Union of India and Others v. T.P. Sobhana and A. Usha

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 23RD DAY OF AUGUST 2017/1ST BHADRA, 1939 WP(C).No. 35559 of 2009 (S) ---------------------------- AGAINST THE ORDER IN OA 742/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 08-07-2009 PETITIONERS: - ------------- 1. UNION OF INDIA, REPRESENTED BY - THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, CHENNAI-3. 2. THE CHIEF PERSONNEL OFFICER, - SOUTHERN RAILWAY, HEADQUARTERS OFFICE, CHENNAI-3. 3. THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. 4. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALAKKAD DIVISION, PALGHAT. BY ADVS. SRI.C.S.DIAS,SC, RAILWAYS SRI.S.RADHAKRISHNAN,SENIOR PANEL,RAILWAYS RESPONDENTS: - -------------- 1. T.P.SOBHANA, D/O.T.P.NARAYANAN, SENIOR SWEEPER CUM PORTER, KANNUR SOUTH RAILWAY, STATION, KANNUR DISTRICT, RESIDING AT "PREM NIVAS, DEVI ROAD, PALLIKUNNU, P.O. KANNUR. 2. A.USHA, W/O MADHU, SENIOR SWEEPER CUM PORTER, KUTTIPURAM RAILWAY STATION, KUTTIPURAM,, RESIDING AT AREKATHU HOUSE, PERUMPILAVU P.O.,, VIA.KARIKKAD, TRICHUR DISTRICT. R1,2 BY ADV. SRI.M.A.SHAFIK THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-082017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 35559/2009 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF OA NO. 742/2007 ALONG WITH ANNEXURES OF CAT ERNAKULAM. EXT.P2: TRUE COPY OF REPLY STATEMENT IN OA NO. 742/2007 OF CAT ERNAKULAM. EXT.P3: TRUE COPY OF REJOINDER IN O.A. NO. 742/2007 OF CAT ERNAKULAM. EXT.P4: TRUE COPY OF ADDL. REPLY STATEMENT IN OA NO. 742/2007 OF CAT ERNAKULAM. EXT.P5: TRUE COPY OF ADDL. REJOINDER IN OA 742/2007 OF CAT ERNAKULAM. EXT.P6: TRUE COPY OF 2ND ADDL. REPLY STATEMENT ALONG WITH ANNEXURES IN O.A. NO. 742/2007 FO CAT ERNAKULAM. EXT.P7: TRUE COPY OF COMMON ORDER DATED 8.7.2009 OF CAT ERNAKULAM IN OA NO. 742/2007. RESPONDENTS' EXTS: NIL KS. TRUE COPY P.S. TO JUDGE ## **P. R. RAMACHANDRA MENON & SHIRCY V.,JJ.** ## **==============================** ## **W.P.(C)No. 35559 of 2009** ## **============================== Dated this the 23[rd] day of August, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** This is the second round of litigation in respect of the claim mooted by the respondents/applicants as to their eligibility to be appointed by promotion to Group C posts in the Railways. The mater is listed before this Court pursuant to the remand ordered by the Apex Court, after taking note of the law declared with regard to the basic ground raised in support of the challenge against Annexure A1 select panel. 2. Heard the leaned Standing Counsel appearing for the Railways and the learned counsel, who entered appearance on behalf of the applicants/respondents at length. 3. The crux of the litigation is with reference to WPC 35559/2009 2 paragraph 189 of the Indian Railway Establishments Manual, whereby 33 1/3 % of Group C Posts are reserved for promotion from Group D. The eligibility to get promoted, as put forth by the respondents/applicants, in preference to the other persons who have been selected, is the point of dispute. 4. Way back on 28.08.2006, the Railways notified 78 vacancies of 'Group C', to be filled up by promotion under the above segment i.e. 33 1/3% of 'Group D' category, vide Annexure A3. Pursuant to the said notification, selection was conducted and Annexure A1 select list was issued. This was sought to be challenged by the applicants in O.A. No.742/ 2007 raising various grounds, particularly as to the better performance made by them in the written test and also on such other grounds. Similar grounds were raised by some others as well, as projected in O.A. No. 174/2007. It is also pointed out by the applicants that the applicants were entitled to be placed in Annexure A1 select list, by virtue of WPC 35559/2009 3 their better merit in the examination; besides pointing out that many of the persons in Annexure A1 were much junior to them with reference to the date of entry into the service. The applicants also pointed out that there were some defects in the process of selection and preparation of integrated seniority list, that no integrated seniority list was prepared, no mark list was published and that the proceedings were vitiated in all respects. It is further pointed out that, once the candidates clear the test, obtaining the qualifying marks, the promotion was to be effected based on the seniority with reference to the date of entry in to the service. 5. The Railways filed Reply Statement and asserted before the Tribunal that the applicants in O.A. No. 174/2007 were not qualified. The mode of selection undisputedly involves 85 marks for the written test and 15 marks for the records of service. In the written test, a minimum of 50% marks had to be secured and there was an aggregate WPC 35559/2009 4 minimum of 50%, so as to be declared as qualified for promotion, based on the seniority. Once the qualifying marks were obtained, the promotion was to be effected based on seniority. The Railways also pointed out that, eventhough there was no much dispute with regard to the claims of the applicants in O.A. No. 742/2007, the said applicants were occupying only a lower level, by virtue of the lower Grade in which they were continuing. Even in Group D, there are various levels like Grades 1 & II and promotion to Grade-II is from Grade-I, based on satisfying the relevant requirements. The factual position in this regard is given in paragraphs 3 and 4 of the additional Reply Statement, which are extracted below for convenience of reference: “3. As regards averment in Para 1 of the Rejoinder it is submitted that the applicants were qualified in the written examination however, they were not empanelled since they are not coming in the zone of consideration for empanelment as per seniority. The employees, who have secured the qualifying marks in the written WPC 35559/2009 5 examination and record of service and having seniority were placed in the panel for the post of TC against 33 1/3% quota. 