A. Karunakaran Kutty v Union of India & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 21ST DAY OF DECEMBER 2016/30TH AGRAHAYANA, 1938** ## **WP(C).No. 31459 of 2008 (S)** **---------------------------(AGAINST THE ORDER DATED 18/01/2008 IN OA.NO. 392/2005 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH)** **---------------** ## **PETITIONER :** **----------------------** **A.KARUNAKARAN KUTTY, AGED 49 YEARS, S/O.SHRI.V.APPU, AC COACH ATTENDANT, OFFICE OF THE SENIOR SECTION ENGINEER, ELECTRICAL SOUTHERN RAILWAY, MANGALORE, PERMANENT RESIDENT OF TRINCO COLONY, HEMAMBIKA NAGAR, PALAKKAD.** **BY ADVS.SRI.T.C.GOVINDA SWAMY SMT.D.HEERA SMT.R.R.REJITHA SRI.G.SHYAM RAJ** **RESPONDENT(S):** **----------------------------** **1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER,** **SOUTHERN RAILWAY HEADQUARTERS OFFICE, PARK TOWN.P.O, CHENNAI-3.** **2. THE CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY HEADQUARTERS OFFICE, PARK TOWN.P.O, CHENNAI-3.** **3. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT.** **4. SHRI.P.GANGADHARAN, AC MECHANIC GRADE.III SOUTHERN RAILWAY/COIMBATORE JUNCTION,** **COIMBATORE.** **5. SHRI.K.RAJENDRAN, AC MECHANIC GRADE.III, SOUTHERN RAILWAY/COIMBATORE JUNCTION,** **COIMBATORE.** **2/-** **-2-** **WP(C).NO.31459/2008** **6. SHRI.SREE HARI, AC COACH ATTENDANT, SOUTHERN RAILWAY/COIMBATORE JUNCTION,** **COIMBATORE.** **7. SHRI.KRISHNA DAS, AC COACH ATTENDANT, SOUTHERN RAILWAY/MANGALORE.** **8. SHRI.C.M.BASHEER JAN, AC COACH ATTENDANT, SOUTHERN RAILWAY/COIMBATORE JUNCTION,** **COIMBATORE.** **9. SHRI.K.J.VINCENT, AC COACH ATTENDANT, SOUTHERN RAILWAY/PALGHAT JUNCTION, PALGHAT.** **R1 TO R3 BY SMT.SUMATHY DANDAPANI,SENIOR ADVOCATE ADV. SRI.N.B.SUNIL NATH,SC, RAILWAYS R5 TO R7,R9 BY ADV. SRI.T.A.RAJAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-11-2016, ALONG WITH WPC.NO. 26694/2010, THE COURT ON 21-12-2016 DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.31459/2008** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE ORDER OF THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, IN OA.NO.392/05 DATED 18 JANUARY 2008.** - **P2 COPY OF THE OA.NO.392/05 DATED 29 MAY 2005 WITH ITS ANNEXURES FILED BY THE PETITIONER BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** - **P3 COPY OF THE REPLY STATEMENT DATED 24 JAN 2006 FILED BY OFFICIAL RESPONDENTS IN OA.NO.392/05.** - **P4 COPY OF THE REPLY STATEMENT DATED 06 MARCH 2006 FILED BY RESPONDENTS 5 TO 9 IN OA.NO.392/05.** - **P5 COPY OF THE REJOINDER DATED 14/2/2007 FILED BY THE PETITIONER IN OA.NO.392/05.** - **P6 COPY OF THE ORDER DATED 24/4/2001 IN OA.NO.370/99.** ## **RESPONDENT'S EXHIBITS:** - **R3(A) COPY OF THE LETTER DATED 20/01/1997 ISSUED BY THE DIVISIONAL PERSONNEL OFFICER, PALGHAT.** ## **/TRUE COPY/** ## **P.S.TO JUDGE** ## **sts** ## **P.R. RAMACHANDRA MENON & P. SOMARAJAN, JJ.** .............................................................................. **W.P(C)No.31459 OF 2008 & 26694 OF 2010** ......................................................................... **Dated this the 21[st] day of December, 2016** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** The challenge in the above writ petitions is against the orders passed by the CAT, Ernakulam in two different O.As on different dates.. The issue involved is not directly connected with each other. But the sequence of events and the proceedings to some or other extent are common. The basic issue is with regard to the seniority in the feeder category and the right to get promoted to the next higher level in the 'Air Conditioning wing' of the Electrical Department of the Southern Railways. Since the matters were heard together and some cross reference may be necessary, for convenience, these matters are being finalised together. 2. O.A. 392 of 2005 (involved in W.P.(C) 31459 OF 2008) was finalised by passing Ext.P1 order by the CAT, Ernakulam **2** ## **W.P(C)No.31459 OF 2008 & 26694 OF 2010** whereby interference was declined and the O.A. was dismissed as devoid of any merit, which is sought to be intercepted in the said writ petition. In W.P.