Central Administrative Tribunal - Ernakulam
Central Administrative Tribunal vs Union Of India Represented By The on 24 July, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH O.A. NO.574/07 Dated this the 24th day of July, 2009 C O RA M : HON'BLE DR. K.B.S. RAJAN, JUDICIAL MEMBER HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER 1 K. Kunjiraman Nambiar S/o P. Raman Nair residing at Padachery House, Pantalayini P.O. Quilandy-673 305 2 M.V. Narayanan S/o Gopalan residing at Ajantha, Tikkoti P.O. Kozhikode-673 529 3 Balakrishnan Nair S/o Unni Nair residing at Saroj Nivas, Mannari Chemancheri PO, Kozhikode -673304 4 C. Padmanabhan Nambiar S/o Narayanan Nambiar residing at Prabha P.O. Karapramba, Calicut-673 010 ..Applicants By Advocate M/s M.R. Hariraj, Suraj S., P.A. Kumaran, Vineetha B and Nithin S Vs. 1 Union of India represented by the Secretary to Department of Railway Ministry of Railway, New Delhi. 2 The General Manager, Southern Railway Chennai 3 Chief Personnel Officer Southern Railway Chennai 4 Divisional Personnel Manager, Palakkad Division Palakkad. .. Respondents By Advocate Mr. K.M. Anthru This Application having been heard on 30.6.2009 the Tribunal delivered the following:- O R D E R
HON'BLE MS. K. NOORJEHAN, ADMINISTRATIVE MEMBER The Applicants who are retired Railway employees, are aggrieved by the refusal of the respondents to recast their seniority and grant consequential benefits given to similarly placed employees 2 According to the applicants, the 1st applicant commenced service as Train Clerk on 16.12.1950, appointed as Assistant Station Master (ASM) on 6.7.1961, promoted to various grades of Station Master and retired from service on superannuation on 30.6.1987. Similarly, the 2nd applicant entered service as ASM on 17.12.1962 and retired on 30.11.1994, the 3rd applicant commenced service as ASM on 17.12.1962 and retired on 31.3.1997 and the 4th applicant commenced service as ASM on 16.4.1964 and retired on 15.5.2002. According to them, promotion upto Station Master Grade-I are based on divisional seniority. Many of the juniors of the applicants who were given accelerated promotions to various grades applying the principle of reservation in promotions continued in the grade despite applicants being promoted subsequently. This has affected the promotional avenues of the applicants. The seniority was not restored in each stage. The representations submitted by them were not looked into. Meanwhile, a few of the officers approached this Tribunal through O.A. 550/90 and connected case which were allowed holding that seniority vis-a-vis reserved and unreserved categories will be reflected in the promoted category also notwithstanding earlier promotion obtained on the basis of reservation. The respondents were directed to carry out the above directions within six months. The SLP filed by the respondents against the order was dismissed. Finding non compliance of the orders of the Tribunal in O.A. 550/90, a few of the applicants approached Tribunal and High Court of Kerala for fixing the seniority. They also filed contempt petition. Subsequently by order dated 30.9.2004 the respondents restored the seniority and consequential promotions to a few of those officers (Annexure A-3) The applicants submitted representations for similar benefits on the ground that they are similarly situated which are still pending (A-4). Hence they filed this O.A. on the grounds that they are similarly situated like the officers in Annexure A-3, the 1st applicant is even senior, they are entitled to similar treatment, there was excess representation in the reserved categories at various levels which had adversely affected the promotion of the applicants, despite various judicial pronouncements the respondents are refusing to recast the seniority list as directed by the Tribunal in Annexure A-1.
