The High Court dismissed a writ petition challenging an Administrative Tribunal order. The Tribunal set aside orders rejecting claims for seniority revision, directing the department to re-fix seniority following due process after a merger of railway cadres. The Court declined to interfere.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 31ST DAY OF MAY 2016/10TH JYAISHTA, 1938
WP(C).No. 36669 of 2008 (S)
AGAINST THE ORDER IN OA 32/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 13-11-2007
PETITIONER(S):
BY ADVS.SRI.S.K.MURALEEDHARA KAIMAL SRI.V.K.MOHAMMED YOUSUF
SMT.VARSHA BHASKAR
RESPONDENT(S):
BY ADV. SRI.M.A.SHAFIK
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX IN W.P.(C)No.36669/08
PETITIONER'S EXTS:
RESPONDENTS' EXTS: NIL
TRUE COPY
P.S.TO JUDGE
dsn
P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ.
--------------------------------------------------
W.P.(C)No.36669 OF 2008
-------------------------------------------------DATED THIS THE 31st DAY OF MAY, 2016
JUDGMENT
ANIL K.NARENDRAN, J
The petitioners are the respondents in O.A.No.32/2006 on the
file of the Central Administrative Tribunal, Ernakulam Bench, an Original Application filed by the respondents herein seeking an order to quash Annexures A1, A2 and A3 to the extent it places above them their juniors who have empanelled later, being illegal and violative of the Rules. They have also sought for a declaration that they are entitled to be placed in Annexure A1 provisional seniority list above persons at Sl.Nos.8 to 20, with all consequential benefits.
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Ext.P8 order dated 13.11.2007, quashed Annexures A2 and A3 orders with a direction to the petitioners herein to re-fix the seniority of the respondents herein in accordance with the observations made in Ext.P8 order, by following the prescribed procedure of giving show cause, notice, etc. As Annexure A1 is still a provisional seniority list, which is subject to the outcome of the SLP pending before the Apex Court, the Writ Petitions pending before various High Courts and also the Original Applications pending before various other Benches of the Tribunal, it was made clear that Ext.P8 order and any further action on the basis of Annexure A1 seniority list will be subject to the outcome of those cases. The reasoning of the Tribunal as contained in Para.5 of Ext.P8 order reads thus:
“5. ............ It is an admitted position that the Annexure-A1, the impugned seniority list, is only a provisional seniority list and any promotion made on the basis of this would be subject to the outcome of the SLP pending before Hon'ble Supreme Court and Writ Petitions pending before Hon'ble High Courts and various benches of this Tribunal. Keeping aside the legal question, the short question for determination is the seniority of the applicants, vis-a-vis, the persons shown at serial 8 to 20 in the Annexure-A1 and whether the list has been prepared correctly
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fixing the basis of the inter-se-seniority. The method of fixing inter-se-seniority has been provided in the restructuring order of Annexure-A7 issued by the Railway Board on 9.10.2003 in which various categories of Group-C and D have been merged or restructured in accordance with the revised percentages. This order also introduced the concept of multi skilling by merging different categories performing similar functions. Para.10 of the order relates to merger of Station Master/Assistant Station Masters, Yard Masters and Traffic Inspectors into one unified cadre of SM/ASM, which inter alia, provides for determination of seniority in the following manner:- “The categories indicated herein will be merged by integrating the seniority of the employees working in respective grades with reference to length of non-fortuitous service in the relevant grade keeping the interse-seniority in the respective group intact.” In pursuance of this instruction, the impugned seniority list of the restructured cadre of Station Master/Assistant Station Masters, Yard Masters and Traffic Inspectors into one unified cadre of SM/ASM in different scale as on 1.11.2003 has been issued. At the time of issue of this seniority list, the applicants, who were in the group of Dy.CYM in the scale of 6500-10,500 had entered in that grade,₹ i.e., the first applicant on 4.3.93 and the second applicant on 11.3.93. However, the first applicant being senior by virtue of higher position in the empanelled list in accordance with the instructions quoted above, the inter-se-seniority between him and the 2nd applicant has been maintained keeping their interse-seniority in their respective group intact. The applicants have no quarrel with this seniority though the respondents have elaborately referred to this point. In fact, their entire reply is
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devoted this aspect of the seniority of these two applicants, whereas this was not the issue under challenge at all. The main point under challenge is the inter-se-seniority of the persons, whose names appear from Sl.Nos.8 to 20, vis-a-vis, the applicants, on which the respondents have not dwelt at all, but in the Additional Reply they have briefly pointed out that these persons were given promotion with retrospective effect from 1.3.1993 due to restructuring even though the panel for promotion was published on 26.5.93. Hence, the seniority as per Para 306 is not applicable, the provisions of Para 10 of Annexure-A7 (quoted supra) are clear on this aspect, according to which the applicants' seniority has to be fixed with reference to the length of non fortuitous service in the relevant grade keeping the inter-se-seniority in the respective group intact. Hence, the retrospective seniority granted to the employees due to restructuring or otherwise cannot be termed as non fortuitous service, as these employees had not worked in their respective cadre and have obtained this promotion on account of fortuitous circumstances, when the applicants herein have been regularly promoted to the post of Dy. CYM in the scale of 6500-10500₹ and had been working in this grade at the time of merger. Hence, placing these employees at Sl.8 to 20 above the applicants is prima facie irregular and not in conformity with the direction in para 10 of Annexure-A7 order.”
petitioners herein are before this Court in this Writ Petition.
