Central Administrative Tribunal - Ernakulam
R.Nandha Kumar vs Union Of India Represented By Chairman ... on 14 March, 2017
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00322/2015,
Original Application No.180/00676/2015,
Original Application No.180/00981/2015
& Original Application No.180/00129/2016
Tuesday, this the 14th day of March, 2017
CORAM:
HON'BLE Mr.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER
Original Application No.180/00322/2015
1. R.Nandha Kumar,
S/o.S.Rajan,
SCP, O/o.Senior Divisional Operations Manager,
Trivandrum Division, Southern Railway.
Residing at House No.63/3, Usman Ali Street,
TVS to CC Gate, Trichy.
2. S.Madhavan,
S/o.M.Singaravelu,
SCP, Sengulam Railway Station,
Trivandrum Division, Southern Railway.
Residing at 32/20, C/4, Sengol,
Udaiyar Street, Ponmalai Patti, Trichy.
3. A.Natarajan,
S/o.K.Ammasi,
SCP, Sengulam Railway Station,
Trivandrum Division, Southern Railway.
Residing at 6/217, South Eachampattinam,
Kalpalayam, Mannachampallur, Trichy.
4. S.P.Suresh,
S/o.K.R.Subbiah,
Traffic Porter,
Trivandrum Division, Southern Railway.
Residing at 1/3, Kaliyamman Kovil Street,
Thirumayam, Pudukottai District. . . . Applicants
(By Advocate M/s.Varkey & Martin)
Versus
1. Union of India represented by Chairman Railway Board,
Railway Bhavan, New Delhi - 110 001.
2. The General Manager,
Southern Railway, Park Town,
Chennai - 600 003.
3. The Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Trivandrum - 14. ... Respondents
(By Advocate Mr.Sunil Jacob Jose)
Original Application No.180/00676/2015
1. T.Sathish,
S/o.R.Thirugnanam,
Traffic Porter, Trivandrum Central Railway Station,
Trivandrum Division, Southern Railway.
Residing at 139-C, Thampanur Railway Quarters,
Trivandrum.
2. A.M.Jayarajan,
S/o.A.Arokiaraj,
Traffic Porter, Nagercoil Junction,
Trivandrum Division, Southern Railway.
Residing at 45-D, Railway Quarters,
Kottar, Nagercoil.
3. A.Arulappan,
S/o.T.Arockiam,
SCP Valliyur Railway Station,
Trivandrum Division, Southern Railway.
Residing at 1-B, Railway Quarters, Valliyur. . . . Applicants
(By Advocate M/s.Varkey & Martin)
Versus
1. Union of India represented by Chairman Railway Board,
Railway Bhavan, New Delhi - 110 001.
2. The General Manager,
Southern Railway, Park Town,
Chennai - 600 003.
3. The Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Trivandrum - 14. . . . Respondents
(By Advocate Mr.Sunil Jacob Jose)
Original Application No.180/180/00981/2015
J.Esther Rajathee,
W/o.John Paul,
Temporary Peon,
Office of the Divisional Personnel Officer,
Southern Railway/Palghat Division.
Residing at Railway Quarter No.133-A,
Railway Colony, Hemambika Nagar,
Kallekulangara P.O., Palakkad - 678 009. . . . Applicant
(By Advocate Mr.T.C.Govindaswamy)
Versus
1. Union of India represented by the General Manager,
Southern Railway, Head Quarters Office,
Park Town P.O., Chennai - 600 003.
2. The Chief Personnel Officer,
Southern Railway, Head Quarters Office,
Park Town P.O., Chennai - 600 003.
3. The Divisional Railway Manager,
Southern Railway, Palghat Division,
Palghat - 678 002.
4. The Senior Divisional Personnel Officer,
Southern Railway, Palghat Division,
Palghat - 678 002. . . . Respondents
(By Advocate Mr.Sunil Jacob Jose)
Original Application No.180/00129/2016
1. M.Suseekaran,
S/o.B.Mahadevan,
Working as Track Maintainer,
SSE/P.Way, Alleppey,
Trivandrum Division, Southern Railway.
Residing at No.92, Sengali Amman Koil Street,
Veerapuram, Kanchipuram District, Tamil Nadu.
