OP(CAT) 222 of 2020

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. MONDAY, THE 11[TH] DAY OF JULY 2022 / 20TH ASHADHA, 1944 OP (CAT) NO. 222 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OA 980/2014 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS IN OA:** 1 UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, CHENNAI 600 003. 2 THE SR. DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM 14. BY ADVS. SMT.ASHA CHERIAN, SC, RAILWAYS S. BIJU BY SRI.S.BIJU ## **RESPONDENT/APPLICANT IN OA:** S.M.PEER MOHAMMED TRACKMAN, O/O SR. SECTION ENGINEER/ P. WAY/ MAVELIKKARA, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, RESIDING AT 2/62, YASIN MANZIN, MATCH BOX STREET, THIRUVITHAMCODE P.O. KANYAKUMARI RESTRICT 629 174. BY ADV MARTIN G.THOTTAN **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 11.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(CAT)222 of 2020 2 **A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ ------------------------------------------------------------------** OP(CAT)No.222 of 2020 -------------------------------------------Dated this the 11[th] day of June 2022 ## **JUDGMENT** ## A.K.Jayasankaran Nambiar, J. The Union of India in the Ministry of Railways is the petitioner before us in this OP(CAT), aggrieved by the order dated 14.12.2016 in OA No. 180 of 2014. 2. The brief facts necessary for the disposal of the OP(CAT) are as follows:- The applicant before the Tribunal was a person who was engaged on casual labour basis by the Railways prior to 1981. Consequent to the directions issued by the Supreme Court in the case of **Inder Pal Yadav v. Union of India** [19854 (2) SCC 648) the Railways had prepared a list of persons who were engaged on casual basis prior to 1981. Subsequently, taking note of like persons who had worked as casual labourers prior to 31.3.1987, a supplementary list was also drawn up by the Railways. The two OP(CAT)222 of 2020 3 lists so prepared were eventually merged and a seniority list was prepared showing the _inter se_ seniority of the casual labourers as on 01.07.1996. It is not in dispute that the said seniority list was prepared based on the total number of days of engagement of the casual labourers whose names featured in that list. The said seniority list was thereafter used by the Railways for effecting absorption of the casual labourers in Group 'D' posts such as Trackman and Gangman. 3. The first appointments from the list were effected in 1999 when 171 vacancies of Group D posts were filled up from among persons who featured in the seniority list. Thereafter, pursuant to a notice dated 24.03.2003 an additional 94 vacancies were filled up from among those who featured in the seniority list. The applicant being a person who was included in the seniority list at Sl.No.1861 did not get any appointment in 1999 when 171 vacancies were filled up because he did not present himself for appointment during the relevant time. Thereafter, when another person, the 2[nd] applicant in OA No.72 of 2010, was not considered for appointment on account of his having crossed the age limit prescribed for appointment to the post, the applicant herein along with the said person approached the Tribunal through OA No.72 of 2010. During the pendency of the said O.A the 2[nd] applicant therein was granted the reliefs sought for and he was granted an OP(CAT)222 of 2020 4 appointment by overlooking the age restriction that was earlier pointed out by the Railways. The Tribunal therefore, by a final order dated 15.03.2011, disposed the OA directing a consideration of the appellant's case afresh in the light of the judgment of the Supreme Court. It would appear that aggrieved by the final order dated 15.3.2011 of the Tribunal in OA No.72 of 2010, the Union of India filed OP(CAT) 1979 of 2011, which was disposed by Ext.P9 judgment dated 29.7.2011. This Court while disposing the said OP(CAT) found as follows:- “ Heard Standing Counsel for the petitioners and counsel for the first respondent. Order under challenge is one issued by CAT directing the Railways to give employment to first respondent who was eligible as a casual employee previously employed. Large number of casual employees got employment by virtue of judgment of the