Central Administrative Tribunal - Ernakulam
E.M. Antony vs Shri V.N. Mathur on 15 December, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH MISC. APPLICATION NO. 230 OF 2008 IN ORIGINAL APPLICATION NO. 622 OF 1993 W I T H 14 CONNECTED MISC. APPLICATIONS MONDAY THIS THE 15TH DAY OF DECEMBER, 2008 CORAM: HON'BLE DR. K B S RAJAN, JUDICIAL MEMBER HON'BLE DR. K S SUGATHAN, ADMINISTRATIVE MEMBER 1. M.A. NO. 230/2008 IN O.A. NO. 622/1993 1. E.M. Antony, S/o. Late E.O. Mathew, Retired Office Supdt. Gr. I, Office of the Senior D.M.E., Southern Railway, Divisonal Office, Palakkad, Residing at Edatharaparambil House, Melemurali Industrial Estate P.O. Palakkad. 2. K.P. Sudhakaran, S/o. K.K. Pappan, Retired Office Supdt. Gr. I, Office of the Senior D.M.E., Southern Railway, Divisional Office, Palakkad, Residing at Kocheethara House, Pallom Post, Kottayam District. 3. P.V. Vasudevan, S/o. Late Sh. Kunhunny Nambissan, Retired Office Supdt. Gr. I, Office of the Senior D.M.E., Southern Railway, Divisional Office, Palakkad, Residing at Vanisree, Saibaba Colony, Industrial Estate Post, Olavakkode, Palkkad. 4. T.V. Prabhakaran, S/o. Late Shri K.C. Nair, Retired Office Supdt. Gr. I, Office of the Chief Power Controller, Southern Railway, Palakkad, Residing at Sayugyam, Pooja Nagar, Kallekulangara P.O., Palakkad : 9 5. Pothen Joseph, S/o. Joseph, Retired Office Supdt. Gr. I, Office of the Carriage & Wagon Supdt. Office, Southern Railway, Mangalore, Residing at Mannamplackal House, Mukkuzhy, Thayanur Post, Kasargod District. 6. P. Prabhakaran, S/o. Late Sri P. Chandukutty Nambiar, Working as Office Supdt. Gr. I, Office of the Senior Section Engineer/E&W/ Southern Railway, Calicut, Residing at "Chandrika", P.O. Kakkodi, Calicut : 673 611 ....... Petitioners / (Applicants 2, 3, 5, 7, 1 & 6 in OA No.622/93) (By Advocate Mr. K.A. Abraham) v e r s u s 1. Shri V.N. Mathur, S/o. (not known), The Secretary, Ministry of Railways, Rail Bhawan, New Delhi. 2. Sri Pradeep Kumar, S/o. (not known) Chief Personnel Officer, Southern Railway, Chennai. 3. Shri Chandiram, S/o. (not known), Sr. Divisional Personnel Officer, Southern Railway, Palakkad. ... Respondents. (Respondents 1, 2 & 4 in OA No. 622/93) (By Advocate Mr. R. Thyagarajan (Sr.) with Mr. Thomas Mathew Nellimoottil) 2. M.A. NO. 231/2008 IN O.A. NO. 483/1991 Smt. Cicily K.T., W/o. Late P.V.Varghese, Retired Chief Commercial Clerk Gr. 1, Southern Railway, Ernakulam Jn., Residing at Pulianthuruthil House, Syrian Church Road, Aluva. .... Petitioner (W/o. Applicant No.1 in OA 483/91) (By Advocate Mr. K.A. Abraham) v e r s u s 1. Shri R.K. Singh, S/o. (not known), Chairman, Railway Board, Rail Bhavan, New Delhi. 2. Shri Shivendrakumar, S/o. (not known), The General Manager, Southern Railway, Park Town, Chennai. 3. Dr. Narayanan, S/o. (not known), Divisional Railway Manager, Southern Railway, Thiruvananthapurtam ... Respondents. (Respondents 1, 2 & 3 in OA 483/91) (By Advocate Mr. R. Thyagarajan (Sr.) with Mr. Thomas Mathew Nellimoottil) 3. M.A. NO. 232/2008 IN OA NO. 483 0F 1991 1. P.K. Chandra Sekhara Pillai, S/o. P.S. Kesava Pillai, Retired Chief Commercial Clerk Gr. 1, Ernakulam Goods, Residing at 47-614, Customs Colony, Poonithura:682 308 2. K. Gopinathan Nair, S/o. Kumara Pillai, Retired Chief Commercial Clerk Gr. 1, Ernakulam Jn., Residing at 34-957, Jai Vihar, Press Club Colony, Edappally, Kochi : 682 024 .... Petitioners. (Applicants 2 & 3 in OA No. 483/91) (By Advocate Mr. K.A. Abraham) v e r s u s 1. Shri R.K. Singh, S/o. (not known), Chairman, Railway Board, Rail Bhavan, New Delhi. 2. Shri Shivendrakumar, S/o. (not known), The General Manager, Southern Railway, Park Town, Chennai. 3. Dr. Narayanan, S/o. (not known), Divisional Railway Manager, Southern Railway, Thiruvananthapurtam ... Respondents. (Respondents 1, 2 & 3 in OA 483/91) (By Advocate Mr. Mr. R. Thyagarajan (Sr.) with Mr. Thomas Mathew Nellimoottil) 4. M.A. NO. 233/2008 IN OA NO. 522 OF 1990 1. Balaraman, S/o. T. Kutty, Retired Chief Booking Supervisor, Southern Railway, Calicut, Residing at 23.1630, Thottungal House, Thiruvanur Road, Kallai, P.O. Kozhikode. 2. V.K. Bhuvanadasan, S/o. VRK Ezhuthachan, Retired Chief Booking Clerk, Southern Railway, Shornur, Residing at Santhi Bhavan, Cherukara P.O., Perinthalmanna, Malappuram District. ... Petitioners. (Applicants No. 2 & 3 in OA 552/90) (By Advocate Mr. K.A. Abraham) v e r s u s 1. Shri V.N. Mathur, S/o. (not known), The Secretary, Ministry of Railways, Rail Bhawan, New Delhi. 2. Sri S.K. Sharma, S/o. (not known) Sr. Divisional Railway Manager, Southern Railway, Palghat Division, Palghat. 3. Shri Chandiram, S/o. (not known), Sr. Divisional Personnel Officer, Southern Railway, Palakkad. ... Respondents. (Respondents 1, 2 & 3 in OA No. 552/90) (By Advocate Mr. R. Thyagarajan (Sr.) with Mr. Thomas Mathew Nellimoottil) 5. M.A. NO. 234/2008 IN OA NO. 1793 OF 1992 V.V. Gopalakrishnan, S/o. Sri Govindan Nambiar, Residing at Chakyar Madom, Thiruvangadi, Thalassery, Employed as Station Master Gr. I, Southern Railway, Payangadi .... Petitioner. (3rd Applicant in OA No. 1793/1992) (By Advocate Mr. Shafik.M.A) v e r s u s 1. Shri V.N. Mathur, S/o. (not known), The Secretary, Ministry of Railways, Rail Bhawan, New Delhi. 2. Shri Shivendrakumar, S/o. (not known), The General Manager, Southern Railway, Chennai. 