IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 WP(C).No. 30252 of 2009(S) -------------------------- OA.633/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): RESPONDENTS 1 & 2 -------------------------------- 1. THE UNION OF INDIA, REP.BY SECRETARY TO GOVT. OF INDIA, MINISTRY OF COMMUNICATIONS, DEPARTMENT OF POSTS, NEW DELHI. 2. THE CHIEF POSTMASTER GENERAL, KERALA CIRCLE, THIRUVANANTHAPURAM. BY ADV. SRI.S.KRISHNAMOORTHY, CGC RESPONDENT(S): APPLICANTS ------------------------ 1. K.BALAKRISHNAN, RETIRED POSTMASTER, ADUR, KERALA CIRCLE, RESIDING AT ANUP NIVAS, PANNIVIZHA, ADUR, KOLLAM DISTRICT. 2. K.R.SOMANATHA PILLAI, RETIRED POSTMASTER ALUVA POST OFFICE, RESIDING AT KRISHNA VILASAM, KURUPPANKULANGARA, MAYITHARA, CHERTHALA. 3. A.S.RAMACHANDRAN, RETIRED DEPUTY POSTMASTER, ALAPPUZHA HEAD POST OFFICE, RESIDING AT KALATHIPARAMBIL, CHERTHALA. 4. P.JANARDHANAN PILLAI, RETIRED HEAD POSTMASTER (HIGHER SELECTION GRADE-I), KUNARA P.O., RESIDING AT CHANDRAVILASAM, MAVADY P.O., KOTTARAKKARA. 5. S.THANKAMANI AMMA, RETIRED HEAD POSTMASTER (HIGHER SELECTION GRADE-I) PATHANAMTHITTA. RESIDING AT PADINJARE MANNIL, MANJINIKKARA, OMALLOOR, PATHANAMTHITTA DISTRICT. 6. M.G.JANARDHANAN PILLAI, RETIRED POSTMASTER, (HIGHER SELECTION GRADE-I), TIRUVALLA, RESIDING AT MALIYACKAL HOUSE, NELLICKAMON P.O., ANGADI. 7. N.BHASKARAN PILLAI, RETIRED DEPUTY POSTMASTER, CHERTHALA P.O., RESIDING AT KRISHNA VIHAR, CHERTHALA P.O. 8. K.THAMPAN, RETIRED POSTMASTER, KAYAMKULAM P.O., RESIDING AT INCHACKAL HOUSE, MARADU P.O., ERNAKULAM DISTRICT. 9. O.M.SAMUEL, RETIRED POSTMASTER, (HIGHER SELECTION GRADE-I) RESIDING AT OTTUKALLIL HOUSE, VELLIPRAM, PATHANAMTHITTA. 10. S.VASANTHAKUMARI, RETIRED SUB POSTMASTER (HIGHER SELECTION GRADE-I), FORT P.O., THIRUVANANTHAPURAM, RESIDING AT GANESH NIVAS, PAPPANAMCODE, THIRUVANANTHAPURAM. 11. D.MANMADHAN, RETIRED MANAGER, (HIGHER SELECTION GRADE-I), POSTAL STORES DEPOT, THIRUVANANTHAPURAM, NOW RESIDING AT CHERUVALLOOR VADAKKETHIL, CHEPPAD P.O., ALAPPUZHA DISTRICT. BY // THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 3.11.2009 ALONG WITH WPC NO. 30271 OF 2009, THE COURT ON 2..12.2009 DELIVERED THE FOLLOWING: KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.P. (C) NOS. 30252 & 30271 OF 2009 --------------------------------------------- Dated this the 2nd day of December, 2009 JUDGMENT Ravikumar, J. The respondents before the Central Administrative Tribunal, Ernakulam Bench in O.A. Nos.533 of 2007 and 317 of 2008 are the petitioners. Common facts and issues are involved in these cases and, therefore, they were jointly heard and are being disposed of by a common judgment. 2. The respondents who were the applicants before the Tribunal are retired employees of the Department of Posts. There is no dispute with respect to their service particulars. Their grievance, essentially, pertains to the overlooking of their seniority in the matter of promotion to the post of Higher Selection Grade II and Higher Selection Grade I. Admittedly, the respondents were subsequently promoted to the said higher posts. Therefore, their claim actually confine to attaching retrospectivity to such promotions and for consequential benefits flowing from such retrospective promotions. W.P.(C)NOS.30252 & 20271/2009 2 3. In the case of the applicant in O.A. No.317 of 2008 who is the respondent in W.P.(C) No.30271 of 2009, he was promoted as Higher Selection Grade II in December, 1991 and later in November, 1997 as Higher Selection Grade I. The respondents in W.P.(C) No.30252 of 2009 were promoted to the post of Higher Selection Grade II on diverse dates from 1993 to December, 2001 and they were promoted as Higher Selection Grade I on diverse dates from October, 2001 to March, 2002. The specific case of the respondents/applicants is that they were overlooked in the matter of promotions to the posts of Higher Selection Grade II and Higher Selection Grade I and that their juniors were given promotion to the said posts. 4. Promotion to the higher posts of Higher Selection Grade II and I are to be made based on seniority-cum-fitness. Promotion to the post of Higher Selection Grade II is to be made from the persons in the Lower Selection Grade. A gradation list of the Lower Selection Grade officials of Kerala circle as on 1.7.1987 was published by the Government. Promotions were effected based on the seniority in the said list. As noticed hereinbefore, the grievance of the respondents is that despite their holding sufficiently higher seniority, they were overlooked in the matter of promotion without any reason or justification and their juniors have been W.P.(C)NOS.30252 & 20271/2009 3 granted promotion. 5. Earlier, one Goudiam Adiyodi approached the Tribunal, on being aggrieved by the denial of promotion as Higher Selection Grade II, by filing O.A. No.1092 of 1992. After elaborately considering his contentions regarding overlooking of his seniority in the Lower Selection Grade, the Tribunal disposed of the Original Application as per order dated 9.7.1993 directing the respondents therein to review his promotion as Higher Selection Grade II. Pursuant to the said order, the said Goudiam Adiyodi got his promotion as Higher Selection Grade II from June, 1985, the day on which his junior one Mr. Nambisan was promoted and then obtained further promotion to Higher Selection Grade I. Subsequently, two other similarly placed employees of the Department of Posts approached the Tribunal by filing O.A. No.1292 of 1996. Their prayer for a direction to consider their claims at par with their juniors with all consequential benefits in the light of the order in O.A. No.1092 of 1992 was allowed by the Tribunal. That was subsequently challenged before this Court in O.P. No.25315 of 1998. Though initially the operation of the order in O.A. No.1292 1996 was granted by this Court, that was subsequently vacated and the petitioners herein implemented the order in O.A. No.1292 of 1996. Similarly situated persons in the W.P.