2. K.Murugan, S/o.C.Karuppasamy,
Working as Track Maintainer,
SSC/P.Way/Alleppey,
Trivandrum Division, Southern Railway.
Residing at No.7, 4th Cross Street,
Vinayakapuram, Tamil Nadu. . . . Applicants
(By Advocate M/s.Varkey & Martin)
Versus
1. Union of India represented by Chairman Railway Board,
Railway Bhavan, New Delhi - 110 001.
2. The General Manager,
Southern Railway, Park Town, Chennai - 600 003.
3. The Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Trivandrum - 14. . . . Respondents
(By Advocate Ms.P.K.Radhika)
These applications having been heard on 27 th February 2017, the
Tribunal on 14th March, 2017 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicants in O.A.No.322/2015 working as substitutes in Traffic Department in the Trivandrum Division of Southern Railway are aggrieved by the inaction on the part of the respondents to regularize them in the post against which they were working as substitute with consequential benefits, as held by the High Court of Madras in W.P.No.8821 of 2007. The relief sought by the applicants is for a declaration that they are entitled for regularization with effect from the date of their appointment as substitutes and to consider them for promotion to the post of Ticket Examiner initiated as per Annexure A-3 notification dated 11.2.2015.
2. The applicants in O.A.No.676/2015 working as substitutes in Traffic Department in the Trivandrum Division of Southern Railway are aggrieved by the inaction on the part of the respondents to regularize them against the post in which they were working as substitute with consequential benefits as held by the High Court of Madras in W.P.No.8821 of 2007. The applicants are also aggrieved by non consideration for selection to the post of Ticket Examiner, which was initiated by Annexure A-3 and Annexure A-3 (a) notification dated 11.2.2015. The relief sought by the applicants is for a declaration that they are entitled for regularization with effect from the date of their appointment as substitutes and to consider them for promotion to the post of Ticket Examiner initiated as per Annexure A-3 and Annexure A-3 (a) notification dated 11.2.2015.
3. The applicant in O.A.No.981/2015 working as a Temporary Peon in the office of the Senior Divisional Personnel Officer/Southern Railway/Palakkad Division is aggrieved by denial of consideration for promotion to the post of Stenographer Gr.III PB 1 plus GP Rs.2400/- against the 50% quota meant for serving employees of Palakkad Division. Applicant responded to Annexure A-12 notification dated 26.10.2015, notifying 50% promotional quota vacancies of Stenographer Gr.III meant for serving employees of Palakkad Division. Applicant submitted Annexure A-13 application for consideration. Annexure A-13 was rejected by Annexure A-14 dated 19.11.2015 which is under challenge in this O.A.
4. The applicant submits that the WP No.8821/2007 was decided in favour of the respondents therein who are identically situated like the applicant herein. Applicant admits that judgment of the High Court of Judicature at Madras was challenged before the Apex Court in S.L.P.(C) No.28709/2013 and there was an interim order which read as follows :
' Railways will maintain status quo with respect to the employment of private respondents.' The applicant is not a respondent either before the High Court of Judicature at Madras or before the Apex Court in the above mentioned SLP(C). It is submitted that in letter dated 12.11.2009 (Annexure A-3) and Annexure A-5 order dated 11.1.2010 only two conditions were required to be fulfilled for regular absorption of the applicant - the outcome of WP No.8821/2007 and O.A.No.632/2009. These two cases have been decided in favour of the respondents therein who were identically situated like the applicant herein and Annexure A-9 interim order pertains only to 'private' respondents therein and not to any others who were not before the Apex Court. The relief sought by the applicant is to declare that he is entitled to be regularly absorbed as a SCP/Peon atleast with effect from 2012/2013 and further to be considered for promotion to the post of Stenographer Gr.III against the 50% quota vacancies meant for serving employees subject to the final outcome of SLP(C) No.28709/2013 dated 13.9.2013 referred to in Annexure A-9.
5. The applicants in O.A.No.129/2016 are working as substitutes in Traffic Department in the Trivandrum Division of Southern Railway. They are natives of Tamil Nadu and they submitted application for mutual transfer along with the employees working in the Madras Division. The said transfer application is refused for processing by the 3 rd respondent contending that the applicants are substitutes. The relief sought by the applicants is for a declaration that they are entitled for regularization with effect from the date of their appointment as substitutes with all consequential benefits and to consider them for mutual transfer pursuant to Annexure A-3 and Annexure A-4 application submitted by them.
