Central Administrative Tribunal - Ernakulam
V. Rajendran vs Union Of India on 3 April, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. Nos. 320, 468, 818, 1044 and 1109 of 2010
Tuesday, this the 03rd day of April, 2012
CORAM:
HON'BLE Mr. JUSTICE P.R. RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. O.A. No. 320/2010
1. V. Rajendran, S/o. Velayudhan Assari,
Trackman/Nagercoil Junction,
Southern Railway, Trivandrum Division.
Residing at Mankuzhi Road, Chanal Karai,
Monday Market, Neyoor (P.O),
Kanyakumari District, PIN - 629 802.
2. K. Padmanabha Das, S/o. Kalipillai,
Trackman/Nagercoil Junction,
Southern Railway, Trivandrum Division.
Residing at Krishnavahai, Vivekananda Teru,
Chunkandai, Parasseri (P.O),
Kanyakumari District. PIN - 629 807.
3. P. Micheal George, S/o. Pankiyaraj,
Trackman/Nagercoil Junction,
Southern Railway, Trivandrum Division.
Residing at 17/22A, Aluvila, Kandan Vilai,
Kandanvilai (P.O), Kanyakumari District.
4. N. Murugan, S/o. Nandakannu Nadar,
Trackman/Nagercoil Junction,
Southern Railway, Trivandrum Division.
Residing at Kannattuvilai, Kannattuviaii (P.O),
Eraniel Village, Kanyakumari District. PIN - 629 802.
5. T. Padmanabha Pillai, S/o. Thanu Pillai,
Trackman/Valliyoor/Southern Railway,
Trivandrum Division, Residing at Krishnavahai,
Eraniel Melakonam, Eraniel Village,
Neyoor, Kanyakumari District. PIN - 629 802.
6. C. Raja Rathinam, S/o. Chellaya Nadar,
Trackman/Valliyoor/Southern Railway/
Trivandrum Division. Residing at Naduvoor Karai,
Mandaikkad Post, Kanyakumari District. PIN - 629 252.
7. S. Sunderdas, S/o. Swami
Trackman/Valliyoor/Southern Railway,
Trivandrum Division. Residing at : 967/P. 46/2-1,
Rani Thottam, North Street, Nesamony Nagar,
Kanyakumari District. - Applicants
(By Advocate Mr. T.C. Govindaswamy)
Versus
1. Union of India, represented by
The General Manager, Southern Railway,
Headquarters Office, Park Town (P.O),
Chennai - 3.
2. The Divisional Railway Manager,
Southern Railway Trivandrum Division,
Trivandrum - 14.
3. The Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Trivandrum - 14. - Respondents.
(By Advocate Mr. Sunil Jacob Jose, SCGSC)
2. O.A. No. 468/2010
1. P. Thankaraj, S/o. Ponnaiah,
Trackman, Office of the Section Engineer,
Permanent Way/Southern Railway,
Trivandrum Central, Residing at Nellickavilai,
Maruthukuruchi (P.O), Kanyakumari District,
Tamil Nadu.
2. S. Surendran, S/o. Sundaranpillai,
Trackman, Office of the Section Engineer,
Permanent Way/Southern Railway,
Alleppey, Residing at : Nellivilakathu Veedu,
Mallencode, Karancode (P.O), Kanyakumari District.
3 A. Mahendran, S/o. Arumughan Nadar,
Trackman, Office of the Section Engineer,
Permanent Way/Southern Railway,
Trivandrum Central, Residing at: Alencode (P.O),
Mundamkottuvilai, Kanyakumari District
4 C. Reghubharan, S/o. Chinnapillai,
Trackman, Office of the Section Engineer,
Permanent Way/Southern Railway, Alleppey,
Residing at : Aluvizhakathu Puthen Veedu,
Chakkiancode, Neyyoor (P.O),
Kanyakumari District.
5 S. Madhava Dhas, S/o. M. Sivaperumal Pillai,
Trackman, Office of the Section Engineer,
Permanent Way/Southern Railway,
Nagercoil Junction, Residing at :
Vijaya Jyothida Nilayam, Monday Market,
Neyyoor (P.O), Kanyakumari District. - Applicants
(By Advocate Mr. T.C. Govindaswamy)
Versus
1. Union of India, represented by
The General Manager, Southern Railway,
Headquarters Office, Park Town (P.O),
Chennai - 3.
2. The Divisional Railway Manager,
Southern Railway Trivandrum Division,
Trivandrum - 14.
3. The Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Trivandrum - 14. - Respondents.
(By Advocate Mr. Thomas Mathew Nellimoottil)
3. O.A. No. 818/2010
1. K. Krishnadas, S/o. P. Kumaraswamy,
Trackman/SE.P.Way/Southern Railway,
Trivandrum Division. Residing at :
Parayan Villai Veedu, Kappukkadu Post,
Kanyakumari District.
2. D. Sankaran, S/o. Daveed,
Trackman/SE.P.Way/NCJ,
Southern Railway, Trivandrum Division,
Residing at : Thozhikottu Vilai,
Poottethi (P.O), Kanyakumari District.
