M NANDAGOPAL vs M/o Railways

1 OA/310/00524/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00524/2018
th
Dated this the 14 day of October, Two Thousand Twenty Six
CORAM :
HON'BLE MR. M. SWAMINATHAN, MEMBER (J)
AND
HON'BLE MR. M.L. SRIVASTAVA, MEMBER(A)
M. Nandagopal
S/oV. Munikrishnan
No.7, Poal Naidu Street
Palanipet, Arakkonam. .. Applicant
By Advocate M/s. M. Gnanasekar
Vs.
1. The Union of India
rep by General Manager
Southern Railway
Park Town, Chennai.
2. The Senior Divisional Personnel Officer
Divisional Manager's Office
Personnel Branch
Southern Railway, Chennai Division
Chennai.
3. The Senior Divisional Signal & Telecom Engineer-I
Southern Railway, Chennai Division,
Chennai.
4. The Additional Divisional Signal & Telecom Engineer/AJJ
Southern Railway,
Arakkonam.

2 OA/310/00524/2018
5. The Senior Section Engineer
Southern Railway
Arakkonam.
6. S. Raju,
Technician Grade III,
O/o Senior Section Engineer
Signal / AJJ East Yard
Southern Railway .. Respondents
By Advocate Mr. Sai Srujan Tayi

3 OA/310/00524/2018
ORDER
(Pronounced by Hon'ble Mr. M. Swaminathan, Judicial
Member)
In the instant OA, the applicant is seeking the following
relief:
“to set aside the order No. M/P/(S&P)/1535/IX/
TECH.II dated 23.03.2018 in so far as it failed to
include the name of the applicant to the
promotion to the post of Technicians Gr. II and
further
ii) to set aside the order No. M/P/
(S&P)/1535/IX/ Grievance dated 02.04.2018
and consequently direct
the respondent to restore the applicant to his
original
seniority by placing him below the 6th
respondent and
Consequently, direct the respondents to include
the applicant's name in the list of eligible
candidates for Trade Testing for the post of
Technician Gr. II published on 23.03.2018 and
consequently promote him to the post of
Technician Grade II with all consequential
monetary and other attendant service benefits
and
iii. to pass such further orders as are necessary
to meet the ends of justice and
iv. Award costs and thus render justice”.

4 OA/310/00524/2018
2. The facts and circumstances giving rise to the filing of
the OA are as follows:
The applicant joined service as Khalasi on 19.11.2005 at
SSE/Sig/JTJ (Jollarpet). At his request, he was transferred
to SSE/Sig/AJJ (Arakkonam Joint Junction), his native
place, where he is presently working. Throughout his service,
he has discharged his duties sincerely and efficiently and
earned the appreciation of his superiors. On 09.08.2010, the
applicant submitted a request for transfer to Basin Bridge
(BBQ), Madras Beach (MSB), or Madras Central (MAS).
Under the applicable rules, such a request would lapse after
two years unless renewed by the employee before expiry.
However, by order dated 02.07.2014, the applicant was
transferred to MSB on the ground that it was at his request,
although his transfer request had already lapsed in 2012.
The applicant had also submitted several representations
seeking cancellation of the transfer, but no action was taken.
Consequently, the applicant filed OA No.166 of 2015 before
the Tribunal. Though interim relief was granted, the OA was
dismissed on 25.08.2015. The applicant thereafter filed WP
No.20772 before the Hon’ble High Court, which allowed the

5 OA/310/00524/2018
Writ Petition on 24.10.2016. Pursuant thereto, by order
dated 14.09.2017, the 2nd respondent treated the period
from 24.10.2016 to 24.05.2017 as duty, with consequential
pay and allowances. The applicant was accordingly paid
Rs.1,87,619/- for the said period. However, the period from
04.02.2015 to 23.10.2016 was treated as absence. On
23.12.2017, the applicant submitted a representation
contending that, since the transfer order dated 02.07.2014
had been set aside by the Hon’ble High Court, he ought to
have been restored to his original position as though the
transfer order had never been passed. He therefore requested
that the entire period from the date of transfer till his joining
be treated as duty for all purposes, with consequential
benefits and restoration of seniority. His claim for salary for
October 2014, November 2014, and the period from
04.02.2015 to 23.10.2016 was rejected. The applicant
further submits that he appeared for the trade test on
07.08.2017, and the results published on 21.08.2017
showed his name at Sl. No.19 for promotion as Technician
Grade III. He assumed the post with effect from 23.09.2017
and attended the foundation course for promoted ESMs from