6. Respondents in their reply statement submit that the subject matter of absorption of the substitutes like the applicants is before the Supreme Court in SLP No.28709/2013 filed against the judgment in WP No.8821/2007 of the High Court of Madras and the interim order therein is to maintain status quo as regards the employment of the private respondents. The judgment of the High Court of Madras in WP No.8821/2007 has merged with the interim order and hence, the interim order in the SLP has to be taken for application in respect of all who have been appointed as substitutes, whether all of them are impleaded or not. The applicants have also not impugned Annexure A-1/Annexure A-5 in O.A.981/2015 to the extent it orders the engagement of the applicants as substitutes. They are expected to impugn the said document at least immediately after the pronouncement of the judgment in WP No.8821/2007 on 6.8.2013. Accordingly their prayer in the O.As for regularization of their engagement as substitutes is hit by acquiescence, estoppel and delay also. The applicants prayer for considering them for selection to the post of Ticket Examiner, Stenographer Gr.III and mutual transfer also fails accordingly.
7. Regarding the background, the respondents submit that the applicants are at present working as substitutes in the Traffic Department of Trivandrum Division. The alleged inaction on the part of the respondents to regularize the applicants' services has not occurred and is not established and hence denied. The applicants were not selected by the Railway Recruitment Board. They were trained apprentices, engaged by Railways as substitutes during exigencies. Regularization of substitutes is normally done according to the provisions of Indian Railway Establishment Manual. In the case of the applicants, the absorption of substitutes is before the Supreme Court in SLP No.28709/2013 and the interim order therein is only to maintain status quo as regards the employment of private respondents ie. the substitutes, the group to which the applicants belong and hence the directions are to be applied to all irrespective of whether they are actually brought in as parties or not in the cases.
8. Annexure A-3 and Annexure A-12 are the Notifications calling for volunteers for selection to the post of Ticket Examiner and Stenographer Gr.III against 16 2/3% and 50% promotional quotas respectively. The said selection is meant for employees who are having regular status in the pay scales notified. As the applicants are not having a regular status in Railways, they are not eligible to apply for being considered for the selection. If they have applied, it is on their own volition, when they are not called upon to do so due to lack of eligibility, and accordingly their applications are not liable to be entertained. It is submitted that applicants have not impugned the aforesaid notifications to the extent it does not call upon the substitutes like the applicants, to put in their applications. The applicants argue that they are seeking the implementation of the directions in WP No.8821/2007 as they are not respondents in the SLP No.28709/2013 before the Supreme Court. However, applicants are put to proof as to how they can seek implementation of the judgment in WP No.8821/2007 in their favour as they are not parties in that WP either. Hence, the case for applicability of one will result in applicability of the other as they are similarly placed.
9. A counsel statement has been filed in O.A.No.981/2015 in which also main contention of the respondent is that they contest the implementation of the judgment of the High Court, Madras which has been taken in appeal to the Supreme Court by filing SLP No.28709/2013 in which order has been passed for maintaining status quo with respect to the employment of the private respondents. Respondents inform that by notification dated 26.10.2015 volunteers were called to fill up the vacancies in Stenographer Gr.III against 50% promotion quota from regular employees with two years minimum service. The applicant in the O.A.No.981/2015 submitted her application which was not considered in view of the fact that she is not a regular employee. It is submitted that she is only a substitute and therefore cannot stake any claim which are conferred on a regular employee. Annexure A-12 pursuant to which the applicant in O.A.No.981/2015 had submitted her application had specified that the same is for the purpose of conducting selection by calling volunteers from Group C regular employees. Railway Board's letter No.E(NG) 65/IRI-I dated 1.9.1996 has clearly stated that conferment of temporary status on the substitute does not entitle them to automatic absorption/appointment to Railway service unless they are in turn for such appointment on the basis of their position in select lists and/or they are selected in the approved manner for appointment to regular Railway posts. When an earlier notification was issued for filling up post of Junior Clerk against 33 1/3% and 16 2/3% quota, the applicant filed O.A.No.1009/2014 against rejection of her candidature. This Tribunal had declined to grant the applicant any interim order. The applicant challenged the refusal before the High Court of Kerala through OP (CAT) No.177/2014, which was dismissed vide judgment dated 28.11.2014. The relevant portion of the judgment of the High Court of Kerala is as under :
' Admittedly, services of the petitioner as on today is not regularized. Unless she is a regular employee she cannot aspire for appointment to high posts. It is taking note of this factual situation, correctness of which is undisputed, that the Tribunal has declined the interim order sought for. View taken by the Tribunal, according to us is not irrational or perverse one justifying interference.' Hence the applicant's case is hit by resjudicata and applicants' cannot appear on the same issue again before the Tribunal.