3. Sri S.K. Sharma, S/o. (not known) Divisional Railway Manager, Palakkad Division, Southern Railway, Palakkad. ... Respondents. (Respondents 1, 2 & 3 in OA No. 1793/92) (By Advocate Mr. R. Thyagarajan (Sr.) with Mr. Thomas Mathew Nellimoottil) 6. M.A. NO. 235 /2008 IN O. A. No. 626 OF 1993 1. R.Mallika, D/o E. Rangaraj, Office Superintendent Gr. II, Senior Section Engineers Office, Diesel Shed, Erode. 2. P.Arumugham, S/o A.Palaniappan, Office Superintendent Gr.II, General Branch, DRM's Office, Palaghat -2. 3. K.M. Krishnamoorthy, S/o K.V. Murugarathinam, Office Superintendent Gr.II, Senior Divisional Mechanical Engineer's Office, Diesel Loco Shed, Erode:638 002 .... Petitioners (Applicants in OA No 626/93) (By Advocate Mr. K.A. Abraham) v e r s u s 1 Sri. V.N. Mathur S/o(not known), The Secretary, Ministry of Railways, Rail Bhavan, New Delhi 2. Sri. Shivendrakumar, S/o( not known), The General Manager, Southern Railway, Chennai. 3. Sri. Chandiram, S/o (not known), Sr. Divisional Personnel Officer, Southern Railway, Palakkad. ..... Respondents (Respondents 1 to 3 in O.A. No 626/93) (By Advocate Mr. R. Thyagarajan (Sr.) with Mr. Thomas Mathew Nellimoottil) 7. M.A. NO. 236 /2008 IN O.A. No. 1793 OF 1992 1. K.Pradeep Kumar, S/o Sri. K. Balakrishnan Nambiar, Residing at Jayadeepam, Eranholy, P.O. Employed as Station Master Gr.II, Southern Railway, Tellichery. 2. T.K. Pradeepkumar S/o C.V.Baladamodaran, Residing at DARSANA, Fifth Miles, Kadirur.P.O, PIN 670642, Employed as Station Master Gr.II,Southern Railway, Etakot. ... Petitioners (Applicants 4 & 5 in O.A No. 1793/92) (By Advocate Mr. K.A. Abraham) v e r s u s 1. Sri. V.N. Mathur, S/o (not known), The Secretary, Ministry of Railways, Rail Bhavan, New Delhi 2. Sri. Shivendrakumar, S/o( not known), The General Manager, Southern Railway, Chennai. 3. Sri.S.K. Sarma, S/o (not known), Divisional Railway Manager, Palkkad Division, Southern Railway, Palakkad. .... Respondents/ ( Respondents 1 to 3 in O.A. No 1793/92) (By Advocate Mr. R. Thyagarajan (Sr.) with Mr. Thomas Mathew Nellimoottil) 8. M.A. No. 237/2008 IN O.A. NO. 2250 OF 1993 K.N. Rajagopalan Nair, S/o late Sri. Narayanan Nair, Chief Commercial Clerk Gr. III, Southern Railway, Trivandram Division, Ernakulam Jn, Kochi. .... Petitioner ( Applicant in O.A No. 2250/93 ) (By Advocate Mr. K.A. Abraham) v e r s u s 1. Sri. V. Rajeevan S/o (not known), Sr. Divisional Personal Officer, Southern Railway, Thiruvananthapuram. 2. Sri. Shivendrakumr, S/o ( not known), The General Manager, Southern Railway, Park Town, Chennai. 3. Sri. V.N. Mathur S/o (not known), The Secretary, Railway Board, Rail Bhavan, New Delhi .... Respondents (Respondents 1,3, and 4 in O.A. No.2250/93) (By Advocate Mr. R. Thyagarajan (Sr.) with Mr. Thomas Mathew Nellimoottil) 9. M.A. NO. 238/2008 IN O.A. No. 992 OF 1992 James Figarado, S/o Manuel Figarado, Retired Chief Goods Supdt. Gr.I, Irimpanam, Trivandrum Division, Southern Railway, Residing at Rose Glen, Ochamthuruth. PO. Kochi , PIN : 682 205. ..... Petitioner ( Applicant in O.A No. 992/92) (By Advocate Mr. K.A. Abraham) v e r s u s 1. Sri. R. K .Singh, S/o (not known), Railway Board Chairman, Rail Bhavan, New Delhi. 2. Sri. Shivendrakumr S/o( not known), The General Manager, Southern Railway, Park Town, Chennai. 3. Sri. Dr. Narayana, S/o( not known), Divisional Railway Manager, Southern Railway, Thiruvananthapuram. .... Respondents (Respondents 1,3, and 4 in O.A. No. 992/92) (By Advoate Mr. R. Thyagarajan (Sr.) with Mr. Thomas Mathew Nellimoottil) 10. M.A. NO. 239/2008 IN O.A. NO. 603/1993 P.Sankaran, S/o late K.M. Appu Panicker, Retired Chief Booking Clerk, Residing at M.26. AG. K.S.H.B. Colony, Kallepully, Palaghat. ..... Petitioner (Applicant No.3 in O.A No. 603/93) (By Advocate K.A. Abraham) v e r s u s 1 Sri. V.N. Mathur S/o(not known), The Secretary Ministry of Railways, Rail Bhavan, New Delhi 2. Sri. Shivendrakumar S/o( not known), The General Manager, Southern Railway, Palghat Division, Chennai. 3. Sri. Chandiram S/o (not known), Sr. Divisional Personnel Officer, Southern Railway, Palakkad. .... Respondents (Respondents 1 to 3 in O.A. No 603/93) (By Advoate Mr.R. Thyagarajan (Sr.) with Mr. Thomas Mathew Nellimoottil) 11. M.A No. 240/2008 IN O.A. NO. 552/1990 Smt. Tulasi Sreenivas, W/o late P.V. Sreenivasan, who was employed as Head Goods Clerk, Calicut Raiwlay Station, Calicut, Residing at Nandanam, H. 33/3224 Chavarambalam, P.O. Kozhikode-17 ...... Petitioner (Wife of Applicant No.6 in OA 552/90) (By Advocate K.A. Abraham) v e r s u s 1 Sri. V.N. Mathur S/o(not known), The Secretary Ministry of Railways, Rail Bhavan, New Delhi 2. Sri. S.K. Sharma, S/o( not known), Sr. Divisional Railway Manager, Palghat Division, Southern Railway, Palakkad. 3. Sri. Chandiram S/o (not known), Sr. Divisional Personnel Officer, Southern Railway, Palakkad. .... Respondents (Respondents 1 to 3 in O.A. No 552/90) (By Advoate Mr. R. Thyagarajan (Sr.) with Mr. Thomas Mathew Nellimoottil) 12. M.A. NO. 241/2008 IN OA NO. 401 OF 1993 1. K.G.. Muraleedharan, S/o. K. Gopalan Nair, Retired Office Supdt. Gr. II, Office of the DRM, Personnel Branch, Southern Railway, Palakkad, Residing at Aswathy (SSN 60), Saibaba Colony, P.O. Kallekulangara, Palakkad. 2. K. Remavathy, W/o. Sri. K. Sudhakaran, Office Supdt. Gr. II, DRM's Office, Personnel Branch, Divisional Office, Southern Railway, Palakkad, Residing at House No.5, Souparnam, Ramakrishna Nagar, NSS Engineering College P.O., Palakkad : 678 008 3. P. Mallika, D/o. P.K. Kunhappa, Office Supdt. Gr. II, DRM's Office, Personnel Branch, Divisional Office, Southern Railway, Palakkad, Residing at Sree Ranjini, Athira Nagar, Kallekulangara P.O., Palakkad. 