Union Of India vs G.Somanathan Nair on 22 September, 2009

[Cites 17, Cited by 0]

Kerala High Court

Union Of India vs G.Somanathan Nair on 22 September, 2009

Common order dated 29.03.2011 passed by the Tribunal in O.A. Nos. 794/2007, 795/2007, 38/2008, 51/2008, 125/2008 and 2008/2008 is under challenge in six Original Petitions [O.P. (CAT) Nos. 3096, 3797, 3097, 3205 of 2011, 214 of 2012 and 3192 of 2011 respectively] preferred by the applicants in the O.As, whereby the O.A.s came to be dismissed, following the course pursued by the Madras Bench of the Tribunal and accepting the version of the High Level Committee appointed by the Tribunal that there was no excess reservation prior to 10.02.1995, to have refixed the seniority in terms of the verdict passed by the Constitution Bench of the Apex Court in Ajit Singh Vs. State of Punjab [AIR 1999 SC 347 = (1999) 7 SCC 209 (hereinafter referred to as Ajit Singh -II case)].

2. It is contended that the Tribunal, however ignored the decision rendered by a Co-ordinate Bench of the Tribunal on W.P.(C) No. 24069 of 2010 and connected cases : 2 : 01.05.2007 in O.A. Nos. 289 of 2000 and connected cases. The verdict passed by the Tribunal in O.A. No. 751/2006 dated 22.09.2009 is under challenge at the instance of both, the applicants and the respondent/Railways. The challenge raised by the Railways is projected in W.P.(C) No. 24069 of 2010, whereas the grievance of the applicants, to the extent they are aggrieved, is raised in O.P. (CAT) No. 190 of 2011. Since common issues are involved, all these cases are dealt with together and heard accordingly.

3. Mr. Govinda Swami and Mr. Hariraj addressed the Court on behalf of the petitioners/applicants in the concerned cases; whereas the version of Railways was put forth by Sri. S. Radhakrishnan, Sri. Tojan J. Vathikulam and Smt. Sumathi Dandapani.

4. The sum and substance of the case projected by the applicants is that, by virtue of the 'vacancy based roster' followed by the Railways, there was accelerated promotion in the case of SC/ST, resulting in excess reservation, despite the law declared to have 'post based roster' as per the verdict passed by a Division Bench of the Allahabad High Court in J.C. Malik and Others Vs. Union of India and Others [1978 (1) SLR 845] and the subsequent categoric declaration made by the Apex Court in R.K. Sabharwal & Others W.P.(C) No. 24069 of 2010 and connected cases : 3 : Vs. State of Punjab & Ors. [AIR 1995 SC 1371 = (1995) 2 SCC 745]; Ajit Singh Januja & Ors. Vs. State of Punjab and Ors. [AIR 1996 SC 448 = (1995) 6 SCC 684 (herein after referred to as Ajit Singh - I case)]; Ajit Singh Vs. State of Punjab [AIR 1999 SC 347 = (1999) 7 SCC 715 (herein after referred to as Ajit Singh II- case)] and M. Nagaraj & Ors. Vs. Union of India [AIR 2007 SC 71 = (2006) 8 SCC 212]. According to the applicants, the position had to be reworked in tune with the specific direction given by the Constitution Bench of the Apex Court and the promotions effected upto 10.02.1995 [date of the judgment in Sabharwal's case] had to be re-worked and the beneficiaries of the excess reservation [though were not to be reverted] had to be fixed at appropriate level, protecting the seniority of the general candidates in the lower category.

5. As pointed out already, these O.As. were filed [O.A. No. 794 of 2007 and connected cases] projecting a common grievance before the Tribunal, which came to be dismissed as per Ext. P1 order dated 29.03.2011. O.P. [CAT] No. 3096 of 2011 and connected cases [6 in number] have been preferred by the applicants, being aggrieved of the interference declined by the Tribunal, whereby the W.P.(C) No. 24069 of 2010 and connected cases : 4 : stand of the Railways that there was no excess reservation beyond the quota provided for SC/ST as found out by the High Level Committee appointed by the Tribunal, vide Ext. P9 [Annexure R4] came to be accepted. The aforesaid verdict was followed by the Tribunal in the subsequent batch of Original Applications filed by the claimants seeking for similar relief [O.A. Nos. 793 of 2007, 36, 39, 43 and 130 of 2008]; but they came to be dismissed as per order dated 06.01.2014, which is under challenge at the instance of the applicants in O.A. No. 793 of 2007 and O.A. 43 of 2008 by way of O.P. [CAT] No. 122 of 2014 and O.P.[CAT] No. 121 of 2014. [The common verdict in other connected cases - O.A. Nos. 36, 39 and 130 of 2008 is not seen subjected to challenge].

6. Somewhat similar issue with reference to the legal position [claiming some other benefits based on the said finding on fact] is seen projected by the petitioners in O.P (CAT) No.190 of 2011 and W.P.(C) No. 24069 of 2010. In both the cases, the challenge is against the order dated 22.09.2009 in O.A. No. 751 of 2006. The former case is filed at the instance of the applicant before the Tribunal, to the extent the entire claim/relief sought for has not been granted by the Tribunal, whereas the challenge in the other case filed W.P.(C) No. 24069 of 2010 and connected cases : 5 : at the instance of the Railways is against the extent of relief granted by the Tribunal. For convenience of consideration, these two cases [W.P.(C) Nos. 24069 of 2010 and O.P. (CAT) No. 190 of 2011] are grouped together and dealt with separately, whereas the other cases [8 cases - O.P. (CAT) Nos. 3096, 3097, 3192, 3205, 3797 of 2011, 214 of 2012 and 121 and 122 of 2014] could be clubbed together as the issue in consideration is quite common and the grounds raised are similar.

