OP (CAT) No.164 of 2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **MONDAY, THE 8[TH] DAY OF NOVEMBER 2021 / 17TH KARTHIKA, 1943** **OP (CAT) NO. 164 OF 2020** **AGAINST THE ORDER DATED 17-7-2019 IN OA 752/2017 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH.** **PETITIONERS/RESPONDENTS IN O.A :** - **1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, CHENNAI-600003.** - **2 THE CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, CHENNAI-600003.** - **3 THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM-14.** - **BY ADV ASHA CHERIAN** ## **RESPONDENT/APPLICANT IN O.A :** ## **P.PURUSHOTHAMA DAS,** **S/O.LATE P.PARAMESWARAN, RETIRED, TRACK MAINTAINER, O/O.THE SENIOR SECTION ENGINEER, P-WAY, VARKALA, TRIVANDRUM DIVISION, INDIAN RAILWAY, RESIDING AT VISHNU BHAVAN, VENPAKAL P.O, ANTHIYANNUR, TRIVANDRUM-695123.** **BY ADVS. SRI.SAJITH KUMAR V. SHRI.VIVEK A.V. SHRI.GODWIN JOSEPH SMT.APARNA CHANDRAN** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 08.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P (CAT) No.164 of 2020 2 # **ALEXANDER THOMAS & VIJU ABRAHAM, JJ. ============================= O.P(CAT) No.164 of 2020** _(Arising out of the impugned final order dated 17-07-2019 in O.A No.752 of 2017 on the file of the CAT, Ekm.)_ _**=============================**_ Dated this the 8[th] day of November, 2021 ## **JUDGMENT** ## **ALEXANDER THOMAS, J** The sole respondent in this O.P had filed the instant Ext.P1 Original Application, O.A No.752 of 2017 before the Central Administrative Tribunal, Ernakulam Bench with the following prayers - { See page No.27 of this paper book of OP(CAT } : - “ (i) To direct the Respondents to consider the claim for notional service to the Applicant with effect from March, 2003 and to grant consequent benefits by including him into the Statutory Pension Scheme disbursing monthly salary and other retiral benefits. - (ii) Grant such other reliefs as may be prayed for and as the Court may deem fit to grant, and - (iii) Grant the cost of this Original Application.” 2. The Tribunal after hearing both sides, has rendered the impugned Ext.P6 final order dated 17-7-2019 in the above O.A, and limited relief has been granted therein, following the line of decision rendered by the Division Bench of this Court in Annexure A11 judgment dated 21-12-2016 in a similar case as in W.P(C) No.23757 of 2010 and connected cases. By Ext.P6 final verdict, the Tribunal rendered on 17-07-2019, the Tribunal has ordered that the original applicant is entitled to be included at Serial No.2111 in the merged seniority list on O.P (CAT) No.164 of 2020 3 notional basis, since the said seniority position is above the seniority position of another incumbent, at Serial No.2134, who has been given the subsequently assigned notional date of 3-11-2003, as ordered in Annexure A11 judgment of the Division Bench of this Court, and to consider inclusion of the original applicant herein in the statutory scheme in existence for employees admitted to service before 1-1-2004, i.e.; by counting the above said period and for no other service benefits. It is this verdict of the Tribunal at Ext.P6 that is under challenge before us in the instant Original Petition filed at the behest of the Railway Authorities. 3. Heard Smt.Asha Cherian, learned Standing counsel for the Railways appearing for the petitioners in the O.P/respondents in the O.A and Sri.V.Sajith Kumar, learned counsel appearing for the sole respondent in the O.P/sole applicant in the O.A before the Tribunal. 4. This case is an offshoot of the implementation of the scheme for regularization of Casual Labourers in the Railways as ordered in the celebrated decision of the Apex court in the case _**Inderpal Yadav & Ors. v. Union of India [(1985)2 SCC 648] = [(1985 SCC (L&S) 526)]**_ . It appears that the separate list of eligible casual labourers for regularization in terms of the scheme framed by the Apex court in _**Inderpal Yadav's**_ case supra, were prepared in various divisions O.P (CAT) No.164 of 2020 4 under the Southern Railways including that at Trivandrum & Palakkad. While so, the casual labourers, who were retrenched prior to 1981 and who were claiming more/equal or similar service had approached the Apex court claiming similar rights and their grievance was also addressed by the Apex court in the decision in the case in _**Dakshin Railway Employees Union, Trivandrum Division v. General Manager, Southern Railway & Ors. ](1987)1 SCC 677) = (AIR 1987 SC 1153)]**_ . Since the impugned Ext.P6 verdict of the Tribunal is on the basis of Annexure A11 judgment of the Division Bench of this Court rendered on 21-12-2016 in W.P(C) No.23757 of 2010 and connected cases, it may be