6 OA/310/00524/2018
25.09.2017 to 18.11.2017. The applicant contends that his
seniority was not properly restored and that the 2nd
respondent, by orders dated 23.03.2018 and 02.04.2018,
rejected his request for restoration of seniority and for
treating the period from 04.02.2015 to 23.10.2016 as duty.
The said orders are therefore liable to be set aside. Hence,
the present OA.
3. The learned counsel for the applicant submitted that,
once the order of transfer was set aside by the Hon’ble High
Court and the respondents were directed to restore the
applicant, he was entitled to all consequential benefits,
including treating the period from 04.02.2015 to 23.10.2016
as duty for all purposes. He further submitted that
employees at Sl. Nos. 57 to 87 had already been promoted as
Technician Grade III, whereas the applicant was promoted
belatedly solely on account of the litigation, which ultimately
ended in his favour. Once the transfer order was set aside
and restoration was directed, no further adjudication was
warranted.

7 OA/310/00524/2018
4. He further submitted that the Hon’ble High Court had
no occasion to adjudicate upon the treatment of the period
from 04.02.2015 to 23.10.2016 as absence. In CA No.347 of
2017, the Hon’ble High Court had taken note of the
respondents’ decision to pay Rs.1,87,619/- for the
subsequent period. Since the transfer order dated
02.07.2014 was ultimately set aside by the Hon’ble High
Court on 24.10.2016 in favour of the applicant, the
respondents could not deny him the consequential benefits
arising from such setting aside.
5. He submitted that the issue relating to the applicant’s
transfer had attained finality by the judgment dated
24.10.2016 in WP No.20772 of 2016, whereby the order of
the Tribunal dated 25.08.2015 in OA No.166 of 2015 was set
aside and the respondents were directed to restore the
applicant within two weeks. Once the transfer order stood
quashed and restoration was specifically directed, there was
no justification for withholding the applicant’s restoration to
his original post and place at Arakkonam from the date of
the High Court’s order.

8 OA/310/00524/2018
6. He further submitted that the respondents ought to
have acted upon the applicant’s representations dated
18.11.2016 and 29.11.2016 and restored him to his original
post and place at Arakkonam. Despite the High Court’s
order, the applicant was kept out of employment and was
not permitted to resume duty. The representation dated
18.11.2016, sent by Registered Post with Acknowledgement
Due, was returned with the endorsement “Refused. Return to
Sender”, and the subsequent representation dated
29.11.2016 also elicited no response. Such conduct,
according to the learned counsel, amounted to failure to
comply with the order of the Hon’ble High Court.
7. He further submitted that the applicant was denied
restoration to duty and the consequential benefits flowing
therefrom, while his juniors were promoted as Electric Signal
Maintainer Grade III. The respondents’ failure to restore the
applicant and extend consequential benefits adversely
affected his attendance, promotional prospects, bonus, Child
Education Allowance, medical reimbursement, Dearness

9 OA/310/00524/2018
Allowance, railway passes, pay fixation under the Seventh
Pay Commission, and salary from November 2014 onwards.
Such action, according to the learned counsel, was contrary
to the spirit and effect of the judgment of the Hon’ble High
Court. He therefore prayed that the reliefs sought in the
present OA be granted.
8. In opposition, the learned counsel for the respondents,
relying upon the reply statement, vehemently contested the
applicant’s claim. He submitted that the applicant was
transferred and relieved by letter dated 03.02.2015, which he
refused to receive. The transfer order was also sent to his
residential address by Registered Post with Acknowledgment
Due.
9. He further submitted that the applicant’s
representation dated 30.07.2014 and the representation of
the other employee dated 24.07.2014 were duly considered
by the competent authority. It was decided that the applicant
should carry out the request transfer and that he could

10 OA/310/00524/2018
submit a further request after joining, since another
employee had already been posted as his reliever at
Arakkonam. Therefore, the applicant was bound to comply
with the transfer order.
10. He submitted that the applicant challenged the request
transfer order before this Tribunal in OA No.166 of 2015,
which was dismissed by order dated 25.08.2015. Aggrieved
thereby, the applicant filed WP No.20772 of 2016 before the
Hon’ble High Court of Madras, which allowed the writ
petition by order dated 24.10.2016.
11. He further submitted that the applicant thereafter filed
Contempt Petition No.347 of 2017 in WP No.20772 of 2016.
In the contempt proceedings, the Hon’ble High Court
directed the respondents to pay wages for the period of delay
in implementing its order dated 24.10.2016, treating the
period from 22.10.2016 to 24.05.2017 as duty. Accordingly,
the applicant was paid Rs.1,87,619/- towards pay and
allowances for the said period along with his September

11 OA/310/00524/2018
2017 salary. He contended that the Hon’ble High Court did
not grant pay and allowances for the period of absence from
04.02.2015 to 24.10.2016 and had accepted the explanation
of the respondents. Hence, the said issue could not be
reopened in the present proceedings.
12. It is pointed out by the learned counsel that the
applicant did not participate in the trade tests conducted on
15.09.2015, 16.09.2015 and 18.09.2015, whereas the other
eligible employees appeared for and passed the tests. Since
seniority in the cadre is governed by the date of entry into
the cadre, the applicant, having failed to appear for the trade
test, could not claim promotion as Technician Grade III at
that stage. He subsequently appeared for the trade test held
on 07.08.2017 and, upon qualifying, was promoted as
Technician Grade III/Signal with effect from 21.08.2017. His
subsequent claim for seniority over employees who had been
promoted in 2015 was therefore untenable.
13. Finally, he submitted that the applicant had no valid

12 OA/310/00524/2018
justification for his failure to attend the trade tests and had
remained unauthorisedly absent during the relevant period.
Consequently, he was liable to be placed in the provisional
seniority list below the employees who qualified in 2015. The
pendency of the litigation did not justify his absence from the
trade tests, as the issue of promotion and the applicant’s
absence were distinct matters. He therefore submitted that
the applicant had failed to establish any entitlement to the
reliefs sought and prayed for dismissal of the OA.
14. We have considered arguments advanced by the learned
counsel on either side at length, perused the pleadings and
materials made available on record. We have also perused
the judicial decisions referred to by the respective counsel.
15. There are two issues that arise for consideration in the
present OA:
(i) Whether the applicant is entitled to salary/pay for the
months of October and November 2014 and to have
theperiod from 04.02.2015 to 23.10.2016 treated as duty for

13 OA/310/00524/2018
all purposes; and
(ii) Whether the applicant is entitled to promotion and
restoration of his seniority by placing him immediately above
his immediate juniors, notwithstanding that he qualified in
the trade test subsequently.
16. As regards the applicant’s claim for treating the period
from 04.02.2015 to 23.10.2016 as duty and for payment of
salary for the said period, we find that a similar issue was
considered by the Allahabad Bench of this Tribunal in OA
No.1083 of 2011, Leak Ali Khan v. Union of India , decided on
25.03.2026. The relevant portion of the said order is
extracted below:
“13. Similar issue has also been considered by the Apex
Court in Tamil Nadu Agricultural University , Special Leave
Appeal (C) Nos.13070-13075/2022, Order dated
10.02.2023 in which the university itself has regularized
the absence period of four appellants when they
subsequently joined the duties on the ground that
transfer order passed in their respect has been set aside
and there were interim protection granted by the Hon'ble
High Court. Hon'ble Supreme Court in respect of the two
applicants in whose favour there was no interim order
passed by the High Court, have directed to pay the salary
for the period from the date of issuance of the
punishment order to the date when the writ petitions

