P.K. Preethi vs Union Of India & Ors.

Per: Justice Sunil Thomas, Judicial Member –

The applicant joined service under the 3^rd respondent Southern Railway as a Track Woman. By Annexure A3 notification issued by the 3^rd respondent dated 16.7.2010 applications were invited for promotion to the post of Junior Clerk (Office Clerk) against 33 and 1/3^rd percentage promotion quota. The applicant, though responded to the notification and was qualified in the selection process, one Syam Mohan was promoted against the sole unreserved vacancy, by Annexure A4. The selection was challenged by the applicant herein in OA No. 977 of 2011, which was dismissed. She preferred OP (CAT) No. 3775 of 2013. It was allowed by the High Court by Annexure A5 judgment dated 23.9.2015. It was held that the applicant was entitled to be promoted to Group-C by applying Rule/paragraph 189 of Indian Railway Establishment Manual (IREM). The appointment of Syam Mohan was quashed. The respondents were directed to reconsider the case of the petitioner in terms of the above direction.

It emerges that the above judgment was challenged by Syam Mohan before the Supreme Court and the SLP preferred was stated to be pending at the time of institution of the OA. In the meanwhile Annexure A5 was implemented and applicant was promoted by Annexure A6 dated 23.6.2016 with effect from 28.6.2016. Syam Mohan was reverted. Accordingly, the applicant joined on 28.6.2016. Thereafter, she submitted Annexures A9 and A10 representations requesting to grant her proforma promotion with effect from 22.7.2011, i.e. the date on which Syam Mohan was promoted by Annexure A4. These representations were not immediately responded. However, Annexure A1 provisional seniority list was published. The applicant was placed at serial No. 10. Respondents Nos. 4 to 7 in the OA were placed above the applicant. The applicant claims that she ought to have been placed between respondents Nos. 5 and 6. In the meanwhile Annexure A10 was rejected by Annexure A2 order.

The applicant has approached this Tribunal seeking essential relief of quashing Annexures A1 and A2 and relief No. (iii) which is as follows:

Heard the learned counsel for the applicant, learned Senior Panel Counsel on behalf of the Railways and learned counsel appearing on behalf of private respondents Nos. 4, 6 and 7. Respondent No. 5 though served, remained absent.

In the reply statement the essential contention set up by the respondents was that in the OP (CAT) there was no direction to promote the applicant with retrospective effect and the direction was only to consider the applicant as per rule/paragraph 189 of the IREM. Hence, the applicant was not entitled for any relief as sought.

When the OA was taken up learned counsel for the applicant placed before us the order of the Hon’ble Supreme Court in Civil Appeal Nos. 8016 and 8017 of 2016 which was disposed of by a common order dated 25.7.2023. It was filed challenging Annexure A5 judgment and by a separate proceeding the said Syam Mohan was directed to be promoted, presumably in a separate promotion process. The above order clearly shows that Annexures A5 judgment of the Hon’ble High Court was not interfered with but some relief was granted to Syam Mohan.

Regarding the private respondents herein, it was submitted by the counsel that respondent No. 4 has retired. 6^th respondent was promoted as Office Superintendent in SC category. 7^th respondent, who is disabled, did not appear for the examination. Hence, he has forfeited his right. In the above circumstances, any order passed in this OA is not likely to affect the contesting respondents.

The only question that arises herein now, is whether the applicant is entitled to be promoted notionally under proforma promotion with effect from 22.7.2011, i.e. the date on which Syam Mohan was promoted. The purport of Annexure A5 judgment clearly shows that the applicant was entitled to be promoted by virtue of rule/paragraph 189 of IREM. The learned counsel for the applicant placed reliance on the judgment of the Supreme Court in Jayachandran C. v. State of Kerala & Ors. 2020 (2) KHC 478. That was a case wherein the applicant in the above case was wrongly excluded from appointment. Ultimately it was held that when the incumbent was excluded from appointment on account of an illegal act by the respondents, which was later set right, the select list was liable to be revised and the incumbent would be deemed to be part of the appointment as if he had been appointed originally as per the original select list. The incumbent was entitled for notional appointment from that date and consequential seniority. The above decision is directly applicable to the facts of the present case. In the light of the clear finding that the applicant ought to have been appointed in the selection process consequent to exclusion of the incumbent in Annexure A4, she is entitled to be given notional promotion with effect from 22.7.2011.

Hence, we are inclined to grant the relief as sought for by declaring that the applicant is entitled to notional promotion with effect from 22.7.2011 with all consequential benefits thereon. The OA is allowed to the above extent. Appropriate orders shall be passed by the 3^rd respondent re-fixing his seniority and quantifying the benefits due to her, as expeditiously as possible within a period of three months from the date of receipt of a copy of this order. No costs.

Annexure A1 – True copy of provisional seniority list bearing No. V/P.612/Seniority/Vol.9 dated 18.12.2018/01/01/2019, issued from the office of the 3^rd respondent.

Annexure A2 – True copy of letter bearing No. V/P.443/Misc/Vol.IX(Pt.) dated 3.1.2019, issued from the office of the 3^rd respondent.

Annexure A3 – True copy of notification bearing No. V/P.531/II/Office Clerks dated 16.7.2010 issued from the office of the 3^rd respondent.

Annexure A4 – True copy of office order bearing No. 80/2011/WP dated 22.7.2011 issued from the office of the 3^rd respondent.

Annexure A5 – True copy of judgment dated 23 Sep 2015 in OP (CAT) No. 3775/2013 rendered by the Hon’ble High Court of Kerala.

Annexure A6 – True copy of memorandum bearing No. V/P.OA.977/2011/87 dated 23.6.2016 issued from the office of the 3^rd respondent.

Annexure A7 – True copy of office order bearing OO No. 97/2016/WP dated 27.6.2016 issued from the office of the 3^rd respondent.

Annexure A8 – True copy of letter bearing No. S/2.Staff dated 28.6.2016 issued by the Assistant Divisional Engineer/Southern Railway/Thrissur.

Annexure A9 – True copy of representation dated 3.6.2017 addressed to the Divisional Railway Manager and also the 3^rd respondent Sr. DPO.

Annexure A10 – True copy of detailed representation dated 3.4.2018 addressed to the 3^rd respondent.

Annexure A11 – True copy of order dated 24.1.2019 in OA No. 180/57/19 rendered by this Hon’ble Tribunal.

Annexure A12 – True copy of representation dated 25.1.2019 addressed to the 2^nd and 3^rd respondent.

Annexure A13 – True copy of notification bearing No. P(RT)563/LDCE/Sr. Clerk dated 26.10.2018 published on behalf of the 1^st respondent.

Annexure A14 – True copy of Railway Board order bearing RBE No. 38/19 dated 01 March 2019.

Annexure A15 – True copy of the order bearing No. V/P.535/I/Misc/Vol.3 dated 24.9.2019 issued by the 3^rd respondent.

Annexure A16 – True copy of notification bearing No. V/P608/LDCE/OS-Sr. Clerk dated 23.9.2020 issued by the 3^rd respondent.

Annexure A17 – True copy of the application dated 28.9.2020 along with application for the post of Office Superintendent against 20% LDCE quota.

Annexure A18 – True copy of the list bearing No. V/P.535/I/office Clerk/Vol.XII dated 22.12.2020 issued by the 3^rd respondent inviting eligible candidates for filling up of 8 vacancies of Senior Clerks and for conducting a suitability test.

Annexure A19 – True copy of the order No. V/P.268/III/RT/Combined category dated 10.2.2022 issued by the 3^rd respondent.

Annexure R1 – True copy of letter No. V/P.535/Misc./Vol.3 dated 24.9.2019.

Annexure R2 – True copy of the relevant portion of para 226 of Indian Railway Establishment Code-Volume I.