7. O.P. (CAT) No. 3097 of 2011 is taken as the lead case and reference is made to the parties and proceedings as given therein, except where it is mentioned separately with reference to the context.

8. The basic point to be considered is whether the principle of reservation based on the 'post based roster' as evolved by the Apex Court has undergone any change with reference to the accelerated promotion given by the Railways to the SC/ST candidates, by virtue of the 77th amendment of the Constitution, whereby the reservation was made possible to promotions as well. The 81st amendment of the Constitution made the reservation in promotion possible even beyond 50%, if it was in respect of backlog vacancies and the 85th amendment of the Constitution, made it clear that, even 'seniority' could be W.P.(C) No. 24069 of 2010 and connected cases : 6 : protected in the matter of accelerated promotion to the SC/ST. The point mooted by the applicants is that, even after the aforesaid amendment, the position remains to be that, such course is possible only in respect of accelerated promotions given to SC/ST within their quota and never beyond. In other words, it cannot have any application when accelerated promotion is given in excess of the quota available to SC/ST, where the seniority has to be refixed in respect of such promotions given prior to 10.02.1995 and that no reservation is possible in respect of accelerated promotions given after 10.02.1995. The matter has to be reworked, giving placement to seniors, with reference to the position in the lower cadre. The principle of 'catch up rule' declared in Sabharwal's case [cited supra] is also sought to be relied on.

9. Grievance has got a long history. The applicants had approached the Tribunal by filing different O.A.s including O.A. No. 289 of 2000, projecting the above grievance, raising various grounds. According to them, their seniority position had to be reworked over the S.C/S.T. candidates, who got accelerated promotions beyond their quota, based on the law declared by the Apex Court. During the pendency of the above O.A.s, the Tribunal found that complex W.P.(C) No. 24069 of 2010 and connected cases : 7 : question of facts were involved, which task was not possible to be undertaken by the Tribunal and it was accordingly, that a High Level Committee was directed to be constituted by the General Manager of the Southern Railways [in respect of Thiruvananthapuram and Palakkad Divisions] to have the factual position worked out. The Tribunal disposed of the O.A.s as per the common verdict dated 01.05.2007, whereby the Railways were directed to consider the matter, in the light of the legal position declared therein, ascertaining whether there was any excess promotion in the SC/ST category and to have it dealt with and remedied accordingly.

10. Pursuant to the above direction, the High Level Committee [constituted by the General Manager in terms of the interim order passed by the Tribunal] considered the matter in detail and as per Ext.P9 minutes of the meeting held on 02.07.2009, it was held that there was no accelerated promotion in excess of the quota earmarked for SC/ST; that the disputed slots were filled up by SC/ST candidates based on their 'merit' without availing the benefit for reservation and not as part of excess/accelerated promotion; adding further that the applicants had not established any specific instance to the contrary, to have rendered a finding in their favour. It was accordingly, that W.P.(C) No. 24069 of 2010 and connected cases : 8 : Ext.P4 [Annexure A9] was passed which made the applicants to feel aggrieved, who approached the Tribunal by filing O.A. Nos. 794 of 2007 and connected cases [six numbers].

11. The stand of the Railways was sought to be substantiated by filing detailed pleadings and producing copies of the relevant documents. After evaluation of the facts and circumstances, the Tribunal held that the applicants had failed to prove the factual position as to the alleged excess reservation and it was accordingly, that interference was declined and the O.A.s were dismissed as per Ext. P1 order dated 29.03.2011; which in turn is under challenge in this Original Petition. As mentioned already, the above verdict was followed by the Tribunal in the subsequent verdict dated 06.01.2014 [passed in a batch of five O.A.s.] and the said common order in 'two O.A.s' are under challenge in O.P. (CAT) Nos. 121 and 122 of 2014.

12. Chronology of events and the legal position with reference to the amendment of the Constitution of India governing the field of reservation was discussed by the Tribunal in an earlier round of litigation, leading to Ext. P2 common verdict dated 01.05.2007 in O.A. No. 289 of 2000 and connected cases. Since there cannot be any dispute with regard to the legal provisions and the law laid down by W.P.(C) No. 24069 of 2010 and connected cases : 9 : the Apex Court, it will be worthwhile to examine the same in brief, for ascertaining whether it has been correctly applied by the Tribunal while passing Ext. P1 common verdict dated 29.03.2011 [which is under challenge] to the given set of facts and circumstances.

13. As admitted by both the sides, 'vacancy based roster' was being followed by the Railways, providing reservation to the permissible extent at the appropriate slots [15% to SC and 7.5% to ST]. Appointment given to persons belonging to the reserved community, in excess of the quota, was firstly intercepted by High Court of Allahabad in J.C. Malik's case [cited supra] holding that the course followed by the Railways, applying the ratio with reference to the vacancies and not the posts, was not correct or sustainable. The challenge raised by the Railways against the said verdict before the Apex Court was repelled, as per the decision dated 26.07.1995 in Union of India and Others Vs. M/s J.C. Malik and others [SLJ 1996 (1) 114]

14. During the pendency of the above case [J.C. Mallik' case], the larger Bench/Constitution Bench [9 Judges] of the Apex Court had occasion to consider the question of reservation in Indra Sawhney Vs. Union of India [(1992) 3 SCC Supp. 217], whereby it was held W.P.(C) No. 24069 of 2010 and connected cases : 10 : that reservation in appointment or post under Article 16 (4) of the Constitution of India would stand confined to initial appointment and that the benefit of reservation could not be extended to promotions. It was also made clear that such reservation had to be restricted to 50% under all heads taken together. It was later in Sabharwal's case [cited supra], that the Apex Court made it clear that the reservation was to be applied on 'post based roster' and never to be on vacancy based roster. Once the above principle was applied and roster points were filled on arising any vacancy in the particular post, candidates belonging to such category standing next in the queue could be chosen for filling up the vacancies due to retirement etc. and that the balance between the reserved category and general category should be maintained.

15. In order to get over the situation resulted pursuant to Indra Sawhney's case [cited supra], the Parliament brought about the 77th amendment to the Constitution, introducing Clause 4A to Article 16 w.e.f. 17.06.1995, to the effect that reservation was possible in the case of promotion as well, if in the opinion of the State, there was no adequate representation to the said category. It was thereafter, that decision was rendered by the Apex Court in Union of W.P.(C) No. 24069 of 2010 and connected cases : 11 : India and Others Vs. Virpal Singh Chauhan and Others [(1995) 6 SCC 684], following the principle laid down in Sabharwal's case [cited supra] and holding that, if the quota belonging to any reserved community has been satisfied, further appointment of persons belonging to that category shall only be as a general candidate and not as a reserved candidate and further that the roster point promotee getting the benefit of accelerated promotion would not get the consequential seniority. The said view was concurred with, by the subsequent Bench in Ajit Singh - I case [cited supra], making it clear that seniority between the reserved candidates and the general candidates in the promotion category shall continue to be governed by the panel position i.e. with reference to their inter se seniority in the lower cadre and further that the Rule of Promotion, though given by way of accelerated promotion, will not give rise to any accelerated consequential seniority. In Ajit Sing - II case - [cited supra] judgment dated 16.09.1999, it was held that the roster point promotees [reserved category] cannot count their seniority in the promoted category from the date of their continuous officiating in promoted posts, over the general candidates who were seniors to them in the lower category and who were later promoted, in turn W.P.(C) No. 24069 of 2010 and connected cases : 12 : applying the "catch up rule". The Apex Court, with reference to the date of judgment in Sabharwal's case [cited supra] - i.e. 10.02.1995, made it clear that while promotions in excess of the quota effected before 10.02.1995 were to be protected by avoiding reversion, such promotees could not claim seniority over the seniors in the lower category, who came to be promoted later and further that, in spite of the promotions made after 10.02.1995, it has to be reviewed and will count only from the date on which the reservation candidate would have actually got normal promotion in any future vacancies in the post; thus applying the rule laid down by the Apex Court in Sabharwal's case [cited supra] prospectively.

16. The Apex Court as per the judgment in M.G. Badapanavar and another Vs. State of Karnataka and others [(2001) 2 SCC 666] held that the persons belonging to reserved category promoted before 10.02.1995, not in excess of the quota, need not be reverted, however reiterating the 'catch up rule'. This made the Parliament to have Article 16 (4A) of the Constitution amended further as per the 85th amendment retrospectively w.e.f. 16.07.1995, whereby the benefit of consequential seniority was also ordered to be given to the reserved category, pursuant to the accelerated promotion against the W.P.(C) No. 24069 of 2010 and connected cases : 13 : roster point. But it is to be noted that, the said benefit pursuant to the 85th amendment of the Constitution, also giving seniority to the persons belonging to the reserved category, has to be effected only in so far as the accelerated promotion is given within the quota available to such reserved category and it was never to extend the benefit to anybody appointed in excess of the quota. It was after referring to the cumulative effect of the relevant provisions of law, the amendments made and the law declared by Apex Court as per the above judgments, that the Tribunal proceeded further and gave appropriate directions to the Railways, as contained in paragraph 22 of Ext. P2/P3 common verdict passed on 01.05.20017 in O.A. 289 of 2000 and connected cases, which is reproduced below for convenience of reference :

"22. Hence the respondent Railways,

(i) shall identify the various cadres (both feeder and promotional) and then clearly determine their strength as on 10.02.1995.

(ii) shall determine the excess promotions, if any, made ie, the promotions in excess of the 15% and 7= % quota prescribed for Scheduled Castes and Scheduled Tribes made in each such cadre before 10.02.1995.

(iii) shall not revert any such excess promotees who got W.P.(C) No. 24069 of 2010 and connected cases : 14 : promotions upto 10.2.1995 but their names shall not be included in the seniority list of the promotional cadre till such time they got normal promotion against any future vacancy left behind by the Scheduled castes or Schedules Tribe employees, as the case may be.

(iv) shall restore the seniority of the general category of employees in these places occupied by the excess SC/ST promotees and they shall be promoted notionally without any arrears of pay and allowance on the promotional posts.

(v) shall revert those excess promotees who have been promoted to the higher grade even after 10.2.1995 and their names also shall be removed from the seniority list till they are promoted in their normal turn.

(v) shall grant retiral benefits to the general category employees who have already retired computing their retiral benefits as if they were promoted to the post and drawn the salary and emoluments of those posts from the notional dates."

Based on the declaration and the direction as above, the merit in each individual O.A. was also considered, giving appropriate finding in this regard, as discernible from the subsequent paragraphs of Ext. P2/P3. Admittedly, no challenge was raised against Ext. P2/P3 common judgment from any corner and same has become final. It was W.P.(C) No. 24069 of 2010 and connected cases : 15 : pursuant to the above verdict that the matter was considered by the Railways, especially by the High Level Committee constituted as per the interim order dated 26.02.2009 [Ext. P8] passed by the Tribunal, leading to Ext. P9 order dated 02.07.2009 holding that there was no excess reservation, in turn turning down the claim mooted by the applicants. This made the applicants to challenge the same by filing different O.A.s, ultimately leading to Ext. P1 common verdict dated 29.03.2011, which is under challenge.

17. As mentioned already, since there was no challenge against the common verdict in O.A. No. 289 of 2000 and connected cases [Ext. P2/P3], the only point to be considered is, whether matter was considered by the Railways in conformity with the directions given by the Tribunal as per Ext. P2/P3.

