N.Sundar v. The Union of India rep. by its General Manager, Southern Railway, Chennai 600 003

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30-09-2008CORAM:THE HON'BLE MR.JUSTICE P.K.MISRAANDTHE HON'BE MR.JUSTICE K.KANNANWP Nos. 21779/2003 & 23113/2003N.Sundar ...Petr., in W.P.No. 21779 of 2003K.Veerasamy ...Petr., in W.P.No.23113 of 2003Vs. 1. The Union of India rep. by its General Manager, Southern Railway, Chennai 600 003.2. The Chief Personal officer,Southern Railway,Chennai 600 003.3. The Divisional Railway Manager,Madras Division,Southern Railway,Chennai 600 003.4. The Registrar,Central Administrative Tribunal,High Court Compound,Chennai 104. ..Respondents in both W.P.sPetitions filed under Article 226 of the Constitution of Indiapraying to issue a writ of Certiorarified Mandamus calling for theentire records connected with the impugned order of the CentralAdministrative Tribunal, the fourth respondent herein passedO.A.No.55 and 278 of 1999 dated 29.3.2001 and quash the same and https://hcservices.ecourts.gov.in/hcservices/ direct the respondents 1 to 3 to restore the petitioner as Grade IIDriver with seniority and all other attendant benefits, in thevacancy that arose consequent on the retirement of 4 permanentautomobile drivers prior to order of implementation of reversiondated 12.8.1996.For Petitioners: Mr.V.Prakash Senior Counsel for Mr.S.N.RavichandranFor Respondents 1 to 3: Mr.V.G.Suresh Kumar ---O R D E RK.KANNAN,JI. The underlying cause for lis:1. A judicial verdict of striking down certain clauses in thedecasualization scheme for Group D services adopted by the railwaysadministration had an unsavory ramification of reversion of‘regulars’ who had been promoted. Two of the affected parties soughtfor the reliefs for restoring them to the previous grade (as GradeII Drivers) with seniority and all other attendant benefits, in thevacancies that arose prior to the order of implementation of theorder of reversion by retirement of 4 permanent automobiledrivers prior to the implementation of reversion dated 12.8.1996.II Disposition at the Tribunal:2. Consequent on the verdict in O.A. Nos. 517/92 and 823/91of the Central Administrative Tribunal, the petitioners and 8 othersfiled O.A.916/96 challenging the impending orders of reversion. Theapplication was dismissed on 17.10.96. The O.A. Nos.55 and 278 of 99filed by the petitioners respectively were also dismissed on theground that the reliefs were barred by principles res judicata by thedecision in O.A.916/96. The amended prayers for restoring them to thehigher post by filling up the permanent vacancies that arose prior toreversion were dismissed by a finding that the relief sought for werehit by Order II rule 2 CPC in that they ought to have pressed for thereliefs even in the earlier O.A and the issue of restoration couldnot be reopened by filing fresh O.As.III. The litigious journey so far: 3. The petitioner in WP 21779/03, N.Sundar joined as acasual laborer on 1.9.1977. He passed the trade test on 19.12.85 andabsorbed as gangman w.e.f. 13.8.86. He was promoted as senior gangman https://hcservices.ecourts.gov.in/hcservices/ on 21.9.87 and obtained a further promotion as Grade III Driver byorder dt. 29.10.87 w.e.f. 15.12. 87 in the existing vacancy. He wasregularized in the said post on 18.11.91 and promoted to Grade IIDriver w.e.f. 1.3.93 and ranked no 3 in the seniority. The petitionerin WP 21113/03, Veerasamy joined as a casual labourer on 6.11.77. Hepassed the trade test on 21.11.86 and absorbed as gangman on 10.1.89.He was promoted as Grade III Driver on 21.7.89 against existingvacancy and regularized as Grade III Driver on 18.11.91. He earned afurther promotion as Grade II Driver w.e.f 1.3.93 alongside Sundarbut placed further down in the order of seniority. In the meanwhile,the Chief Personnel Offer in his letter dated 14.8.91 had set out theprinciples with regard to filling up the posts of Drivers in variousgrades, in a bid to introduce a decasualization scheme by absorbingcasual labor artisans servicing in the scale Rs. 950-1500. Therelevant portion of the scheme was as follows: “2. The mode of filling up these posts has been examined in consultation with the recognized unions. it has beendecided that these posts shall be filled in the followingmanner.i) 50% (fifty per cent) of these posts are to be filed by seniority-cum-senioirity (trade