(2012) 260 KLR 351 

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR 

MONDAY, THE 2ND DAY OF JULY 2012/11TH ASHADHA 1934 

OP (CAT).No. 872 of 2012 (Z) 

------------------------------------------ 

OA.121/2011 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH 

....... 

PETITIONER(S):RESPONDENTS IN THE O.A. 

-------------------------------------------------------------- 

1. SENIOR HEAD, PERSONNEL & GENERAL ADMINISTRATION, VIKRAM SARABHAI SPACE CENTRE, THIRUVANANTHAPURAM-695 022. 

2. THE DIRECTOR VIKRAM SARABHAI SPACE CENTRE THIRUVANANTHAPURAM-695 022. 

3. UNION OF INDIA, REPRESENTED BY THE SECRETARY DEPARTMENT OF SPACE/CHAIRMAN, ISRO ANTARIKSH BHAVAN, NEW BEL ROAD, BANGALORE-560 231. 

4. THE DIRECTOR, IISU, VIKRAM SARABHAI SPACE CENTRE, VATTIYOORKAVU THIRUVANANTHAPURAM-695 013. 

BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA 

RESPONDENT(S)/APPLICANT IN THE O.A. 

----------------------------------------------------------- 

K.R.RADHAKRISHNAN DEPUTY GENERAL MANAGER (RETIRED) INERTIAL SYSTEMS ELECTRONICS PRODUCTION ISRO INERTIAL SYSTEMS UNIT THIRUVANANTHAPURAM-695 013. 

BY ADV. SRI.VISHNU.S.CHEMPAZHANTHIYIL (NO MEMO) 

THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 03/04/2012 THE COURT ON 02072012 DELIVERED THE FOLLOWING:

APPENDIX 

PETITIONER'S EXHIBITS 

• P1:- COPY OF OA. 121/2011 DT.D 6.2.2011 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. 
• P2:- COPY OF THE REPLY STATEMENT IN OA.121/2011 DTD. 12.5.2011. 
• P3:-COPY OF THE REJOINDER IN OA. 121/2011 DTD. 20.6.2011. 
• P4:- COPY OF THE ADDITIONAL REPLY STATEMENT IN OA.121/2011 DTD. 30.1.2011. 
• P5:- COPY OF THE ORDER PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA.121/2011 DTD. 13.1.2012. 

RESPONDENT'S EXHIBITS:- 

• R1(a):- COPY OF THE ADDITIONAL REJOINDER FILED IN OA.121/2011 BY THE RESPONDENT. 
• R1(b):- COPY OF THE MESSAGE SENT BY E-MAIL TO THE CHAIRMAN, ISRO ON 12.12.2010. 

//TRUE COPY// P.S. TO JUDGE tss 

THOTTATHIL B.RADHAKRISHNAN & C.T.RAVIKUMAR, JJ. 

----------------------------------- 

O.P(CAT).No.872 of 2012 

------------------------------------ 

Dated this the 2nd day of July, 2012 

Head Note:-

Central Civil Services (Pension) Rules, 1972 - Rule 48A - It would not be in the interest of an establishment like ISRO to permit a person who has availed voluntary retirement and gone out of service, to come back to its establishment, a sensitive zone in National interest, after being out of the establishment for quite some time. 

J U D G M E N T 

Thottathil B. Radhakrishnan, J. 

C.R. 

1.Union of India and others challenge the decision and resultant directions issued by the Central Administrative Tribunal on the respondent's plea that his request for withdrawal of notice given by him for retirement on completion of 20 years' of qualifying service ought to have been accepted by the establishment. 

2.Working as a Scientist/Engineer SG and holding the designation - Deputy General Manager, Inertial Systems Electronics Production, ISRO - Inertial System Unit, Vikram Sarabhai Space Centre, Thiruvananthapuram, the respondent submitted on 22.07.2010, a notice of his voluntary retirement with effect from 15.11.2010. The Department of Space in the Government of India conveyed to the ISRO & VSSC, on 09.09.2110, its approval for acceptance of that notice of voluntary retirement submitted by the respondent. That was received by the Senior Head, Personnel and General Administration, VSSC, Thiruvananthapuram, on 11.11.2010. On that day, i.e. 11.11.2010, the respondent submitted a letter to the Director, VSSC, stating that he proposes to withdraw his application opting for voluntary retirement. Annexure A8 to Exhibit P3 shows that on 11.11.2010 itself, the Director, VSSC, endorsed on that notice that since relieving order is already issued by the Department the Space, it is not possible to consider the withdrawal notice now. It is evident from Annexure R2 to Exhibit P2 that respondent's withdrawal notice dated 11.11.2010 was sent up to the Department of Space, which, in turn, examined that request and informed the Director, VSSC, on 15.11.2010 that the withdrawal of respondent's notice of voluntary retirement has not been accepted by the Department. VSSC was thereby directed to take further necessary action to relieve the respondent of his duties with effect from 15.11.2010 FN. Consequentially, non- acceptance of the respondent's request for withdrawal of his voluntary retirement notice was intimated to him as per communication dated 03.12.2010. That was challenged by the respondent before the Tribunal. As per the impugned Exhibit P5 order, the Tribunal allowed the respondent's original application and directed the establishment to pass suitable orders for his reinstatement and to treat the period of his absence as on duty with allowances. It is also ordered that the period shall also count for working out increment admissible to him. 

3.Voluntary retirement on completion of twenty years' qualifying service, is governed by Rule 48A of the Central Civil Services (Pension) Rules, 1972, hereinafter, the "Rules", for short. Rule 48A, to the extent relevant, reads as follows:

"48-A. Retirement on completion of 20 years' qualifying service (1) At any time after a Government servant has completed twenty years' qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service. Provided that this sub-rule shall not apply to ............... 

(2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the appointing authority: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. 

(3)........................... 

(3A)..................................... 

(4) Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority: Provided that the request for withdrawal shall be made before the intended date of his retirement."