3. K. John Rose, S/o. Kutti Nadar,
Trackman/SE.P.Way/TVC,
Southern Railway, Trivandrum Division,
Residing at : Araichivilai Veedu,
Karavilai Nallur, Marthandam (P.O),
Kanyakumari District.
4. A. Johnson, S/o. S. Arumanayagam,
Trackman/SE/P.Way/TVC,
Southern Railway, Trivandrum Division,
Residing at : Karumputhottam,
Kattathurai (P.O), Kanyakumari District.
5. N. Samuel, S/o. Nagamony,
Trackman/SE/P.Way/TVC,
Southern Railway, Trivandrum Division,
Thuruvel Vilai, Kanagavilasam,
Iranipuram (P.O), Kanyakumari District. - Applicants
(By Advocate Mr. T.C. Govindaswamy)
Versus
1. Union of India, represented by
The General Manager, Southern Railway,
Headquarters Office, Park Town (P.O),
Chennai - 3.
2. The Divisional Railway Manager,
Southern Railway Trivandrum Division,
Trivandrum - 14.
3. The Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Trivandrum - 14. - Respondents.
(By Advocate Mr. Sunil Jacob Jose, SCGSC.)
4. O.A. No. 1044/2010
S. Thangavel, S/o. Sami Kannu Nadar,
Trackman, Office of the Section Engineer/
Permanent Way, Southern Railway,
Trivandrum Central. Permanent address:
No. 110/A, Kanjiravila, Eraniel,
Neyoor (P.O), Kanyakumari District - Applicant
(By Advocate Mr. T.C. Govindaswamy)
Versus
1. Union of India, represented by
The General Manager, Southern Railway,
Headquarters Office, Park Town (P.O),
Chennai - 3.
2. The Divisional Railway Manager,
Southern Railway Trivandrum Division,
Trivandrum - 14.
3. The Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Trivandrum - 14. - Respondents.
(By Advocate Mr. Thomas Mathew Nellimoottil)
5. O.A. No. 1109/2010
C.M. Vishnu, S/o. Madhavan Pillai,
Trackman under the Section Engineer/
P. Way/ Southern Railway,
Trivandrum Central. Permanent address :
House No. 8/90A, Karavillai, Puthenveedu,
Kumarakovil Post,
Kanyakumari District - 629 802. - Applicant
(By Advocate Mr. T.C. Govindaswamy)
Versus
1. Union of India, represented by
The General Manager, Southern Railway,
Headquarters Office, Park Town (P.O),
Chennai - 3.
2. The Divisional Railway Manager,
Southern Railway Trivandrum Division,
Trivandrum - 14.
3. The Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Trivandrum - 14. - Respondents.
(By Advocate Mr. Thomas Mathew Nellimoottil)
These applications having been heard on 23.03.2012, the Tribunal on
03.04.12 delivered the following:
O R D E R
By HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER Being identical, all the above O.As were heard together and are disposed of by this common order.
2. Applicants in these O.As are casual labourers engaged by the Railway Construction Organisation who were retrenched in the years 1980 and 1981. Aggrieved by the denial of absorption in service as Group-D, they had filed O.A. No. 614/2006 and connected cases before this Tribunal which was allowed on 14.03.2007 by directing the respondents to reconsider the applicants for absorption without applying the age limit. The applicants were appointed as temporary Trackman vide order dated 23.05.2008. The representations from the applicants in the year 2009 for absorption and consequential benefits from the date of absorption of their junior, Shri K. Viswanathan, did not elicit any reply. Hence, they have filed these O.As for the following reliefs :
(i) Declare that non-feasance on the part of the respondents 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;
(ii)Direct the respondents to grant the applicants the benefit of absorption as Trackmen 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 due etc;
(iii)Award costs of and incidental to this application;
(iv)Pass such other orders or directions as deemed just and necessary in the facts and circumstances of the case.
3. The applicants mainly contended that Shri Viswanathan who was reengaged in 2007 was granted the benefit of absorption with effect from 1996. He is having lesser number of days of service as casual labourer than the applicants. Therefore, they are entitled to be absorbed in service in preference to Shri Viswanathan with all consequential benefits. They were denied absorption only on the ground that they had crossed the age limit which was held to be illegal by this Tribunal. Therefore, non granting of the benefit of absorption and consequential benefits from the date from which absorptions were due, is arbitrary and discriminatory. The applicants relied on Para 179
(xiii)(c) of the Indian Railway Establishment Manual (IREM) for taking total length of service as casual labourers for empanelment for regular Group-D post.
4. The respondents in their reply statement submitted that in the case of Shri Viswanathan, the order in O.A. No. 615/2004 was to revise the seniority itself and accordingly, his absorption came to be antedated. In the case of the applicants, there was no direction in the order dated 14.03.2007 for absorption from an earlier date. The absorption from the list of retrenched casual labourers took place on different occasions under different circumstances. Therefore, the prayer for deemed absorption on par with a junior in the list is not at all maintainable. With his placement at serial No. 2134 in the merged seniority list, i.e., conforming to the number of days of service as 601 days, he was due for absorption only from 03.11.2003. Under the pressure of Contempt Petition No. 21/2006 in OA No. 615/2004 and lack of time and an observation from this Tribunal, they had issued orders antedating the date of absorption of Shri Viswanathan from 03.11.2003 to 12.02.1996 by comparing him with the persons in the list who were already empanelled in the year 1996. It was a mistake on their part to have relied upon the empanelment list of 1996 instead of the merged seniority list. The unintended benefit bestowed on Shri Viswanathan does not entitle the applicants herein to claim similar benefits. The respondents are contemplating to revise the benefits given to Shri Viswanathan. The applicants and similar other retrenched casual labourers who were beyond the prescribed upper age limit for absorption became entitled to be considered for absorption only in the light of the judgement of the Hon'ble High Court of Kerala dated 11.12.2007, subject to the outcome of the SLP filed. Whenever absorptions had been ordered, it was not as per the seniority in the list of retrenched casual labourers on account of the circumstances on varying nature. The applicants were not entitled to be absorbed in the year 2003 for the reason that they were beyond the upper age limit as on 01.01.2003 prescribed for absorption. The persons below them in the list were absorbed as they fulfilled all requirements of absorption including the age. The mistake that happened in the case of Shri Viswanathan cannot give the applicants herein a right to claim similar benefits which were unintended. A mistake cannot be permitted to be perpetuated. The provisions of the IREM are not applicable to the retrenched casual labourers. They are applicable only in the case of casual labourers who are working. Therefore, the applicants cannot place reliance on the provisions of the IREM.
5. We have heard Mr. T.C. Govindaswamy, learned counsel for the applicants and Mr. Sunil Jacob Jose, learned SCGSC and Mr. Thomas Mathew Nellimoottil, learned counsel appearing for the respondents in the respective O.As and perused the records.
6. The sum and substance of the contentions of the applicants is that they are seniors in service to Shri Viswanathan because they have more days of casual service than his 601 days of casual service. The fact that the applicants are having more than 601 days of casual service is not disputed. In O.A. No. 615/2004, there was a direction to revise the seniority of Shri K. Viswanathan based on which his absorption was antedated to 03.11.2003 on par with his juniors with 599 days of casual service. Further antedating of the absorption of Shri Viswanathan to 12.02.1996 was due to a mistake on the part of the Railways in comparing him with the persons in the list who were already empanelled prior to 01.07.1996 which was a settled position brooking no interference, instead of relying on his seniority in the merged seniority list which came into force after 01.07.1996. Therefore, the respondents are contemplating to recall the unmerited benefits granted to Shri K. Viswanathan on antedating his absorption to 12.02.1996. The respondents are within their right to correct the mistake and not to permit the mistake to be perpetuated. According to the respondents, the correct date of absorption of Shri Viswanathan is 03.11.2003 and he is junior to the applicants in the merged seniority list. In O.A. No. 614/2006 and connected cases, this Tribunal ordered as under:
"35. In the result, I quash Ministry of Railways Letter No. E (NG)-II/99/CL/19 dated 28.2.2001 and the letter of even No dated 20.9.2001 to the extent it relates to the retrenched casual labour placed in the merged seniority list tracing its origin from the directions in Inder Pal Yadav's case and as prepared consequent to this Tribunal's order in OA 1706/94 and direct that the applicants in these OAs be considered for regular absorption in the existing vacancies having regard to the seniority in the above mentioned merged list and without applying any age limit subject to medical fitness and other conditions for such absorption being fulfilled. The appointments made so far shall not be disturbed The respondents shall also endeavour to exhaust this list as early as possible while filling up future vacancies so that this category are not again driven to knock at the doors of the court for justice. Appropriate orders shall be passed and communicated to the applicants within a period of four months. OAs are allowed. No costs."
The above direction was to consider the applicants herein for regular absorption on the basis of their seniority in the merged list without applying any age limit, subject to medical fitness and other conditions being fulfilled. This would irresistibly lead to granting the applicants the date of absorption on 03.11.2003 on the basis of the stated position of the respondents that the applicants have higher seniority than Shri K. Viswanathan. The claim for any date prior to 03.11.2003 for absorption of the applicants is not tenable.
7. The respondents were facing a very complex situation. The seniority lists got merged. Senior casual labourers did not turn up in time to get absorption or they were over aged. Upper age limit was removed by the Court. Court orders came one after another. After getting absorbed, seniors raised the issue of seniority based on the number of casual days of work left and right making confusion worse confounded. Mistakes are bound to happen in such a situation.
8. Having regard to the facts and circumstances of these cases, we are of the considered view that the applicants are eligible to get notional seniority in service with effect from 03.11.2003 for the purpose of pension and other retiral benefits only. Ordered accordingly.
9. The O.As are allowed to the extent indicated above. No costs.
(Dated, the 03rd April, 2012)
K. GEORGE JOSEPH JUSTICE P.R. RAMAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.