test) from among. a) the artizam Khalasis/helpers in grade Rs.800-150-and b)the Khalsis in grade Rs.750-940 as also c) the erstwhile casual labour artisans (in scale Rs.950-1500who were absorbed in regular vacancies in the lower grades, after 1.1.82. The interest seniority of these regular employees will be fixed as per normal rules.ii) The balance (fifty percent) of the posts will be filled byserving casual labour artisans in scale Rs.950-1500.iii) After exhausting all the service casual labour artisans in the standard traders, there is no objection to other servicing casual labour in scale Rs.950-1500 being considered for absorption against the remaining posts in grade Rs.950-1500 after appropriate trade tests".The petitioners had exercised their option by applying the principleof filling up 50% from regular Gr.D staff invoking the scheme to thecategories i(a) and (b) . 4. Soon there after O.A.No.832/91 and O.A.No.517/92 werefiled before the Central Administrative Tribunal,Madras benchchallenging the above principles in the letter of chief personal https://hcservices.ecourts.gov.in/hcservices/ officer. These O.As. were decided on 15.11.1993 and 2.9.1994respectively. It was held therein that diversion of posts createdunder the decasualisation scheme to the categories 1(a) and 1(b) ofthe letter of CPO dated 14.8.1991 would be illegal. In pursuance ofthe orders passed in the above, as regards the decasulisation ofposts, the principles laid down had to be modified to include onlythose who were working as casual labour drivers on the crucial dateand the erstwhile casual labour drivers who were obsorbed in regularvacancies in the lower grade after 1.1.1982. In this process ofreview, it was found that all the applicants in the O.A. before theTribunal did not fulfill the revised principles. Faced with theimmediate prospect of reversion, the petitioners had filedO.A.916/96, in which the petitioners were respectively applicants 3and 6. The applications were dismissed on 17.10.96. The Tribunal madesome observations, gratuitous as they seem: "However, before parting with the cse,we may observe that the applicants had beenfunctioning as drivers for a number of years.Though their reversion in the presentcircumstances cannot be questioned, it is for therespondents to consider promoting them as Driversby suitable creation of posts/adjustments, so thatthe loss in emoluments may be reduced. Thisobservation by itself will not confer any right tothe applicants for claiming any such promotion orregularization or seniority". The petitioners gave representations on 1.11.96, on thebasis of the observations, making a pointed reference to the factthat “four senior drivers had also retired. “ie. 1. N.Murugan (2)C.Logarajan 3.S.Palani and 4.T.Doraikannu) and regular vacancies hadalso arisen. Therefore, I should also be considered against the saidvacancy. Both the petitioners had joined the reverted post in protestand filed the O.As. which were disposed of in the manner indicatedabove and impugned in the writ petitions. IV. Appraisal of the contentionsThe history of the litigation ending with the order of theTribunal in its decision O.A. 916/96 shall be the starting point forconsidering the merits of the petitioners’ claim because, they cannot reopen the issue of reversion done on the basis of the orders inO.A. Nos. 823/91 and 517/92, which have become final. From therepresentations of the petitioners after the reversion, it ispossible to gather that there fell permanent vacancies following theretirement of the following persons: https://hcservices.ecourts.gov.in/hcservices/ N.Murugesan retired on 31.3.93C.Lingaraj on 31.3.93S.Palani on 31.7.95T.Duraikannu on 30.3.96. This fact has also been referred in the affidavit for amendment ofthe prayer and the prayer as it now stands is based only theaverments relating to these permanent vacancies. The original replystatement does not join issues on these averments. Shri. V. Prakash,the senior counsel appearing on behalf of the petitioners draws ourattention to the fact that in the Engineering Branch, MadrasDivision, the sanctioned cadre strength as on 1.4.1995 for automobiledrivers against permanent posts were 45 and temporary posts were 26.The counsel for the respondent placed before us the office note,adverting to the representations given by the petitioners after theywere reverted. We have