4.Impeaching the impugned order, it is argued on behalf of the establishment that the Tribunal acted contrary to law in passing it without appreciating the spirit of the rule that applies and without noting that no reason whatsoever was shown by the respondent for the withdrawal of the notice of voluntary retirement, for the satisfaction/consideration of the competent authority. It is argued that the Tribunal erred in law in assuming that the reason for refusal of withdrawal is that contained in the endorsement made by the Director, VSCC, on the respondent's request for withdrawal of the notice of voluntary retirement. It is pointed out that the said endorsement contains only the Director's observations or recommendations while forwarding the respondent's representation to the competent authority, and that, the final decision on the request of the respondent seeking withdrawal of his notice of voluntary retirement was taken by the competent authority. It is also pointed out that the Tribunal erred in failing to appreciate the fact that the vacancy which arose consequent on the respondent's voluntary retirement has been filled up by the establishment, following due procedure. It is argued that the Tribunal exceeded its jurisdiction in issuing the impugned directions; much after the respondent's voluntary retirement took effect. 

5.Per contra, the learned counsel for the respondent, also relying on a counter affidavit filed to this original petition, argued that the request for withdrawal of notice of voluntary retirement cannot be mixed up with the establishment's communication for relieving the respondent on voluntary retirement and that it is trite law that in spite of the establishment accepting the notice of voluntary retirement, that notice could be withdrawn before the date notified by the government servant for his voluntary retirement. It is further argued that the endorsement made by the Director, VSCC, on the respondent's request for withdrawal is only to the effect that the request for withdrawal cannot be considered since the notice of voluntary retirement has been accepted by the competent authority. On such premise, it is argued that the said endorsement is of no consequence since the respondent's voluntary retirement would not taken effect before the date notified by him for voluntary retirement, in spite of the earlier acceptance of its notice by the competent authority and notwithstanding such acceptance, it would be open to the government servant to seek approval for his withdrawal of such notice, provided such request is made before the date opted by him for voluntary retirement. So much so, nothing in law prevented the acceptance of the respondent's request for approval to withdraw his notice for voluntary retirement, it is argued. Respondent's learned counsel further argued that on the facts and in the circumstances the case, no room for interference is made out since the only direction of the Tribunal is to reinstate the respondent to service and to let him serve the establishment after settling the accounts relatable to the amounts which have been disbursed to him on voluntary retirement, which amounts have been received by him without prejudice to the proceedings from which this original petition arises.

6.While it was pointedly argued on behalf of the establishment that there was no rhyme or reason stated by the respondent in his application for withdrawing the notice of voluntary retirement; making specific reference to the decision of the Apex Court in Balram Gupta v. Union of India, 1987 Supp SCC 228, it was argued on behalf of the respondent that the government servant is at liberty to withdraw the notice of voluntary retirement at any time before the date on which the voluntary retirement was to take effect on the basis of the government servant's notice in that regard and that what is fundamental for consideration is as to the reason, if any, that the establishment has, to have refused the request of the government servant to withdraw his notice of voluntary retirement. 

7.It is of the substance of Rule 48A (4) that a government servant, who has elected to retire under that rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority; provided that the request for withdrawal shall be made before the intended date of his retirement. Therefore, when a government servant who has given notice of voluntary retirement makes a request for withdrawal of that notice, before the intended date of his retirement, the appointing authority has to consider that request for withdrawal for specific approval. Since the request for withdrawal could be made before the intended date of retirement, the government servant concerned would be within his rights, if he were to do so within such time limit, even if it were a case where the competent authority had accepted the notice of voluntary retirement in terms of sub rule (2) of rule 48A, well ahead of the date proposed in the government servant's notice of voluntary retirement. At the same time, the scope and ambit of the exercise to be carried out by the appointing authority on the request of the government servant concerned, for specific approval for withdrawal of the notice of voluntary retirement, enjoins on the authority to decide on the issue as to grant of such specific approval. That power is coupled with the duty to consider the request to withdraw the notice of voluntary retirement. What needs to be decided upon by the appointing authority on a request for withdrawal of a notice of voluntary retirement is as to whether that authority has to approve that request of the government servant concerned. This, essentially, cannot be on the basis of any straitjacket formula; but has to necessarily depend upon the facts of each case. The administrative exercise and decision making process in that realm require the application of mind on administrative exigencies and contingencies, institutional conveniences and priorities, as well as, the reason shown by the government servant in support of his request to withdraw the notice of voluntary retirement. While the preponderance of judicial opinion as well as the administrative instructions of the Union of India to its subordinate offices would advise that the establishment would normally grant approval unless there are reasons which dissuade it from doing so; that exercise cannot be carried out in the vacuum. Nor can it be assumed to be a matter of course. Even adopting the approach taken in Balram Gupta (supra), there has to be some reason which the government servant has stated in support of the request for approval of the authority, thereby paving way for the government servant to withdraw his notice of voluntary retirement. In our view, since the decision in that regard has to come from the competent authority, the government servant concerned has to explain the reason for the withdrawal of notice, to that authority. Various factors and priorities which may be relevant yardsticks in a particular establishment or administration would lead the competent authority to come to the necessary conclusion and decision on any request by a government servant to withdraw the notice for voluntary retirement. There cannot be any hard and fast rule in this regard. If there were one, that would be destructive of the administrative authority of the establishment. That may tie down the appropriate authority and deter it from taking the legitimate decision, which it has to, in the best interest of the establishment concerned. The pointers indicated in Balram Gupta (supra) as to what may be the reasons on which the administration may refuse to grant approval to withdraw a notice of voluntary retirement, in our view, were not intented by their Lordships to be exhaustive, but are only illustrative; may be, facts-centric in re the instance of Shri.Balram Gupta who, at the relevant time, was a Permanent Upper Division Clerk and Officiating Accountant in the Photo Division of the Ministry of information Broadcasting. Are we to compel ISRO and an establishment under it, namely, VSSC, to apply the aforesaid yardstick in the case of the respondent, a Scientist/Engineer SG, at the relevant time, holding the designation - Deputy General Manager, Inertial Systems Electronics Production in the Inertial System Unit of the Vikram Sarabhai Space Centre? Following our query in that regard during the course of hearing, it is brought to our notice by the establishment, orally, that at the time of preferring the notice for voluntary retirement, the respondent, functioning in the aforesaid post, was involved in the Production and Quality Control of Inertial Systems and as the Deputy General Manager of the Unit, he was responsible to lead the Technical team in developing, assembling, quality assessment, testing and delivery of Flight Inertial Systems hardware for ongoing Satellite Launch Vehicles and Spacecraft Projects. He was also a member in various Committees, namely, Review Committee Quality Assessment Committee etc. In judicial review, we do not see any room for the Tribunal or for this Court to be persuaded to compel the establishment to reinstate the respondent as has been directed by the Tribunal. While we say so, we are reminded of the fact that the establishment had not stated any particular reason for not accepting the request of the respondent to withdraw the notice of voluntary retirement. At the same time, we find no reason for the Tribunal to have directed reinstatement of the respondent in spite of noticing that he had not given even a syllable of reason to the establishment in support of his request for approval to withdraw the notice of voluntary retirement. He stated nothing by way of reason for his decision to withdraw the notice of voluntary retirement. The single line that he wrote on 11.11.2010 (see Annexure A8 in Exhibit P-3) is "I propose to withdraw my application opting for VRS submitted earlier dated 22nd of July 2010. Kindly approve". On this premise, we cannot compel the establishment, that too, ISRO, a sensitive establishment of critical and national importance, to speak out its reason for not accepting the aforesaid request or otherwise to readmit the respondent to duty. It would be too irrational to do so in judicial review. We also need to emphasize that it would not be in the interest of an establishment like ISRO to permit a person who has availed voluntary retirement and gone out of service, to come back to its establishment, a sensitive zone in National interest, after being out of the establishment for quite some time. The priorities in the management of an establishment like ISRO have to be visualized. Doing so, we cannot but dissuade ourselves from coming to the rescue of the applicant. The different precedents referred to by the learned Tribunal in the impugned order do not lay down yardsticks to be treated as the only available and exclusive principles, as of law, to applied by all establishments to which the aforesaid Rules apply. On the facts and in the circumstances of the case in hand, the Tribunal erred in law in as much as it exceeded its jurisdiction in passing the impugned order. On such premise, it is also against the interest of the ISRO and an establishment under it - VSSC. The impugned order of the Tribunal is therefore liable to be set aside. 

