K.K. Madhavan v Union of India and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 11TH DAY OF NOVEMBER 2016/20TH KARTHIKA, 1938 **WP(C).No. 33621 of 2009 (S) ----------------------------** AGAINST THE ORDER IN OA 274/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 27.07.2009 PETITIONERS/RESPO0NDENTS: ------------- 1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER,, SOUTHERN RAILWAY, CHENNAI - 3. 2. CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE,, PARK TOWN.P.O, CHENNAI - 3. 3. CHIEF MECHANICAL ENGINEER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE,, PARK TOWN.P.O, CHENNAI - 3. 4. DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALGHAT DIVISION,, PALGHAT. 5. THE DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALGHAT DIVISION,, PALGHAT. 6. THE SR.DIVISIONAL MECHANICAL ENGINEER, SOUTHERN RAILWAY, PALGHAT DIVISION,, PALGHAT. BY ADV. SRI.JAMES KURIAN, SC, RAILWAYS RESPONDENT/APPLICANT: ------------------- K.K.MADHAVAN, S/O.KORAN, RESIDING AT KARIPPALA HOUSE,, KATTAKAMPAL.P.O, TRICHUR DISTRICT,, KERALA STATE. BY ADV. SRI.T.C.GOVINDA SWAMY BY ADV. SRI.G.SHYAM RAJ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C)No.33621 of 2009 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |EXT.P1|TRUE COPY OF MEMORANDUM OF OA.274 OF 2008 FILED| |---|---| ||BEFORE TGE CAT, ERNAKULAM BENCH| |EXT.P2|TRUE COPY OF THE REPLY STATEMENT FILED IN OA 274/08| |EXT.P3|TRUE COPY OF REJOINDER FILED IN OA.274/08| |EXT.P4|TRUE COPY OF REPLY TO REJOINDER IN O.A.274/08| |EXT.P5|TRUE COPY OF IMPUGNED ORDER DT. 27.7.2009 OF THE| ||CAT, ERNAKULAM BENCH IN O.A. 274 OF 2008| |EXT.P6|TRUE COPY OF RAILWAY BOARD LETTER DT. 17.02.2009| |EXT.P7|TRUE COPY OF EXTRACT OF IREM VOL.I| |EXT.P8|TRUE COPY OF SR. DIVL.PEPRSONNEL OFFICERS' LETTER| ||DATED 3/8-10.2001| |EXT.P9|TRUE COPY OF SR. DIVL.PERSONNEL OFFICER'S LETTER| ||DATED 05.02.2001 WITH ANNEXURES.| |EXT.P10|TRUE COPY OF REVISED SENIORITY LIST OF OS GRADE I| /TRUE COPY/ P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON & ANU SIVARAMAN, JJ.** .............................................................................. **W.P(C)No.33621 OF 2009** ......................................................................... **Dated this the 11[th] November , 2016** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Ext.P5 order passed by the Tribunal in O.A.No.274 of 2008 of the Central Administrative Tribunal, directing the respondent Railways to place the applicant in the pay scale of Rs.745011500/- from 10.05.1998 at par with the 15 individuals shown in Annexure A5 and to disburse the entire arrears of pay and pension accordingly, in the O.A. preferred virtually after 'eight years' of arising the alleged cause of action is under challenge at the instance of the Railways. 2. The sequence of events reveals that the respondent herein was working as the Chief Office Superintendent in the Palakkad Division of Southern Railways. Pursuant to the re- **2** ## **W.P(C)No.33621 OF 2009** structuring exercise based on the recommendations of the 5[th] CPC ordered to be implemented as per Annexure A1 dated 10.05.1998, 16 posts of Chief Office Superintendents were identified for promotion from those, who were occupying lower hierarchy. The above 16 posts were to be distributed in different divisions of the Southern Railways and accordingly, 'three' posts were allotted to the Palakkad Division where the respondent/applicant was working. The particulars of such posts are discernible from Annexure A2. There is no dispute with regard to the factual aspect in this regard. 3. As a matter of fact, the eligibility of different persons, based on the seniority and such other traits was considered by the Railways and Annexure-A3 came to be passed on 26.11.1999. Among them, the person by name V. Loganathan, who was working at Bangalore Division (Sl.No.10), K. Muralidharan, (Sl.No.12), who was working at Thiruchirappalli and S. Jayasimha (Sl.No.15) who was working in Mysore **3** ## **W.P(C)No.33621 OF 2009** Division came to be promoted and allotted to Palakkad Division. Only Mr. V.Loganathan joined duty in the Palakkad Division; whereas Mr. Muralidharan expressed unwillingness to join duty, thus causing the seat to be vacant. Mr. S. Jayasimha made a submission to have him retained in Mysore, till his retirement, by causing the post to be shifted, which was considered and allowed . 