Central Administrative Tribunal - Ernakulam
I. Jessy S vs Union Of India Represented By The on 5 November, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH R.A.No.45/2009 with MA.776/09 in O.A.No.530 OF 2008 Thursday, this the 5th day of November, 2009. CORAM: HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER HON'BLE Ms.K.NOORJEHAN, ADMINISTRATIVE MEMBER 1. R.A.No.45/2009. 1. I. Jessy S, Babu ECRC/I/Southern Railway Ernakulam Junction 2. P.Syamalamma ECRC/I/Southern Railway Trivandrum Central 3. Rosamma Michael ECRC/I/Southern Railway Kottayam . ...Review Applicants (Private respondents in OA) (By Advocate Mr. M.P.Varkey ) versus 1. Union of India represented by the General Manager, Southern Railway Park Town P.O, Chennai 600 003 2. Chairman, Railway Board, Rail Bhavan, New Delhi - 110001 3. Chief Personnel Officer Southern Railway Park Town P.O,Chennai 600 003 4. Divisional Personnel Officer Southern Railway, Trivandrum - 695 014 . .. Respondents (Respondents in OA) 5. Sheby Anil D' Silva ECRC/1/Southern Railway Ernakulam Junction 6. M.K.Babu Raj ECRC/1/Southern Railway Ernakulam Junction 7. Alex Mathew ECRC/1/Southern Railway Kayamkulam Junction 8. C.Kala ECRC/1/Southern Railway Chengannur . .. Respondents (Applicants in OA) (By Advocate Mr.Thomas Mathew Nellimootil Advocate Mr.TCG Swamy ) 2. MA.776/09 in O.A.No.530 OF 2008 1. Mrs. Sheby Anil D'silva Enquiry-cum-Reservation Clerk Gr.II Southern Railway Passenger Reservation System Ernakulam Junction Residing at 'Shreyas'. Ayyappankavu Chittor Road, Cochin 682 018 2. M.K.Babu Raj Enquiry-cum-Reservation Clerk Gr.II Southern Railway Passenger Reservation System Ernakulam Junction Residing at Perumalil House, Thirumullavaram P.O Kollam 691 012 3. Alex Mathew Enquiry-cum-Reservation Clerk Gr.II Southern Railway Passenger Reservation System Kayamkulam Junction Residing at Kayamkulam 4. C.Kala Enquiry-cum-Reservation Clerk Gr.II Southern Railway Passenger Reservation System Chengannur Junction Residing at Moolayil House Thonnalloor, Pandalam P.O Pathanamthitta District, Pin-689 501. .. Misc.Applicants (By Advocate Mr. TCG Swamy) versus 1. Union of India represented by the General Manager, Southern Railway Headquarters Office, Park Town P.O Chennai - 3 2. The Chief Personnel Officer Southern Railway Headquarters Office, Park Town P.O Chennai - 3 3. The Divisional Personnel Officer Southern Railway, Trivandrum Division Thiruvananthapuram - 695 014 4. Smt.Jessy S,Babu Enquiry-cum-Reservation Clerk Gr.II Southern Railway Passenger Reservation System Ernakulam Junction Railway Station Cochin - 682 016 5. Smt.P.Syamalamma Enquiry-cum-Reservation Clerk Gr.II Southern Railway Passenger Reservation System Trivandrum Railway Station Trivandrum - 695014 6. Smt.Rosamma Michael Enquiry-cum-Reservation Clerk Gr.II Southern Railway Passenger Reservation System Kottayam Railway Station Kottayam 7. The Chairman Railway Board through the Secretary to the Government of India Ministry of Railways Rail Bhavan, New Delhi ... Respondents (By Advocate Mr.Thomas Mathew Nellimootil (R1-3&7) Advocate Mr.M.P.Varkey (R4,5&6) The application having been heard on 29.10.2009, the Tribunal on 05.11.2009 delivered the following: O R D E R
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER This Review Application has been filed by the Private Respondents for review of order dated 20th August, 2009 in OA No. 530/08, when the applicants have filed M.A. No. 776/2009 for a clarification in respect of the same order. In the Review application, the review applicants submitted that the claim of the applicants were limited to grant of seniority to them above the review applicants and not to declare that the promotion granted to the review applicants was not in accordance with the rules. In the M.A. filed by the applicants, they have pointed out that the order provides for consideration by the authorities for relaxation of the rules to ratify the promotion granted to the private respondents under the provisions of the Rules, whereas, the provision of relaxation, which was earlier available has been withdrawn vide order dated 4th November 1993. (R.B.E. No. 143/93 and Correction Slip No. 14).