Supreme Court directing the Railways to reconsider re-employment to them. First respondent admittedly was eligible. However, the only reason why he was not appointed is that he did not respond to Railways' Notification for selection. The Tribunal noticed that the omission to respond to the Notification does not deprive the first respondent of his eligibility for reemployment. So long as CAT has not ordered employment with retrospective effect, we do not find any grievance for the Railways because if first respondent had responded to the notification, he would have got job. In other words, CAT ordered employment of first respondent only after being satisfied that first respondent was eligible. We do not find any ground to interfere with the order of the CAT. Consequently O.P.(CAT) is dismissed. Seniority necessarily has to be granted to the first respondent from the date of order of the CAT based on ” which he is going to be appointed. (emphasis supplied) OP(CAT)222 of 2020 5 4. It is not in dispute that the said judgment of this Court was not carried in further appeal and has become final and binding on the parties there to. We are told that pursuant to the said judgment the respondent herein was appointed in a Group D post by an order dated 29.11.2012. The O.A that led to the order impugned in this OP(CAT) was preferred by the respondent herein who _inter alia_ , claimed seniority in service with effect from the date of absorption of his immediate junior, in the seniority list prepared of persons who had been engaged as casual labourers prior to 31.3.1987. It is significant to note that in the proceedings before the Tribunal, the judgment of this Court in OP(CAT) 1979 of 2011, was not brought to the notice of the Tribunal. Under those circumstances the Tribunal by the impugned order proceeded to find that, in view of the Supreme Court's directions in **Inder Pal Yadav** (supra) to absorb persons who had been engaged as casual labourer into regular service, the mere fact that the respondent herein had not presented himself before the Railways at the time of filling up vacancies could not have been a reason to not regularise his service. It was under those circumstances and without noticing Ext.P9 judgment of this Court that the Tribunal directed the petitioners herein to consider the respondent herein as having been absorbed into regular service in 2003, the date on OP(CAT)222 of 2020 6 which a person with a lesser seniority as casual labourer and borne in the seniority list was regularised in the year 2003, on notional basis. Taking note of the fact that the respondent had not actually worked in the regular post till 16.7.2008, the Tribunal was not inclined to grant him back-wages and other service benefits. It was made clear therefore that the order granting retrospective effect to his appointment from 2003 would be limited only for the purposes of pensionary benefits. 5. In the OP(CAT) before us the contention of Sri.S.Biju, the learned counsel for the petitioners is that in the light of Ext.P9 judgment of this Court which had become final, it was not open to the Tribunal to direct the regularization of the respondent's service with effect from 2003.With regard to the other benefits granted to the respondent by the Tribunal, it is submitted that, barring the benefits that flow from a regularization with retrospective effect, the other benefits sought for by the respondent have already been disbursed to him by Ext.P8 order. 6. Per contra, the submission of Sri.Martin G.Thottan, the learned counsel for the respondent is that although it may be a fact that Ext.P9 judgment of this Court was not noticed by the Tribunal, the Tribunal could not have been faulted for considering the spirit of the directions issued by the Supreme Court in **Inder** OP(CAT)222 of 2020 7 **Pal Yadav** (supra) and directing regularization of the respondent's service in the Railways with effect from 2003 as was done in the case of others (see Exts.R1(a), R1(b) and R1(c) judgments relied upon by the respondent.) 