IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 WP(C).No. 15201 of 2009(S) -------------------------- OA.297/2008 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH .................... PETITIONERS: -------------------- 1. SMT. ANSAMMA.K. ABRAHAM, W/O. JOSE IGNATIOUS, ASSISTANT, REGIONAL PASSPORT OFFICE, COCHIN. 2. SMT. R. ASAMOLE, W/O. VIJU, ASSISTANT, REGIONAL PASSPORT OFFICE, COCHIN. 3. SHRI.L.E.D'SOUZA, S/O. LOUIS D'SOUZA, ASSISTANT, REGIONAL PASSPORT OFFICE, COCHIN. 4. SHRI.K.N. SANTHAKUMAR, S/O. NARAYANAN, ASSISTANT, REGIONAL PASSPORT OFFICE, COCHIN. 5. SMT. MARY MATHEWS, W/O. REJI.C. GEORGE, ASSISTANT, REGIONAL PASSPORT OFFICE, COCHIN. 6. SMT.N.V. SANTHA, W/O.P.P. VENU, ASSISTANT, REGIONAL PASSPORT OFFICE, COCHIN. 7. SMT. MAYA SIVAKUMAR, W/O. SIVAKUMAR MENON, ASSISTANT, REGIONAL PASSPORT OFFICE, COCHIN. 8. SHRI.C.M. SHINE, S/O.C. MADHAVAN, ASSISTANT, REGIONAL PASSPORT OFFICE, COCHIN. 9. SHRI.S. PRAKASH, S/O.M.N. SREEDHARAN NAIR, ASSISTANT, PASSPORT OFFICE, KOZHIKODE. W.P (c) No.15201/2009 -2- 10. SHRI.K. MOHANAN, S/O. V. RAMAN NAIR, ASSISTANT, PASSPORT OFFICE, KOZHIKODE. 11. SMT. N.P. KAVITHAKUMARI, W/O.K.V. BABU, ASSISTANT, PASSPORT OFFICE, KOZHIKODE. 12. SHRI.K. MADHUSOODANAN, S/O.M.K. KARUNAKARAN NAIR, ASSISTANT, PASSPORT OFFICE, MALAPPURAM. 13. SHRI.K.V. BIMAL, S/O.K.V. HARIDAS, ASSISTANT, PASSPORT OFFICE, MALAPPURAM. 14. SMT.T. MINI, W/O. MOHANDAS.T.P, ASSISTANT, PASSPORT OFFICE, THIRUVANANTHAPURAM. 15. SHRI.R. SURESH KUMAR, S/O. RAMACHANDRAN NAIR.P.R, ASSISTANT, PASSPOST OFFICE, THIRUVANANTHAPURAM. 16. SMT.P.R. BINDHUKUMARI, W/O. P. CHANDRASEKHARAN, ASSISTANT, PASSPORT OFFICE, THIRUVANANTHAPURAM. 17. SMT.R.S. MANJU, W/O.R.S. PADMAKUMAR, ASSISTANT, PASSPORT OFFICE, THIRUVANANTHAPURAM. 18. SHRI.K.C. PADMAKUMAR, S/O. R. CHELLAPPAN PILLAI, ASSISTANT, PASSPORT OFFICE, THIRUVANANTHAPURAM. 19. SMT.K.B. PREETHA, W/O. RETHEESH.B, ASSISTANT, PASSPORT OFFICE, THIRUVANANTHAPURAM. 20. SMT.A.V. MINIMOL, W/O. SIVANKUTTY, ASSISTANT, PASSPORT OFFICE, THIRUVANANTHAPURAM. 21. SHRI. ANOOP ASOKAN, S/O.K. ASOKAN, ASSISTANT, PASSPORT OFFICE, THIRUVANANTHAPURAM. 22. SRI. G. JAYASANKAR, S/O.K. GANAPATHY RAMAN, ASSISTANT, PASSPORT OFFICE, THIRUVANANTHAPURAM. W.P (c) No.15201/2009 -3- 23. SRI.T.V. CHANDRAN, S/O. VELAYUDHAN.T.K, ASSISTANT, PASSPORT OFFICE, THIRUVANANTHAPURAM. 24. SRI. R. SOMAN PILLAI, S/O. RAMAN NAIR, ASSISTANT, PASSPORT OFFICE, THIRUVANANTHAPURAM. 25. SMT. R. ANITHA KUMARI, W/O. T. BABU, ASSISTANT, PASSPORT OFFICE, THIRUVANANTHAPURAM. 26. SRI. VARGHESE DANIEL, S/O.K.V. DANIEL, ASSISTANT, PASSPORT OFFICE, THIRUVANANTHAPURAM. 27. SRI.V. SREEKUMAR, S/O.P.V. PANICKER, ASSISTANT, PASSPORT OFFICE, THIRUVANANTHAPURAM. 28. SMT. BEENAKUMARI.S, W/O.V.S. SUDARSANAN, ASSISTANT, PASSPORT OFFICE, THIRUVANANTHAPURAM. BY ADVS. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.B.UNNIKRISHNA KAIMAL RESPONDENTS: ----------------------- 1. SMT.V. ANITHA, UPPER DIVISION CLERK, PASSPORT OFFICE, TRIVANDRUM RESIDING AT ROHINI (KUNNIL) KIZHAKUMBAGAM, KAZHAKOOTTAM, TRIVANDRUM. 2. UNION OF INDIA, REPRESENTED BY SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI 3. THE CHIEF PASSPORT OFFICER AND JOINT SECRETARY (CPV), MINISTRY OF EXTERNAL AFFAIRS, NEW DELHI. 4. THE PASSPORT OFFICER, PASSPORT OFFICE, TRIVANDRUM. FOR R2 TO R4 ADV. SRI.P.PARAMESWARAN NAIR, ASST. SOLICITOR SRI.T.P.M.IBRAHIM KHAN, ASST.SOLICITOR FOR R2 TO 4 FOR R1 ADV. SRI.M.A.SHAFIK THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING ON 22/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (c) No.15201/2009 -4- APPENDIX PETITIONER'S EXHIBITS EXT.P1 – TRUE COPY OF THE ORDER OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA No.297/08 DATED 09-12-2008 EXT.P2 – TRUE COPY OF THE O.A No.297/08 DATED 10-05-2008. EXT.P3 – TRUE COPY OF THE O.M. No.28036/10/92/Estt'D' DATED 02-08-1993 ISSUED BY THE GOVT. OF INDIA, DEPARTMENT OF PERSONNEL AND TRAINING. EXT.P4 – TRUE COPY OF THE ORDER OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA No.1557/98 DATED 14-07-2003. EXT.P5 – TRUE COPY OF THE ORDER No.V.IV/441/10/2008 DATED 08-12-2009 ISSUED BY THE 2ND RESPONDENT. RESPONDENTS EXHIBITS NIL //TRUE COPY// P.A. TO JUDGE AMG A.K. BASHEER,J. & P.Q. BARKATH ALI, J. ------------------------------------- W.P (C) No. 15201 OF 2009 -------------------------------------- DATED THIS THE 22nd DAY OF MARCH, 2011 JUDGMENT Basheer, J: Petitioners who are working as Assistants in the Central Passport Organisation have filed this writ petition challenging Ext.P1 order passed by the Central Administrative Tribunal, Ernakulam Bench in OA No.297/2008. 