(C)No.26694 of 2010, the challenge is against Ext.P11 order passed by the Tribunal in O.A. 301 of 2008, whereby the authorities of the Railway have been directed to re-consider the claim of the applicant to have promotions, reckoning his seniority with effect from 26.10.1988, in the light of promotion given to the juniors, especially one Mr. Rajendran, and to pass appropriate orders “ **allowing his claim** to the extent applicable to his promotion with effect from the date of promotion given to his juniors.” ## **W.P.(C)31459 OF 2008:** 3. The petitioner and the respondents 4 to 9 in the above writ petition were casual labourers engaged in the Electrical Department of the Southern Railways. The petitioner had commenced his service from 01.08.1981. The Electrical Department consists of two different wings : (1) Power/Train Lighting Wing and (2) A.C. Wing. Normally, casual labourers **W.P(C)No.31459 OF 2008 & 26694 OF 2010** **3** were being engaged in the Power and Lighting wing without any qualification; but, for engagement in the 'A.C. Wing', some minimum standards were being insisted, such as S.S.L.C and pass in suitability test. 4. It is stated that the petitioner had completed the S.S.L.C. and had cleared the suitability test as well, who was given temporary status with effect from 30.11.1981. He was absorbed in the A.C. Wing as 'A.C. Khalasi' on a regular basis as per Annexure A2 order dated 25.02.1991, making it clear that the seniority would be reckoned with effect from '01.03.1990'. Later, on 30.10.1994, the petitioner was promoted as A.C. Coach attendant. In 1997 , a provisional seniority list of A.C. Khalasis was published [Annexure R5(a)] wherein the petitioner was shown at Sl. No.14; whereas the respondents 4 to 9 were placed above the petitioner at Sl.Nos.7 to 12. Admittedly, the petitioner had not challenged the said seniority list. But it is said that he had filed a representation for re-fixing the seniority, which however did not turn to be fruitful. In the meanwhile, ## **W.P(C)No.31459 OF 2008 & 26694 OF 2010** **4** one Mr. Jayakumar had filed O.A.No.38/96, challenging the seniority of the above respondents , who were absorbed as regular A.C.Khalasis only with effect from 22.04.1991 . The said O.A. was allowed by the Tribunal, setting aside the orders under challenge and granting seniority to Jayakumar over the party respondents. On being aggrieved of the said verdict, it was sought to be challenged by the Railways by filing OP.1028 of 1998 before this Court. Simultaneously, the party respondents in O.A 38 of 1996 had also challenged the verdict of the CAT by way of O.P.4278 of 1998. Both the matters were heard by a Division Bench of this Court and as per Annexure A12 judgment dated 10.02.2000, it was held that, at the time of ordering regularisation of the party respondents (as per the order dated 25.02.1991), their seniority was not fixed as stated in the 'Note' thereunder; which subsequently came to be fixed based on the relaxation/exemption given by the competent authority from possessing the qualification/requirements as a one time measure, thus fixing their seniority with effect from '26.10.1988'. This **5** ## **W.P(C)No.31459 OF 2008 & 26694 OF 2010** being the position, it was held that the Tribunal had gone wrong in setting aside the orders of exemption passed by the Chief Personnel Officer granting exemption to the party respondents and accordingly, the order passed by the CAT in OA. 38 of 1996 was set aside and the Original Petitions were allowed. It is seen from the pleadings and proceedings, that the petitioner, joining hands with two other persons had approached the Tribunal by fling O.A. 370 of 1999 for granting promotion in preference to the promotion of the party respondents therein, stating that the party respondents were his juniors. 5. After considering the rival pleadings and hearing both the sides, interference was declined and the O.A. was dismissed as per Ext.P5(8) dated 24.04.2001, holding that the said applicants had not chosen to challenge the seniority list and as such, they could not have pursued the remedy for granting promotion in preference to the party respondents who were already 'shown as seniors'. The matter has become final as the said verdict was not sought to be challenged by filing any **W.P(C)No.31459 OF 2008 & 26694 OF 2010** **6** proceedings in accordance with law. 6. The Railways issued a fresh seniority list by way of Annexure A5 on 17.12.1999, wherein the petitioner was placed at Sl.No.8, whereas the respondents 4 to 9 were placed at Sl.No.1 to 6. The petitioner filed Annexure A6 objection to restore the seniority and since there was no response, another representation was filed as Annexure A7. Without taking any action on Annexure A6/A7, the Railways issued Annexure A8 'alert notice' for participating in the Trade Test to the persons next in the line, so as to fill up the vacancies of AC Mechanic Gr.III, which is based on the position in Annexure A5 seniority list. The respondents 4 and 5 were included in the said list; whereas the petitioner was omitted and hence he filed Annexure A9 representation. O.A. 430 of 2004 was filed seeking for consideration of Annexure A9 representation. The O.A. was disposed of as per Annexure A10 order dated 16.07.2004, directing the respondents concerned to consider and pass appropriate orders on Annexure A9. This led to Annexure A11 **W.P(C)No.31459 OF 2008 & 26694 OF 2010** **7** order, whereby Annexure A9 representation was rejected as devoid of any merit , which made the petitioner to approach the Tribunal by challenging Annexure A5, A8 and A11. 7. The claim was resisted by the Department by filing Ext. P3 reply statement. The party respondents contested the matter by filing Ext.P4 reply statement. Ext.P5 rejoinder was filed by the petitioner/applicant. After hearing both the sides , the Tribunal held that the contention of the petitioner that he was regularised as 'AC Khalasi' as per order dated 25.02.1991, with effect from 01.03.1990, whereas the party respondents were regularisied only with effect from 25.02.1991, as per the order passed on the same date, is not correct, for the reason that at the time of passing the order bearing No.J/E/10/91 dated 25.02.1991 (passed on the same date as of Annexure A2 in the case of the petitioner)the seniority of the party respondents was not finalised and it was stated under the 'Note' that the seniority (in the AC side) will be reckoned on obtaining clarification from the Chief Personnel Officer, Madras. Subsequently, as borne out by the **8** ## **W.P(C)No.31459 OF 2008 & 26694 OF 2010** pleadings, the party respondents and such other persons concerned who were not having the requisite educational qualification of 'SSLC Pass' were granted the benefit of exemption and their seniority was re-fixed w.e.f. 26.10.1988, i.e., the date on which they were regularly absorbed as Group D employees. 8. The Tribunal observed that the petitioner/applicant himself had filed O.A. 370 of 1999, which was dismissed as per Ext.P5(8) order dated 24.04.2001 and as such, it was no more open for the applicant to have challenged the seniority of the party respondents any further, that too, without challenging the earlier seniority list . The challenge raised in **O.A.392 of 2005** was against Annexure A5 seniority list alone, which was of the year 1999 and that the position of the party respondents and that of the petitioner/applicant as contained therein was virtually a continuation/carry forward of the position as it existed in the earlier list of 1997, which was never under challenge. The Tribunal further held that, even the challenge raised against Annexure A5 seniority list itself was after 'five years' of issuance **9** ## **W.P(C)No.31459 OF 2008 & 26694 OF 2010** of the same, since the O.A. had been filed only in the year 2005 and hence it was time barred. 9. The seniority of the party respondents in O.A. 38 of 1996 was virtually upheld by a Division Bench of this Court as per Annexure A12 verdict passed in OP. 1028 of 1998 and O.P.4278 of 1998. This being the position, the petitioner/applicant was held as not justified in raising indirect challenge in the present O.A. to disturb the seniority of the party respondents, which was settled years back; more so when the challenge raised against the promotion of the party respondents in O.A. 370 of 1999, based on the unchallenged seniority was repelled and that O.A. was dismissed. The consideration of merit as contained in paragraph 10 of Ext.P1 order (relevant portion) is as follows: _“ On merit also, we do not find any infirmity in fixing the seniority position of the applicant as well as respondents 4 to 9. Respondents 4 to 9 were initially appointed as Casual Labourers in the Electrical Department of Southern Railway on 18.11.1981, 12.1.1981, 6.12.1980, 21.11.1980 and 12.1.1981 respectively and they were granted temporary status in the year 1981. They were transferred and posted to the Air_ **W.P(C)No.31459 OF 2008 & 26694 OF 2010** **10** _Condition Wing on 3.4.1986 and they joined the said wing on 11.4.1986. On the other hand, the applicant was initially appointed as Casual Labourer on 1.8.1991 and he was granted temporary status on 30.11.1981 and transferred to A.C.Wing on 29.8.1989_ _**.** Thus the respondents are senior to the applicant in all respects, viz., initial appointment, attainment of temporary status and deployment of AC Wing. The applicant was absorbed as AC Khalasi by Annexure A-2 order dated 25.02.1991 and assigned seniority in the AC side with effect from 1.3.1990 i.e. date of his empanelment as Electrical Khalasi. The respondents 4 to 9 were regularly absorbed as AC Khalasis by Annexure A-13 order dated 25.2.1991 and they were assigned seniority with effect from 26.10.1988. The respondents have adopted the uniform policy in both the cases by granting seniority from the respective dates of their empanelment as Electrical Khalasis. Moreover, the Hon'ble High Court of Kerala in the judgment in O.P.1028 & 4278 of 1998 dated 10.2.2000(supra) has clearly held that the Chief Personnel Officer has got power to pass relaxation orders in consultation with higher authorities. We, therefore, do not find any illegality or irregularity in fixing the seniority of the applicant as well as respondents 4 to 9 on the said basis.”_ ## **W.P(C)No.31459 OF 2008 & 26694 OF 2010** **11** It was accordingly that the O.A. was held as devoid of any merit ,/ in turn dismissing the same as per Ext.P1 order. 10. The learned counsel for the petitioner submits that seniority can be reckoned only from the date of absorption in the regular service. Reliance is sought to be placed on the verdict passed by the Supreme Court in _**T. Thangavelu and others vs. Union of India and others**_ [ **2009 (16)SCC 302].** Reliance is also placed on para 302 of the Railway Establishment Manual as extracted in para 8 of the aforesaid decision. After referring to the paragraphs 1512 and 1515 of the Railway Establishment Manual, as to the right of a substitute to have his seniority reckoned, it was held that the substitute has no right of absorption until he is screened and absorbed by the appropriate authority. It was further held that, for the purpose of seniority, the period from the date of permanent absorption alone should be counted and not the period from the date when a substitute acquired temporary status. The dictum laid down, intercepting the verdict passed by the Tribunal to the contrary, is virtually **12** ## **W.P(C)No.31459 OF 2008 & 26694 OF 2010** that seniority could be reckoned only from the date of regularisation. The said submission was made by the petitioner/applicant with reference to the date of regularisation as 'A.C. Khalasi' given to the petitioner with effect from 01.03.1990, as given in Annexure A2, in contrast with the date of regularisation effected in the case of party respondents as per Annexure A13 dated 25.02.1991. But as mentioned already, seniority of party respondents and such others concerned, on the date of issuance of the order of regularisation in 25.02.1991, was not finalised as given in the 'Note' given thereunder (subject to clarification to be obtained from the CPO, Madras) and based on the orders passed by the competent authority, relaxation was given from possessing the prescribed qualification to get regularised. It was accordingly that, as a 'one time measure', regularisation was given with effect from 26.10.1988, the date of appointment as Group D Staff. Since the service of the party respondents has been regularised with effect from '26.10.1988', they were liable to be treated as seniors and hence there is **13** ## **W.P(C)No.31459 OF 2008 & 26694 OF 2010** nothing wrong in this regard. 11. With regard to the laches and the delay in challenging the seniority list, the learned counsel for the petitioner/applicant sought to rely on the decision in **G.O.Doval and others vs. Chief Secretary , Government of U.P** .[ **1984 (4) SCC 329]** In the said case, there was a delay of nearly '12 years' . But, based on the facts and figures, it was held by the Apex Court that the provisional list was still to be finalised in the case and that the petitioner was filing repeated representations eliciting no relief. It was in the said circumstance, that relief was extended to the petitioner, who was belonging to the lower echelons of service. In the instant case, the seniority list was published in the year 1997 and the party respondents were shown above the petitioner/applicant. Still, he did not raise any objection or challenge the seniority list. On the other hand, he approached the Tribunal by filing O.A. 370 of 1999, challenging the promotion given to the named respondents therein, who were stated as juniors (but shown above the petitioner /applicant in **W.P(C)No.31459 OF 2008 & 26694 OF 2010** **14** the seniority list), which plea was considered and repelled as not sustainable, for not having challenged the seniority list (vide Ext.P5(8)judgment), which has become final . It was much later that Annexure A5 seniority list was published, again showing the party respondents above the petitioner/applicant. Still, he did not challenge the seniority list, when he filed O.A.No. 430 of 2004 praying for consideration of Annexure A9 representation, which was ordered as per Annexure A10, in turn leading to Annexure A11 order of rejection. It was only at this point of time, that a challenge was raised against Annexure A5 seniority list of 1999 along with the subsequent proceedings; despite the fact that the earlier seniority position had already become final by virtue of dismissal of O.A. 370 of 1999. As such, the above verdict passed by the Apex Court does not come to the rescue of the petitioner in any manner; more so when there is no case for the petitioner that the seniority list was not finalised. 12. In the above circumstance, we find that there is absolutely no merit in the challenge raised against Ext.P1 order **15** ## **W.P(C)No.31459 OF 2008 & 26694 OF 2010** passed by the Tribunal and we hold that the same is perfectly within the four walls of law. ## **W.P(C )No.26694 of 2010:** 13. As mentioned already, correctness and sustainability of Ext.P11 verdict passed by the Tribunal in **O.A. 301 of 2008** giving a positive declaration as to the eligibility of the applicant and to have promoted with effect from the date of promotion given to his juniors, particularly Sri Rajendran, is under challenge in W.P(C )26694 of 2010 filed by the Railways. The said O.A. was filed with the following prayers: _“(a) Declare that the applicant is entitled to be promoted to the post of Technician Grade III (AC) and Technician Grade II (AC) from the dates of promotion of his junior Sri. Rajendran with all consequential benefits;_ _(b) Direct the respondents to promote the applicant to the posts of Technician Grade III(AC) and Technician Grade II (AC) from the date of promotion of his junior Sri K. Rajendran and also direct to grant all the consequential benefits including the difference in salary._ _© Award costs of and incidental to this application._ ## **W.P(C)No.31459 OF 2008 & 26694 OF 2010** **16** _(d) Grant such other relief, which this Honourable Tribunal may deem fit and proper in the circumstances of the case.”_ 14. The claim was resisted by the Department by filing Ext.P5 reply statement, in response to which, Ext.P6 rejoinder was filed by the respondent/applicant. The pleadings and proceedings would reveal that the respondent herein moulded the case in the O.A. filed by him, mainly contending that the person by name K. Rajendran with 'Staff No.J/E.1220' was only much junior to him, the applicant having been assigned 'Staff No.J/E.1215' and as such, the applicant was shown as senior in Annexures-A3, A4 and A5, though he was shown below the person by name Rajendran in Annexures A1 and A2 proceedings. Since the disputed seniority of the applicant is over the aforesaid person by name Rajendran (not a party either to the O.A. or to the writ petition ) the particulars as to the initial recruitment and date of regularisation of both are necessary to be looked into. 15. It is seen from the pleadings and proceedings that the **W.P(C)No.31459 OF 2008 & 26694 OF 2010** **17** applicant who had not cleared the SSLC ( unlike Rajendran who had cleared the SSLC) was having only '8[th] standard pass' and was engaged as casual labourer for the first time on '08.12.1980'; whereas Mr. Rajendran commenced his service as a casual labourer on **18.11.1980** , i.e much prior to the respondent applicant. Temporary status was given to the applicant only on 08.04.1981; whereas it was conferred upon Rajendran on a prior date i.e. **18.03.1981** . However, based on the aggregate number of days of service as on 30.09.1988, the applicant having completed 2831 days and Rajendran having completed 2816 days, the staff Number came to be allotted as J/E.1215 in the case of applicant and as J/E 1220 in the case of Rajendran. Both joined 'AC wing' on 11.04.1986 and were regularised as Electrical Khalasis on 07.07.1989. The suitability test for regular appointment as 'AC Khalasi' was cleared by Rajendran on **11.09.1987** ; whereas it was cleared by the applicant only much later on 12.02.1991. Based on the clearance of suitability test, Rajendran was appointed as a **W.P(C)No.31459 OF 2008 & 26694 OF 2010** **18** regular AC Khalasi on 26.10.1988 and the applicant came to be regularised only on 25.02.1991. However, based on the relaxed standards, seniority of the applicant came to be reckoned w.e.f. 26.10.1988 itself i.e. from the same date reckoned in the case of Rajendran. 16. It is relevant to note that, for further promotion also, it was necessary to have cleared the Trade Test with reference to the concerned post. Mr. Rajendran was appointed as Adhoc A.C. Maintainer Gr.III on 06.10.1990 and he cleared the Trade Test on **12.03.1991;** whereas it was cleared by the respondent applicant only on 11.05.1999. Regular Gr.III status was conferred upon Rajendran on **01.11.1991,** which came to be given to the applicant only on 11.06.1999, based on the clearance of the Trade test. In respect of the promotion to the next higher level, ie. Gr.II, Trade Test was cleared by Rajendran on **07.04.1992** and he was appointed as AC Coach Maintainer Gr.II, by order dated 16.06.1992 with effect from 19.03.1992, which was not satisfied by the applicant at that point of time. **W.P(C)No.31459 OF 2008 & 26694 OF 2010** **19** 17. However, as per Annexure.A8 order passed by the Tribunal in O.A.409/2007 (dated 23.07.2007), the claim of the applicant was directed to be considered. The applicant was let known as per Annexure-A9 that the matter could be considered only subject to finalisation of O.A. 392 of 2005, wherein some related issues were pending. In the said circumstance, it was observed that O.A. 301/2008 was premature, as decision in terms of the direction in O.A. 409 of 2007 was still to be passed and accordingly, O.A.301 of 2008 was dismissed without considering the merits at that time. 18. The applicant preferred Ext.P8 Review Application pointing out that O.A. 392 of 2005 was already finalised