Central Administrative Tribunal - Ernakulam
T. Vinu vs Union Of India on 27 June, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 807 of 2011
Wednesday, this the 27th day of June, 2012
CORAM:
Hon'ble Mr. Justice P.R Raman, Judicial Member
Hon'ble Mr. K. George Joseph, Administrative Member
1. T. Vinu, S/o. Kunhiraman Nair,
Asst. Station Master, Trichur Railway Station,
Thuruthiyil House, Kunnathura PO, Koilandy, Kozhikode-673 327.
2. Suleel Raj, S/o. A.K.S. Nair, Asst. Station Master, Kzhithura Railway
Station, Residing at Pournami, Kulakediyorkorem, Nemon PO,
Thiruvanthapuram. ..... Applicants
(By Advocate - Mr. M.P. Varkey)
V e r s u s
1. Union of India, represented by General Manager,
Southern Railway, Chennai - 600 003.
2. The Chief Personnel Officer, Southern Railway,
Park Town, Chennai - 600 003.
3. Sr. Divisional Personnel Officer, Southern Railway,
Trivandrum-695 014. ..... Respondents
(By Advocate - Mr. K.M. Anthru)
This application having been heard on 18.06.2012, the Tribunal on
27.06.2012 delivered the following:
O R D E R
By Hon'ble Mr. K. George Joseph, Administrative Member -
The 1st and 2nd applicants in this Original Application had applied for inter-divisional transfer from Chennai Division to Trivandrum Division on 21.10.1999 and 21.7.1998 respectively when they were working as Assistant Station Masters in the scale of pay of Rs. 4500-7000/-. The inter- divisional transfers are governed by Rule 226/229 of Indian Railway Establishment Code, Volume-I and Paragraph 312 of Indian Railway Establishment Manual, Volume-I. Their transfers materialized only in May, 2010 while they were holding the post of Station Masters Grade-II in the pay band of Rs. 9300-34800/- plus Grade Pay of Rs. 4200/-. Upon joining Trivandrum Division on 24.5.2010 they were reverted as Assistant Station Masters in the pay band of Rs. 5200-20200/- plus Grade Pay of Rs. 2800/- on bottom seniority. Their representations for being absorbed as junior most Station Master Grade-II in the pay band of Rs. 9300-34800/- plus Grade Pay of Rs. 4200/- did not elicit any response from the respondents. Aggrieved they have filed this Original Application claiming following relief:-
"a) Declare that Annexure A-2 is unjust, illegal, unconstitutional and; set aside the same in so far as it places the applicants in the lower Pay Band Rs. 5200-20200+Grade Pay Rs. 2800/-, instead of existing Pay Band Rs. 9300-34800+GP Rs. 4200.
b) Declare that the applicants are entitled to be absorbed as junior most Station Masters Grade II in the relevant grade of Rs. 5500-
9000/PB Rs. 9300-34800+GP 4200 in Trivandrum division with effect from 24.5.2010 with all consequential benefits and; direct the respondents accordingly.
c) Pass such other orders or directions as deemed just fit and necessary in the facts and circumstances of the case."
2. The applicants submitted that as per Rule 226 of IREC Volume-I, Group-C and D Railway servants can be transferred at their request from one Railway to another placing them below of existing confirmed and officiating staff in the relevant grade in the promotion group in the new establishment. The expression 'relevant grade' applies to grade where there is an element of direct recruitment. As per Note-(3) below paragraph 122 of IREM Volume-I on channel of promotion/higher grade of Station Masters, 15% of Station Masters are to be recruited from the open market. The applicants should have been transferred as Station Masters Grade-II in the pay band of Rs. 9300-34800/- plus Grade Pay of Rs. 4200/- and rank junior to all Station Masters in the said grade of Trivandrum Division. They relied upon the judgment of the Hon'ble High Court of Madras in Writ Petition No. 16172 of 1998 and connected cases decided on 8.7.2005 and WP No. 27002 of 2007 decided on 20.8.2009. Respondents Nos. 3, 5 & 9 in OA No. 234 of 2010 on their transfer to Trivandrum Division were placed junior most in the relevant grade i.e. Station Master Grade-II. Denial of similar treatment to the applicants who are similarly placed, is unconstitutional. On account of the fact of identical treatment as above, the first applicant may not be considered for selection to Group-B service notified on 1.8.2011 which stipulates 5 years non-fortuitous service in PB-2 (Rs. 9300-34800/- with Grade pay of Rs. 4200/-) as on 1.11.2010.