14 OA/310/00524/2018
were allowed in the High Court setting aside the transfer
order. If the ratio laid down in the aforesaid cases are
compared with the facts and circumstances of the
present matter, although the applicant was permitted to
join duty at Shahjahanpur itself after setting aside of the
order of transfer, yet in the disciplinary proceedings, the
applicant has been punished for reducing his pay for
certain period (major penalty), the disciplinary
proceedings initiated against the applicant ought to have
been RITU withdrawn when the transfer order was set
aside and the applicant RAJ was permitted to join the
duty at the place where from he had been SINGH
transferred. It is pertinent to mention here that in the OA
No 1258 of 2006, the interim order had been passed,
directing the respondents to restrain from continuing the
disciplinary proceedings. Although this OA was decided
finally, directing the applicant to file comprehensive
objection, and it was availed by the applicant, the
authority concerned has also decided the same, but
punishment imposed upon the applicant in lieu of the
absence period are not sustainable. At the most, the
period in which the applicant was absent and sick report
enclosing therewith the medical certificate had been filed,
may be regularized. Similarly, the period for which the
applicant has not furnished any medical certificate, the
same can also be regularized and in both the situation,
back wages shall not be paid to him. Only relief can be
allowed to the original applicant for counting of that
period for the qualifying service but wages for that period
cannot be allowed as there was no any interim order
passed in OA No. 1236 of 2004.
14. Thus, in view of the aforesaid discussions and
analysis and strictly taking into consideration the ratio
laid down by
the Apex Court in the case laws as discussed
above, we are of the considered opinion that the instant
original application is liable to be allowed. Accordingly,
the OA is allowed. Impugned order dated 12.06.2009 and
15.01.2010 are hereby quashed and set aside. The
competent authority amongst the respondents is hereby
directed to pass necessary orders to regularize the period
from 02.04.2003 till the date he was permitted to join the
duty at Shahjahanpur in compliance of the order passed
in OA No 1236 of 2004, as period on duty and all the
consequential benefits of this period like treating the
same as qualifying service, etc. may be given to the
applicant. However, the applicant shall not be entitled for
any back wages for the aforesaid period. This

15 OA/310/00524/2018
exercise must be completed within a period of three
months from the date of receipt of certified copy of this
order.
15. All associated MAs stand disposed of. No costs”.
17. With regard to the applicant’s claim for restoration of
seniority and his eligibility for promotion on the basis of the
trade test, it would be appropriate to first notice the relevant
rules, dates and events. As per the Recruitment Rules
governing promotion to Grade III, passing the prescribed
trade test by an employee holding the feeder post of
Khalasi/Helper is a qualifying condition for promotion. The
applicant was otherwise eligible to appear in the trade test
conducted in 2015. The records disclose that, by notification
dated 17.08.2015, the applicant’s name was included for the
trade test at Arakkonam and was shown at Sl. No.22. The
trade test was conducted on 15.09.2015, 16.09.2015 and
18.09.2015, and the results were published on 21.09.2015.
18. However, it is an admitted position that the applicant
had already been transferred from Arakkonam to Chennai
pursuant to the transfer order issued in 2014. Further, his
OA challenging the said transfer was dismissed by this

16 OA/310/00524/2018
Tribunal only on 25.08.2015. In these circumstances, the
inclusion of the applicant’s name in the notification dated
17.08.2015 for a trade test to be conducted at Arakkonam
assumes significance. Once the applicant had been
transferred from Arakkonam to Chennai, it is not clear as to
how and on what basis he was expected to appear for a trade
test at Arakkonam. When this aspect was specifically put to
the respondents during the hearing, they were unable to
offer a satisfactory explanation.
19. The principal contention of the respondents is that the
applicant did not appear for the trade test at Arakkonam
and, therefore, could not be considered for promotion,
whereas his juniors appeared and qualified. However, the
said contention cannot be considered in isolation from the
circumstances in which the applicant was notified to appear
for the test. The respondents, having transferred the
applicant from Arakkonam to Chennai, cannot, without
explaining the circumstances, rely upon his non-appearance
at Arakkonam as a ground to deny him the opportunity of
promotion.

17 OA/310/00524/2018
20. In our considered view, the respondents ought to have
made appropriate arrangements to enable the applicant, who
had otherwise been notified for the trade test, to participate
in the test at his place of posting or at another convenient
centre. The applicant cannot reasonably be faulted for not
appearing at Arakkonam when, by that time, he had already
been transferred to Chennai. The administrative
arrangement made by the respondents cannot operate to the
applicant’s disadvantage, particularly when his eligibility to
participate in the 2015 trade test is not in dispute.
21. It is well settled that an employee should not be
deprived of a legitimate promotional opportunity on account
of an administrative lapse or circumstance attributable to
the employer. Where the conduct or administrative
arrangement of the employer prevents an otherwise eligible
employee from participating in a prescribed selection or
qualifying test, the resulting disadvantage cannot ordinarily
be visited upon the employee. A similar principle was
considered by the Hon’ble Court in Ram Ratan Mukherjee v.

