Central Administrative Tribunal - Ernakulam
E.M. Antony vs Shri V.N. Mathur on 30 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
CP(C) No.65/2004 in O.A.622/1993,
CP(C) No.66/2004 in O.A.1793/1992,
CP(C) No.67/2004 in O.A.401/1993,
CP(C) No.68/2004 in O.A.552/1990,
CP(C) No.69/2004 in O.A.2240/1993,
CP(C) No.70/2004 in O.A.992/1992,
CP(C)No.71/2004 in O.A.2078/1993,
CP(C) No.75/2004 in O.A.603/1993,
CP(C) No.76/2004 in O.A.552/1990,
CP(C)No. 77/2004 in O.A.483/1991,
CP(C)No.78/2004 in O.A.483/1991,
CP(C) No.79/2004 in O.A.552/1990,
CP(C) No.82/2004 in O.A.990/1993,
CP(C) No.88/2004 in O.A.626/1993,
CP(C) No.92/2004 in O.A.1793/1992,
MA No.851/2010 in CP(C) 84/2009 in O.A.401/1993
and
CP(C) 84/2009 in O.A.401/1993
Friday, this the 30th day of September, 2011.
CORAM
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE Ms. K NOORJEHAN, ADMINISTRATIVE MEMBER
I. CP(C) No.65/2004 in O.A.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,
Divisional 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.
II. CP(C) No.66/2004 in O.A.1793/1992
V.V. Gopalakrishnan,
S/o. Sri Govindan Nambiar,
Residing at Chakyar Madom,
Thiruvangadi, Thalassery, Employed as
Station Master Gr. I, Southern Railway,
Payangadi .... Petitioner.
(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.
(By Advocate Mr. Thomas Mathew Nellimoottil)
III. CP(C) NO.67/2004 in O.A.401/1993
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
(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 Chandiran, S/o. (not known),
Sr. Divisional Personnel Officer,
Southern Railway, Palakkad Division,
Palakkad. ... Respondents.
(By Advocate Mr. Thomas Mathew Nellimoottil)
IV. CP(C) NO.68/2004 in O.A.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
(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 Chandiran, S/o. (not known),
Sr. Divisional Personnel Officer,
Southern Railway, Palakkad. ... Respondents.
(By Advocate Mr. Thomas Mathew Nellimoottil)
V. CP(C) No.69/2004 in O.A.2240/1993
K.N. Rajagopalan Nair, S/o late Sri. Narayanan Nair,
Chief Commercial Clerk Gr. III, Southern Railway,
Trivandram Division, Ernakulam Jn, Kochi. .... Petitioner
(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
(By Advocate Mr. Thomas Mathew Nellimoottil)
VI. CP(C) No.70/2004 in O.A.992/1992
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
(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
(By Advocate Mr. Thomas Mathew Nellimoottil)
VII. CP(C)No.71/2004 in O.A.2078/1993
P.O. Variath, S/o late P.V. Ouseph,
Retired Chief Goods Supervisor,
CGS/ Kalamassery, Residing at Vathakkade,
Thurvaoor.P.O. Via Angamaly ...... Petitioner
(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.
3. Sri. V.N. Mathur, S/o(not known),
The Secretary, Railway Board,
Rail Bhavan, New Delhi ....Respondents
(By Advocate Mr.Thomas Mathew Nellimoottil)
VIII. CP(C) No.75/2004 in O.A.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
(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
(By Advocate Mr. Thomas Mathew Nellimoottil)
IX. CP(C) No.76/2004 in O.A.552/1990
1. Balaramkan, S/o Y Kutty, Retired Chief Booking Supervisor,
Southern Railway, Calicut, residing at 23.1930, Thottungal House,
Thiruvannur Road Kallai, PO, 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 Dist. - Petitioners
(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
(By Advocate Mr. Thomas Mathew Nellimoottil)
X. CP(C) 77/2004 in O.A.483/1991
1. PK Chandrasekhara Pillai, S/o PS Kesava Pillai, retired Chief
Commercial Clerk Gr.I, Ernakulam Godos, Residing at 47-614,
Customs Colony, Poonithura-682 308.
2. K Gopinathan Nair, S/o Kumara Pillai, retired Chief Commercial Clerk,
Gr.I, Ernakulam Jn, residing at 34-957, Jaivihar, Press Club Colony,
Edappally, Kochi-682 024. - Petitioners
(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, Thiruvananthapuram ... Respondents.
(By Advocate Mr. Thomas Mathew Nellimoottil)
XI. CP(C)No.78/2004 in O.A.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
(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, Thiruvananthapuram ... Respondents.
(By Advocate Mr. Thomas Mathew Nellimoottil)
XII. CP(C) No.79/2004 in O.A.552/1990
Smt Thulasi Sreenivas, W/o late PV Sreenivasan,
who was employed as Head Goods Clerk,
Calicut Railway Station, Calicut, residing at
Nandanam H.33/3224, Chevarambalam.P.O.,
Kozhikode-17. - Petitioner
(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.
(By Advocate Mr. Thomas Mathew Nellimoottil)
XIII. CP(C) No.82/2004 in O.A.990/1993
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. Thomas Mathew Nellimoottil)
XIV. CP(C) No.88/2004 in O.A.626/1993
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
(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
(By Advocate Mr. Thomas Mathew Nellimoottil)
XV. CP(C) No.92/2004 in O.A.1793/1992
1. K.Pradeepkumar, S/o K Balakrishnan Nambiar,
residing at Jayadeepam, Eranholy PO, employed as
Station Master Gr.II, Southern Railway, Tellicherry.
2. T.K.Pradeepkumar, S/o CV Baladamodaran, residing at
DARSANA, Fifth Miles, Kadirur PO-670 642, employed
as Station Master Gr.II, Southern Railway,
Etakot - Petitioners
(By Advocate Mr. KA Abhraham)
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.
(By Advocate Mr. Thomas Mathew Nellimoottil)
XVI. CP(C) 84/2009 in O.A.401/1993
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
(By Advocate Mr. Shafik M.A.)
v e r s u s
1. Shri SS Khurana, age not known,
Fathers name not known to the petitioner,
Secretary, Ministry of Railways,
New Delhi-1.
2. Shri N Ponnuswamy, age not known,
Fathers name not known to the petitioner,
Chief Personnel Officer, Southern Railways,
Chennai.
3. Shri N Govindan, age not known,
Fathers name not known to the petitioner,
Divisional Personnel officer, Palghat Division,
Southern Railways, Palghat. - Respondents
(By Advocate Mrs Sumathi Dandapani Senior with Mr. Thomas Mathew
Nellimoottil)
XVII. MA No.851/2010 in CP(C) 84/2009 in O.A.401/1993
1. Shri SS Khurana,
Secretary, Ministry of Railways, Rail Bhavan,
New Delhi-1.
2. Shri N Ponnuswamy,
Chief Personnel Officer, Southern Railways,
Headquarters Office, Park Town PO, Chennai-3.
3. Shri N Govindan,
Divisional Personnel officer, Palghat Division,
Southern Railways, Palghat. - Applicants
(By Advocate Mrs Sumathi Dandapani Senior with Mr. Thomas Mathew
Nellimoottil)
Versus
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. ..... Respondents
(By Advocate Mr. Shafik M.A.)
This application having been finally heard on 10.7.2011, the Tribunal on
30-09-2011 delivered the following:
O R D E R
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER As early as in 1994, a common order in respect of the following fourteen O.As was passed :
O.As.552/90, 483/91, 992/92, 1793/92, 375/93, 401/93, 430/93, 603/93, 622/93, 626/93, 990/93, 1283/93. 2078/93 and 2250/93
2. The 14 cases covered by the common order of this Tribunal were filed by the applicants belonging to different categories in the service of the Southern Railway, i.e. the ministerial cadres, Station Masters, Goods Clerk, etc. Some of them belonged to Palghat Division and others to Trivandrum division of the Southern Railway. No individual case had been dealt with or directions given and all that the Tribunal directed was to apply the principle of reservation on the cadre strength of each cadre and to maintain seniority position at the entry level in promotional posts among reserved and general category employees.
3. It is appropriate to extract the entire order which is as hereunder:-
Tuesday this the 6th day of September, 1994 "Though different reliefs are sought by the different applicants before us, the core questions arising for consideration are :
Whether reservation is to be applied on the cadre strength or on the vacancies arising; and 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.
Different Benches of this Tribunal as also the Allahabad High Court have taken the view that reservation is to be applied on the cadre strength. Some of the decisions taking this view are J.C.Mallick & Others Vs. Union of India and others (Allahabad High Court), 1978 (1) SLR 844; Vir Pal Singh Chauhan and others vs. Union of India and others, (1987) 4 ATC 685 (CAT) GC Jain and others vs. Divisional Railway Manager, Central Railway, Jabalpur and another, 1986 Lab I.C. 1809 (CAT); Joginder Singh Sethi vs Punjab Govt. and others 1983 (1) SLR 442 (Punjab and Haryana High Court), Kameswar Sharma and others vs. Union of India and others (1988) 9 ATC 592 (CAT) and so on. Appeals are pending against these decisions before the Supreme Court. CAT 2017/78 is one of those appeals. The Supreme Court however directed to implement the decision of the Allahabad High Court in J.C.Mallick, 1978 (1) SLR 844 pending decision of the Civil Appeal.
The Allahabad Bench of this Tribunal in Vir Pal Singh Chauhan Vs. Union of India (1987) 4 ATC 685 stated the position in unambiguous language :-
"It is clear that reservation is to be made on the basis of posts and not on the basis of vacancies."
We are bound by the uniform precedent and as we have noticed the operation of these has not been stayed by the Supreme Court.
