IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 WP(C).No. 2949 of 2008(S) ------------------------- OA.291/2006 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: --------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF RAILWAYS, NEW DELHI. 2. SOUTHERN RAILWAY, REPRESENTED BY GENERAL MANAGER, CHENNAI. 3. FINANCIAL ADVISOR & CHIEF ACCOUNTS OFFICER, (FA & CAO), SOUTHERN RAILWAY, CHENNAI. 4. DIVISIONAL FINANCE MANAGER, SOUTHERN RAILWAY, THYCAUD, TRIVANDRUM. BY ADV. SRI.N.B.SUNIL NATH RESPONDENTS: --------------- 1. THRESIAMMA JOHN, D/O.LUCA THOMAS, AGED 42 YEARS, KARAKKATT HOUSE, PRA 18/A, PADAYANI ROAD, VATTIYOORKAVU, TRIVANDRUM - 13. 2. L.JULIET, ACCOUNTS CLERK, DIVISIONAL FINANCE MANAGER'S OFFICE, SOUTHERN RAILWAY, THYCAUD, TRIVANDRUM. WP(C) 2949/2008 :2: 3. AJITHA T.NAIR, JR.ACCOUNTS ASSISTANT, DIVISIONAL FINANCE MANAGERS OFFICE, SOUTHERN RAILWAY, THYCAUD, TRIVANDRUM. 4. BINDU S KUMAR, JR.ACCOUNTS ASSISTANT, DIVISIONAL FINANCE MANAGERS OFFICE, SOUTHERN RAILWAY, THYCAUD, TRIVANDRUM. R1 BY ADVS. M/S. R.S.KALKURA, M.S.KALESH, HARISH GOPINATH, V.VINAY MENON & M.AJAY (IRUMPANAM) R3 & R4 BY ADVOCATE SRI.S.JAMES VINCENT R2 BY ADVS. M/S. MARTIN G.THOTTAN & M.P.VARKEY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) 2949/2008 APPPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE FINAL ORDER DATED 25.7.2007 IN O.A. 291/2006 ON THE FILE OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P2 TRUE COPY OF THE OA 291/2006 ALONG WITH ALL ITS ANNEXURE FILED BY THE 1ST RESPONDENT. EXT.P3 SERIES TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN O.A. 291/2006 BEFORE THE CAT, ERNAKULAM. EXT.P4 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 3 AND 4 HEREIN (RESPONDENTS 6 AND 7 IN THE O.A.) EXT.P5 TRUE COPY OF THE REJOINDER FILED BY THE 1ST RESPONDENT. EXT.P6 TRUE COPY OF THE OA 680/06 FILED BY THE 5TH RESPONDENT TOGETHER WITH ANOTHER BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE LETTER NO. 282/X/2/VOL.. V. DATED 15.6.1963 ISSUED BY THE DY. DIRECTOR, PAY COMMISSION, RAILWAY BOARD, NEW DELHI, ADDRESSED TO THE GENERAL MANAGER OF THE ALL INDIAN RAILWAYS. EXT.R1(b) TRUE COPY OF THE LETTER DATED 13.4.1999 ISSUED BY THE FA & CAO. EXT.R1(c) TRUE COPY OF THE ORDER DATED 7.3.2003 REVISING THE PAY SCALE. EXT.R1(d) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT DATED 5.11.2001. WP(C) 2949/2008 :2: EXT.R1(e) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT DATED 17.3.2003. EXT.R1(f) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT DATED 17.3.2003. EXT.R1(g) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT DATED 25.10.2005. EXT.R1(h) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT DATED 25.3.2004. EXT.R1(i) TRUE COPY OF THE LETTER NO. AC/ADMN./217-1/2005 DATED 27.4.2005. EXTR1(j) TRUE COPY OF THE LETTER NO. AC/224-6/PROM. ADMN. 2005 DATED 21.6.2005. EXT.R1(k) TRUE COPY OF THE LETTER NO. 2005/AC-11/20 24 DATED 26.6.2006. EXT.R1(l) TRUE COPY OF THE LETTER NO. 282/HQA/ADMN/CHANGE OF CATEGORY/VII DATED 4.8.2006. EXT.R1(m) TRUE COPY OF THE REPLY AFFIDAVIT FILED BY THE PETITIONERS 1 TO 4 IN OA NO. 291/06. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = == = = = = W.P.(C) NO. 2949 OF 2008 = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 6TH DAY OF JANUARY, 2010. J U D G M E N T Raman, J. Respondents 1 to 4 in O.A. 291/2006 on the file of the Central Administrative Tribunal Ernakulam Bench are the writ petitioners herein. Respondents 1 to 4 respectively are the applicant and Respondents 5 to 7 in the said O.A. 2. The first respondent herein approached the Central Administrative Tribunal seeking a direction to the writ petitioners to allow change of category from Senior Typist to Junior Accounts Assistant forthwith in the next arising vacancy. According to her, the party respondents were not qualified and yet they were granted change of categories. On the other hand, the request for change of category in the case of the applicant was not considered. The Tribunal, by the order impugned in this writ petition, allowed the application in the following terms: "...... It is declared that the applicant is entitled to have the cadre changed from 1997 when she had qualified WP(C) 2949/2008 2 in the Appendix II Examination and she would have her seniority in the feeder grade to J.A.A. counted from that day. However, she would be entitled to be promoted to the grade of