The General Maanager vs P.Sreenivasulu
2022 Latest Caselaw 7867 AP

              THE HONOURABLE SRI JUSTICE A V SESHA SAI
                                    AND
                THE HONOURABLE SIR JUSTICE V SRINIVAS
                       WRIT PETITION NO.13062 of 2005



ORDER:-(per AVSS,J)

      Heard Sri N.Harinath, Assistant Solicitor General for Union of India

for the petitioners.

      Judgment dated 08.09.2004, rendered by the Central Administrative

Tribunal, Hyderabad bench in O.A.No.46 of 2004 is under the challenge in

the present Writ Petition.

      Respondent/Applicant herein is a retired HSK Grade II fitter in South

Central Railway and he joined in railways in the year 1972 as a Loco-

Khalasi. After securing periodical promotions, ultimately, he got promotion

as HSK Grade-II fitter in the year 1988. In terms of proceedings dated

10.11.1988, the respondent/applicant retired from service on attaining the

age of superannuation on 30.06.2001. A Seniority List in the cadre of

Khalasis came to be issued by the authorities on 28.07.2000. The aggrieved

parties moved the Central Administrative Tribunal by way of filing

O.A.No.933 of 2000. The Tribunal vide order dated 12.03.2001 allowed the

said Original Application and quashed the proceedings impugned in the said

Original Application and issued consequential directions to the respondents

therein to prepare fresh Seniority List in accordance with the ratio in the

judgment in the case of Smt. V.Kameshwari .The railway authorities

prepared and issued a revised Seniority List in accordance with the said

judgment on 20.03.2002. Admittedly by the date of issuance of the said

revised Seniority List, the applicant/respondent, on attaining the age of

superannuation, retired from service on 30.06.2001. It is also not in

controversy that after the publication of the said Seniority List juniors to

the applicant/respondent namely Sri P.Subbaramaiah and Sri S.Balayya

were given promotion as Grade I fitters. The applicant/respondent herein,

in the above background submitted representation to the Senior Divisional

Personal Officer, South Central Railway, Vijayawada, with a request to re-

fix his pay on performa basis as fitter HS-1 and to arrange to revise his

pension.

The Divisional Office vide proceedings No.B/P.535/III/C&W/OA

No.709/2003 dated 02.09.2003 declined to consider the said request of the

applicant/respondent precisely on three grounds namely:

1. Applicant/respondent retired from service on attaining the age of

superannuation on 30.06.2001 and his name was not included in the

revised Seniority List.

2. Policy decision was taken by the administration not to review the

cases of the retired employees either for promotion or revision as

there is no provision to conduct the suitability tests etc.,

3. In terms of Rule 50 of Railways Services (Pension) Rules, 1993, pay

which is not actually drawn shall not form part of the emoluments.

Assailing the Validity of the aforesaid proceedings dated 02.09.2003,

the respondent/applicant approached the Tribunal by way of the

present Original Application and for a consequential direction to the

respondents to give promotion as Grade I fitter from the date on the

promotion of his juniors namely Sri P.Subbaramaiah and Sri S.Balayya

and to re-fix his pay and pension basing on the said date of promotion.

The respondents in the Original Application, who are the petitioners

herein, resisted the Original Application by filing a reply statement,

reiterating what they stated in the proceedings dated 02.09.2003. The

Tribunal by way of order impugned in the present Writ Petition, while

turning down all the contentions pressed into service by the

authorities, allowed the Original Application and while setting aside the

proceedings dated 02.09.2003 granted the relief and directed the

respondents in the Original Application to promote the

applicant/respondent notionally and to fix the pension and retirement

benefits.

According to the learned Assistant Solicitor General, the order

passed by the Tribunal which is impugned in the present Writ Petition is

erroneous and contrary to law. In elaboration, it is further contended by

the learned Assistant Solicitor General that since the respondent herein

already retired from service on attaining the age of superannuation prior

to the issuance of the revised Seniority List dated 20.03.2002 and in the

teeth of Rule 50 Railway Services (Pension) Rules, 1993, the Tribunal

grossly erred in allowing the Original Application.

In the above background now the question that boils down for

consideration and adjudication by this Court in the present Writ Petition is

"Whether the order passed by the Tribunal which is impugned in the

present Writ Petition is sustainable and tenable and whether the same

warrants any interference of this Court under Article 226 of Constitution of

India."

There is absolutely no controversy with regard to the appointment

of the petitioner and his retirement from service. It is also not in dispute

that the Central Administrative Tribunal passed an order in the Original

Application No.1933 of 2000 on 12.03.2001, categorically directing to

prepare fresh Seniority List in accordance with the ratio laid down in Smt.

V.Kameshwari's case and fixed three (03) months time for completion of

the exercise.

Admittedly in pursuance of the aforesaid directions issued by the

Tribunal dated 12.03.2001 in O.A.No.1933 of 2000, the authorities issued

the revised Seniority List on 20.03.2002. The Tribunal directed specifically

that the entire exercise should be done within three (03) months. Had the

authorities adhered to the said direction and taken action within three (03)

months, the applicant/respondent would have got the opportunity of

securing the promotion and he retired from service on 30.06.2001.

A perusal of the order passed by the Tribunal which is impugned in

the present Writ Petition shows that the Tribunal, duly taking into account

the law laid down by the Hon'ble Supreme Court in the case of Nalinikanth

Simha vs State of Bihar and others reported in AIR of 1993 Supreme Court

1358 and the decision of the Hon'ble Supreme Court in the case of

S.P.Ragunandhan Singh vs State of Karnataka reported in the AIR 1994

Supreme Court 1693 arrived at the conclusion that the authorities are not

justified in denying to consider the request of the applicant/respondent

herein. With regard to the objections pertaining to the suitability test, the

Tribunal in para No.9 of the impugned order while referring to the 214 (A)

of the Indian Railways Establishment Management and taking into account

the failure on the part of the railway authorities in placing on record the

material pertaining to the mode of promotion, turned down the contention

contra advanced by the respondents in the Original Application. The

Tribunal also dealt with the objection of the authorities with reference to

the Rule 50 of the Railway Services (Pension Rules 1993) and turned down

the same by cogent and convincing reasons.

It is a settled and well established principle of law that invocation

of the jurisdiction of this Court under Article 226 of Constitution of India

for issuance of the writ in the nature of Writ of certiorari is impermissible

unless the order impugned suffers from jurisdictional error or patent

perversity or passed in violation of the principals of natural justice. The

said contingencies are constitutionally absent, in the order impugned in

the present Writ Petition.

For the above said reasons, the Writ Petition is dismissed. These

shall be no order as to costs.

Miscellaneous Petitions pending, if any, in this Writ Petition shall

stand closed.

____________________ JUSTICE A V SESHA SAI

_________________ JUSTICE V SRINIVAS

Date: 16.09.2022 VTS

THE HONOURABLE SRI JUSTICE A V SESHA SAI

AND

THE HONOURABLE SIR JUSTICE V SRINIVAS

WRIT PETITION NO.13062 of 2005

16.09.2022

VTS