Central Administrative Tribunal - Ernakulam
Subhash R & Ors. vs Southern Railway on 8 November, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00195/2021
Wednesday this the 8th day of November 2023
CORAM:
HON'BLE Mr.JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER
1. Subhash.R.,
S/o.Rajappan,
Aged 55 years,
Sr. Technician,
Electric Loco Shed,
Erode - 638 002.
Residing at Naduvatheril House,
Kayamkulam P.O - 690 502.
2. Vijayasankar.M.,
S/o.N.Manickan,
Aged 46 years,
Technician Grade-1,
Electric Loco Shed,
Erode - 638 002.
Residing at Sree Nivas, Kunnukkad,
Akathethara P.O., Palakkad - 678 008.
3. B.Sreekumar,
S/o.P.R.Bhagerathan Nair,
Aged 43 years,
Technician Grade-1,
Electric Loco Shed,
Erode - 638 002.
Residing at Sreenilayam,
Nariyapuram, Pathanamthitta - 689 513.
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4. Sijo Joseph,
S/o.E.J.Joseph,
Aged 44 years,
Technician Grade-1,
Electric Loco Shed,
Erode - 638 002.
Residing at Illickal House,
N.S.S. P.O., Vrindavan Nagar,
Palakkad - 678 008.
5. Vishnu.S.,
S/o.Sudharshananpillai,
Aged 29 years,
Assistant Loco Shed (ALS),
Electric Loco Shed,
Erode - 638 002.
Residing at Thattakkattu House,
Kallelibhagom P.O., Karunagappally,
Kollam - 690 519.
6. Nithin.V.Pushpakaran,
S/o.Pushpakaran.V.K.,
Aged 31 years,
Assistant Loco Shed (ALS),
Electric Loco Shed, Erode - 638 002.
Residing at Valiyaveettil House,
Aroor P.O., Alappuzha - 688 534. ...Applicants
(By Advocate Mr.S.M.Prasanth)
versus
1. 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 P.O., Chennai - 600 003.
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3. The Divisional Personnel Officer,
Southern Railway, