K.K. BALAN v. UNION OF INDIA and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 23RD DAY OF MARCH 2017/2ND CHAITHRA, 1939 OP (CAT).No. 82 of 2017 (Z) ---------------------------- AGAINST THE ORDER IN OA 795/2013 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONER(S): ------------- K.K.BALAN TECHNICIAN GRADE I, OFFICE OF THE SENIOR SECTION ENGINEER, ELECTRICAL (ERMCD), ERNAKULAM, RESIDING AT KULANCHERY HOUSE, NEAR POST OFFICE, SHORNUR-679121 ## BY ADV. SRI.M.POLY MATHAI RESPONDENT(S): -------------- 1. UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, PART TOWN.P.O, CHENNAI, PIN-111422 ## 2. SENIOR DIVISIONAL PERSONNEL OFFICER SOUTHERN RAILWAY DIVISION, TRIVANDRUM, PIN-695014 3. P.A.SANKARAN, ELECTRICAL TECHNICIAN GRADE II, SSE, ELECTRICAL OFFICE, SOUTHERN RAILWAY, ERNAKULAM PIN-682016 R1-R2 BY ADV. SRI.B.RAJESH, SC, RAILWAYS BY SRI.C.S.DIAS,SC, RAILWAYS R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 23-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 82 of 2017 (Z) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS - ----------------------- - P1 : TRUE COPY OF THE OA 795/13 IN CENTRAL ADMINISTRATIVE TRIBUNAL AS AMENDED WITH THE ANNEXURE. - P2:A TRUE COPY OF THE REPLY DATED 11/12/13 BY THE RESPONDENTS. - P3:A TRUE COPY OF THE RE-JOINDER FILED BY THE APPLICATNT DATED 22/2/2014. - P4:TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE RESPONDENTS 1 AND 2 DATED 23/9/2016. - P5:TRUE COPY OF THE ADDITIONAL REPLY AFFIDAVIT FILED BY THE APPLICANT DATED 17/10/2016. - P6:A TRUE COPY OF ORDER IN O.A.795/2013 ON THE FILE OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DATED 30.11.2016. ## RESPONDENT(S)' EXHIBITS:NIL ----------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. --------------------------------------------------O.P.(CAT)No.82 of 2017** ## **--------------------------------------------------Dated this the 23[rd] day of March, 2017** ## **JUDGMENT** ## **Anil K. Narendran, J.** This original petition filed under Article 227 of the Constitution of India arises out of Ext.P6 order of the Central Administrative Tribunal, Ernakulam Bench in O.A.No.795 of 2013. The petitioner/applicant filed the said O.A. seeking an order directing the first and second respondents to grant him promotion to the next higher grade with effect from the date on which his immediate junior was promoted to that post. The petitioner/applicant has also sought for a declaration that he is senior to the third respondent in the post of Electrical Technician and Electrical Technician Grade II; and a further declaration that he is entitled for promotion to the post of Senior Technician/Train Lighting with all consequential benefits, with effect from the date on which Georgekutty Chacko, Devassia, etc. were promoted by Annexure A6 order. 2. The reliefs sought for in the O.A. were opposed by the first and second respondents by filing Ext.P2 reply. The applicant filed Ext.P3 rejoinder, which was followed by Ext.P4 additional reply statement filed by the first and second respondents and Ext.P5 O.P.(CAT).82/2017 2 additional rejoinder filed by the applicant. After considering the rival contentions, the Tribunal by Ext.P6 order dismissed the O.A. Feeling aggrieved by Ext.P6 order of the Tribunal, the applicant is before this Court in this original petition. 3. Going by the averments in the O.A., the applicant entered service as Mazdoor on 1.11.1980 and he was given temporary status on 1.1.1984. Alleging delay on empanelment, the applicant approached the Tribunal in O.A.No.1297 of 1996. Pursuant to Annexure A2 order of the Tribunal, the respondents took steps to empanel the applicant and he was thus empanelled for absorption in the post of Electrical Khalasi from 27.3.1997. His name was included in the seniority list for further promotion and accordingly, he was given promotion as Electrical Technician Grade III/Train Lighting on 14.8.2007 and further promotion as Technician Grade II/Train Lighting on 4.3.2011. According to the applicant, persons who joined service later as Casual Labourer are occupying higher posts. Highlighting the said grievance, the applicant submitted Annexure A1 representation dated 15.2.2013 before the second respondent. The applicant and the third respondent were promoted as Technicians by Annexure A3 order dated 18.5.2007. In the said order, the third respondent was shown senior to the applicant. By the said order, the applicant was posted to Marshalling O.P.(CAT).82/2017 3 Yard, Ernakulam. He submitted representation for a posting at Ernakulam South, which was acceded to in Annexure A4 order dated 14.8.2007 and he joined Ernakulam South in the promoted post on 15.8.2007. On the other hand, the third respondent was working at Thrissur, while he was promoted as Technician and Posted to Ernakulam by Annexure A4 order. He submitted representation for retention at Thrissur. The said request was acceded to in October, 2007 and he joined the promoted post at Thrissur only in October, 2007. Therefore, according to the applicant, he became senior to the third respondent. However, the first and second respondents are still treating him as junior to the third respondent. The applicant was promoted to the post of Technician Grade I by Annexure A5 order dated 6.6.2014, with effect from 1.11.2013. Later, by Annexure A6 order dated 9.6.2015, certain persons were promoted to the post of Senior Technician from the post of Technician Grade I. According to the applicant, the persons so promoted are juniors to him, inasmuch as they joined service long after the applicant joined the Railway. In such circumstances, the applicant approached the Tribunal in O.A.No.795 of 2013 seeking various reliefs. 4. In the reply statement, the first and second respondents contended that, the applicant did not make any representation against O.P.(CAT).82/2017 4 fixation of seniority in any of the grades subsequent to his empanelment, even though many seniority lists were published during the long period. The applicant, who joined Railway as Casual Labourer, was given temporary status from 1.1.1984. At the time of grant of temporary status, the applicant was fit only in C-1 medical classification. Hence he was not considered for empanelment for the safety post of Khalasi in the Electrical Department, for which medical classification is B-1. Therefore, he was allowed to continue as temporary status attained Casual Labourer. The applicant filed O.A.No.1297 of 1996 seeking empanelment. He was then sent for re-medical examination and found fit in B-1 medical classification. Accordingly, he was empaneled for regular absorption in the post Electrical Khalasi from 24.2.1997, and his name was included in the seniority list for further promotion. Later, he was promoted as Technician Grade III/Train Lighting and Technician Grade II/Train Lighting from 14.8.2007 and 4.3.2011 respectively. After re-engagement as Casual Labourer, the applicant was promoted to higher grade based on his seniority initially fixed in the empanelled list. 5. In the reply statement, the first and second respondents contended further that, the applicant had no case at any time earlier that his seniority was not fixed correctly. Apart from one's seniority, O.P.(CAT).82/2017 5 several factors such as participation, passing out in selection process and application of communal reservation, etc., play a crucial role in promotions. Persons who joined later than the applicant are persons also belonging to SC/ST. Third respondent and the applicant were promoted as Technician Grade III (Electrical) as per order dated 18.5.2007. But they joined on different dates at different Headquarters. Even then they will retain their original panel seniority. Hence the applicant cannot claim seniority above the third respondent, simply for the reason that his promotion was effected earlier than the promotion of the third respondent. As evident from Annexure A3, the third respondent is at Sl.No.23 and the applicant is at Sl.No.24 in the panel for promotion as Technician Grade III. Seniority in such cases of promotion is governed by the instructions in Para.315 of the Indian Railway Establishment Manual Vol.I. (for brevity 'IREM Vol.1'). 6. In the rejoinder, the applicant contended that, one K.J.Mathai, who joined along with him, was empaneled prior to his empanelment, though found fit only in C-1 medical classification. Therefore, according to the applicant, he was denied empanelment for nearly 13 years after temporary status for no valid reasons. Since the applicant belongs to SC community he is entitled for promotion, as done in the case of persons like C.K.Jayan, K.K.Parameswaran, etc. O.P.(CAT).82/2017 6 Since the applicant is not seeking any relief against such persons, but claims only parity with them, they are not made parties to the O.A. The applicant was promoted to the post of Technician Grade II by order dated 11.2.2007 along with P.S.Sivadasan and C.G.Ravindran, who are his seniors, who belong to SC community. Subsequently by order dated 16.5.2013, the said Sivadasan and Ravindran were promoted as Technician Grade I along with one V.T George. The reservation for promotion is 22.5% to SC/ST community, out of which 15% for SC quota and 7.5% for ST quota. In violation of the said quota, one V.R.Devaki, who belongs to ST community, was given promotion as Technician Grade I by order dated 22.10.2013. 7. The first and second respondents filed additional reply statement contending that, going by the judgment of the Apex Court in **R.K.Sabharwal v. State of Punjab [(1995) 2 SCC 745]** , after promotion of two ST candidates, the next post will go to general quota. Though V.R.Devaki belongs to ST community, being the senior most candidate eligible for promotion, she was considered for promotion as Technician Grade I against general quota. Hence the applicant has no tenable claim for that post. 8. To the additional reply statement filed by the first and second respondents, the applicant filed a reply affidavit contending that O.P.(CAT).82/2017 7 C.K.Jayan, K.K.Parameswaran, E.M.Razak, V.T.George and V.R.Devaki who enjoyed reservation benefits are far juniors to him. As per Annexure A7 provisional seniority list, such persons were given promotion as Technician Grade I with effect from 7.3.2011, 8.3.2011, 7.12.2011, 17.5.2013 and 23.10.2013. Though the applicant is senior to them, he is denied promotion only because his empanellment was delayed. Similarly, Georgekutty Chacko, T.M.Devassya, K.Rajan, G.K.Vijayakumar, Enose James and Pradeepkumar who were promoted as Senior Technician/Train Lighting joined the service of Railways only after the applicant attained temporary status in 1984. The applicant is not seeking any relief against such persons and he claims only promotion with effect from the date on which his juniors were given promotion, with future benefits. 9. We heard the arguments of Sri.Poly Mathai, learned counsel for the petitioner/applicant and Sri.B.Rajesh, learned Standing Counsel for Southern Railway, representing the first and second respondents. 10. In the O.A., the applicant mainly sought for a declaration that he is senior to the third respondent in the post of Electrical Technician and Electrical Technician Grade II. The pleadings and materials on record would show that, the applicant and the third O.P.(CAT).82/2017 8 respondent were promoted as Technician Grade III (Electrical) as per Annexure A3 order dated 18.5.2007. As evident from Annexure A3, the third respondent is at Sl.No.23 and the applicant is at Sl.No.24 in the panel for promotion as Technician Grade III. Both the applicant and the third respondent are SC candidates. However, they joined on different dates at different Headquarters. Seniority in such cases of promotion is governed by the instructions in Para.315 of IREM Vol.1, which provides that, subject to what is stated in Paras.316, 317 and 320, where the passing of a departmental examination or trade test has been prescribed as a condition precedent to the promotion to a particular non-selection post, the relative seniority of the railway servants passing the examination/test in their due turn and on the same date or different dates which are treated as one continuous examination, as the case may be, shall be determined with reference to their substantive or basic seniority. 11. In view of the provisions contained in Para.315 of IREM Volume I, the applicant cannot claim seniority above the third respondent, simply for the reason that his promotion was effected earlier than the promotion of the third respondent. Though the applicant and the third respondent joined on different dates at different Headquarters, they will retain their original panel seniority. Before the O.P.(CAT).82/2017 9 Tribunal, the applicant could not controvert the specific case of the first and second respondents that, persons in the same panel who joined on different dates at different headquarters maintain their original panel seniority. Going by the instructions in Para.315 of IREM Vol.1, seniority in such cases of promotion shall be determined with reference to their substantive or basic seniority, i.e., their original panel seniority. In such circumstances, the Tribunal cannot be found fault with in rejecting the seniority claimed by the applicant above the third respondent. 12. Section 21 of the Administrative Tribunals Act, 1985 deals with limitation. Clause (a) to sub-section (1) of Section 21 of the Act provides that, the Tribunal shall not admit an application, in a case where a final order such as is mentioned in clause (a) of sub-section (2) of Section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made; and in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months. However, going by sub-section (3) of Section 21, notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be O.P.(CAT).82/2017 10 admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section (2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period. 13. It is well settled that, the law of limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under sub-section (3) of Section 21 of the Act, the Tribunal can condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but such liberal approach cannot be equated with a licence to approach the Tribunal-at-will disregarding the time limit fixed in clause (a) of subsection (2) of Section 20 of the Act. The acts of negligence or inaction on the part of a litigant do not constitute sufficient cause for condonation of delay. Therefore, in the matter of condonation of delay, sufficient cause is required to be shown thereby explaining the sequence of events and the circumstances that led to the delay. 14. Though, the expression 'sufficient cause' employed by the legislature in sub-section (3) of Section 21 of the Act is adequately elastic to enable the Tribunal to apply the law in a meaningful manner O.P.(CAT).82/2017 11 which subserves the ends of justice, lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. 15. In **Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]** the Apex Court while summarising the principles applicable while dealing with an application for condonation of delay under Section 5 of the Limitation Act, 1963 has stated in categorical terms that, there is a distinction between inordinate delay and a delay of short duration or few days; for the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 16. In the instant case, the applicant did not question the panel seniority of the third respondent as per Annexure A3 dated 18.5.2007, till the filing of Annexure A1 representation dated 15.2.2013 stated to have been filed before the second respondent. In the matter of condonation of delay, the applicant is required to show sufficient cause, thereby explaining the sequence of events and the circumstances that led to the inordinate delay in approaching the Tribunal. In the absence of any such explanation, the declaratory relief sought for in the O.A. O.P.(CAT).82/2017 12 that, the applicant is senior to the third respondent in the grade of Electrical Technician and Electrical Technician Grade II, is highly belated. 