3. The respondents in their reply statement submitted that as the OA is filed beyond one year from the date of issue of the impugned order dated 2.6.2010, it is barred by limitation under Section 21-A of Administrative Tribunals Act, 1985. Further it also suffers from non-impleadment of necessary parties over whom the applicants are seeking seniority in the Trivandrum Division. The applicants had requested for transfer to Trivandrum Division only as Assistant Station Master in the scale of Rs. 4500-7000/- (Rs. 5200-20200/- plus Grade Pay Rs. 2800/- with effect from 1.1.2006) as evidenced from Annexures R1 and R2. The applicants do not have a case that they ever made an application for transfer as Station Master Grade-II against the direct recruitment quota therein. The employees whom the applicant referred in ground 5(a) of the OA are not on the similar footing as the applicants herein. Had applicants been interested in transfer in the post of Station Master Grade-II, they should have submitted suitable applications at the relevant time but before the transfer materialized. The applicants have not challenged the absorption of respondents 3, 5, 9 of OA No. 234 of 2010 or any other person in the post of Station Maser Grade-II in Trivandrum Division. The words 'relevant grade' appearing in paragraph 312 of IREM Volume-I are to be read with reference to the post shown in the transfer application. The order of the Hon'ble High Court of Madras in WP ) No. 16172 of 1996 is not applicable in this case, as each and every case is decided on the basis of the facts in the cases. The eligibility for appearing in the selection as per Annexure A7 is subject to fulfilling the eligibility conditions as notified.
4. In the rejoinder statement filed by the applicants it was submitted that there is recurring loss to the applicants in the matter of pay due to the Annexure A-2 order. In 1998 and 1999 the applicants could not have applied for transfer as Station Master Grade-II in the scale of pay of Rs. 5500-9000/- which was two grades above. The respondents ought to have asked the willingness of the applicants while processing their applications in the year 2010. When the respondents allowed Annexures R3 & R4 applications the affected SMs/ASMs were not given notice. The question of impleading does not arise when inter-divisional transfer is sought in terms of Rule 226 of IREC and paragraph 312 of IREM. The grade sought for is not the criterion for granting inter-divisional transfer but the grade conforming to Rule 226 of IREC read with paragraph 312 of IREM.
5. In the additional reply statement it was submitted by the respondents that the applicants ought to have registered for the post of Station Master Grade-II on transfer soon after their promotion as Station Master grade-II in their erstwhile division. The applicants not not have locus standi and right to be considered for transfer to the post to which they have never applied for.
6. We have heard the learned counsel for the parties and perused the pleadings and records of the case.
7. An interim order dated 21.9.2011 was issued in this OA directing the respondent No. 2 to treat the application of the 1st applicant to appear for Group-B selection notified under Annexure A7 letter as provisional for the purpose of examination.
8. We have considered the rival contentions carefully. We are of the view that this Original Application is not barred by limitation as the applicants are put to recurring loss in the matter of pay due to Annexure A2 order. As the inter-divisional transfer as per rule is granted with bottom seniority in the relevant grade in the transferring division the legitimate rights of the employees in that division are taken care of. Therefore, we hold that it is not necessary to implead any one in this OA as submitted by the respondents.
9. The applicants had to wait for more than 10 years to get inter- divisional transfer to Trivandrum division. While waiting for the transfer all these years they were promoted twice. It is hyper-technical to argue that every time they got promotion they should have re-applied for inter- divisional transfer and awaited their turn in the higher grade. An administration that is sensitive to the needs of its employees could have updated their applications for inter-divisional transfers under intimation to them.
10. There is nothing in the rules to suggest that the 'relevant grade' should be the grade of the applicants when they applied for transfer even after the lapse of a decade or more and after getting promotions. This stand of the respondents to accept the relevant grade in rule 312 as the grade of the applicants when they applied for transfer would cause an unintended hardship and loss of pay to the applicants not envisaged in the rule. When the concerned employee is put at the bottom seniority in the grade he was holding at the time of transfer for getting an inter-divisional transfer, he cannot be reverted to the post in which he was working when he made the request for it. For the sake of convenience Rule 312 is reproduced as under:-
"312. TRANSFER ON REQUEST.- The seniority of railway servants transferred at their own request from one railway to another should be allotted below that of the existing confirmed, temporary and officiating railway servants in the relevant grade in the promotion group in the new Establishment irrespective of the date of confirmation or length of officiating or temporary service of the transferred railway servants.
Note:- (i) This applies also to cases of transfer on request from one cadre/division to another cadre/division on the same railway.