18 OA/310/00524/2018
Union of India , WP (CT) No.83 of 2021, order dated
07.02.2022, wherein it was held that an employee cannot be
penalised for failure to complete a mandatory trade test
where the delay or administrative complication was
attributable to the employer.
22. A similar issue also came up for consideration before
the Hon’ble Orissa High Court in Union of India v. Narahari
Mukhi , WP(C) No.9984 of 2025, order dated 17.04.2025,
wherein the Court observed as follows:
“8. In view of the above, while this Court is exercising its
Supervisory Jurisdiction, cannot allow a party to take a
new ground in a certiorari proceeding unlike its Appellate
Jurisdiction. Therefore, by not taking a stand in the
counter affidavit in the O.A. proceeding as regards the no
availability of vacancy as a ground to accommodate the
Opp. Party in the promotional post, the Petitioner cannot
be allowed to take a new plea herein the writ, as the Opp.
Party has been deprived to meet the same in the
rejoinder affidavit and by entertaining the same in this
writ proceeding on the basis of oral submission, it would
cause serious prejudice to the Opp. Party.
9. So far as conducting of Trade Test is concerned,
the learned Tribunal is quite justified in holding that
there is no document produced to show that any such
willingness had ever been sought for from the Opp. Party
and that he did not offer his willingness. Further, there is
absolutely no material to show that the Petitioners ever
conducted the Trade Test to enable the Opp. party to
extend his willingness or to participate in the said test so
as to make him eligible for promotion. Conversely, it is
admitted fact that such Trade Tests have been conducted

19 OA/310/00524/2018
in other places of the Petitioner's organization thereby
allowing the persons junior to the Opp. Party to get the
promotional post which is a clear discrimination and
utter violation of article 14 and 16 of the Constitution.
Consequently, the Opp. Party cannot be allowed to suffer
or to be blamed.
10. Therefore, we are of the view that there is no infirmity
or illegality in the order passed by the learned Central
Administrative Tribunal, Cuttack Bench Cuttack, the
reasons assigned therein are quite justified. Accordingly,
the Writ Petition being devoid of merits stands
dismissed.”
23. The principle underlying the “catch-up rule” is that
where a junior employee is promoted ahead of a senior
employee on account of reservation, such accelerated
promotion does not permanently alter the senior’s relative
seniority. Once the senior employee reaches the same
promotional post, his seniority vis-à-vis the junior is required
to be restored. This principle has been recognized in Prem
Kumar Verma v. State of Haryana , CWP No.2382 of 1996,
decided on 06.12.2006, and Charan Dass v. State of
Haryana , CWP No.13889 of 2006, decided on 15.05.2008,
wherein the senior general-category employee was held
entitled to appropriate stepping-up of pay upon catching up
with his junior in the reserved category. The principle was
subsequently reflected in the Government instructions dated

20 OA/310/00524/2018
05.03.2009. It is also relevant to note the decision in Anant
Ram Sharma v. State of Haryana , CWP No.9870 of 2014,
wherein, in similar circumstances, the rejection of the
employee’s claim by order dated 03.02.2014 was set aside by
the Hon’ble Court by judgment dated 02.07.2015, and the
employee was granted the benefit of stepping-up of pay at
par with his junior.
24. In the light of the facts and circumstances of the
present case, the applicable rules, and the principles
emerging from the aforesaid decisions, we are of the
considered view that the applicant has made out a case for
the reliefs claimed, to the extent indicated below:
I) The impugned order dated 02.04.2018 is set aside. The
respondents are directed to treat the period from
04.02.2015 to 23.10.2016 as duty for the purpose of
continuity of service and pensionary benefits, without
entitlement to arrears of salary for the said period.
II) The respondents are further directed to restore the
applicant’s seniority by placing him immediately above

21 OA/310/00524/2018
his immediate junior(s), in accordance with his original
position in the seniority, and to extend the
consequential benefits flowing therefrom, including
consideration for and grant of subsequent promotion to
Grade II, if otherwise eligible.
III)
The respondents shall complete the above exercise
within a period of three months from the date of receipt
of a copy of this order.
25. In the result, the OA is allowed to the above extent. No
order as to costs.
(M.L. SRIVASTAVA) (M. SWAMINATHAN)
MEMBER(A) MEMBER(J)
14. 10.2026
mas

Digitally signed
by M A SUNDAR
Date:
2026.11.02
16:20:33 +05'30'
M A
SUNDAR