In the result, this original petition is allowed quashing the impugned Exhibit P5 order. No costs. 

Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. 

Sd/- C.T.RAVIKUMAR, Judge. 

kkb. 

(2012) 251 KLR 160 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN 

TUESDAY, THE 7TH DAY OF FEBRUARY 2012/18TH MAGHA 1933 

OP (CAT).No. 739 of 2011 (S) 

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OA.374/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH 

PETITIONER(S)/PETITIONER: 

------------------------ 

THE GOVERNMENT OF INDIA,MINISTRY OF STEEL,UDYOG BHAVAN,NEW DELHI REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA. 

BY ADVS.SRI.T.SANJAY CGC SRI.P.PARAMESWARAN NAIR,ASG OF INDIA 

RESPONDENT(S): 

-------------- 

1 INDIRA.A.W/O.SHRI SANKARANARAYANAN, KAMPALATH HOUSE,MANJALORE POST,ETHANUR VIA ALATHUR TALUK,PALAKAKD DISTRICT-678 541. 

BY SRI.SAJAN VARGHEESE K. BY SRI.LIJU. M.P 

THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 07-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

---------------------------- 

PETITIONER'S EXTS: 

• EXT.P1: COPY OF OA NO.697 OF 2009 FILED BY RESPONDNT/APPLICANT BEFORE THE CAT, ERNAKULAM BENCH. 
• EXT.P2: COPY OF REPLY STATEMENT FILED BY PETITIONER/RESPONDENT BEFORE CAT, ERNAKULAM BENCH IN OA NO.697/09 
• EXT.P3: COPY OF ORDER DTD.18.10.2010 PASSED BY CAT, ERNAKULAM BENCH, IN OA NO.697 OF 2009. 
• EXT.P4: COPY OF RELEVANT PAGE NO.154 OF SWAMY'S COMPILATION- CCS(PENSION) RULES (RULE 54) 

RESPONDENT'S EXTS: 

• NIL 

/TRUE COPY/ P.A.TO JUDGE 

C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. 

------------------------------------------ 

O.P.(CAT) No.739 OF 2011 

------------------------------------------- 

Dated this the 7th day of February, 2012 

Head Note:-

Central Civil Services (Pension) Rules, 1972 - Rule 54(6) - Whether a disabled son of a servant of Union of India is ineligible to family pension after the marriage? 

Held:-  Rule 54(6)(ii) stipulates that normally son is entitled to family pension till he attains the age of twenty five years. The proviso to Rule 54(6) (iii) would show that the son or daughter of a Government servant suffering from any disorder or disability of mind including mentally retarded or physically crippled or disabled so as to render him or her unable to earn a living even after attaining the age of 25 years is entitled to family pension for life subject to six conditions enumerated thereunder. Explanation (b) quoted above to proviso to Rule 54(6)(vi) would show that a daughter shall become ineligible for family pension under this sub rule from the date she gets married. That means, a disabled daughter on her marriage alone would become ineligible for family pension under Rule 54(6). There is no disqualification by marriage for a disabled son to claim family pension. If the legislative intention was to exclude both married son and daughter, Explanation (b) should have included son also. But the daughter alone is mentioned there. That means a disabled son coming under the proviso to Rule 54(6)(iii) does not become ineligible once he gets married. 

