Central Administrative Tribunal - Ernakulam
D. Sunil Kumar vs The Union Of India on 29 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO. 788 OF 2012
Wednesday, this the 29th day of May, 2013
CORAM:
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE Mr. K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
D. Sunil Kumar
Senior Clerk, Electrical Branch,
Southern Railway, Divisional Office,
Thycaud P.O, TRIVANDRUM-14
Residing at Bindu Nivas, MGRA-23
Anayara P.O, TRIVANDRUM-29 ... Applicant
(By Advocate Mr. TCG Swamy )
versus
1. The Union of India
Represented by the General Manager
Southern Railway
Headquarters Office, Park Town P.O
Chennai-600 003
2. The Chief Personnel Officer
Southern Railway
Headquarters Office, Park Town PO
Chennai - 600 003
3. The Senior Divisional Personnel Officer
Southern Railway
Trivandrum Division
Trivandrum - 14
4. Shri R.G.Saji
Office Clerk , Electrical Branch
Southern Railway, Divisional Office
Thycaud PO, Trivandrum - 14 ... Respondents
(By Advocate Mr. Thomas Mathew Nellimoottil (R1-3)
Advocate Mr. Ashok M Cherian (R-4)
The application having been heard on 22.05.2013, the Tribunal
on 29.05.2013, delivered the following:
O R D E R
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER The applicant is presently working as a Senior Clerk in PB I with Grade Pay of ` 2800/- in the Electrical Department of Southern Railway, Trivandrum Division. The next promotional post of which the applicant might be eligible is Office Superintendent in PB II with Grade Pay of ` 4200/-
2. The grievance of the applicant in this case is that Respondent No.4 who was medically decategorised when he was serving as Station Master Grade II and who was originally inducted in the Electrical Department as Senior Clerk wherein he had worked for 8 months plus has now been absorbed as Office Superintendent against the LDCE vacancy on bottom seniority at his request. This, according to the applicant, is illegal since such absorption should be within the same Unit or Department and failing which it could only be in some other Unit or Department. Further, once the said private respondent accepted the post of Senior Clerk in the Electrical Department and worked there for a substantial period, there is no question of further consideration under the medically decategorized scheme to absorb him as Office Superintendent and that too in the Electrical Department. Hence this OA has been filed seeking the following reliefs:-
(i) Call for the records leading to the issuance of Annexure A-1 and quash the same.
(ii) Declare that the 4th respondent is not entitled to be considered and absorbed as Office superintendent Grade II in the Electrical Department of southern Railway, Thiruvananthapuram Division and direct the respondents accordingly.
3. Both, the private respondent as well as the official respondents have contested the OA. The official respondents raised the technical objection of locus standi since the applicant does not have the eligibility to compete the selection to the post of Office Superintendent in the LDCE quota. The official respondents have stated that the 4th respondent on medical decategorization with effect from 16.01.2009 was continued in supernumerary post waiting to be absorbed in a suitable alternative post. He was entitled to be absorbed in a equivalent post. He is an ex-serviceman and a graduate with educational qualifications in law. Initially he was posted in a vacant post of Senior Clerk in the Electrical Department meant to be filled up by Direct recruitment and the same was only as a temporary measure. His eligibility is against Office superintendent which was to be considered as and when such vacancy in a suitable quota was located. Thus, he cannot be said to have lost his identity as a medically decategorized employee since he was absorbed as a Senior Clerk.
4. The private respondent in his reply has stated that when he was offered Senior Clerk post in the Electrical Department he expressed his willingness to work under that capacity subject to the pay protection. The same was accordingly accepted to by the respondents (though earlier it was without such pay protection). The applicant could come to know that the 3rd respondent has issued an order absorbing other medically decategorised Station Master and got as Office Superintendents at LDCE vacancies. Annexure A-4 (d) refers. Accordingly, he has put forth his request for such accommodation as Office Superintendent. It is thereafter the respondents have issued order dated 08.08.2012 vide Annexure A-1. Since the private respondent is entitled to be reconsidered for the post of Office Superintendent under the medical decategorization scheme, his intermediate positioning as Senior Clerk would not deprive him of this entitlement.
5. Counsel for applicant argued that the 4th respondent does not belong to Electrical Department. Without accommodating the said respondent in the same Unit where he was earlier serving, respondents have at the request of the respondent posted him as Senior Clerk without any pay protection vide Annexure A-4. It was thereafter that the official respondents have afforded the private respondent pay protection vide Annexure R-4 (c). With that, the said respondents' entitlement to alternate employment comes to an end. As a matter of fact, the said respondent accepted the same and accordingly he participated in the LDCE Examination for the post of Office Superintendent in the Electrical Department against vacancies of 2011. However, he was not victorious in the said examination . Despite the above, the respondents have absorbed him as Office Superintendent with bottom seniority.
6. The official respondents have stated that against 2011 vacancies in some other Units medically decategorized Station Masters were accommodated against LDCE examination quota. As the private respondent is similarly situated , on his request he was also considered and absorbed as Office superintendent in the Electrical Department, of course, with bottom seniority. The counsel for respondents further argued that the applicant was not eligible to even appear in the examination and as such, accommodating the private respondent against LDCE quota cannot in any way affect the promotional chances of the applicant
7. Counsel for private respondents adopted the arguments of the official respondents and supplemented the same stating that when other similarly situated persons were absorbed in the post of Office Superintendent, there is no reason to deny the same to the private respondent.
8. Arguments were heard and documents perused. The entitlement of the private respondent as Office Superintendent in the parent unit or other Department is an admitted fact. True, the said private respondent was initially inducted in the Electric Department as a Senior Clerk , first without pay protection as of Station Master Grade II and later with necessary pay protection. It is at this juncture, vacancies that arose in the post of Office Superintendent in the Electrical Department and the said respondent did participate in the same though he was not successful. It was at that time that he could ascertain that two other similarly situated were, on decategorization, absorbed as Office superintendent. Since the vacancy belongs to 2011 and there was no qualified candidate to be accommodated, he had represented to the respondents citing the other cases of absorption as Office Superintendent of the medically decategorized Station Master Grade II and requested for absorption as Office Superintendent, Grade II. As by that time the applicant did not become eligible to appear for the examination; the absorption of the said respondent against the 2011 cannot in any way prejudice the applicant. In so far as locus standi is concerned, there is substance in the arguments put forth by the official respondents as well as private respondent. Under no circumstances, can the applicant claim 2011 vacancy of Office Superintendent. Again, if there is no other qualified person this vacancy will be wasted after some time if it is not filled up. Further, two other individuals have already been absorbed as Office Superintendents. As such, with a view to maintain consistency and uniformity the respondents have rightly absorbed the private respondent as Office Superintendent in the Electrical Department. The applicant's grievance on the absorption of the private respondent as Office Superintendent in the Electrical Department, does not fit in the term " person aggrieved " vide Section 19 of the Administrative Tribunal's Act, 1985.
9. In view of the above, OA lacks merit and accordingly the same is dismissed. No order as to costs.
Dated, the 29th May, 2013.
K GEORGE JOSEPH Dr.K.B.S.RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER vs