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for Southern Railway representing the petitioners and also the learned counsel appearing for the respondents/applicants.
that at the time of filing of the O.A., the applicants were working as Deputy Chief Yard Masters and they were empanelled for promotion to that post by Annexure A4 order dated 12.10.1992 of the 4th petitioner herein. The 1st applicant, who was on deputation, had received the order belatedly and therefore he could join the post only on 4.3.1993 and the 2nd applicant joined on 11.2.1993. While so, the seniority list of Yard Staff in the cadre of Deputy Chief Yard Master, Yard Master and Assistant Yard Master of Palakkad Division was published by Annexure A6 order dated 24.11.1998 of the 4th petitioner herein. In the said order, the position of the applicants has been shown on the basis of their seniority reflected in the order of empanelment. While so,
by Annexure A7 circular dated 9.10.2003 the cadres of Yard Masters and Station Masters were merged, along with other related categories like Traffic Inspectors, etc. as part of the restructuring undertaken in the Railways. As per Annexure A7
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circular dated 9.10.2003, the seniority of the merged cadres are to be maintained in an integrated seniority list as provided in Para.10 thereof. Consequently, the cadres have been merged and have been considered to be in one single cadre.
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group intact. Hence, in terms of the above Rule, and as per the instructions communicated vide letter dated 6.2.2004 the applicants have been assigned seniority position in Station Master Grade I/Traffic Inspector/Deputy Chief Yard Master Cadre in the scale of 6500-10500 against item No.21 and 22 respectively in₹ Annexure A1 provisional seniority list, with reference to the date of assuming higher responsibilities as Deputy Chief Yard Master on regular measure with effect from 4.3.1993 and 11.2.1993 respectively and as such their placement in Annexure A1 provisional seniority list is correct and requires no revision.
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in cases covered by Para.305. The length of service of the applicants, who joined in the year 1980 are longer than their juniors at Sl.Nos.8 to 20, except those at Sl.Nos.15 and 20. Since the applicants are inducted into the Cadre of Deputy Yard Master in the year 1985 itself, they ought to have been placed in Annexure A1 provisional seniority list on the basis of their actual date of entry in that cadre, as claimed by them.
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retrospective effect from 1.3.1993 due to restructuring, even though the panel for promotion was published only on 26.5.1993. Therefore, it was contended that the seniority as per Para.306 of the Indian Railway Establishment Manual cannot be made applicable in such cases.
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list above the applicants is prima facie irregular and not in conformity with the direction in Para.10 of Annexure A7 order.
and A3 orders, the 4th petitioner herein has referred to only the inter-se seniority of the two applicants and the orders do not state anything about their claim vis-a-vis the group of Station Masters at Sl.No.8 to 20. It was in such circumstances, the Tribunal set aside Annexures A2 and A3 orders with a direction to the petitioners herein to re-fix the seniority of the applicants in accordance with the observations made in the order by following the prescribed procedure of giving show cause, notice, etc. We find absolutely no merit in the contention raised on behalf of the petitioners herein that by setting aside Annexures A2 and A3 orders the Tribunal has interfered with any policy decision taken by the Government in the matter of restructuring of cadres, as reflected in Annexure A7 circular.
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employees at Sl.No.8 to 20 in Annexure A1 provisional seniority list. We notice that, Annexure A1 is still a provisional seniority list, which is subject to the outcome of the SLP pending before the Apex Court and also the writ petitions/original applications pending before various High Courts/Benches of the Tribunal. By Ext.P8 order, the Tribunal has only set aside Annexures A2 and A3 orders of the 4th petitioner herein, by which the claim of the applicant for seniority above employees at Sl.Nos.8 to 20 in Annexure A1 provisional seniority list was turned down even without stating anything about their claim vis-a-vis the group of employees at Sl.Nos.8 to 20. The Tribunal has also made it clear that Ext.P8 order and any further action on the basis of Annexure A1 provisional seniority list will be subject to the outcome of the cases referred to above. In that view of the matter, we find absolutely no irregularity in Ext.P8 order of the Tribunal setting aside Annexures A2 and A3 orders and directing the petitioners herein to re-fix the seniority of the applicants, after following the prescribed procedure of giving show cause notice, etc. to the affected persons. However, we make it clear that the
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observations made by the Tribunal in Ext.P8 order in order to arrive at a prima facie conclusion that the placement of employees at Sl.Nos.8 to 20 in Annexure A1 provisional seniority list above the applicants is irregular and not in conformity with the directions in Para.10 of Annexure A7 order, will not stand in
the way of those persons raising appropriate contentions before the petitioners to sustain their placement as above in Annexure A1 provisional seniority list. If any such contentions are raised by those employees, the petitioners herein shall consider the same in accordance with law, untrammelled by any of the observations contained in Ext.P8 order of the Tribunal.
Subject to the above observation, we decline to interfere with Ext.P8 order passed by the Tribunal. In the result, the Writ Petition fails and the same is accordingly dismissed.
Sd/-
P.R.RAMACHANDRA MENON , JUDGE
Sd/- ANIL K.NARENDRAN, JUDGE
dsn
//True Copy
P.S. to Judge//
2 issues framed by the court
Whether the Tribunal's order setting aside rejected applications without notice to junior employees was procedurally irregular.
Whether persons with retrospective seniority due to restructuring could be ranked higher than applicants based on actual entry dates.
1 provisions across 1 enactments
UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF RAILWAYS
THE GENERAL MANAGER, SOUTHERN RAILWAY
THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALGHAT DIVISION
THE SENIOR DIVISIONAL PERSONNNEL OFFICER SOUTHERN RAILWAY, PALGHAT DIVISION
K.RAGHAVAN
M.BADARUDDIN
P.R.RAMACHANDRA MENON
ANIL K.NARENDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