2. After notice to the other sides, arguments were heard. Counsel for the applicants submitted that the applicants are not aggrieved over the promotion granted to the private respondents even after the expiry of the validity period of panel. However, they are aggrieved when on the basis of the promotion so granted, the private respondents have been afforded seniority from the earlier dates, which has consequently pushed down the seniority of the applicants, consequent to which their promotion prospects have been depleted.
3. Counsel for the review applicants submitted that admittedly due to administrative delay, the promotion order of the review applicants had been delayed and for the same, the private respondents cannot be penalized. As the promotion was to have been granted along with others in the earlier panel, though the review applicants would not have got their salary for the period during which they had not been promoted, at least the seniority should be saved.
4. Arguments were heard and documents perused. Keeping in view the above submission, the earlier order dated 20th August 2008 is modified to the following extent:
The existing paragraphs 21 onwards in the order are substituted by the following:
21. The panel was issued on 02-11-1992. Its validity was upto 2nd November 1994. The three private respondents refused their promotion and were entitled to be promoted after the expiry of one year i.e. 02-11-1993, if need be, by reverting any juniors promoted. This exercise was not immediately conducted but the promotion took effect only in December 94/March 1995. In between, in August 93, September 93, October, 1993 and January 1994, the applicants were promoted, from out of the panel issued subsequent to the earlier panel in which the private respondents figured in. This dichotomy has to be now resolved.
22. If there be any general rule of relaxation, the same may have to be pressed into service. In the case of Raj Kishore Vishwakarma v. Union of India, (1997) 11 SCC 619, the Apex Court has held as under:
4. Mr Vikram Mahajan, learned counsel appearing for the Railways, has very fairly stated that the appellants were appointed in relaxation of the Rules in exercise of the powers under Rule 113. He has taken us through the counter filed before the Tribunal and also before this Court wherein it is clearly stated that the appellants were appointed in relaxation of the Rules. We are of the view that the appellants having been appointed in relaxation of the Rules their appointments have to be treated under the Rules. When the appellants were appointed under the Rules even the ad hoc period, which is continuous, has to be taken into consideration for the purpose of fixation of seniority in the cadre of Typists.
23. In the instant case also, if such a relaxation is invoked, the same would solve the dichotomy. How to invoke such a provisions of relaxation has been explained in the judgment in Union of India vs Dharam Pal (2009) 4 SCC 170, wherein the Apex Court has held as under:
"It is now well settled that even power of relaxation even specifically provided in the appointment authority himself being created (sic by) a statute cannot be exercised in an arbitrary and cavalier fashion."
24. The facts in this case would go to show that there is some procedural irregularity in the promotion effected in respect of the private respondents inasmuch as the promotion which ought to have been effected on or immediately after 02-11-1992 had not been so effected and the promotions were made only subsequent to the promotion of the applicants, but since the private respondents were admittedly from the previous years' panel, their seniority position has accordingly been secured. This has been challenged by the applicants, who had actually worked in the higher post for a period longer than the private respondents and yet they have been shown junior to the private respondents. Admittedly, belated promotion of the private respondents is due to the inaction on the part of the official respondents. The question, therefore, is whether the same could be rectified to regularize the promotion of the private respondents without truncating any of the rights accrued to the applicants in matters of seniority. Certainly, the authorities could exercise the power to relax if any, available in the Rules.