4. The applicant in the said circumstance made a request before the immediate higher official to promote him on an adhoc basis to the existing vacancy. This was recommended by the said officer as per Annexure-A13 dated 20.06.2000 and the said recommendation, along with the relevant records, was forwarded by the competent authority to the Chief Personnel Officer as per Annexure A6 dated 06.07.2000 for granting permission to promote the applicant on ad hoc basis. It is stated that several representations were preferred thereafter as borne by Annexure A8, A10 etc., to the authorities at Chennai. Admittedly, no order ## **W.P(C)No.33621 OF 2009** **==> picture [7 x 9] intentionally omitted <==** was passed by the competent authority i.e., Chief Personnel Officer, granting ad hoc promotion to the applicant to work against the post of Chief Office Superintendent. 5. While so, the applicant attained the age of superannuation and came out of the service on 31.01.2004. Nearly more than four years after retirement, the applicant moved the Tribunal by filing O.A.No.274 of 2008 with a contention that he was eligible to be promoted to one of the posts of Chief Office Superintendents in the Palakkad Division w.e.f. 10.05.1998 and was eligible to get the salary attached to the said post and all other benefits flowing therefrom . Claim was also made for arrears of salary and pension, but it was resisted from the part of the Department contending that there was absolutely no merit for the reason that no vacancy was available in Palakkad Division to accommodate the applicant . It was also pointed out that the resultant vacancy because on non-joining of **5** ## **W.P(C)No.33621 OF 2009** duty by Muralidharan was shifted to Chennai where another person by name Suganya Devi, (who was eligible to be promoted as one among 16 and who in fact was not promoted at the relevant time as she was not available in India) was to be accommodated and was accommodated accordingly . The other post in respect of S. Jayasimha was shifted to Mysore by passing favourable order in the application submitted in this regard, permitting Jayasimha to continue in service at Mysore till his retirement. It was also asserted from the part of the Department that promotions were given only to seniors and no junior of the applicant was ever promoted and that there was no vested right for him to claim the benefit of higher pay scale w.e.f. a previous date. The Tribunal was also appraised as to the factum of promotion given to the applicant in the very next exercise, when vacancies available to the post of Chief Office Superintendent in the year 2001. He retired from the said office in the year 2004, who was having no grievance till the date of retirement or at **6** ## **W.P(C)No.33621 OF 2009** least for 'four' years after the retirement. The Department also contended that there was absolutely no basis for having raised a contention that the applicant was virtually discharging the duties of Chief Office Superintendent and that no order in this regard was ever passed by the competent authority , who was none other than the Chief Personnel Officer. The documents sought to be relied on, attempting to establish the said fact are not orders permitting such ad hoc promotion or assignment of charge to the applicant and as such, no benefit was liable to be extended. However, after hearing both the sides, the Tribunal simply proceeded to hold that there was a vacancy in Palakkad Division to which the applicant ought to have been considered and in turn held that the applicant having discharged the responsibilities of one of the three posts of Chief Office Superintendent, right from 10.05.1998, he was entitled to have the pay scale of Rs.745011500/- from 10.05.1998 at par with the other 15 individuals shown in Annexure A5. The operative portion of the said order as **7** ## **W.P(C)No.33621 OF 2009** ## contained in paragraph 12 of Ext.P5 reads as follows: _“ In view of the above the O.A. fully succeeds. It is declared that the applicant having en-shouldered the responsibility