Union of India & Senior Divisional Personnel Officer, Southern Railway v. B. Christudas and J. Vijayakumar

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 12TH DAY OF FEBRUARY 2020 / 23RD MAGHA, 1941 OP (CAT).No.258 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OA 180/00510/2018 DATED 27-03-2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM** ## **BENCH** ## **PETITIONERS:** - **1 UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-600 003.** - **2 SENIOR DIVISIONAL PERSONNEL OFFICER SOUTHERN RAILWAY, THIRUVANANTHAPURAM DIVISION, DIVISIONAL OFFICE, THYCAUD, THIRUVANANTHAPURAM695 014.** **BY ADV. SRI.A.DINESH RAO** ## **RESPONDENT/S:** - **1 B.CHRISTUDAS, SON OF BHANU NADAR, RETIRED TRACK MAINTAINER, THIRUVANANTHAPURAM DIVISION, SOUTHERN RAILWAY, RESIDING AT KAVIKUZHI, MELEPUTHENVEEDU, OTTASEKHARAMANGALAM, NEYYATTINKARA, THIRUVANANTHAPURAM-695 125.** - **2 J.VIJAYAKUMAR,SON OF JOSEPH, RETIRED TRACK MAINTAINER, TRAIVANDRUM DIVISION, SOUTHERN RAILWAY, RESIDING AT SREE PADMANABHA THOPPU VEEDU, THAMALAM, POOJAPPURA P.O., THIRUVANANTHAPURAM-695 012.** ## **R1-2 BY ADV. SRI.MARTIN G.THOTTAN** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 12.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P(CAT) No.258/2014 2 ## **JUDGMENT** **Dated this the 12[th] day of February, 2020** ## **Vinod Chandran, J.** **The applicants claimed that they are also entitled to the regularisation from 2003 on the basis of other judgments, in the case of identically situated persons. The learned Counsel for the respondent has placed reliance on a judgment of the Division Bench of this Court in O.P(CAT) No. 30/2016 and connected matters dated 21.12.2016 as also a subsequent judgment in O.P(CAT)No.288/2017 dated 16.11.2017. The learned Standing Counsel appearing for the petitioner however, distinguishes the aforesaid decisions on the ground of delay. The petitioners though were denied regularisation in the year 2003, did not approach the Tribunal immediately. They approached the Tribunal for regularisation only in the year** O.P(CAT) No.258/2014 3 **2007. They were considered and regularised and they retired from service without filing even a representation for regularisation from the prior date. After retirement they have approached this Court for regularisation from the earlier date which is only for the purpose of getting pension; to which they are otherwise dis-entitled to. On the above grounds the learned ASG of India seeks rejection of the claim on grounds of delay and laches.** **2. On the background facts, the Railways had a practice of regularising casual labourers who attain temporary status. The Hon'ble Supreme Court in** _**Inderpal Yadav and others v. Union of India [(1985) SCC (L&S) 526]**_ **held that all causal labourers had to be placed in a live list and that the future vacancies arising in the Railways in Group D post should be filled up from the said live list. There was, earlier, maintained a list** O.P(CAT) No.258/2014 4 **of casual labourers appointed after 1981 which later was supplemented with a list of prior appointees too. Subsequently there was a merged list of seniority of prior and post 1981 casual labourers, from which the Railways were filling up the future vacancies in Group D.** **3. While such filling up was done in the year 2003 many persons were called for appointment to the vacancies in regular posts. However, many of the persons who were in the live list were declined employment for reason of their having crossed the maximum age. The said prescription of maximum age was challenged, which led to this Court finding that there could be no age prescription since** _**Inderpal Yadav (supra)**_ **did not make such a prescription. Many of the persons who were declined regularisation in 2003 for reason of they having crossed the maximum age approached the Tribunal and were regularised based on favourable orders. The** O.P(CAT) No.258/2014 5 **decisions relied on by the respondent herein were the decisions of this Court in the Original Petition filed by the Railways.** **4. Looking at the facts of one Viswanathan, it was the earliest challenge made, as early as in the year 1999. He had later been directed to be included in the live list by the decision of this Court. When his claim was overlooked in the year 2003 for reason of his having crossed the age limit he filed O.A No.615/2004. Viswanathan was regularised and he was given entire benefits from the year 1996 onwards, on a notional basis. All the other applicants claimed the same. However, the Division Bench in O.P(CAT) No.30/2016 categorically found that it was only by a mistake, that Viswanathan was permitted notional benefits from 1996. The others were permitted such regularisation from 04.11.2003. With respect to the applicant who was the** O.P(CAT) No.258/2014 6 **respondent in O.P(CAT) No.30/2016 we see from the judgment that immediately after he was declined appointment in the year 2003 he filed O.A No.633/2003 before the Tribunal in which he was directed to be granted regularisation. The distinction as drawn by the learned Standing Counsel in the present case, is that the applicants approached the Tribunal only in the year 2007.** **5. Looking at the facts of the present case, the claim of both the respondents was that they had more than 700 days casual service between 1979 and 1983. They were also included in the live list prepared by the Railways as per** _**Inderpal Yadav.