The second 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 promotions. The Madras Bench of this Tribunal in OA 862/90 (A3 in OA 375/93) considered this question and came to the conclusion that the seniority position in the lower cadre, should be reflected in the higher cadre also. According to them fortuitous promotions gained by application of reservation on arising vacancies cannot be operated as to bring about excessive reservation or total reservation. The Bench therefore directed :-
We direct respondents to revise the seniority in the category of Passenger Guards taking into account the actual date of promotion - the date of which they would have been granted promotion but for the preferential treatment based on reservation."
The Allahabad Bench of the Tribunal in Vir Pal Singh Chauhan's case (1987) 4 ATC 685 had also observed :-
Promotion on the basis of roster can only be termed as fortuitous......... a person who was junior and got promoted....... by virtue of special provisions cannot claim protection of seniority against his chance but could not be promoted because of the reservation."
Shri.M.C.Cherian appearing for the Railways submitted that this view is no longer good law in the light of the decision of a Full Bench in V.Lakshminarayanan Vs. Union of India and others. (1993) 24 ATC FB 420. We are unable to agree. Though the Full Bench expressed opinions on different issues, at the close of the order (paragraph 49), the Full Bench stated :-
"........though we have discussed contentions of the learned Additional Solicitor General Shri.VR Reddy and refrain from expressing our final conclusion on the issues arising in this case we shall await the decision of the Supreme Court in Malick's case."
(emphasis supplied) It eludes comprehension, why learned counsel cited this decision as an authority for any proposition. Shri.PA Mohammed, also appearing for the Railways cited another decision of the Calcutta Bench (Full Bench) of the Tribunal in Durgacharan Halder and others Vs. Union of India and others (OA 854/90). It was observed :
As we have felt that this case should await the decision of the Supreme Court, we direct all the 5 cases to be listed for final hearing after the Supreme court rendering its decision in CA 2017/78."
We read this, only as an order of adjournment and not as an order laying down any proposition.
Following the precedents, we hold ;
that the principle of reservation operates on the cadre strength;
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. Applying these principles, respondents Railway will work out the reliefs. We are issuing the direction, as the apex court thought that the judgments in force should be implemented. (interim order in CA 2017/78).
These directions shall be carried out within six months from today.
Applications are allowed. Parties will bear their costs."
4. The above order was challenged before the Apex Court by the respondents vide SLP ) Nos. 10691/95 and connected SLP(s) and the Apex Court has on 30-08-1996 had held as under:-
"Delay condoned.
These matters are fully covered by the decision of this Court in R.K. Sabarwal & Ors vs State of Punjab & Ors, (1995) 2 SCC 745 and Ajit Singh Januja and Ors vs State of Punjab and Ors AIR 1996 SC 1189. The Special Leave Petitions are, therefore, dismissed."
5. In view of the dismissal of the SLPs, some of the applicants had filed contempt petitions Nos. CPC No.68/96 in OA No.483/91 CPC No.72/96 in OA No.603/93 and CPC No.73/96 in OA No.375/93 and these were decided on 25-02-1997 as under:-
"10. Special Leave Petitions were not dismissed without reasons. 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.
11. The reasons given by the Apex Court is that these matters are fully covered by the decision of the Apex Court in R.K. Sabharwal and others vs State of Punjab and others 1995(2) SCC 745 and Ajhit Singh Januja and Ors vs State of Punjab and Ors AIR 1996 (SC) 1189.
12. The Constitution Bench of the Apex Court in Sabharwal case has made it clear that the rule enunciated by them shall operate only prospectively (vide para 11). In the light of the rule enunciated therein, it shall have effect only from 10-02-95, the date on which the judgment was pronounced. So, the findings in the common order of this Tribunal could be effective only from 10-02-95 in the light of the reasons given while dismissing the SLP.
13. The Apex Court in Union of India vs Virpalsingh Chauhan (1995) 6 SCC 684 accepted the directions in Sabharwal case that appointment according to roster already made prior to the judgment are leval and valid. In effect, they were declared legal and valid and direction was given to determine the seniority in thi light of the principles laid down there. It was also held therein that when the panel/select list was prepared at the time of making selection for promotion to the post it would be that panel and not the panel/select list prepared at the time of appointment to the initial grade that would determine the seniority to the post. It would obviously apply to the future cases in accordance with the rule, subject mater of interpretation in the judgment in Chauhan case. All appointments made prior to that date being legal and valid including right to seniority in promotion in the cadre, they are required to be given effect to.
14. The version of the respondents that the panel of employees for selection post to be filled by selection was made during the years 1987, 1988, 1989 and 1990 is not under dispute. So, the panel was prepared before the pronouncement of the judgment in Sabharwal case.
15. The decision in Sabharwal case is to be followed and applied in these cases. Following and applying the decision in these cases, the contention of the petitioners that respondents have disobeyed the directions of this Tribunal and have committed contempt, cannot be accepted."
6. In addition to the above Contempt Petitions, applicants in OA No. 401/93 (vide the common order dated 06-09-1994) alleging non implementation of the aforesaid order moved the Tribunal through CP ) No. 39/97 and one of the applicants had also filed a fresh O.A. No. 648 of 1996. This OA was filed for a direction to revise the seniority of Clerks in each grade with reference to the entry level seniority, in terms of the order in OA No. 401/93 and to effect promotion to the post of OS Grade II after recasting the seniority list. This was disposed of on 29-10-1997 with the following directions:
"We, therefore, direct the respondent Railways to carry out the instructions contained in the Circular of the Railway Board referred to above and draw the roster as directed therein within a period of three months and prepare a provisional seniority list...."
7. In view of the above decision, the contempt petition No. 39 of 1997 (vide para 6 above) was closed.
8. The Railways had, in pursuance of the aforesaid decision in OA No. 648 of 1006 revised the seniority list of the clerks vide list dated 24-12-1997. And, on the basis of the revised seniority list, selection to the higher grade upto Office Superintendent Grade II was conducted in 1998 and a panel thereof published on 29-01-1999.
9. In so far as the Contempt Petition No. 68 of 1996 in O.A. No. 483/1991 (vide para 6 above), the applicant E.A. Sathyanesan filed S.L.P. (c) which, on admission, was graduated as Civil Appeal No. 5629 of 1997 and the Apex Court has, vide judgment reported in (2004) 9 SCC 165 inter alia held as under:-
"5. The learned counsel for the appellant submits 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. The learned counsel for the appellant appears to be correct.
6. In R.K. Sabharwal v. State of Punjab two contentions were raised before this Court, which are:
"2. (1) The object of reservation is to provide adequate representation to the Scheduled Castes/Tribes and Backward Classes in services and as such any mechanism provided to achieve that end must have nexus to the object sought to be achieved. The precise argument is that, for working out the percentage of reservation, the promotees/appointees belonging to the Scheduled Castes and Backward Classes whether appointed against the general category posts or against the reserved posts, are to be counted. In other words if more than 14% of the Scheduled Caste candidates are appointed/promoted in a cadre on their own merit/seniority by competing with the general category candidates then the purpose of reservation in the said cadre having been achieved, the government instructions providing reservations would become inoperative.
(2) Once the posts earmarked for the Scheduled Castes/Tribes and Backward Classes on the roster are filled the reservation is complete. Roster cannot operate any further and it should be stopped. Any post falling vacant, in a cadre thereafter, is to be filled from the category -- reserved or general -- due to retirement etc. of whose member the post fell vacant."
7. The first contention raised on behalf of the appellants therein was not accepted. However, the second contention was dealt with 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."
8. Therein this Court also considered the decision of the Allahabad High Court in J.C. Malik v. Union of India which has also been referred to by the Tribunal in the aforementioned judgment.
9. Having said so, this Court, however, directed that the interpretation as regards the working of the roster and the findings on the said point shall be operative prospectively. What was, thus, made prospective was the application of the judgment.
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.
Learned counsel have sought to bring to our notice individual facts of some of the appeals before us but we do not propose to enter into those facts or make any pronouncement thereon. The proper course, in our considered opinion, is to send all these matters back to the Tribunal to work out the rights of individuals concerned applying the three principles aforesaid. The appeals are accordingly disposed of in the above terms and matters remanded to the respective Tribunals. Writ petitions are dismissed. No costs."
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."
According to us, the Full Bench was not justified in saying in the case of Jaswant Singh v. Secy. to Govt. of Punjab that non-consideration of Scheduled Caste candidates against general category posts on the basis of their prior promotion will be hit by Articles 14, 15 and 16 of the Constitution. That view shall be deemed to be against the pronouncement of this Court by the nine-Judge Bench in the case of Indra Sawhney as well as the view expressed by the Constitution Bench in the case of R.K. Sabharwal. Accordingly, the appeals are allowed and that part of the judgment of the Full Bench in the case of Jaswant Singh v. Secy. to Govt. of Punjab is reversed."
12. The aforementioned decisions of this Court came up for interpretation before a Constitution Bench of this Court in Ajit Singh (II) v. State of Punjab. This Court upon considering the matter in great detail held:
"77. We, therefore, hold that the roster-point promotees (reserved category) cannot count their seniority in the promoted category from the date of their continuous officiation in the promoted post, vis-`-vis the general candidates who were senior to them in the lower category and who were later promoted. On the other hand, the senior general candidate at the lower level, if he reaches the promotional level later but before the further promotion of the reserved candidate -- he will have to be treated as senior, at the promotional level, to the reserved candidate even if the reserved candidate was earlier promoted to that level. We shall explain this further under Point. We also hold that Virpa and Ajit Singh (I) have been correctly decided and that Jagdish Lal is not correctly decided. Points 1 and 2 are decided accordingly."
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:
"89. 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 in original)
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 secific 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."
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.
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.