J U D G M E N T 

~~~~~~~~~~~ 

P.S.Gopinathan, J. 

Petitioner, the Union of India is the respondent in O.A.No.697/2009 on the file of the Central Administrative Tribunal, Ernakulam Bench. The respondent is the applicant before the Tribunal. The respondent is the wife of Sankaranarayanan, who is the only issue of late KPV Menon. KPV Menon, who was an Under Secretary under the petitioner, retired from service on 31.1.1981 and died on 21.8.2005. Sankaranarayanan being mentally retarded, the respondent was appointed as guardian as per the decree in O.S.No.332 of 2004 on the file of the Munsiff's Court, Alathur, and in that capacity she is pursuing the claim. Application for family pension was filed claiming that Sankaranarayanan is physically and mentally disabled and therefore, irrespective of the age, by virtue of Rule 54(6) of the Central Civil Services (Pension) Rules, 1972, he is entitled to family pension. The petitioner rejected the claim. An application as O.A.No.374/2008 was preferred before the Tribunal. The Tribunal by Annexure-A11 order dated 12.12.2008 set aside the order impugned and directed the petitioner to reconsider the claim of Sankaranarayanan. Accordingly, the petitioner reconsidered the claim and by Annexure-A13 order, the claim was again rejected by stating that since Sankaranarayanan is married, he is not entitled to get the family pension. Assailing that order, the respondent approached the Tribunal with the 2nd application. By the order impugned dated 18.10.2010, the Tribunal arrived at a finding that Sankaranarayanan, being disabled, marriage is not a disqualification to claim family pension. Assailing the above order of the Tribunal, this Original Petition is filed. 

2. The question that arises for consideration is whether a disabled son of a servant of Union of India is ineligible to family pension after the marriage. 

3. We have heard Sri.T.Sanjay, standing counsel appearing for the petitioner as well as Sri.Sajan Varghese, learned counsel appearing for the respondent.

4. Rule 54(6) of the Central Civil Services (Pension) Rules, 1972 which is the relevant rule applicable for payment of family pension reads as follows:- 

(6) The period for which family pension is payable shall be as follows: 

(i) in the case of a widow or widower, upto the death or remarriage whichever is earlier. 

(ii) in the case of a son, until he attains the age of (twenty five) years and 

(iii) in the case of an unmarried daughter, until she attains the age of (twenty five) years or until she gets married whichever is earlier. 

Provided that if the son or daughter of a Government servant is suffering from any disorder or disability of mind (including mentally retarded) or is physically crippled or disabled so as to render him or her unable to earn a living even after attaining the age of (twenty five years), the family pension shall be payable to such son or daughter for life subject to the following conditions, namely:- 

(i) if such a son or daughter is one among two or more children of the Government servant, the family pension shall be initially payable to the minor children in the order set out in Clause (iii) of sub rule (8) of this rule until the last minor child attains the age of (twenty five) and thereafter the family pension shall be resumed in favour of the son or daughter suffering from disorder or disability of mind (including mentally retarded) or who is physically crippled and shall be payable to him/her for life. 

(ii) if there are more than one such children suffering from disorder or disability of mind (including mentally retarded) or who are physically crippled or disabled, the family pension shall be paid in the order of their birth and the younger of them will get the family pension only after the elder next above him/her ceases to be eligible. Provided that where the family pension is payable to such twin children, it shall be paid in the manner set out in clause (d) of sub rule (7) of this rule. 

(iii) the family pension shall be paid to such son or daughter through the guardian as if he or she were a minor except in the case of physically crippled son/daughter who has attained the age of majority 

(iv) Before allowing the family pension for life to any such son or daughter, the Appointing Authority shall satisfy that the handicap is of such nature so as to prevent him or her from earning his or her livelihood and the same shall be evidenced by a certificate obtained from a medical officer not below the rank of a Civil Surgeon setting out, as far as possible, the exact mental or physical condition of the child. 

(v) the person receiving the family pension as guardian of such son or daughter or such son or daughter nor receiving the family pension through a guardian shall produce every three years a certificate from a medical officer not below the rank of a Civil Surgeon to the effect that he or she continues to suffer from disorder or disability of mind or continues to be physically crippled or disabled. 

(vi) in the case of a mentally retarded son or daughter, the family pension shall be payable to person nominated by the government servant or the pensioner, as the case may be, and in the case no such nomination has been furnished to the head of office by such government servant or pensioner during his life time, to the person nominated by the spouse of such government servant or family pensioner, as the case may be, later on. 

Explanations: 

(a) deleted 

(b) A daughter shall become ineligible for family pension under this sub rule from the date she gets married. 

(c) The family pension payable to such a son or daughter shall be stopped if he or she starts earning his/her livelihood. 

(d) In such cases it shall be the duty of the guardian or son or daughter to furnish a certificate to the Treasury or Bank as the case may be, every month that (i) he or she has not started earning his/her livelihood (ii) in case of daughter that she has not yet married. 

(Rest omitted as not relevant) 

xxxx xxxx xxxx xxxx xxxx xxxx 

14(b) For the purposes of this rule Family in relation to a government servant means 

(i) wife in the case of male Government servant, or husband in the case of a female Government servant 

(ii) son who has not attained the age of twenty five years and unmarried daughter who has not attained the age of twenty five years including such son and daughter adopted legally. 

Rule 54(6)(ii) stipulates that normally son is entitled to family pension till he attains the age of twenty five years. The proviso to Rule 54(6) (iii) would show that the son or daughter of a Government servant suffering from any disorder or disability of mind including mentally retarded or physically crippled or disabled so as to render him or her unable to earn a living even after attaining the age of 25 years is entitled to family pension for life subject to six conditions enumerated thereunder. Explanation (b) quoted above to proviso to Rule 54(6)(vi) would show that a daughter shall become ineligible for family pension under this sub rule from the date she gets married. That means, a disabled daughter on her marriage alone would become ineligible for family pension under Rule 54(6). There is no disqualification by marriage for a disabled son to claim family pension. If the legislative intention was to exclude both married son and daughter, Explanation (b) should have included son also. But the daughter alone is mentioned there. That means a disabled son coming under the proviso to Rule 54(6)(iii) does not become ineligible once he gets married. 

5. The learned standing counsel canvassed our attention to Annexure-A12 containing a clarification. Clause (vi) of the clarification reads as follows: 

"(vi) payment of family pension is to be discontinued in the event of eligible sons/daughters (including widowed/divorced daughters) getting married/remarried or on their earning a monthly income exceeding Rs.2,550/- on attaining 25 years of age, whichever is earlier. The crucial date for determining their continued eligibility to family pension shall be 1st January, 1998 and not 5th March, 1998." 

According to the learned standing counsel, in the light of the above clarification, married children, whether son or daughter, abled or disabled, after marriage, are not entitled to family pension. In our opinion it is in respect of general cases and not relating to the cases coming under the proviso to Rule54(6)(iii). 

6. The learned counsel for the respondent canvassed our attention to clause 20 in Annexure - R1. Sub clause 3 to clause (20) referring to OM No.1(26) P&PW/90-(E) dated 18.1.1993 reads as follows: 

"3. It has also been decided by the Government on the basis of the recommendations of the Fifth Central Pay Commission and in partial modification of this Department's OM No.1 (26)-P&PW/90-(E) dated 18.1.1993 [Not printed] that the Family Pension in respect of sons/daughters (including widowed/divorced daughter) will be admissible, subject to the condition that the payment should be discontinued/not admissible when the eligible son/daughter starts earning a sum of Rs.2,550 per month from employment in Government, the private sector, self employment, etc. It is further clarified that the Family Pension to the sons/daughters will be admissible till he/she attains 25 years of age or up to the date of his/her marriage/re-marriage whichever is earlier. There is however, no change in the provisions about admissibility of Family Pension in respect of sons/daughters suffering from any disorder or disability of mind or who is physically crippled or disabled as mentioned in the OM, dated 18.1.1993." 

In the light of above, according to the learned counsel, there is no change in the provision about the admissibility of family pension in respect of sons/daughters suffering from any disorder or disability of mind or who is physically crippled or disabled as mentioned in the O.M. dated 18.1.1993. We find merit in the submission. 

7. Our attention was also canvassed by the learned Standing Counsel to the Railway Board's Letter No.F(E) III/2003/PNI/43 dated the 10th August, 2005 which reads as follows: 

"(26) Life-long family pension to mentally retarded or physically crippled or disabled MARRIED sons and daughters not admissible: 

In terms of Explanation (2) below Rule 75(6) of Railway Services (Pension) Rules, 1993 read with para 7.2(b) of Board's Letter No.F.(E)III/97/PN1/22, dated 5.11.1997, dependent sons and daughters of deceased Railway servants shall be eligible for family pension in their turn till they attain the age of 25 years or up to the date of their marriage/remarriage, whichever is earlier. However, as per the proviso to the said rule, such of the sons or daughters as are suffering from any disorder or disability of mind including mentally retarded or are physically crippled or disabled so as to render them unable to earn a living even after attaining the age of 25 years, family pension shall be payable to them for life subject to fulfillment of certain conditions stipulated thereunder. In this context, a query has been raised by one of the Railways about admissibility of family pension to a mentally retarded MARRIED son. The matter has been examined in consultation with the Department of Pension and Pensioners' Welfare and it is clarified that the MARRIED sons and daughters, who are suffering from any disorder or disability of mind, including mentally retarded or are physically crippled or disabled shall NOT be eligible for family pension." 

8. Going by Rule 54(6) the clarifications and the Annexures quoted above, we find that that letter is in respect of the persons retired from the Railway service coming under Railway Services (Pension) Rules 1993 and not applicable to the petitioner. In the light of the proviso to Rule 54(6), coupled with Explanation (b) and OM No.1 (26) P& PW/90-(E) dated 18.1.1993 we find that the claim of the respondent is sustainable. The Tribunal is absolutely correct in allowing the application. We find no error, illegality or impropriety to be rectified in exercise of the jurisdiction vested on this Court under Article 227 of the Constitution of India. 

In the result, this O.P.(CAT) is dismissed. 

(C.N.RAMACHANDRAN NAIR, J) 

(P.S.GOPINATHAN, JUDGE) 

ps/cms/9/11 

(2012) 249 KLR 617

 IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN 

THURSDAY, THE 12TH DAY OF APRIL 2012/23RD CHAITHRA 1934 

OP (CAT).No. 175 of 2010 (S) 

---------------------------- 

OA.16/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH 

PETITIONERS: 

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1. BOBAN LAL.V., OFFICE OF THE (SDE) EXTERNAL, BSNL, PARUTHIPARA THIRUVANANTHAPURAM. 

2. LEENA ROSE THOMAS, (SDE) D TAX, BSNL, THIRUVANANTHAPURAM. 

3. S.SURENDRAN NAIR, SDE, STAFF, BSNL, M.S. THIRUVANANTHAPURAM. 

4. K.P.RAJAN, SDE, (B.S.S.)., M.S. BSNL, ERNAKULAM. 

5. MANOJ KRISHNAN K.,, A.D. WI-MAX, BSNL, THIRUVANANTHAPURAM. 

6. VALSA PHILIP S.D.E., (C.S.C), BSNL, THIRUVANANTHAPURAM. 

BY ADVS.SRI.P.RAVINDRAN (SR.) SMT.SHEEJA KUMARI S. SMT.APARNA RAJAN 

RESPONDENT(S): 

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1. BHARAT SANCHAR NIGAM LIMITED, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR CORPORATE OFFICE, 6TH FLOOR STATESMAN HOUSE NEW DELHI - 110001. 

2. THE CHIEF GENERAL MANAGER (BSNL), KERALA TELECOM CIRCLE, BHARAT SANCHAR NIGAM LIMITED THIRUVANANTHAPURAM. 695001. 

3. UNION OF INDIA, REPRESENTED BY THE CHAIRMAN, TELECOM COMMISSION DEPARTMENT OF TELECOMMUNICATIONS, SANCHAR BHAVAN ASHOKA ROAD, NEW DELHI - 110001. 

4. THOMAS ZACHARIAH, MUNJATTU, KARINGATTIL, PERISHERI P.O., CHENGANNUR - 687 107. 

BY ADV. SRI.MATHEWS K.PHILIP,SC, BSNL BY ADV. SRI.K.BABU RAJAN BY ADV. SRI.T.A.SREE KUMAR BY ADV. SRI.R.RAJEEV BY ADV. SRI.K.P.DANDAPANI (SR.) BY ADV. SRI.MILLU DANDAPANI BY SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI 

THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 12-04-2012, ALONG WITH OPCAT. 335/2010, OPCAT. 2248/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 

PETITIONERS EXTS: 

• EXT.P1: COPY OF RECRUITMENT RULES DTD.22.7.1996 
