Central Administrative Tribunal - Ernakulam
G. Somanathan Nair vs Union Of India Represented By on 22 September, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH Original Application No. 751 of 2006 Tuesday, this the 22nd day of September, 2009 CORAM : HON'BLE DR. K B S RAJAN, JUDICIAL MEMBER HON'BLE MR. K. GEORGE JOSEPHM,ADMINISTRATIVE MEMBER 1. G. Somanathan Nair, S/o, Gopalan Nair, Residing at Sreepadam, S.K. Lane, Perinthalmanna, Malappuram. 2. V. Nandhakumar, S/o. S.V. Rama Variyar, Residing at 7/D1, 'Nandana', Woodcote, Coonoor : 643 102, Niligiris. 3. C. Venu, S/o. A. Chakrapani, Residing at Ravendhu, No. 52, Rail Nagar, Olavakkode P.O, Palakkad : 678 002 ... Applicants. (By Advocate Mr. M.R. Hariraj) v e r s u s 1. Union of India represented by The Secretary to the Ministry of Railways, Government of India, New Delhi. 2. General Manager, Southern Railway, Chennai. 3. Chief Personnel Officer, Southern Railway, Chennai. 4. Senior Divisional Personnel Officer, Palakkad Division, Divisional Office, Palakkad. ... Respondents. (By Advocate Mrs. Sumathi Dandapani (Sr.) with Ms. P.K. Nandini) The Original Application having been heard on 8.9.09, this Tribunal on 22.09.09 delivered the following : O R D E R
HON'BLE DR. K B S RAJAN, JUDICIAL MEMBER The following tabulation would reflect the career progression of the three applicants who belong to the general category:
Name -Applicant1 ASM 330-560 - 17-12-62 Sr.ASM 425-640 -1979 SM III 455-700 -01/01/83 SM II 550-750 -01/07/87 SMI 700-900 -29-06-91* Rett -28-02-01.
Name -Applicant 2 ASM 330-560 - 17-12-61 Sr.ASM 425-640 -30-06-79 SM III 455-700 - 01/01/84 SM II 550-750 -05/07/87 SMI 700-900 -30-09-99 Rett -28-02-03 Name -Applicant 3 ASM 330-560 - 13-03-68 Sr.ASM 425-640 - 14-11-80 SM III 455-700 - 01/01/84 SM II 550-750 -30/06/89 SMI 700-900 -01/03/99 Rett -23-06-02# *Applicant No. 1 was further promoted as Station Manager on 07-11-1999. # Voluntary retirement.
2. The Tribunal in a batch matter, OA 552/90 and other cases by its order dated 6th September 1994 (Annexure A-1) wherein the applicants were also parties, held that the principle of reservation operates on the cadre strength and that seniority vis-a-vis reserved and unreserved 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. Special Leave Petition No. 10691/95 and other connected SLPs stood dismissed, vide order dated 3008-1996 at Annexure A-2. After the decision of the Apex Court in the case of R.K. Sabarwal, (1995) 2 SCC 745, the Railway Board had issued a circular vide Annexure A-4 order dated 21-08-1997 directing all the Zonal Railways to prepare a revised seniority, restoring the seniority position of general candidates in the promoted cadre corresponding to their position in the feeder cadre. On the basis of the above said order of the Railway Board, pending OAs, in which the applicants are also party, was disposed of vide Annexure A-3. However, as the Respondents did not prepare the seniority list as directed, OA No. 282/1998 was filed, which was however, rejected, vide Annexure A-5 order dated 09-07-98. The applicant filed O.P. No. 16893/1998 against the order of the Tribunal which was disposed of by the High Court directing the respondents to reconsider the claims of the applicants in the light of the judgment of the Supreme Court, vide Annexure A-6 order dated 10-10-2000. Contempt application filed by many applicants had been dismissed, against which one of the applicants Shri Satheenesan moved the apex Court, and the Apex Court by its Annexure A-7 order dated 18th December 2003 in CA 5629/1997 held that the final order of the Tribunal dated 6th September 1994 was not carried out and the matter was remitted back to the CAT. The Tribunal re-examined the entire case and directed the respondents to implement the order within four months, vide Annexure A-8 order dated 20-04-2004 in OA No. 483/1991. Annexure A-9 and A-10 are the orders purportedly passed, in compliance of the order of the Tribunal, by the Trivadrum Division revising the dates of promotion of those persons under him. As the applicants noted that by the above orders, certain persons junior to the applicants have been promoted, the applicants approached the High Court which had issued Annexure A11 order dated 04-11-2005 in CCC 48/2001. It is in pursuance of the aforesaid Annexure A-11 order that Annexures A-13 and A-14 (both impugned herein) came to be passed. The said orders, for the purpose of revision of the pay of the applicants, had taken the case of one junior V. Rajan taking the date of his promotion as on 18-09-1980 in the grade of ASM III (Rs 455-700), whereas the said Rajan was actually promoted to the said grade on 01-10-1979. Annexure A-18 seniority list (Sl. No. 60) would reflect the said date of promotion of V. Rajan. (This is confirmed from Annexure A-21 information furnished by the respondents procured by the applicants by applying under RTI Act, 2005) Again, one Shri Meghanathan who entered service on 1803-1968 and thus, junior to the applicants, was promoted on 01-08-1992 whereas on the said date, the applicants, who are admittedly senior to the said Meganathan found themselves placed in the lower scale. According to the applicants, the same calls for a further revision of pay of the applicants in respect of higher post, in addition to the order at Annexure A-13 and A-14. According to the applicants, they having not been paid their dues as per law, this OA has been filed, seeking the following reliefs:
(i) To quash Annexure A13 and A14 to the extent it refuses applicants revision in dates of promotion to the dates given to their juniors in each grade and its consequential benefits.