17. We are, therefore, of the opinion that the impugned judgment cannot be sustained and it is set aside accordingly. The appeal is allowed. As the respondents have not entered appearance we make no order as to costs.
10. Review Application filed vide Dy No. 18707/04 dated 26-08-2004 praying for review of the above judgment was dismissed by the Apex Court on 30-09- 2004.
11. The above decision of the Apex Court thus, resulted in the Tribunal's looking into the case again with a view to ascertaining as to whether the Respondents have complied with the order dated 06-09-1994 and if not to what extent and as to what directions be given for full implementation of the order of the Tribunal.
12. Accordingly, on an M.A. No. 272/04 in CPC No. 68/96 in OA No. 483/1991, this Tribunal, on 20-04-2004, after extracting the operative portion of the initial order dated 06-09-1994, held as under:-
Alleging that by not implementing the directions contained in the Judgment by issuing orders working out the reliefs the applicants in O.A. 483/91 Shri E.A. Sathyanesan filed this C.P.(C) praying that action under the Contempt of Courts Act may be initiated against Shri V.K. Agnihotri, General Manager, Southern Railway, Madras, Shri R. Sivaramkrishna, Divisional Railway Manager, Thiruvananthapuram and Shri K. Rajendran Pillai, Sr. Divisional Personnel Officer, Railway Divisional Office, Thiruvananthapuram.
When the Contempt Petition (Civil) came before the Division Bench of this Tribunal by order dated 25.2.1997 the Bench held that in view of the prospective nature of the judgment in Sabharwal's case it would obviously apply to the future cases and therefore the respondents could not said to have flouted the directions of the Tribunal and hence dismissed the CPC. Aggrieved the petitioner carried the matter before the Apex Court. The Hon'ble Supreme Court vide judgment dated 18.12.2003 in Civil Appeal No. 5629/97 found that the Tribunal committed a manifest error in declining to consider the matter on merits, up on the premise that Sabharwal and Ajit Singh-I had been given a prospective operation even though the extent to which the said decisions had been directed to be operative has been sufficiently explained in Ajit Singh-II and reiterated in M.G. Badappanavar's case. The Apex Court remitted the matter to the Tribunal to consider it on merits and to issue necessary directions as required expeditiously keeping in view that the matter has been pending for a long time. The Contempt Petition remitting the matter to the Tribunal for giving appropriate direction it is abundantly clear that the respondents have failed to carry out the directions contained in the judgment of the Tribunal in O.A. 552/90 and connected cases dated 6.9.1994. We have heard the learned counsel of the petitioner as also Mrs. Sumathi Dandapani, learned counsel who have been appearing for the Railway administration and also for the alleged contemner before this Bench. It is not disputed that the directions contained in the judgment has not been complied with, that the declarations that the principles of reservation operates on the cadre strength and that the 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 have become final. The direction to the respondents to work out the reliefs in individual case applying these principles and to issue orders within six months from the date of decision also have become final. Since these aspects are not in dispute between the parties the Railway administration will have to give effect to these directions at least now within a time frame to be fixed by the Tribunal. Learned counsel of the petitioner states that since the matter even after adjudication has been unattended to by the respondents for nearly a decade,directions should be issued to the respondents to implement the same within two weeks and at the most within a month. Mrs. Sumathi Dandapani, learned counsel appearing for the respondents in the O.A. submits that taking into account the number of officers and the details involved in this case it may not be possible to complete the exercise within a period of less than six months, while admitting the directions are to be complied with.
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. 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. For reporting compliance adjourned to 25.8.2004. The petitioner may bring on record the present incumbents in the office as alleged contemners." (emphasis supplied)
13. Respondents had moved the Apex Court in CC No. 9969/04 against the above mentioned order dated 20-04-2004 of this Tribunal and the Apex Court had, apart from granting leave to file SLP, also passed an order of interim stay of the aforesaid order, vide order dated 05-11-2004. These petitions were tagged with Civil Appeal Nos. 3858 of 2003 and 3859 of 2003 and were converted as SLP (C) No. 23467 of 2004 and 23468 of 2004. However, by the time the afore said stay was granted, in fact, certain orders had been issued by the Railways towards implementation of the order dated 20-04-2004 (read with order dated 06-09-2004) and a few of the same are as under:-
(a) Memorandum dated 20-08-2004 "SOUTHERN RAILWAY No.V.P.612/III/CC/OA 483/1991 Divisional Office, Personnel Branch Trivandrum-695 014 Dated.20.08.2004 MEMORANDUM Sub: Orders of the Hon'ble Tribunal, Ernakulam dt. 06.09.1994 in O.ANos.552/1990, 483/1991, 992/1992, 1793/1992, 375/1993, 401/1993, 430/1993, 603/1993, 622/1993, 626/1993, 990/1993, 1283/1993, 2078/1993, 2250/1993 etc and orders dt:
20.04.2004 in MA No.272/2004 in CPC 68/1996 in O.A.483/1991.
In compliance of the above, the seniority of the applicants in O.A.Nos.483/1991, 992/1992, 2078/1993 & 22501993, vis-a-vis the employees of reserved community in the lower categories are reflected in the promoted category and their pay has been refixed wherever applicable, as shown in the annexure enclosed.
The promotions/fixations advanced are on proforma basis and the applicants are entitled for arrears in the respective grades from the date they have shouldered higher responsibility. The applicants who have already retired are entitled for revision of pensionary benefits.
The above orders are issued without prejudice to filing of SLP/Review Applications before the Hon'ble Supreme Court of India.
This has been vetted by DRM/TVC.
Sd/-
Senior Divisional Personnel Officer Copy to: CPO/MAS/Sr.DCM/TVC Sr.DRM/TVC/RA/TVC " PI/Court PI/Settlement SMR/ERS Sss ERN/KLMR " YM/ERG OS (Court) ERS " OS(T)/Bills O.O File Parties " Div. Secys. SRES & SRMU/TVC Dvn."
(b) Memorandum dated 18/20-08-2004 "SOUTHERN RAILWAY No.V.P.535/II/SM/Vol.15 Divisional Office, Personnel Branch Trivandrum-695 014 Dated.18/20.08.2004 MEMORANDUM Sub: Orders of the Hon'ble Tribunal, Ernakulam dt. 06.09.1994 in O.ANos.552/1990, 483/1991, 992/1992, 1793/1992, 375/1993, 401/1993, 430/1993, 603/1993, 622/1993, 626/1993, 990/1993, 1283/1993, 2078/1993, 2250/1993 etc and orders dt:
20.04.2004 in MA No.272/2004 in CPC 68/1996 in O.A.483/1991.
In compliance of the above, the seniority of the applicants in O.A.Nos.990/1993 & 1283/1993, vis-a-vis the employees of reserved community in the lower categories are reflected in the promoted category and their pay has been refixed wherever applicable, as shown in the annexure enclosed.
The promotions/fixations advanced are on proforma basis and the applicants are entitled for arrears in the respective grades from the date they have shouldered higher responsibility. The applicants who have already retired are entitled for revision of pensionary benefits.
The above orders are issued without prejudice to filing of SLP/Review Applications before the Hon'ble Supreme Court of India.
This has been vetted by DRM/TVC.
Sd/-
Senior Divisional Personnel Officer Copy to: CPO/MAS/Sr.DCM/TVC Sr.DRM/TVC/RA/TVC " PI/Court PI/Settlement SMR/ERS Sss ERN/KLMR " Sms/TRVL CNGR CGV PVRD CPI/TVC ITC/TVC " OS(T)/Bills O.O File Parties " Div. Secys. SRES & SRMU/TVC Dvn."
(c) Memorandum dated 02-11-2004 which relates to the applicants in OA No. 622/91 (one of the O.As decided in the common order dated 06-09-1994) "MEMORANDUM Sub: Implementation of Orders dt.06.09.1994 in OA No.622/93 filed by Shri Pothan Joseph and 6 others before Central Administrative Tribunal/Ernakulam Bench The Hon'ble Central Administrative Tribunal/Ernakulam Bench in their common order dt. 06.09.94 in O.A.No.622/93 have ordered as under:
a) that the principle of reservation operates on the cadre strength;
b) 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. Applying these principles, respondents Railways will work out the reliefs. We are issuing the direction, as the apex court thought that the judgments in force should be implemented (interim orders in O.A.2017/78)".
II. The appeal against dismissal of Contempt Petition(C)No.66/96 was appealed before Hon'ble Supreme Court of India in Civil Appeal No.5829/97 and the same was remitted back to Central Administrative Tribunal/Ernakulam bench vide their Order dt. 18.12.2003 and the MA No.272/2004 in CPC 68/96 in OA No.483/1991 filed before the Central Administrative Tribunal/Ernakulam Bench was ordered on 20.04.2004 as under:
"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.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. For reporting compliance adjourned to 25.08.2004. The petitioner may bring on record the present incumbents in the office as alleged contemners."
III. In compliance of the above orders, the provisional seniority of Chief Clerks in Mechanical IP Branch in scale Rs.1600-2660 as on 31.12.91 and in the category of OS in scale Rs.2000-3200 as on 29.02.92 as circulated vide CPO/MAS letter No.P(S)612/IV/TP dt.17.03.92 is stand revised as under:
Sl.No. Name Designation Position in the Remarks seniority list Existing Revised Retired on 1 Pothan Joseph CC 17 1 31.03.97 2 EM Antony CC 50 2 30.11.01 3 KP Sudhakaran CC 51 3 31.07.04 4 D Sathyananthan CC 52 4 31.12.95 5 PN Vasudevan CC 53 5 30.06.94 6 P Prabhakaran CC 56 6 Still in service 7 TV Prabhakaran CC 57 7 31.08.96 IV. Consequent on the revision of seniority in the category lof Chief Clerk in scale Rs.1800-2660 as on 31.12.91, the provisional seniority list of OS in scale Rs.2000-3200 of Mechanical TP Branch as on 29.02.92 is also revised as under taking into consideration the seniority lof Shri KK Madhavan (SC) of PGT Division, who was placed at Sl.No.39 of the list as on 29.02.92.
