P Vijayalakshmi w/o Late Manoharan 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 V.G.ARUN** **WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018 / 30TH KARTHIKA, 1940** **OP (CAT).No. 232 of 2017** **AGAINST THE ORDER/JUDGMENT IN OA 180/2014 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER/S:** **P VIJAYALAKSHMI W/O.LATE MANOHARAN,AGED 56 YEARS, SENIOR CLERK (ON REVERSION)WORKING AS CLERK IN MECHANICAL BRANCH,SENIOR DME OFFICE, SOUTHERN RAILWAY,THIRUVANTHAPURAM.** **BY ADVS. SRI.T.P.DEYANANTHAN SRI.A.V.RAMAKRISHNA PANICKER SRI.K.KRISHNALAL** ## **RESPONDENT/S:** - **1 UNION OF INDIA REPRESENTED BY CHIEF PERSONNEL OFFICER,SOUTHERN RAILWAY, CHENNAI 1** - **2 SENIOR DIVISIONAL OFFICER SOUTHERN RAILWAY, TRIVANDRUM DIVISION,TRIVANDRUM 695 001.** - **3 K.A.JESMON** O.P.(CAT) No.232 Of 2017 2 **OFFICE OF THE DME (CD)TRIVANDRUM DIVISION, TRIVANDRUM 695 001.** - **4 J.RAJENDRAN OFFICE OF THE DME CD TRIVANDRUM DIVISION, TRIVANDRUM 695 001.** - **5 S.GOPAKUMAR** - **OFFICE OF THE CCRCTRIVANDRUM DIVISION, TRIVANDRUM 695 001.** - **6 MAJU VARGHESE OFFICE OF THE ERM CD TRIVANDRUM DIVISION, TRIVANDRUM 695 001.** - **7 N.CHANDRALAL OFFICE OF THE CCRC,TRIVANDRUM DIVISION, TRIVANDRUM 695 001.** - **8 D.SUDHEER KUMAR OFFICE OF THE SSE (C & W),TRIVANDRUM DIVISION, TRIVANDRUM 695 001.** - **9 P.A.PRASANTH** **OFFICE OF THE SENIOR DMETRIVANDRUM DIVISION, TRIVANDRUM 695 001.** **BY ADVS.** **SRI.N.K.SUBRAMANIAN, SC, RAILWAYS SRI.MARTIN G.THOTTAN SRI.M.P.VARKEY** **SRI.N.K.SUBRAMANIAN SC RAILWAYS** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 21.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(CAT) No.232 Of 2017 3 ## **C.T. RAVIKUMAR (J) & V.G.ARUN (J) ----------------------------------------------------O.P.(CAT) No.232 Of 2017** **------------------------------------------** Dated this the 21[st] day of November, 2018 ## **JUDGMENT** ## **C.T. RAVIKUMAR (J)** This original petition carries a challenge against the order dated 30.11.2016 passed by the Central Administrative Tribunal, Ernakulam Bench in OA.No.714/2014. The petitioner who is the unsucceful applicant therein filed the captioned original petition raising manifold contentions. In the Original Application, the petitioner herein sought quashment of Annexures A6 and A7. Annexure-A6 is an order rejecting her representation submitted against Annexure-A4 Seniority List. Annexure-A7 is an order by which the petitioner was reverted from the post of Senior Clerk to which he was earlier promoted on ad-hoc basis. Besides seeking quashment of the aforesaid orders the petitioner has also sought to recast the seniority list dated 11.06.2004 by placing the petitioner/ the applicant above respondents 3 to 9. Before the Tribunal the party respondents as also the official respondents resisted the claims and contentions of the O.P.(CAT) No.232 Of 2017 4 petitioner. The contentions raised by them to get AnnexuresA6 and A7 sustained were upheld by the Tribunal and ultimately it culminated in the impugned order dated 30.11.2016. It is on being aggrieved by the dismissal of the original application as per the said order that the captioned original petition has been filed. 2. We have heard the learned counsel appearing for the petitioner, the learned counsel appearing for respondents 7 to 9 and the learned Standing Counsel appearing for respondents 1and 2. Though notice was served on respondents 3 to 6 they have not chosen to enter appearance. 3. Encapsulation of basic facts is required for a proper disposal of this original petition. The petitioner herein entered the service of Southern Railway, Trivandrum Division, as Luscar on 08.03.1989. In fact, she was given compassionate appointment consequent to the death of her husband, inharness. On getting qualified in the departmental test, she was later promoted to the post of a Clerk ( re -designated as a Junior Clerk on 05.06.2002). While continuing so she was granted ad-hoc promotion as Senior Clerk as per Annexure-R1 in Ext.P2, dated 08.10.2010. In the context of further O.P.(CAT) No.232 Of 2017 5 contentions, it is only appropriate to refer to the following recital in Annexure-R1:- “The following Junior Clerks in pay Band Rs.520020200+1900(GP) are promoted as Senior Clerk in pay Band Rs. 5200-20200+2800(GP) on ad-hoc basis against the 3 vacancies arose by promoting 3 Senior Clerks on ad-hoc basis and the existing 3 vacancies in DRQ in Senior Clerk category, and posted to the stations noted against each. They will be reverted to their substantial status when the vacancies in Senior Clerk category are filled ” up by regular incumbents/candidates . Admittedly, the petitioner herein was one of the promotees to the category of a Senior Clerk as per Annexure-R1, on ad-hoc basis. 