• EXT.P2: COPY OF RELEVANT EXTRACTS OF THE LIST DTD.15.12.2003 
• EXT.P3: COPY OF PROVISIONAL SENIORITY DTD.28.7.2004 
• EXT.P3(a): COPY OF PROVISIONAL SENIORITY DTD.2.12.2004 
• EXT.P4: COPY OF REPRESENTATION DTD.3.3.2008 
• EXT.P5: COPY OF OA FILED BEFORE THE TRIBUNAL 
• EXT.P6: COPY OF REPLY STATEMENT FILED BY R2. 
• EXT.P7: COPY OF ORDER OF THE TRIBUNAL DTD.23.2.2010 
• EXT.P8: COPY OF JUDGMENT IN WP(c) NO.20979/10 DTD.12.7.10. 
• EXT.P9: COPY OF REVIEW APPLICATION WITHOUT ANNEXURES 
• EXT.P10: COPY OF ORDER IN RA NO.22/10 DTD.7.9.2010. 

RESPONDENTS EXTS: EXT.R4(a): COPY OF JUDGMENT IN TA NO.6/2009 DECIDED ON 25.11.2010 PASSED BY THE BOMBAY BENCH OF THE HON'BLE TRIBUNAL /TRUE COPY/ P.A.TO JUDGE 

C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ.

'CR' 

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O.P.(CAT) Nos.175 of 2010, 335 of 2010 & 2248 of 2011 

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Dated this the 12th day of April, 2012 

Head Note:-

Service Law - Promotion - Whether the Sub Divisional Engineers, who are successful under the departmental competitive examination subsequent to  promotion order are entitled to seniority over those who were appointed earlier as per Annexure-A1 order towards 75% promotion quota? 

Held: There is no rule entitling an employee of the BSNL to claim service benefits from the date of arising vacancy. Service benefits can be claimed only from the date of joining duty. When appointments are made from different streams one after another, those who are subsequently appointed are not entitled to seniority over those who are appointed earlier so long as no such condition is stated in the earlier appointment order. Resultantly,  the applicant before the tribunal is entitled to have his seniority settled in pursuance to Annexure-A1 promotion order. The review applicants who were later appointed towards 25% quota under departmental competitive examination are not entitled to have their seniority fixed with retrospective effect against the applicant. The review applicants are not entitled to claim service benefits from the date of arising of vacancy. They are entitled to count their seniority reckoned from the date of joining duty in the promoted post. 

COMMON JUDGMENT 

P.S.GOPINATHAN, J: 

The order dated 23.2.2010 in O.A.No.16 of 2009 on the file of the Central Administrative Tribunal, Ernakulam is assailed in these petitions. O.P.(CAT)No.335 of 2010 is filed by the respondents in the above O.A. The respondent is the applicant before the Tribunal. He was working as Junior Telecome Officer (JTO) under the petitioners. As per the special rules, 75% of the post as Sub Divisional Engineers (SDE) are to be filled up by promotion from JTOs on the basis of seniority and fitness. Remaining 25% is to be filled up on the basis of the departmental competitive examination. Though the special rules came into force with effect from 22.7.1996 no departmental competitive examination was conducted till 2002 for the so-called administrative reasons. As per proceedings dated 28.12.2001, a copy of which was produced as Annexure-AI before the Tribunal, more than 6000 Junior Telecoms Officers (JTOs) were promoted and posted. Thereafter, a departmental competitive examination was conducted in 2002. Many of the JTOs promoted as Sub Divisional Engineers by Annexure-AI also applied for the competitive examination including the respondent in O.P(CAT) No.335 of 2010. But he did not qualify. On the basis of the result of the examination, the department published provisional seniority lists on 28.7.2004 and 2.12.2004. The respondent in OP (CAT) 335 of 2010 did not file any objection though some of the officers junior to him as per Annexure-AI were found place above the respondent. According to the respondent, no final seniority list was published. However, on 3.3.2008 he made a representation to the Chief General Manager stating that some of the juniors to the respondent were given seniority above the respondent. Alleging that there was no response to the representation made by the respondent he filed the Original Application before the tribunal seeking an order to quash the provisional seniority lists, copies of which were produced as Annexures-A5 and A6 before the tribunal and for a direction to the petitioners in the above OP to recast the impugned provisional seniority lists. The plea of the respondent is that the seniority as per Annexure-A1 is not liable to be disturbed on the basis of the result of the departmental competitive examination.The tribunal below allowed the application and set aside Annexures-A5 and A6 provisional seniority lists and the petitioners herein, who were the respondents were directed to recast the seniority lists. Before the tribunal, the decision of the Chandigarh Bench in Dewan Chand v. Union of India (TA 84 & 85-HR-2009 dated 25.8.2009) were also relied upon by the applicant. By the above order the Chandigarh Bench allowed the application with similar plea and the petitioners herein were directed to recast the seniority list on the basis of the above decision. 

2. Some of the Sub Divisional Engineers, who were aggrieved by the order of the tribunal approached this court by WP(C) No.20979 of 2010. By judgment dated 12.7.2010, a copy of which is produced as Ext.P8 in OP(CAT) No.175 of 2010 dismissed the petition with liberty to the petitioners to move the tribunal for review of the impugned order. Accordingly, they preferred review application as R.A.No.22 of 2010. The tribunal by order dated 7.9.2010, a copy of which is produced as Ext.P10 in O.A.No.175 of 2010 dismissed the Review Application. Some of the review applicants are the petitioners in OP(CAT) No.175 of 2010. The petitioners in OP(CAT) No.2248 of 2011 are yet another batch of review applicants. In OP(CAT) Nos.175 of 2010 and 2248 of 2011 the order in review is also assailed. Hereinafter the parties are referred with reference to their status in the O.A as the applicant, respondents and review applicants. 

3. The short question now before us is that whether the Sub Divisional Engineers, who are successful under the departmental competitive examination subsequent to Annexure-A1 promotion order are entitled to seniority over those who were appointed earlier as per Annexure-A1 order towards 75% promotion quota. 

4. It is not in dispute that Annexure-A1 order whereby the applicant and the review applicants were promoted is an unconditional regular promotion order on the basis of seniority and fitness as per the special rules which came into effect from 22.7.1996. For a correct appraisal of the facts of the case, it would be appropriate to read Annexure-A1 order, which is produced as Ext.P8 in OP(CAT) No.2248 of 2011. 

