Allowed

Nnion of India v. T.P.Sankaran

Kerala HC22 Jun 2016WP(C)/7970/2006

Case brief

AI extract

What is this about?

The Kerala High Court allowed preliminary writ petitions filed by the Railways challenging the Central Administrative Tribunal's order that struck down Clause 14 of a Board Order. The Court held that reservation rules must apply to restructuring if it involves promotion or creation of posts, relying on the Supreme Court's Pushpa Rani decision.

What did the court decide?

The writ petitions were allowed; the Tribunal's orders setting aside Clause 14 were set aside; restoration of Clause 14 upheld subject to factual adjudication on promotion vs. upgradation.

Nnion of India Vs T.P.Sankaran — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON &

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THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

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WEDNESDAY, THE 22ND DAY OF JUNE 2016/1ST ASHADHA, 1938

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WP(C).No. 7970 of 2006 (Z) ---------------------------

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OA 727/2004 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH OA 786/2004 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

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-----

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PETITIONER(S):

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1. UNION OF INDIA REPRESENTED BY THE SECRETARY, RAILWAY BOARD,, RAIL BHAVAN, NEW DELHI.

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2. THE SECRETARY, MINISTRY OF RAILWAYS, RAILWAY BOARD, NEW DELHI.

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3. THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI-3.

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4. THE SENIOR DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD.

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5. UNION OF INDIA, REPRESENTED BY CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY, PARK TOWN, CHENNAI.

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6. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT.

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7. THE SENIOR DIVISIONAL MECHANICAL ENGINEER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT.

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8. DIVISIONAL RAILWAY MANAGER, PALAKKAD DIVISION, PALAKKAD.

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BY ADV. SMT.M.R.SREELETHA, SC, RAILWAYS

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WP(C).No. 7970 of 2006 (Z)

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RESPONDENT(S):

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1. T.P.SANKARAN, CHIEF PARCEL CLERK, SOUTHERN RAILWAY, MANGALORE.

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2. R. RAJARAM,TECHNICIAN GRADE-III (MECHANICAL), DIESEL LOCO SHED, ERODE, SOUTHERN RAILWAY, PALGHAT DIVISION,PALGHAT.

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3. D. DEVARAJ,TECHNICIAN GRADE-III(MECHANICAL) DIESEL LOCO SHED, ERODE, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT.

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4. A.M. MOHAMMED RAFEEQ,S/O. LATE A.MOHAMMED SALIH, WORKING AS CTTI GR.II, SLEEPER, ERODE.

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5. K. DORAISAMY,S/O. LATE N.V. KRISHNAMURTHY, WORKING AS, CTTI GR.II, SLEEPER, ERODE.

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6. A. ARUMUGHAM,S/O. R.ANGAPPA MUDALIAR, WORKING AS CTTI GR.II, RESIDING AT 12/19, KAVIBHARATHI STREET, SASTRI NAGAR, ERODE-2.

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7. T. RATHEESAN, S/O. T.KELAPPAN,

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SAFETY COUNCELLOR, PALGHAT, RESIDING AT RAILWAY, QUARTERS NO.415-D, PALGHAT NORTH RAILWAY COLONY, PALGHAT.

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8. FORMAL RESPONDENTS.

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P. RAMAMOORTHY, CTTI GR.I SLEEPER, SOUTHERN RAILWAY, COIMBATORE.

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9. J. SREENIVASA RAGHAVAN, CTTI GR.I, SLEEPER, SOUTHERN RAILWAY, SALEM.

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10. K.K. PADMINI, CTI GR.I, SOUTHERN RAILWAY, SHORANUR.

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R1 BY ADV. SRI.M.A.SHAFIK BY ADV. SMT.SHAMEENA SALAHUDHEEN R4 & R5 & R6 BY ADV. SRI.BIJU MARTIN R7 BY ADV. SRI.N.NAGARESH R10 BY ADV. SRI.C.S.MANILAL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-06-2016,ALONG WITH WPC.7970/2006 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 7970 of 2006 (Z)

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APPENDIX

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PETIIONER'S EXHIBITS :

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P1:	COPY OF THE RAILWAY BOARD ORDER DT 9/10/2005.
P2:	COPY OF THE OA NO. 727/2004 FILED BY T.P. SANKARAN BEFORE THE CAT.
P3:	COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN THE ABOVE OA .
P4:	COPY OF THE COMMON ORDER DT 21/11/2005 OF THE CAT IN OA NO. 717/2004.
P5:	COPY OF THE ORDER DT 18/11/2005 OF THE DELHI HIGH COURT.
P6:	COPY OF THE ORDER DT 29/11/2005 IN MA 1770/2005 IN OA NO. 1173/2004 OF THE CAT., NEW DELHI.
P7:	COPY OF THE ORDER DT 14/12/2005 OF THE HON'BLE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR ENCH.
P8:	COPY OF THE ORDER DT 17/1/2006 OF SUPREME COURT OF INDIA IN I.A. NO. 1 & 13 IN C.A. NOS. 6946/2006.

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RESPONDENT'S EXHIBITS :

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EXT.R1:	COPY F THE JUDGMENT DT 19/11/1998 IN CA NO. 1481/96 OF THE HON'BLE SUPREME COURT.
EXT.R2:	COPY OF THE ORDER DT 31/1/2001 IN CONT.PET © 304/99 IN CA NO. 1481/96 OF THE HON'BLE SUPREME COURT.
EXT.R3:	COPY OF THE INTERIM ORDER DT 18/7/2005 IN SLPS 13125-131372005 BEFORE THE HON'BLE SUPREME COURT.
EXT.R4:	COPY OF THE INTERIM ORDER DT 14/11/2005 SLPS 13125-13137/2005 BEFORE THE HON'BLE SUPREME COURT.
EXT.R5:	COPY OF THE INTERIM ORDER 17/1/20065 SLPS 13125- 13137/2005 BEFORE THE HON'BLE SUPREME COURT.
EXT.R1(A)	: COPY OF THE ORDER DT 8/12/1987 IN SLP NO.11001/87.

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WP(C).No. 7970 of 2006 (Z)

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EXT.R1(B): COPY OF THE ORDER DT 31/8/1998 IN SLP NO. 9628-30/88.

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EXT.R1(C): COPY OF THE ORDER DT 19/11/1988 IN CA NO. 3622/1995.

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EXT.R1(D): COPY OF THE ORDER DT 19/11/1998 IN CA NO. 1481/9

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EXT.R1(E): COPY OF THE SUPREME COURT ORDER DT 31/1/2001 IN CP(C) NO. 304/99.

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EXT.R1(F): COPY OF THE SUPREME COURT ORDER DT 13/5/2005 IN SLP (C) NO. 11588/2003.

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EXT.R1(G): COPY OF THE ORDER DT 22/8/2006 IN RP NO.C 326/06.

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EXT.R1(H): COPY OF THE CIRCULAR NO., 93-E(SCT) 1/49/34 DT 21/12/2006.

//TRUE COPY//

P.A. TO JUDGE

[C.R.]

P.R. RAMACHANDRA MENON

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ANIL K. NARENDRAN, JJ.

JUDGMENT

Ramachandra Menon, J.

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All these writ petitions have been filed by the Union of India/Railways challenging the verdicts passed by the Central Administrative Tribunal, Ernakulam Bench, whereby Clause 14 of the Board Order dated 09.10.2003 stipulating that the existing Rules regarding reservation of SC/ST will continue to the restructuring of posts ordered therein. The case projected before the Tribunal by the applicants, mainly challenging the said clause, contending that if the same is let to stand, it will result in premature promotions and undue promotions to the juniors in preference to the seniors, was accepted and the said clause was set aside by the Tribunal, which is stated as not correct or sustainable in the eye of law and hence the challenge.

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We heard Mr. C.S. Dias and Sri. James Kurien - the learned

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standing counsel appearing for the Railways, Sri. M.A. Shafik - the learned counsel appearing on behalf of the party respondents in W.P.(C) Nos. 7970 and 20062 of 2006, W.P.(C) No.17786 of 2007 and W.P.(C) No. 216 of 2008 and for the first respondent in W.P. (C) No. 37287 of 2007, Sri. T.C. Govinda Swamy - the learned counsel appearing for the respondents in W.P.(C) No.17801 of 2008 and Sri. Sajan Varghese K. - the learned counsel appearing for respondents 2 to 6 in W.P.(C) No. 37287 of 2007 at length. W.P.(C) No. 20062 of 2006 is sought to be taken as the lead case by the learned standing counsel appearing for the Railways.

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The sum and substance of the issue involved in these cases is that, in order to provide better efficiency and to upkeep the organizational interest, restructuring of various posts was implemented by the Railways as per Ext. P5 order dated 09.10.2003. The said proceedings however contain a clause (as Clause 14) to the effect that ' the existing instructions with regard to reservation of SC/ST wherever applicable will continue to apply'. Incorporation of the said clause was to the chagrin of many employees, who sought to challenge the same by filing different applications before the Tribunal, raising various grounds. The

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Tribunal considered O.A. No. 601 of 2004 and other connected cases and a finding was rendered on 21.11.2005 [produced as Ext.P4 in W.P.(C) No. 216 of 2008] that the restructuring exercise involving reservation as contained in Clause 14 of the Board Order dated 09.10.2003 would not stand the test of law. It was accordingly that the said clause was set aside, virtually allowing the O.As.

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The above order was sought to be challenged by the Government/Department by filing various writ petitions, wherein interference was declined and the writ petitions were dismissed. The matter had already been taken up before the Apex Court (at the instance of the Government/Railways) as to the scope of the very same Board Order dated 09.10.2003, whereby Clause 14 of the said Board Order was set aside by the Tribunal in some other States. After an indepth analysis, the law was declared by the Apex Court as per the decision reported in (2008) 9 SCC 242

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[Union of India Vs. Pushpa Rani and Ors. (Pushpa Rani's

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case in short )] to the effect that there was black and white difference between the earlier Scheme (Board order dated 25.06.1985) and the change brought about by 'restructuring' which

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was dealt with in Board Order dated 09.10.2003. The Apex Court also observed that the latter scheme, which involved the creation of post and promotion to higher posts by way of selection and hence it was to be guided by the principles of reservation. The Apex Court made clear that the Tribunal has gone wrong in setting aside Clause 14 of the said Board Order and accordingly, the cases preferred by the Government/Railways were allowed and the position was put back as it originally stood, pursuant to the Board Order dated 09.10.2003.

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The declaration of law as above, as to the scope of the Board Order dated 09.10.2003 (which was the subject matter of the concerned O.As., which were being dealt with by this Court leading to dismissal of the writ petitions) was brought to the notice of the learned Judges by filing different review petitions. After considering the merit involved and the law declared by the Supreme Court, the review petitions were allowed and as a natural consequence, the writ petitions were allowed, whereby the orders passed in the original application by the Tribunal were set aside.

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It is pointed out that, in the first set of cases, i.e., R.P. No. 167 of 2008 and connected cases, the verdict as aforesaid was

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passed on 14.11.2008. This was sought to be followed in other cases as well and as such, R.P. No. 884 of 2008 was allowed, virtually allowing the writ petition as well, in turn setting aside the impugned orders passed by the Tribunal.

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When another batch of review petitions (R.P. No. 812 of 2008 and connected cases) came up for consideration before the another Bench (which forms the subject matter of consideration of this Court), it was submitted from the part of the respondents/applicants that the position had taken a different turn by virtue of the subsequent verdict passed by the Apex Court in Bharat Sanchar Nigam Limited Vs. R. Santhakumari Velusamy and Others (BSNL's case in short ) [(2011) 9 SCC 510]. The verdict already rendered by the Supreme Court in Pushpa Rani's case (cited supra) was also subjected to analysis and it was thereafter, that the Apex Court held in BSNL's case (cited supra) that the BCR Scheme introduced vide Circular dated 16.10.1990 (which was the subject matter involved therein), involved only a matter of upgradation simpliciter, where no instance of any promotion, creation of additional posts, or matter of promotion was involved and in the said circumstances, the

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principles of reservation could not be made applicable in the said case. The contention made before this Court was that, by virtue of the declaration of law as above, with reference to the verdict passed in Pushpa Rani's case (cited supra), the same was to be made applicable to the applicants as well, upon which, it could be established that no such instance of promotion, upgradation or selection was involved and as such the principle of reservation could not have been made applicable. It was taking note of the said submission, that the Bench, though allowed the review petitions, observed that the matters required to be considered in detail; thus leaving the writ petitions to be listed before this Court; which have been heard in detail.

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The crucial question to be considered is, whether the law declared by the Supreme Court in Pushpa Rani's case (cited supra) was watered down by the subsequent Bench in BSNL's case (cited supra) ? If there is any conflict in the findings, which one will prevail; is the next question. Whether the issue is exactly the same and can any distinction be drawn from the course already pursued by this Court while allowing the earlier batch of review petitions and in turn, the writ petitions, thus setting aside the

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orders passed by the Tribunal, is the 3^rd point to be answered.

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On going through the verdict in Pushpa Rani's case (cited supra), the question considered by the Apex Court, as it appears in the 'opening paragraph', was, whether the policy of reservation of posts for Scheduled Castes/Scheduled Tribes can be applied at the stage of giving effect to 'cadre restructuring exercise' undertaken pursuant to Letter No. PC-III/2003/CRC/6 dated 09.10.2003 issued by the Railway Board. After dealing with the facts and figures, the relevant provisions of law and the binding judicial precedents, it was observed that the basic issue was with regard to Clause 14 of the Board Order dated 09.10.2003, stipulating that existing principles in respect of reservation would continue to govern the field, pursuant to the 'restructuring exercise' as well. This is discernible from 'paragraph 28' as well. A comparative analysis was made by the Apex Court, with reference to the scope of the earlier scheme brought about as per the Board Order dated 25.06.1985 and the new one, pursuant to the Board Order dated 09.10.2003, observing that there were stark dissimilarities, as extracted in 'paragraph 29', which is reproduced below for convenience of reference:

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“29. A cursory reading of the relevant extracts of Letters dated 25-6-1985 and 9-10-2003 reproduced hereinabove may give an impression that the policies contained therein are similar but a closer scrutiny thereof reveals the following stark dissimilarities :-

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(i) In terms of para 5.1 of Letter dated 25.6.1985, the existing classification of the posts covered by the restructuring orders i.e. “selection” and “non-selection” was to be retained. However, for the purpose of promoting an individual railway employee there was deemed modification of the selection procedure and the promotion was to be made without holding any written test and/or viva-voce. As against this, action in terms of para 4 of Letter dated 9.10.2003 is required to be taken for making appointment on the basis of selection/non-selection/suitability/trade test and in Para 5, the requirement of D&A/Vigilance clearance has been made mandatory for effecting promotion with reference to the cut-off date.

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(ii) While the policy contained in letter dated 256-1985 did not specify any minimum period of service as a condition for promotion, Para 6 of Letter dated 9.10.2003 lays down the requirement of minimum period of services as a condition for promotion and also declares that residency period prescribed for promotion to

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various categories should not be relaxed.

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(iii) Para 9 of letter dated 25-6-1985 postulated retention of basic functions, duties and responsibilities and addition of other duties and responsibilities, whereas Para 7 of Letter dated 9-10-2003 mandates that posts being placed in the higher scales of pay should include the duties and responsibilities of greater importance because restructuring is contemplated on functional, operational and administrative considerations.

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(iv) While the policy contained in letter dated 9- 10-2003 postulates progressive phasing out of excess number of posts in a particular cadre, no such provision was made in the policy circulated vide Letter dated 25-61985.

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(v) The instructions contained in letter dated 256-1985 did not provide for direct recruitment against upgraded posts, but para 15 of Letter dated 9-10-2003 unequivocally lays down that direct recruitment percentages will not be applicable to the additional posts becoming available as a result of restructuring and the same will apply to normal vacancies after the cut-off date.

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(vi) Para 18 of Letter dated 9-10-2003 shows that the Scheme of restructuring is a self-financing and expenditure neutral proposition. There was no such

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provision in the earlier policy.

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(vii) Annexure 1 appended to Letter dated 25-61985 shows that the percentage of the upgraded posts becoming available as a result of restructuring varied from 20 to 60 in different grades, except in the cadre of Tool Checkers where the percentage varied from 10 to 40. As against this, the percentage of additional posts (as indicated in Annexures A to K appended to Letter dated 9-10-2003) becoming available as a result of restructuring of different cadres in Group C and D posts varied from 1 to 10, except in one or two cadres where it was more than 20”

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In paragraph 30, the Apex Court observed, analysing the above features/particulars, that the policies contained in the proceedings/letters dated 25.06.1985 and 09.10.2003 were substantially dissimilar. According to the Apex Court, the exercise of restructuring envisaged in the first policy was in the nature of upgradation of substantial number of posts in different cadres and then the upgraded posts were to be filled up, simply by scrutinising the service records of the employees without holding any written and/or viva voce test. In other words, there was no merit based selection. Unlike this, the restructuring exercise contemplated under the proceedings/letter dated 09.10.2003 had resulted in

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creation of additional posts in some cadres with duties and responsibilities of greater importance and the vacancies could be filled only by members/persons fulfilling the conditions of eligibility and satisfying the criteria of suitability and merit. Reference was also made to Paragraph 13 of the Board Order dated 09.10.2003 to show the demonstrative nature of difference between 'simple upgradation' and the 'instances involving promotion'. Proceeding further, the Apex Court explained the meaning of the term 'promotion' as advancement or preferment in honour, dignity, rank or grade, which not only covers the advancement to higher position or rank, but also implied advancement to higher grade. The Apex Court alerted all concerned, that in service jurisprudence, the term 'promotion' has been understood in the wider sense and it could be either to higher pay scale or to the posts, as made clear in State of

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Rajasthan Vs. Fateh Chand Soni [(1996)1 SCC 562].

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The position was demonstrated further, and it was categorically held in paragraph 36 of the verdict cited supra, that the Railway Board had not committed any illegality in stipulating that the existing instructions with regard to the policy of reservation of posts for Scheduled Castes and Scheduled Tribes will

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apply at the stage of effecting promotion against the additional posts, whereas the Tribunal had committed serious illegality by striking down 'Clause 14' of the Board Order dated 09.10.2003. Observations made by the Apex Court in 'paragraph 37' are also very much relevant, to understand the scope, which hence is reproduced below :

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“37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment

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or laying down the criteria of selection. It is also not open to the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration.”

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Sri. M.A. Shafik, the learned counsel appearing on behalf of the party respondents in W.P.(C) Nos. 7970 and 20062 of 2006, W.P.(C) No.17786 of 2007 and W.P.(C) No. 216 of 2008 and for the first respondent in W.P.(C) No. 37287 of 2007 submits that, by virtue of the declaration made by the Apex Court in the latter decision [ BSNL' case (cited supra)], the position has to be analysed in the light of the observations made therein. It is stated that, exactly same is the situation in the case of respondents herein as well, as considered, explained and asserted by the Apex Court in BSNL's case (cited supra). The learned counsel submits that, five different cadres are there, such as; “Commercial Supervisor, Chief Commercial Clerk, Head Commercial Clerk, Senior Commercial Clerk and Commercial Clerk”. The total number of posts distributed in the different cadres were '503' and that no change has been resulted even after the restructuring exercise, in the total number