Sl.No. Name Designation Position in the Remarks seniority list Existing Revised Retired on 1 Pothan Joseph CC 38 31.03.97 2 EM Antony CC 40 30.11.01 3 KP Sudhakaran CC 41 31.07.04 4 D Sathyananthan CC 42 31.12.95 5 PN Vasudevan CC 43 30.06.94 6 P Prabhakaran CC 44 Still in service 7 TV Prabhakaran CC 45 31.08.96 V. Consequent on the above 2 revision of seniority the promotion of the following 7 applicants in O.A.622/93, in the category of OS/I in scale Rs.2000-3200 is advanced to 29.04.91 on par with their junior Shri KK Madhavan, who was promoted on 29.4.91 on proforma basis and on actualf basis from the date they have shouldered higher responsibility as detailed below:
Sl.No. Name Designation Date of Revised on
S/Shri/Smt Promotion proforma basis
1 Pothan Joseph OS/I 01/03/93 29.04.91
2 EM Antony OS/I 14.12.93 29.04.91
3 KP Sudhakaran OS/I 15.12.93 29.04.91
4 Sathyanathan OS/I 10/02/94 29.04.91
5 PN Vasudevan OS/I 27.06.94 29.04.91
6 P Prabhakaran OS/I 05/06/96 29.04.91
7 TV Prabhakaran OS/I 05/06/96 29.04.91
They are eligible for exercising option from the revised date of promotion. Necessary pay fixation and consequent arrears, if any, has to be claimed by the respective division viz., PGT division.
The promotion/fixations advanced are on proforma basis and the applicants are entitled for arrears, in the respective grades from the date they have shouldered higher responsibility. The applicants who have already retired are entitled for revision of pensionary benefits.
The above orders are issued without prejudice to filing of SLP/Review applications before the Hon'ble Supreme Court of Indian.
This issues with the approval of Competent Authority.
Sd/-
(D.W.Samuel) Asst. Personnel Officer/M&E for Chief Personnel Officer.
Headquarters Office, Personnel Branch, Chennai-600 003."
14. In yet another letter dated 14-02-2001 which is much earlier to the aforesaid letters, in the case of the petitioners in OP No. 16893 of 1998 of the High Court of Kerala, the Southern Railway Headquarters, Personnel Branch, Madras 3 had stated as under:-
"SOUTHERN RAILWAY No. P(S)/608/II/SM/Vol III Headquarters Office Personnel Branch Madras 3 Dated 14-02-2001 Sr. DPO/DPO/MAS, TPOJ, MDY/MYS, TVC & PGT Sub: Revision of combined seniority of SM I/Gr I Published on 27- 01-98 in the light of the Decision in Ajith Singh II case reported in 1999 SCC (L&S) 1239 decided on 16-09-99.
Ref: This office letter No. P(S)612/II/S/SS/Tis/Vol.III Dated 27-01- 98 - OP 16893/98 G. Somanathan Nair and others - vs - U.O.I before the High Court of Kerala.
1. In the above O.P. Challenging to quash the seniority published vide this office letter quoted above, and also seeking claims for promotion, Hon'ble High Court of Kerala was pleased to direct the respondents to dispose of the claims of seniority and promotion of the petitioners in the light of the above said supreme Court Case and it has been decided to comply with the direction of the Hon'ble High Court and extend benefits if any accruing on the revision of seniority based on the principles enunciated in the above said Supreme Court case.
2. Further the selection of SMRs in scale of Rs 7450-11500 already finalized for 59 vacancies vide this office letter No.P(S) 312/II/I/Vol III dated 9-12-1998 has also been set aside by the Hon'ble Central Administrative Tribunal, Madras Bench in OA No. 978 of 1998 and the administration has been directed to form a fresh panel. Consequently, the panel formed vide this office letter No.P(S)608/II/SSs/TIs/Vol IV dated 8-10-1999 also has to undergo change.
3. The seniority list of SM/Gr. I as on 10-02-95 was last revised and a combined seniority list published vide this office letter dated 27-1-98 in which the seniority of staff promoted prior to 10-2-95 was not disturbed. In the light of the Supreme Court ruling in Ajit Singh-II case and direction of Hon'ble Kerala High Court in the above OP and also considering the Railway Board's letter dated 28-02-97 & 15-5-98 and Railway Board's letter No.E(NG)I-97/SM- 6/7 dated 8-8-2000, it has been decided that the seniority of general candidates vis-a-vis the reserved candidates (SC/ST) is to be revised based on the entry level seniority (appointment as ASM /SM /II in the case of Traffic Apprentices). While revising the seniority as above, the inter-se-seniority of the general candidates shall not be disturbed. Hence you may revise the seniority of staff in SM/Gr. I as on 10-2-1995 on the above basis and forward the same for publishing the combined seniority list. The details may be furnished in the enclosed proforma."
In compliance with the judgment of the High Court of Kerala in OP 16893/98, the Palghat Division had issued letter dated 24-01-2005 revising the pay of certain applicants consequent on the revision of the seniority in the light of the Headquarters letter cited above.
15. It is the case of the applicants that the promotion of senior general candidates are advanced only to the level of their junior SC/ST candidates without affecting the seniority and promotion of SC/ST candidates. They still continue in their promoted posts. Also such promotions do not affect them as 90% of the total number of 64 applicants have since retired from service. Therefore, the SC/ST candidates would not be affected. In fact respondents had moved the Tribunal by an MA for amendment of order dated 20-04-2004 to exclude the applicants in OA No. 552/90 and connected cases . Initially, notice was issued in the matter to the non applicants but later on by order dated 12-02- 2007, the same was dismissed.
16. Though arrears of pay and allowances and promotions were given to Sathyanesan, no such arrears have been paid even to the three co-applicants in OA No. 483 of 1991.
17. The Civil Appeal No. 3858 and 3859 of 2003 with which the special Leave Petition ) Nos. 23467 and 23468/2004 (challenging the order dated 20-04-2004 of this Tribunal in M.A. No. 272/2004 in CP ) No. 68 of 196 in OA No. 483 of 1991) was tagged, was decided by an order dated dated 19-02-2008 whereby the Apex Court has dismissed the same as infructuous, holding as under:-
"During the pendency of these appeals, a similar question has been considered by the Constitution Bench of this Court in M. Nagaraj & Ors vs Union of India & Ors (2006) 8 SCC 212. In view of the conclusion arrived at by the Constitution Bench in paragraphs 121 and 122 of M. Nagaraj case (supra), these appeals and SLPs have become infructuous and are, accordingly, dismissed as infructuous."
18. By this time, the applicants in majority of the main OAs had filed the contempt petitions, and this Tribunal, having considered the sequence of events as narrated above, felt that the CPCs should be converted into as Execution Applications and afforded time to the respondents to file their reply to the Execution Applications, vide order dated 12-03-2008. Thus, the following C.Ps were so converted as M.As for execution:-
Sl CPC M.A. O.A. NO. CPC No. MA No. 230/2008 OA 622/93 1 65/2004 CPC No MA No. 244/2008 OA 552/90 2 68/2004. 3 CPC No. 69/2004 MA No. 237/2008 OA2250/93 4 CPC No. 70/2004 MA No. 238/2008 OA 992/92 Sl CPC M.A. O.A. NO. 5 CPC No. 71/2004 MA No. 243/2008 OA2078/93 6 CPC No. 75/2004 MA No. 239/2008 OA 603/93 7 CPC No. 76/2004 MA No. 233/2008 OA 552/90 8 CPC No. 77/2004 MA No. 232/2008 OA 483/91 9 CPC No. 78/2004 MA No. 231/2008 OA 483/91 10 CPC No. 79/2004 MA No. 240/2008 OA552/90 11 CPC No. 88/2004 MA No. 235/2008 OA 626/93 12 CPC No. 92/2004 MA No. 234/2008 OA 1793/92 13 @ MA No. 236/2008 OA 1793/92 14 @ MA No. 241/2008 OA 401/93 @ MA No. 242/2008 OA 990/93
19. And, these M.As for execution have been allowed by the Tribunal vide Order dated 15-12-2008 and after referring to the cases of R.K. Sabharwal, Vir Pal Singh Chauhan, Ajit Singh II, M.G. Badappanavar v. State of Karnataka as well as decision in E.A. Sathiyanesan, the following order was pronounced:-
"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 Court#s 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."
20. 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.
) 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 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. (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) "
21. 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.
"x x x x x x
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) The above order was under challenge in various writ petitions 23164, 23373, 23459, 23470, 23656, 23659, 23668, 23751, 23808, 24480, 30393, 30470, 30590 and 30723 of 2009.
22. In one of the Writ petitions, even common order dated 12-03-2008 in respect of all the M.As for Execution (converting the C.Ps into execution applications) was under challenge.
23. While the above is one set of writ petitions and the basic order in these writ petitions three more Writ Petitions were filed before the High Court in W.P. Nos. 8019, 8159 and 9724of 2007. The background of these writ petitions is as in the succeeding paragraphs.
24. With the pronouncement of order dated 20-04-2004 in M.A. No. 272/2004 in the wake of the judgment in C.A. 5629/97 by the Apex Court, the respondents had issued the Memorandum dated 02-11-2004 in respect of the applicants in OA No. 622 of 1991. The applicants in this OA were all UR candidates and were seniors to certain reserved category employees who had accelerated promotion due to reservation and when the seniors were promoted to the next grade, their seniority was revised qua one of the reserved candidates (Shri K.K. Madhavan). The said order (already extracted earlier) provided for ante-dating the date of promotion to the grade of O.S. Etc., and also provided for grant of arrears in the respective grade from the date they had shouldered higher responsibility. The applicants who had already retired were entitled for revision of pensionary benefits.