(ii)Direct the respondents to revise the dates of promotion of the applicants to each grade to the dates of promotion of their juniors available in that grades on the dates on which applicants are deemed to enter such grade and give them all consequential benefits including refixation of pay, pension and other monetary benefits and arrears of such monetary benefits with interest @ 18% per annum.
3. Respondents have contested the O.A. According to them, vide Annexure R-1, the prayer in OA No. 282/98 was restricted only to revision of seniority and there was no prayer for stepping up of pay. And the said OA was dismissed by the Tribunal and when the applicants had taken up the matter before the High Court in O.P. 16893/98, the same was disposed of on 10-10-2000 directing the respondents to reconsider the claim for seniority and promotion in the light of Ajith Singh II. Though there was no claim for promotion, direction given was to reconsider the promotions also. Due to inordinate delay, proposal for filing SLP was dropped and it was in the wake of Contempt Petition CCC No. 48/2001 that it was decided to comply with the directions and Annexure A-13 and 14 orders have been issued fixing the pay of the applicants on par with a junior reserved community employee which was in fact, not in tune with the spirit of judgment. Indeed, all that was to be verified was that between the period from Sabharwals's decision and 85th amendment, to the extent there were excess promotees in the reserved category, general category employees would be granted notional promotion. In the seniority list published in terms of the judgment in the aforesaid OP, the applicants figured in Serial No. 14, 15 and 85 and as such, for them to derive the benefits as they claim, there should have been respectively 14, 15 and 85 excess promotions in the reserved category.
The applicants at no point of time contended so or claimed the same. According to the respondents, any claim for promotion etc., cannot go beyond 10-02-1995 on which date the 85th Amendment to the Constitution was enslated. Thus, a general category SM II as on 10-02-1995 cannot have any claim for promotion to SM I or SMR on the basis of catch up rule. With regard to the contentions as contained in para 22 of the OA wherein the discrepancy in noting the date of promotion of Rajan, (junior to the applicants at par with whose pay, the pay of the applicants were stepped up and higher pay available to them,) had been pointed out and 25 wherein reference of another junior Meganathan, (at par with whose pay stepping up is sought,) has been made the respondents have stated in para 17 of the reply as under:
"17. Regarding para 4(18) to (25), it is humbly submitted that the benefits given in A-13 and A-14 comparing another employee was not in fact what was intended by the Hon'ble High Court of Kerala. There was no direction to step up the pay of the applicant on par with a junior reserved community employee. As already stated above, the enactment of the amendment and upholding of the same by the Apex Court has in fact nullified the effect of the directions. Since the reliefs sought in O.A. 282/98 itself is regarding revision of seniority issued on 27.01.98 in the grade of , SM-1, the refixation done retrospectively from 1980 is against the relevant rules in force at the material time and also not in tune with the judgement of the Hon'ble Court. There is no basis or justification in pointing out the promotions made in 1979/1980, after a lapse of 27 years. Since the reliefs was limited to revision of seniority of SM-1, the relief that can be granted is only consideration of promotion to next higher grade of SMR from the dates of junior excess reserved community employee. As already stated above, the applicants cannot make any comparison with Shri Meganathan with reference to his dates of promotion to the grade below SM 1. Since there was no claim for them in the O.A./O.P. They have never pointed out the names of any junior much less Shri Meganathan, in any of the proceedings. There was also no direction to grant any fixation of pay retrospectively in comparison with a junior reserved community employee. The applicants cannot make any claim for the post of Group-B since the same is filled up by way selection and the applicants are retired person. There is no injustice done to the applicants as contended by them in para 28 of the O.A. It is also not the case of the applicants that they have ever participated in the selection to Group-B and came out successful and purely because of the alleged wrong seniority they could not get a posting to Group-B. As already stated above, whatever benefits granted itself is in excess than what is entitled under the rules / procedure and intended by the Hon'ble Court. This is more so because of the enactment of the amendment."