18. After taking note of the factual particulars in the different O.As, the Tribunal observed that the applicants had not impleaded the persons over whom they were claiming seniority, though a newspaper notification was made in the year 2008 without mentioning the names of the SC/ST employees whose seniority may be affected. It was hence observed that the allegations as well as reliefs sought were not specific, clear or unambiguous. Promotions were given to the SC/ST W.P.(C) No. 24069 of 2010 and connected cases : 16 : employees on the basis of the rules of reservation and that the Rule was never under challenge. The fact finding exercise pursued by the High Level Committee was also adverted to, wherein a short fall in SC/ST in the initial 2 or 3 grades was specifically highlighted; though percentage of SC/ST officials occupying the highest two grades was found above the permitted extent of 22.5%. The circumstances leading to the said position were also referred to and the remedial measures were also pointed out. As observed by the Tribunal in paragraph 33 of Ext. P1, the report of the High Level Committee produced in O .A. No. 795 of 2007 [lead case] was gone into in detail and the arguments of both the sides were heard extensively. The relevant data with regard to the reservation extended in promotion, in different grades, as dealt with by the High Level Committee were extracted in paragraph 33. The Tribunal held that there were elaborate pleadings, both oral and written by both the parties and it was after adverting to all the above facts and figures, that a finding was rendered that the alleged excess reservation was not established to call for interference at the hands of the Tribunal. It was further observed that, unless the applicants were able to pin point the employees who got promotion in excess of 22.5% fixed for W.P.(C) No. 24069 of 2010 and connected cases : 17 : reservation at the material point of time, it was not possible to give a specific direction to the respondent Railways, since the respondent Railways had demonstrated that the excess percentage of SC/ST in higher posts was only by virtue of their seniority consequent to accelerated promotion. The verdict passed by the Full Bench of the Tribunal [Principal Bench] in O.A. No. 2211 of 2008 dated 02.12.2010 filed by the All India Equality Forum, New Delhi and two others explaining the evolution of law and the position settled as per various judgments from Indra Sawhney's case [cited supra] to Pushparani's case [(2008) 9 SCC 242 (Union of India Vs. Pushpa Rani and Ors.)] were adverted to in this regard. The Tribunal further referred to the verdict passed by the Ernakulam Bench of the Tribunal considering the identical issue in O.A. No. 574 of 2007 [K. Kunjiraman Nambiar & Ors. Vs. Union of India and Ors] as well. It was also observed that interference declined in O.A. No. 574 of 2007 was placing reliance on the verdict passed by the Madras Bench of the Tribunal dated 10.01.2017 in O.A. Nos. 1130 and 1131 of 2004. So as to meet the situation in an effective manner, appropriate directions were given by way of 'future guidance' as contained in paragraph 43 of Ext. P1. A clear finding has been W.P.(C) No. 24069 of 2010 and connected cases : 18 : rendered in paragraph 44 that due to various constraints and reasons, the applicants have not been able to substantiate their contentions by producing cogent materials that the promotions to reserved category were made in excess of the prescribed quota and, if so, how many posts were available in 'general category' in each grade, which came to be grabbed by the reserved category [SC/ST]. It was also observed that there had ample opportunity to challenge such promotions then and there, when the seniority list was published from time to time and having not chosen to do so, the Tribunal was unable to accept the contention that the promotions were effected in excess of the quota. It was accordingly, that interference was declined and the O.A.s. were dismissed.

19. From the above discussions, it is very clear that there cannot be any further challenge with regard to the correct position of law to be applied. When the applicants asserted that there was excess reservation beyond the quota, it was very much obligatory for them to have had it established by raising specific pleadings and producing relevant materials, which obviously has not been done to the requisite extent. It has also to be borne in mind that the grievance is with regard to the position which was prevailing prior to W.P.(C) No. 24069 of 2010 and connected cases : 19 : 10.02.1995 [the date on which the judgment was passed in Sabharwal's case]. The fact finding exercise in the said circumstances was a huge task, which was assigned with the High Level committee, as per Ext. P8 interim order dated 26.02.2009 passed by the Tribunal in O.A. 38 of 2008. While deprecating the earlier course and proceedings, as to the manner in which the factual position was considered by the Railways, it was found necessary to have it reconsidered by the High Level Committee for the total satisfaction of the employees concerned. It was accordingly, that Ext. P8 order was passed as mentioned above, the operative portion of which reads as follows :

"Under these circumstances, we are of the view that higher level committee has to be set up to look into the matter for the total satisfaction of the employees concerned. As the employees have filed these OAs are mainly from the two Divisions viz. Palghat and Trivandrum Divisions, it would be appropriate than an authority higher than the Divisional Level should monitor these issues. We therefore, direct that the General Manager, Southern Railway should constitute a high level committee to look into this matter and implement the order of the Tribunal dated 01.05.2007 in the manner in which it has been W.P.(C) No. 24069 of 2010 and connected cases : 20 : ordered therein. After detailed study has been conducted in this matter, each of the individual O.A.s shall be examined and separate affidavit shall be filed, as to how, the order of this Tribunal has been implemented in those cases. The above exercise shall be completed within a period of four months from the date of receipt of this order. A copy of this order be made available to the counsel for the parties. The Registry should sent a copy to the General Manager, Southern Railway by 'speed post'.

The details of the Committee constituted shall be intimated to this Tribunal by the General Manager within a period of one month from the date of receipt of a copy of this order."