25. Pursuant to the order dated 20-04-2004 in M.A. 272/04, the respondents have published a revised seniority list and based on the said seniority the respondents had issued an order of promotion in respect of certain clerical staff vide order dated 03-11-2004. The said seniority list as also another order dated 03-11-2004 reads as under:-
"SENIORITY POSITION OF OS/GRADE II AS ON 28TH FEB 1993 IN COMPLIANCE WITH CENTRAL ADMINISTRATIVE TRIBUNAL/ERNAKULAM BENCH JUDGMENT ON O.A.401/93 Sl.No NAME COMM DOB DOA DOE to DOE to Remarks . S/SHRI HC CC/OS Grade Gr.II Govindan UR 19.12.62 Retd on 1 05/06/38 01/01/84 01/06/89 30.6.96 Saraswathy UR 16.09.42 VR 2 A.V 08/01/64 01/01/84 01/06/89 Sadavisan UR 19.08.36 Retd 3 Nair K 02/11/57 01/01/84 08/02/90 Shaik Abdul UR 30.12.44 14.02.64 24.09.90 Expired 4 Kader 01/01/84 Subhadra.C.T UR 15.06.42 24.09.90 VR on 5 10/06/64 01/01/84 30.11.99 Malathy.C UR 24.09.90 Retd on 6 09/11/39 09/04/64 01/01/84 30.11.97 Vedavally UR 20.09.42 24.04.64 24.09.90 Retd on 30.9.2002 Tfd to MDU Dv Retd on 7 01/01/84 31.7.04 Sasidharan UR 21.07.44 17.09.64 24.06.91 31.7.04 8 Nair 01/01/84 Vasundaharan. UR 28.11.66 24.06.91 Retd on 9 P.A 05/04/41 01/07/84 30.4.2001 Mohammed UR 15.01.44 26.02.66 18/09/84 24.06.91 Retd on Kasim 31.01.200 10 4 Divakaran.K.P UR 27.02.50 15.03.74 30.12.85 24.06.91 Now 11 APO 12 Jacob Daniel ST 19.03.59 25.09.80 Chandrika SC 26.01.85 24.06.91 Now 13 Jayasankar 04/03/59 05/03/81 APO 14 Thilakam.A SC 29.11.55 17.09.79 18.04.84 24.12.91 SENIORITY POSITION OF HEAD CLERKS AS ON 28 FEB 1993 IN COMPLIANCE WITH CENTRAL ADMINISTRATIVE TRIBUNAL/ERNAKULAM BENCH'S JUDGMENT ON O.A.401/93.
Sl.No. NAME S/SHRI CO DOB DOA DOE to HC Remarks
MM Grade
Sivasubramanian.v UR 07/07/40 05/09/64 01/02/84 Retd.
1
Sl.No. NAME S/SHRI CO DOB DOA DOE to HC Remarks
MM Grade
Seenath.P.S UR 08.02.84
/
2 09/08/45 02/01/65 01.08.84
Premalatha.P UR 17.05.85 VR Rtd. On
3 12/10/44 02/01/65 30.09.2003
4 Devassy.A UR 15.06.45 07/03/66 01/08/84
Sreenivasan.K UR 23.07.65 Retd. On
5 01/06/42 01/10/84 31.05.2002
Kunhikrishnan.A UR Retd on
6 04/03/42 01/04/64 07/12/84 31.03.2002
7 Gangadharan.B UR 15.03.46 31.08.65 07/01/85
8 Viswanathan.M.P UR 02/06/36 01/05/57 01/04/85 Retd.
Muraleedharan.K.G UR 20.11.41 Retd on
9 06/10/64 01/06/85 31.10.2001
10 Remavathy.K UR 25.10.47 03/11/72 01/07/85
11 Mallika.P UR 11/01/52 10/11/72 01/08/85
Chandrasekharan T UR 15.10.43 28.06.72 VR w.e.f.
12 01/11/85 28.02.2001
Jayalakshmi C UR Retd on
13 08/10/40 04/12/72 05/11/85 31.10.2000
Govindarajalu.S UR 08.01.57/ Retd.
14 12/04/38 03.09.57 01/08/85
KuttappanT.N UR 15.08.37 27.10.73/ Retd on
15 21.09.61 31.08.1995
Prabhakaran P UR 20.10.73 Retd on
16 01/09/39 05/11/85 31.08.1997
17 Santha O.K UR 20.10.50 15.03.74 30.12.85
18 Meenakshy Kutty UR 15.06.48 18.03.74 30.12.85
19 Margarett N.A UR 15.03.52 19.03.74 30.12.85
Kochannam K UR 30.03.74 20.04.87
20 Joseph 12/12/47
Warrier M.V.N UR 20.04.87 VR on
21 07/09/42 11/09/74 20.03.2002
Annammaphilip UR 15.05.42 12.11.62 20.04.87 Retd on 22 Margeratte Reena 31.05.2002 23 Gabrial. UR 20.02.54 01/03/75 20.04.87 Girija.C UR 15.05.55 08.09.75 20.04.87 / 24 12.10.74 25 Venugopal.M.R UR 01/11/49 28.06.74 31.12.86 Sl.No. NAME S/SHRI CO DOB DOA DOE to HC Remarks MM Grade 26 Loius.PP UR 26.06.35 18.08.76 20.01.88 Raheema UR 12/10/76 27 08/01/53 01/11/87 Unnikrishnan TK UR 25.11.39 18.07.62 20.01.88 Retd on 28 31.11.1997 Rajeswari Ramanan UR 19.04.46 31.01.77 22.12.88 VR on 29 31.10.1997 Kalyani V UR 30.11.52 14.02.77 22.12.88 Tfd to MAS on 30 10.06.2002 31 Kunjamma Jacob UR 22.06.51 28.09.73 01/01/89 32 Santhakumari VK UR 24.10.55 09/02/77 01/03/89 Suguna UR 21.12.76 33 Nandhakumar 01/12/54 01/03/89 Krishnan R UR 20.03.36 34 Vasumanthy 03/07/78 01/06/89 35 Radhakrishnan UR 12/12/52 10/03/77 01/06/89 Narayanan UR 13.06.43 18.06.74 36 Kekkadavan 06/06/89 Thankamani UR 28.03.79 37 Oommen 05/10/53 01/04/90 Viswanathan PE UR 24.03.88 Promoted LDCE quota 38 10/05/54 01/11/79 (Sr. Clerk) 39 Hymavathy K UR 27.10.59 30.01.79 17.04.90 Chandrika Madathil UR 16.05.61 27.10.82 24.09.90 DR-Sr. Clerk promoted LDCE quota 40 (Sr. Clerk) 41 Jaya Guruswamy UR 03/01/54 27.06.79 24.09.90 42 Swamala PK UR 23.11.54 01/12/78 24.09.90 Venkatesan G UR Expired on 43 11/11/57 08/03/79 01/03/91 23.05.1997 44 Radhalakshmi VA UR 01/12/57 28.06.78 01/03/91 45 Ruth Refus UR 16.03.53 21.03.79 28.03.91 46 Zeenath Beevi UR 30.10.56 22.03.79 01/04/91 47 Radhakrishhan N UR 08/01/56 23.03.79 24.06.91 48 Lalthika N UR 21.05.50 28.03.79 24.06.91 Geetha CV UR 13.05.59 29.03.79 24.06.91 VR on 49 26.05.2007 50 Philomina Raphel UR 15.12.52 30.03.79 24.06.91 51 Mabsy Mookan UR 06/05/60 15.10.82 24.06.91 Sl.No. NAME S/SHRI CO DOB DOA DOE to HC Remarks MM Grade Govindha Pisharodi UR 18.02.40 21.07.67 Retd. On 52 EP 01/01/92 28.02.1998 53 Swarnalatha G UR 13.05.55 15.09.79 01/04/92 54 Retnakukumari AL UR 28.08.52 22.09.79 01/05/92 55 Girija A UR 30.11.54 13.09.79 01/05/92 56 Valsala Devi K SC 15.11.56 06/10/79 01/07/92 57 Sivadasan TK SC 15.05.52 26.11.79 01/09/85 58 Pushpalatha K SC 12/06/56 11/02/81 01/01/84 59 Chandaran Palliyalal SC 15.11.56 13.01.83 29.03.84 Expired 60 Ambika Sujatha SC 27.05.63 19.05.84 16.11.84 61 Leela MK SC 26.07.62 13.06.84 16.11.84 62 Eswaran N SC 03/04/67 08/04/85 01/08/88 Chamiyar SC 30.06.54 02.12.82 24.09.90 / 62 20.10.76 64 Ammini P SC 25.05.46 05/11/84 24.06.91 65 Krishnan NA ST 20.04.65 03/12/86 01/03/91 Crhisty Jayanthy ST 21.12.67 22.06.90 DR as Sr. Clerk now working in 66 01/08/92 CN Unit "SOUTHERN RAILWAY No.V.P.535/II/SM/Vol.15 Divisional Office, Personnel Branch Palghat, Dated.103.11.2004 OFFICE ORDER NO.J/PB/18/04 Sub: Orders of the Hon'ble Tribunal, Ernakulam dt. 06.09.1994 in O.ANos.552/1990, 483/1991, 992/1992, 1793/1992, 375/1993, 401/1993, 430/1993, 603/1993, 622/1993, 626/1993, 990/1993, 1283/1993, 2078/1993, 2250/1993 etc and orders dt: 20.04.2004 in MA No.272/2004 in CPC 68/1996 in O.A.483/1991.
