Kerala High Court
Shylaja.K vs The Senior Divisional Personnel ... on 13 February, 2025
Author: Amit Rawal
Bench: Amit Rawal
2025:KER:22245
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
THURSDAY, THE 13TH DAY OF FEBRUARY 2025 / 24TH MAGHA, 1946
OP (CAT) NO. 104 OF 2020
AGAINST THE ORDER DATED 07.02.2018 IN OA NO.1051 OF 2014 OF
CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER/APPLICANT:
SHYLAJA.K, AGED 45 YEARS,
W/O. JYOTHIKUMAR. N.V., TECHNICIAN GRADE III, TEST
ROOM, PALAKKAD S & T DEPARTMENT, SOUTHERN RAILWAY,
PALAKAKAD DIVISION, RESIDING AT QTR 184 B, HEMAMBIKA
NAGAR, PALAKKAD 678 001.
BY ADV U.BALAGANGADHARAN
RESPONDENTS:
1 THE SENIOR DIVISIONAL PERSONNEL OFFICER,
SOUTHERN RAILWAY,
PALAKKAD DIVISION, PALAKKAD 678 001.
2 THE CHIEF PERSONNEL OFFICER,
SOUTHERN RAILWAY, HEADQUARTERS,
PARK TOWN, CHENNAI 600 003.
3 THE MANAGER,
SOUTHERN RAILWAY, HEADQUARTERS,
PARK TOWN, CHENNAI 600 003.
4 THE DIVISIONAL RAILWAY MANAGER,
SOUTHERN RAILWAY, PALAKKAD 678 001.
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OP (CAT) NO. 104 OF 2020
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5 BIJILI.K.V.,
TECHNICIAN GRADE II, S & T DEPARTMENT, SHORANUR RAILWAY
STATION, SOUTHERN RAILWAY,
PALAKKAD 679 121.
BY ADVS.
S. BIJU
SRI.A.DINESH RAO, SC, RAILWAYS
Sri.S. BIJU CGC
THIS OP (CAT) HAVING COME UP FOR HEARING ON 13.02.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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OP (CAT) NO. 104 OF 2020
3
JUDGMENT
K. V. JAYAKUMAR.J. This original petition is directed against the order of the Central Administrative Tribunal in O.A.No. 1051 of 2014 dated 07.02.2018, whereby the following claims of the applicant/petitioner have been rejected.
(i) Call for the records leading to Annexure A6, A8, A9 and A12 and set aside the same as illegal and unsustainable.
(ii) Direct the 1st respondent to consider promoting the applicant as Technician Grade II being the next meritorious person in Annex. A11 panel in preference to 5th respondent.
(iii) Direct the first respondent to pre-date the promotion of the petitioner as Technician Grade III with effect from 14.09.2009 notionally and grant consequential seniority in the post.
(iv) Declare that applicant is entitled to be considered and promoted Technician Grade III in preference to 5 th respondent.
(v) Such other reliefs that the Hon'ble Tribunal deem fit in the facts and circumstances of the case.
2. The petitioner/applicant Smt. K. Shylaja was aggrieved by Annexure A6 order, dated 20/082014 and 2025:KER:22245 OP (CAT) NO. 104 OF 2020 4 Annexure A8 order dated 01.10.2014, issued by the Senior Divisional Personnel Officer, Southern Railway, Palakkad. The applicant joined in the Railway as Helper Gr.II on 04.01.2005 and later promoted as Helper Gr.I in S & T Department. The next promotion available to her was to the level of Technician Gr. III and was eligible for the same under 25% quota meant for promotion based on seniority, subject to passing a trade test.
3. The petitioner/applicant attended the trade test pursuant to Annexure A1 notification and came out successful vide Annexure A2. However, when the promotion order dated 14.09.2009 came out, the applicant's name was seen to have been omitted on the ground that she was availing maternity leave with Leave on Average Pay (LAP) /Child Care Leave (CCL) during the period from 19.08.2008 to 02.09.2010. On rejoining, the petitioner was promoted as Technician Grade III with effect from 04.10.2010. The petitioner/applicant further contended that while she was availing maternity leave, two persons who joined as direct recruitment were promoted to 2025:KER:22245 OP (CAT) NO. 104 OF 2020 5 Technician Grade III and were placed above the applicant in seniority.