(C)NOS.30252 & 20271/2009 4 department, who were under the impression that in terms of the orders of the Tribunal the petitioners herein would extend similar treatment to them, approached the Tribunal. A batch of 25 Original Applications were filed and disposed of by a common order dated 28..7.2005 (O.A. No.809 of 2002 and connected cases). Still later, some other similarly situated persons approached the Tribunal by filing O.A. Nos.563 of 2003 and 564 of 2003. Those applications were also allowed in terms of the order in O.A. No.809 of 2002 and connected cases. 6. It is a fact that the Writ Petitions filed against the order of the Tribunal in O.A. No.809 of 2002 and connected cases are pending before this Court. However, the orders of the Tribunal impugned were not stayed by this Court. Consequently, the Tribunal has passed orders for implementing the directions in the concerned OAs. subject to the outcome of the Writ Petitions. Admittedly, in the case of those applicants, the dates of their promotions were advanced, rather, retrospectivity was given to their promotions subject to the outcome of the Writ Petitions pending before this Court. In short, admittedly those who approached the Tribunal earlier, raising grievances against overlooking of their seniority in the matter of promotion to the aforesaid higher posts were granted reliefs by the Tribunal and the orders so passed by the Tribunal were implemented W.P.(C)NOS.30252 & 20271/2009 5 by the petitioners herein, subject to the outcome of the Writ Petitions filed against the Original Applications. 7. The respondents herein have virtually sought a similar treatment at the hands of the petitioners herein. Their specific contention is that they are similarly situated persons to those applicants who were given favourable orders pursuant to orders of the Tribunal and they were also denied their due promotions at the right time. The petitioners herein resisted their claims and contended that the claims are highly belated besides raising the ground based on sit back theory. The Tribunal considering the fact that all similarly situated persons who have approached the Tribunal were granted reliefs and the directions in those Original Applications were implemented subject to the outcome of the Writ Petitions ordered to consider the claims of the respondents herein and to grant them promotions to the post of Higher Selection Grade II and Higher Selection Grade I with effect from the dates mentioned therein with consequential benefits. The petitioners herein are permitted as per the order in O.A. No. 317 of 2008 to put a rider in the orders of promotions that such promotions would be subject to the result of the Writ Petitions pending before this Court. In W.P.(C) No.30252 of 2009, Ext.P3 order of the Tribunal granting the benefits as aforesaid is under challenge and in W.P.(C)NOS.30252 & 20271/2009 6 W.P.(C) No.30271of 2009, the impugned order is Ext.P4. As per the said impugned orders, the petitioners were directed to quantify the benefits available to the respondents and for disbursement of such benefits. 8. Considering the admitted facts that a batch of Original Applications on the subject filed before the Tribunal were allowed and Writ Petitions filed against those orders are pending consideration of this Court and further that during the pendency of those Writ Petitions, the orders of the Tribunal were implemented by the petitioners herein by putting a rider that such implementation would be subject to the result of the Writ Petitions, we think that the impugned orders require no interference at this stage. Going by the impugned orders of the Tribunal, the direction was to grant the benefits of promotion to the respondents with effect from the dates on which their juniors were granted such promotions with a rider that such promotions would be subject to the outcome of the Writ Petitions. In the totality of the circumstances obtained in this case, the directions issued by the Tribunal in the said impugned orders cannot be said to be perverse or illegal warranting interference by this Court at this stage. The petitioners cannot be said to be aggrieved by granting promotion to the respondents conditionally as has been done in the case of similarly situated persons. It is to be noted that the respondents have W.P.(C)NOS.30252 & 20271/2009 7 already retired from service. Therefore, the petitioners can have a grievance that there is no specific direction either in Ext.P3 or in Ext.P4 that would make the concerned applicants liable for refund of the pecuniary benefits viz. arrears of pay and allowances consequent to the said orders and arrears of pension payable in case the outcome of the Writ Petitions concerning the claims of similarly placed persons is in favour of the Department. In the circumstances, we make it clear that if consequential pecuniary benefits arising out of the impugned orders are disbursed to the respondents herein, they will be liable to repay the same in case the Writ Petitions filed against the Original Applications which are pending before this Court are ordered in favour of the Department and to ensure such repayment the petitioners will be free to obtain sufficient security from the respondents before disbursing the benefits arising out of the impugned orders of the Tribunal. Subject to the above, the Writ Petitions are dismissed. (KURIAN JOSEPH) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.P.(C)NOS.30252 & 20271/2009 8 KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. W.P.(C)NOS.30252 & 30271/2009 JUDGMENT 2nd December, 2009 W.P.(C)NOS.30252 & 20271/2009 9