4. T. Chandrasekharan, S/o. Thankappan, Retired Office Supdt. Gr. II, DRM's Office, Personnel Branch, Divisional Office, Southern Railway, Palakkad, Residing at Palakkode House, Post Mathur, Palakkad District. 5. T. Meenakshikutty, D/o. B.S.M. Nair, Office Supdt. Gr. II, DRM's Office, Personnel Branch, Divisional Office, Southern Railway, Palakkad, Residing at Thorottil House, Post Kollangode, Palakkad District. 6. N.A. Margret, D/o. Antony, Office Supdt. Gr. II, DRM's Office, Personnel Branch, Divisional Office, Southern Railway, Palakkad, Residing at House No. 6, Malana, Ramakrishna Nagar, NSS Engineering College P.O., Palakkad : 678 008 7. Annamma Philip, D/o. K.V. Philip, Retired Office Supdt. Gr. II, DRM's Office, Personnel Branch, Divisional Office, Southern Railway, Palakkad, Residing at "Supriya", Near KPK Colony, Olavakkode P.O., Palakkad. 8. C. Girija, D/o. M.K. Narayana Menon, Office Supdt. Gr. II, DRM's Office, Personnel Branch, Divisional Office, Southern Railway, Palakkad, Residing at Ashtapadi, Vishnu Nagar, Puduppariyaram, Palakkad District. 9. M.R. Venugopal, S/o. Late K. Rghavan, Office Supdt. Gr. II, DRM's Office, Personnel Branch, Divisional Office, Southern Railway, Palakkad, Residing at Mullathodi, Kariyomkode, Kottai, Palakkad District. 10. P.E. Viswanathan, S/o. Narayanan Nair, Working as Office Supdt. Gr. II, Office of the DRM, Personnel Branch, Divisional Office, Southern Railway, Palakkad, Residing at Prasadam, Near Aranyabhavan Forest Office, Olavakode, Palakkad. ..... Petitioners (Applicants in OA No. 401/93) (By Advocate Mr. Shafik M.A.) v e r s u s 1. Shri V.N. Mathur, S/o. (not known), The Secretary, Ministry of Railways, Rail Bhawan, New Delhi. 2. Sri Pradeep Kumar, S/o. (not known) Chief Personnel Officer, Southern Railway, Chennai. 3. Shri Chandiram, S/o. (not known), Sr. Divisional Personnel Officer, Southern Railway, Palakkad Division, Palakkad. ... Respondents. (Respondents 1, 2 & 3 in OA No. 552/90) (By Advocate Mr. R. Thyagarajan (Sr.) with Mr. Thomas Mathew Nellimoottil) 13. M.A. NO. 242/2008 IN OA NO. 990 OF 2003 1. P.J. Job, S/o. John, Retired Station Master, Padinjaremuriyil Veedu, Nedukunnam P.O., Kottayam District : 686 542. 2. A.K. Muraleedhara Kurup, S/o. Vishnu Namboodiri, Retired Station Master, Umesh Nivas, Venpala P.O., Thiruvalla : 689 114 3. K.A. George, S/o. Alosius, Retired Station Master, Kallukulam, Vadakkekara, Veroor P.O., Kottayam : 686 104 4. K.V. John, S/o. Varghese, Retired Station Master, Kalangodath, Manjodi P.O., Thiruvalla : 689 104 5. Sarasamma John, W/o. P.M. Thommy, Mudayamkulam, Puthanparambil, Channanikkadu P.O., Kottayam : 686 533 6. V.K. Krishnan Nair, S/o. Kunjukrishna Pillai, Retired Station Master, Radhala, PJRR-A-62, Kumarapuram, Medical College P.O., Thiruvananthapuram. .... Petitioners. (By Advocate Mr. Martin G. Thottan) v e r s u s Shri Shivendrakumar, General Manager, Southern Railway, Headquarters Office, Park Town, Chennai-3 . .... Respondent. (By Advocate Mr.R. Thyagarajan (Sr.) with Mr. Thomas Mathew Nellimoottil) 14. M.A. NO. 243/2008 IN O.A. NO. 2078 OF 1993 P.O. Variath, S/o late P.V. Ouseph, Retired Chief Goods Supervisor, CGS/ Kalamassery, Residing at Vathakkade, Thurvaoor.P.O. Via Angamaly ...... Petitioner (Applicant in O.A No. 2078/93) (By Advocate K.A. Abraham) v e r s u s 1. Sri. V. Rajeevan, S/o (not known), Sr. Divisional Personnel Officer, Southern Railway, Thiruvananthapuram. 2. Sri. Shivendrakumar, S/o( not known), The General Manager, Southern Railway, Park Town, Chennai. Sri. V.N. Mathur, S/o(not known), The Secretary, Railway Board, Rail Bhavan, New Delhi ....Respondents (Respondents 1, 3, and 4 in O.A. No. 2078/93) (By Advocate Mr. R. Thyagarajan (Sr.) with Mr.Thomas Mathew Nellimoottil) 15. M.A. NO. 244/2008 IN O.A. NO. 552/1990 1. C.Pankajakshan, S/o C. Kutty, Retired Chief Booking Supervisor, Southern Railway, Palakkad, H.No. 111653, Residing at Kozhipurath House, Near District Jail, Kozhikode. 673004. 2. K.P. Vijayaraghavan, S/o Krishnan, Kalarikkandyparambath, Retired Chief Parcel Clerk, Southern Railway, Calicut, Residing at Krishna Nivas, Near Chanthaprambu, Badagara. 3. M. Balagopalan, S/o late Madhavan, Retired Chief Booking Clerk, Southern Railway, Shornur, Residing at Sreyas, 44/1323, Kannapuram, Chettupuzha. ...... Petitioner (Applicants 1, 4 & 5 in O.A No. 552/90) (By Advocate Mr. K.A. Abraham) v e r s u s 1. Shri V.N. Mathur, S/o. (not known), The Secretary, Ministry of Railways, Rail Bhawan, New Delhi. 2. Sri S.K. Sharma, S/o. (not known) Sr. Divisional Railway Manager, Palakkad Division, Southern Railway, Palakkad. 3. Shri Chandiram, S/o. (not known), Sr. Divisional Personnel Officer, Southern Railway, Palakkad. ... Respondents. (Respondents 1, 2 & 3 in OA No. 552/90) (By Advocate Mr. R. Thyagarajan (Sr.) with Mr. Thomas Mathew Nellimoottil) O R D E R
HON'BLE DR. K B S RAJAN, JUDICIAL MEMBER Fourteen years ago, fourteen O.As, on identical subject matter, were clubbed together and the following core questions considered:
(a) Whether reservation is to be applied on the cadre strength or on the vacancies arising; and
(b) Whether seniority in the lower post among employees belonging to non-reserved and reserved category would be reflected in the higher post, irrespective of earlier promotions obtained by employees belonging to a reserved category.
