IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 WP(C).No. 34627 of 2007(S) -------------------------- OA.639/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH .................... PETITIONER(S): ---------------------- 1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN POST, CHENNAI-3. 2. THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD. 3. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD. BY ADV. SRI.T.P.M.IBRAHIM KHAN,SR.SC, RAILWAYS RESPONDENT(S): ------------------------ P.BALARAJAN, RETIRED TECHNICIAN GRADE-II, OFFICE OF THE SECTION ENGINEER(BRIDGES), SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD,(RESIDING AT PEEDIATTUKUNNU, KADALUNDI P.O., KOZHIKODE DISTRICT. ADV. SRI.T.C.GOVINDA SWAMY FOR R.1 SMT.D.HEERA SMT.R.R.REJITHA FOR R.1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/02/2010, ALONG WITH WPC NO. 34689 OF 2007, THE COURT ON 17/05/2010 DELIVERED THE FOLLOWING: WP(C).No. 34627 of 2007(S) APPENDIX PETITIONERS' EXHIBITS:- Ext.P1: Copy of the Original Application No.639/2006 along with its Annexures filed by the respondent/applicant before the Central Administrative Tribunal, Ernakulam Bench. Ext.P2: Copy of the Reply Statement filed by the Petitioners/Respondent in Original Application No.639/2006 before the Central Administrative Tribunal, Ernakulam Bench. Ext.P3: Copy of the Order dated 25.4.2007 passed by the learned Central Administrative Tribunal, Ernakulam Bench in Ext.P1 Original Application No.639/2005. RESPONDENT'S EXHIBITS:- NIL. ( true copy ) PA TO JUDGE. kvs/- C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = WP(C).Nos.34627 & 34689 of 2007-S. = = = = = = = = = = = = = = = = = Dated this the 17th day of May, 2010. J U D G M E N T Gopinathan, J. Assailing Ext.P3 common order dated 25.4.2007 in OA.No.639/2006 and OA.No.697/2005 on the file of the Central Administrative Tribunal, Ernakulam Bench, these writ petitions were filed by the common respondents before the Tribunal. The respondent in WP(C).No.34627/2007 is the applicant in OA.No.639/2006. The respondent in the other writ petition is the applicant in OA.No.697/2005. Since facts and disputes are almost identical and the orders assailed is common, these writ petitions are disposed by this common judgment. 2. The respondents in both cases entered the Railway service under the 3rd petitioner as casual labourers. They were subsequently given temporary status WP(C).Nos.34627 & 34689 of 2007-S. -: 2 :- and thereafter regularised in Group-D. They were then transferred to Bridge Organization and promoted as a Khalasi Helpers. While so, the respondent in WP(C).No.34627/07 was promoted as Technician Gr.II on 12.2.2004 by Annexure-A4 order produced before the Tribunal. Both respondents were trade tested and found qualified to be promoted as Technician Gr.I. Though vacancies existed and their juniors promoted, they were not given due promotion. Their request for promotion in par with their juniors fell in deaf ears. The respondents in WP(C).No.34627/07 was superannuated on 30.6.2006. With this pleadings, he sought for the following reliefs in his application OA.No.639/06 before the Tribunal. (a) Declare that the non-feasance on the part of the respondents to grant the benefit of promotion as Technician Gr.III and Technician Gr.II with effect from 1.1.1984 and as Technician Gr.I with effect from 1.1.1990 on par with his junior Sri.P.Chandrasekharan is arbitrary, discriminatory and unconstitutional. (b) Direct the respondents to grant the applicant the benefit of promotion as Technician Gr.III WP(C).Nos.34627 & 34689 of 2007-S. -: 3 :- with effect from 1.1.1984 as Technician Gr.II with effect from 1.1.1984 and as Technician Gr.I with effect from 1.1.1990 and direct further to grant all the consequential benefits arising therefrom, including arrears thereof and also revision of his pension and other retirement benefits. 3. The respondent in WP(C).No.34689/2007 is still working as a Technician Gr.III. Annexure-A2 produced before the Tribunal is the copy of the last representation requesting for promotion. It was rejected by Annexure-A3 order dated 14.12.2004. With this pleadings, he sought the following reliefs in his application OA.No.697/05 before the Tribunal. (i) Call for the records leading to the issue of Annexure-A3 and quash the same. (ii) Declare that the applicant is entitled to be granted the benefits of promotion as Riveter (Technician Gr.III) in the then scale of Rs.260- 400/-, and Riveter (Technician Gr.II) in the scale of Rs.1200-1800/- with effect from 1.1.1984, and as Riveter (Technician Gr.I) in the scale of Rs.1320-2040/- (Rs.4500/7000) with effect from 1.1.1990 with all consequential benefits emanating there from on par with Sri.Dharmalingam referred to in Annexure-A3. WP(C).Nos.34627 & 34689 of 2007-S. -: 4 :- 4. The writ petitioners, though didn't dispute the fact that the juniors of the respondents were given promotion, contended that there was no vacancy and that the applications before the Tribunal are barred by limitation and estoppel. Annexure-A2 produced in O.A.No.639/06 before the Tribunal is the seniority list dated 15.3.2001. In the event the respondent had got any grievance they should have approached the Tribunal within a reasonable time thereafter. But it was not done in time. Hence there is delay and laches. In OA.No.697/05, it was also contended that Sri.Asokan, who was junior to the respondent was given promotion in pursuance of the order in OA.No.576/2001 and the respondent is not entitled to the reliefs sought for on ground of similarity. They prayed for dismissal of both petitions. 5. The Tribunal rejected all the contentions raised and both petitions were allowed. Following reliefs were granted by Ext.P3 order (para.10). “In view of the above, the OAs succeed. It is WP(C).Nos.34627 & 34689 of 2007-S. -: 5 :- declared that the applicants in the two OAs, should be deemed to have been promoted to the following posts from the dates as indicated as under:- Applicant in OA 639/06: Bridge Khalasi Helper (SS) w.e.f. 13.11.1982 Riveter – SK Gr.III w.e.f. 1.1.1984 Riveter HS Gr.II w.e.f. 1.1.1984 notionally Riveter HS Gr.I w.e.f. 1.1.1990 subject to their being found suitable for the post of HS Grade I, subject to DPC clearance, notional. Terminal benefits and pension to be refixed accordingly. Applicant in OA 697/05: Bridge Khalasi Helper (SS) w.e.f. 13.11.1982 Riveter – SK Gr.III w.e.f. 1.1.1984 Riveter HS Gr.II w.e.f. 1.1.1984 notional Riveter HS Gr.I w.e.f. 1.1.1990 subject to their being found suitable for the post of HS Grade I, subject to DPC clearance, notional. WP(C).Nos.34627 & 34689 of 2007-S. -: 6 :- Though the applicants had served in the grade of HS II actually from 11.7.06 and 12.2.2004 respectively, since their promotion, on being found suitable to the grade of HS Grade I being effective w.e.f. 1.1.1990, all the promotions shall be notional and no arrears of pay and allowances shall be payable. In the case of Applicant in OA.697/05, however, who is still in service, his pay in the scale of Riveter Gr.I shall be actual from the date he enshoulders higher responsibility as HS Gr.I.” It is this order now impugned. 6. We heard either side. We do not find any circumstance warranting an interference in the orders impugned because it is not disputed that the respondents are trade tested and found to be qualified to be promoted as Technician Gr.I and that their juniors were granted promotion. The prayer of the respondents is only to grant them promotion in par with their juniors. We find that the Tribunal by the order impugned had granted relief only to that extent. It was granted notionally and subject to suitability for promotion and DPC clearance. Arrears of pay and allowances were declined WP(C).Nos.34627 & 34689 of 2007-S. -: 7 :- for the reason that they had not shouldered higher responsibility. The factual situation being this, the writ petitioners are no way aggrieved. 7. Rule 228 of the Indian Railway Establishment Manual, Chapter II is the answer to the objection of estoppel and limitation raised by the writ petitioners. Rule 228 is extracted hereunder for easy reference: "228. Erroneous Promotions: (1) Sometimes due to administrative errors, staff are over-looked for promotion to higher grades could either be on account of wrong assignment of relative seniority of the eligible staff or full facts not being place before the compete authority at the time of ordering promotion or some other reasons:- (i) Where a person has not been promoted at all because of administrative error, and (ii) Where a person has been promoted but not on the date from which he would have been promoted but for the administrative error. Each such case should be dealt with its merits. The staff who have lost promotion on account of administrative error should on promotion be assigned correct seniority vis-a-vis their juniors already promoted, irrespective of the date of WP(C).Nos.34627 & 34689 of 2007-S. -: 8 :- promotion. Pay in the higher grade on promotion may be fixed proforma at the proper time. The enhanced pay may be allowed from the date of actual promotion. No arrears on this account shall be payable as he did not actually shoulder the duties and responsibilities of the higher posts." The above rule would show that the rule making authorities had anticipated administrative errors over-looking staff for promotion to higher grades. The rule stipulates that each such error shall be dealt with its merits and the staff who have lost promotion on account of administrative error should be given promotion and assign correct seniority vis-a-vis their juniors already promoted, irrespective of date of promotion. It would further stipulates that fixing of pay in higher grade, of course, subject to payment of arrears only from the date of actually shouldering the duties and responsibilities of the higher posts. In the light of the above rule, the writ petitioners were not at all justified in advancing plea of estoppel, delay or limitation as against the claim of promotion by the respondents in par with their juniors. Promoting the WP(C).Nos.34627 & 34689 of 2007-S. -: 9 :- juniors before the respondents are promoted is only an administrative error rectifiable in accordance with Rule 228. The prayer of the respondents is to that effect and the order impugned is only to that extent. We do not find any error or illegality to be rectified in exercise of the powers conferred under Article 226 or 227 of the Constitution. Writ Petitioners are not justified to rush to this Court assailing Ext.P3 order which is perfectly in accordance with Rule 228 quoted above. 