20. The proceedings of the High Level Committee held on 02.07.2009 have been produced as Ext. P9. We have gone through the same as well. The factual data collected after perusing the relevant records have been given in a tabulated form in respect of various categories. The operative portion of the finding of the Committee is extracted below, for convenience of reference:

"The 40 Point Roster was in operation prior to 10.02.1995 according to which reservation to SC/ST was provided to vacancies. Only from 10.02.1995, the Post W.P.(C) No. 24069 of 2010 and connected cases : 21 : Based Roster was brought into operation wherein Reservation to SC/ST was provided according to posts and not to vacancies. The two different mechanisms followed prior to 10.02.1995 and after 10.02.1995 are based on Railway Boards direction including the direction to follow the percentage/roster system in Railways Boards letter No. 89-E(SCT)1/49/5 (pt) dated 16.06.1992. Further, in respect of seniority of such of those SC/ST employees promoted on their merit and on normal seniority, they will carry with the seniority in view of Railway Board's letter No. 95/E(SCT)1/49/5(1) dated 21.08.1997. The applicants who have filed the OAs, challenging the Reservation Policy are of the view that more number of SCs/STs were given promotion, in excess of the prescribed quota, conveniently forgotten the law laid down by the Hon'ble Supreme Court in Indrasawany and R.K. Shabarwal's case, wherein the Apex Court have held that SC/STs appointed on their own merit should be excluded before computing the percentage of reservation meant for SC/STs in respect of promotion.

In terms of Railway Board letter dated 21.08.1997, each category/grade is a separate cadre and in each category, reservation shall be provided. Accordingly, SC/ST employees who are promoted earlier will rank senior to those who are promoted later. In this context, W.P.(C) No. 24069 of 2010 and connected cases : 22 : a reserved employee promoted earlier will get further promotion against next higher grade vacancy on his own seniority and such employees will be charged against UR Roster Points. Such of those SC/STs charged against UT points cannot be treated as an excess, as alleged by the applicant in the OA.

From the above, it is clear that the Division has correctly followed the rules and regulations issued from time to time in connection with the Reservation for Scs/STs. However, the disposal of the representations of the applicants did not cover the above aspects. It would be appropriate to communicate to the employees of the details of the exercise done while sending the reply."

The Tribunal expressed satisfaction over the factual analysis made by the High Level Committee, especially when nothing contrary was specifically pleaded or proved by the applicants, in turn leading to Ext.P1 order declining interference in the O.As.

21. Coming to the jurisdiction of this Court, there cannot be any dispute that the scrutiny to be done by this Court over Ext. P1 order passed by the Tribunal is by way of 'supervisory jurisdiction' provided under Article 227 of the Constitution of India. There is nothing to hold that the exercise done by the Tribunal is contrary to the relevant W.P.(C) No. 24069 of 2010 and connected cases : 23 : provisions of law, the binding judicial precedents, or even against the facts and figures to be contended as arbitrary or perverse in any manner. This is not a Court of Appeal, against Ext. P1 verdict passed by the Tribunal. The dispute is more with regard to the finding on facts. When the applicants contend that there is excess reservation even beyond quota, the specific pleadings and materials to substantiate the same in this regard are conspicuously absent, having not produced from their side. In view of the complexity of the issue involved, the Tribunal as per Ext. P8 interim order dated 26.02.2009, held that such finding had to be done by a High Level Committee and it was accordingly, that a Committee was constituted. The Committee had called for the records and verified the position collecting the relevant materials and giving them in a tabulated form to have effective adjudication, as borne by Ext. P9. Since such a fact finding exercise was done by the High Level Committee and since verification as to the acceptability of the said version was done by the Tribunal, no further 'fact finding exercise' is to be done at the hands of this Court, which even otherwise is not legally permissible under Article 227 of the Constitution of India.

22. With regard to the scope of Article 227 of the Constitution W.P.(C) No. 24069 of 2010 and connected cases : 24 : of India, it was made clear by the Apex Court in Nibaran Chandra Bag Vs. Mahendra Nath Ghughu [AIR 1963 SC 1895] that, by no means it is appellate in nature, for correcting errors in the decision of the Subordinate Courts or Tribunal, but is merely a power of superintendence to be used to keep them within the bounds of their authority. Subsequently, in Mani Nariman Daruwala Vs. Phiroz N. Bhatena [AIR 1991 SC 1494], the Apex Court held that exercise of the jurisdiction of this Court under Article 227 of the Constitution shall not extend to the cases, except where the finding on fact of an inferior Court or Tribunal was without any intent to justify the said conclusion and if no reasonable person could possibly come to such conclusion or in other words, if it were a finding which was perverse in law. Further, in Savita Chemicals (P) Ltd. Vs. Dyes & Chemicals Workers' Union [(1999) 2 SCC 143], the Apex Court observed that, under Article 227 of the Constitution of India, the High Court could not have set aside any finding reached by the lower authorities where two views were possible and unless those findings were found to be patently bad and suffering from clear errors of law. The legal position was reiterated by the Apex Court in Essen Deinki Vs. Rajiv Kumar [(2002) 8 SCC 400], holding that, jurisdiction under Article W.P.(C) No. 24069 of 2010 and connected cases : 25 : 227 is limited and restrictive in nature. The observation in paragraph 2 is reproduced below :

"2. Generally speaking, exercise of jurisdiction under Article 227 of the Constitution is limited and restrictive in nature. It is so exercises in the normal circumstances for want of jurisdiction, errors of law, perverse finding and gross violation of natural justice, to name a few. It is merely a revisional jurisdiction and does not confer an unlimited authority or prerogative to correct all orders or even wrong decisions made within the limits of the jurisdiction of the courts below. The finding of fact being within the domain of the inferior tribunal, except where it is a perverse recording thereof or not based on any material whatsoever resulting in manifest injustice, interference under the article is not called for."

The Apex Court pointed out that, it was needless to record that there was total unanimity of the judicial precedents on the score that error must be that of law and patently on record committed by the inferior Tribunal so as to warrant intervention. It ought not to act as a Court of Appeal and that there is no dissent or even a 'contra-note' sounded at any point of time till date. Since the position continues as above, we do not find it necessary to refer to any subsequent ruling in this W.P.(C) No. 24069 of 2010 and connected cases : 26 : regard.