2. By that time, a number of decisions had already been taken by different Benches of the Tribunal and also by the Hon'ble Allahabad High Court, and the decisions by the Allahabad High Court included JC Malick vs Union of India 1978 (1) SLR 844 and Vir Pal Singh Chauhan & Others vs Divisional Railway Manager, Central Railway, and another (1987) 4 ATC 685. The decision of the Allahabad Bench in the case of Vir Pal Singh Chauhan (supra) is "It is clear that reservation is to be made on the basis of posts and not on the basis of vacancies." This answered the first question as above.
3. The next question is whether seniority in the lower category would be carried over to the higher category, in spite of members belonging to the reserved category getting earlier promotion. Again, the Allahabad High Court in the said case of Vir Pal Singh Chauhan stated, "a person who was junior and got promoted.... by virtue of special provisions cannot claim protection of seniority against his erstwhile senior who was waiting for his chance but could not be promoted because of reservation."
4. Following the above and other precedents, as narrated in its order dated 6th September 1994, this Bench held:
(a) that the principle of reservation operates on the cadre strength;
(b) that seniority vis-a-vis reserved and un-reserved categories of employees in the lower category will be reflected in the promoted category also notwithstanding the earlier promotion obtained on the basis of reservation.
5. Respondent Railways were directed that applying the above principles, they would work out the reliefs sought for in all the fourteen O.As. Time frame calendared was six months.
6. In fact the above direction was issued also on the basis of the fact that the Apex Court in CA No. 2017/78 directed to implement the decision in J.C. Malik pending decision of the Civil Appeal. Decision in J.C. Malik was also the same as above.
7. The Railways had challenged the above order of this Bench in SLP (C) No. 10691/1995 but the said SLP was dismissed stating, "These matters are fully covered by the decision of this Court in R.K. Sabharwal & Ors vs State of Punjab & Ors (1995) 2 SCC 745 and Ajit Singh Januja and Ors vs State of Punjab and others AIR 1996 SC 1189. The Special Leave Petitions are, therefore, dismissed." Thus, the judgment of the Tribunal qua inter-parties became final.
8. As the railways did not comply with the order of this Tribunal, even after the dismissal of the SLP filed by the Apex Court, Shri E.A. Sathyanesan, one of the four applicants in OA No. 483/91, which was one of the afore said fourteen O.As decided on 6th September 1994, moved the Tribunal in Contempt Petition (Civil) No. 68/96. on the ground that the Tribunal's earlier directions dated 6-91994 had not been complied with, within the period specified therein. The Tribunal, however, having regard to the observations made by this Court in its order dated 30-8-1996, observed that as both in the case of "Sabharwal (1995) 2 SCC 745 " as also in Ajit Singh (I) (1996) 2 SCC 715, the decision was directed to be applied with prospective effect, the appellants were not entitled to any relief, stating:
"Special leave petitions were not dismissed without reasons. The Apex Court has given reason for dismissing the SLPs. When such reason is given, the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India."
9. The Tribunal, purporting to apply the principles laid down in the aforementioned cases, held that the respondents herein couldnt be said to have disobeyed its directions and committed contempt. The contempt petition was thus dismissed vide order dated 25th February 1997.
10. Against the aforesaid decision of the Tribunal, the applicant Sathyanesan moved the matter before the Apex Court wherein the contention of the applicant as stated by the Apex Court was that 'the Tribunal misread and misapplied the decisions of this Court holding that the entire judgment rendered by this Court in Sabharwal and Ajit Singh (I) had been given retrospective effect'. On this point, the Apex Court, in para 5 of its judgment held, "The learned counsel for the appellant appears to be correct." The Apex Court, after extracting certain portions from the judgment in the case of R.K. Sabharwal, held "What was, thus, made prospective was the application of the judgment."
11. The portion referred to by the Apex Court from out of 'Sabharwal' is as under:
"10. We may examine the likely result if the roster is permitted to operate in respect of the vacancies arising after the total posts in a cadre are filled. In a 100-point roster, 14 posts at various roster points are filled from amongst the Scheduled Caste/Scheduled Tribe candidates, 2 posts are filled from amongst the Backward Classes and the remaining 84 posts are filled from amongst the general category. Suppose all the posts in a cadre consisting of 100 posts are filled in accordance with the roster by 31-12-1994. Thereafter in the year 1995, 25 general category persons (out of the 84) retire. Again in the year 1996, 25 more persons belonging to the general category retire. The position, which would emerge, would be that the Scheduled Castes and Backward Classes would claim 16% share out of the 50 vacancies. If 8 vacancies are given to them then in the cadre of 100 posts the reserved categories would be holding 24 posts thereby increasing the reservation from 16% to 24%. On the contrary if the roster is permitted to operate till the total posts in a cadre are filled and thereafter the vacancies falling in the cadre are to be filled by the same category of persons whose retirement etc. caused the vacancies then the balance between the reserved category and the general category shall always be maintained. We make it clear that in the event of non-availability of a reserved candidate at the roster point it would be open to the State Government to carry forward the point in a just and fair manner."
12. It is appropriate to quote para 5 of the judgment in R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745, which is closely knit with the subject matter and the same is as under:
" 5. ....... The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of "running account" is to make sure that the Scheduled Castes/Schedule Tribes and Backward Classes get their percentage of reserved posts. The concept of "running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation. "16% of the posts ..." are reserved for members of the Scheduled Castes and Backward Classes. In a lot of 100 posts those falling at Serial Numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved and earmarked in the roster for the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Castes. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, 22nd and onwards up to 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The "running account" is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster. The operation of the roster and the "running account" must come to an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at roster points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation."
14. After 'Sabharwal', came Vir Pal Singh Chauhan in which the Apex Court has held as under"
"Be that as it may, as a result of the decision in R.K. Sabharwal and the views/findings recorded by us hereinabove, the following position emerges:
(i) Once the number of posts reserved for being filled by reserved category candidates in a cadre, category or grade (unit for application of rule of reservation) are filled by the operation of roster, the object of rule of reservation should be deemed to have been achieved and thereafter the roster cannot be followed except to the extent indicated in para 5 of R.K. Sabharwal. While determining the said number, the candidates belonging to the reserved category but selected/promoted on their own merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates.
(ii) The percentage of reservation has to be worked out in relation to number of posts in a particular cadre, class, category or grade (unit for the purpose of applying the rule of reservation) and not with respect to vacancies.
(iii) So far as Railway Guards in Railway service are concerned - that is the only category we are concerned herewith - the seniority position in the promoted category as between reserved candidates and general candidates shall be the same as their inter se seniority position in Grade C at any given point of time provided that at that given point of time, both the general candidates and the reserved category candidates are in the same grade. This rule operates whether the general candidate is included in the same batch of promotees or in a subsequent batch. (This is for the reason that the circulars/letters aforesaid do not make or recognise any such distinction.) In other words, even if a Scheduled Caste/Scheduled Tribe candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted Scheduled Caste/Scheduled Tribe candidate. The earlier promotion of the Scheduled Caste/Scheduled Tribe candidate in such a situation does not confer upon him seniority over the general candidate even though the general candidate is promoted later to that category".