8. In OA.No.697/95 the respondent had taken a contention that his junior Sri.Asokan was given promotion as per order in OA.No.576/01 as modified by this Court in WP(C). No.2404/2005. According to the petitioners, the respondent is not entitled to get promotion with a plea that he is similarly placed. It is pertinent to note that the respondent was not seeking relief in the light of the order in OA.No.576/01 as modified in WP(C).No.2404/2005 but, he is only pointing out that Sri.Asokan who is junior to him was given promotion. There is no case for the writ petitioners that promotion WP(C).Nos.34627 & 34689 of 2007-S. -: 10 :- granted to Sri.Asokan, who is junior to the respondent is contrary to any of the rule or that Sri.Asokan was not entitled to be promoted, but for the order of the Tribunal as modified by the judgment of this Court. What is discernible is that since due promotion was denied to Sri.Asokan, he moved the Tribunal earlier and obtained the relief. Though, the writ petitioners assailed the same for no good reason, they were unsuccessful. It is not at all justified to deny such relief to the respondent who is junior to Sri.Asokan for the reason that there was delay on his side to approach the Tribunal. It is pertinent to note that the respondents are employed in the lowest strata and it is not possible and affordable for them to approach the Tribunal or this Court every now and then assailing administrative errors. It is the bounden duty of those who are in the helm of affairs to issue promotion orders in appropriate time in accordance with rules in strict compliance of seniority. The pleadings in the application before the Tribunal as well as the reply statement would show WP(C).Nos.34627 & 34689 of 2007-S. -: 11 :- that there were a number of applications before the Tribunal either challenging the seniority or seeking promotion. It only indicates repeated administrative laches. Overlooking seniority, promotions were granted to some of the juniors of the respondents. Such action on the side of the 3rd respondent is against the right to equality and equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State guaranteed under Article 14 and 16(1) of the Constitution of India. 9. In the above factual background, the plea of estoppel, delay, bar by limitation etc., raised by the writ petitioners totally lacks bonafides. When fundamental rights are at stake and aggrieved person approaching the statutory Tribunal for remedies, such proceedings are not liable to be defeated in the manner stated by the petitioners. 10. The writ petitioners had also taken a contention that the respondents were denied promotion for want of vacancy. In the case of respondent in WP(C).No.34627/07, the question WP(C).Nos.34627 & 34689 of 2007-S. -: 12 :- of vacancy does not arise at all because he had already retired from service. The Tribunal granted the relief only to the fixation of pension and other terminal benefits. 11. The writ petitioners, though had taken a contention that there was no vacancy, didn't disclose as to what was the sanctioned strength in the respective cadre and as to what was the then existing strength. Whether there was vacancy or not is a matter within the knowledge of the writ petitioners. Since the writ petitioners didn't disclose the sanctioned strength and the existing strength, we are constrained to turn down the defence regarding nonavailability of vacancy. There is also no material on record to come to a conclusion as to whether there arose any vacancy subsequent to the filing of the application before the Tribunal. In the event, there was no vacancy on the date of application before the Tribunal and vacancy arose subsequent to the filing of the application, the respondents are entitled to be accommodated in the subsequent arise vacancies. Defence of no vacancy also lacks WP(C).Nos.34627 & 34689 of 2007-S. -: 13 :- bonafides and deserves no consideration. 12. The writ petitions are devoid of merit. Accordingly, the writ petitions are dismissed with no order as to costs. The writ petitioners are granted two months time from this day for complying with the order impugned. C.N.RAMACHANDRAN NAIR (Judge) P.S.GOPINATHAN (Judge) kvs/-