M. Rasheed vs Union Of India & Ors.

Justice K.Haripal, Judicial Member

Applicant is a former Junior Clerk in General Branch under the Divisional Railway Manager in the Southern Railway, Trivandrum. He had commenced service as Rakshak in the Railway Protection Force on 19.01.1983 and thereafter appointed as Junior Clerk in the grade of Rs.3050-4590. On completion of 12 years of service in the same grade he was granted first financial upgradation from 01.10.1999 with a pay of Rs.4500-7000. On completion of 24 years he was not granted financial upgradation appropriately, he had to move this Tribunal with O.A.181/2012, which was allowed on 01.10.2014. It is submitted that even after passing such an order he was not granted the second financial upgradation under the ACP.

The applicant has a case that throughout his career he was victimized by the respondents, he was not given due financial upgradations or promotions. He was eligible to be promoted to the post of Senior Clerk in 2003, then as Office Superintendent in 2008 and Chief Office Superintendent in 2013. Then he gave Annexures-A2 and A3 representations, which were not considered, then he moved this Tribunal with O.A.430/2016, where-under the said representations were directed to be considered and disposed of within six weeks.

However, by Annexure-A5 order his representations have been rejected illegally. He is aggrieved by the fact that even after completion of 30 years of service he was not granted next grade. In spite of repeated requests he was denied the benefits for the alleged reason of not passing suitability test along with further promotions and grades. Such an act will not sustain. Alleged suitability test was introduced only on 03.09.2009 by the Railway Board. If professional ability, record of service and seniority of the applicant were considered before 2009 itself, he would have been promoted to the post of Office Superintendent, but all the service benefits and promotions were denied to the applicant even though he had passed MSTC and typewriting. According to the applicant, even after 2009, after the introduction of the suitability test it was not followed uniformly. In some of the Railways, such test was not at all known to the employees. Here, even without writing such test, five persons namely, K.S.Anilkumar, K.N.Suresh, B.Sunilkumar, K.Ushakumari and S.Muthuswamy were promoted from the post of Peon to Office Superintendent during the period from 2010 to 2016 in the personnel branch, Thiruvananthapuram. Another person by name Benoj Viswappan was promoted from the post of Peon to Office Superintendent and one Kaliraj from the post of Clerk to Office Superintendent during the period 2012-2016. If the respondents say that the above persons have written the alleged suitability test, applicant prays the Tribunal to call for the records regarding the said test including answer papers and to peruse the veracity. As per the Railway Manual, no eligibility test can be conducted by the Deputy Personnel Officer, but the test to be conducted by Railway Recruitment Board. That means, nepotism and corruption have caused such different treatment to different persons.

Referring to Annexure-A6 it is submitted that he is in receipt of the notice for recovering an amount of Rs.88,930/- besides Rs. 11,000/- which was paid as personal pay in excess. It was also alleged that he has submitted fraudulent SSLC certificate etc. But according to him, there is no basis in it, such statements are false, personnel branch of the Railway is fixing the salary, he has been paid correct pay and Rs.11,000/- has been paid regularly and hence action for recovery was recommended illegally. Applicant had passed Hindi examination and recommendation for the personal pay was made by 'Rashtrabhasha adhikari', there was nothing on the part of the applicant for making such recoveries. Referring to Annexure-A7, it is stated that he has been issued identity card showing him as Senior Clerk from 2007 onwards.

Thus he has stated that he has not been granted promotion even though he had come in the zone of consideration from 2003 onwards. He has right to be promoted according to the Indian Railway Establishment Manual. When there is a right of promotion, non-consideration of the claim is a penalty particularly when juniors are promoted and he is having merit cum suitability. The recovery of amounts from the salary of the applicant on the basis of Annexure-A6 order is without any legal or factual support. Similarly, it is submitted that denial of tuition fees to the applicant with regard to the education expenses of children is also part of victimization.

On these contentions, the following reliefs are sought by the applicant:

Thereafter, through M.A.1012/2017 the applicant produced Annexure-A9 to say that he has passed MSTC with 54 marks on 24.07.2003 itself. Annexure-A10 is a provisional seniority list of different categories including Chief Office Superintendent etc., where the name of the applicant finds place at sl.No.1 in the category of Junior Clerk. Similarly, through Annexure-A11 he wanted to say that sl.No.9 in Annexure-A11 Shaji Varghese is an Office Superintendent, who has been asked to write MSTC only on 05.06.2007. The test was conducted only on 14.07.2015. Sl.Nos.1, 5, 17, 18 and 21 are Senior Clerks for the last several years. He also wanted to say that many of his juniors in Annexure-A10 were granted promotion, whereas that was denied to him.

On behalf of the respondents, Senior Divisional Personnel Officer filed reply challenging the very maintainability of the O.A. According to him, the 1^st respondent need not be represented by Secretary, Ministry of Railway and the 2^nd respondent by Chairman, Railway Board. Secretary, Ministry of Railway and Chairman, Railway Board are not necessary parties and the respondents 1 and 2 have to be deleted from the party array.