2. The said Original Application was filed by respondent No.1 herein praying for regularisation of her service as Lower Division Clerk with effect from August 3, 1992, the date on which she entered service on daily wage basis. The Tribunal through a common order granted the relief as prayed for and allowed the Original Application partly in an earlier order passed by it. According to the petitioners, they are seniors to respondent No.1. But the W.P (C) No.15201/2009 -2- impugned order has been passed at the instance of respondent No.1 without impleading them in this case. They contend that the order passed by the Tribunal will prejudicially affect their rights. 3. It may at once be noticed that the order of the Tribunal was challenged by the Union of India before this court in W.P (C) No.5521/2009. The said writ petition was dismissed by the Division Bench of this Court on February 25, 2009. Against the above judgment, a Special Leave Petition was filed before the Apex Court. The matter has been ultimately reached before the apex court and the apex court, by order dated September 11, 2009, dismissed the Special Leave Petition as infructuous observing that nothing survives to be considered since all benefits have been paid to respondent-employee namely Ravindranath, and also since there was no dispute with regard to seniority between the parties in that case. Later, in IA No.1 and 2 in the aforementioned Special Leave Petitions the apex court passed the following order: W.P (C) No.15201/2009 -3- “Order dated September 11, 2009 disposing of SLP (C) Nos.29272/2008 and 18888- 18890/2009 shall not prejudicially affect the case of the applicants and their writ petition before the High Court, being W.P No.15201/2009, shall be decided by the High Court on its own merits after hearing the parties, in accordance with law. IA Nos.1-2 stand disposed of.” 4. It is contended by Shri. K.R.B. Kaimal, learned senior counsel who appears for the petitioners that in view of the direction issued by the apex court, the question of seniority of the petitioners will have to be considered on its merit. 5. However, it is contended by Shri. M.A. Shafik, learned counsel for respondent No.1, that the issue having been finally decided by the apex court in the special leave petition, nothing survives for consideration at this stage. He invites our attention to a judgment of their lordship of the Supreme Court in Rajeev Kumar V. Hemraj Singh Chauhan (AIR 2010 SC 1679) and submits that the petitioners are not entitled to approach this Court directly under Article 226 of the Constitution of India. The remedy W.P (C) No.15201/2009 -4- as far as the petitioners are concerned lies before the Tribunal only. In Rajeev Kumar (supra), it has been laid down by the apex court after referring to Chandra Kumar V. Union of India (AIR 1997 SC 1125) that aggrieved an employee has to necessarily approach the Tribunal constituted for the purpose. A party without choosing to do so cannot approach the High Court as though it is the Court of first instance, by overlooking the jurisdiction of the Tribunal. Their lordships alerted in this context that the Central Administrative Tribunal is also vested with the power of review under Rule 17 of the Central Administrative Tribunal (Procedure) Rules, 1987 and therefore it cannot be said that the appellants in that case were without any remedy. 6. It is contended by the learned counsel for respondent No.1 that the law having been laid down in unambiguous terms in Rajeev Kumar (supra) and also several other earlier decisions, the present writ petition cannot be entertained at all. W.P (C) No.15201/2009 -5- 7. Having heard learned counsel for the parties and having regard to the facts and circumstances, we dispose of the writ petition making it clear that it will be open to the petitioners to approach the Tribunal and raise all contentions available to them in support of their claim for seniority over respondent No.1 in appropriate proceedings. 8. We make it clear that we have not considered the merit or tenability of any of the contentions raised by the parties. However, respondent No.1 shall be entitled to draw all service benefits like arrears arising from notional fixation of pay. Writ petition is disposed of as above. Sd/- A.K. BASHEER, JUDGE. Sd/- P.Q. BARKATH ALI, JUDGE. AMG True copy P.A to Judge