gone through the same. It is noted that sincethey had been reverted to the post of gangmen, it was possible to re-promote them only to Grade III and not directly to Grade II whichpost they held. It was however, decided to protect their emolumentsdrawn in higher grade of Grade II to the extent permissible underrules. The reply statement filed before the Tribunal and the counteraffidavit filed by the respondents in the writ petition did not meetthe averments as regards the so called 4 permanent vacancies thatfell in Grade II at the time when the reversion was made. On ourdirection, the respondent filed a further affidavit purporting toexplain the same. The vacancies were not denied. It was explained bystating that 2 vacancies were surrendered during the restructuring inthe year 1993 and 1996 and that only 10 posts were available in thescale Rs.950-1200. The appointments of the petitioners had alreadybeen made in Grade II at that time in the manner that thedecasualization scheme was worked originally but they had to bereverted consequent to the order of the Tribunal. Again, by the timewhen two more vacancies fell with the retirement of Palani andDuraikannu, there had been an order of status quo passed in OA823/1991 but were filled up after absorbing applicants in OA 517 of1992 and 823 of 1991. When orders for reconsideration ofrepresentation was given in OA 914/96, they were utilized to re-promote seniors of the petitioners. The averments in the furtheraffidavit are not very specific with regard to the crucial questionabout how the 4 vacancies were filled up. No clear details areavailable with reference to records. On the other hand, we find thatthe respondent counters it only by stating that it is not possible tore-create the picture as to utilization of posts at fairly a distanttime. Such a response is neither here nor there. It is an undeniableprecept of service jurisprudence that promotion would take effect https://hcservices.ecourts.gov.in/hcservices/ only from the date when it actually made and not when the vacanciesarise, but when a reversion is made of persons who already held thehigher posts for no misconduct on their part and when vacancies aroseagain in the higher posts, there should be sound justification fornot considering the reverted persons to restore them gradually so asto help them get back their lost posts. We do not think, we can setthe clock back and direct their promotion to be given from the datewhen vacancies arose. We are informed that the petitioners have sinceearned their promotion to Grade II in 2007 in the regular course.Evidently, there are no adverse entries against the petitioners allalong. In our sympathetic consideration of all the aspects andbalancing equities, it would subserve justice if their scales of payare reworked notionally in the higher posts in Grade II at leastfrom 24.01.2001, the date when the petitioners approached theTribunal with amendment of their prayer. This way, there could be noviolence to the order already passed in OA 916/96 to be fettered withthe bar of res judicata or the technical plea of O.2.r.2. CPC. Amodicum of financial benefit without upsetting the seniority positionor awarding promotion from a retrospective date will be most just inthe circumstances. It will mean a just reward for persons who havebeen serving without blemish in their service for more than 3 decadesand will help improve the industrial morale and sense of pride amongthe workmen.V. ConclusionWe therefore, set aside the order of the CentralAdministrative Tribunal in OA 55 & 278/99 and direct notionalpromotion by reworking the scales of pay in the promotion post ofGrade II Drivers effective from 24.1.2001, without any right to claimarrears on such basis. The writ petitions are disposed on the aboveterms. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1. The General Manager, The Govt. of India, Southern Railway, Chennai 600 003. https://hcservices.ecourts.gov.in/hcservices/

2. The Chief Personal officer,Southern Railway,Chennai 600 003.3. The Divisional Railway Manager,Madras Division,Southern Railway,Chennai 600 003.4. The Registrar,Central Administrative Tribunal,High Court Compound,Chennai 104.+ 2 CC To Mr.V.G.Suresh Kumar, Advocate SR NO.56393,56395+ 2 CC To Mr.S.N.Ravichandran, Advocate SR NO.56103Pre-Delivery Order inW.P.NO.21779 OF 2003 AND 23113 OF 2003NM {CO}TP/16.10.08