of one of the three posts of Chief Office Superintendent at Palaghat right from 10.05.1998 is entitled of the pay scale of Rs.7450-11500/- from 10.05.1998 at par with other 15 individuals vide Annexure -A5. He is entitled to actual difference in the monthly salary by virtue of the same and in addition, his pension has to be re-fixed taking into account his being placed in the higher pay scale from 10.5.1998. Consequently, there shall be certain arrears to be paid to the applicant by way of pension to which the applicant is entitled. The respondents are therefore, directed to pass suitable orders, working out the pension of the applicant and making available the arrears of pay and pension and also start paying him pension taking into account the increase in his pay at the time of retirement, within three months from the date of communication of ” this order. No costs._ 6 **.** After hearing both the sides and on going through the materials on record, this Court finds that there is no dispute as to the availability of only 'three' posts of the Chief Office **8** ## **W.P(C)No.33621 OF 2009** Superintendent, as allotted to the Palakkad Division. There is no case that any of the junior of the applicant was ever promoted to the post in question. There is no case that any order was passed by the Railways giving even ad hoc promotion to the post of Chief Office Superintendent at any point of time. There is also no dispute that the competent authority to have passed any order in this regard is none other than the Chief Personnel Officer. Annexure A9 Note dated 29.08.2001 relied on by the applicant to contend that he was discharging the duties of Chief Office Superintendent as assigned to him, reads as follows: _“Sri K.K. Madhavan OS/Grade I was charged against the vacancy of COS in grade Rs.7450-11500 from 10.05.1998 as per the note quoted above on adhoc basis. Therefore the period of his adhoc promotion may also be counted while fixing his pay on promotion as COS in grade Rs.7450-11500.”_ The said Note is with reference to the Office Note dated 20.06.2000, a copy of which has been produced as Annexure A13. The relevant portion of Annexure- A13 reads as follows: **W.P(C)No.33621 OF 2009** **9** _“Sri K.K. Madhavan is the seniormost OS/I in this Division and hence eligible for promotion as COS on adhoc basis. Therefore it is recommended that Sri K.K. Madhavan may be promoted as COS on adhoc basis against the declined vacancy of Shri M.N. Muraleedharan and effected from 10.05.1998 till regular posting is done against the vacancy. He has been managing the duties in this office as in-charge of office, so far. ”_ 7. From the above, it is quite obvious that what is mentioned in Annexure-A13 is only a “recommendation” to promote the applicant on ad hoc basis and the position becomes more clear when we come to Annexure A6, whereby the recommendation given by the senior DME to grant ad hoc promotion to the applicant, based on his request, has been adverted to and the said proceedings have been forwarded to the competent authority in Chennai seeking to pass orders at the earliest. The fact remains that no such order was ever passed by the competent authority, presumably for the reason that the Railways did not want to have any such exercise. In the absence **10** ## **W.P(C)No.33621 OF 2009** of any order passed by the competent authority, it cannot be held that the applicant was discharging the duties of the Chief Office Superintendent on ad hoc basis. This being the position, the finding rendered by the Tribunal that the applicant was discharging such responsibilities is absolutely without any basis and is liable to be intercepted. 