15. In the judgment in Sathyanesan, the Apex Court has further held as under:
10. In Union of India v. Virpal Singh Chauhan this Court referring to Sabharwal held:
"It may be partly because the rule now enunciated in R.K. Sabharwal was not there and was not being followed. It may also be that such a result has been brought about by a combined operation of the factors mentioned in (i) and (ii) above. The fact remains that the situation - assuming that it is what is described by the general candidates - cannot be rectified with retrospective effect now. The Constitution Bench in R.K. Sabharwal too has directed that the rule enunciated therein shall have only prospective operation. So far as the present appeals are concerned, it is sufficient to direct that the Railway Authorities shall hereinafter follow Rules (i), (ii) and (iii) (stated in para 29) with effect from the date of judgment in R.K. Sabharwal i.e. 10-2-1995. ....... ..........
11. Yet again in Ajit Singh (I) v. State of Punjab this Court referring to Sabharwal case as also to the other decisions, held as under:
"As such it will be only rational, just and proper to hold that when the general category candidate is promoted later from the lower grade to the higher grade, he will be considered senior to a candidate belonging to the Scheduled Caste/Tribe who had been given accelerated promotion against the post reserved for him. Whenever a question arises for filling up a post reserved for Scheduled Caste/Tribe candidate in a still higher grade then such candidate belonging to Scheduled Caste/Tribe shall be promoted first but when the consideration is in respect of promotion against the general category post in a still higher grade then the general category candidate who has been promoted later shall be considered senior and his case shall be considered first for promotion applying either principle of seniority-cum-merit or merit-cum-seniority. If this rule and procedure is not applied then result will be that majority of the posts in the higher grade shall be held at one stage by persons who have not only entered service on the basis of reservation and roster but have excluded the general category candidates from being promoted to the posts reserved for general category candidates merely on the ground of their initial accelerated promotions. This will not be consistent with the requirement or the spirit of Article 16(4) or Article 335 of the Constitution.
........ ........ .........
13. As regards the interpretation as well as the effect of the prospective operation of "Sabharwal " as also "Ajit Singh (I) ", it was held respectively as under:
9. It is axiomatic in service jurisprudence that any promotions made wrongly in excess of any quota are to be treated as ad hoc. This applies to reservation quota as much as it applies to direct recruits and promotees' cases. If a court decides that in order only to remove hardship such roster- point promotees are not to face reversions - then it would, in our opinion, be necessary to hold - consistent with our interpretation of Articles 14 and 16(1) - that such promotees cannot plead for grant of any additional benefit of seniority flowing from a wrong application of the roster. In our view, while courts can relieve immediate hardship arising out of a past illegality, courts cannot grant additional benefits like seniority which have no element of immediate hardship. Thus, while promotions in excess of roster made before 10-2-1995 are protected, such promotees cannot claim seniority. Seniority in the promotional cadre of such excess roster-point promotees shall have to be reviewed after 10-2-1995 and will count only from the date on which they would have otherwise got normal promotion in any future vacancy arising in a post previously occupied by a reserved candidate. That disposes of the 'prospectivity' point in relation to Sabharwal.
.... ... ... ...
92. Where, before 1-3-1996 i.e. the date of Ajit Singh (I) judgment, at Level 3, there were reserved candidates who reached there earlier and also senior general candidates who reached there later (but before the reserved candidate was promoted to Level 4) and when in spite of the fact that the senior general candidate had to be treated as senior at Level 3 [in view of Ajit Singh (I)], the reserved candidate is further promoted to Level 4 - without considering the fact that the senior general candidate was also available at Level 3 - then, after 1-3-1996, it becomes necessary to review the promotion of the reserved candidate to Level 4 and reconsider the same (without causing reversion to the reserved candidate who reached Level 4 before 1-3-1996). As and when the senior reserved candidate is later promoted to Level 4, the seniority at Level 4 has also to be refixed on the basis of when the reserved candidate at Level 3 would have got his normal promotion, treating him as junior to the senior general candidate at Level 3. Chander Pal v. State of Haryana has to be understood in the manner stated above." (emphasis supplied)
14. The same position was further reiterated by this Court in M.G. Badappanavar v. State of Karnataka in the following terms:
"12. There is no specific rule here permitting seniority to be counted in respect of a roster promotion. In Ajit Singh (I) a circular which gave seniority to the roster-point promotees was held to be violative of Articles 14 and 16.
In Virpal which was later decided, this Court used the words it is open to the State and it gave an impression that the State could give seniority to roster-point promotees. But in Ajit Singh (II) this aspect has since been clarified. It was held that seniority rules like Rules 2
(c), 4 and 4-A permitting seniority to be counted from the date of initial promotion, govern normal promotions made according to rules - by seniority at basic level, by seniority-cum-fitness or by seniority-cum-merit or by selection - but not to promotions made by way of roster.
The roster promotions were, it was held, meant only for the limited purpose of due representation of backward classes at various levels of service. If the rules are to be interpreted in a manner conferring seniority to the roster- point promotees, who have not gone through the normal channel where basic seniority or selection process is involved, then the rules, it was held will be ultra vires Article 14 and Article 16 of the Constitution of India.
Article 16(4-A) cannot also help. Such seniority, if given, would amount to treating unequals equally, rather, more than equals."
16. After thoroughly discussing, the law discerned by the Apex Court could be congealed as under:
(a) The concept of "running account" has to be so interpreted that it does not result in excessive reservation....
(b) The "running account" is to operate only till the quota provided under the impugned instructions is reached and not thereafter.
(c) As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at roster points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes.
(d) If the roster is permitted to operate till the total posts in a cadre are filled and thereafter the vacancies falling in the cadre are to be filled by the same category of persons whose retirement etc. caused the vacancies then the balance between the reserved category and the general category shall always be maintained. (R.K. Sabharwal)
(e) Once the number of posts reserved for being filled by reserved category candidates in a cadre, category or grade (unit for application of rule of reservation) are filled by the operation of roster, the object of rule of reservation should be deemed to have been achieved and thereafter the roster cannot be followed except to the extent indicated in para 5 of R.K. Sabharwal. While determining the said number, the candidates belonging to the reserved category but selected/promoted on their own merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates. (Vir Pal Singh Chauhan)
(f) Whenever a question arises for filling up a post reserved for Scheduled Caste/Tribe candidate in a still higher grade then such candidate belonging to Scheduled Caste/Tribe shall be promoted first but when the consideration is in respect of promotion against the general category post in a still higher grade then the general category candidate who has been promoted later shall be considered senior and his case shall be considered first for promotion applying either principle of senioritycum-
merit or merit-cum-seniority. If this rule and procedure is not applied then result will be that majority of the posts in the higher grade shall be held at one stage by persons who have not only entered service on the basis of reservation and roster but have excluded the general category candidates from being promoted to the posts reserved for general category candidates merely on the ground of their initial accelerated promotions. (Ajit Singh-I)
(g) While promotions in excess of roster made before 10-2-1995 are protected, seniority in the promotional cadre of such excess roster- point promotees shall have to be reviewed after 10-2-1995 and will count only from the date on which they would have otherwise got normal promotion in any future vacancy arising in a post previously occupied by a reserved candidate. ...