[Rly.Bd. No. E(NG) I-85 SR 6/14 of 21-1-1986]
(ii) The expression "relevant grade" applies to grade where there is an element of direct recruitment.
Transfers on request from Railway employees working in such grades may be accepted provided they fulfill the educational qualifications laid down for direct recruitment to the post E(NG) I-
99/TR/15, dtd. 8.2.2000. No such transfers should be allowed in the intermediates grades in which all the posts are filled entirely by promotion of staff from the lower grade(s) and there is no element of direct recruitment.
[No. E(NG) I-69 SR 6/15, dated 24-6-1969 ACS-14].
11. The Apex Court has held in 2003 (8) SCC 714 - Union of India Vs. V.N. Bhat that even on voluntary transfer, employee only loses seniority and not other benefits and cannot be deprived of his experience and eligibility for promotion. In the judgment dated 20.8.2009 in WP ) No. 27002 of 2007 the Hon'ble High Court of Madras held as under:-
"7. It is settled principle of law that once transfer is effected on the request made by an employee, the pay of the employee must be protected. In this case admittedly, the second respondent's pay has been fixed lesser than what he was drawing before he was transferred to the present post,which is illegal. Therefore, we find no ground to interfere with the order under challenge. Consequently, it is sustained and the writ petition is dismissed. No costs. Connected miscellaneous petition is closed."
12. In WP(C) No. 16172 of 1998 and connected cases the Hon'ble High Court of Madras in its judgment dated 8.7.2005 held as under:-
"19. An argument was advanced on behalf of the Railway Administration that it was possible for an employee to seek transfer from one Railway to another like the second respondent, if only the employee sought for a post, which could be filled in by direct recruitment, fully or partly. For this, learned counsel invited the attention of the Court to the decision of the Railway Ministry under rule 226 of the Railway Establishment Code. On the side of the applicant it was argued that the post of Station Master always had an element of direct recruitment to the extent of 25 per cent. The Division Bench, accepted the argument of the applicant and rejected the argument of the Railway Administration for the simple reason that tit is a trite principle that where the concerned person has to be put at the bottom of the seniority, for doing so, he cannot be straight away reverted to the post in which he was working earlier. The following conclusion of the Division Bench is relevant:-
"8. The argument raised on behalf of the Writ petitioner Railway Board must fail for the simple reason that it is a trite principle that where the concerned person has to be put at the bottom of the seniority for doing so he cannot be straight away reverted to the post in which he was working earlier. Here is clear example where a person who was working as Assistant Station Master and had earned two promotions is being posted in the post which is two stages below the post of Station Master, merely because of his request transfer. This is to say the least absurd interpretation of the rule."
20. After finding so, the Division Bench has concluded that the Tribunal has correctly read the Rule and ordered the second respondent to be placed in the pay scale applicable to the Station Master Grade II and dismissed the writ petition as devoid of any merit. It is also brought to our notice that the Special Leave Petition filed by the Railway Administration came to be dismissed by the Hon'ble Supreme Court at the admission stage. Though it was argued that there is no law laid down by the Supreme Court by dismissing the SLP filed by the Railway Administration, the fact remains, the decision of the earlier Division Bench, viz., 2002 (3) LLN 352 (cited supra) is binding us on the basis of the precedence and considering the relevant rules and factual details, we are in respectful agreement with the view expressed by the Division Bench and reject the contra argument made by the Railway Administration.
In the light of our discussion, we are unable to accept the stand taken by the Railway Administration. On the other hand, we are in agreement with the decision of the Central Administrative Tribunal and we do not find any ground for interference. Consequently, the writ petitions filed by the Railway Administration are dismissed and the writ petitions by the applicants are allowed. No costs. Connected WPMPs., are closed."
13. Following the two decisions of the Hon'ble High Court of Madras cited above, we hold that the applicants in this OA are entitled to be absorbed as the junior most Station Masters Grade-II with pay band of Rs. 9300-34,800/- plus Grade Pay of Rs. 4200/- in the Trivandrum Division with effect from 24.5.2010 with all consequential benefits. The respondents are directed to issue appropriate orders in this regard within a period of two months from the date of receipt of a copy of this order. Further, the respondents are directed to treat the 1st applicant in this OA as eligible to appear for Group-B selection notified under Annexure A7 letter on the basis of his application at Annexure A8.
14. The Original Application is allowed as above with no order as to costs.
(K. GEORGE JOSEPH) (JUSTICE P.R RAMAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER "SA"