8. The issue can be approached in a different angle as well. As mentioned already, if at all there was any vacancy available in Palakkad division, to have the applicant accommodated, it was for the applicant to have it brought to the notice of the authorities concerned then and there and if there was any delay or callous inaction on their part, it was for the applicant to have approached the Tribunal by filing necessary proceedings, projecting his eligibility and seeking for appropriate direction, which has not happened in the instant case. Admittedly, the applicant was promoted in the year 2001 and he did not pursue the matter to have had retrospective promotion from **11** ## **W.P(C)No.33621 OF 2009** 10.05.1998. If at all there was a case for the applicant that shifting of the vacancy from Palakkad to Chennai and filling up the same by person by name Suganya Devi, was not correct or that the vacancy at Mysore where Mr. S. Jayasimha was accommodated on promotion, also by shifting the post from Palakkad, had become open, to be brought back to Palakkad pursuant to voluntary retirement availed by S.Jayasimha, it was for the applicant to have approached the Tribunal by filing necessary proceedings referring to the existence of vacancies and to have him appointed against the post at least from the date of such bringing back of the vacancy. No such exercise was pursued . 9. It is true that the petitioner had filed some representations before the authorities, which came to be rejected. Rejection of the claim was with reference to the fact that no orders were passed by the competent authority granting ad hoc promotion. It was against the said order, that the **12** ## **W.P(C)No.33621 OF 2009** applicant had approached the Tribunal by filing the O.A. This does not and cannot extend the cause of action, which allegedly arose in the year 1998-2000 in respect of the claim for higher salary in the pay scale from 10.05.1998. The prayers raised by the applicant as extracted in Ext.P5 are in the following terms: _“(i) Declare that the applicant is entitled to be granted the benefit of the scale of pay of Rs.7450-11500 as Chief Office Superintendent with effect from10.05.1998;_ _(ii) Direct the respondents to grant the applicant the benefit of the scale of pay of Rs.7450-11500 with effect from 10.5.98 and direct further to grant the applicant all consequential benefits of revision of pay and allowances, revision of pension and other retirement benefits and direct further to grant the applicant the arrears of pay and allowances and other terminal benefits arising therefrom._ _(iii) Direct the respondents to grant the applicant interest on the delayed payment of arrears of pay and allowances, pension and other terminal benefits at the rate of 9% per annum from the date from which the arrears fell due”._ ## 10. Going by the nature of the prayers raised, it is seen that the matter was sought to be pursued, with the intervention of **W.P(C)No.33621 OF 2009** **13** the Tribunal, after nearly 8 years and never before. Even in the said proceedings, the relevant persons; particularly the seniors were never impleaded in the party array and no such adjudication with regard to the claim, if at all any or anybody else was established. Suffice to say that the matter has been wrongly approached by the Tribunal while directing the respondents in the O.A to refix the salary in the higher pay Scale w.e.f. 10.05.1998 and disburse the entire arrears of salary and pension accordingly, which is not at all correct. The question of 'continuing cause of action' does not arise in the instant case, though fixation, if the applicant is eligible to have the same and if granted, may result in enhancement of salary and in turn the pension as well. Such eligibility has not been established on merit, which has been discussed in the foregoing paragraphs. In other words, it cannot but be held that the applicant was virtually sleeping on arm chair. The power and jurisdiction to be exercised by the Tribunal is akin to the power of this Court in terms of **14** ## **W.P(C)No.33621 OF 2009** Article 226 of the Constitution, [which stood relegated to the Tribunal by virtue of the verdict passed by the Supreme Court in _**L. Chandra Kumar vs. Union of India and ors**_ [ **AIR 1997 SC 1125** ], which is not to extend any such relief to persons, who are taking rest, unmindful of their rights, if at all any. We find support from the ruling rendered by the Supreme Court in **AIR 1970 SC 470 (Rabindra Nath vs. Union of India ).** In the said circumstance, Ext.P5 verdict passed by the Tribunal stands set aside. The O.A. is dismissed as devoid of any merit and the writ petition stands allowed. No cost. ## **P.R. RAMACHANDRA MENON, JUDGE** **ANU SIVARAMAN, JUDGE** lk