- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1236 OF 2004 ... G.S.Khushwaha & Ors. ...Petitioners v/s. Union of India & ors. ...Respondents ... Mr.Ramesh Ramamurthy for the Petitioners. Mr.S.G.Dhawan with Mr.T.J.Pandian for the Respondent No.1. ... CORAM: D.K.DESHMUKH & J.P.DEVADHAR, JJ. DATED: 11TH AUGUST, 2008 P.C.: 1. By this petition the Petitioners challenge the order passed by the Central Administrative Tribunal, Mumbai dated 2nd July, 2003 in O.A.No.873 of 1999. By that order the Tribunal has rejected the O.A. filed by the Petitioners. 2. The relevant facts are that the Petitioners were recruited as High Skilled Technical Mistries with the Respondent No.2 between 1985 to 1987. Because their - 2 - services were not being regularised and their services were terminated, it appears that Petitions under Article 32 were filed before the Supreme Court. That petition was disposed by order dated 3-5-1989. The order of the Supreme Court reads as under:- "Learned counsel appearing on behalf of the respondents agrees that the petitioners will be given an opportunity to appear before the Railway Recruitment Board for their selection to posts in accordance with their suitability and qualification for such post. In such selection there will be no question of age bar. So long as such an opportunity is not given, the respondents are restrained to terminate the services of the petitioners. The Writ Petitions are disposed of as above. There will be no order as to costs." Thus, the Supreme Court directed that the Petitioners should be allowed to appear before the Railway Recruitment Board and in case they are selected they should be appointed on regular basis. It was further directed that till that happens their services should not be terminated. It appears that thereafter the - 3 - Petitioners services were not immediately regularised. They were also not permitted to appeare before the Railway Selection Board. They had to approach Central Administrative Tribunal twice. Ultimately, Petitioners appeared before the Board in 1997. On their selection they were appointed on regular basis. But they were given seniority from the date of their regular appointment. Therefore, they filed O.A. No.873 of 1999 before the Tribunal claiming that for the purpose of seniority service rendered by them before their regular appointment should also be taken into consideration. That prayer is rejected by the Tribunal holding that the grant of such seniority would be contrary to the Rule 303 of the Rules Regulating Seniority of Non-Gazetted Railway Servants. 3. We have heard the learned counsel for both sides. We pointed out to the learned Counsel that no fault can be found with the order of the tribunal in declining to grant relief to the Petitioners, because grant of such relief is contrary to Rule 303 of the Rules Regulating Seniority of Non-Gazetted Railway Servants. The learned Counsel, therefore, expressed his willingness to challenge the validity of Rule 303 - 4 - before the Tribunal, so that the Tribunal can read down the Rule and pass appropriate order thereon. According to the learned Counsel despite specific directions issued by the Supreme Court in 1989, by taking technical objections from time to time the Petitioners were not permitted to appear before the Selection Board till 1997 and therefore, according to the learned Counsel there is no justification for excluding the period that was taken by the Railway in implementing the Supreme Court’s order. Prima facie we find substance in the submission of the learned counsel. However, in our opinion, unless the validity of the Rule is challenged, the Tribunal will not be in a position to read down the Rule. Therefore, in view of the willingness of the Petitioners and the submissions noted above, in our opinion, the following order would meet the ends of justice. O R D E R (i) The order impugned in the petition is set aside. (ii) Original Application No.873 of 1999 is remitted back to the Central Administrative Tribunal for - 5 - denovo consideration and decision in accordance with law. (iii) In case the Petitioners apply for amendment in their O.A., the Tribunal shall consider that application in accordance with law. (iv) Rule made absolute accordingly. No order as to costs. (D.K.DESHMUKH, J.) (J.P.DEVADHAR, J.)