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2002 DIGILAW 25 (KER)

C. Pankajakshan v. Union Of India

2002-01-11

K.BALAKRISHNAN NAIR, K.S.RADHAKRISHNAN

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Judgment :- Radhakrishnan, J. Common question arises for consideration in these cases. Hence we are disposing of these cases by a common judgment. We may deal with the facts in O.P. 9005/2001 for disposal of these cases. Petitioners approached the Tribunal to recast the seniority in the different grades of Commercial Clerks in Palakkad Division, Southern Railway with retrospective effect by implementing the decision of the Supreme Court in Ajith Singh (II) (1999 (7) SCC 209) and the order of the Tribunal dated 6.9.1994 in O.A. 552/90 and connected cases and to refix their seniority and promotions accordingly with consequential benefits. 2. Complaint of the petitioners was that while they were working as Commercial Clerks in the entry grade in Palakkad Division their junior who belong to SC/ST community were promoted erroneously applying 40 point roster on arising vacancies superseding the seniority. For recruitment and promotions in service, 22.5% of the post is reserved for members of the SC/ST communities. To ensure that, a mechanism of 40 point roster is employed in the matter of promotions. Reservation is to be applied on cadre strength and not on vacancies and the seniority of the reserved and unreserved category of employees in the lower category would be reflected in the promoted category also notwithstanding earlier promotions. Obtained by the reserved category candidates. Complaints were raised that Railway Administration is promoting SC/ST candidates overlooking the legitimate claim of seniors. The unreserved category candidates challenged the said action of the Railways in the High Court of Allahabad in C.J. Mallick v. Union of India, 1978 (1) SLR 844. The High Court held that the reservation would be applied on cadre strength and not on arising vacancies. Matter was taken up before the Apex Court in C.A. No. 2017/78. Apex Court vide interim order dated 24.2.1984 granted relief to unreserved categories of employees. Later Railway Administration issued letter No. 85 E (SCT)/49/2 dated 26.2.1985 referring to the various interim orders passed by the Apex Court in the matter of reservation for SC/ST candidates and stated as follows: "All promotions should be deemed as provisional and subject to the final disposal of the writ petition by the Supreme Court." Yet another letter dated 25.4.1985 was issued by the Railway Administration relying upon similar orders issued by the Madras High Court. In this connection it may be pointed out that a telex/telegram was issued with reference to P. (GS) 608/XLL/2/H/Vol. XXI dated 25.4.1985 dealing with the same issue. It is stated therein as follows: "It may be ensured that the prescribed percentage viz. 15% and 71/2% for SCs and STs respectively, is worked out on the total number of posts whenever promotions are made in the matter explained in para 1 above following the 40 point roster so that at any given point of time, the reservation for SCs and STs does not exceed 15% and 71/2% respectively in each grade. All the promotions should be deemed as provisional and subject to the final disposal of the writ petitions." Petitioners herein later brought up the issue before the Tribunal and the Tribunal formulated the following points. (a) Whether reservation is to be applied on the cadre strength or on the vacancies arising? (b) Whether seniority in the lower post among employees belonging to non-reserved and reserved category would be reflected in the higher post, irrespective of earlier promotions obtained by employees belonging to a reserved category? Tribunal after referring to the decision of the Apex Court in J.C. Malick & others v. Union of India and others, 1978 (1) SLR 844; Vir Pal Singh Chaughan and others v. Union of India and others (1987) 4 ATC 685 held that the principle of reservation operates on the cadre strength and that seniority vis-a-vis reserved and unreserved categories of employees in the lower category will be reflected in the promoted category also notwithstanding the earlier promotion obtained on the basis of reservation. 3. Applying those principles Railway Administration was directed by the Tribunal to work out the reliefs of the applicants therein. We may indicate that the writ petitioners herein were applicants in those O.A.s such as O.A. 552/90, 483/91 etc. The above mentioned decision of the Tribunal was taken up before the Apex Court in Special Leave to Appeal (Civil) No. 10691/95 etc. with a petition for condonation of delay. Delay was condoned and the court ordered as follows: "These matters are fully covered by the decision of this court in R.K. Sabharwal & others v. State of Punjab & others 1995 (2) SCC 745 and Ajith Singh Januja and others v. State of Punjab and others AIR 1996 SC 1189. The special leave petitions are, therefore, dismissed. 4. Delay was condoned and the court ordered as follows: "These matters are fully covered by the decision of this court in R.K. Sabharwal & others v. State of Punjab & others 1995 (2) SCC 745 and Ajith Singh Januja and others v. State of Punjab and others AIR 1996 SC 1189. The special leave petitions are, therefore, dismissed. 