better to refer to some of the aspects borne out from Annexure A11 judgment. The core of the matter to the extent it concerns this case is that another similarly situated incumbent by name Sri.K.Viswanathan was assigned the date of regularization, with effect from the year 1996 and he was assigned seniority position as Serial No.2134 in the integrated seniority list of casual labourers, who are entitled for such regularization. Various other incumbents, had approached the Tribunal claiming that they have more length of service than Sri.K.Viswanathan and they have been placed in the integrated seniority list at seniority position much lower to that of Sri.K.Viswanathan and that they should also be given the same benefits O.P (CAT) No.164 of 2020 5 as has been given to Sri.K.Viswanathan. The Tiribunal, in the verdicts referred to in Annexure A11, had granted such reliefs to those incumbents. The said verdicts of the Tribunal were challenged by the aggrieved Railway Authorities in the matters in Annexure A11, which led to the common judgment rendered by the Division Bench of this Court in Annexure A11 judgment on 21-12-2016. The Division Bench of this Court, while adjudicating the rival claims in Annexure A11 found that the plea of the Railways that the date assigned to Sri.K.Viswanathan in the year 1996 could be a mistake and that the further claim of the Railway that his proper assigned date could only be 3-11-2003 may be a reasonable plea. However, the seniority position of Sri.K.Viswanathan was not varied by the Railways, which stood at Serial No.2134. Accordingly, the Division Bench of this Court in Annexure A11 held that the larger reliefs granted by the Tribunal in the matters under challenge in the impugned final orders in the O.As may not be right, but that atleast the original applicants, who were casual labourers, should be entitled for counting that they should also be treated at par with Serial No.2134 so long as their seniority position is above that and they should be given the assigned anterior date as 3-11-2003 as has been conceded by the Railways in the case of Sri.K.Viswanathan. On this basis, the Division Bench of this Court held that the abovesaid notional period of O.P (CAT) No.164 of 2020 6 the original applicant therein should be counted only for the purpose of reckoning pensionable service and even the revised pensionary benefits by adding the abovesaid notional service, should be taken into account, but the pensionary benefits may be given based on the last pay already fixed. The Division Bench of this Court also noted that for those who are to be considered for statutory pension before 1-1-2004, they should have atleast 10 years minimum pensionable service. It was urged before this Court that if the abovesaid notional period of service by counting their assigned date at par with Serial No.2134 and as if they are assigned the date as 3-11-2003, then in the said notional period of service is counted to their already approved service, then they will have pensionable service of 10 years or more entitled them for getting statutory pension for those who were admitted into service before 1-1-2004. Hence, all what has been ordered by the Division Bench of this Court in Annexure A11 is that the larger reliefs of arrears of pay & allowance, etc. need not be paid to those incumbents by treating them at par with Serial No.2134, and the anterior assigned date of 3-11-2003, but the said notional period should be counted only for the purpose of reckoning pensionable service by adding the said notional service along with their already approved service and even the last pay may be the one as already taken into account by the Railways. This limited relief alone was granted by the O.P (CAT) No.164 of 2020 7 Division Bench of this Court and the verdicts of the Tribunal which were impugned in those cases, were so substantially modified by the Division Bench of this Court at Annexure A11 judgment. The case of the original applicant in this case is that he was initially appointed as Khalasi by the respondent and he worked continuously for 678 days including 632 days has evidenced in the extract of Casual Labourers Service Card at Annexure A1. The seniority position assigned to him by the Railway authorities is admittedly Serial No.2111. Hence, going by the verdict of this Court in Annexure A11, the Tribunal found that the original applicant could be given only the limited relief as ordered in Annexure A11, so that his notional service could be treated at par with Serial No.2134, who was admittedly junior and with the date 3-11-2003 as ordered in the case of said Serial No.2134, which has been conceded by the Railways in Annexure A11 judgment. The