**_ **On 03.11.2003 they were also called for selection, but were denied appointment for reason of their having crossed the maximum age limit. They did not challenge such denial immediately. They filed O.A, only in the year 2007 in which they** O.P(CAT) No.258/2014 7 **were directed to be considered. The consideration was made and the second applicant was appointed on 03.09.2008 and the first applicant on 12.09.2011, the latter by reason of his being found medically unfit in the consideration and he having taken legal proceedings against his denial again which led to his subsequent appointment. The applicants having been regularised prospectively from that date, never sought for a consideration of their regularisation from 04.11.2003 as in the case of others.** **6. In this context we look at the decision of another Division Bench in O.P(CAT) No.288/2017, in which also the applicant/respondent who had appeared for the selection in the year 2003 approached the Tribunal only in the year 2007. He was granted the relief of consideration upon which he was considered and regularised in a Group D post. He sought for notional benefit of** O.P(CAT) No.258/2014 8 **regularisation from the prior date of the year 2003, in the year 2015, by filing O.A before the Tribunal. The only distinction that could be drawn is that he had filed the O.A before his retirement. In the present case, admittedly, the petitioners have claimed regularisation with retrospective effect from 04.11.2003 only after retirement.** **7. The learned Standing Counsel has two submissions to make against the notional regularisation from a prior date; one that there is delay and in the case of the applicants herein they had approached the Tribunal only after their retirement. The learned Counsel would also refer to the decision of the Hon'ble Supreme Court reported in** _**State of Uttar Pradesh v. Arvind Kumar Srivastava [2015(1) SCC 347]**_ **. We extract Paragraph 23 of the said decision:-** **23. The legal principles which emerge from** O.P(CAT) No.258/2014 9 **the reading of the aforesaid judgments, cited both by the Appellants as well as the Respondents, can be summed up as under:** **(1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle need to be applied in service matters more emphatically as the service jurisprudence evolved by this Court form time to time postulates that all similarly situated persons did not approach the Court earlier, they are not to be treated differently.** **(2) however, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the** O.P(CAT) No.258/2014 10 **Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. (3)However, this exception may not apply in those cases where the judgmnet pronounced by the Court was judgment** _**in rem**_ **with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (K.C Sharma and others v. Union of India[(1997) 6 SCC 721] ). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the** O.P(CAT) No.258/2014 11 **judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.”** **The learned Standing Counsel stresses on the fact that the delay and laches would place the applicants herein on a different footing.** **8. We see that the Railways had been consistently contesting these issues before this Court. All the decisions have now acquired finality. Some have been unsuccessfully challenged before the Supreme Court and many others not challenged at all. We see specifically that the cited decisions had not been challenged before the Hon'ble Supreme Court and the Railways had accepted the same. All the applicants stand on the same footing insofar as they having been declined** O.P(CAT) No.258/2014 12 **regularisation for reason only of their crossing an age, which prescription itself was found to be bad. The prescription of maximum age having been found to be bad all these persons were entitled for regularisation as on 04.11.2003. Their entitlement arose from the judgment of the Hon'ble Supreme Court in** _**Inderpal Yadav**_ **which is a decision** _**in rem**_ **relating to all casual labourers engaged in the Railways. Their juniors who had not crossed the age limit prescribed stole a march over them. They were denied employment itself for long years and had to resort to the arduous path of litigation to realise their dream to get employment; which in fact was their rightful due. Every applicant who approached the Tribunal was granted the notional benefit of regularisation and they were permitted to draw pension if they are eligible by the notional retrospective regularisation. We do not think that the applicants herein should be declined** O.P(CAT) No.258/2014 13 **the benefit for reason only of their having not sought for regularisation from 04.11.2003 before their retirement.** **The Original Petition hence would stand rejected. No order as to costs.** **Sd/K. VINOD CHANDRAN, JUDGE.** **Sd/V.G. ARUN, JUDGE.** **Jma/** O.P(CAT) No.258/2014 14 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF O.A.NO.180/00510/2018 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **ANNEXURE P1(A1) TRUE COPY OF ORDER PASSED BY THIS HON'BLE TRIBUNAL IN O.A.NO.391 OF 2007 DATED 15.10.2007.** **ANNEXURE P1(A2) TRUE COPY OF THE SALARY CERTIFICATE ISSUED TO THE 1ST APPLICANT.** **ANNEXURE P1(A3) TRUE COPY OF THE SALARY CERTIFICATE ISSUED TO THE 2ND RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS IN O.A.NO.180/00510/2018.** - **ANNEXURE P2(R1) TRUE COPY OF RAILWAY BOARD'S LETTER NO.F(E)III/2003/PN1/24(RBE NO.225/2003) DATED 31.12.2003.** **EXHIBIT P3 TRUE COPY OF THE MEMORANDUM DATED 20.03.2018.** **EXHIBIT P4 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE TRIBUNAL DATED 27TH MARCH, 2019 IN O.A.NO.180/00510/2018.**