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of posts, but for some adjustment effected among the different cadres/categories, which cannot called as an instance involving 'promotion'. Adequate representation has been provided at the time of initial recruitment and if at all the readjusted posts in the higher level are also to be filled up by applying the principles of reservation, it will be detrimental to the rights and interests of the others, as the Junior Scheduled Caste/Scheduled Tribe candidates will be getting a march over the Seniors. It is also stated that, there is no written test or interview and the vertical elevation in the ladder is only by way of verification of 'ACR' (Annual Confidential Reports) and that is all. This being the position, even if the principles enunciated by the Apex Court in Pushpa Rani's case (cited supra) are to be applied, the same cannot tilt the balance in any manner, and the position of the applicants is not liable to be changed. It is also pointed out that these vital aspects with reference to the posts in question and different cadres/grades and also as to whether it was an instance involving promotion or simple upgradation, was not separately considered by the Tribunal, as the above decision of the Apex Court was rendered only subsequently. With reference to the relevant paragraphs of the Apex Court

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verdict, the learned counsel further points out that the observation made by the Court is only to the effect that in some cases, which involve an exercise of 'promotion', the position may be different; but it does not mean that all restructuring exercises would automatically involve an instance of promotion, creation of posts, selection, etc.

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The submission made by Sri. T. C. Govida Swami, the learned counsel for the respondent in W.P.(C) No. 17801 of 2008 is that, O.A. No. 773 of 2015 was allowed by the Tribunal vide order dated 07.03.2008 on finding the merit therein, as observed in the last paragraph of the order under challenge. However, while allowing the O.A., it was also stipulated that the respondents shall not apply the principle of reservation to the 'restructuring vacancies', which, in turn, is under challenge at the instance of the Railways. The learned counsel for the applicant concedes that there was no case for the applicant as to non-application of Clause 14 of the Board Order dated 09.10.2003. On going through the prayers sought for in the O.A. and the relief granted, it can be seen that there is no grievance for the Department/Railways with regard to the direction given by the Tribunal in the 'first limb' of the operative

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portion of the verdict, i.e., in relation to Annexures A1 to A4 and that the grievance is only with regard to the direction given, 'not to apply' the principle of reservation in terms of Clause 14 of the Board Order dated 09.10.2003.

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Sri. Sajan Varghese K., the learned counsel appearing for respondents 2 to 6 in W.P.(C) No. 37287 of 2007 submits that in so far as the posts involved in the said case are concerned, which never involved any instance of promotion, but an instance of 'upgradation simpliciter', the verdict passed by the Apex Court in Pushpa Rani's case (cited supra) cannot cause any adverse consequence.

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The legal position has been made clear by the Apex Court in Pushpa Rani's case (cited supra) as referred to above; to the effect that the principles of reservation are to be made applicable even in the case of 'restructuring' as well, where promotion/creation of vacancies/selection and such other instances are involved. It is also held that, the Tribunal concerned ought not to have interfered with Clause 14 of the Board Order dated 09.10.2003 and set aside the same. By virtue of the verdict passed in Pushpa Rani's case (cited supra), Clause 14 of the

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Board Order dated 09.10.2003, which was set aside by the Tribunal as per the orders impugned in the concerned writ petitions, is to be brought back and it is to stand intact. As such, the challenge raised against the orders passed by the Tribunal in setting aside Clause 14 of the said Board Order in the concerned O.As. has to be sustained and the said orders have to go. It is ordered accordingly.

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With regard to W.P.(C) No. 17801 of 2008 arising from O.A. No. 773 of 2015, the prayers raised by the applicant before the Tribunal were in the following terms :

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“(a) Declare that the non-feasance on the part of the Respondents to fill ip the existing and resultant vacancies in the cadre of Station Masters of Southern Railway, Palghat Division, as indicated in Annexure A1 to A4 is clearly, arbitrary, discriminatory and unconstitutional and direct the Respondents accordingly.

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(b) Declare that the non-feasance on the part of the Respondents to maintain the cadre strength in different grades in terms of percentages in each grade as indicated in Annexure A1 to A4 duly maintaining vacancies in the lowest grade is totally arbitrary, discriminatory, contrary to law and unconstitutional and direct the Respondents accordingly.

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(c) Direct the Respondents to grant all consequential benefits of the reliefs prayed for in para 8(a) and (b) above duly granting the benefits of promotion/fitment to all eligible Station Masters of Southern Railway Palghat Division, forthwith, with all consequential benefits including arrears of pay and allowances arising there-from.