Referring to Annexure-R1 it is submitted that on completion of 24 years of service, the applicant was granted 2^nd ACP with effect from 25.09.2007. Thus he was granted the next grade of Rs.5000-8000 in the 5^th CPC, Rs.9300—34800 with grade pay of Rs.4200/- in the 6^th CPC. Copy of that communication is marked as Annexure-R1. It is submitted that OP(CAT)55/2015 filed against Annexure A1 was dismissed. Now the matter has been referred to the Railway Board for advice. Meanwhile, he has completed 30 years and is being considered for grant of 3^rd MACP.

The claim that he was eligible for promotion from 2003 onwards is not true. Before effecting promotion, he has to fullfill necessary conditions attached to the post. The applicant had failed in the suitability test conducted on 05.07.2014; later he did not turn up for the test when he was called for the post of Senior Clerk. Thus he was not promoted as Senior Clerk. It is submitted that he was not borne in the seniority list of Senior Clerk since he did not pass the suitability test.

Regarding the promotion of K.S.Anilkumar, K.N.Suresh, B.Sunilkumar, K.Ushakumari and S.Muthuswamy it is submitted that the contentions are vague and bald, and the applicant has to establish his averments with substantial proof. He cannot make such an allegation against the aforesaid persons without impleading them in the array of parties. The prayer for production of the answer papers of the above mentioned persons also is misconceived. If they have been promoted without subjecting suitability test, it is not known as to how the answer sheets would be available, is incomprehensible.

Further, he has already filed O.A.453/2017 on the allegations in paragraph (IV)5 of the O.A and thus such a matter cannot be agitated here.

Again, O.A.456/2017 was also filed claiming reimbursement of tuition fee, which is also pending for consideration before this Tribunal. Referring to Annexure-A7, it is submitted that, that cannot be taken to substantiate the contention that he has become Senior Clerk. Such an identity card might have been issued based on the declaration made by the applicant before the Divisional Security Commissioner of Southern Railway, and the motive for the same needs to be found out.

Even though he was selected as Rakshak, before being posted in the RPF, was medically decategorised and was posted in the Personnel Branch.

It is also submitted that he has come up with contradictory statements. As per the extant policy, Railway employees have to retire at the age of 60 years on superannuation. As such, the applicant cannot make a prayer extending five years of service beyond the period of superannuation without challenging the policy. Thus the O.A. is sought to be dismissed.

Applicant filed a rejoinder reiterating his earlier contention that he should have been granted promotion in 2003 itself. If such a claim was considered, he would have become Office Superintendent in 2008 itself and would have gone up further in the hierarchy and therefore the O.A. is sought to be allowed.

We heard Sri.K.J.Raphy representing Shri.Shabu Sreedharan, learned counsel for the applicant and Smt.Girija K Gopal, learned Standing Counsel for the respondents, in detail.

Learned counsel for the applicant filed an argument note also in support of the contentions raised in the O.A. There also he was pressing that the applicant was entitled to be promoted in 2003, then he would have become Chief Office Superintendent by now. According to the learned counsel, he has always been subjected to victimization by the respondents. He had to approach this Tribunal on various occasions for getting any benefit either it is ACP or financial upgradations; he was not granted due promotions. The counsel also submitted that after passing the restructuring order, number of posts had gone up, even without undergoing suitability test he was entitled to be promoted, but that was not done; at the same time, such promotions were granted to his juniors in the category who have all moved ahead of him, which has caused him considerable heartburn and financial loss.

The learned counsel also submitted that the applicant confines to prayer Nos.(a) and (b).

Learned Standing Counsel, Smt. Girija K Gopal has denied the contentions. According to her, it is true that the applicant had passed MSTC, but it is only a training course. From the documents produced by the applicant itself, it is clear that he had not passed the suitability test, on the second occasion, when he was called upon to undergo the test, he did not attend the test; without passing the test, he could not have been considered for promotion as Senior Clerk. She also pointed out that he has been granted second ACP and third MACP and has already retired from service in January 2019.

Before considering the rival submissions, we notice that both O.As 453/17 and 456/17 have already been disposed of. O.A 453/17 was allowed to the extent of restraining the respondents from attempting any recovery from the applicant in the backdrop of State of Punjab and Others v. Rafiq Masih, (2015) 4 SCC 334. We also noticed that his pay was re-fixed from 01.07.2006 onwards granting 2^nd ACP from 19.01.2007 (on the lines of the directions in Annexure A1 order) and 3^rd MACP from 19.01.2013. The audit objection referred in Annexure A6 had lost significance and the demand notice for recovery of Rs.88,930/- had lost its basis.

Similarly O.A 456/17 seeking reimbursement of tuition fee was dismissed on 03.03.2026. In fact we are unable to comprehend as to how the applicant is justified in making such contentions again in the instant O.A.