4. The petitioner/applicant submitted a representation claiming her seniority and that was accepted. Accordingly, in Annexure A4 seniority list, her name was placed in serial No.4. Subsequently, when an alert notice was issued for promotion to Grade II, the applicant was above respondent No.5 in the standby list. However, on a representation made by the 5th respondent, Annexure A6 order was passed, placing respondent No.5, Bijali K.V., above the applicant. The petitioner was also placed below Sri. Vinod, who joined as Technician Gr. III only on 04.10.2010. Eventhough, the petitioner/applicant protested against rearrangement, but was rejected vide order dated 01.10.2014, on the ground that, although she was eligible for promotion on an earlier date, she had assumed higher responsibilities of the superior position only with effect from 04.10.2010. Further, ignoring the claim of the applicant, the 5 th respondent was promoted as Technician Grade II as per Annexure A12 order dated 2025:KER:22245 OP (CAT) NO. 104 OF 2020 6 12.11.2014. Therefore, the petitioner/applicant knocked the door of the Tribunal, challenging Annexures A6, A8, A9 and A12.
5. The department resisted the claim of the petitioner/applicant, contending that she was on continuous leave from 19.08.2009 to 02.09.2010 on maternity and child care leave. Although, the petitioner had passed the trade test to become eligible for the Technician Grade III post, but was not available to assume the higher responsibilities of the promoted post. The department contended that the applicant was given notional promotion with effect from 07.07.2010, on par with her junior, Shri. P.K. Shelvam, and actual benefits of promotion from 04.10.2010, ie., from the date the petitioner started shouldering higher responsibilities. The railway contended that mere qualifying in the trade test, which she did on 14.09.2009 does not bestow any indefeasible right on the applicant to get a promotion. The promotion becomes effective only in terms of the order made, and in the applicant's case, orders at Annexure A-3 dated 29.09.2010 2025:KER:22245 OP (CAT) NO. 104 OF 2020 7 alone are relevant. It is further contended that after having accepted the promotion, the applicant is estopped from challenging subsequent orders.
6. Noticing the rival contentions of the parties, the Tribunal dismissed the original application.
7. The learned counsel for the respondents supported the order of the Central Administrative Tribunal.
8. On the other hand, the learned counsel for the petitioner, Adv. U. Balagangadharan, submitted that the impugned order of the Tribunal is unsustainable in the eye of the law. He also invited the attention of this Court to an Office Memorandum dated 30.07.2014 of the Ministry of Personnel, Public Grievance and Pensions Department of Personnel and Training, Clause 4(iii) of the said OM is extracted hereunder:
"4. It has accordingly, be decided in consultation with Ministry of Science & Technology that the following types of leave availed by an eligible scientist shall be counted towards minimum residency period required to be put in by the scientists in the lower grade for consideration for promotion under Flexible Complimentary Scheme.
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(iii) Maternity Leave sanctioned as per Leave Rules shall be treated as duty while counting the minimum residency period for promotions under FCS.
9. On the basis of the above OM, Adv.
Balagangadharan submitted that the maternity leave sanctioned as per Leave Rules shall be treated as duty while counting the minimum residency period for promotions.
10. We have heard the rival submissions of the parities and appraised the paper books.
11. There was no dispute between the parties with respect to the facts. The only legal question involved in this matter is, whether a promotion can be considered effective on a date prior to the actual officiation of duty at the higher promotional post.
12. Admittedly, the petitioner was on maternity and child care leave when promotion was due to her, but was not in a position to take up the responsibilities of a higher post. Accordingly, the respondents have granted notional promotion, and later, when she joined duty, was promoted to 2025:KER:22245 OP (CAT) NO. 104 OF 2020 9 the higher post. Now the petitioner/applicant seeks promotion with effect from a pre-date on par with the promotion of her juniors. The Tribunal, noticing the rival contention of the counsel for the parties, dismissed her claim. The relevant paragraphs are extracted hereunder:-
" The main contention of the applicant is that she had responded to the alert notice and had duly passed the trade test for promotion as Technician Grade III, finding a place in the panel issued on 14.09.2009. It is admitted that she was on maternity/CCL from 09.08.2009 to 02.09.2010. The applicant was available to take up higher position of Technician Grade III only after she re-joined duty. The respondents, based on a representation made by the applicant, pre-dated her promotion from 7.7.2010 counting it from 04.10.2010 for disbursement of actual benefit. However, the official respondent stand firm in their interpretation that actual promotion can be granted to an employee only from the date he or she assumes the responsibilities of the higher position. This is quoted as a common principle adopted in the service of the respondents and we do not find any arbitrariness in this feature of general policy. Naturally certain others went on to become seniors to the applicant in subsequent selections. It is also seen that the respondents have taken care to pre-date the applicant's promotion on par with some juniors. However, the official respondents were well within their rights to correct the document at Annexure A-11 by issuing orders at Annexure A-12 dated 12.11.2014 selecting respondent No.5, for the Grade II position.
9. Going through the facts of the case and after examining contending claims made by the learned counsel for the parties, we do not discern any impropriety in the action taken by the official respondents. Hence, we are of the view that the Original Application is devoid of merit and deserves to be dismissed. Accordingly, the Original Application is dismissed. No costs."
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13. The reasoning of the Tribunal is that the promotion cannot be antedated and the dates take effect only from the date on which the employee takes up the responsibilities of a higher post.