4. The averments in para.2 of the rejoinder being contrary to facts are denied. It is submitted that the post of TC against 33 1/3% quota are filled by selection from among the Gr.”D” employees of operating and commercial department. The selection consisted of written examination and verifying of record of service. In the selection, 85 marks are allocated for the written examination and 15 marks for record of service. Service records of those employees who have qualified in the written examination are verified for selection. The selection committee will allocate the marks for record of service based on the entries made in the Service Register. The other relevant records such as DAR charges pending if any which will not find place in the SR and prescribed medical fitness for the category Ticket Checking staff, will also be taken into account for employment. While acknowledging the fancy of the language used by the applicants, the respondents beg to submit that the allegations of selecting favourites and resorting to unlawful methods for awarding marks to selected employees have been made with the sole intention of misleading this Hon'ble Tribunal. It is submitted that the applicants have now come out with the above allegations without any ground or evidence and therefore it is submitted that this Hon'ble Tribunal WPC 35559/2009 6 may be pleased to direct the applicants to produce proof to substantiate the said allegations.” 6. It is pointed out that the applicants were occupying a lower level of scale of pay of Rs.2610-3540, whereas the persons in Gade-II were occupying a higher level of Rs.2650-4000. This being the position, the persons who were occupying the higher pedestal of Grade-II were to be considered as seniors, to be promoted to Group C and the turn of the applicants would have arisen only after exhausting the said category. The contention of the applicants, as put forth before the Tribunal was that, they were having longer service in the Department/Railways, having entered the service much earlier than the persons who got promotion to the post of Grade-II and this being the position, the total length of service should have been the yardstick to be promoted. Reliance is also sought to be placed on the decision rendered by this Court in WP(C) WPC 35559/2009 7 No. 14500/2003, whereby such a stand as to the proper procedure to be followed was accepted. That apart, the applicants also contended that, out of 60 unreserved vacancies in the total of 78, several persons belonging to SC/ST were inducted by the Railways in the merit slots, which could not have been done and they ought to have been placed only in the slots reserved/earmarked for such category, by virtue of the law already declared by the Tribunal in O.A. No. 161/2007. 7. After hearing both the sides, the Tribunal passed Ext.P7 verdict in the following terms: “ The impugned order, viz. Order dated 25.1.07, Annexure-A/1 is quashed and set aside for preparation of a fresh panel as mentioned above. The respondents are directed to undertake the following steps: i) to prepare an integrated seniority list in accordance with the decision of the High Court in OP No. 14500/03. ii) to prepare the statement of vacancies which may reflect the slot for reserved candidates in chronological WPC 35559/2009 8 ## sequence; iii) to prepare a panel for filling up the general vacancies as well as the SC and ST vacancies as per the statement prepared vide (ii) above. In that event, the first available SC vacancy shall be filled up by an SC candidate as per seniority list irrespective of the fact that he has secured 50% and above. iv) If there be any SC/ST candidates, who have already been promoted on the basis of the earlier panel, to take suitable action as deemed necessary either to accommodate them or to revert them in accordance with law. The above order shall be complied with within a period of six months from the date of communication of this order. No costs.” 8. The Tribunal held that the applicants 1 and 3 were duly qualified to be promoted for the post in question and if the integrated seniority list prepared was not in conformity with the direction given by this Court in W.P.(C)No. 14500/2003, it was liable to be recast. So also, a direction was to be given to have the list recast in terms of the order passed by the Tribunal in O.A. No. 161/2007 (as to how the persons who are in the SC/ST are to be accommodated in WPC 35559/2009 9 the list). The Tribunal further held that the 2[nd] applicant was not successful in getting the requisite extent of qualifying marks and hence his case was not liable to be considered. It was accordingly, that the said verdict was passed virtually allowing the O.A. in respect of applicants 1 & 3, giving appropriate directions to the Department, while dismissing the same in respect of the 2[nd] applicant in O.A. 742/2007. This made the Railways to challenge the same by filing W.P.