J.A.A. in the next available 80% promotion quota for Appendix II passed. At that time, her promotion would be deemed to have been effected from the day her junior got promoted in the 80% quota and pay shall be fixed taking into account notional increments from the date the junior was promoted. In the grade of J.A.A. her seniority in the combined seniority of JAAs from the two streams shall be fixed in accordance with the relevant rules. Save that the seniority of the applicant in the grade of JAA shall be subject to outcome of the pending case in the Apex Court as spelt out in order dated 4.8.2006, none of the other restrictions relating to the date of induction in the cadre of Accountants or pay scale shall be applied to the case of the applicant. In other words, the cadre change shall be effected keeping the clock back to 1997- 98 when the applicant qualified in Appendix II exam and made application for change of cadre. This drill shall be performed within a period of six months from the date of communication of this order." 3. Aggrieved by the said direction, the Union of India and others, who are the respondents against whom specific directions are issued as aforesaid, have filed this writ petition. 4. The facts in brief are as follows: We shall refer to the status of the parties as before the Tribunal, for the purpose of easy reference and understanding. The applicant joined the service of the Respondent as a junior typist in 1988. While so, she was promoted as senior typist in 1991 . WP(C) 2949/2008 3 In 1992, she was transferred to Madras and seniority was reduced and posted to the rank of junior typist. In 1995, the applicant, on her request, was transferred to Thiruvananthapuram and promoted as senior typist in 1996. While so, she passed the Appendix - II A test in December, 1997. Typist/Senior Typist come under one cadre. There is another cadre called ' 'Clerical Cadre of the Accounts Department' and provision exists for lateral movement. The Accounts cadre post of Junior Accounts Assistant is inter alia tenable by persons who qualified in the Appendix-II A examination. Subsequent to the passing of the Appendix-IIA examination, the applicant applied for a category change to that of Junior Accounts Assistant. The scale of pay attached to JAA is rs. 4000-6000, which is the same as thaht of Senior Typist. In response to the request of the applicant, she was informed by the respondent that her application for category change will be considered as and when vacancy arises. According to her, notwithstanding arising of vacancies, she was not given due category change as sought for; but such category change were given to the 6th and 7th respondents in 1998 and in 2001 respectively. According to the applicant, they were not qualified and at any rate, without considering her claim, they could not have been given category change overlooking her claim. WP(C) 2949/2008 4 5. From March, 2003, the scale of pay of JAA underwent an upward revision whereby the existing pay scale of Rs. 4000 - 6000 was revised to Rs. 4500-7000; but such revision of pay scale was not given to the post of Senior Typist, though according to the applicant, that is a comparable post to that of JAA. The applicant being a Senior Typist, in such circumstances, was not given the upward revision of scale of pay as is applicable to JAA. though several representations were made requesting for change of category, they were not duly considered. when a vacancy was about to arise in 2006 January, then also the case of the applicant was not considered which prompted her to file the application before the Tribunal for appropriate reliefs including change of category from Senior Typist to Junior Account Assistant and for consequential benefits with retrospective effect from 1998, the date on which a vacancy is said to have arisen. 6. The party respondents as well as the official respondents filed their reply statement inter alia disputing the contentions of the applicant. Petitioners herein, as official respondents, in the reply statement, even contended that a category change could be effected firstly to a clerical cadre and then only to a post of JAA. All the same, the later correspondence and orders issued would show that the respondents themselves have conceded WP(C) 2949/2008 5 that the applicant is entitled to have a category change directly from the post of Senior typist to that of JAA and as such this question is irrelevant for consideration in this case. 7. It is not in dispute that the applicant had acquired the requisite qualification by passing the examination for category change to that of JAA. But according to the petitioners herein, in so far as no vacancy arose to accommodate the applicant (the first respondent herein), such claim could not be considered. It is also contended that the applicant was insisting for such a category change to JAA in a vacancy arising at Thiruvananthapuram. However, pending consideration of the O.A., a vacancy arose at Thiruvananthapuram to the post of JAA. The writ petitioners, in such circumstances, submits that the applicant can be accommodated in the vacancy which arose at Thiruvananthapuram on 31.12.2006 to the post of JAA. Though it is submitted that an offer was made to the applicant, subsequent to the order passed by the Central Administrative Tribunal, she did not join the post, the learned counsel Sri. Kalkura appearing on behalf of the applicant submitted that the offer was made not strictly in terms of the order passed by the Tribunal, giving her all retrospective benefits as ordered in the order. However, it is pointed that the applicant accepted the post by WP(C) 2949/2008 6 her letter dated 15.1.2009 subject to the claim raised by her and upheld by the order in the O.A. In other words, without prejudice to her right as crystallized by the order impugned in this writ petition, she accepted the offer. 8. In reply thereto, by letter dated 13.2.2009, a copy of which was made available to us by the learned counsel appearing on behalf of the applicant, the authorities informed that since her acceptance was subject to certain conditions, the same is not acceptable to the administration. Therefore, the contention that the offer made was not accepted is factually incorrect and the applicant/first respondent informed in writing that she is accepting the post subject to the right as crystallized in the order especially since when the very order passed is in her favour and is impugned in the writ petition and pending consideration. Therefore, in these circumstances, it is untenable on the part of the petitioners to contend that in spite of the offer made, the applicant/first respondent did not join the post and we reject the said contention. 9. The Tribunal, however, did not consider the question as to whether the applicant is entitled to be accommodated in an earlier vacancy when the 6th or 7th respondent was appointed and whether the applicant has got any WP(C) 2949/2008 7 preferential claim over them. It may be true that the applicant/first respondent is senior to the 6th and 7th respondent in the feeder category. But the applicant was transferred to Thiruvananthapuram Division on her specific request and therefore, she has to forgo her seniority in the Division from where she was transferred and on joining at Thiruvananthapuram she would be the junior-most in the category to which she is appointed. There is no reference to these factual aspects in the order passed by the Tribunal while directing retrospective promotion, though on a notional basis. While the applicant is entitled for a category change, it has to be considered as against the claim, if any, made by the seniors in that category at Thiruvananthapuram Division. 10. In the circumstances, we find that the first respondent is entitled to be accommodated in the vacancy which arose on 31.12.2006 since there was no other seniors to her as on that day, the 3rd and 4th respondents having been appointed earlier to that date to the post of Junior Accounts Assistant. Therefore, we declare that the first respondent is entitled to be promoted to the post of Junior Accounts Assistant with effect from 1.1.2007 with all attendant benefits. The order impugned is set aside to the extent the Tribunal has given retrospective effect to the promotion in the case of the WP(C) 2949/2008 8 first respondent from 1997. The writ petition is disposed of as above. Formal orders in this regard will be passed expeditiously. However, first respondent will be permitted to joint duty pending formal issuance of orders so that she can discharge her higher responsibilities even without waiting for any formal orders in this regard. P.R. RAMAN, JUDGE. P.S. GOPINATHAN, JUDGE. KNC/-