Tribunal noted that the applicant had retired from service on 31-05-2017 on attainment of the superannuation of 60 years and had put in 7 years 8 months and 19 days of service for the period from 11-09-2009 to 31-05-2017. The said period would not qualify for the grant of statutory pension inasmuch as the same is less than the minimum 10 year qualifying pensionable service. The Tribunal found that limited relief at par with the incumbents covered by Annexure A11 should also be given to the present applicant O.P (CAT) No.164 of 2020 8 and hence it was ordered that the applicant should be included at Serial No.2111 in the integrated seniority list on notional basis and is to be considered for inclusion in the statutory pension scheme in existence for the employees admitted into service before 1-1-2004 and the above said notional period of service should be counted only for the limited purpose of reckoning pensionable service. Having regard to the facts and circumstances of the case, we are of the view that Tribunal cannot be faulted for having followed the line of reasonings and the limited relief granted by the Division Bench of this Court in Annexure A11 judgment. We are told that the Tribunal and this Court have thereafter consistently followed the abovesaid directions or limited reliefs as given by the Division Bench in Annexure A11 judgment. We find no reasons to disturb the abovesaid limited reliefs granted in favour of the applicant by the Tribunal. Further, we note that Ext.P6 final order of the Tribunal has been rendered as early as on 1707-2019. We note that the orginal applicant has retired from service as early as on 31-05-2017. The present O.P(CAT) has been filed before this Court on 18-09-2020. In view of the long delay in the matter it is ordered that the competent authority among the petitioners/Railway authorities concerned will ensure that the directions of the Tribunal, are O.P (CAT) No.164 of 2020 9 complied with in the case of the applicant without any further delay, at any rate, within two months from the date of receipt of a copy of this judgment. With these observations and directions, the above Original Petition will stand dismissed. **Sd** /- **ALEXANDER THOMAS, JUDGE** **Sd/-** **VIJU ABRAHAM, JUDGE** amk O.P (CAT) No.164 of 2020 10 ## **APPENDIX OF OP (CAT) 164/2020** **PETITIONERS' ANNEXURES** : **ANNEXURE A1 TRUE COPY OF THE CASUAL LABOUR SERVICE CARD ISSUED TO THE APPLICANT. ANNEXURE A2 TRUE COPY OF THE REPRESENTATION DATED 20.03.1987 SUBMITTED BY THE APPLICANT TO THE 3RD RESPONDENT. ANNEXURE A3 TRUE COPY OF THE ACKNOWLEDGMENT CARDS DATED 23.03.1987 RECEIVED BY THE APPLICANT. ANNEXURE A4 TRUE COPY OF THE RELEVANT PAGES OF THE MERGED SENIORITY LIST RELEASED AS ON 02.09.1997. ANNEXURE A5 TRUE COPY OF THE REPRESENTATION DATED 25.04.2000 SUBMITTED BY THE APPLICANT TO THE 3RD RESPONDENT ALONG WITH ITS ACKNOWLEDGMENT CARD. ANNEXURE A6 TRUE COPY OF THE LETTER NO.V/P407/I/ECL/VOL.X DATED 24.03.2003 ISSUED BY THE 3RD RESPONDENT. ANNEXURE A7 TRUE COPY OF THE ORDER DATED 15.06.2009 IN O.A.600/2008 OF THE CAT/ERNAKULAM BENCH. ANNEXURE A8 TRUE COPY OF THE OFFER LETTER NO.V/P407/I/ECL/VOL.XI DATED 24.08.2009 ISSUED BY THE 3RD RESPONDENT. ANNEXURE A9 TRUE COPY OF THE REPRESENTATION DATED 12.01.2010 SUBMITTED BY THE APPLICANT TO THE 3RD RESPONDENT. ANNEXURE A10 TRUE COPY OF THE REPRESENTATION DATED 16.01.2017 SUBMITTED BY THE APPLICANT TO THE 1ST RESPONDENT. ANNEXURE A11 TRUE COPY OF THE JUDGMENT DATED 21.12.2016 IN W.P.(C)NO.23757/2010 OF THE HON'BLE HIGH COURT OF KERALA.** O.P (CAT) No.164 of 2020 11 |**ANNEXURE A12**|**TRUE COPY OF THE ORDER NO.V/P-**|**TRUE COPY OF THE ORDER NO.V/P-**| |---|---|---| ||**407/I.CL/ENGG./COURT**<br>**CASES**<br>**DATED**|| ||**20.03.2018 ISSUED BY THE 3RD RESPONDENT.**|| |**ANNEXURE R1**|**TRUE COPY OF O.O.NO.116/2009/W.P. DATED**|| ||**09.09.2009.**|| |**ANNEXURE A13**|**TRUE COPY OF THE ORDER DATED 18.02.2010**|**IN**| ||**O.A.37/2009 OF THE TRIBUNAL OBTAINED FROM**|| ||**THE WEBSITE OF CAT.**|| |**EXHIBIT P1**|**TRUE COPY OF O.A.180/00752/2017 FILED**|**BY**| ||**THE APPLICANT BEFORE THE CENTRAL**|| ||**ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.**|| |**EXHIBIT P2**|**TRUE COPY OF REPLY STATEMENT FILED**|**BY**| ||**RAILWAYS IN O.A.180/00752/2017.**|| |**EXHIBIT P3**|**TRUE COPY OF REJOINDER FILED BY THE**|| ||**APPLICANT IN O.A.180/00752/2017.**|| |**EXHIBIT P4**|**TRUE COPY OF ADDL.REPLY STATEMENT FILED**|**BY**| ||**RAILWAY IN O.A.180/00752/2017.**|| |**EXHIBIT P5**|**TRUE**<br>**COPY**<br>**OF**<br>**M.A.NO.317/2019**|**IN**| ||**O.A.180/00752/2017 FILED BY APPLICANT.**|| |**EXHIBIT P6**|**TRUE COPY OF ORDER DATED 17.07.2019**|**IN**| ||**O.A.180/00752/2017 OF CAT/ERNAKULAM.**||