(C) No. 35559/2009, while the 2[nd] applicant preferred O.P.(CAT) No. 1763/2011. 9. During the course of hearing, based on the pleadings and proceedings (especially when the factual position as to the second applicant was also conceded by the Railways), a verdict was passed by this Court holding that the 2[nd] applicant was also qualified to be considered for promotion. This Court passed a common judgment in W.P. (C)No.35559/2009 & OP(CAT) No.1763 of 2011 on 8.8.2011. The operative portion of the said judgment reads WPC 35559/2009 10 ## as follows: “ We, therefore, allow OP(CAT) No. 1763/2011 directing the Railway to include the 2[nd] petitioner also in the rank list based on the orders of the CAT i.e. in terms of the earlier Division Bench judgment of this Court referred above. The Railway is directed to comply with the judgment within a period of one month from the date of receipt of a copy of this judgment. WP(C) No.35559/2009 is dismissed and OP(CAT) No. 1763/2011 is allowed as above.” 10. The petitioners in W.P.(C)35559/2009 filed Review Petition which came to be dismissed by this Court. The verdict passed by this Court in W.P.(C) No.35559/2009 and the order in R.P. No. 818 of 2011 were separately challenged by filing Appeals before the Apex Court, which were admitted and subsequently converted as Civil Appeals (Civil Appeal Nos. 2694-2695 of 2013). In this context, it is to be noted that the verdict passed by this Court in W.P.(C) 14500/2003, which was relied on by the Tribunal to pass the verdict in favour of the applicants, had already been challenged by the Railways by way of appropriate WPC 35559/2009 11 proceedings before the Apex Court. The issue projected before the Supreme Court was with regard to the interpretation of the relevant paragraphs of the Indian Railway Establishments Manual 1989 (180, 189 & 320). The point considered by the Supreme Court was whether the seniority was to be reckoned with reference to the date of entry into the particular group, notwithstanding the different grades and different seniority in respect of the different grades. This issue has been dealt with in paragraph 8 of the verdict reported in **Union of India and Others v. V.K. Krishnan and Others [ (2015) 8 SCC 512],** which is reproduced below, for convenience of reference. “8. As stated hereinabove, in one particular group, there are employees working in different grades and the grades are also having a different hierarchy and a person working in the lowest grade within the group on the basis of his seniority or merit or both, as the case may be, is promoted to a higher grade within the group. As stated earlier, we are not concerned with the basis on which promotion is given from one grade to another or from one group to another. The question here is whether a person working in one grade of a lower group can get promotion on the WPC 35559/2009 12 basis of his seniority in his group irrespective of the length of service rendered in a particular grade. So as to understand the issue in a better perspective, hypothetically we may say that there are four grades in group D viz. I, II, III and IV; grade IV being the lowest and grade I being the highest. A person working in the lowest grade i.e. in grade IV would get promotion to grade III, then to grade II and then to grade I. After he has been placed in grade I of group D, he would get promotion to the lowest grade in group C, which is a higher group.” 11. The Supreme Court observed in paragraph 10, that the Tribunal as well as the High Court committed an error while coming to the conclusion that simply because Respondent No.1 therein had a longer service in Group D, he should also have been promoted along with the Respondent Nos. 2 and 3 who were working in a higher grade in Group D. The matter was explained further, as dealt with in paragraph 14, which is also reproduced below: “14.Let us now look at the provisions of para 180 of the Manual first. The said para pertains to promotion to higher grades in group D and group C posts. According to the said paragraph, all railway employees in the lowest grade should be eligible for consideration for promotion to higher grades in the transportation and commercial branches. The said para further deals with a WPC 35559/2009 13 preparation of seniority list. According to the said para, an ad hoc seniority list is to be prepared on the basis of length of continuous service in the grade and for the purpose of promotion, a suitable person is selected and placed on a panel of training. The aforestated content of para 180 clearly denotes that seniority lists of the employees are to be prepared on the basis of length of continuous service in different grades. This clarifies that there cannot be one seniority list for all the employees working in different grades in one particular group. In other words, there would be different seniority lists in one particular group