25. The provision of relaxation of rules as referred to in the decision in Raj Kishore Vishwakarma vide para 21 above, was available till 4th November 1993. Thereafter, the same stands withdrawn vide order dated 4th November 1993. (R.B.E. No. 143/93 and Correction Slip No. 14). Thus, a further question that arises is whether the power to relaxation at this juncture is available.
26. The entire matter relates to the period from 02-11-1992 to 02-11-1994. The respondents, on accepting the request of decline of promotion by the private respondents should have acted on or immediately after 02-11-1993 to issue orders of promotion to the private respondents. Had the same been so done, it would have set everything right. This was not done. Though the provision for relaxation of Rule had been withdrawn w.e.f. 04th November 1993, since the matter pertains to the period anterior to it, relaxation is permissible, setting the clock back, the provisions of relaxation may have to be exercised by the competent authority. Otherwise, the private respondents' promotion may not be held to be legal and valid. For unravelling the ravelled issue, support from the following two decisions of the Apex Court could be taken:
(a) In the case of Sonia v. Oriental Insurance Co. Ltd., (2007) 10 SCC 627 wherein the Apex Court has held as under applies :
10. In N.T. Devin Katti v. Karnataka Public Service Commission this Court has held that where selection process has been initiated by issuing an advertisement inviting applications, selection should normally be regulated by the rule or order then prevalent and also when advertisement expressly states that the appointment shall be made in accordance with the existing rule or order, subsequent amendment in the existing rule or order will not affect the pending selection process unless contrary intention is expressly or impliedly indicated.
(b) Again, in the case of Suraj Parkash Gupta v.
State of J&K, (2000) 7 SCC 561, the Apex Court has held as under:
Procedural inaction towards promotees, it has been held, can be "rectified". This is explained in the three-Judge Bench case in State of W.B. v. Aghore Nath Dey . In that judgment propositions (A) and (B) laid down in Direct Recruit case4 were explained by Verma, J. (as he then was). It was pointed out that proposition (A) where it was held that the ad hoc service would not count was one where the same was stopgap (i.e. and remained as such). In proposition (B) it was said that ad hoc service could count in certain situations such as where there was only a "procedural" irregularity in making appointments according to rules. In such a situation, the irregularity can be subsequently "rectified".
27. As per (a) above, it is clear that at any material point of time, the rules then existing should be applied and as per (b) above, procedural irregularity could be rectified. In the instant case, the inaction on the part of the official respondents in issuing promotion order to the private respondents at the material point of time, i.e. immediately after 02-11-1993 is a procedural irregularity, and the same in accordance with the decision of Suraj Parkash Gupta (supra) can be rectified, and while so rectifying, the rule then in existence, as stated in the case of Devan Katti referred to in Sonia vs Oriental Insurance company (supra) has to be applied. Thus, as on 02-11-1993, the provisions of Relaxation of Rule being available, the respondents can invoke the same and rectify the mistake. Such an invoking of the relaxation has become inevitable in this case.
28. In view of the above, the O.A is disposed of, with a direction to the General Manager, Southern Railway to consider the cases of the private respondents for necessary ratification of their promotion and while so ratifying their promotion, the seniority aspect of the private respondents vis-a-vis the applicant be also considered and decision in that regard also be taken, keeping in view the relevant rule position on fixation of seniority and rectification of error in fixation of seniority.
29. This exercise be completed within four months from the date of communication of this order.
30. Under the circumstances, there shall be no orders as to cost.
5. M.A 776/09 and R.A 45/09 in OA 530/08 are accordingly disposed of. This order will form part of the order in OA 530/08.
Dated, the 5th November, 2009.
K.NOORJEHAN Dr.K.B.S.RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER vs