In compliance of the above, the seniority of the applicants in O.A.401/1993 vis-a-vis the employees of reserved community has been revised in the promoted grade duly reflecting the seniority in the initial recruitment grade and their pay has been refixed wherever applicable as shown in the annexure enclosed.
`They are entitled for arrears from the date they have been promoted as OS/Gr.II and shouldered higher responsibility. The applicants who have already retired are also entitled for revision of pensionary benefits.
The serving applicants are promoted as OS/Gr.II in scale Rs.6500- 10500 from date of shouldering higher responsibilities.
The above orders are provisional subject to the outcome of SLP filed before the Hon'ble Supreme Court.
The employees are allowed to exercise option for fixation of their pay in the higher grade from the date of next increment in the lower grade.
The fixation of pay has been certified by Sr. DFM/PGT vide letter No.P.481/PGT/E/Fixation/Vol.20 dated 02.11.2004.
This has the approval of competent authority.
Sd/-
(Chandrika Jayasankar) APO/EPGT For Sr. DPO/PGT Copy to CPO/MAS, Sr. DFM/PGT Chief OS/MISC."
26. This order was passed after revising the inter-se seniority of the General Candidates and the Reserved Candidates, obviously, adopting the 'catch up rules'. This had certainly brought certain general candidates above certain reserved candidates though the reserved candidates were promoted earlier than the general candidates. Telescopically, this change in the seniority affected the promotion chances of the reserved candidates to the next higher post and thus, the reserved candidates were aggrieved by the issue of order dated 03-11-2004. Incidentally, though orders dated 03-11-2004 were passed to the advantage of the general candidates, these were not duly executed both in respect of monetary benefits arising therefrom and also eligibility to participate in the examination for higher posts and thus, the general candidates have their own grievances in this regard. This resulted in the filing of the following four O.As.
(a) OA No. 927/2004 filed by Smt. K. Remavathy and others, General Category employees, for direction to give effect to the pay in the post of OS-1 as per order dated 03-11-2004 and for a direction that they are entitled to retain their seniority as published by the respondents as on 28-02-1993 and promote them as Chief Office Superintendent, interpolating the seniority in the list of OS Grade I.
(b) OA No. 629/2006 filed by Smt. C. Girija, one of the applicants in OA No. 927/2004, for a declaration that she is entitled to be considered for viva voce in connection with the selection to the post of Assistant Personel Officer, including the applicants as OS Grade I with seniority from 06-02-1995. (In addition her challenge included the designation as OS Grade II shown as Ad hoc).
) OA No. 71/05 filed by Shri O. Gopalan, a reserved candidate, challenging the promotion order dated 03-11-2004, whose implementation is insisted by the applicants in OA No. 927/2004 referred to in (a) above. (Obviously, the applicants in OA 927/2004 were party respondents in this OA No. 71/2005.)
(d) OA No. 74/2005 filed by one Smt. P.S. Seenath, a general category employee, senior to Smt. Girija (applicant in OA No. 629/2006) claiming extension of the benefits available to the said Girija, her junior in the grade.
27. Of these four cases, the first three as above were considered together in order dated 28-02-2007. The Tribunal has set the following questions of Law and fact for adjudication of the said OAs:-
Questions of fact (1) Whether the Annexure A-3 impugned order dated 3.11.2004 in O.A. 71/05 is without jurisdiction.
(2) Whether the said order is illegal and violative of statutory rules and procedures.
(3) Whether the grant of retrospective promotion to the party respondents by the said order is illegal.
Questions of law (1) Locus standi of the applicants in O.A. No. 71/05 (2) Relevance of the judgments of the Hon'ble Apex Court in Virpal Singh Chauhan, R.K. Sabharwal, Ajith Singh-I, Ajith Singh -II on the the question of inter-se seniority of the contesting parties in these OAs. (3) How far the orders issued so far are sustainable in view of the Apex Court holding the 85th Constitution Amendment Act of 2005 (4) Whether the permission sought by the respondents in M.A. 41/06 in O.A. 71/05 to recall the Annexure A-3 order can be granted as the order in M.A. 272/04 has been stayed by the Apex Court. (5) The legality of the order in M.A. 272/04 dated 20.4.2004 After due consideration, the Tribunal has answered the above questions as under:-
Question Answer
Locus standi of the In affirmative.
applicants in O.A. No.
71/05
Question Answer
Relevance of the 45 In brief, the concepts of reservations in
judgments of the Hon'ble promotions and consequential seniority and the
Apex Court in Virpal Singh equity principles governing inter-se seniority between
Chauhan, R.K. Sabharwal, general and reserved candidates evolved through
Ajith Singh-I, Ajith Singh -II these judgments can be summarised thus:
on the the question of inter-se `seniority of the i) R.K.Sabharwal was a case relating to contesting parties in these operation of the roster system and the Court OAs. stated that entire cadre strength should be taken into account for applying reservation. The Constitutional 85th Amendment Act 2000 gives legal assent to this judgment. It was to be given effect from 10.2.1995.
ii) In Vir Pal Singh Chauhan, a Railway's one it was observed that the Railways did not implement the rule of reservation according to the posts and that the catch up rule is not implicit in Art. 16(1) to(4) and that it was open to the State to frame rules regarding inter se seniority incorporating the catch up rule.
iii) In Ajith Singh-I the question was whether it was open to the administration to grant consequential seniority against general category posts in the higher grade and the court observed that the equality principle requires exclusion of extra weightage for roster point promotions and giving weightage to earlier promotion secured by roster point promotee would result in reverse discrimination.
(iv)As there was a conflict between the above two judgments the matter came up in IAS for clarification in Ajith Singh-II. It was held that Articles 16(4) and 16(4-A) did not confer any fundamental right and the interests of reserved classes must be balanced against the interests of other segments of society. It confirmed the judgment in Ajith Singh-I and expressed itself against consequential seniority to the roster point promotees.
(v) In another judgment of M.G.Badappanavar it was held that if roster point promotees are given the benefit of consequential seniority it will result in violation of the equality principle.
From the above it is more than evident that the Apex Court had clearly expressed itself against the concept of "consequential seniority in all the above judgments from 1995 onwards."
Question Answer How far the orders issued The constitutional validity of the amendment which so far are sustainable in provided that the reserved category will be granted view of the Apex Court seniority from 16.7.1995 has not negated the spirit of holding the 85th post based roster or the ceiling limit of 50% for Constitution Amendment reservation.
Act of 2005 The principle in Ajit Singh-II and earlier judgments would remain relevant for the period prior to 16.7.1995. As stated by the respondents, order issued by the Railway Board dated 8.3.2002 would take care of the promotions made between 11.2.95 to 15.7.1995 as personal but none of these orders would affect the orders of this Tribunal issued in the batch cases of 1994 which relates to the period prior to 16.7.95 and which has been affirmed by the Hon'ble Supreme Court and which would cast the duty on the respondents to recast the seniority of the reserved category employees who were promoted in excess of the roster points if any before 10.2.1995. Whether the permission This has been linked with the other question whether sought by the respondents Annexure A-3 order dated 03-11-2004 in OA No. 927 of in M.A. 41/06 in O.A. 71/05 2004 is without jurisdiction and/or in violation of the rules to recall the Annexure A-3 and regulations.
order can be granted as the order in M.A. 272/04 has been stayed by the Apex Court.
The legality of the order in The Railways are aggrieved by the order in M.A. M.A. 272/04 dated 272/2004 mainly on the ground that it directs 20.4.2004 implementation of the common order dated 6.9.94 in all the 14 cases. We have already explained why we cannot appreciate this stand of the respondents in the light of the general principles and the law laid down by the Hon'ble Supreme Court. What is applicable for the ministerial cadre is also applicable to the Station Masters/Guards, etc. in the Railways have to be applied uniformly to all employees/cadres. It cannot be done piecemeal.
Whether the Annexure A-3 The respondents are permitted to recall the impugned impugned order dated order dated 3.11.2004 (on account of reasons given in 3.11.2004 in the order) O.A. 71/05 is without jurisdiction.
Whether the said order is Same as above.
illegal and violative of statutory rules and procedures. Whether the grant of In view of the liberty granted to the respondents to recall
retrospective promotion to the order dated 03-11-2004, this question has not been the party respondents by directly answered.
the said order is illegal.
28. The Tribunal has given made a very elaborate discussion before arriving at the above decisions/findings.
29. Ultimately, the Tribunal has held as under:-
"68 In the light of the above discussions and the settled position of law, the respondents are permitted to recall the impugned order dated 3.11.2004 after filing an affidavit to that effect before the Apex Court. Resultant to the cancellation of the order, the reliefs sought in O.A. 927/2004 have become infructuous at this point of time.