4. In the meanwhile, the official respondents published Annexure- A4 Seniority list of Ministerial Staff of Mechanical Department, Thiruvananthapuram Division. It is dated 11.06.2014. In the said list the petitioner herein was placed below to certain persons who belong to the medically decategorized category and placed on supernumerary post and O.P.(CAT) No.232 Of 2017 6 given alternative appointment in the post of a Junior Clerk, as per Annexure-A3. The petitioner felt aggrieved by the assignment of seniority to the said category of persons and hence, he moved Annexure-A5 representation. Annexure-A5 representation was rejected as per Annexure-A6 order dated 06.02.2014. Subsequently, the petitioner who was granted adhoc promotion as Senior Clerk, was reverted to the substantive post of Clerk as per Annexure-A7 order dated 04.08.2014. It is in the said circumstances that the petitioner filed OA.No.714 of 2014 with the afore- mentioned prayers. The facts thus extracted would reveal that there is conspicuous absence of challenge against Annexure- A4 seniority list wherein the petitioner was placed below to the persons who belong to medically de-categorized category and were given posting as Junior Clerk. So also there is no challenge against the order whereby such persons viz., respondents 3 to 9, were given promotion on regular basis to the post of Senior Clerk. Without making any specific challenge against Annexure-A4 seniority list and also the promotions granted to respondents 3 to 9 the petitioner filed the above mentioned O.A.viz., O.A.No.714 of 2017 only by putting challenge against Annexures. A6 and A7 O.P.(CAT) No.232 Of 2017 7 and also with a prayer to recast the seniority list by placing him over such persons who were posted as Junior Clerks under Annexure- A3. 5. Now, in this Original Petition petitioner has filed IA.No.1393 of 2017 with a prayer to accept certain additional documents ( sought to be marked as Exts.P6 and P7) into the files of this Court. Evidently, this was done with a purpose to challenge the order of the Tribunal in the light of the said documents. Therefore we will firstly consider the question whether the prayer in I.A.No.1393 of 2017 to accept the documents, sought to be marked as Ext.P6 and P7, could be allowed. Ext.P6 is a proceeding dated 29.01.2014 whereby medically de-categorised employees were posted in supernumerary posts for the purpose of granting alternate appointments. Thus it is obvious that it is not a proceeding subsequent the filing of the original application and that it was in existence at the time when the petitioner filed the original application before the Tribunal. Ext.P7 is a similar order dated 03/10/2016. It is an order issued during the pendency of the original application. In short, evidently it was issued while the original application was pending before the Tribunal. In this O.P.(CAT) No.232 Of 2017 8 context it is relevant to refer to the impugned order passed by the Tribunal. It would reveal that without producing such documents, the petitioner attempted to canvass the position that in some other division of a Railway department medically de-categorised employees were placed bottom in the seniority list of the category concerned. The Tribunal took note of the fact that, it was not a matter covered by the pleadings on record and thereupon declined to consider the said aspect. Thus, it is obvious that before the Tribunal these documents were not produced. In such circumstances, the question is whether the correctness of the order passed by the Tribunal could be tested in the light of such documents which were not at all produced before the Tribunal and were available to be produced. No acceptable explanation is offered for its non-production before the Tribunal. A similar issue was considered by a division bench in which one among us [the Hon'ble Mr.Justice C.T.Ravikumar] was a part. See the decision in ( **Rama Krishnan v. Union of India (2017) (1) KLT SN 96 (C.No.114)** ). It was held therein that thus "once the Tribunal concerned justifiably rendered an order on the strength of the pleadings before it with the additional materials supplied subsequently, this court cannot O.P.(CAT) No.232 Of 2017 9 revisit the impugned order and revalidate it”. The learned counsel submitted that even in the absence of Exts.P6 and P7 the said issue was bound to be considered by the Tribunal as Annexure-A8 was produced before the Tribunal. We will consider that question a little later. 