10. O.A.No.1009/2014 filed by the applicant was closed as not pressed in view of the fact that the examination was held on 29.11.2014 and the interim order as sought for was declined by the Tribunal and a challenge against the refusal unsuccessful. The SLP in Apex Court is still pending and the applicants status hence also remains unchanged. Therefore, unless the applicant is a regular employee, she cannot aspire for appointment to any higher departmental posts.
11. In the reply statement filed in O.A.No.981/2015 it is submitted that the WP No.8821/2007 was dismissed by the High Court of Madras as per judgment dated 6.8.2013 permitting the Railways to regularize the services of 530 substitutes engaged in safety category vacancies from the date of their engagement. In the meantime the ITI Unemployed Welfare Association took up the matter to Supreme Court by filing SLP No.28709/2013. The Apex Court by an interim order dated 13.9.2013 directed that the Railways will maintain status quo with respect to the employment of the private respondents. Respondent No.4 has notified a selection for the post of Stenographer Grade III in Pay Band Rs.5200-20200 with Grade Pay Rs.2400/- vide notification dated 26.10.2015 in the Palghat Division against 25% promotion by selection from shorthand knowing Clerks and 25% promotion by General Selection from Group C employees knowing shorthand. It has been categorically stated in para 2 of the said notification that regular employees in Pay Band Rs.5200-20200 with Grade Pay between Rs.1800/- and Rs.2400/- and have completed two years minimum service and acquired knowledge of shorthand were eligible to appear for the above selection. The applicant in O.A.No.981/2015 being a substitute Peon could not have applied for the said post. However, despite an adverse order passed by the High Court in OP (CAT) No.177/2014 she applied against the said notification. Since there has been no change in her 'substitute' status, she was not included in the list of eligible employees published vide Annexure A-14. It is submitted that in view of the pendency of SLP No.28709/2013 (now converted as CA No.1909/2015) and the interim order dated 13.9.2013 the respondents could not have taken any other decision. The High Court of Kerala while dismissing OP (CAT) No.177/2014 earlier has held that unless the applicant attains the status of a regular employee, she cannot aspire for appointment to higher post. There has been no change in the status of the employee. As such, the applicant cannot aspire for appointment to higher post. In O.A.No.981/2015 Annexure A-6 has been produced which clearly states that 'granting temporary status will not confer on them any title or claim for continuance in the grade and for absorption in any regular establishment'. They have to get themselves selected by a duly constituted screening committee for being absorbed on regular basis. Applicant in O.A.No.981/2015 was given offer of appointment vide Annexure A-3 as 'substitute' Sweeper cum Porter (in short substitute SCP) in the Operating Department with pay Rs.4440/- in Pay Band Rs.4440-7440 + Grade Pay Rs.1300/- which inter alia contained following stipulation :
Your services are purely temporary as applicable to Substitutes and you will not be entitled for any notice of termination of service or pay in lieu thereof if such termination of service is due to the expiry of sanction to which you held or the expiry of the officiating capacity/vacancy or due to physical or mental incapacity or due to your removal or dismissal as a disciplinary measure after compliance with provisions of clause (2) of Article 311 of the Constitution of India. Otherwise your services are terminable on 14 days notice on either side. For absorption to regular Railway service you will have to be selected by a duly constituted selection committee. You will not be eligible for any of the privileges applicable to the staff on regular service during the period of employment as Substitute.