3. The respondents opposed the OA by filing reply statement. They contended that the O.A. is belated. The applicants are approaching the Tribunal on 14.9.2007 after two decades since the retirement of the first applicant in 1987, the second applicant in 1994, the third applicant in 1997 and the fourth applicant in 2002. If they were aggrieved by the alleged non-implementation of the judgment at Annexure A-1 they should have approached the Tribunal within time. The applicants have neither filed any Contempt Petition nor represented at the material time. The seniority list of Station Masters was published from time to time and promotions were also ordered based on such seniority list. The applicants have not impleaded the persons over whom they are claiming seniority. They submitted that the case of the applicants are squarely covered by the order of this Tribunal in O.A. 1130/04 which was dismissed.
4 On merit, they submitted that before the law laid down by the Apex Court in R.K. Sabharwal's case, 40 point roster was in existence. There were no excess promotion to SC/ST as per Railway Board's instruction contained in letter dated 11.1.1973. The judgment in Ajith Singh II and other cases were operative from 10.2.1995. The Railway Board issued revised instructions on seniority of reserved community employees promoted due to reservation. The benefit of R.K.Sabharwal and Ajith Singh II etc. cases was taken away by 85th amendment which was upheld by the Apex Court in M. Nagaraj Vs. Union of India (2006(8)SCC 212). They submitted that the applicants are not similarly placed like the persons involved in Annexure A-3. Though there is some delay for the first promotion, the applicants had got four promotions during their career therefore, they have not faced any hardship.
5 We have heard the learned counsel for the parties and have gone through the pleadings.
6 Admittedly neither have they submitted representations for the extension of the benefit of that judgment of the Tribunal nor have they approached the Tribunal for revision of seniority and consequential promotion etc. well in time. They were not parties in the Annexure A-1 order of this Tribunal. For the first time it is stated that the first applicant has submitted representation on 20.7.2006. The judgment of the Hon'ble Supreme Court at Annexure A-2 is dated 30.8.96. They have not impleaded those persons who are adversely affected if the reliefs prayed for by the applicants are allowed. Therefore, the O.A. is liable to be dismissed on delay and non-joinder of parties. It is true that the respondents by Annexure A-3 Memorandum dated 30.9.2004 recast the seniority of Sri G. Somanathan Nair Examiner Inspector of Palghat Division and his pay was revised and refixed w.e.f. 1980. But that was in compliance of directions contained in the judgment in OP No. 16893/98 which had arisen from the order of the Trilbunal in O.A. 282/98 and Contempt Case filed by him against the Railway. In that memorandum it was subject to the final outcome of SLPs to be filed before the Apex Court. In answer to this, the respondents have submitted that Annexure A-3 has become absolute as the SLP was not filed due to delay.
7 The learned counsel for the respondents have submitted that the case of the applicants are covered by the order of the Madras Bench of the Tribunal in O.A.1130/2004 and connected cases. The applicants in OA 1130/2004 and connected cases were challenging (i) the 85th amendment of the Constitution shall not protect excess promotions given to SC/ST category candidates in excess of the cadre strength on arising vacancies on roster point promotion (ii) the roster point promotees are not entitled for protection of seniority, (iii) the 85th Amendment only protects the SC/ST category candidates promoted after 17.6.1995 to retain consequential seniority in the promoted grade but does not give any excess promotions, (iv) to direct the respondents to review and readjust the seniority in all the grades in accordance with the law laid down by the Hon'ble Court in AjithSingh II (1999 (7)SCC 209, etc. thereby promote the applicants retrospectively from the effective dates of their promotions over their junior SC/ST category candidates making available the resultant benefits to the applicants. The Madras Bench of the Tribunal after elaborate discussion on various issues raised by the applicants in the OAs dismissed the OAs in the following lines:
"20. For all these reasons the OAs are liable to be dismissed in reference to excess promotions on the ground that the reliefs sought for by the applicats 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)"
8 Having heard the learned counsel for he parties and having gone through the judgments relied on by the parties we are of the view that there is delay and laches on the part of the applicants in agitating the matter. The O.A. is accordingly dismissed. There shall be no order as to costs.
Dated 24th July, 2009 K. NOORJEHAN K.B.S. RAJAN DMINISTRATIVE MEMBER JUDICIAL MEMBER kmn