6. We have already adverted to the pleadings and reliefs sought for, by the petitioner before the Tribunal. Evidently, the petitioner sought for quashment of Annexures A6 and A7 besides seeking to recast the seniority list dated 11/06/2014 by placing him above respondents 3 to 9. It is after taking note of the nature of the pleadings as also the prayers as mentioned above that we had earlier observed herein- before that there is conspicuous absence of any challenge against Annexure-A4 seniority list as also the promotions granted to respondents 3 to 9, to the category of the Senior Clerk. The learned counsel attempted to canvass the position that even without assailing the seniority list as also the orders of promotion those persons, the petitioner could succeed by merely by mounting challenge against Annexures A6 and A7. We are afraid the said contention cannot be accepted. Without a successful challenge against an existing seniority list a direction could not be issued to the O.P.(CAT) No.232 Of 2017 10 official respondents to recast a seniority list pertaining to any particular category. That apart when certain persons included in a seniority list were given promotion based on their seniority in a list, how the promotion could be interfered with when there is absolute absence of any challenge against the orders of promotion. As regards Annexure-A6, which is the order by which Annexure-A5 representation submitted by the petitioner challenging Annexure-A4 seniority list was rejected, the contention of the petitioner is that it was done dehoring the provision under Rule 1310 of the Indian Railway Establishment Manuel (IREM). The Tribunal evidently, considered the said contentions after referring to Rule 1310 of IREM and its proviso. The Tribunal repelled the said contentions. In the contextual situation it is appropriate to extract Rule 1310 of IREM and its proviso and they read thus:-. _" - Fixation of seniority of disabled/medically de categorised staff absorbed in alternative employment: The disabled/medically de-categorised staff absorbed in alternative posts should be allowed seniority in the grade of absorption with reference to the length of service rendered on non-fortuitous basis in the equivalent or corresponding grade before being_ O.P.(CAT) No.232 Of 2017 11 _declared medically unfit._ _This is subject to the proviso that if a disabled/medically - de categorised employee happens to be absorbed in the cadre from which he was originally promoted, he will not be placed above his erstwhile seniors in the grade of absorption”_ . A bare perusal of Rule 1310 would reveal that a list was provided therein is that disabled / medically de-categorised staff on absorption in alternative employment should be allowed seniority in the grade of absorption with reference to the length of service rendered on non fortuitous basis in the equivalent or corresponding grade before being declared medically unfit. The Tribunal, after imbibing the spirit of Rule 1310 of IREM considered the contentions raised on the basis of the said provisions. Tribunal found that the party respondents who belong to the medically decategorised category were holding equivalent post carrying the grade pay attached to the post of Junior Clerk prior to 05/06/2002, the date on which the petitioner was promoted to the post of Junior Clerk. It is taking into account the said undisputed factual aspects and taking into accounts Rule 1310 of IREM that the Tribunal held that the party O.P.(CAT) No.232 Of 2017 12 respondents were placed senior to the petitioner correctly in Annexure-A4. The learned counsel appearing for the petitioner/applicant contended that the Tribunal had failed to consider the impact of the proviso to Rule 1310. There cannot be any doubt with respect to the position that a proviso can only supplement the main provision but it cannot supplant the main provision. At the same time a careful scrutiny of the proviso to Rule 1310 would reveal that it would not go in conflict with the main provision contained under Rule 1310 and that the proviso thereunder relates to a different situation. No volume of argument is required to arrive at such a conclusion. The proviso extracted herein-before would reveal that it is applicable in a situation where a disabled/medically decategorised employee happens to be absorbed in the cadre from which he was originally promoted, he will not be placed above his erstwhile seniors in the grade of absorption. As noticed herein-before, the petitioner got promotion to the post of Junior Clerk only on 05/06/2002 and the party respondents were holding the equivalent or corresponding post carrying the Grade pay attached to the post of Junior Clerk prior to 05/06/2002. What is prohibited under the proviso is placing such medically O.P.