69 As far as the reliefs in O.A. 71/2005 are concerned, we take note of the position we had accepted the position stated by the respondents that the judgment in O.A. 522/90 and batch cases disposed of by the common order dated 6.9.1994 in respect of the ministerial cadre had been implemented by readjustment/recasting and publication of the seniority list in Annexure A-7 and Annexure R15 in O.A. 71/2005. There are no specific pleadings regarding the seniority accorded in the above mentioned lists. No service rules have been shown to us which contemplated computation of accelerated seniority in respect of roster promotion to such candidates prior to 10.2.1995. Hence the observations of the Tribunal in the order dated 6.9.94 still hold good as on that date as discussed in earlier paragraphs. In the normal course, the lists published are to be treated as final. However, in the present case due to pendency of the spate of litigations and plethora of judgments and the muddled scenario created by the confused approach of the respondents we are inclined to give another opportunity to the party respondents as well as others to represent against the seniority lists and the seniority lists should be in accordance with the principle laid own in the order of this Tribunal dated 6.9.1994, and if they are not in accordance with the same, fresh lists as on 10.2.1995 in the cadre of Head Clerks/OS-II/OS-I should be prepared and circulated giving sufficient time. We accordingly direct the respondents to re-publish the seniority lists of the ministerial cadres at all levels as on 10.2.1995 in accordance with the rules and invite objections and finalize the same in all the above grades of Clerks within a period of three months and thereafter make promotion so that all future promotions can be effected on a clear slate. We are of the view that such a direction would be to the satisfaction of prayers of both parties and meet the ends of justice. With these directions we dispose of the three OAs"
30. The applicants in the above said OAs had filed writ petitions before the Hon'ble High Court in WP Nos. 8019, 8150 and 9724 of 2007 (referred to in Para 21 above), which were considered by the High Court along with the writ petitions 23164, 23373, 23459, 23470, 23656, 23659, 23668, 23751, 23808, 24480, 30393, 30470, 30590 and 30723 of 2009. whereby order dated 15-12- 2008 in the Execution Applications was challenged.
31. The High Court had stated that the two orders i.e. order dated 28-02-2007 in the three O.As and that dated 15-12-2008 in the Execution Applications have been dealt with and decided by two different Division Benches of the Tribunal and has further discussed the matter and arrived at a decision as hereunder:-
"4 Though all the employees involved in these writ petitions and in the aforesaid original applications were governed by the first order of the Tribunal issued on 6.9.1994, unfortunately, the miscellaneous applications considering the question of enforcement of that order and the original applications filed seeking further reliefs went for consideration before two different quorums in the Ernakulam Bench of the Central Administrative Tribunal. The matters from which the first three among the captioned matters arise was taken up by one Bench. In that, the Railways said that there was an order in a particular proceedings and certain matters were not brought to the notice of the Tribunal earlier. Dilating on that aspect the Tribunal issued certain directions essentially enabling the Railways to wriggle out of the responsibility of standing by the decisions they had purportedly taken by giving effect to the Tribunal's decision dated 6.9.1994.
5. A bunch of miscellaneous applications seeking enforcement of the order dated 6.9.1994 was dealt with by another quorum of the Ernakulam Bench. After an elaborate consideration, it was held that the Railway establishment had not obeyed the directions of the Tribunal and certain orders were, accordingly, issued.
6. When this whole bunch is before us, we have heard the Senior counsel Smt Sumathy Dandapani and Senior Standing counsel, Shri MC Cherian on behalf of the Railways and Senior counsel Shri OV Radhakrishnan, Adv Shri KA Abraham, Adv Shri Biju Martin on behalf of the employees.
7. To resolve the dispute arising for consideration, we have necessarily to start with the order dated 6.9.1994. Though elaborate references were made to the different decisions noticed above including R.K.Sabarwal's case (supra), Virpal Singh's case (supra) and also to M.Nagaraj and others v Union of India and others [(2006) 8 SCC 212] rendered by the constitutional bench of the whole gamut of the constitutional amendments relating to reservation and protection of the seniority in the higher cadre, we are faced with the situation where there is a clear conflict between the two sets of orders issued by the Tribunal. In a way, we are prima facie inclined to think that if we were to set aside the decisions impugned in the first three among the captioned matters, as a necessary corollary, we may be persuaded to uphold the decisions impugned in the other writ petitions. The vice versa could also happen. We have given our anxious consideration whether we should further proceed and decide on the issue. If we are to do so, we would necessarily have to sit in judgment on question on facts and the impact of the various decisions of the Apex Court of the cases and also the judgments of the ?Apex Court, we have not expressed anything finally and the Tribunal will be at liberty to consider all aspects. We find that in these writ petitions, the parties had certain protective orders. The status quo so obtained as on today will continue until the Tribunal decides in terms of this judgment.
These writ petitions are ordered accordingly. No costs."
32. As stated earlier (vide para 22 above), order dated 12-03-2008 by which the contempt petitions were converted into Execution applications was also one of the challenges in one of the above mentioned writ petitions and thus, by virtue of the judgment dated 16-07-2010 of the High Court, even this order got set aside. Thus, the Contempt petitions spring back to their original position. Thus, in view of the direction of the High Court that the Tribunal "will take up all the matters from which these writ petitions arise and decide on the same in accordance with law", the duty cast upon the Tribunal is to once again consider the C.Ps on the one hand and the three O.As on the other and arrive at a conclusion.
33. In the considered opinion of the High Court, need to consider the above stated petitions has arisen by virtue of the fact that while in the order on Execution Application, the direction was for enforcement of the order dated 20- 04-2004,(read with order 06-09-1994 which is implicit in the very order), the decision in the three OAs gave certain lever to the respondents which would enable them to wriggle out of the responsibility of standing by the decisions they had purportedly taken by giving effect to the Tribunal's decision dated 06-09- 1994. In other words, a re-look of the two orders is necessary as, as it is, they were not compatible.
34. In crystal clear terms the High Court has stated that the High Court has "not expressed anything finally and the Tribunal will be at liberty to consider all aspects."
35. Certain significant points, having full bearing to the facts/law on the instant cases have, however, been pointed out by the High Court in their order dated 16-07-2010. These could zealously be pressed into service in deciding the case. The same are as under:-
(a) We cannot ignore the basic fact that the Tribunal's order dated 6.9.1994 is final inter partes.
(b) We may also notice that the submissions of the Railways in W.P(C) Nos. 8019, 8159 and 9724 of 2007 indicate that the Railways are essentially wanting to give effect to the directions of the Tribunal. Though the two orders (order dated 28-02-2007 and 15-12-2008) were set aside, these have, as such set aside not on merits but on the apparent ground of incompatibility. The incompatibility is to the extent that whereas the order dated 15-12-2008 directed the respondents to implement the order dated 6-09-1994 (or for that matter 20-04-2004), the other order gave a lever to the respondents 'to re-publish the seniority lists of the ministerial cadres at all levels as on 10.2.1995 in accordance with the rules and invite objections and finalize the same in all the above grades of Clerks within a period of three months and thereafter make promotion so that all future promotions can be effected on a clear slate.'
36. Counsel for the contempt petitioners succinctly brought out the entire history of the case and submitted that as a matter of fact, there is no conflict at all in the two orders of the Tribunal. The OAs leading to the filing of Writ Petitions No. 8019, 8159 and 9724 of 2007 are on an entirely different plane, inasmuch as, the impugned orders therein are consequential orders of the Railways and not against the implementation of the orders of this Tribunal.
37. Counsel for the respondents submitted that the High Court having remanded the matter back to the Tribunal for reconsideration, all that is to be seen is in what manner the order sought by the applicants in the Contempt Petition is to be implemented, duly tempered by the decisions of the Apex Court in M. Nagaraj & Others vs Union of India and others (2006) 8 SCC 212 . The counsel submitted that Sabarwal held that catch up rule of retaining seniority as in the feeder post would apply to the case of the general candidate in the next higher post to which his junior, a reserved candidate, would have been promoted prior to the promotion of the general candidate. This was effective from 10-02- 1995. However, w.e.f.16-07-1995 , in view of the insertion of Article 16(4A) to the Constitution, seniority of reserved candidates who got their accelerated promotion would also be retained. It was the constitutional validity of this Article that was tested in M. Nagaraj's case supra and the Apex Court has upheld the validity of the same. Thus, the dictum of the Apex Court in Sabarwal was to be implemented only for a limited period i.e. from 11-02-1995 to 15-07-1995. And, the Railway Board has given protection to the effect that the promotion/seniority afforded to reserved candidates during the aforesaid inter-regnum period would be treated as personal to them. In addition, the counsel submitted that it is only in respect of those who were promoted in excess of the quota that would not get the benefit of seniority and an exercise conducted by the respondents did not bring out any promotion in excess of the normal quota. Hence, there is no need to review either the seniority list or do any further action.
38. Many documents/authorities were filed by both the parties one by one swelling the already swollen records. Be it as it may, as said Lord Denning in Jones v. National Coal Board (1957) 2 QB 55-- "let the advocates one after the other put the weights into the scales -- the `nicely calculated less or more' -- but the judge at the end decides which way the balance tilts, be it ever so slightly. This is so in every case and every situation."
39. Thus, what is to be seen is whether there is actually any conflict in the decisions earlier passed in the CP on the one hand and the OAs on the other hand (which have already been referred to above) and if so which one to follow and which one to omit.
40. Be it the decision in the O.As , or the decision in the M.As or even the judgment by the High Courts, a common thread in all these orders/judgment is that the initial order dated 6 September, 1994 is a judgment in rem, mandating the respondents to work out the revised seniority on the basis of the decisions of the Apex Court in the case of Sabharwal and Ajit Singh II and render justice to all the employees. The same is not a judgment in personem. And, secondly, once the order of this Tribunal has not been disturbed by the Apex Court, the same attains finality and implementation by the respondents of the order is a legal compulsion. We may remind ourselves of the observations of the High Court when it has stated, "We cannot ignore the basic fact that the Tribunal's order dated 6.9.1994 is final inter partes."
41. Before going further, a look at the claims in the four O.As would be appropriate.
(a) In OA No. 927/2004 filed by Smt. K. Remavathy and others, General Category employees, what was claimed was further action to implement the promotion order passed on the basis of the order dated 6-09-1994 read with order dated 20-04-2004 of the Tribunal and after such execution, still further action for promotion to the next post of Chief Office Superintendent of the General candidates keeping the seniority list prepared in February, 1993 in the lower post intact. This is nothing but a separate O.A. to implement the order of the Tribunal.