After considering the rival contentions, materials and arguments of the learned counsel on both sides, we are sure that there are numerous legal grounds and materials made available by the applicant to say that the O.A. is not maintainable in law. Firstly, the applicant claims that he should have been granted the benefit of restructuring in 2003, then he would have become a Senior Clerk in 2003, Office Superintendent in 2008 and Chief Office Superintendent in 2013. Let us forget the claim for Chief Office Superintendent in 2013, but Annexue-A1 shows that he had moved an O.A. before this Tribunal in 2012. There, his grievance was only against the date of granting ACPS excluding the period of training. In other words, he was appointed as Rakshak and then as Clerk, and therefore he wanted the period of training to be included for the purpose of grant of 2^nd ACP. That prayer was allowed and he was granted 2^nd ACP from 19.01.2007 onwards. Here, what we want to highlight is, in the O.A. filed in 2012 even though the correctness of the date of granting 2^nd ACP was challenged, question of non-granting of promotion in 2003 and 2008 was not raised but was raised for the first time only in an O.A. filed in 2017, which cannot be approved in right earnest.

Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in former proceedings shall be deemed to have been a matter directly and substantially in issue in the proceedings. Respondents 1,3 to 5 are the respective respondents in Annexure A1. That means, these are litigations between the same parties. When he had raised the challenge against the date of grant of 2^nd ACP in 2012, he might and ought have raised this contention also, that he should have been granted promotion in 2003 and 2008, as a direct benefit of the restructuring policy of the Railways. For reasons bet known to the applicant, that was not done. Now the applicant is raising his grievances piece-meal which is not permitted under law. Therefore, the O.A. is bad under constructive res-judicata falling under the mischief of Section 11 of the CPC.

The applicant has a case that he had been victimized by the Railways, for which on several occasions he was driven to the Tribunal and he obtained benefits only on the basis of orders issued by the Tribunal. If that be the position, it is not known as to why he did not agitate non-granting of benefit of restructuring of 2003. Annexure-A12 order on restructuring of cadres in Group-C and Group-D was issued on 09.10.2003, but clause 4 of the order reads thus:

That means, despite issue of order of restructuring in 2003, the mode of selection of upgradation of posts continued as such and suitability test could not have been waived by the respondents. In this connection, Annexure-R3 communication on the 'procedure to be followed for filling up non-selection posts and conducting of suitability test' states based on paragraph 214(a) of IREM that 'non-selection posts will be filled up by promotion of senior most suitable Railway servants, suitability whether an individual or a group of Railway servants being determined by authority competent to fill the posts on the basis of record services or departmental tests, if necessary.' There, instructions issued vide office letter dated 03.07.1990 and 12.08.2002 have been reviewed and following instructions were issued for strict implementation with immediate effect:

This communication dated 04.07.2011 contains all the necessary procedures for the conduct of the suitability test.

That means, even in 2011, there was instructions to conduct suitability test. As stated earlier, Annexure-A12 also states that the method of promotion and classification have not been changed. Annexure-A13 clarification issued on 08.10.2013 do suggest that such suitability test for the purpose of promotion pursuant to restructuring should have been avoided. But, till Annexure-R3, as stated earlier, such tests should have been conducted for ascertaining the suitability and a clarification was issued only in 2013. Of course, on that basis, Annexure-A13 suitability test could have been avoided. But we do not know why that was not done.

All the same, as indicated earlier, the applicant has approached the Tribunal only in 2017 and this delay is not explained. It is the settled proposition of law that a person sleeping over his rights especially in a service matter, cannot agitate the question at any point of time to his convenience. Here, the period of limitation bars his claim. There is no substance in the contention that this is a recurring cause of action. In this connection, the following observations of the Hon'ble Supreme Court in Chief Executive Officer vs S. Lalitha [2025 KHC 6393] are very apposite.

Even though these matters were not specifically pleaded, it being questions of law, even without pleading, Tribunal is bound to consider since it touches on the very maintainability of the O.A.

There were numerous complaints by the applicant that he was not given promotion from 2003 onwards, that his juniors were considered for promotion, that he had passed MSTC, which was ignored etc. But it requires to be stated that a pass in MSTC does not give an opening for granting promotion to the post of Senior Clerk or Office Superintendent. It is only a training or course which had no bearing in the grant of promotion. Even in the restructuring order of 2003 and the communication, Annexure-R3 of 2011, it is clear that a suitability test should have been undergone by him. It appears that such suitability test was insisted even after the issuance of Annexure-A12, which is clear from Annexure-A5, which is self-explanatory. Annexure-A5 reads thus:

After evaluating the entire materials and circumstances, we are not inclined to grant any relief to the applicant. The Original Application is barred by res judicata. Applicant has come up with a stale claim. It has come out that he has already been granted even 3^rd MACP in lieu of non-granting of promotion. He had not passed suitability test for granting promotion to the post of Senior Clerk or Office Superintendent. Unless he proves suitability through the test conducted by the respondents, he could not have claimed promotion to higher posts. Promotion to the post of Senior Clerk was necessary to consider him to the post of Office Superintendent or Chief Office Superintendent. Since he did not pass the suitability test, he cannot claim promotion. He did not raise these disputes at the appropriate time.

On these considerations, the Original Application fails and is dismissed. No costs.