23. Yet another important aspect to be noted is that, the 5th respondent was impleaded in the O.A. in a 'representative capacity' of the SC/ST officials, in favour of whom excess reservation was stated as made. It is also pointed out that a news paper advertisement was effected in the year 2008. The said respondent was originally included in the party array of the present Original Petition showing him as the 5th respondent. Service of notice to the said respondent was not completed by the petitioners. Later, in O.P. No. 3097 of 2011, I.A. No. 394 of 2016 was filed to cause the name of the 5th respondent to be deleted from the party array. In paragraph 2 of O.P.(CAT) Nos. 3096 of 2011, it stands conceded by the petitioners, that the 5th respondent was arrayed in a 'representative capacity' representing all grades of Station Masters, while it has been conceded in paragraph 2 of O.P.(CAT) No. 3097 of 2011 that the 5th respondent was arrayed in a 'representative capacity' representing all grades of Commercial Clerks. It is also conceded that notice was published in 'The New India Express' daily as per the order of the Tribunal for paper publication, in respect of those who were likely to be affected in the event the Tribunal allowed the O.A.s. Since the O.A.s have been W.P.(C) No. 24069 of 2010 and connected cases : 27 : dismissed by the Tribunal as per Ext. P1, such persons who are the beneficiaries and whose cause was sought to be represented through the 5th respondent, have already obtained a verdict in their favour. If at all any intervention is to be made with the said order, it can be done only after completion of service of notice to such persons, atleast in the representative capacity.

24. As mentioned above, service of notice to the 5th respondent, impleaded in representative capacity, was not complete and in the said circumstances, I.A No. 394 of 2016 [in O.P.(CAT) No.3097 of 2011], I.A. No. 179 of 2016 [in O.P. (CAT) No. 3096 of 2011] and I.A. No. 180 of 2016 [in O.P. (CAT) No. 3192 of 2011], with supporting affidavit were filed to delete the name of the 5th respondent. Paragraphs 2 to 4 of the affidavit dated 15.03.2016 in I.A. No. 394 of 2016 are relevant which are reproduced below :

"2. In the above petition, service of notice to the 5th respondent K.G. Sukumaran is not complete. At any case, the said respondent did not enter appearance before the Hon'ble CAT also.

3. Incidentally, it is also to be submitted that the said respondent has retired long since and at any case the said respondent would not be affected as at present W.P.(C) No. 24069 of 2010 and connected cases : 28 : in the nature of the reliefs prayed for.

4. In the circumstances, it is humbly submitted that the said respondent would no longer be a necessary party and therefore, it is humbly submitted that the said respondent may be deleted from the array of respondents. A separate I.A. praying for the above relief is being filed along with this affidavit."

Similar is the stand taken in the other affidavits as well. It was accordingly, that the above I.A.s came to be allowed on different dates, making it clear that it will be at the risk of the petitioners. Since 5th respondent and the persons who are supposed to represent the said respondents in the O.A. have already obtained the verdict in their favour, vide Ext. P1, any challenge against the said order could have been validly raised only after completing the service of notice to the said respondents, atleast in a representative capacity. Since such persons sought to be impleaded in the party array in the 'representative capacity' have subsequently been removed from the party array [pointing out that he had already retired from service and therefore he will not be affected now on granting the relief sought for and hence not a necessary party], this Court is not in a position to grant any relief to the petitioners, even if it is sustainable on merit W.P.(C) No. 24069 of 2010 and connected cases : 29 : [which is not established in the instant cases]. In the above circumstances, we find that no interference is called for with regard to Ext. P1 common order dated 29.03.2011 and the Original Petitions preferred therefrom [6 in number] stand dismissed.

25. O.P. (CAT) Nos. 121 and 122 of 2014 have been preferred by the applicants in O.A. No. 43 of 2008 and O.A. No. 797 of 2007 respectively, which came to be dismissed as per a common order dated 06.01.2014. As a matter fact, the said common order was also in relation to three other cases as well [O.A. Nos.36, 39, 130 of 2008]. The said common order was passed following the common order dated 29.03.2011 passed in O.A. Nos. 794/2007, 795/2007, 38/2008, 51/2008, 125/2008 and 2008/2008, which were under challenge in O.P. (CAT) Nos. 3096, 3797, 3097, 3205 of 2011, 214 of 2012 and 3192 of 2011 respectively. Since we have found that there is no merit to call interference in the aforesaid O.Ps., no relief can be extended to the petitioners in these cases as well; more so, when pendency of O.P. (CAT) No. 3097 of 2011 and connected cases is specifically taken note of in paragraph 5 of Ext. P1 common order dated 06.01.2014 passed in the said O.As. That apart, since only two Original Petitions have been preferred [i.e. against the verdict in O.A W.P.(C) No. 24069 of 2010 and connected cases : 30 : Nos. 793 of 2007 and 41 of 2008], the common verdict passed by the Tribunal stands in tact in the remaining case [i.e. O.A. Nos. 36, 39, 130 of 2008] and hence interference is not possible in respect of the said standing verdict. As such, the above Original Petitions also stand dismissed in terms of the discussions made herein before.

26. In the case of the applicants in O.A. No. 751 of 2006 [which forms the subject matter of challenge in W.P.(C) No. 24069 of 2010 preferred by the Railways and O.P (CAT) No. 190 of 2011 filed by the applicants, to the extent they are aggrieved of the order passed by the Tribunal], reference to some factual points may be necessary. The basic challenge mooted in the earlier round of litigation, at different points of time, by applicants was with reference to the accelerated promotions given to juniors belonging to the reserved category and as to the eligibility of the applicants to get seniority restored, pursuant to the verdict passed by the Apex Court and also with reference to the scope of the Constitutional amendment as mentioned already.

27. The applicants 1 and 2 entered service as Assistant Station Masters on 17.12.1962, while the third petitioner joined service in the said category on 13.03.1968. The first and second applicants were W.P.(C) No. 24069 of 2010 and connected cases : 31 : promoted to the post of Senior Assistant Station Master in the year 1979; whereas such promotion was given to the 3rd applicant in the year 1980. The first applicant was promoted to the cadre of Station Master Grade II on 01.01.1983 [which was subsequently revised to be effective from 18.09.1980] as per Annexure A13, but omitted to be noted correctly by the Tribunal while passing the final order in the O.A. whereas the second and third applicants were given such promotion in the year 1983 and 1984 respectively. The first and second applicants were promoted to the cadre of Station Master Grade II in 1987, which was given to the 3rd applicant in the year 1989. The first applicant was promoted further to the cadre of Station Master Gr. I in 1991, whereas it was given to the second and third applicants in 1999. The first applicant was promoted further to the post of Station Master on 07.11.1999 and he retired from service on attaining the age of superannuation on 28.02.2001. The second applicant retired from service on attaining superannuation age on 28.02.2003; whereas the 3rd applicant voluntarily retired from service on 26.03.2002.

28. As mentioned already, there were several litigations before the Tribunal, before this Court and also before the Apex Court, with W.P.(C) No. 24069 of 2010 and connected cases : 32 : regard to the basic issue as to the claim for seniority with reference to accelerated promotion given to the junior persons belonging to reserved category. Based on the materials produced and orders passed in the earlier round of litigation, the applicants were given revised dates of promotion to higher grade as per Annexures A13 and A14, which however was not to the requisite extent and hence challenged in the O.A. The grievance projected was that, the said orders only compared the seniors with the same junior in every cadre. According to the applicants, they must be compared with the junior in each grade on the revised date of appointment to the cadre and it was accordingly, that the names of juniors by name Meghanathan and T. Narayanan and V. Rajan were mentioned. Though Ext. P3 M.A. was filed to serve interrogatories to the respondent, Ext.P4 reply was sent stating that the information sought for was not retained at their hands. It was in the said circumstances, that a list of individuals in the said categories who were given promotions [along with the dates of promotion] was obtained under the Right To Information Act and was produced as Ext. P5. The Tribunal accepted that the date of promotion given to Mr. Rajan was to be extended in the case of the applicant as well, but did not pursue W.P.(C) No. 24069 of 2010 and connected cases : 33 : any further step to compare the position with reference to other juniors as well, while passing Ext. P5 order, which is now under challenge.

29. The claim was resisted by the Railways by filing reply statement referring to various grounds. One of the contentions raised by the Railways was that the claim now raised in the O.A. was not raised in the previous O.A. and hence the applicants were estopped from filing fresh O.A with additional grounds. Another ground was that the provision regarding stepping up on par with the juniors could not be extended to instances where seniority was claimed on the basis of accelerated promotion. A further ground was raised in view of the 85th amendment of the Constitution and the verdict passed by the Apex Court in Nagaraja's case [cited supra] upholding the validity of the said amendment. It was accordingly contended that the accelerated promotions to SC/ST with consequential seniority was given legal validity w.e.f. 17.06.1995 by virtue of which, relief claimed in the O.A. was not sustainable. Reliance was also sought to be placed on the verdict passed by the Madras Bench of the CAT, rejecting similar claim and so also on the verdict passed by the CAT, Ernakulam in O.A. No. 927 of 2004 as well.

W.P.(C) No. 24069 of 2010 and connected cases : 34 :

30. The case projected by the applicants is that, though the Tribunal has upheld the right of the applicants to have promotions with reference to the date of promotion given to the junior by name Rajan i.e. w.e.f. 01.10.1979, the observations made with reference to the junior by name Meghanathan in the still higher grades are not correct. The claim put forth was that, when the date of promotion of the applicants to the Grade of Station Master Gr.II was revised, based on the date of promotion given to junior by name Rajan, their date of entry in the post of Station Master Gr.II would become 01.08.1982. Once this is accepted, as on 01.08.1982, the applicants and the junior Meghanathan were occupying the same level i.e. Station Master Gr. II and as it stands so, seniority of the applicants over Meghanathan was liable to be restored by applying the 'catch up rule'. Since Meghanathan was promoted from the post of Station Master Gr.II, to Station Master Gr.I on 15.10.1982, the applicants were also stated as entitled to have the post of Station Master Gr. I from 15.10.1982, by virtue of the same rule. Since the impugned order has given only lesser benefit, it is under challenge.

31. The learned counsel for the applicants points out that the factual position as to the date of promotion of the first applicant as W.P.(C) No. 24069 of 2010 and connected cases : 35 : Station Master Gr. III, showing it as '01.01.1983' in the opening paragraph/table given in the order under challenge is not correct. The said date was corrected by the Department of Railways itself as '18.09.1980', as per Annexure A13 order. This factual mistake has adversely affected the fate of the case, according to the applicants. Going by the contents of the orders issued by the Railways, the Tribunal has noted that the actual date of promotion of the junior by name V. Rajan in the grade of Assistant Station Master Grade III, was on '01.10.1979' as discernible from Annexure 18 seniority list at serial No. 60, which fact stands confirmed from Annexure A21 information procured by the applicants under the RTI Act. Similarly, the persons by name Meghanathan who entered service on 18.08.1968 was admittedly junior to the applicants, despite which he came to be promoted on 01.08.1992, on which date the applicants who were admittedly seniors to Meghanathan, were occupying lower level posts. It was in the said circumstances, that Annexure A13 and A14 were put to challenge praying for the following reliefs :

"i. To quash Annexure A13 and A14 to the extend it refuses applicants revision in dates of promotion to the dates given to their juniors in each grade and its consequential benefits.

W.P.(C) No. 24069 of 2010 and connected cases : 36 : ii. Direct the respondents to revise the date of promotion of applicants to each grade to the dates of promotion of their juniors available in that grades on the date on which applicants are deemed to enter such grade and give them all consequential benefits including refixation of pay pension and other monetary benefits with interest @ 18% per annum.

iii. Grant such other reliefs as may be prayed for and the court may deem fit to grant."

The following two points were raised for consideration of the Tribunal as given in paragraph 4:

"(a) Whether Annexure A13 and A14 should be revised taking into account the date of promotion of the Junior Shri V, Rajan as 01.10.1979 in the grade 455-700

(b) Whether the pay in the next higher grade should be at par with another junior Meghanathan"

32. Based on the materials produced, particularly Annexure A21, the Tribunal found that the promotion of junior by name V. Rajan as Station Master Gr.III, was on 01.10.1979 and that the applicants, being seniors, were eligible to be promoted to that grade, from that date. It was ordered accordingly, with consequential benefits, to the extent as specifically mentioned therein. But coming to the further W.P.(C) No. 24069 of 2010 and connected cases : 37 : claim with reference to Meghanathan, it was summarily rejected as per the observations in paragraphs 5 and 6, which are reproduced below :

"5. The claim of the applicants for stepping up of pay at par with Meghanathan has to be summarily rejected for the following reason. Their claim is that since he was an inductee in the Railways in 1968, he is admittedly junior and since he was placed in the pay scale of 700 - 900 in 1982, the pay of the applicants should also be fixed at that level. This claim of the applicants is based on the catch up rule. For the catch up rule, the general candidate would have the seniority over his junior restored in the promotional post only when at the time of promotion of the general candidate the reserved candidate was not further promoted. If the reserved candidate stood promoted to the second higher post by the time the general candidate got his promotion to the first higher post, catch up rule has no application. This aspect is very much clear from the decision of the Constitution Bench of the Apex Court in the case of Ajit Singh II V. State of Punjab [(1999) 7 SCC 209], wherein the Apex Court has held as under :-

"81. As accepted in Virpal and Ajit Singh we hold W.P.(C) No. 24069 of 2010 and connected cases : 38 : that in case any senior general candidate at Level 2 (Assistant) reaches Level 3 (Superintendent Grade II) before the reserved candidate (roster-point promotee) at Level 3 goes further up to Level 4 in that case the seniority Level 3 has to be modified by placing such a general candidate above the roster promotee, reflecting their inter se seniority at Level 2. Further promotion to Level 4 must be on the basis of such a modified seniority at Level 3, namely, that the senior general candidate of Level 2 will remain senior also at Level 3 to the reserved candidate, even if the latter had reached Level 3 to the reserved candidate, even if the latter had reached level 3 earlier and remained there when the senior general candidate reached that Level 3."

6. In the instant case, from Annexure A21 produced by the applicants, it is evident that Shri Meghanathan stood promoted to the post of SM II on 20.03.1977 and SM I on 15.10.1982. From the tabulation vide para 1 above, as on 15-10-1982, the applicants were only in the grade of 425 - 640 (Sr. ASM) which is certainly three steps below SM I. Even if the promotion of the applicants get advanced at part with the date of promotion of their junior V. Rajan, they were no where near Meganathan at the time of his promotion as SM II in 1977 since their appointment as SM III itself was only from 01.10.1979. As such the claim for parity with Meganathan has no merit."

W.P.(C) No. 24069 of 2010 and connected cases : 39 : On going through the materials on record, this Court finds it difficult to accept the finding of the Tribunal, as the reliance sought to be placed on paragraph 81 of the verdict passed by the Apex Court in Ajit Sing

-II case [cited supra] (the relevant portion of which was extracted) prima facie does not take us to such conclusion. But there is a case for the respondent Railways that the applicants did not have any such case, as now mooted before the Tribunal, in the earlier rounds of litigation and further that the claim mooted by the applicants joining hands with the 3rd applicant [who was no where in the scene] ought not have been allowed by the Tribunal to the extent as now ordered.

33. After hearing both the sides, this Court finds that the verdict passed by the Tribunal has been challenged by both the sides to the extent they are aggrieved by raising different grounds/contentions. We find some factual mistakes in noting the relevant dates of promotion by the Tribunal, as given in the opening paragraph of the order under challenge, in the case of the first applicant and doubt correctness in the reliance sought to be placed on Ajit Singh - II case [cited supra] to repel the contention of the applicants [as to the claim with reference to Meghanathan's case as dealt with in paragraphs 5 and 6 of Ext. P5/P6 verdict passed by the W.P.(C) No. 24069 of 2010 and connected cases : 40 : Tribunal]. In the said circumstances, we find it appropriate to cause the matter to be reconsidered with reference to the actual facts and figures, the relevant provisions of law and the binding precedents.

34. Accordingly, Ext. P5 order challenged in W.P.(C) No. 24069 of 2010 and Ext. P6 order challenged in O.P.(CAT) No. 190 of 2011 stand set aside and the above cases are remanded for fresh consideration. All the contentions are left open. Since the matter is quite old one, we express the hope that it would be finalized, as expeditiously as possible. All other cases [O.P.(CAT) Nos. 3096, 3097, 3192, 3205 & 3797 of 2011, 214 of 2012, 121 and 122 of 2014] stand dismissed.

sd/-

P. R. RAMACHANDRA MENON, JUDGE sd/-

                                        SHIRCY V.,
                                           JUDGE
kmd               /True copy/



                                     P.A. to Judge

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