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[Cites 18, Cited by 0]

Madras High Court

Unknown vs The Central Administrative Tribunal

Author: D.Krishnakumar

Bench: D.Krishnakumar

                                             W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010

                          IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                      RESERVED ON:             21.07.2023

                                      DELIVERED ON:            30.08.2023

                                                 CORAM:

                              THE HON'BLE MR.JUSTICE D.KRISHNAKUMAR
                                                     and
                                  THE HON'BLE MR.JUSTICE P.B.BALAJI
                          W.P.Nos.14071 of 2010, 30466 of 2008 and 14072 of 2010

                     W.P.No.14071 of 2010
                     1. S.Kulandaivelu
                     2.V.Krishnaraj
                     3.R.Lalitha
                     4.S.Amalraj
                     5.R.Paranthakan
                     6.R.Shanmugam
                     7.M.Dawood Sheriff
                     8.K.Sivaraman
                     9.V.Hariharan
                     10.J.Philominraj
                     11.S.Arputhan
                     12.I.Mohamed Hilal
                     13.G.Vijayarangan
                     14.L.Joseph Jeyaraj
                     15.J.Mohan
                     16.C.Sundaramurthi
                     17.G.Ramdoss
                     18.L.George
                     19.M.Gunasekharan
                     20.N.A.Narayanan

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                                           W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010

                     21.R.Santhan Krishnan
                     22.S.Stanley Jeyakumar,
                     23.P.Selvaraj
                     24.K.Sivarajan
                     25.N.Asokan
                     26.M.Bruno
                     27.Vyasm in Rahasekharan
                     28.A.Francis Lourdunathan
                     29.Guer Singh
                     30. S.Manickam
                     31.P.T.Gopinath
                     32.S.Maragatharajan
                     33.M.A.Mohamed Noordheen
                     34.J.Sabhapathy Pillai
                     35.T.Jeyam
                     36.C.Charles Antonymuthu
                     37.K.Michaelraj
                     38.N.Jeyabalan
                     39.P.Singara Velu
                     40. T.R.Padmaraj
                     41. V.Srirangarajan
                     42. M.Govindarajan
                     43. S.Ramakrishnan
                     44. M.Jeevanandan
                     45. S.Sahayaraj
                     46.S.V.Rengarajan
                     47. A.Masilamani
                     48. V.Ganesh
                     49.R.Manoharan
                     50.A.Jayakumar
                     51.G.Murali
                     52.V.Ganesh
                     53.K.R.Soundara Rajan
                     54.N.Manimudi
                     55.S.Einstein Prabhakar Devanan
                     56.G.Muthusamy
                     57.K.Sridharan

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                                              W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010

                     58.A.Abdul Kalam
                     59.G.Anandan
                     60.S.Rajendran
                     61. M.Vasanthakumar
                     62.S.Thayumanavan
                     63.T.Robert Franklin
                     64.M.Gopal
                     65.M.Balamohan
                     66.S.Krishnamurthy
                     67.N.Mathivanna                                         ..Petitioners
                                                       Vs

                     1.The Central Administrative Tribunal,
                     Madras Bench, rep. By its Registrar,
                     High Court Campus, Chennai-600104.

                     2.Union of India
                     Rep. By the Secretary,
                     Ministry of Railways,
                     Rail Bhavan, New Delhi.

                     3.The General Manager,
                     Southern Railway,
                     Chennai.

                     4.The Chief Personnel Officer,
                     Southerin Railway,
                     Chennai.

                     5.The Divisional Railway Manager,
                     Trichy Division,
                     Southern Railway,
                     Trichy.




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                                             W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010



                     6.A. Manoharan
                     7.T.P.Ramani
                     8.T.Gunasekaran
                     9.B.Thangaraj                                          ..Respondents

                     W.P.No. 30466 of 2008
                     1.K.Rajagopalan
                     2.T.Tharian
                     3.M.Manzur Sheriff
                     4.K.S.Prabhu
                     5.K.Srinivasan
                     6.D.John Miller
                     7.V.Soundararajan
                     8.R.Ganesan
                     9.M.Baskaran
                     10.G.Sadhasivam
                     11.J.Rajasekar
                     12.P.M.Ravichandran
                     13.G.Thayumanavan
                     14.S.Selvanayagam
                     15.A.Thamilselvan
                     16.K.S.Suresh
                     17.R.Suresh
                     18. R.Gopalakrishnan
                     19.M.Sagayaraj
                     20.K.Vijayagopal                                       ..Petitioners

                                                      Vs

                     1.The Central Administrative Tribunal,
                     Madras Bench, rep. By its Registrar,
                     High Court Campus, Chennai-600104.




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                                              W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010



                     2.Union of India
                     Rep. By the Secretary,
                     Ministry of Railways,
                     Rail Bhavan, New Delhi.

                     3.The General Manager,
                     Southern Railway,
                     Chennai.

                     4.The Chief Personnel Officer,
                     Southerin Railway,
                     Chennai.

                     5.The Divisional Railway Manager,
                     Trichy Division,
                     Southern Railway,
                     Trichy.

                     6.A. Manoharan
                     7.T.P.Ramani
                     8.T.Gunasekaran
                     9.B.Thangaraj                                           ..Respondents

                     W.P.No.14072 of 2010

                     1.G.Gurusamy
                     2.S.Arivuduai Nambi
                     3.T.Sadasivam
                     4.T.S.Karthikeyan                                       .. Petitioners

                                                       Vs

                     1.The Central Administrative Tribunal,
                     Madras Bench, rep. By its Registrar,
                     High Court Campus, Chennai-600104.


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                                              W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010

                     2.Union of India
                     Rep. By the Secretary,
                     Ministry of Railways,
                     Rail Bhavan, New Delhi.

                     3.The General Manager,
                     Southern Railway,
                     Chennai.

                     4.The Chief Personnel Officer,
                     Southerin Railway,
                     Chennai.

                     5.The Divisional Railway Manager,
                     Trichy Division,
                     Southern Railway,
                     Trichy.

                     6.A. Manoharan
                     7.T.P.Ramani
                     8.T.Gunasekaran
                     9.B.Thangaraj                                           ..Respondents

                     Prayer in W.P.No. 14071 of 2010: Writ Petition is filed under
                     Article 226 of Constitution of India praying to issue a writ of
                     certiorari, calling for the records relating to order of the 1st
                     respondent dated 15.07.2008 in R.A.No. 18 of 2007 in O.A.No.
                     1131 of 2004 and quash the same and allow the O.A.No. 1131 of
                     2004.

                     Prayer in W.P.No. 30466 of 2008: Writ Petition is filed under
                     Article 226 of Constitution of India praying to issue a writ of
                     certiorari, calling for the records relating to order of the 1st
                     respondent dated 15.07.2008 in R.A.No. 22 of 2007 in O.A.No.
                     1130 of 2004 and quash the same and allow the O.A.No. 1130 of
                     2004.


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                                                    W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010




                     Prayer in W.P.No. 14072 of 2010: Writ Petition is filed under
                     Article 226 of Constitution of India praying to issue a writ of
                     certiorari, calling for the records relating to order of the 1st
                     respondent dated 10.01.2007 in O.A.No. 490 of 2005 and quash
                     the same and allow the O.A.No. 490 of 2005.


                                  For Petitioners   : Mr. S.S.Swaminathan
                                  (in all WPs)
                                  For Respondents : Mr.V.Radhakrishnan, Seniour Counsel
                                  (in all WPs)      For Mr.P.T.Ramkumar, Standing Counsel
                                                                           – R2 to R5
                                                    R1 – Tribunal
                                                    No Appearance – R6 to R9

                                                  COMMON ORDER


D.KRISHNAKUMAR, J.

Aggrieved by the order dated 15.07.2008 in R.A.No. 18 of 2007 in O.A.No. 1131 of 2004 and in R.A.No. 22 of 2007 in O.A.No. 1130 of 2004 passed by the Central Administrative Tribunal, Madras Bench, writ petitions in W.P.No. 14071 of 2010 and 30466 of 2008 have been filed.

2. Challenging the order passed by the 1st respondent/ Central Administrative Tribunal, Madras Bench, Chennai in O.A.No. 490 7 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 of 2005 dated 10.01.2007, the petitioners have filed a writ petition in W.P.No.14072 of 2010 to quash the same.

3 Common facts involved in all these three writ petitions:

3.1 The petitioners herein are working as Commercial Clerks in various cadres in Southern Railway. The petitioners herein along with other employees filed a batch of applications before the Central Administrative Tribunal, Chennai Bench seeking to revise the seniority list of Commercial Clerks in different grades in which the petitioners in W.P.Nos.14071, 14072 of 2004 and 30466 of 2008 are applicants in O.A.Nos. 1131, 1134 and 490 of 2004 respectively. The tribunal dismissed the application on grounds that candidates promoted in excess were not included and the seniority list had become final. The tribunal also mentioned the 85th Constitutional amendment, which grants constitutional seniority along with promotion for reserved category employees.

Challenging the said order of the tribunal, the applicants in O.A.No. 490 of 2004 has file a writ petition in W.P.No.14072 of 2010. 8 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 3.2 As against the order of the tribunal, the applicants in O.A.Nos. 1130 of 2004 and 1131 of 2004) have filed review petition in R.A. No 18 of 2007 and 22 of 2007 respectively. The said review application also dismissed by the tribunal by order dated 15.07.2008. Challenging the order, writ petitions in W.P.No. 14071 of 2010 and 30466 of 2008 have been filed.

4. The learned counsel for the petitioners submitted that the petitioners are commercial clerks working in five grades in Southern Railway. The recruitment and promotion in service under Railway Administration, 22.5% of the post are reserved for members of SC/ST candidates and the same is being implemented by a 40 point roster system.

5. The learned counsel for the petitioners has further submitted that the reserved category employees were given promotion in excess of the cadre strength applying reservation roster illegally on arising vacancies and also conceded seniority on such roster/excess promotions over the senior unreserved category 9 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 employees. According to the petitioners, the seniority list published by the respondent was against the prescribed limit of arising vacancies of cadre strength as held by the Hon'ble Supreme Court .

6. The learned counsel for the petitioners has further submitted that the petitioners who are in the category of commercial clerks and during upgradation on 01.01.1984 and 01.03.1993, no additional posts were created in the category of commercial clerks, therefore the decision of Hon'ble Supreme Court held in India Non SC/ST Employees' Association (Railway) Vs. V.K.Agarwal & others is squarely applies to the present case of the petitioners.

7. The learned counsel for the petitioners has further submitted that the decision of the Allahabad High Court in J.C.Malik Vs. Union of India was challenged before the Hon'ble Supreme Court in C.A.No. 2017 of 1978. The Hon'ble Supreme Court by an interim order dated 24.02.1984 in CMP.No. 26627 and by clarification order dated 24.09.1984 directed that “the 10 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 promotions, which may be made hereafter, will strictly in accordance with the judgment of the High Court and such promotions will be subject to the result of the appeal. If any promotions have been made after February 24,1984 otherwise than in accordance with the judgment of the High Court, such promotions shall be adjusted against future vacancies.” But, the Southern Railway administration did not implement the order by adjusting excess promotions and the seniority, but erroneously conceded in the promoted grades to those excess promotees. The excess promotions of SC/ST candidates shall have to be adjusted against subsequent vacancies of the SC/ST quota that may arise at any future time.

8. The learned counsel for the petitioners has further submitted that some of the employees have file application before the Hon'ble Administrative Tribunal, Ernakulam Bench. The tribunal by order dated 06.09.1994 held that the principle of reservation operates on cadre strength and the seniority viz-a-viz reserved and unreserved category of employees in the lower 11 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 category will be reflected in the promoted category also, notwithstanding the earlier promotions obtained on the basis of reservation. Challenging the same, the Southern Railways filed SLP.No. 10691 of 1995 before the Hon'ble Supreme Court and by order dated 30.08.1996 , the said SLP was disposed of by the Hon'ble Supreme Court holding that the matter is fully covered by the decision of the Supreme Court in R.K.Sabharwal 1995 (2) SCC 745 and Ajith Singh.

9. The learned counsel for the petitioners has further submitted that the petitioners herein also filed an application in O.A.No. 1131 of 2004 before the Central Administrative Tribunal, Chennai Bench for revising of seniority list of Commercial Clerks in different grades and for other reliefs. The Tribunal has directed the petitioners to implead the necessary affected person as respondents, accordingly the petitioners herein impleaded the respondents 5 to 8 in representative capacity. But the tribunal without considering the case of the petitioners in proper and prospective manner, dismissed the said application filed by the 12 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 petitioners holding that the applicants/petitioners failed to implead the candidates promoted in excess and the said seniority list was not objected by the applicants/petitioners and they have attained finality. The tribunal further held that in view of 85th Constitutional amendment, the reserved category employees get constitutional seniority along with promotion and so dismissed the Original Application by common order dated 10.07.2002.

10. Mr.V.Radhakrishnan, learned senior counsel appearing for the respondents 2 to 5 submitted that the contention of the learned counsel for the petitioners is not correct. The tribunal has rightly rejected the applications filed by the petitioners on the ground that they failed to implead necessary parties in the application, therefore on that ground, the entire original application filed by the petitioners lacks infirmity and the tribunal has rightly rejected the claim made by petitioners, therefore nothing warrants interference by this Court.

13 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010

11. Heard both sides and perused the materials available on record.

Order in W.P.No. 14072 of 2010 :

12. It is the specific contention of the petitioners that a large number of employees working in Trivandrum and Palakad Divisions filed an application in O.A.No. 552 of 1990 before the Administrative Tribunal, Ernakulam Bench and by order dated 06.09.1994 , the Tribunal, Ernakulam Bench held that the principles of reservation operates on cadre strength and the seniority vis-a-vis reserved and unreserved category of employees in the lower category will be reflected in the promoted category also, notwithstanding the earlier promotions obtained on the basis of reservation.

13. Challenging the appeal the respondent department filed SLP No. 10691 of 1995 before the Hon'ble Supreme Court. By order dated 30.08.1996 the said SLP was was disposed of holding 14 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 that the matter is fully covered by the decision of the Supreme Court in R.K.Sabharwal 1995 (2) SCC 745 and Ajith Singh I AIR 1996 SC 1189.

14. Admittedly, a perusal of records reveal that the petitioners herein challenged the seniority list published in the year 2002 without challenging the earlier seniority list published in the year 2001. With regard to the contention of the petitioners insofar as the applicability of the rule of reservation in cadre restructuring is concerned, the learned standing counsel for the respondent- department has brought to the notice of this Court the decision of the Full Bench of the Central Administrative Tribunal at Allahabad dated 10.08.2005 wherein it is held that “the upgradation of the cadre as a result of restructuring and adjustment of existing staff will not be termed as promotion attracting the principles of reservation in favour of Scheduled Caste/Scheduled Tribe.” Therefore, it is clear that in cases of creation of additional vacancies or posts consequent on restructuring, the rule of reservation is applicable. To substantiate the said argument, the learned standing 15 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 counsel has placed reliance of the decision of the Hon'ble Supreme Court in the case of Union of India Vs.Pushpah Rani and Others Civil Appeal Nos.6934 to 6946 of 2005, dated 29.07.2008, reported in (2008) 9 SCC 242, wherein the Hon'ble Supreme Court made observation with regard to applicability of reservation in upgrading and restructuring of posts. The relevant paragraph is extracted below;

59. An analysis of orders passed by the Tribunals and this Court shows that all cases except that of K. Manickaraj case [(1997) 4 SCC 342 : 1997 SCC (L&S) 949] involved upgradation of large number of posts which could be filled by placing the existing incumbents in the higher grade without subjecting them to the process of selection. Different Benches of the Tribunal referred to the policy decision taken by the Railway Board that reservation policy for Scheduled Castes and Scheduled Tribes is not applicable where cadre restructuring results in mass upgradation of posts and held that the administration was required to make appointment/placement against the upgraded posts without reserving posts for Scheduled Castes and Scheduled Tribes. This Court repeatedly emphasised that the restructuring exercise did not result in creation of new posts/additional posts which could be filled by promotion by following the 16 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 procedure of selection. Therefore, these decisions are of no help to the cause of the respondents. At the cost of repetition, we consider it necessary to emphasise that restructuring exercise envisaged in Letter dated 9-10-2003 resulted in creation of additional posts in most of the cadres covered by the policy and the Government had taken a conscious decision to fill up such posts by promotion from amongst eligible and suitable employees and the promotees were burdened with duties and responsibilities of greater importance. Therefore, the Tribunal and the High Court were not justified in treating it as a case of upgradation of posts simpliciter. Consequently, the decision of the Tribunal to quash Para 14 of Letter dated 9-10-2003 and direction given for making appointments dehors the policy of reservation are legally unsustainable.

15. It is also be noted that the seniority list published by the department in the year 2001, 2002 and 2004 were not objected by the petitioners by way of representation to the department, subsequently, the said seniority list has attained finality. Further, the petitioners did not implead all those promotees promoted to the higher grade, only few respondents were impleaded. The Hon'ble Supreme Court in various decision held that non-joinder of 17 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 necessary parties is fatal. It is useful to extract the relevant portions;

(i). In Public Service Commission v. Mamta Bisht reported in 2010 12 SCC 204 the Hon'ble Apex Court held as follows:

"9. In case Respondent 1 wanted her selection against the reserved category vacancy, the last selected candidate in that category was a necessary party and without impleading her, the writ petition could not have been entertained by the High Court in view of the law laid down by nearly a Constitution Bench of this Court in Udit Narain Singh Malpaharia v. Board of Revenue [AIR 1963 SC 786] , wherein the Court has explained the distinction between necessary party, proper party and pro forma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1, Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called “CPC”) provides that non-joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat [AIR 1965 SC 1153] ,Babubhai 18 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 Muljibhai Patel v. Nandlal Khodidas Barot [(1974) 2 SCC 706 :
(ii). Yet another decision in Vijay Kumar Kaul v. Union of India reported in 2012 7 SCC 610 , the Hon'ble Supreme Court held as follows:
"36. Another aspect needs to be highlighted. Neither before the Tribunal nor before the High Court, Parveen Kumar and others were arrayed as parties. There is no dispute over the factum that they are senior to the appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant.

16. This being the settled legal position, the non- impleadment of the promotees before the Tribunals in the Original Application and Revision Petition was fatal and no relief can be granted to the writ petitioners. Neither before the Tribunal nor before this High Court, necessary person were arrayed as parties in their representative capacity and no materials have been placed to substantiate that the petitioners have taken steps to impleade the private respondents in their representative capacity. There is no 19 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 dispute over the factum that the person who were promoted in the seniority list challenged by the petitioners are juniors and they have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant. Therefore we are of the considered view that the order of the tribunal is perfectly valid and does not require any interference by this Court.

17. Insofar as other contention of the writ petitioners to grant benefits citing the relief granted to some of the employees by the Central Administrative Tribunal, Ernakulam vide order dated 06.09.1994, the Hon'ble Supreme Court in the case of Om Parkash vs. Union of India (UOI) and Ors, reported in 2010(4) SCC 17, held that the persons who approached the Court of their own lapse cannot be granted benefit and the same would frustrate the very purpose and scope of the Act. The relevant portion of the judgment is extracted below' 20 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 “ 77. Obviously, the appellants cannot be rewarded on account of their own lapse as they should have been vigilant enough to get their matters also listed along with those in whose favour ultimately judgment was pronounced. Looking to the scheme of the Act, it is obvious that the appellants would certainly suffer the consequence of the interim order passed in some other matters preferred by other landowners challenging the notifications but finally benefit thereof cannot be accrued to the appellants as the same would obviously be confined to those petitioners only in whose favour orders were passed. “

18. In the case on hand, the similarly placed persons have approached the Tribunal, Ernakulam in the year 1990 and obtained favourable orders. Aggrieved by the said order, the Southern Railways filed SLP in the year 1995 (SLP.No. 10691 of 1995) and the order came to be passed in the year 1996. But the writ petitioner have filed Original Application in the year 2004 challenging the seniority list published and claiming seniority on par with the similarly placed persons after a lapse of eight years and thereafter filed Review Application. Since both are ended against them, they have approached this Court in the year 2010 as a fence sitters and the same is unsustainable in law in view of the law laid down by the Hon'ble Supreme Court cited supra. Order in W.P.Nos.14071 of 2010 and W.P.No. 30466 of 2008: 21

https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010

19. Although the facts and circumstances of the petitioners' cases in these writ petitions are identical, and they have been collectively affected by the tribunal's common order, it is important to note that the scope of examination by this Court is limited. The petitioners have specifically contested the orders rendered in the Review Applications, viz., R.A.No. 18 of 2007 and 22 of 2007, rather than challenging the original orders issued in O.A.Nos. 1131 & 1130 of 2004. Hence, we refrain from delving into the substantive aspects of the petitioners' cases in these writ petitions.

20. It is a settled law that when the original order is not challenged, order dismissing the review on merits is not maintainable. The learned senior counsel appearing for the respondents 1 to 5, in support of his contentions, has produced the judgment of the Hon'ble Supreme Court in the case of Bussa Overseas and Properties Private Ltd and another Vs. Union of India & another (Civil Appeal No. 2687 of 2006, dated 22.01.2016), reported in (2016) 4 SCC 696. The relevant paragraphs of the judgment are extracted below; 22 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010

15. In Shanker Motiram Nale [Shanker Motiram Nale v. Shiolalsing Gannusing Rajput, (1994) 2 SCC 753] , a two-Judge Bench has opined that an appeal against the order rejecting the application for review of a judgment and decree passed by the learned Single Judge is not appealable as appeal is not against the basic judgment. To arrive at the said conclusion, the Court has referred to Order 47 Rule 7 of the Code of Civil Procedure, 1908 that bars an appeal against the order of the Court rejecting the review.

16. In Suseel Finance & Leasing Co. [Suseel Finance & Leasing Co. v. M. Lata, (2004) 13 SCC 675] , while dealing with the special leave petition preferred against the rejection of review petition without assailing the main judgment, the Court referred to the decision in Shanker Motiram Nale [Shanker Motiram Nale v. Shiolalsing Gannusing Rajput, (1994) 2 SCC 753] and concurred with the said view. In that context, the two-Judge Bench referred to the decisions in Green View Tea & Industries v. Collector [Green View Tea & Industries v. Collector, (2004) 4 SCC 122] and K. Rajamouli v. A.V.K.N. Swamy [K. Rajamouli v. A.V.K.N. Swamy, (2001) 5 SCC 37] and opined that: (Suseel Finance & Leasing Co. case [Suseel Finance & Leasing Co. v. M. Lata, (2004) 13 SCC 675] , SCC p. 676, para 3) 23 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 “3. … We find that in these two cases the question whether a special leave petition was maintainable against an order rejecting a review petition, was not considered at all. In these cases, the question was whether special leave petition was barred by principles of res judicata. It was held that special leave petition was not barred by principles of res judicata. In neither of these cases has reference been made to the above mentioned judgment of this Court in Shanker Motiram Nale case [Shanker Motiram Nale v. Shiolalsing Gannusing Rajput, (1994) 2 SCC 753] . In both those cases it has been held that a special leave petition is maintainable only in the context of it not being barred on principles of res judicata. In both these cases the question whether a special leave petition is against an order disposing of a review petition was not considered at all. These cases therefore have no relevance at all.”

17. In M.N. Haider [M.N. Haider. Kendriya Vidyalaya Sangathan, (2004) 13 SCC 677] , relying on earlier decisions, it has been held that once the special leave petition is not maintainable no orders/judgments can be passed thereon except to dismiss the same.

18. In Shiv Charan Singh [Shiv Charan Singh v. State of Punjab, (2007) 15 SCC 370] , a two-Judge Bench was dealing with an appeal challenging an order of review. Relying on the decision in Shanker Motiram Nale [Shanker 24 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 Motiram Nale v. Shiolalsing Gannusing Rajput, (1994) 2 SCC 753] , this Court dismissed the appeal.

19. In Vinod Kapoor [Vinod Kapoor v. State of Goa, (2012) 12 SCC 378] , it has been held thus: (SCC pp. 382-83, paras 11-12) “11. Moreover, on the High Court rejecting the application for review of the appellant, the order rejecting the application for review is not appealable by virtue of the principle in Order 47 Rule 7 CPC. In Shanker Motiram Nale v. Shiolalsing Gannusing Rajput [Shanker Motiram Nale v. Shiolalsing Gannusing Rajput, (1994) 2 SCC 753] , Suseel Finance & Leasing Co. v. M. Lata [Suseel Finance & Leasing Co. v. M. Lata, (2004) 13 SCC 675] and M.N. Haider v. Kendriya Vidyalaya Sangathan [M.N. Haider v. Kendriya Vidyalaya Sangathan, (2004) 13 SCC 677] cited by the learned counsel for Respondent 8, this Court has consistently held that an appeal by way of special leave petition under Article 136 of the Constitution is not maintainable against the order rejecting an application for review in view of the provisions of Order 47 Rule 7 CPC.

12. There is nothing in the decisions cited by the appellant to show that this Court has taken a view different from the view taken in 25 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 Abhishek Malviya v. Welfare Commr. [Abhishek Malviya v. Welfare Commr., (2008) 3 SCC 108] with regard to maintainability of an appeal by way of special leave under Article 136 of the Constitution against an order of the High Court after an earlier special leave petition against the same order had been withdrawn without any liberty to file a fresh special leave petition. Similarly, there is nothing in the decisions cited by the appellant to show that this Court has taken a view that against the order of the High Court rejecting an application for review, an appeal by way of special leave under Article 136 of the Constitution is maintainable.”

28. The aforequoted passage in Mahendra Saree Emporium (2) case [Mahendra Saree Emporium (2) v. G.V. Srinivasa Murthy, (2005) 1 SCC 481] has to be appositely understood. The three-Judge Bench has held that any legislation subordinate to the Constitution cannot whittle down or take away the jurisdiction and powers conferred on the constitutional courts of the country. The decisions which we have referred to earlier deal about the maintainability of the challenge to the order of review when the main order is not assailed. The real test is that even if the order passed in review is set aside, the order that is not challenged cannot be set aside. The decision in Eastern Coalfields Ltd. [Eastern Coalfields Ltd. v. Dugal Kumar, (2008) 14 SCC 295] as has 26 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 been rightly opined in Ripa Sarma case [State of Assam v. Ripa Sarma, (2013) 3 SCC 63 : (2013) 2 SCC (Civ) 13 : (2013) 2 SCC (Cri) 44 : (2013) 1 SCC (L&S) 474] , has been rendered in ignorance of the earlier judgments of co-equal strength. That apart, we are inclined to agree with the view in Ripa Sarma [State of Assam v. Ripa Sarma, (2013) 3 SCC 63 : (2013) 2 SCC (Civ) 13 : (2013) 2 SCC (Cri) 44 : (2013) 1 SCC (L&S) 474] wherein it has been observed that the submission with regard to the merger of the main order with the order in review has been merely noticed in Eastern Coalfields Ltd. [Eastern Coalfields Ltd. v. Dugal Kumar, (2008) 14 SCC 295] and not accepted.

29. Needless to state that when the prayer for review is dismissed, there can be no merger. If the order passed in review recalls the main order and a different order is passed, definitely the main order does not exist. In that event, there is no need to challenge the main order, for it is the order in review that affects the aggrieved party. “

21. In view of the elaborate decision of the Hon'ble Supreme Court cited supra, we safely conclude that the writ petitions in W.P.Nos. 14071 of 2010 and 30466 of 2008 filed by the petitioners challenging the dismissal order passed by the tribunal in Review Applications 18 of 2007 and 22 of 2007, dated 15.07.2008 cannot 27 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 be entertained and the same is unsustainable in law. Accordingly, the writ petitions in W.P.Nos. 14071 of 2010 and 30466 of 2008 are dismissed as not maintainable.

22. Further, in view of detailed discussion in paragraph nos. 12 to 18, We are of the view that the order of the order passed by the Central Administrative Tribunal, Madurai Bench in O.A.No. 490 of 2005 is perfectly valid and does not require any interference by this Court. Accordingly, the writ petition in W.P.No. 14072 of 2010 is liable to be dismissed.

23. In fine, the writ petitions in W.P.Nos. 14071 of 2010 and 30466 of 2008 are dismissed as not maintainable and the writ petition in W.P. No. 14072 of 2010 is dismissed. No costs.

                                                                   [D.K.K., J.,]        [P.B.B., J.]

                                                                             30 .08.2023

                     Index:yes/no
                     Internet:yes
                     Speaking order
                     ak




                                                              28
https://www.mhc.tn.gov.in/judis

W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 To

1. The Registrar, Central Administrative Tribunal, Madras Bench, High Court Campus, Chennai-600104.

2. The Secretary, Ministry of Railways, Rail Bhavan, New Delhi.

3.The General Manager, Southern Railway, Chennai.

4.The Chief Personnel Officer, Southern Railway, Chennai.

5.The Divisional Railway Manager, Trichy Division, Southern Railway,Trichy.

29 https://www.mhc.tn.gov.in/judis W.A.No.14071 of 2010, 30466 of 2008 and 14072 of 2010 D.KRISHNAKUMAR, J., & P.B.BALAJI, J.

ak Pre-Delivery Order in W.P.Nos.14071 of 2010, 30466 of 2008 and 14072 of 2010 30.08.2023 30 https://www.mhc.tn.gov.in/judis