by the Tribunal declining interference and that despite filing a representation to implement the directions in O.A. 409 of 2007, it was still to be acted upon by the Department. The said Review Application was allowed by the Tribunal as per the order dated 02.02.2010 and the O.A. was heard afresh. This time, the Tribunal held that, having given the benefit of relaxation of **20** ## **W.P(C)No.31459 OF 2008 & 26694 OF 2010** possessing the qualification and requirements for being regularised as a 'AC Khalasi' by the competent authority and having given seniority in the cadre of 'AC Khalasi' w.e.f. '26.10.1988', the applicant was also eligible to be considered for further promotion with reference to the promotion given to the juniors and particularly to the person by name Rajendran. It was accordingly, that a declaration was given and respondents were directed to re-consider the case as per Ext.P11 order dated 07.06.2010 to pass appropriate orders **allowing his claim** to the extent applicable to his promotion w.e.f. the date of promotion of his juniors, which in turn is under challenge. 19. The contention that the eligibility to have seniority of the respondent applicant over the juniors including Rajendran stands settled as per Annexure A6 verdict passed by this Court in O.P.1028 of 1998, (intercepting the verdict passed by the Tribunal in O.A. 38 of 1996) is not correct. In the said case, i.e. O.A.No.38 of 1996, the Tribunal had taken a decision in favour of the applicant by name Jayakumar , to be conferred with seniority **21** ## **W.P(C)No.31459 OF 2008 & 26694 OF 2010** and such other benefits over the party respondents, who included the respondent applicant as well along with person by name Rajendran. The said verdict was set aside by this Court as per the judgment dated 10.02.2000 **,** holding that the seniority in the case of the party respondents before the Tribunal had already been reckoned w.e.f. 26.10.1988 pursuant to relaxation of the qualification ordered by the competent authority and as such, it was never to be unsettled. But the said verdict is not a ruling to hold that the inter-se- seniority between the applicant and Rajendran (both of whom were party respondents in O.A. 38 of 1996) was settled. 20. A comparative data as to the factual aspects in respect of the applicant and Rajendran will be worthwhile to be noted. Annexure A1 dated 10.03.1983 granting temporary status to casual labourers shows that the person by name K. Rajendran was placed at **Sl.No.25,** having given such status on **18.03.1981** , whereas the respondent applicant was given such status only much later on 08.04.1981 and was placed at **22** ## **W.P(C)No.31459 OF 2008 & 26694 OF 2010** **Sl.No.38.** Later, as per Annexure A2 office order dated 03.04.1986, both Mr. Rajendran and the respondent applicant were transferred on adhoc basis for Maintenance of AC 2 Tier Sleeper Coach service 131/132 pending posting of regular AC Khalasis, wherein Mr. K. Rajendran was placed at **Sl.No.8,** whereas the respondent applicant was placed at Sl.No.15. There was no dispute with regard to granting of temporary status on an earlier date to the person by name Rajendran. Annexure A1 was never challenged by the respondent/applicant. However, when a screening was conducted and a memorandum was issued on 01.11.1988 vide Annexure A3 (pursuant to screening of substitutes/casual labourers of Electrical Department as Electrical Khalasis for the vacancies upto 31.12.1988), persons with maximum number of aggregate service as on 30.09.1988 were shown in the descending order, wherein alone was the applicant placed at Sl.No.6, showing Mr. Rajendran at Sl.No.11 and they were accordingly absorbed as per Annexure A4 dated 07.07.1989 as Electrical Khalasis, listing the applicant at Sl.No.8 and **23** ## **W.P(C)No.31459 OF 2008 & 26694 OF 2010** Rajendran at Sl.No.12. 