and each seniority list will contain list of employees working in one particular grade or there may be different sub-seniority lists of employees working in different branches of one grade. Promotion will be given from lower grade to higher grade in one group and for that purpose, seniority list of the lower grade will be taken into account. Once a person gets promotion to the higher grade, his name will be included in the seniority list of the employees of the higher grade. For clarity once again, we may give an illustration that a person who is in grade IV, as hypothetically stated hereinabove, upon getting promotion to grade III, would get his name included in the seniority list of employees working in grade III and he would be eligible to be promoted to grade II. It may happen that a person working in grade IV, who has not been promoted for whatever reasons to grade III, though having longer service as an employee working in that group, may not get promotion to grade II because he is still working in grade IV and in such an event, a person who might be having lesser service in grade III than the employee having a longer service in grade IV or in that group, may get promotion to grade II. From grade II, an employee gets promotion WPC 35559/2009 14 to grade I and thereafter he gets promotion to the lowest grade in the higher group. This appears to be the normal mode of promotion.” 12. The mistake committed by the Tribunal as well as by this Court stands reiterated in paragraphs 17 & 23. The observations made in paragraph 19 are also relevant. Hence, the aboove paragraphs are reproduced below: **“17.** For the aforestated reason, the Tribunal as well as High Court committed an error by giving a direction to the Appellant to consider the case of Respondent No. 1 for promotion to the post to which Respondent Nos. 2 and 3 were promoted.” **“19.** So far as maintenance of seniority is concerned, para 320 stipulates that there would be different seniority lists for persons who are in equivalent grades. It may happen that different persons might be working in different branches or different units doing different type of work, but they are in one grade, i.e. in one pay scale, and a seniority list for those persons working in one particular grade would be a common seniority list. Thus, it is very clear that seniority list shall be different for each grade and in that event a person working in one particular grade would be WPC 35559/2009 15 promoted to the higher grade on the basis of his seniority in that particular grade.” **“23.** Upon hearing the learned Counsel appearing for the parties and looking at the legal position which we have already discussed hereinabove, we are of the view that the Tribunal as well as the High Court were not right while giving a direction to the Appellants that the case of Respondent No. 1 should be considered for promotion.” 13. It was accordingly held in paragraph 24, that the seniority lists of employees who were working in different grades should be different and there cannot be any common seniority for all the employees working in one particular Group. Based on the above declaration, the judgment passed by this Court, confirming the order passed by the Tribunal, was set aside and the appellant Railways were directed to prepare different seniority lists for the employees working in different Grades, in turn allowing the Civil Appeal filed by the Railways. This being the position, the direction given by the Tribunal to consider whether the integrated seniority list has been prepared by the Railways in WPC 35559/2009 16 conformity with the verdict passed by this Court in W.P.(C) No. 14500/2003 and if not, to modify the same accordingly, is not liable to be sustained. In fact, the verdict passed by the Supreme Court has virtually overruled the decision rendered by this Court and in the said circumstances the seniority has to be reckoned with reference to the date of promotion to the relevant Grade from which elevation is given to Group C and not the total length of seniority in the particular Group. 14. Coming to the other direction, as to the necessity to fill up the slots earmarked in the SC/ST category and the placement given to some other persons belonging to that Group even in the unreserved quota, based on their merit in the written examination and the records of service, the Tribunal in O.A. No.161/2007 held that the persons belonging to the reserved category shall be placed only against the slots available to them and they cannot be given any placement in the general merit list slots. The WPC 35559/2009 17 correctness and sustainability of the said verdict was considered by this Court in O.P.