17. Another relief sought for in the O.A. is a declaration that the applicant is entitled for promotion to the post of Senior Technician/Train Lighting from the date on which Georgekutty Chacko, Devassia, etc. were promoted by Annexure A6 order. A true copy of the O.A. produced as Ext.P1 along with the original petition does not contain any pleadings in support of the said relief. Though the applicant who joined Railway as Casual Labourer, was given temporary status from 1.1.1984, he was not considered for empanelment for the safety post of Khalasi in the Electrical Department as he was found fit only in C-1 medical classification. Accordingly, he continued as temporary status attained Casual Labourer. In the year 1996, pursuant to the order of the Tribunal in O.A.No.1297 of 1996, the applicant was sent for re-medical examination and found fit in B-1 medical classification. Accordingly, he was empaneled for regular absorption in the post Electrical Khalasi from 24.2.1997, and his name was included in the seniority list for further promotion. Later, he was promoted as Technician Grade III/Train Lighting and Technician Grade II/Train Lighting from 14.8.2007 and 4.3.2011 respectively. Since the O.P.(CAT).82/2017 13 empanelment of the applicant was delayed, since he was originally found fit only in C-1 medical category, and he was found fit in B1 medical category only in the year 1997 in the re-medical examination conducted pursuant to the order of the Tribunal in O.A.No.1297 of 1996, the applicant cannot now claim promotion in the higher grades contending that his empanelment was delayed without any valid reasons and as such he is liable to be given promotion to the higher grades with effect from the date on which the other employees, who are stated to be his juniors were given promotion. 18. Though the applicant would contend that C.K.Jayan, K.K.Parameswaran, V.T.George and V.R.Devaki, who enjoyed reservation benefits are far juniors to him, the promotion given to such persons are not under challenge and they are not even made parties to the O.A. Similarly, the applicant has not challenged the promotion of Georgekutty Chacko, T.M.Devassia, K.Rajan, etc. as Senior Technician/Train Lighting and they are also not made parties to the O.A. The pleadings on record make it explicitly clear that the applicant was not considered for promotion to those higher grades along with the aforesaid persons, since his empanelment for absorption in the post of Electrical Khalasi was only with effect from 27.3.1997, and he was given promotion as Electrical Technician Grade III/Train Lighting O.P.(CAT).82/2017 14 and further promotion as Technician Grade II/Train Lighting only with effect from 14.8.2007 and 4.3.2011 respectively. Having failed to challenge the alleged denial/delayed promotion at appropriate time, the applicant cannot stake such a claim in the O.A. filed in the year 2013. 19. The applicant has also raised a contention that he should have been given promotion as Technician Grade I/Train Lighting with effect from 7.3.2011, the date on which C.K.Jayan was given promotion by Annexure A7 order. According to the applicant, the said Jayan whose date of appointment is 13.8.2001 is admittedly junior to him and he should not have been given promotion with effect from 7.3.2011 when the applicant is given promotion to that grade only with effect from 1.11.2013. 20. Before the Tribunal, the first and second respondents have pointed out that the said Jayan passed the GDCA examination and was given promotion as Technician Grade III on 13.8.2001. In order to write the GDCA examination, one should have passed SSLC/10[th] standard, whereas, the applicant has studied only upto 5[th] standard. Though the applicant did not pass GDCA examination, he was given promotion as Technician Grade III on 15.9.2007 against SC quota. It was for that reason, the said Jayan is shown as Sl.No.2 and the O.P.(CAT).82/2017 15 applicant is shown as Sl.No.45 in Annexure A7 provisional seniority list of Technician Grade I/Train Lighting. 21. After considering the rival contentions with reference to the pleadings and materials on record, the Tribunal found no merits in the contentions raised by the applicant and accordingly the O.A. was dismissed by Ext.P6 order. The reasoning of the Tribunal in this regard in Ext.P6 order is neither perverse nor patently illegal, warranting an interference of this court under Article 227 of the Constitution of India. 22. It is trite law that, while testing the correctness or otherwise of an order passed by a Tribunal or any other quasi-judicial authority, in exercise of the writ jurisdiction under Article 227 of the Constitution of India, this Court plays only a limited role. As has been repeatedly held by the Apex Court, the function of the High Court, in such proceeding is not appellate in nature and as such, finding of a fact arrived at by a Tribunal or a quasi-judicial authority cannot be interfered with upon re-appreciation of evidence. In such matters, the High Court is concerned with the determination of the question as to whether the Tribunal has or has not acted within the limits of its jurisdiction, or has acted in breach of the principles of natural justice in exercise of its jurisdiction, or whether the order of the Tribunal or quasi-judicial authority is vitiated by mala fides or perversity. In that O.P.(CAT).82/2017 16 view of the matter, it is not open to this Court, while exercising the writ jurisdiction under Article 227 of the Constitution of India, to convert itself into a court of appeal and examine the correctness of Ext.P6 order of the Tribunal or decide the appropriate view to be taken or the order to be made. In the result, this original petition fails and it is accordingly, dismissed. No order as to costs. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/ANIL K. NARENDRAN (JUDGE)** spc/