(h) Where, at Level 3, there were reserved candidates who reached there earlier and also senior general candidates who reached there later (but before the reserved candidate was promoted to Level 4) and when the reserved candidate is further promoted to Level 4 - without considering the fact that the senior general candidate was also available at Level 3 - then, it becomes necessary to review the promotion of the reserved candidate to Level 4 and reconsider the same (without causing reversion to the reserved candidate who reached Level 4 before 1-3-1996). As and when the senior reserved candidate is later promoted to Level 4, the seniority at Level 4 has also to be refixed on the basis of when the reserved candidate at Level 3 would have got his normal promotion, treating him as junior to the senior general candidate at Level 3.(Ajit Singh II)
17. In respect of the decision by the Tribunal dated 6th September 1994, the Apex Court in para 15 of the judgment in E.A. Sathyanesan, has held as under:
"15. In view of the aforementioned authoritative pronouncement we have no other option but to hold that the Tribunal committed a manifest error in declining to consider the matter on merits upon the premise that Sabharwal and Ajit Singh (I) had been given a prospective operation. The extent to which the said decisions had been directed to operate prospectively, as noticed above, has sufficiently been explained in Ajit Singh (II) and reiterated in M.G. Badappanavar"
18. In M.G. Badappanavar, (2001) 2 SCC 666, the facts (as reflected in M. Nagaraj v. Union of India,(2006) 8 SCC 212) were as follows: the appellants were general candidates. They contended that when they and the reserved candidates were appointed at Level 1 and junior reserved candidates got promoted earlier on the basis of roster points to Level 2 and again by way of roster points to Level 3, and when the senior general candidate got promoted to Level 3, then the general candidate would become senior to the reserved candidate at Level 3. At Level 3, the reserved candidate should have been considered along with the senior general candidate for promotion to Level 4. In support of their contention, the appellants relied upon the judgment of the Constitution Bench in Ajit Singh (II). The above contentions raised by the appellants were rejected by the Tribunal. Therefore, the general candidates came to this Court in appeal. The Apex Court, in that case held as under"
"According to Ajit Singh II if by the date when the reserved candidates were promoted as Superintending Engineers, the general candidates had already reached the said level by normal promotion system, then the general candidates must be treated as seniors as Executive Engineers to the reserved candidates. The general candidates had a right under Articles 14 and 16 to be considered for promotion as Superintending Engineers as seniors to the reserved candidates....
15. It is, therefore, obvious that, in accordance with Ajit Singh II the seniority lists in the category of Executive Engineers has to be first reviewed, treating the general candidates as seniors to such of the reserved candidates provided the senior general candidates reached Level 3 (Executive Engineer) before the reserved candidate concerned was promoted as Superintending Engineer. After reviewing the seniority and refixing the same at the level of Executive Engineer, the promotions to the category of Superintending Engineer have to be next reviewed. While considering the promotions of the reserved candidates at Level 1 (Junior Engineer called later as Assistant Engineer) and at Level 2 (Assistant Executive Engineer), the principles laid down in R.K. Sabharwal case have also to be kept in mind, as explained in Ajit Singh II. Once the promotions at the level of Superintending Engineers are reviewed, the further promotions to the post of Chief Engineer or equivalent posts or posts higher up have also to be reviewed.
16. However, in Ajit Singh II reversions were directed not to be made in respect of reserved candidates promoted on the basis of roster-point seniority before 1-3-1996. In other words, notwithstanding the review of seniority at various levels starting from the level of Executive Engineer and the consequent downgradation of seniority, if any, at that level, any promotion of a reserved candidate to the post of Superintending Engineer which took place before 1-3-1996, contrary to principles now laid down in Ajit Singh II should not be disturbed. In Ajit Singh II this Court also explained what was meant by the prospectivity of Sabharwal w.e.f. 10-2-1995. That has also to be borne in mind.
17. In view of the above general directions, we are therefore not going into individual facts and seniority etc. details of which were placed before us by way of various charts. In our view, the general directions given in this judgment will be sufficient for the purposes of disposal of these appeals.
18. It was stated before us that the 1st appellant had retired but the 2nd appellant is in service. It was stated that several respondents had also retired. It was also stated that one Shri R.A. Audi, a reserved candidate is now posted as Secretary, in the Department and that therefore, there is no need to pass any orders. We do not agree.
19. In fact, some general candidates who have since retired, were indeed entitled to higher promotions, while in service if Ajit Singh II1 is to apply, they would, get substantial benefits which were unjustly denied to them. The decision in Ajit Singh II is binding on us. Following the same, we set aside the judgment of the Tribunal and direct that the seniority lists and promotions be reviewed as per the directions given above, subject of course to the restriction that those who were promoted before 1-3-1996 on principles contrary to Ajit Singh II need not be reverted and those who were promoted contrary to Sabharwal before 10-2-1995 need not be reverted. This limited protection against reversion was given to those reserved candidates who were promoted contrary to the law laid down in the above cases, to avoid hardship. (Emphasis supplied)
20. We are here adding one more protection to the retired reserved candidates in these cases. Though their seniority is revised at the level of Executive Engineer or above and though they might not have been promoted if the law laid down by this Court in Ajit Singh II and Sabharwal (as explained in Ajit Singh II ) were applicable to them at the relevant time, still for purposes of their retiral benefits, the said benefits shall be computed on the basis of the posts factually held by them at the time of retirement and on the emoluments actually drawn by them and not on the basis of the result of any review that is now directed.
21. So far as the general candidates are concerned, their seniority will be restored in accordance with Ajit Singh II and Sabharwal (as explained in Ajit Singh II ) and they will get their promotions accordingly from the effective dates. They will get notional promotions but will not be entitled to any arrears of salary on the promotional posts. However, for purposes of retiral benefits, their position in the promoted posts from the notional dates - as per this judgment - will be taken into account and retiral benefits will be computed as if they were promoted to the posts and drawn the salary and emoluments of those posts, from the notional dates. (Emphasis supplied)
19. Ultimately, the Apex Court in respect of the order dated 6th September 1994 in the present batch of fourteen O.As, directed as under:
"16. However, we may notice that in the decisions cited above, this Court has refused to go into the individual cases and directed the parties to ventilate their grievances before the Tribunal. As noticed above, the Tribunal by reason of judgment dated 6-9-1994, directed the authorities and Railway Administration to work out the reliefs in terms of the issues therein. It appears that the same has not been complied with. That being the position, it will be fit and proper if necessary directions, as required, may be issued by the Tribunal. We hope and trust, keeping in view that the matter is pending for a long time before the Tribunal, the same shall receive its expeditious consideration. (Emphasis supplied)"
20. It was after the above mandate issued by the Apex Court that the Tribunal in M.A. No. 272/04 in CPC 68/96 in OA 482/91 issued the following clear directions to the Railway authorities vide order dated 20th April, 2004:
"After giving our careful consideration to all the aspects of the matter, keeping in view the facts the grievance of the petitioner is long pending, we direct the respondents in the O.A. to issue necessary resultant orders in the case of the applicants in O.A. No. 552/90 and connected cases including the petitioner applying the principles laid down in the judgment and making available to the individual petitioner the resultant benefits within a period of four months from today....."
