Central Administrative Tribunal - Ernakulam
V.V.Annie vs Union Of India Represented By The ... on 14 June, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.1046/10
Tuesday this the 14th day of June 2011
C O R A M :
HON'BLE Mr.JUSTICE P.R.RAMAN, JUDICIAL MEMBER
HON'BLE Mr.K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
V.V.Annie,
D/o.Varghese V.I.,
Gramin Dak Sevak Branch Post Master (GDS BPM),
Pulickamaly, Ernakulam.
Residing at Amala House,
Marudu, Kochi - 682 304. ...Applicant
(By Advocate Mr.P.A.Kumaran)
V e r s u s
1. Union of India represented by the Secretary
to Government, Department of Posts,
Ministry of Communication, New Delhi.
2. Chief Post Master General,
Kerala Circle, Thiruvananthapuram - 33.
3. Senior Superintendent of Post Offices,
Ernakulam Postal Division, Ernakulam. ...Respondents
(By Advocate Ms.Deepthi Mary Varghese,ACGSC)
This application having been heard on 14th June 2011 this Tribunal
on the same day delivered the following :-
O R D E R
HON'BLE Mr.JUSTICE P.R.RAMAN, JUDICIAL MEMBER The applicant is a GDS BPM now working at Pulickamaly within the Ernakulam Postal Division, transferred from Nettoor BPO which is in the Tripunithura Sub Division. Before her transfer she was drawing a monthly salary of Rs.1860/- as basic pay and Rs.1097/- as dearness allowance in the pay scale Rs.1740-30-2640 (Annexure A-2). On appointment as GDS BPM her pay was fixed at Rs.1600/- in the pay scale Rs.1600-40-2400 which is the minimum of the TRCA. Because of the reduction in the TRCA as a result of the transfer, the applicant was aggrieved and she preferred representation for restoration of the TRCA as drawn by her at Nettoor. Placing reliance on the decision of the Full Bench in O.A.270/06 and connected cases, it is contended that when a transfer is sought from one post office to another within the same unit of recruitment, she is entitled to be protected of her TRCA.
2. In the reply statement filed by the respondents they have specifically averred in para 8 that "it is most humbly submitted that, the applicant in the instant OA is not similarly circumstanced as the applicant in Annexure A-4, because the post initially held by the applicant and the post to which she has been transferred are coming under different recruiting units in this case." Further, in para 6 it is stated that the applicant has applied for the transfer for her own convenience and sought directions for posting as BPM Pulickamaly by filing O.A.1047/99 before this Tribunal. She was well aware of the consequences of the transfer at request and has furnished necessary declaration abiding by the condition of fixation of TRCA at the minimum of the new post.
3. In the rejoinder filed by the applicant with reference to paras 5 and 6 of the reply statement it is stated that the applicant approached the Tribunal when her request for transfer was turned down by the respondents illegally. As per the directions of the Tribunal applicant was transferred to Pulickamaly as GDS BPM. As against the averments to paras 7 and 8 of the reply statement, it is contended that transfer of the applicant was from one recruitment unit to another recruiting unit is incorrect. According to her, though the appointing authorities of GDSMD and GDSBPM are in a division vary, their combined seniority is maintained at the division. All Gramin Dak Sevaks irrespective of the category in a division are included in one seniority list. According to her, the contention that the GDSMD and GDSBPM are appointed by different appointing authorities and hence they come under different recruiting units was raised in OA 270/06 and connected cases, but this Tribunal did not accept it.
4. We have heard both sides. At the outset, we may state that the Full Bench decision, no doubt, referred to the plea raised in OA 270/06 in para 4, but the counsel for the applicant was not able to refer to any paragraphs considering the specific contention with reference to the particular facts as stated. The Full Bench while laying down the law has summarised the legal position in para 49 as follows :-
"49. Now, the entire situation would be summarised and references duly answered as under:-
(a) As per the rules themselves, in so far as transfer within recruitment unit and in the same post with identical TRCA, there shall be no depletion in the quantum of TRCA drawn by the transferred individual.
(b) In so far as transfer from one post to the same Post with Diff.
TRCA and within the Same Recruitment Unit, administrative instructions provide for protection of the same vide order dated 11th October, 2004, subject only to the maximum of the TRCA in the transferred unit (i.e. maximum in the lower TRCA).
(c) In so far as transfer from one post to a Different Post but with same TRCA and within the same Recruitment Unit, as in the case of (a) above, protection of TRCA is admissible.
(d) In respect of transfer from one post to another within the same recruitment unit but with different TRCA (i.e. from higher to lower), pay protection on the same lines as in respect of (b) above would be available.
(e) In so far as transfer from a post carrying lower TRCA to the same category or another category, but carrying higher TRCA, the very transfer itself is not permissible as held by the High Court in the case of Senior Superintendent of Post Offices vs. Raji Mol, 2004 (1) KLT 183. Such induction should be as a fresh recruitment. For, in so far as appoinment to the post of GDS is concerned, the practice is that it is a sort of local recruitment with certain conditions of being in a position to arrange for some accommodation to run the office and with certain income from other sources and if an individual from one recruitment unit to another is shifted his move would result in a vacancy in his parent Recruitment Unit and the beneficiary of that vacancy would be only a local person of that area and not any one who is in the other recruitment unit. Thus, when one individual seeks transfer from one post to another (in the same category or other category) from one Recruitment Unit to another, he has to compete with others who apply for the same and in case of selection, he shall have to be treated as a fresh hand and the price he pays for the same would be to lose protection of his TRCA."
5. We may now examine in this particular case that the scale of pay drawn by her as GDS MD at Nettoor is different from the scale of pay applicable to the post of GDSBPM at Pulickamaly to which post she was transferred as is evidenced from the reply statement. Hence this will not fall under clause (a) as above. It will also not fall under clause (b) for the same reason that the transfer is not from one post to the same post. It will also not fall under clause (c) since the transfer from one post to different post but the TRCA applicable is different. It will also not fall under clause
(d) because the transfer is from one post to another with different TRCA but not from higher to lower leave alone whether it is within the same recruitment unit or not. Thus, this is a case which is not falling under the situation as pointed out in clause (a) to (d) as above. Here the transfer is from a post carrying higher TRCA to another post carrying less TRCA. In so far as the transfer is from one post carrying lower TRCA to the same category or another category but carrying higher TRCA it has been held by the Full Bench under clause (e) that the very transfer itself is not permissible. Therefore, we do not find that the case in hand is shown to be supported by the Full Bench decision to grant any relief. Further, whether the transfer is from one post to another within the same recruiting unit is a question on which no materials are placed by either side to come to a definite conclusion. According to the respondents, the appointing authorities are different whereas the applicant would contend that there is a common seniority. The question is as to whether the post office where the applicant was working and the post office to which she is transferred fall within the same recruiting unit. It is also noticed that the applicant's request for transfer was not acceded to but it was only subsequently to the order passed by this Tribunal in earlier O.A.1047/99 that she was selected and appointed on a provisional basis as GDSBPM, Pulickamaly. Therefore, it is a fresh appointment made. Further all it is the specific case of the respondents that the applicant made a declaration that she will accept the minimum of the TRCA payable which is not specifically denied in the rejoinder.
6. For the above reasons, we find that the applicant has not succeeded in establishing that her case falls squarely within the ratio as decided by the Full Bench entitling her to the same relief. Accordingly, we find no merits in this OA and the same is dismissed. No costs.
(Dated this the 14th day of June 2011)
K.GEORGE JOSEPH JUSTICE P.R.RAMAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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