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2025 DIGILAW 204 (KER)

K. p. johns/o. K. L. POULOSE v. UNION OF INDIA

2025-02-06

AMIT RAWAL, K.V.JAYAKUMAR

body2025
JUDGMENT : (K.V. JAYAKUMAR, J.) Feeling aggrieved by the order of the Central Administrative Tribunal in O.A.No.157/2015 dated 11.01.2019, the petitioner/applicant preferred this original petition. 2. The petitioner filed an original application before the Central Administrative Tribunal claiming the following reliefs: (i) Declare that the non-feasance on the part of the respondents to grant the applicant the benefit of regularization and seniority as Chief Commercial Clerk with effect from 17.09.1981 as ordered in A1 is arbitrary, discriminatory, contrary to law and unconstitutional; (ii) Direct the respondents to grant the applicant the benefit of regularization as Commercial Clerk with effect from 17.9.1981 and direct further to grant the benefit of regularization and seniority as a consequence thereof within a time frame as might be found just, fit and proper by this Hon’ble Tribunal; (iii) Direct the respondents to grant the applicant the benefit of promotion in the cadre of Commercial Clerk as if the applicant has been regularly appointed as a Commercial Clerk with effect from 17.9.1981 with all the consequential benefits including arrears of pay and allowances arising there from on par with the applicant’s juniors appointed on or after 17.9.1981; (iv) Direct the respondents to revise the applicant’s pension and other retirement benefits in the light of declarations and directions above; and direct further to grant all arrears of pay and allowances and that of pension and other retirement benefits with interest calculated @ 9% per annum from the date the arrears fell due up to the date of full and final settlement of the same; (v) Award costs of and incidental to this application; (vi) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case” 3. The facts necessary for the disposal of the case in brief as follows: The petitioner/applicant is a retired Chief Commercial Clerk Grade-III in PB-2 plus Grade Pay of Rs.4200/-. The case of the petitioner is that, he was deprived of his retirement benefits and lost promotion due to erroneous fixing of seniority by the respondents, Union of India and its employees. 4. The applicant superannuated from service on 31.05.2014 and initially engaged as casual labourer on 21.08.1970 in the construction organization of the Southern Railway. He continued there without break up till 21.07.1976. 5. 4. The applicant superannuated from service on 31.05.2014 and initially engaged as casual labourer on 21.08.1970 in the construction organization of the Southern Railway. He continued there without break up till 21.07.1976. 5. He was appointed as a Substitute Luggage Porter in the Transportation Department of Southern Railway with effect from 21.07.1976 on compassionate grounds, consequent to the death of his father. 6. While so he was absorbed as a commercial clerk in Group – C in the scale of Rs.260-430/- against the 33 1 /3 % quota reserved for Group-D staff. He was appointed as an adhoc Commercial Clerk with effect from 17.09.1981 and was regularized only on 25.05.1990. However, qualifying the in- service training course was not a precondition for regular appointment after the process of selection and therefore, the applicant should have been regularized as a Commercial Clerk with effect from 17.09.1981. The petitioner/applicant approached the Labour Court, Ernakulam, claiming regularisation with effect from 17.09.1981. In the award dated 31.12.2005, it was held that the denial of regularization and seniority to the applicant with effect from 17.09.1981 is illegal. 7. On the basis of the above award, the applicant submitted representations to the respondents, and finally the respondents changed the applicant’s date of promotion as 17.09.1981. However, the respondents did not assign the seniority in an appropriate manner. Thereafter, the applicant/petitioner submitted Annexure A6 representation. There was no response from the side of the departments. Therefore, the petitioner/applicant sought further promotion on par with his juniors. 8. The stand of the respondents, Union of India and its ofÏcers, before the Tribunal and before us is that, the application of the applicant is hit by the principles of limitation, estoppel and acquiescence. The applicant has not challenged any of the documents regarding his service or any of the orders promoting him to a higher post, nor promotions of any of the juniors whom he thinks have got promotion above him. Moreover, without passing the training, an employee cannot be given the benefits of the post with seniority. The applicant was sent for training on different spells, but he could not succeed in the same and finally, on 26.05.1990 cleared the mandatory training. 9. The learned Tribunal, noticing the rival contentions of the parties, dismissed the O.A, holding that the claim of the petitioner is hit by the law of limitation. The applicant was sent for training on different spells, but he could not succeed in the same and finally, on 26.05.1990 cleared the mandatory training. 9. The learned Tribunal, noticing the rival contentions of the parties, dismissed the O.A, holding that the claim of the petitioner is hit by the law of limitation. It will be worthwhile to extract the relevant paragraph of the order of the Central Administrative Tribunal. Paragraphs 7, 8 and 9 read as follows: “ 7. As we have seen the award which is given in his favour by the Labour Court (Central) was in the year 2006, however, he made representation only in the year 2012 and filed the present OA in 2015. Therefore, it is certainly hit by the Law of Limitation. The Hon’ble Apex court in Noharlal Verma’s case (supra) held as under. “If a suit, appeal or application is barred by limitation, a Court or an adjudicating Authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits” 8. Basically applicant wants that the should be given seniority retrospectively in terms of the award. The applicant should have gone for execution of the award and why he has abdicated his right in the year 2006, no explanation has been offered by him. Now even if he wants seniority from a retrospective date, he has to represent it before the respondents and on being unsuccessful for not revising the seniority list, he could have approached this Tribunal in time by making the affected seniors as party respondents. However, after a decade now he wants to unsettle the settled position of seniority in the cadre. He cannot be simply allowed to do so without giving opportunity of being heard to the affected parties and no adverse order could be passed against them. The apex court time and again observed that settled position of seniority shall not be unsettled by the drop of the hats. In Ramchandra Shanker Deodhar and others v. State of Maharashtra – AIR 1974 SC 259 , considered the effect of delay in challenging the seniority list and held that any claim for seniority at a belated stage should be rejected inasmuch as it seeks to disturb the vested rights of other persons regarding seniority, rank and promotion which have accrued to them during the intervening period. More so, the applicant has not explained the delay in approaching the appropriate authorities at appropriate time. 9. In view of the legal position stated hereinabove we are of the considered opinion that the present OA is devoid of merit and is hit by the Law of Limitation. Hence, dismissed with no order as to costs.” 