14. It is trite law that an employee has no right to promotion, but she/he has only the right to be considered for promotion.
15. The Central Administrative Tribunal, after evaluating the questions of fact and law in the correct perspective, arrived at a proper conclusion in our view. No interference whatsoever, is warranted in this matter.
The Original Petition fails and is dismissed.
Sd/-
AMIT RAWAL JUDGE Sd/-
K. V. JAYAKUMAR JUDGE msp 2025:KER:22245 OP (CAT) NO. 104 OF 2020 11 APPENDIX OF OP (CAT) 104/2020 PETITIONER EXHIBITS Exhibit P 5 A TRUE COPY OF THE OFFICE ORDER J/SG.33/2009 DATED 14.09.2009 ANNEXURE A.8 A TRUE COPY OF COMMUNICATION NO.
J/P612/VI/VOL.IX DATED 1.10.2014 ISSUED BY FIRST RESPONDENT.
ANNEXURE A.9 A TRUE COPY OF COMMUNICATION NO.
J/P612/VI/VOL.IX DATED 11.11.2014 ISSUED BY FIRST RESPONDENT.
ANNEXURE A.12 A TRUE COPY OF ORDER NO. J/SG 66/2014 DATED 12.11.2014 ISSUED BY FIRST RESPONDENT. ANNEXURE A.1 A TRUE COPY OF ALERT NOTICE NO.J/P 524/7/TECH (TELE) GR. II HELPER/II TELE DATED 20.7.2009 ISSUED BY THE FIRST RESPONDENT.
ANNEXURE A.2 A TRUE COPY OF COMMUNICATION NO.J/P 524/VII/.TECH TELE GR. HELPER/TELE DATED 8.9.2009 ISSUED BY FIRST RESPONDENT. ANNEXURE A.3 A TRUE COPY OF RELEVANT PAGES OF ORDER NO.
J/P 524/VII/SR. TECH GR.I TELE DATED 29.9.2010 ISSUED BY FIRST RESPONDENT. ANNEXURE A.4 TRUE COPY OF SENIORITY LIST NO. J/P 612/VII/VOL.IX DATED 16.07.2014 ISSUED BY THE FIRST RESPONDENT.
ANNEXURE A.5 A TRUE COPY OF ALERT NOTICE NO.J/P.524/VII/SR.TECJH GRL. 11& 111/511/TECH.GRL.II & III/TELEL/VOL DATED 13.2.2014 ISSUED BY THE FIRST RESPONDENT. ANNEXURE A.6 A TRUE COPY OF THE COMMUNICATION NO.
J/P612/VII VOL. IX DATED 20.8.2014 ISSUED BY FIRST RESPONDENT.
2025:KER:22245 OP (CAT) NO. 104 OF 2020 12 ANNEXURE A.10 TRUE COPY OF COMMUNICATION NO. J/SG.
155/TT/SIGNAL/15 DATED 29.3.2014 ISSUED BY FIRST RESPONDENT.
ANNEXURE A11 TRUE COPY OF THE COMMUNICATION NO.J/P 524/VII/SR. TECH & GR. I II, III (VOL.1) DATED 21.5.2014 ISSUED BY FIRST RESPONDENT. EXHIBIT P1 A TRUE COPY OF THE ORIGINAL APPLICATION DATED 28TH DAY OF NOVEMBER 2014 WITH ANNEXURES. EXHIBIT P2 A TRUE COPY OF REPLY STATESMEN FILED BY RESPONDENTS 1-4 DATED 10/4/2015 WITH ANNEXURE.
RESPONDENT ANNEXURES ANNEXURE R1 A TRUE COPY OF THE PROMOTION ORDERS DATED 28.6.2010.
PETITIONER EXHIBITS EXHIBIT P3 A TRUE COPY OF THE REPLY STATEMENT FILED BY TH RESPONDENT DATED 6.8.2015 WITH ANNEXURES. RESPONDENT ANNEXURES ANNEXURE R5 A A TRUE COPY OF ORDER BEARING NO.
J/P676/VII/VOL.8 DATED 8/9/2009 OF THE FIRST RESPONDENT.
ANNEXURE R 5(B) A TRUE COPY OF RELIEVING ORDER BEARING NO.
REP/MAS/STAFF/F.3 DATED 5.11.2019 ISSUED BY THE SECTION ENGINEER TELE/REMAS PETITIONER EXHIBITS EXHIBIT P4 A TRUE COPY OF JUDGMENT 180/01051/2014 DATED 7.2.2018 OF THE HONBLE CENTRAL ADMINISTRATIVE TRIBUNAL.
ANNEXURE A.7 THE TRUE COPY OF THE REPRESENTATION DATED 27.8.2014 SUBMITTED BY THE APPLICANT TO THE FIRST RESPONDENT.