4. Counsel for the applicant argued that the respondents had issued Annexure A-13 and A-14 admitting the entitlement of the applicants for stepping up of pay with reference to their juniors. Two points arise out of the same.
(a) Whether Annexure A-13 and A-14 should be revised taking into account the date of promotion of the junior Shri V. Rajan as 01-10-1979 in the grade of 455-700.
(b) Whether the pay in the next higher grade should be at par with another junior Meganathan.
5. The claim of the applicants for stepping up of pay at par with Meganathan has to be summarily rejected for the following reason. Their claim is that since he was an inductee in the Railways in 1968, he is admittedly junior and since he was placed in the pay scale of 700 900 in 1982, the pay of the applicants should also be fixed at that level. This claim of the applicants is based on the catch up rule. For the catch up rule, the general candidate would have the seniority over his junior restored in the promotional post only when at the time of promotion of the general candidate the reserved candidate was not further promoted. If the reserved candidate stood promoted to the second higher post by the time the general candidate got his promotion to the first higher post, catch up rule has no application. This aspect is very much clear from the decision of the Constitution Bench of the Apex Court in the case of Ajit Singh II v. State of Punjab, (1999) 7 SCC 209, wherein the Apex Court has held as under:
"81. As accepted in Virpal and Ajit Singh we hold that in case any senior general candidate at Level 2 (Assistant) reaches Level 3 (Superintendent Grade II) before the reserved candidate (roster-point promotee) at Level 3 goes further up to Level 4 in that case the seniority at Level 3 has to be modified by placing such a general candidate above the roster promotee, reflecting their inter se seniority at Level 2. Further promotion to Level 4 must be on the basis of such a modified seniority at Level 3, namely, that the senior general candidate of Level 2 will remain senior also at Level 3 to the reserved candidate, even if the latter had reached Level 3 earlier and remained there when the senior general candidate reached that Level 3."
6. In the instant case, from Annexure A-21 produced by the applicants, it is evident that Shri Meganathan stood promoted to the post of SM II on 20-03-1977 and SM I on 15-10-1982. From the tabulation vide para 1 above, as on 15-101982, the applicants were only in the grade of 425-640(Sr. ASM) which is certainly three steps below SM I. Even if the promotion of the applicants get advanced at par with the date of promotion of their junior V. Rajan, they were no where near Meganathan at the time of his promotion as SM II in 1977 since their appointment as SM III itself was only from 01-10-1979. As such the claim for parity with Meganathan has no merit.
7. Coming to the claim for advancement of the date of promotion w.e.f. 01-10-1979, the senior counsel for the respondents contended that the case cannot be reopened as it pertains to a period 27 years prior to filing of the O.A. This contention cannot stand legal scrutiny as, the very order of stepping up was issued only in 2004/2005. Thus, cause of action had arisen only from 2004-2005.
8. Annexure A-21 filed by the applicant shows that the date of promotion to the grade of SM III in respect of junior V. Rajan is 01-10-1979. That is the date when the applicants should have been promoted to the said grade. To this extent the claim of the applicants is legal and valid. In other words, the promotion granted to the applicants w.e.f. 18-09-1980 in the grade of SM III (Rs 455-700) shall be advanced to 01-10-1979 and pay fixed accordingly. The dates of promotion of further higher grades would remain the same as there are no discrepancies in the dates of promotion of the junior V. Rajan in the higher grades. The only change that would be warranted is refixation of pay based on the advancement of the date of promotion in the grade of Rs 455-700. Respondents shall, accordingly modify Annexure A-13 and A-14 to the above extent. The applicants shall be entitled to arrears of pay only if they were earlier paid the difference in pay in pursuance of the impugned order. Otherwise, the increase in pay would be only notional. However, difference in the terminal benefits shall be made available. Pension shall also be revised on the basis of the revised pay at the time of retirement and revised PPO shall be issued. Claim for interest is rejected.
9. The drill involved is no less laborious. Sufficient time is required to work out the extent of dues payable to the applicants and revision of P.P.O. Hence a period of six months from the date of receipt of a copy of this order, is calendared for complying with this order in full, including issue of PPO.
10. The O.A. is disposed of on the above terms. Under the circumstances, there shall be no orders as to costs.
(Dated, the 22nd September, 2009) K. GEORGE JOSEPH Dr. K B S RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER