Kerala High Court
Union Of India vs C.Devadhasan on 19 June, 1996
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 21ST DAY OF DECEMBER 2016/30TH AGRAHAYANA, 1938
WP(C).No. 23757 of 2010 (S)
----------------------------
OA.NO. 37/2009 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
-----------------
PETITIONER(S):
-------------------------
1. UNION OF INDIA,
REPRESENTED BY THE GENERAL MANGAER,
SOUTHERN RAILWAY, HEADQUARTERS OFFICE,
PARK TOWN P.O., CHENNAI-3.
2. DIVISIONAL RAILWAY MANAGER,
SOUTHERN RAILWAY, TRIVANDRUM DIVISION,
TRIVANDRUM-14.
3. SENIOR DIVISIONAL PERSONNEL OFFICER,
SOUTHERN RAILWAY, TRIVANDRUM DIVISION,
TRIVANDRUM-14.
BY ADV. SRI.JAMES KURIAN, SC, RAILWAYS
RESPONDENT(S):
----------------------------
1. C.DEVADHASAN,
S/O.CHELLAIYA NADAR, TRACKMAN,
OFFICE OF THE SE/PW/SR/ALLP,
PERMANENT ADDRESS: NANKACHIVILAI,
THIRUVIOTHAMCODE P.O., KANYAKUMARI DISTRICT,
TAMILNADU-629 174.
2. I.SUBRAMONIAN, S/O.IYYAKKAN NADAR,
TRACKMAN, OFFICE OF THE SE/PW/SR/MVLK,
PERMANENT ADDRESS: PATTANVILAI, KATTIMANCODE,
KANYAKUMARI DISTRICT, TAMILNADU-629 702.
3. C.JUSTUS, S/O.CHARLES, TRACKMAN,
OFFICE OF THE SE/PW/SR/KTYM,
PERMANENT ADDRESS:NELLIYOTHIKONAM,
MELPALAI, KANYAKUMARI DISTRICT,
TAMILNADU-629 702.
2/-
-2-
WP(C).NO.23757/2010
4. C.LUKOSE, S/O.CHELLAPPA, TRACKMAN,
OFFICE OF THE SE/PW/SR/KTYM,
PERMANENT ADDRESS:KIZHAKKUTHOOTAM VEEDU,
KANYAKUMARI DISTRICT, TAMILNADU-629 702.
5. S.MUTHUSWAMY, S/O.SUBBIYAN, TRACKMAN,
OFFICE OF THE SE/PW/SR/ALLP,
PERMANENT ADDRESS:NEAR AMALA CONVENT,
THUCKALAY P.O., KANYAKUMARI DISTRICT,
TAMILNADU-629 175.
6. C.IMAS, S/O.PALAYAN, TRACKMAN,
OFFICE OF THE SE/PW/SR/ALLP,
PERMANENT ADDRESS:KALVATTAMKUZHIVILAI,
MARTHOORKURICHI P.O.,KANYAKUMARI DISTRICT,
TAMILNADU-629 702.
7. S.CHELLATHURAI, S/O.SUYANBULINGAM NADAR,
TRACKMAN, OFFICE OF THE SE/PW/SR/MVLK,
PERMANENT ADDRESS:CHERRUPPANCODE,
KARANCODE P.O.,KANYAKUMARI DISTRICT,
TAMILNADU-629 809.
R1 TO R7 BY ADVS. SRI.T.C.GOVINDA SWAMY
SRIT.R.MOHANAKUMAR
SRI.G.SHYAM RAJ
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 14-12-2016 , ALONG WITH OP(CAT).NO. 138/2014 AND CONNECTED
CASES, THE COURT ON 21-12-2016 DELIVERED THE FOLLOWING:
sts
WP(C).NO.23757/2010
APPENDIX
PETITIONER'S EXHIBITS:
P1 COPY OF THE ORDER DATED 19TH JUNE 1996 OF THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA.NO.1706/1994.
P2 COPY OF THE OA.NO.37/2009 FILED BEFORE THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM BENCH
P3 COPY OF THE REPLY STATEMENT IN OA.NO.37/2009 FILED BEFORE THE
CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
P4 COPY OF THE REJOINDER IN OA.NO.37/2009 FILED BEFORE THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
P5 COPY OF THE ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM, BENCH IN OA.NO.37/2009
P6 COPY OF THE ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH IN OA.NO.615/2004
P7 COPY OF THE JUDGMENT IN WPC.NO.10066/2006.
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.S.TO JUDGE
sts
(CASE REPORTABLE)
P.R. RAMACHANDRA MENON
&
P. SOMARAJAN, JJ.
..............................................................................
W.P(C) No.23757 OF 2010 &
O.P(CAT)Nos.138, 170, 185 &
186 OF 2014, 39, 94 & 110 OF
2015 AND 30 & 45 OF 2016
.........................................................................
Dated this the 21st December, 2016
J U D G M E N T
P.R. Ramachandra Menon, J.
A common issue is involved in all these writ petitions/Original Petitions filed by the Railways who were the respondents in the O.As preferred by the applicants. The challenge is against the verdict passed by the Tribunal, whereby the date of absorption of the applicants in regular service has been ordered to be reckoned, with reference to that of their junior, by name K. Viswanathan, who was having only lesser number of days of work to his credit, for having regularised in W.P(C) No.23757 OF 2010 & and connected cases 2 accordance with the Scheme prepared by the Government [pursuant to the verdict passed by the Apex Court in Inderpal Yadav and others vs. Union of India (1985 SCC (L&S) 526) and Dakshin Railway Employees Union, Trivandrum Division vs. General Manager, Southern Railway and others ([(1987)1 SCC 677 = AIR 1987 SC 1153)]. The benefit given to Viswanathan, according to the petitioners/Railways, was only by way of a mistake, which could not have been perpetuated by virtue of settled position of law and hence the challenge.
2. The issue with regard to the claim for retrospective regularisation was sought to be opposed on merits as well as on the ground of delay, which will be discussed in the due course. It appears that the grievance was sought to be pursued by the applicants more in view of subsequent changes because of the amendment of the CCS (Pension) Rules w.e.f. 01.01.2004, W.P(C) No.23757 OF 2010 & and connected cases 3 whereby the persons who came to be inducted into regular service after the said date, were taken outside the purview of the CCS (Pension) Rules, 1972. The contention of the applicants was that they were having 'continuing cause of action' and that regularisation was being delayed due to some or other lame excuse, without any statutory backing and that, had they been regularised on time, at least with effect from the date of granting benefit to their junior by name Viswanathan, they also would have been eligible to get the benefit of pension, subject to satisfaction of the requirement under the CCS (Pension) Rules, 1972. The sequence of events has to be analysed in the above background. W.P.(C)23757 of 2010 is taken as the lead case and the parties and proceedings are referred to as mentioned therein, except where it is separately dealt with.
3. Heard Shri James Kurian, learned Standing Counsel for the petitioner/Railways and Mr.T.C. Govindaswamy, the learned W.P(C) No.23757 OF 2010 & and connected cases 4 counsel who appeared on behalf of the respondents/applicants in all the cases except O.P(CAT) 45 of 2016-where the respondent, despite completion of service of notice, has not chosen to enter appearance.
4. The Railways have been engaging workers on casual basis and they were retrenched after sufficiently long spells of engagement in the 1980's. An issue had come up for consideration before the Apex Court in Inderpal Yadav and others vs. Union of India (1985 SCC (L&S) 526) and as such other connected cases, where retrenchment of casual labourers was the subject matter of consideration. The Apex Court disposed of the said cases, moulding the relief, also directing to prepare a Divisional list of all 'project casual labourers' in each Division of the Railways, who had been retrenched after the cut off date mentioned and consider them for future engagement, pursuant to which separate lists were prepared by the Trivandrum and W.P(C) No.23757 OF 2010 & and connected cases 5 Palakkad Divisions (as concerned in these cases). The said list was finalised after calling for objections and making necessary corrections. While so, the casual employees who were retrenched prior to 1981 and where having more/equal or similar service had approached the Apex Court claiming similar rights and their grievance was also redressed by the Apex Court as per the decision reported in [(1987)1 SCC 677] (cited supra) ordering to include their names as well in the list to be prepared.
5. Pursuant to the above directions, the Railways prepared a 'Supplementary list' in respect of persons who were engaged and retrenched prior to 01.01.1981 and the same was sought to be operated after exhausting the 'Main list' in respect of the persons who were retrenched after 01.01.1981. This led to further litigations by way of O.A. 1706 of 1994 before the CAT, Ernakulam, which was disposed of as per Ext.P1 order dated 19.06.1996; whereby the Department of Railways was directed W.P(C) No.23757 OF 2010 & and connected cases 6 to prepare a merged list by arranging 'pre-1981' and 'post-1981' casual labourers in the order of number of days worked by them and make all future appointments w.e.f. 01.07.1996 from the said list. It was also made clear that the appointments already made upto 01.07.1996 need not be disturbed. It was accordingly, that a merged seniority list was prepared and finalised in 1997.
6. It is stated by the petitioners/Railways that they had been engaging persons only from the merged seniority list, strictly based on seniority. In the course of further proceedings, the Railways issued a notification dated 24.03.2003 instructing the retrenched casual labourers in the merged seniority list from Sl.No.1878 to 2190 to report on 09.04.2003 to 11.04.2003 with all documents for being considered for appointment as Trackman (Gangman); simultaneously publishing the list of retrenched casual labourers from Sl.No.1878 to 2190. It is also stated that, W.P(C) No.23757 OF 2010 & and connected cases 7 earlier, retrenched casual labourers in the merged seniority list upto Sl.No.1971 belonging to 'SC' community and upto Sl.No.1877 belonging to 'other communities' alone were screened and appointed. It is also stated that, pursuant to the above notification, the retrenched casual labourers including the applicants appeared and furnished documents, but they were found as beyond the prescribed age limit and hence they were not considered for regularisation. This made the aggrieved persons to approach the Tribunal by filing O.A. 633 of 2003 for absorbing them into regular service and for such other reliefs.
7. The prayer in O.A. 633 of 2003 was resisted by the Department, mainly contending that the maximum age for appointment stipulated under the relevant rules was over. It was '40' years in the case of General categories, '43' in the case of OBC and '45' in the case of SC/ST. According to the applicants, they had already been called for regularisation in September W.P(C) No.23757 OF 2010 & and connected cases 8 1998-2000 against the vacancies existed during that period and had produced all the relevant certificates expecting orders of absorption. There was no restriction with regard to age limit at that point of time and several persons were absorbed without any such age limit. They were waiting to be absorbed and hence were under the bonafide belief that they will be absorbed in the due course in respect of the vacancies for the years 1998, 1999 and 2000. It was also pointed out that the said applicants were given the seniority position from/between "1922 and 1995", who hence ought to have been regularised much ago .
8. According to the respondents, it was stated in the reply statement that the seniority of the applicants was not overlooked and that they had no case that the persons who were juniors to them in the list had been absorbed by the Railways. It was also pointed out that, non absorption of the applicants was only because of the fact that they had crossed the maximum age W.P(C) No.23757 OF 2010 & and connected cases 9 stipulated by the Railway Board as per the letter dated '20.09.2001' and that the actual age had to be verified as on 01.01.2003. It was further pointed out that there was no direction by the Supreme Court in the decisions (cited supra) that persons in the seniority list were to be considered for re- engagement without any age restriction. After hearing both the sides, the Tribunal held as per Annexure A1 verdict dated 30.07.2004, that the Scheme was framed pursuant to the specific direction issued by the Supreme Court, taking note of the factual scenario when the labourers were let uncared by the Railways. The submission made from the part of the applicants that no such age limit was prescribed in the verdict rendered by the Supreme Court (in the decisions cited supra); nor in terms of paragraph 171 of (xiii)(c) of the Railways Establishment Manual and further that the Railway Board letter dated 20.09.2001 was not in existence when the applicants were called for consideration W.P(C) No.23757 OF 2010 & and connected cases 10 during the year 1998, 1999 and 2000 was recorded. It was further observed (paragraph 8) that, admittedly, the absorption was to the vacancies which arose in the years 1998, 1999 and 2000 and the process of selection was started in the year 1998, which was completed on 24.03.2000. Observing that the process of regularisation having started much prior to issuance of the Railway Board letter dated 20.09.2001, the Tribunal was of the considered view, that the said letter of the Railway Board could have only 'prospective effect' and never any retrospective effect. It was accordingly, that the age barrier was interdicted and the O.A. was disposed of, directing the respondents to review the matter in the light of the observations and to pass appropriate orders granting benefit to the applicants, if they were otherwise eligible . Admittedly, the said verdict has become final, as it was never challenged by the Railways. As such, the denial of chance to get absorbed in the exercise in 2003, with reference to the W.P(C) No.23757 OF 2010 & and connected cases 11 'age bar', was only due to a misconception of the legal position on the side of the Railways; which has been correctly intercepted by the Tribunal. It was pursuant to the aforesaid verdict, that the service of the applicants came to be regularised on different dates , as per separate orders passed in this regard.
9. While so, a person by name 'K. Viswanathan' belonging to Trivandrum division approached the CAT by filing O.A. 615 of 2014, pointing out that he was a retrenched casual labourer, having nearly 700 days of casual service and was placed at Sl.No.2134 in the list/register maintained by the Division. According to him, several juniors were absorbed in the year 1999. As a matter of fact, he had approached the Tribunal earlier by filing O.A. 519 of 1999. Based on the submission of the respondents /Railways that he was placed only at the Seniority level of 2641, the said O.A. came to be dismissed. This was challenged by him by filing O.P.36331 of 2000 before this W.P(C) No.23757 OF 2010 & and connected cases 12 Court; which was disposed of as per judgment dated 29.03.2001, directing to have the matter re-considered, treating his rank as '2134'. It was accordingly, that Mr. Viswanathan was placed at Sl.No.2134 based on the finding rendered by this Court . But his claim was overlooked and in December, 2003, persons having lower seniority (even upto Sl.No.2550) were re- engaged, which made him to approach the Tribunal by filing O.A.No.615 of 2004 as aforesaid.
10. The claim was resisted by the Department stating that the O.A. was belated . The merit was also sought to be disputed, however, conceding that, by virtue of the verdict passed by this Court in O.P.36331 of 2000, Viswanathan's seniority position was reckoned as 2134. At the same time, it was pointed out that he had already crossed the maximum age in terms of the Railway Board's Order/letter dated 20.09.2001 and hence could not be regularised.
W.P(C) No.23757 OF 2010 & and connected cases 13
11. After hearing both the sides and considering the materials on record, the Tribunal held that the respondents/Railways had re-engaged persons upto Sl.No.2550 in the Live Register, overlooking the applicants' preferential right, giving absorption to persons having lesser number of days of service. Accordingly, the O.A. was allowed, declaring that Mr. Viswanathan was entitled to be considered for re- engagement/absorption, fixing him at Sl.No.2134 and in turn, directing the respondents/Department to re-engage him forthwith or in the next available vacancy in the Trivandrum division without disturbing the seniority of those who have already been engaged by that time and to grant the benefits to the applicant notionally. Though the said verdict (Ext.P6) was sought to be challenged by the Railways by filing W.P.(C) 10066 of 2006, it did not turn to be fruitful and the writ petition was dismissed as per Ext.P7 judgment dated 27.06.2006, with W.P(C) No.23757 OF 2010 & and connected cases 14 liberty to the Railways to urge the 'legal contentions' in appropriate cases. The fact remains that, though the direction given by the Tribunal was only to re-engage Mr. Viswanthan forthwith or in the next available vacancy in Trivandrum without disturbing the seniority of those who were already engaged by that time and to grant the benefits only notionally, the Department, for their own reasons, went steps ahead and regularised him in service from the year 1996 and the consequential benefits were also disbursed. It was at this point of time, that the injustice meted out to the applicants herein was noted and they approached the Tribunal by filing Ext.P2 O.A.No.37 of 2009 with the following prayers:
"i) Declare that the non-feasance on the part of the respondent to grant the applicants the benefit of absorption on par with their juniors particularly the case of one Shri Viswanathan borne in the list of retrenched casual labourers is arbitrary, discriminatory, contrary to law and hence unconstitutional.
W.P(C) No.23757 OF 2010 & and connected cases 15
ii) Direct the respondents to grant the applicants the benefit of absorption as Trackman from the date of such absorption of persons with lesser number of days of service than that of the applicants and direct further to grant all consequential benefits arising there from including arrears of pay and allowances, leave dues etc.
iii) Award costs of and incidental to this application.
iv) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case"
12. A detailed reply statement was filed by the Department, stating that the benefit given to Viswanathan was only by way of mistake and that he was having only '601' days of service, however conceding that he was placed at Sl.No.2134. It was also pointed out that, alleging non-compliance with Ext.P6 verdict, Contempt of Court Proceedings were initiated by Mr. Viswanathan and the Railways were compelled to implement the verdict and report compliance; which could not be treated as W.P(C) No.23757 OF 2010 & and connected cases 16 a precedent; more so when it involved a mistake, which could not have been perpetuated .
13. After hearing both the sides, the Tribunal, as per Ext.P5 order, held that the applicants were entitled to absorption with reference to the date of absorption of their junior and since Viswanthan (their junior) was absorbed retrospectively w.e.f. 1996, similar benefit was held as liable to be extended to the applicants as well, which was ordered accordingly. This, in turn, is under challenge in the writ petition filed by the Railways.
14. During the course of hearing, the learned Standing Counsel for the petitioners/Railways submitted that, Viswanathan did not have any right to claim absorption w.e.f. 1996, that he was placed only at Sl.No.2134 in the merged seniority list and that the actual date of absorption could have been only 03.11.2003 as given to his juniors. It is further pointed out that, if benefit has been given to any person by way of mistake, W.P(C) No.23757 OF 2010 & and connected cases 17 it cannot be the basis for granting similar relief to others, without establishing the right to obtain the said benefit. Reliance was sought to be placed on he verdict passed by the Apex Court in I.C.A.R. and another v. T. K. Suryanarayan and others [(1997)6 SCC 766] as well. It is true that a writ of mandamus cannot be issued on the basis of any negative principles of equality and that the right has to be established by the party, to have benefit of the prerogative writ in this regard. Mistake is always a mistake, which cannot be perpetuated. We find support from the ruling rendered by the Supreme Court in Chandigarh Administraition vs. Jagjit Singh and another. [AIR 1995 SC 705]. The same dictum has been rendered by the Apex Court in the subsequent decision in I.C.A.R. and another v. T. K. Suryanarayan and others [(1997)6 SCC 766 = AIR 1997 SC 3108] sought to be relied on by the petitioners/Railways. As it stands so, if Mr. Viswanathan, the W.P(C) No.23757 OF 2010 & and connected cases 18 applicant in O.A. 615 of 2004 wherein Ext.P6 judgment was passed, was actually having no right to have claimed absorption from 1996 and still, if such benefit was given by the Railways to him , it cannot but be a mistake which cannot be ordered to be extended to others, quoting the principles of equality. Obviously, the Tribunal had never made any such declaration in Ext.P6 judgment, that Viswanathan was entitled to have regularisation in service from 1996. The only direction was to give him re- engagement forthwith or at least in the next arising vacancy, without disturbing the seniority of those who were already engaged(including the juniors) and to have the benefits extended notionally. The scope of the said direction was not understood correctly by the Railways. If the benefits were extended to Mr. Viswanathan giving absorption from 1996, also granting consequential benefits, it is only a 'mistake' on the part of the Railways. Benefit flowing from the said mistake cannot be sought W.P(C) No.23757 OF 2010 & and connected cases 19 to be extended in similar terms to others and as such, the direction given by the Tribunal, as per the orders impugned, are liable to be intercepted to the said extent. The question is, how the relief is to be moulded in these cases.
15. As pointed out already, the applicants and others concerned were entitled to be placed in a common/merged seniority list, based on the total number of days of work , as ordered by the Tribunal vide Ext.P1 order passed in 1996. The said decision has become final. Admittedly, a merged seniority list has been prepared by the Railways, wherein the applicants are placed at Sl.No.from 1922 to 1995; whereas Mr. Viswanathan was placed only at a lower level, at Sl.No.2134. This being the position, it is quite evident that the applicants are much seniors to Viswanathan and as such, they could not have been overlooked by the Railways.
16. The supersession of the applicants was made by the W.P(C) No.23757 OF 2010 & and connected cases 20 Railways even in the year 2003 (after instructing to produce the records for verification, as per the relevant notification dated 24.03.2003), simply stating that they had already crossed the maximum age; by placing reliance on the Railway Board letter dated 20.09.2001. The applicability of the said letter of the Railway Board was discussed in detail and the position was held against the Railways, as per Annexure A1 verdict in O.A.633 of 2003. The Railway Board letter dated 20.09.2011 was held as having only 'prospective effect'; whereas the absorption process had already begun in terms of the Scheme prior to issuance of the said letter by the Railway Board. It was further held that the vacancies were of the previous years; to which no age restriction was applicable. Had the legal position had been correctly understood by the Railways, the service of the applicants would have been regularised then and there. Had it been done so, the applicants would have come into regular service of the Railways, W.P(C) No.23757 OF 2010 & and connected cases 21 at least in the year 2003 and if this be the position, they would have continued to be governed by the CCS (Pension) Rules 1972 and would have earned pension, subject to satisfaction of the requirement under the above Rules. It was only because of the wrong course of action pursued by the Railways, (leading to different rounds of litigation), that the regularisation was got delayed. This Court is of the firm view, that no premium can be extended to the wrong-doer. In the instant case, the mischief was done by the Railways and nobody else. The plea of 'limitation' has been rightly turned down by the Tribunal and this Court does not require any second thought to hold it against the petitioners/Railways.
17. Coming to the relief to be moulded , the learned counsel for the respondents/applicants submits that their claim would stand confined, only to be treated as employees having absorbed at least in the year 2003, on a notional basis, to be reckoned as W.P(C) No.23757 OF 2010 & and connected cases 22 qualifying service for pension in terms of CCS (Pension) Rules, 1972. We find it reasonable. Going by the sequence of events and the relevant facts and circumstances, we find it appropriate to have the same reckoned from 03.11.2003 as done in other cases (involving juniors who were placed much below the seniority level of the applicants herein ) to be considered for reckoning the qualifying service for pension under the CCS (Pension) Rules, 1972. It is ordered accordingly, making it clear that such benefit will stand confined only for reckoning the 'qualifying service' for pension, on a notional basis and never for payment of any monetary benefits or such other reliefs. The orders passed by the Tribunal, granting the benefit of retrospective absorption from 1996 or such other dates prior to 03.11.2003, with reference to the benefit granted to the person by name Viswanathan (applicant in O.A.615 of 2004) stands interdicted. Consequential steps/orders shall be passed by the W.P(C) No.23757 OF 2010 & and connected cases 23 petitioners/Railways in the light of the above declaration and the eligible benefits shall be given to the applicants accordingly.
18. In the above facts and circumstances, Ext.P5 order passed by the Tribunal in O.A.No.37 of 2009 (challenged in W.P. (C)23757 of 2010) directing to reckon the date of regularisation of the applicants as from 1996 and to grant all consequential benefits will stand set aside. The date of regularisation shall be reckoned as 03.11.2003 only for the purpose of reckoning the qualifying service for granting pension, in terms of the CCS ( Pension) Rules. . Fixation of pension shall be based on the actual pay drawn by the applicants at the relevant time.
19. Similarly, the orders passed by the Tribunal challenged in O.P.(CAT)Nos. 138/2014 (Ext.P4), 170//2014 (Ext.P3), 185/2014(Ext.P5), 186/2014 (Ext.P4), 39/2015 (Ext.P5) 94/2015(Ext.P3), 110/2015 (Ext.P3) ordering for reckoning of the date of regularisation as 03.11.2013, however stating that it W.P(C) No.23757 OF 2010 & and connected cases 24 will be applicable for the purpose of pension and retirement benefits will stand modified and confined to the above extent.
20. In O.P.(CAT) 30 of 2016, as per Ext.P3 order passed by the Tribunal, date of regularisation has been ordered to be reckoned with reference to the date of regularisation given to the juniors, however making it clear that arrears shall be paid only from 06.02.2009, the date of filing the O.A.. In O.P(CAT) 45 of 2016, Ext.P4 order passed by the Tribunal directs the date of regularisation to be reckoned from 2003 for granting pension and other retirement benefits. In these cases also, the orders passed by the Tribunal will stand modified and confined to the extent as declared above.
21. In all the above cases, except O.P(CAT) 45 OF 2016, the applicants were stated as seniors to the person by name Viswanathan (in whose case, the benefit was ordered to be given by the Tribunal as per the verdict in O.A. 615 of 2004 (Ext.P6 in W.P(C) No.23757 OF 2010 & and connected cases 25 W.P.(C)23757 of 2010) and even according to the Department, Viswanathan, by virtue of placement in the merged list placed at Sl.No.2134, was entitled to be regularised from 3.11.2003. In the case of the applicant in O.P(CAT) 45 of 2016, the applicant was junior to Viswanathan. But the fact remains that he was also called for considering regularisation in the year 2003 itself, but was denied the benefit, stating that he had already crossed the age limit. As the age factor has been rightly intercepted, he is also entitled to be treated as regularised in 2003. To have uniformity in all the matters, we find it appropriate to reckon 03.11.2003 as the date for regularisation in service (the date on which actual regularisation could have been given to Viswanathan). We also make it clear that, such date of regularisation will be only for the purpose of reckoning the 'qualifying service' for determining the eligibility for getting pension under the CCS (Pension) Rules 1972 and it will not result W.P(C) No.23757 OF 2010 & and connected cases 26 in payment of any arrears or such other monetary benefits, either towards salary or pension or such other heads. The actual pension and terminal benefits payable will depend upon the actual salary drawn by the applicants at the relevant time. The Writ Petitions and Original petitions are allowed in part. No cost.
P.R. RAMACHANDRA MENON, JUDGE P. SOMARAJAN, JUDGE lk