(CAT) Nos.32141/2009 and connected cases. The points formulated to be considered, as reflected in the opening paragraph of the judgment are in the following terms: “Are the Scheduled Caste/Scheduled Tribe candidates, who prove their merit and succeed in the selection obtaining higher ranks, to be placed only in the slots earmarked for SC/ST and are they not entitled to compete with others on merit, to be accommodated against the general slots based on their merit, in turn leaving the slots earmarked for SC/ST to be filled up by other candidates belonging to the said segment ? Are the applicants justified in challenging Annexure A1 clarification, nearly after 'four years' of its issuance, more so, when the original order i.e. Annexure A9, which was directed to be enforced in Annexure A1 still stands and not challenged ?. Are the applicants justified in raising said challenge despite having no grievance in respect of Annexure A1 in the earlier round of selection proceedings, pursuant to Annexure A3 notification of the year 2004 ? Is the Tribunal justified in simply setting aside Annexure A1 order applicable throughout India and ordering review of the exercise involving reversion/loss of seniority of other candidates without impleading them in the party WPC 35559/2009 18 array ? Are the petitioners/Railways not entitled to have a declaration that the course pursued by them is perfectly in tune with the law declared by the Apex Court in **R.K. Sabharwal and Others Vs. State of Punjab and Others [(1995) 2 SCC 745]** , **Union of India and Others Vs. Virpal Singh Chauhan and Others [(1995) 6 SCC 684]** and **M. Nagaraj and others Vs. Union of India and Ors. [(2006) 8 SCC 212]** i.e. after the advent of 'post-based roster', replacing the vacancy based roster ?. These are some of the important questions to be answered in these petitions filed by the Department/Railways who were the official respondents before the Tribunal.” 15. After making a reference to the rulings rendered by the Supreme Court in different cases right from **Indra Sawhney v. Union of India [(1992) 3 SCC Supp.217], R.K. Sabharwal and Others Vs. State of Punjab and Others [(1995) 2 SCC 745]** , **Union of India and Others Vs. Virpal Singh Chauhan and Others [(1995) 6 SCC 684]** and **M. Nagaraj and others Vs. Union of India and Ors. [(2006) 8 SCC 212],** this Court held that the members belonging to the reserved Group, if turn out WPC 35559/2009 19 successful in proving the merit and credentials and secure higher rank, they have to be placed against the relevant slots in the merit quota, based on the merit list and not against the slots earmarked for SC/ST. Accordingly, the verdict passed by the Tribunal in O.A. No. 161/2007 was interdicted and set aside, giving appropriate directions to mould the relief in the said case. This being the position, the direction given by the Tribunal in the instant case, to recast the integrated seniority list based on the observations and direction given by the Tribunal in O.A. No.161/2007 also fails. It is to be noted that when the case came up for consideration before the Apex Court, the law already declared by the Supreme Court in **Krishnan’s case [ (2015) 8 SCC 512] (** supra **)** was brought to the notice of the Court, but then it was stated that there was factual difference in the instant case and hence the matter was remanded, which came to be posted accordingly. 16. It is pointed out from the part of the Registry that, WPC 35559/2009 20 as per the proceedings of the Apex Court, only W.P© No. 35559/2009 has been remanded and in respect of the other case, no appeal was seen preferred before the Apex Court and there is no order of remand as well. On checking the particulars of the parties in the website, both the appeals are stated as preferred by the Railways, against T.P. Shobhana and others. Normally, there is no chance for the Railways to prefer two appeals against the same verdict and the same parties. Evidently, two appeals were there; namely Civil appeal Nos. 2694 & 2695 of 2013. The particulars of the respondents shown in the website are “Shobhana and others” in both the cases. 17. It is stated by the leaned Standing Counsel for the Railways that two separate SLPs. were preferred before the Supreme Court. On checking the matter with regard to the entries in the website and further enquiries conducted by the Registry, it is noted as follows: “As per the information received from the Supreme court WPC 35559/2009 21 Cell C.A.Nos. 2694 and 2695/2013 arising from SLP 20954 and 20955 are filed against W.P(C) No. 35559/2009 and RP 818/2011. R.P.818/2011 was filed against the judgment in W.P.(C) 35559/2009 which was dismissed on 21.11.2011. Jps. in RP 818/2011 are incorporated herewith. In para 6 of the judgment in CA 2694 & 2695/2013 dated 4/5/2016 it is mentioned “that the writ petition is restored to its original number”. Hence only the writ petition is seen restored as per the judgment in C.A Nos. 2694 and 2695/2013. No fresh appearance received for petitioners.” 18. From the above, it is seen that SLP Nos. 20954 and 20955/2013 were filed against the verdict passed in W.P.(C) No.35559/2009 and the order passed in R.P.No. 818/2011. This led to the subsequent Civil Appeals numbered as 2694 & 2695/2013. Virtually no appeal was preferred against the verdict in OP(CAT) No. 1763/2011. 19. In the said circumstances, we do not intend to express anything with regard to O.P. (CAT) No.1763/2011, which has already become final and not taken up befor the Apex Court. With the above observations, this Court finds that the petitioners are entitled to succeed. The verdict passed by WPC 35559/2009 22 the Tribunal, i.e. Ext.P7 stands set aside and W.P.(C) No. 35559/2009 stands allowed. ## **Sd/-** **P. R. RAMACHANDRA MENON** **JUDGE** **Sd/-** **ks.** **SHIRCY V. JUDGE** True copy P.S.(Hr.Gr.)To Judge