(b) OA No. 629/2006 filed by Smt. C. Girija, one of the applicants in OA No. 927/2004, for a declaration that she is entitled to be considered for viva voce in connection with the selection to the post of Assistant Personel Officer, including the applicants as OS Grade I with seniority from 06-02-1995. (In addition her challenge included the designation as OS Grade II shown as Ad hoc). This again is only towards the implementation of the order of the Tribunal cited above. ) OA No. 71/05 filed by Shri O. Gopalan, a reserved candidate, challenging the promotion order dated 03-11-2004, whose implementation is insisted by the applicants in OA No. 927/2004 referred to in (a) above. (Obviously, the applicants in OA 927/2004 were party respondents in this OA No. 71/2005.). This is a challenge to the action by the respondents taken on the order of the Tribunal which means that though there is some compliance of the order, the same is affecting the vested rights of the reserved candidate.
(d) OA No. 74/2005 filed by one Smt. P.S. Seenath, a general category employee, senior to Smt. Girija (applicant in OA No. 629/2006) claiming extension of the benefits available to the said Girija, her junior in the grade. This is for enforcing the judgment in rem of the orders of the Tribunal in that those who were not parties to the proceedings, their case should also be considered, as otherwise, their juniors would be the lone beneficiaries.
42. A perusal of the above would go to show that there is no conflict in the claim of the Misc. Applicants (the applicants in contempt petitions) and the applicants in the other O.As.
43. While disposing the misc. applications, certain directions were given by the Tribunal only towards implementation of the orders of the Tribunal.
44. The orders in the O.As were also orienting towards the same but in a different fashion, by going back to a particular stage (of preparation of seniority list) and comply with the orders. The order dated 28-02-2007 of this Bench in the O.As mentioned above gives the directions as under:-
"We are inclined to give another opportunity to the party respondents as well as others to represent against the seniority lists and the seniority lists should be in accordance with the principle laid own in the order of this Tribunal dated 6.9.1994, and if they are not in accordance with the same, fresh lists as on 10.2.1995 in the cadre of Head Clerks/OS-II/OS-I should be prepared and circulated giving sufficient time. We accordingly direct the respondents to re-publish the seniority lists of the ministerial cadres at all levels as on 10.2.1995 in accordance with the rules and invite objections and finalize the same in all the above grades of Clerks within a period of three months and thereafter make promotion so that all future promotions can be effected on a clear slate. We are of the view that such a direction would be to the satisfaction of prayers of both parties and meet the ends of justice. "
45. Thus, though there is a seeming difference in the order dated 28-02-2007 of the Tribunal in the above O.As and in the order dated 15-12-2008, practically there is no difference in the direction given in these orders. Only the stage from which action has to proceed has changed. Thus, be it the orders in the OAs or in the M.As, the respondents are bound to ultimately comply with the initial order dated 06-09-1994, as tempered in the order dated 20-04-2004 and keeping in view the decisions if M.Nagaraj of the Apex Court.
46. Now, the requirement as on date is -
(a) Put the clock back to 10-02-1995 the date of order in Sabharwal which provided that catch up rule shall spring up in the event of a reserved candidate getting promoted prior to his senior general candidate in respect of the immediate next promotion. This would call for preparation of a fresh panel of all the persons in the posts as on 10-02-1995. Thereafter, preparation of seniority list in the next higher post identifying those reserved candidates who were promoted prior to their senior general candidates. This would be only for the period from 11-02-1995 to 15-07-1995. Any general candidate who had been promoted to the next post on or after 10-02-1995 but earlier than 16-07-1995 would retain his seniority in the feeder grade qua the reserved candidate promoted earlier than him due to reservation policy and the earlier seniority would be considered for next promotion. The Railway Board's letter dated 08- 03-2002 being only an administrative order cannot override the judicial order of the Tribunal and thus, promotions made between 11-02-1995 to 15-07-1995 granted to the reserved candidates even if retained as personal to them, the entitlement of the unreserved candidates for promotion prior to such promotion of the reserved candidates cannot be eclipsed by the order of the Railway Board. The Respondents are under an obligation to undertake a drill in this regard to give effect to the order dated 06-09-1994 read with order dated 20-04-2004. This cannot be avoided.
47. In fact, the respondents did prepare a seniority list and effected promotion in respect of certain unreserved candidates, one of which is Remavathi, applicant in O.A No. 927/2004. It was that seniority list that was sought to be reviewed and recast from the beginning by the Tribunal in its earlier order dated 28-02-2007. It is this drill that has to be redone to confirm that the earlier seniority list prepared may be, in deed, in tact and in accordance with the law laid down by the Apex Court in Sabharwal and subsequent decisions in Vir Pal Singh Chauhan and Ajit Singh II. While doing so, it could be that some of the applicants in the earlier OAs (which were decided on 06-09-1994) may not be the beneficiaries as the orders in the OAs were in the nature of judgment in rem and some unreserved senior general candidates but not party to any of the O.As would have been the beneficiaries. If such individuals who were applicants have their grievance, they have to specifically indicate how their rights have not been duly considered. They have to compare their position vis-a-vis other juniors (be it general candidates or reserved candidates) and establish that they too should have been considered for promotion to the next grade on the basis of the seniority position in the lower feeder grade.
48. Thus, the conclusion arrived at in the case of the C.Ps is as under:-
(a) There is no question of holding that the order dated 06-09-1994 tempered with order dated 20-04-2004 as having been complied with. The initial order of 06-09-1994 mandated as under:-
"that the principle of reservation operates on the cadre strength; 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. Applying these principles, respondents Railway will work out the reliefs. We are issuing the direction, as the apex court thought that the judgments in force should be implemented. (interim order in CA 2017/78)."
The order dated 20-04-2004 mandated as under:-
"It is not disputed that the directions contained in the judgment has not been complied with, that the declarations that the principles of reservation operates on the cadre strength and that the 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 have become final. The direction to the respondents to work out the reliefs in individual case applying these principles and to issue orders within six months from the date of decision also have become final. Since these aspects are not in dispute between the parties the Railway administration will have to give effect to these directions at least now within a time frame to be fixed by the Tribunal."
(b) The respondents are under a legal obligation to satisfy the Tribunal that the aforesaid orders are in intent and spirit complied with. ) The orders to be complied with are deemed to be so modified as to be in conformity with the subsequent decision in the case of M. Nagaraj read with the provisions of Constitutional Amendment.
(d) Since there had been a communication dated 14-02-2001 by the Southern Railway for implementation of the order of the Tribunal, the same has to be duly followed. The said order reads as under:-
"3. The seniority list of SM/Gr. I as on 10-02-95 was last revised and a combined seniority list published vide this office letter dated 27-1-98 in which the seniority of staff promoted prior to 10-2-95 was not disturbed. In the light of the Supreme Court ruling in Ajit Singh-II case and direction of Hon'ble Kerala High Court in the above OP and also considering the Railway Board's letter dated 28-02-97 & 15-5-98 and Railway Board's letter No.E(NG)I-97/SM- 6/7 dated 8-8-2000, it has been decided that the seniority of general candidates vis-a-vis the reserved candidates (SC/ST) is to be revised based on the entry level seniority (appointment as ASM /SM /II in the case of Traffic Apprentices). While revising the seniority as above, the inter-se-seniority of the general candidates shall not be disturbed. Hence you may revise the seniority of staff in SM/Gr. I as on 10-2-1995 on the above basis and forward the same for publishing the combined seniority list. The details may be furnished in the enclosed proforma."
49. The above drill has to be followed in respect of all categories of personnel in whose case promotions were effected without considering the catch up rule for the limited period upto date of effect of the Constitutional Amendment bringing in the seniority aspect also as a part of reservation policy. Those who had already enjoyed the promotions (reserved candidates) need not be reverted in view of the protection granted to them by the Railway Board in one of their orders. However, those general candidates who are to be considered for promotion by invoking the catch up rule, should be so considered and their promotion could be effected by creating, for a limited period, requisite number of supernumerary posts. Their dates of further promotion should also be worked out by a simple formula of date of promotion of their respective juniors and their entitlement to the pay and allowance worked out. This would form the base for working out the pension and other terminal benefits as it is stated that most of the individuals have now retired. In respect of serving employees their pay would be fixed and they be paid the higher pay and allowances, while in respect of retired employee the benefit would be for the purpose of working out the extent of terminal benefits and the difference in the same should be paid to them. We do order so.
50. We are fully aware of the legal position that in a contempt jurisdiction, there is no question of modification of the orders passed and the same has to be strictly followed. See judgment in Special Deputy Collector vs N. Vasudeva Rao (2007) 14 SCC 165 at 168 wherein the Apex Court inter alia has held, "The court exercising contempt jurisdiction cannot take upon itself the power to decide the original proceedings in a manner not dealt with by the court passing the judgment or the order." At the same time provision does exist in Rule 24 of the CAT (Procedure) Rules, 1987 which read as under:-
"Order or direction in certain cases: The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect to its order or to prevent abuse of its process or to secure ends of justice."
51. It is appropriate to invoke the above provisions in the peculiar facts and circumstances of this case. Accordingly, the above said order is passed.
52. Let the drill be performed within a period of six months from the date of communication of this order.
53. Registry shall ensure that a copy of this order is forwarded to the General Manager, Southern Railway, Chennai who in turn shall forward the same to all the Divisional Railway Managers of the Southern Railway so that all those who are responsible for initiating proper action for implementation of the order are kept aware of this order so that within the time frame mentioned above the order of this Tribunal is complied with in spirit and intent.
54. The Contempt petitions are disposed of with liberty to the applicants to agitate if necessity arises later due to any deliberate disobedience of this order.
55. No costs.
Dated, the 30th September, 2011.
K NOORJEHAN Dr K.B.S.RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER trs