"The following JTOs promoted to the grade of TES group-B in the Pay scale of Rs.7500-250-12000 and allotted to Kerala Circle as per BSNL, New Delhi order No.1- 16/2001-Pers.II dated 19.12.2001 are posted as SDEs in Kerala Telecom Circle as indicated against each against existing/installation post from the date they take over the charge of the post and until further orders, provided no vigilance/disciplinary case is pending or any punishment is current against any of the officials mentioned in the list. In case any disciplinary/vigilance case in terms GOI(D.O.P&T) OM No.22011/4/91-Estt(A) dated 14.9.1992 is pending/ initiated against any of the officials mentioned in the list after the issue of these orders but before joining of the officials on promotion, the fact should be reported to this office immediately and the concerned officer should not be promoted or relieved for posting without specific orders from this office."

5. The above order would show that it was a regular appointment by promotion and that the only condition is the pendency of the vigilance/disciplinary cases/current punishment against the officials mentioned in the list. There is no mention that appointment is subject to any quota rota rule relating to the appointment by departmental competitive examination. There is also no mention that any of the candidates appointed by Annexure-A1 order is towards 25% quota to be appointed by departmental competitive examination. Therefore, on a plain reading of Annexure-A1 order appointing the applicant and some of the review applicants would show that the order of seniority is as per the list annexed and it is not liable to be changed in pursuance to any sort of appointment. 

6. Now, we can examine the precedents submitted before us. In addition to some of the reported decisions, an unreported decision of the Karnataka High Court in WP No.37322 of 2010 and connected cases and another in WP No. 3725 of 2011 of the High Court of Bombay were also relied upon. The following are the reported decisions: A.Janardhana v. Union of India [(1983)3 SCC 601], Ashwani Kumar Singh v. U.P.Public Service Commission & others [(2004 SCC (L&S) 95]; Central Provident Fund Commissioner & another v. N.Ravindran & others [(1995 Supp(4) SCC 654]; Kuldip Chand v. Union of India & others (AIR 1996 SC 706), M.R.Gupta v. Union of India & others (AIR 1996 SC 669), Nirmal Chandra Sinha v. Union of India & others [2008(5) SCJ 593], Satpal Antil v. Union of India and another [(1995)4 SCC 419], State of Uttaranchal and another v. Dineshkumar Sharma [(2007)1 SCC 683]; V.P.Shrivastava & Others v. The State of M.P & Others (1996(1) Service Law Judgment 253). 

7. In the case before the Karnataka High Court the challenge was against the order of the Administrative Tribunal directing to give notional promotion with effect from the date of appointment made on the basis of the departmental competitive examination. Though the Writ Petition was dismissed, the finding of the Bench is that the service benefits cannot be given with retrospective effect and that there was no provision for giving notional promotion. In the Writ Petition before the Bombay High Court the challenge was against the order of the tribunal whereby it was found that the seniority ought to be reckoned from the date of assuming duty in the promoted post. By the impugned judgment, the Writ Petition was dismissed. In M.R.Gupta's Case (AIR 1996 SC 669), the dispute was relating to the limitation for filing the application before the tribunal. That decision was relied upon because the respondents and the review petitioners had taken a contention that the provisional seniority list was published as early as 28.7.2004 and 2.12.2004 and that the applicant had not filed any objection to the provisional seniority list within the time limit prescribed. Therefore, the O.A filed in 2009 is beyond the time limit prescribed under Section 21 of the Administrative Tribunals Act and the application should have been rejected on that ground. Going by the facts of the case, we find that, in this case also, the issue is regarding the position of applicant in the seniority list and are affecting the applicant throughout his service. Therefore, we are of opinion that it is not just and appropriate to non suit the applicant on plea of limitation. 

8. In A.Janardana's case [(1983)3 SCC 601] at paragraph 28 it is held thus: 

"28. It is a well recognised principle of service jurisprudence that any rule of seniority has to satisfy the test of equality of opportunity in public service as enshrined in Article 16. It is an equally well recognised canon of service jurisprudence that in the absence of any other valid rule for determining the inter se seniority of members belonging to the same service, the rule of continuous officiation or the length of service or the date of entering in service and continuous uninterrupted service thereafter would be valid and would satisfy the tests of Article 16." 

Further at paragraph 32 it is held thus: 

"........Therefore, the promotions were regular promotions, may be to the temporary posts which was a temporary addition to the strength ofthe service. But to all intents and purposes, the the promotion ofand promotees during this period wasthe regulara promotion uninterruptedly forthe these years meaning thereby that it promotees have held posts all could never be said that posts were not available." 

9. In Satpal Anthil's case (1995)4 SCC 419 at paragraph 11 it is held thus: 

"....in the absence of any specific rule indicating inter se seniority to be observed with reference to the date of passing the qualifying examination and promotion to be given on the basis of such inter se seniority, general principle of length of service as a basis for promotion amongst eligible candidates with qualifying service should be made applicable." 

10. In Central Provident Fund Commissioner's Case [1995 Supp(4) SCC 654] the finding of the Tribunal quoted in paragraph 1 is as follows: 

"The Tribunal came to the conclusion that both those categories must be treated as belonging to one single class of promotees and, therefore, they must be promoted to the next higher post by first satisfying the 75% quota of those entitled to promotion by virtue of the seniority-cum-fitness rule and the 25% quota of those who become entitled to promotion by virtue of having passed the prescribed examination must take their position below the said 75%." 

That finding was upheld by the Apex Court. In Ashwani Kumar Singh's case (2004 SCC (L&S) 95 at paragraph 14 it is held thus: 

"...Persons who have been appointed on the basis of the subsequent examination have to give way to appellant Ashwani Kumar Singh." 

11. In Dinesh Kumar Sharma's case (2007)1 SCC 683 at paragraph 28 it is held thus: 

"It is clear from the above that a person appointed on promotion shall not get seniority of any earlier year but shall get the seniority of the year in which his/her appointment is made. Therefore, in the present fact situation the respondent cannot claim promotion from the date of occurrence of the vacancy which is 1995-96 but can only get promotion and seniority from the timeLikewise,been he has substantivelyalso appointed i.e. from 1999. the seniority promotion/appointment inbethe cadre fromagainstdate of will counted the issuance of order of substantive appointmentthe the said in cadre i.e. from 19-11-1999." 