21. Respondent Railways had filed Review Application against the order dated 18th December 2003 of the Apex Court vide Dy No. 18707/04 on 26th August 2004, but the same was dismissed on 30-09-2004. However, in view of the fact that the larger issue relating to the constitutional validity of the 85th Amendment was pending consideration by the Apex Court at that point of time, permission to file SLP against the above order dated 20th April 2004 of this Tribunal was filed by the Railways and
21. The Apex Court had granted permission for the same, tagged the petition with SLP (C) No. 3788/2003 (CA No. 3858/2003) and stayed the above said order, vide order dated 05th November 2004 in CC No. 9969/2004.
22. However, ultimately, the said CA No. 3858/2003 and connected C.As with connected S.L.Ps were rendered infructuous in view of the conclusion arrived at by the Constitution Bench in Paragraphs 121 and 122 of M. Nagaraj & Ors vs Union of India & Others, (2006) 8 SCC 212, vide order dated 19th February, 2008.
23. In para 121 and 122 of the judgment in M. Nagaraj (supra), the Apex Court has held as under:
" 121. The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article
335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwal .
122. We reiterate that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse."
24. The 85th Amendment came into force w.e.f. 17th June 1995. It is after the said amendment that the benefit of the provisions of Art. 16(4-B) of the Constitution would be available to the reserved candidates. In other words, in so far as the present cases are concerned, since the matter relates to pre-1995 and further, since there is a specific direction from the Apex Court vide judgment in Sathyanesan, the law laid down by the Apex Court in R.K. Sabharwal, Vir Pal Singh Chauhan, Ajit Singh I and II as affirmed in M.G. Badappanavar shall have to be followed.
25. Though earlier all the C.Ps were listed for hearing, on finding that the Respondents cannot be faulted with in not complying with the directions, as the matter was agitated before the Apex Court and when stay of operation of the order dated 20th April, 2004 had been granted, the Contempt petitions have all been converted into one of Execution Applications and thus, M.A. Numbers came to be given to all the C.Ps.
26. Counsel for the applicant argued that it is a matter of fact that the respondents had granted all the benefits to E.A. Sathyanesan, but have not extended the same benefits to other applicants in OA No. 481/2003 and for that matter to none in any other applications. It has also been submitted by the counsel that under the heading, "Implementation of orders dt. 06-09-1994 in OA No. 622/93 filed by Shri Pothan Joseph and 6 others before the Central Administrative Tribunal/Ernakulam Bench" did refer to the decision of the Apex Court in Civil Appeal No. 5629/97 and the Court's direction remitting the matter to Tribunal and also the direction of this Tribunal in the wake of the afore said decision of the Apex Court, vide order dated 20th April 2004 and had rescheduled the seniority of the applicants therein in the post of Chief Clerks in Mechanical IP Branch and the consequential and telescopic advancement of the dates in the higher posts, vide order dated 2nd November, 2004. Similarly, in respect of other applicants, vide order dated 20th August, 2004, the respondents had rescheduled the promotion of the respective individuals, but made that such a revision is subject to the outcome of the SLP/Review application filed before the Apex Court. The Review stood dismissed and in so far as the SLP is concerned, the same was initially clubbed with CA No. 3858/2004 but ultimately, the same too was 'dismissed as infructuous' in view of the Constitution Bench decision vide para 121 and 122 of the judgment in the case of M. Nagaraj (supra). The counsel thus argued that the respondents are under an obligation to carry out in letter and spirit the directions of the Tribunal as contained in order dated 6th September 1994 and whatever benefits have been extended to E.A. Sathyanesan, the same should be extended to others similarly situated.
27. Senior Counsel for the respondents attempted to argue on the premises that Sathyanesan derived the benefit on the basis of the decision by the Apex Court in his case, whereas, the decision in that case would not give any 'fresh cause of action' to any of the other applicants to file Contempt Petition after ten years of the judgment dated 6-09-1994 and as such, the M.A. is liable to be dismissed. Judgment in the case of Hukam Raj Khinvsara vs Union of India (1997) 4 SCC 284 had been cited in this regard.
28. It has also been contended by the respondents as under:
"It is clear that what is meant by Sabharwal's judgment was with regard to the operation of rosters and findings therein shall be operative on and from 10-02-2005. So any roster based on the findings can be prepared only on and after 10-02-1995. going by the directives contained in the judgment dated 6-9-94, any relief can be worked out only for a period after 10-2-1995 since the judgment dated 6-9-94 has merged with the judgment in Sabharwal's case. The applicants were very well aware of the above legal position and therefore were not having any grievances regarding non implementation of the judgment dated 6-9-94 till 2004. It was only in 2004 after a lapse of ten years the applicants approached this Hon'ble Tribunal alleging wilful non compliance of the directions. Hence the applicants were contended with the further consequential action taken by the Railway Administrations and circulars issued on the question of seniority from time to time and has acquired to what all transpired thereafter. The seniority rules underwent changes based on legislations and pronouncement of the Apex Court. At no point of time the applicants were aggrieved of such seniority rules. It is not their case that they have ever challenged the seniority list published or promotions ordered based on such seniority list. The Sister Bench of this Tribunal while dismissing a batch of original application Nos 11/04 and connected cases as per order dated 10-01-107 was pleased to hold that the issue is covered by the Constitution Bench decision in Nagaraj vs Union of India and others."
29. It has also been contended by the respondents that the Madras Bench of the Tribunal has, in respect of identical issue, dismissed a batch of O.As filed before it vide Order dated 10th January 2007 in OA No. 1130 of 2004 and connected cases, in which the final decision is as under:
"For all these reasons, the O.As are liable to be dismissed in reference to excess promotions on the ground that the relief sought for by the applicants as such is too vague and general and cannot be granted and that the said issue is covered by the Constitution Bench decision in Nagaraj Vs Union of India (supra)."
30. In addition to the above, the Railways have relied upon the order dated 08-03-2002 (issued in the wake of the 85th Amendment to the Constitution) withdrawing the earlier order dated 28-02-1997 (issued pursuant to the decision of the Apex Court in the case of Vir Pal Singh Chauhan) and corresponding amendment made to para 319-A of the I.R.E.M Vol II. In fact the Railways have protected the seniority and promotion granted on the basis of earlier provisions of Para 319-A IREM Vol II during the period from 10-02-1995 to 16-06-1995 (both days inclusive).
31. It has also been argued by the senior counsel for the respondents that in so far as promotion and seniority of reserved candidates within their quota is concerned, the same cannot be faulted with. All that is to be seen is that there shall be no excess reserved candidates who would have been promoted and seniority granted. For this purpose, the applicants are supposed to give out the details thereof whereas no such details have been given by them and thus, the prayer is vague and direction of the Tribunal may, thus, not be implemented.