(CAT) No.232 Of 2017 13 decategorised employees on absorption in a category above his erstwhile seniors in the grade of absorption. In the circumstances obtained as also in view of the undisputed facts the petitioner cannot be heard to contend that he is an erstwhile senior to the party respondents in any grade. The grade of absorption is Junior clerk. We have already taken note of the facts that the party respondents were holding equivalent or corresponding post carrying this grade pay attached to the post of Junior Clerk much earlier than the petitioner. In such circumstances and in terms of Rule 1310 of IREM one cannot find fault with the conclusion arrived by the Tribunal based on Rule 1310 of IREM which specifically provides for granting seniority to such medically decategorised staff on their absorption with reference to the length of service rendered on non-fortuitous basis in the equivalent or corresponding grade before being declared medically unfit. When that be the position, obtained under Rule 1310 of IREM we have no hesitation to hold that Annexure-A8 would not and could not fetch any benefit to the petitioner. 7. There is another aspect which would also tend us to repell the contentions raised by the petitioner founded on O.P.(CAT) No.232 Of 2017 14 Annexure-A8. A bare perusal of Annexure-A8 would reveal that it pertains to the case of certain employees who were transferred from Salem Division on inter-divisional one way transfer on bottom seniority at their request. Thus, it is obvious that in Annexure-A8 what was done by the official respondent is to grant inter-divisional transfer to the persons therein. There cannot be any doubt with respect to the position that such interdivisional transfers, on request, could take their place only in the bottom of the seniority list concerned, at the transferred place. Annexure-A8 in such circumstances will not aid the petitioner in his challenge against Annexures-A6 and A7. In the said circumstances we are of the considered view that the contention of the petitioner that mere challenge against Annexurs-A6 and A7 without challenging the seniority list as also the promotions granted to the party respondents based on such seniority list would be sufficient to bring success to him in the original petition is palpably unsustainable. So also, the petitioner cannot be permitted to challenge the order passed by the Tribunal by producing materials which were not produced before the Tribunal and was available at the time of filing of O.A or during its pendency. Whenever a person is granted promotion O.P.(CAT) No.232 Of 2017 15 based on his position in a seniority list the same cannot be interfered with unless the promotion is challenged that too within a reasonable time. At any rate, without a successful challenge against the seniority list the promotion granted to such a person cannot be interfered with. Even in respect of the seniority list concerned, the fact is that till today the petitioner has not chosen to challenge the seniority list appropriately. In such circumstances, the petitioner is not at all entitled to the prayer for a direction to recast the seniority list showing him senior to the party respondents. 8. As regards his challenge against Annexure-A7, we have already taken note of the fact that it was an adhoc promotion. A bare perusal of Annexure-R1 in Ext.P2 would reveal that it was very specifically stated therein that such adhoc promotees including the petitioner would be reverted to their substantial status when vacancies in senior clerk categories were filled up by regular incumbent/candidates. In such circumstances the petitioner cannot contend that the said adhoc promotion conferred on him an indefeasible right to continue in the promoted post . Though he was granted adhoc promotion on 08/10/2010, till the issuance of Annexure-A7 order dated O.P.(CAT) No.232 Of 2017 16 04/08/2014 the petitioner has not chosen to challenge the said condition incorporated in Annexure-R1. It is also to be noted that even in the original application as also in this original petition the petitioner has not challenged the said condition incorporated in Annexure-R1. For the forgoing reasons, we do not find any reason to hold that the order impugned is infected with any illegality or perverseness warranting interference. In the result this original petition is liable to fail and accordingly, it is dismissed. **Sd/-** **C.T.RAVIKUMAR JUDGE** **Sd/V.G.ARUN** **JUDGE** Ac/PV O.P.(CAT) No.232 Of 2017 17 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 EXHIBIT P2** **THE TRUE COPY OF THE OA NO.180/714/2014** **THE TRUE COPY OF THE REPLY STATEMENT OF 1ST AND 2ND RESPONDENT DATED 30/10/2014** **EXHIBIT P3** **THE TRUE COPY OF THE REPLY STATEMENT FILED BY 3RD AND 4TH RESPONDENT DATED 16/6/2015** **EXHIBIT P4** **THE TRUE COPY OF THE REPLY FILED BY 7, 8 AND 9TH RESPONDENT DATED 16/6/2015** **EXHIBIT P5 THE TRUE COPY OF THE ORDER IN OA 180/00714/2014 DATED 30/11/2016** **EXHIBIT P6** **TRUE COPY OF THE ORDER 00 NO.T07/2014/TP DATED 30/11/2016** **EXHIBIT P7** **THE TRUE COPY OF THE ORDER V/PII/XII/GR.C & O/FED DECAT/VOL.II DATED 3/10/2016** **//TRUE COPY// Sd/PA TO JUDGE**