7. On a consideration of the rival submission we find force in the contention of the learned counsel for the petitioner that in the light of the specific finding in Ext.P9 judgment of this Court, which had become final and binding on the parties before us, it was not open to the Tribunal to treat the respondent herein as regularized in service with effect from 2003. The reliance by the learned counsel for the respondent on the judgments produced as Exts.R1(a), R1(b) and R1(c), are wholly misplaced in as much as in none on those cases was there a situation where this Court had specifically directed the date of regularization to be counted with effect from 15.03.2011. It is our view that when this Court had in Ext.P9 judgment specifically found that the seniority has to be granted to the respondent from the date of the earlier order of the Central Administrative Tribunal (CAT), based on which he was going to be appointed, the direction was essentially to treat him as regularised in service with effect from the date of the order of the CAT, namely 15.03.2011. To accept the contention of the learned counsel for the respondent would result in an anomalous situation where the respondent would have to be treated as having entered OP(CAT)222 of 2020 8 into regular service with effect from 2003 and the _inter se_ seniority between him and others similarly placed reckoned only from 2011. This could never have been the intention of the Division Bench of this Court in Ext.P9 judgment. 8. Thus, we set aside the impugned order of the Tribunal to the limited extent that it holds that the respondent herein should be treated as regularised in service with effect from 2003. Consequently, we make it clear that the respondent should be treated as regularized in service only with effect from 15.03.2011 and he shall be entitled only to such consequential benefits as flow from that declaration. The impugned order of the Tribunal stands modified, and the OP(CAT) filed by the petitioners allowed, to that extent. The Original petition (CAT) is disposed as above. Sd/- ## **A.K.JAYASANKARAN NAMBIAR, JUDGE** Sd/- **MOHAMMED NIAS C.P., JUDGE** dlk 11.7.2022 OP(CAT)222 of 2020 9 ## **APPENDIX OF OP (CAT) 222/2020** PETITIONERS ANNEXURES ANNEXURE A2 TRUE COPY OF THE CONDITION NO. 10 IN OFFICER ORDER BEARING NO. 167/2012 WP DATED 29.11.12. ANNEXURE A1 TRUE COPY OF THE ORDER DATED 15.03.2011 IN ORIGINAL APPLICATION NO. 72 OF 2010. ANNEXURE A3 TRUE COPY OF THE REPRESENTATION DATED 19.09.2013 SUBMITTED BY THE APPLICANT. ANNEXURE A4 TRUE COPY OF THE RAILWAY BOARD LETTER NO. RBE NO. 166 OF 2011. ANNEXURE R1 TRUE COPY OF THE RAILWAY BOARD LETTER NO. E(NG)-11/2009/RR-1/10/PT DATED 09.12.2010. ANNEXURE R2 TRUE COPY OF THE RAILWAY BOARD LETTER NO. E(NG) -11/2009/RR-1/10/PT DATED 05.01.2011. ANNEXURE R3 TRUE COPY OF THE RAILWAY BOARD LETTER NO. E.(NG0-11/2009/RR-1/10/PT DATED 27.04.2011. ANNEXURE A5 TRUE COPY OF THE JUDGMENT DATED 22.07.2010 IN O.A. NO. 590/09. ANNEXURE A6 TRUE COPY OF THE JUDGMENT DATED 10.02.2015 IN O.A. NO. 784/12. ANNEXURE A6 TRUE COPY OF THE JUDGMENT DATED 10.02.2015 IN O.A. NO. 784/12. ANNEXURE A7 TRUE COPY OF THE RAILWAY BOARD ORDER RBE NO. 42 OF 2001 DATED 28.02.2001. EXHIBIT P1 TRUE COPY OF O.A. 180/00980/2014 FILED BY THE APPLICANT BEFORE THE CAT/ERNAKULAM. EXHIBIT P2 TRUE COPY OF REPLY STATEMENT FILED BY RAILWAY IN O.A. 180/00980/2014. EXHIBIT P3 TRUE COPY OF REJOINDER FILED BY OP(CAT)222 of 2020 10 ||APPLICANT IN O.A. 180/00980/2014.| |---|---| |EXHIBIT P4|TRUE COPY OF ADDITIONAL REPLY STATEMENT| ||FILED BY RAILWAY IN O.A.| ||180/00980/2014.| |EXHIBIT P5|TRUE COPY OF ADDITIONAL REJOINDER FILED| ||BY APPLICANT IN O.A. 180/00980/2014.| |EXHIBIT P6|TRUE COPY OF AMENDED APPLICATION FILED| ||BY APPLICANT IN O.A. 180/00980/2014.| |EXHIBIT P7|TRUE COPY OF ORDER DATED 14.12.2016 IN| ||OA/180/00980/2014 OF THE CAT, ERNAKULAM| ||BENCH.| |EXHIBIT P8|TRUE COPY OF OFFICE ORDER DATED| ||06.12.2017 ISSUED BY THE SECOND| ||RESPONDENT.| |EXHIBIT P9|TRUE COPY OF JUDGMENT DATED 29.7.2011| ||IN OPC (CAT) 1979/2011 OF THIS HONBLE| ||COURT.| |RESPONDENT'S EXHIBITS|| |Exhibit R1(a)|TRUE COPY OF THE JUDGMENT IN OP (CAT)| ||NO.30 OF 2016 DATED 21.12.2016 PASSED| ||BY THIS HON'BLE COURT.| |Exhibit R1(b)|TRUE COPY OF THE JUDGMENT IN OP (CAT)| ||NO.288 OF 2017 DATED 16.11.2017 PASSED| ||BY THIS HON'BLE COURT.| |Exhibit R1(c)|TRUE COPY OF THE JUDGMENT IN OP (CAT)| ||NO.258 OF 2019 DATED 12.02.2020 PASSED| ||BY THIS HON'BLE COURT.|