REPLY STATEMENT FILED BY RESPONDENTS IN
O.A.NO.18/00346/2015.
EXHIBIT P3- TRUE COPY OF THE ORDER OF THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM BENCH DATED 6TH MARCH 2017 IN
O.A.NO.18/00346/2015.
RESPONDENT(S)' EXHIBITS
----------------------- NIL
TRUE COPY
P.A TO JUDGE
SMM
P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.
------------------------------------------------------
O.P(CAT) No. 288 of 2017
------------------------------------------------------
Dated this the 16th day of November, 2017
JUDGMENT
P.R. Ramachandra Menon, J.
Correctness and sustainability of Ext.P3 order passed by the Tribunal in O.A.No.180/00346/2016 is under challenge at the instance of the respondents before the Tribunal; namely the Railways.
2. Heard the learned standing counsel for the petitioners and the learned Counsel appearing for the respondent.
3. The respondent herein was engaged as a casual labourer in the Railways whose engagement was put an end to in 1981 and thereafter, he was never called upon to do any work in the Railways. But later, pursuant to the verdict passed by the Apex Court in Inderpal Yadav and others vs. Union of India (1985 SCC (L&S)526), further steps were pursued by the Railways to consider O.P(CAT) No. 288 of 2017 2 the benefit of granting regularisation based on seniority. It was accordingly, that Annexure A1 letter dated 24.3.2003 was issued to furnish the particulars by the respondent. On analyising the particulars so furnished, it was found that the respondent had crossed the maximum age limit, which according to the Railways was 43. Hence, appointment was denied to the respondent, which was the subject matter of litigation before the Tribunal. After referring to the facts and figures, the Tribunal directed to reconsider the matter holding that age could not be a barrier in view of the fact that no such stipulation/rider was placed by the Supreme Court with regard to the benefit payable as per the verdict passed in this regard. It was accordingly, that the matter was reconsidered by the Railways, who passed an order of appointment on 24.10.2008 and the respondent came to be re-engaged from that day onwards.
4. While so, several other similarly situated persons O.P(CAT) No. 288 of 2017 3 approached the Tribunal by filing various O.As including O.A.No.1032/2011, contending that the service ought to have been regularised with effect from 1996, when a similarly situated person having lesser service (by name Vishwanathan) was regularised. The Railways took up a contention that Viswanathan's case cannot be treated as a precedent, as it was given by way of a mistake. The Tribunal passed Annexure A3 order, holding that even though appointment given to the junior by name Viswanathan reckoning the service from 1996 onwards was by mistake, the applicants were entitled to have their service counted at least with effect from 3.11.2003. However, in some other cases, which were dealt with by separate orders, the Tribunal had directed the Railways to give the monetary benefits as well. The matters were taken up before this Court by way of different Original Petitions at the instance of the Railways and all the said cases were dealt with together, leading to a common O.P(CAT) No. 288 of 2017 4 judgment dated 21.12.2016. As per the said judgment, this Court made it clear that the benefit given in the case of Viswanathan with effect from 1996 being a matter of mistake, it could not have been extended or perpetuated under any circumstance, placing reliance on the verdict passed by the Apex Court in Chandigarh Administration vs. Jagjit Singh and another (AIR 1995 SCC 705). This Court made it clear that the date of regularisation shall be reckoned as 3.11.2003 only for the purpose of reckoning the qualifying service for granting pension in terms of CCS Pension Rules and that the fixation of pension shall be based on the actual pay drawn by the applicant at the relevant point of time; in turn, setting aside the direction issued by the Tribunal in some other cases to grant the consequential benefits as well. It was after passing the said verdict, that the respondent herein had approached the Tribunal by filing the Original Application, seeking for similar benefit as O.P(CAT) No. 288 of 2017 5 extended by this Court.
5. The contention of the applicant was that, by virtue of the declaration made by this Court, similar benefit granting the regularisation with effect from 3.11.2003 ought to have been extended by the Railways in his case as well. He had also filed a representation in this regard on 25.3.2015. The relief sought for was vehemently opposed by the Railways. The matter was considered by the Tribunal, also with reference to the verdict passed by this Court as aforesaid and it was held as per Ext.P3 order, that the applicant was also entitled to have similar benefit by virtue of the fact that he was standing at Sl.No.156 in the Annexure A1 list of retrenched casual labourers, whereas the others concerned who were already given the benefit, were only having much lesser service. It was accordingly, that a finding was rendered holding that the service of the applicant was liable to be reckoned with effect from O.P(CAT) No. 288 of 2017 6 3.11.2003 as declared by this Court and confining the benefit only as notional, for the purpose of pensionary benefits alone. The Railways have sought to challenge the said verdict, stating that the respondent was never a party to Annexure A3 order passed by the Tribunal or in any of the cases which were commonly dealt with by this Court as per the judgment dated 21.12.2016.
6. The learned Standing Counsel for the Railways points out that, even after passing Annexure A3 order by the Tribunal in O.A.No.1032/2011 on 31.7.2012, it took nearly three years for the applicant to have approached the Tribunal by filing the O.A and as such, 'limitation' will place a hurdle, which was not properly considered by the Tribunal while passing Ext.P3 order and hence the challenge.
7. The fact remains that the respondent herein was having a total of 665 days of casual service to his credit before the retrenchment effected on 1.1.1981 and that O.P(CAT) No. 288 of 2017 7 the claim was to have him regularised on par with the juniors. There is no dispute to the fact that, pursuant to the different rounds of litigation, regularisaton came to be given and in the course of time, it was restricted to be given with effect from 3.11.2003. It still remains a fact that the person by name Viswanathan was having only 601 days of service as on the date of retrenchment and as such the respondent/applicant was standing on a much higher pedestal. Though regularisation in service was given to Viswanathan with effect from '1996', this Court has already made it clear, as per the common judgment dated 21.12.2016, that it was only a mistake which could not have been extended in other cases, but for confining the date of regularisation to '3.11.2003', to have uniformity in all the cases. The Tribunal followed the same and has given regularisation only notionally with effect from 3.11.2003 for the purpose of pension and nothing else. The said verdict is in conformity with the O.P(CAT) No. 288 of 2017 8 verdict passed by this Court on 21.12.2016.
8. Coming to the contention raised as to the plea of limitation, it is true that the respondent filed a representation only in the year 2015 and the Tribunal passed Ext.P3 order only on 6.3.2017. It was after filing the said representation that, the question of law was declared by this Court as per the common judgment dated 21.12.2016 and the picture become clear only by virtue of said declaration of law. Even otherwise, in so far as the benefit has been restricted to have the date of regularisation notionally reckoned only with effect from 3.11.2003, without granting any consequential/monetary benefits, except for the purpose of pension, it was quite a continuing cause of action, as far as the claim of the respondent is concerned. That apart, it is also settled law, that if any declaration is made by the Court, the benefit is to be given to all similarly situated persons. We find support from the ruling rendered by the Supreme Court in O.P(CAT) No. 288 of 2017 9 Aswani Kumar and others v. State of Bihar and others [1997(2) SCC 1].
9. In the above circumstance, we find that no tenable ground has been brought out in the present Original Petition. Interference is declined. O.P stands dismissed accordingly.
P.R. RAMACHANDRA MENON JUDGE SHIRCY.V JUDGE smm