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(d) Award costs incidental to this Original Application.

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(e) Pass such other orders, or direction as deemed fit in the facts and circumstances of this case.”

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The operative portion of the order passed by the Tribunal,

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as it appears from 'paragraph 9' of the order dated 07.03.2008, is in the following terms :

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“9. In these circumstances, this O.A. has to succeed and therefore allowed. The respondents are therefore directed to fill up the existing and resultant vacancies in the cadre of Station Masters etc of the Southern Railway, Palghat Division after maintaining the cadre strengths in different grades in terms of percentage in each grade as indicated in Annexures A1 to A4. They are also refrained from applying the instructions with regard to SC/ST against the vacancies which have arisen as a result of restructuring.

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Resultantly, the respondents are liable to prepare revised panel for the posts of SMR, CYM, TI.I, SMI, Dy.CYM, TI-II, SM-II, YM, TI-II, SM-II, YM, TI-III, SM-III, AYM and ASM and promote them to the appropriate cadres and fitted against the restructured vacancies as on 1.11.2003. The aforesaid directions of this Tribunal shall be complied with, within a period of three months. There shall be no orders as to costs.”

¶149

This Court does not find any reason to interfere with the first portion, i.e., allowing of O.A. and to pursue the matter in relation to Annexures A1 to A4. Interference is required only with regard to the further direction given to the Department/Railways, not to apply the principles of reservation for cadre restructuring. There was no such prayer in the O.A. (O.A. No. 773 of 2015) to intercept 'Clause 14' of the Board Order dated 09.10.2003. The learned counsel concedes that, no such relief is raised or pressed before this Court as well. As such, the adverse entry in the 'operative portion' of the verdict passed by the Tribunal will stand deleted and the rest is sustained.

¶150

In W.P.(C) No. 7970 of 2006, which arises from O.A. No.727 of 2004 and connected cases, the prayers raised are in the following terms:

¶151

W.P.(C) Nos. 7970 of 2006 and connected cases

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: 20 :

¶153

“(i) Issue a writ of certiorari for the records of Exhibit P4 and to quash Ext. P4.

¶154

(ii) to declare that Clause 14 of Exhibit P1 is absolutely legal and constitutional.

¶155

(iii) To issue such other reliefs as this Hon'ble Court may deem fit and proper to grant in the facts and circumstances of the case.”

¶156

Grounds have been raised in support of Clause 14 of the Board Order dated 09.10.2003. Since, the law has been declared by the Supreme Court, restoring Clause 14 of the Board Order dated 09.10.2003, the Writ Petition stands allowed. The verdict passed by the Tribunal in O.A. No. 727 of 2004 and connected cases to the contrary, stands set aside.

¶157

It remains a matter to be considered, whether the factual position involved in the concerned cases does actually involve any instance of promotion/selection/creation of posts, whereby the principles of reservation in terms of Clause 14 of the Board Order dated 09.10.2003 will have to be applied or whether it is a matter of simple upgradation, as in the case dealt with by the Apex Court in BSNL's case (cited supra). This factual adjudication has not taken place before the Tribunal, as the issue projected was more with reference to the applicability of Clause 14 of the Board

¶158

W.P.(C) Nos. 7970 of 2006 and connected cases

¶159

: 21 :

¶160

Order dated 09.10.2003. Obviously, the verdict passed by the Apex Court was not available at that point of time and as a natural consequence, no suitable amendments bringing in the actual facts and figures was not possible or necessitated at that time. Accordingly, we leave it open for the party respondents, if they are aggrieved in any manner as to any different factual situation, to move the Tribunal by way of appropriate proceedings in accordance with law. If they do not come within the purview of the factual scenario described by the Apex Court in Pushpa Rani's case (cited supra), it is free for them to have it differentiated by raising appropriate pleading and producing relevant materials. Reserving such rights and liberties these writ petitions filed by the Union/Railways stand allowed. No cost.

¶161

sd/-

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P. R. RAMACHANDRA MENON, JUDGE

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sd/-

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ANIL K. NARENDRAN, JUDGE

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kmd

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/True copy/