4. In the meantime some of the Station Masters and Traffic Inspectors of Palakkad Division of Southern Railways approached this Court and filed O.P. 16893/98 claiming the benefit of the decision of the Supreme Court in Ajith Singh and others v. State of Punjab and others, (1999) 7 SCC 209. This court disposed of the writ petition holding that the Supreme Court had given a clear principles of retrospectivity for revision in paragraph 89 of the judgment. Consequently, this Court directed the Railway Administration to reconsider the seniority and promotion of the petitioners therein accordance with principle laid down in Ajith Singh's case. 5. This writ petition is preferred by the Commercial Clerks of the same division seeking identical reliefs. They had filed various representations before the Railway Administration seeking such reliefs. Later they approached the Tribunal. Tribunal however, dismissed the application. Aggrieved by the same this writ petition has been preferred. We are of the view the claim raised by the writ petitioners deserve consideration. In Ajith Singh's case Supreme Court has considered the issue raised exhaustively and held as follows: "It is axiomatic in service jurisprudence that any promotions made wrongly in excess of any quota are to be treated as ad hoc., This applies to reservation quota as much as it applies to direct recruits and promotee cases. If a court decides that in order only to remove hardship such roster-point promotees are not to face reversions - then it would, in our opinion be, necessary to hold - consistent with our interpretation of Articles 14 and 16(1) - that such promotees cannot plead for grant of any additional benefit of seniority flowing from a wrong application of the roster. In our view, while courts can relieve immediate hardship arising out of a past illegality, courts cannot grant additional benefits like seniority which have no element of immediate hardship. Thus, while promotions in excess of roster made before 10.2.1995 are protected, such promotees cannot claim seniority. In our view, while courts can relieve immediate hardship arising out of a past illegality, courts cannot grant additional benefits like seniority which have no element of immediate hardship. Thus, while promotions in excess of roster made before 10.2.1995 are protected, such promotees cannot claim seniority. Seniority in the promotional cadre of such excess roster-point promotees shall have to be reviewed after 10-2-1995 and will count only from the date on which they would have otherwise got normal promotion in any future vacancy arising in a post previously occupied by a reserved candidate. That disposes of the `prospectivity' point in relation to Sabharwal. Where before 1.3.1996, i.e. the date of Ajith Singh judgment at Level 3, there were reserved candidates who reached there later but before the reserved candidate was promoted to Level 4) and when in spite of the fact that the senior general candidate had to be treated as senior at Level 3 (in view of Ajit Singh), the reserved candidate is further promoted to Level 4 without considering the fact that the senior general candidate was also available at Level 3 - then , after 1-3-1996. It becomes necessary to review the promotion of the reserved candidate to Level 4 and reconsider the same (without causing reversion to the reserved candidate who reached Level 4 before 1.3.1996). As and when the senior reserved candidate is later promoted to Level 4, the seniority at Level 4 has also to be refixed on the basis of when the reserved candidate at Level 3 would have got his normal promotion, treating him as junior to the senior general candidate at Level 3. Chander Pal v. State of Haryana has to be understood in the manner stated above." Counsel appearing for the writ petitioners submitted on the basis of the above mentioned decision by the Apex Court Railway Administration is bound to review the seniority position of the petitioners and to refix the same in accordance with cadre strength. Further they submitted they have already retired from service and consequently they must be given the retirement benefits giving them notional promotion. Counsel for the Railway Administration contended since writ petitioners had already retired from service they are not entitled to get notional promotion or any monetary benefits. It is difficult to accept the contention of the Railway Administration. It is evident from the documents produced before this Court especially, Ext. Counsel for the Railway Administration contended since writ petitioners had already retired from service they are not entitled to get notional promotion or any monetary benefits. It is difficult to accept the contention of the Railway Administration. It is evident from the documents produced before this Court especially, Ext. P2 that all the promotions are provisional and subject to the result of the various writ petitions pending. Since promotions to reserved categories were made provisional we are of the view rigthts of the persons in the unreserved category cannot be defeated. In other words, promotions given to the reserved category have never become final. Apex Court has clearly held that while promotions in excess of roster made before 10-2-1995 are protected, such promotees cannot claim seniority. Seniority in the promotional cadre of such excess roster-point promotees shall have to be reviewed after 10.2.1995 and will count only from the date on which they would have otherwise got normal promotion in any future vacancy arising in a post previously occupied by a reserved candidate. We cannot accept the contention of the Railway Administration that the Supreme Court never wanted to review the promotions made prior to 10.2.1995. According to them persons already promoted shall not be disturbed or reverted. That does not mean the illegality meted out to the unreserved category shall not be rectified. Though they are not entitled to get salary for the period they had not worked in the promoted post we are of the view they are legally entitled to claim notional promotion and then to work out their retirement benefits accordingly. We are of the view this is what is discernible from the decision of the Apex Court in Ajith Singh's case which was subsequently reiterated by the Apex Court in M.G. Badappanavar v. State of Karnataka. (2001) 2 SCC 666. We are therefore of the view petitioners are entitled to succeed. Respondents would give the petitioners the seniority by applying the principle laid. Down in Ajith Singh's case and give them retrial benefits revising their retirement benefits accordingly. This should be done within a period of three months from the date of receipt of a copy of this judgment. Original petitions are allowed as above. Order of the Central Administrative Tribunal would stand set aside.