32. Certain other decisions have also been cited by the senior counsel for the respondents to support their contentions. A feeble attempt was made to justify the action on the basis of the liberty given to the respondents to nullify an order dated 3rd November 2004 after filing an affidavit to that effect before the Apex Court. Counsel for the applicant submitted that the affidavit filed by the respondents in May 2007 in SLP No. 23467/04 has not been recognized by the Apex Court.
33. Arguments were heard and documents perused. Shri K.A.Abraham, learned counsel for the applicants in various OAs has filed compilation of certain documents/decisions in support of his arguments, which have also been considered. The following is the chain of decisions in regard to these batch cases:
(a) Order dated 6th September 1994 with specific directions to the respondents.
(b) Order dated 25th February 1997 in CP (C) No. 68/96 in OA No. 483/93
(c) Judgment of the Apex Court, dated 18th December 2003, in CA No. 5629/1997 E.A. Sathyanesan vs V.K. Agnihotri and others
(d) Order dated 20th April, 2004 in M.A. No. 272/2004 in CPC 68/96 in OA No. 483/1991,
(e) Interim order of stay of order dated 20th April, 2004 vide Apex Court order dated 05th November 2004 and tagging up the same with CA No. 3858/2003.
(f) Order of the Apex Court dated 19th February 2008 in CA No. 3857/03, 3858/03 and connected C.As.
34. In its judgment dated 18th December 2003, the Apex Court has clearly held as under:
"As noticed above, the Tribunal by reason of judgment dated 6-9-1994, directed the authorities and Railway Administration to work out the reliefs in terms of the issues therein. It appears that the same has not been complied with. That being the position, it will be fit and proper if necessary directions, as required, may be issued by the Tribunal."
35. It was in pursuance to the above order that order dated 20th April, 2004 in MA No. 272/04 was passed. This order was challenged by the respondents through a Special Leave Petition which was tagged with 3858/2003 but ultimately, the same came to be dismissed as infructuous.
36. The question is whether the dismissal of the special leave petition filed by the respondents, could be construed to mean that the order of the Tribunal dated 20-04-2004 has been virtually set side, as stated by the respondents in para 11 of some of the replies filed by them recently to the M.As.
37. 'M. Nagaraja' decided the constitutional validity of the 85th Amendment to the Constitution and the stamp of the Apex Court has been affixed in affirmative over the same. Thus, Art. 16(4-B) of the Constitution has been effective from 1706- 1995. But the case of the applicants belong to a period posterior to the same. Since the inter-party judgment has attained finality in so far as order dated 6th September 1994 is concerned, subsequent decision would not have any impact against the same. In this regard, support could be had from the decision of the Apex Court in the case of Gorie Gouri Naidu (Minor) v. Thandrothu Bodemma, (1997) 2 SCC 552, wherein the Apex Court has held as under:
"The law is well settled that even if erroneous, an inter-party judgment binds the party if the court of competent jurisdiction has decided the lis."
38. Support could also be had from the observation of the Apex Court in the case of Dr. Chandra Prakash v. State of U.P.,(2002) 10 SCC 710, wherein it has been stated:
"33. Before answering the questions we wish to make it clear that the interveners who have final orders in their favour from either this Court or the High Court with regard to their appointments and seniority, are entitled and will continue to enjoy the benefits granted thereby. This decision will not operate to jeopardize the reliefs finally obtained by them from the Court."
39. In Union of India v. Madras Telephone SC & ST Social Welfare Assn., (2006) 8 SCC 662, the Apex Court has held as under:
" 21. Having regard to the above observations and clarification we have no doubt that such of the applicants whose claim to seniority and consequent promotion on the basis of the principles laid down in the Allahabad High Courts judgment in Parmanand Lal case have been upheld or recognised by the Court or the Tribunal by judgment and order which have attained finality will not be adversely affected by the contrary view now taken in the judgment Madras Telephones . Since the rights of such applicants were determined in a duly constituted proceeding, which determination has attained finality, a subsequent judgment of a court or Tribunal taking a contrary view will not adversely affect the applicants in whose cases the orders have attained finality. (Emphasis supplied)"
40. Again, in Comorin Match Industries (P) Ltd. v. State of T.N., (1996) 4 SCC 281 the observation of the Court is as under:
"29. In the case of S.R. Bhagwat v. State of Mysore (1995) 6 SCC 16, a Bench of three Judges held that a judgment which had attained finality and was binding upon the State could not be overruled by any legislative measure."
41. In Bhanu Kumar Jain v. Archana Kumar,(2005) 1 SCC 787, the Apex Court has stated, "If we refer to Order 47 of the Code (Explanation to Rule 1) review is not permissible on the ground 'that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment'. "
42. All the above would go to show that the decision which has attained finality is incapable of being modified either when a subsequent judgment is diagonally opposite to the earlier decision.
43. In the instant cases, therefore, the order dated 6th September 1994 having attained finality and the Apex Court having given the direction to the Tribunal to pass necessary directions, as required, and the Tribunal in its order dated 20th April, 2004 having so issued necessary direction, and this order not having been upset by the Apex court, the direction as contained in order dated 20th April 2004 has to be implemented. That the respondents have implemented accordingly in the case of E.A. Sathyanesan and that certain other orders (orders dated 20th August 2004 and 2nd November 2004) having also been passed, partially implementing the orders of the Tribunal makes it imperative that the Respondents do comply with the order in its full intent and spirit. Whatever benefit Sathyanesan has been granted, the same are available to all other applicants in the O.As decided on 6th September 1994. In fact, the said order being of the character of a judgment in rem all those similarly situated should also, in all fairness, with a view to maintaining equality amongst equal, be afforded the very same benefits. In this regard, decision of the Apex Court in the case of Amrit Lal Berry vs Collector of Customs and Excise, (1975) 4 SCC 714 and other decisions such as G.C. Ghosh v. UOI, [ (1992) 19 ATC 94 (SC) ], dated 20-7-1998; K.I. Shepherd v. UOI [(JT 1987 (3) SC 600)]; Abid Hussain v. UOI [(JT 1987 (1) SC 147] and para 126.5 of the V Central Pay Commission refer.
44. We have been told that majority of the applicants have all but retired and the benefit they would be getting would be in their terminal benefits. And as such, according to the applicant's counsel, there would not be any heavy financial burden upon the Railways in complying with these orders in the same fashion as they have done in the case of E.A. Sathyanesan.
45. In view of the above, all the M.As are allowed. The respondents are directed to extend the same benefits to those are similarly situated as E.A. Sathyanesan and in respect of the applicants, if their cases could be distinguished from that of Sathyanesan, they may be informed by a speaking order. As the applicants have been waiting for as many as 14 years, with the judgment in their favour in their hands, action by the respondents should be very much on priority basis. A period of six months is calendared for this purpose. It would be appropriate if the General Manager, Southern Railways or any of the senior officers duly authorized by the General Manager, Southern Railway, monitors the progress in implementation by various Divisional Railways so that justice to all would be rendered.
(DATED, THE 15TH DECEMBER, 2008) (Dr. K S SUGATHAN) (Dr. K B S RAJAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER cvr.