10. The learned counsel for the respondents supported the order of the central Administrative Tribunal. On the other hand, the learned counsel for the petitioner/applicant submitted that the impugned order is patently illegal and unsustainable. 11. According to the learned counsel for the petitioner, the findings of the Central Administrative Tribunal with regard to the Law of Limitation and non-joinder of the parties are patently wrong. The pith and substance of the contention of the petitioner is that, he got a favourable award (Annexure A1) rendered on 31.12.2005, the award has become enforceable from the expiry of 30 days from the date of publication, ie., 31.12.2005. The petitioner had submitted Annexure A2, A3, and A4 representations dated 17.01.2007, 16.04.2007 and 15.04.2008, respectively. 12. Therefore, the findings of the Tribunal in paragraph 7 that the petitioner had made the representation only in the year 2012 is factually incorrect. On the basis of the representations, the petitioner was promoted during the pendency of the ID as per the Annexure A5 seniority list. 13. On the basis of Annexure A5 seniority list, the petitioner submitted Annexure A6 representation. It is submitted that, the respondents ought to have first assigned the petitioner the date of promotion as Commercial Clerk as on 17.09.1981 and consequently re-fixed the petitioner’s seniority in the said post before deciding the petitioner’s seniority in the higher post of Sr. Commercial Clerk, to which post the petitioner was promoted in the year 2000. 14. Therefore, it is further submitted that the findings of the Tribunal that the petitioner ought to have impugned the various seniority lists are totally unsustainable. 15. The learned counsel for the petitioner/applicant further submitted that, since the petitioner superannuated from service on 31.05.2014, no prejudice will be caused to any other employees, even if the original application is allowed. 16. Admittedly, the petitioner obtained the Annexure A1 award in his favour on 31.12.2005. The award was published on 08.04.2006, and it became operative on the expiry of 30 days from its publication. Annexure A1 is the true copy of the award. 16. Admittedly, the petitioner obtained the Annexure A1 award in his favour on 31.12.2005. The award was published on 08.04.2006, and it became operative on the expiry of 30 days from its publication. Annexure A1 is the true copy of the award. The paragraph 15 of Annexure A1 is extracted hereunder: “ In these circumstances and for the above discussion I am of the view that the seniority of the promotees from Group-D to the post of Group-C should be the date of promotion and posting in Group-C. Therefore the denial of regularisation and seniority to the employees Sri. K.P. John and K.V. Venugopal in the workman involved in I.D. 33/03 and 34/03(C) respectively of their promotion as commercial Clerk is not fair proper and justifiable. Therefore the management is directed to regularised and give seniority to K.P. John in the workman in I.D.33/03(C) w.e.f the date of promotion and posting and K.V. Venugopal the workman in I.D. 34/03(C) w.e.f the date of promotion and posting in the Group-C posts. In the result, a common award is passed holding that the denial of regularisation and seniority to the employees Sri. K.P. John and Sri. K.V. Venugopal the workman involved in I.D.33/03 and 34/03(C) promotion as commercial clerk is not fair proper and justifiable and the management is directed to regularise and give seniority to Sri. K.P. John workman in I.D. 33/03(C) w.e.f. from the date of promotion and posting as commercial clerk and Sri. K.V. Venugopal workman in I.D. 34/03 (C) w.e.f the date of promotion and posting as commercial clerk.” 17. On going through the order of the Central Administrative Tribunal, it could be seen that the Tribunal was carried away by the principles of limitation, estoppel, and non- joinder of necessary parties. However, the Tribunal had failed to understand the significance of the enforcement of Annexure A1 award passed by the competent authority. In Annexure A1 award, it is categorically stated that the denial of regularisation and seniority to Sri. K.P. John is not fair, proper, and justifiable. The findings of the Tribunal in paragraph 7 that the petitioner had made representation only in 2012 are factually incorrect. In fact, the petitioner had submitted Annexure A2, A3 and A4 representations, claiming seniority, on the basis of Annexure A1 award, on 17.01.2007, 16.04.2007 and 15.04.2008 respectively. K.P. John is not fair, proper, and justifiable. The findings of the Tribunal in paragraph 7 that the petitioner had made representation only in 2012 are factually incorrect. In fact, the petitioner had submitted Annexure A2, A3 and A4 representations, claiming seniority, on the basis of Annexure A1 award, on 17.01.2007, 16.04.2007 and 15.04.2008 respectively. Had the Tribunal noticed this aspect, it ought not to have dismissed the claim on the basis of the doctrine akin to delay and laches. In the light of the above discussion, we are of the considered view that the petitioner/applicant is entitled to get reliefs claimed in the original application. 18. Therefore, the original application is allowed, directing the respondents to regularise the petitioner as a commercial clerk with effect from 17/09/1981 and to revise his pension on that basis notionally. It is made clear that the petitioner is entitled to get the arrears of his pension so fixed. We further make it clear that the petitioner/applicant is not entitled to get any back wages. The original petition is disposed of with the above directions. The respondents shall complete the aforementioned exercise within a period of three months from the date of receipt of a copy of this judgment.