Your engagement as Substitute SCP is provisional and subject to the final outcome of WP No.8821/2007 pending before the Hon'ble High Court of Madras and O.A.No.632/2009 pending before the Hon'ble Central Administrative Tribunal/Madras Bench.'
12. The applicant, having accepted the above conditions and on completion of initial training, was engaged as substitute SCP in the Palghat Division with effect from 12.1.2010 at Kannapuram Station. The engagement of the applicant as substitute was also provisional and subject to the final outcome of WP No.8821/2007 pending before the High Court of Madras as is evident from Annexure A-3 and Annexure A-5. The said Writ Petition was filed by the respondents challenging the order passed by the Madras Bench of the Tribunal, in O.A.No.520/2005 wherein it was held that notification dated 29.11.2014 and absorption of substitutes should not become a source of recruitment and directed the Railways to strictly confine the recruitment in terms of Constitutional Scheme. At the time when the Writ Petition was admitted on 13.3.2007 the High Court of Madras had granted interim stay of the order of the Tribunal. When the said Writ Petition was pending the respondents filed a Misc. Petition No.1/2007 stating that there were huge number of vacancies and it was essential to engage the Course Completed Act Apprentices as substitutes in the safety category vacancies to tide over the crisis. The High Court had accordingly passed an interim order dated 27.8.2009 permitting the status.
13. The question of law involved in the CA No.1909/2015 is the absorption of 530 substitutes. The applicant is one among the 530 substitutes. The Supreme Court has passed an interim order on 13.9.2013 to maintain status quo with respect to private respondents. Since the issue involved in the above Civil Appeal is regarding the absorption of 530 substitutes and the applicants in the O.As before us included, the respondents cannot take a lenient or a different view in their case alone which would amount to violation of Apex Court order of stay and hence Contempt of Court.
14. Grant of temporary status will not amount to automatic regularization, the respondents contend. It has been stated in the order granting temporary status that the same will not confer on applicants any title or claim for continuance in the grade and for absorption in any regular establishment.
The applicants are only substitutes with temporary status. Grant of temporary status can not be read as conferment of the status of a regular employee. Until and unless applicants get absorbed as a regular employee, they cannot aspire for appointment to higher post. It is submitted that the absorption of the entire lot of 530 substitutes which includes the applicants will depend upon the outcome of the pending Civil Appeal No.1909/2015. Any delay in absorption of these 530 substitutes in the Railway service cannot be attributed to them as they are bound by the order of Apex Court to maintain status quo and during the pendency of the aforesaid C.A the applicants cannot be considered for absorption, the respondents further contend. Unless the applicants are absorbed in Railway service, they cannot aspire for appointment in higher post, even provisionally. The notification dated 26.10.2015 clearly states that only regular employees in PB Rs.5200- 20200 + Grade Pay between Rs.1800/- and Rs.2400/- who have completed 2 years minimum service are eligible for the above selection and therefore, applicants who are substitutes with temporary status are not eligible for the same. Their absorption into Railway Service will depend upon the decision of the Supreme Court in C.A.No.1909/2015. The High Court of Kerala has held in OP (CAT) No.177/2014 that unless applicants are regular employees they cannot aspire for appointment to higher post. Thus both judgments do not confer any right as regards the prayer of the applicant in O.A.No.981/2015. Any judicial indulgence by this Tribunal to even provisionally permit for participating in the selection examination would be against the spirit of the judgment of the High Court of Kerala and the stay order of the Apex Court in SLP No.28709/2013 where the Apex Court has passed an interim order directing to maintain status quo with respect to the status of applicants which continues to be that of a substitute. If that be so even those persons can continue only as substitutes till it is finally decided by the Apex Court. If so the applicants cannot aspire for appointment to a higher post.
15. In view of the order of the Apex Court in SLP No.28709/2013 to maintain status quo the prayer in all these Original Applications must fail. Unless and until the applicants are declared regular employees, which status they have not acquired in view of status quo ordered by the Apex Court, even an order to grant relief subject to final outcome of Apex Court order in C.A.No.1909/2015 would be against the order of status quo passed by the Apex Court.
16. In view of the above, the Original Applications are dismissed. No costs.
(Dated this the 14th day of March 2017)
(P.GOPINATH) (N.K.BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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