In Nirmal's case (2008(5) SCJ 593) at paragraph 10 it is held thus: 

"It is settled law that the date of occurrence of vacancy is not relevant for this purpose." 

12.The applicant had also canvassed our attention to paragraph 3 an Office Memorandum No.35014/2/80-Estt(D) dated 7th February,1986 of the Ministry of Personnel, Public Grievances and Pensions. Paragraph 3 of the above O.M. Reads thus: 

"3. This matter, which was also disposed in the national Council has been engaging the attention of the Government for quite some time and it has been decided that in future, while the principle of rotation of quotas will still be followed for determining the inter-se seniority of direct recruits and promotees, the present practice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unintended seniority over promotees who are already in position, would be dispensed with. (rest omitted)." 

13. Our attention was also canvassed to the general principles of determination of seniority in the Central Services except the Government of India, Ministry of Homes Affairs OM No.9-11/55, RPS, dated 22nd December, 1959. (Quoted from Swamy's news). Referring to the direct recruits and promotees paragraph 5 reads thus: 

"5.Promotees- (i) The relative seniority or persons promoted to the various grades shall be determined in the order of their selection for such promotions." 

14. The general principle 5(i) & (ii) to the explanatory memorandum reads as follows: 

"General Principle of selection by a Departmental Promotion  5.(i)- Where promotions are made on the basis Committee, the seniority of such promotees shall be in the order in which they are recommended for such promotion by the Committee. Where promotions are made on the basis of seniority subject to the rejection of the unfit, the seniority of persons considered fit for promotion at the same time shall be the same as the relative seniority in the lower grade from which they are promoted. Where, however, a person is considered unfit for promotion and is superseded by a junior, such person shall not, if he is subsequently found suitable and promoted, take seniority in the higher grade over the junior person who had superseded him. 

General Principle 5.(ii)-illustration-Where 75% of the vacancies in the grade of Head Clerks are reserved for promotion from the grade of Upper Division Clerks and 25% from the grade of Storekeepers, the eligible Upper Division Clerks and Storekeepers shall be arranged in separate lists with reference to their relative seniority in those grades. The DPC will make selection of three candidates from the list of UDCs and one from the list of Storekeepers. Thereafter the selected persons from each list shall be arranged in a single list in a consolidated order of merit assessed by the DPC which will determine the seniority of the persons on promotion to higher grade."

15. The review applicants had canvassed our attention to the decision in Union of India and another v.J.Santhanakrishnan and others (2007)15 SCC 694. It was a case relating to the seniority of 33-1/3 % quota employees. The Administrative Tribunal, Madras Bench, restoring balance between two sets of employees by holding that 33-1/3% quota employees deemed to have been promoted notionally on 12.9.1982 i.e, six months after the examination held in March, 1982. However, Chandigarh Bench determining notional date as 11.5.1981. It was held that notional date determined by Madras Bench, reasonable and having sound basis, and therefore to be preferred to the Chandigarh Bench decision. 

16. Evaluating the facts of the case with reference to Annexure-AI order and the precedents referred before us, we find that Annexure-A1 order promoting 6000 JTOs to the post of Sub Divisional Engineer is a regular promotion order and the seniority of the officers promoted therein shall be as per the list appended. There is no mention that the promotions were subject to the quota rota rule or that the seniority therein would be subject to any change in consequent to the departmental competitive examination. Therefore, the applicant is entitled to give his seniority in pursuance to Annexure- A1. It is not subject to any change. Though the departmental competitive examination was conducted calculating the number of vacancies for the previous years, none of the persons who were successful therein are entitled to have their seniority counted from a date before which they joined duty, especially in the light of the 3 bench decision in Central Provident Fund Commissioner's case (1995 Supp(4) SCC 654). Therefore, we find that the order of the tribunal requires no interference. 

17. The learned counsel for the petitioners in OP(CAT)No.2248 of 2011 canvassing our attention to Ext.P2 Office Memorandum dated 7.2.1990 produced in that petition argued that there is quota rota rule. Going by the Office Memorandum we find that Ext.P2 is applicable only when appointments are made from different streams simultaneously and not in a case of later appointments from any one stream. 

18. A contention was advanced before us by the review applicants that they were not made parties before the tribunal and therefore, the tribunal was not justified in disturbing the seniority list without hearing the affected parties. That dispute is covered by the decision of the Apex Court in V.P.Shrivastava & Others v. The State of M.P & Others (1996(1) Service Law Judgment 253). Referring to various decisions it was held that: 

""where principle of determination of seniority made by the State Government is under challenge. Only State Government is the necessary party to be impleaded -- Tribunal's conclusion that non inclusion of the affected parties is fatal to the appellants quashed." 

Following the above decision we find that the application before the tribunal is not liable to be defeated for non-joinder of necessary parties. 

19. To sum up, we declare that there is no rule entitling an employee of the respondents to claim service benefits from the date of arising vacancy. Service benefits can be claimed only from the date of joining duty. When appointments are made from different streams one after another, those who are subsequently appointed are not entitled to seniority over those who are appointed earlier so long as no such condition is stated in the earlier appointment order. Resultantly, we further find that the applicant before the tribunal is entitled to have his seniority settled in pursuance to Annexure-A1 promotion order. The review applicants who were later appointed towards 25% quota under departmental competitive examination are not entitled to have their seniority fixed with retrospective effect against the applicant. The review applicants are not entitled to claim service benefits from the date of arising of vacancy. They are entitled to count their seniority reckoned from the date of joining duty in the promoted post. The Original Petitions are devoid of merits. Accordingly, these Original Petitions are dismissed. 

C.N.RAMACHANDRAN NAIR, JUDGE 

P.S.GOPINATHAN, JUDGE 

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