21. It is true that under 'Note I', it is mentioned that persons at Sl.Nos. 1 to 27 of para-I are in the order of seniority. But thereafter, they were shown at Sl.No.2 and 4 respectively in Annexure A5 dated 25.02.1991 as well, by virtue of which they were absorbed as regular AC Khalasis; however clearly stating under the 'Note' that the _seniority of the above employees on the AC side will be reckoned on obtaining clarification from the CPO._ Based on the pass in Trade Test in respect of the next higher post in the hierarchy, promotion was given to the person by name Rajendran as Technical Gr.III and thereafter, on clearing the further Trade Test for Gr.II, to the said Trade as well. The applicant had admittedly cleared the Trade Test only as per Annexure R8 dated 11.05.1999, wherein it is stated that person at Sl.No.2 and 3 (3 is the applicant Mr. Surendran) will be subject to the outcome of O.A.370 of 1999. It was accordingly that the respondent applicant was given promotion as per Annexure R9 dated 08.06.1999. Further promotion given to the **W.P(C)No.31459 OF 2008 & 26694 OF 2010** **24** person by name Rajendran, based on clearing the Trade Test earlier, was never challenged by the respondent applicant then and there, who came up for the first time before the Tribunal only as per O.A. 409/07 to have the representation considered by the Railways. It is settled law that filing of repeated representations cannot stretch the cause of action and settled seniority cannot be unsettled. We find support from the ruling rendered by the Apex Court in **Bhoop Singh vs. Union of India [AIR 1992 SC 1414]** . 22. It is relevant to note that the applicant (in W.P.(C) 26694 of 2010) had not impleaded the person by name Rajendran as a party to the O.A., while claiming that the applicant was senior to Mr. Rajendran. The case put forth before the Tribunal was that the applicant was not challenging the promotion given to Rajendran, his junior, but was only claiming a similar benefit , i.e. promotion with effect from the date of promotion of his junior Mr. Rajendran. If the applicant was actually senior to Rajendran and if the promotion given to **W.P(C)No.31459 OF 2008 & 26694 OF 2010** **25** Rajendran in preference to the petitioner was wrong, it ought to have been challenged then and there by including Rajendran in the party array, which admittedly has not been done. As such, the only question is whether the applicant can claim benefit of promotion with effect from the date of promotion given to Rajendran. Here, it is to be noted that promotion was given to Rajendran to next higher level, i.e. Gr.III and Gr.II based on clearance in the concerned Trade Test. On the date of promotion given to Rajendran, the applicant admittedly had not cleared the Trade Test, which was cleared by him only much later, as disclosed from Ext.P7. Since there is no case for the applicant that he was not permitted to participate or clear the Trade test only because of lapse on the part of the department or that there was no contribution in clearing the test belatedly on the part of the applicant, he cannot aspire to be promoted from the date on which Mr. Rajendran was promoted, based on successful clearance in the Trade Test, which was not satisfied by the applicant as on that date. There is no merit in this regard **26** ## **W.P(C)No.31459 OF 2008 & 26694 OF 2010** as well. 23. Viewed in the above background, this Court is of the view that the declaration made by the Tribunal in Ext.P11 that the applicant is entitled to have the benefit /relief as claimed for to have promotions w.e.f. the date of his juniors does not appear to be correct or sustainable. As such, the direction given to have the issue re-considered is only in respect of a stale cause of action, having barred by limitation and also not based on merits. We find that Ext.P11 is not liable to be sustained and accordingly we intercept the same. In the light of the above discussions, W.P.(C)31459 of 2008 (arising from O.A.392 of 2005)is dismissed and W.P.(C) 26694 of 2010 (arising from O.A. 301 of 2008) filed by the Railways stands allowed. Parties shall bear their cost. ## **P.R. RAMACHANDRA MENON, JUDGE** ## **P. SOMARAJAN, JUDGE** lk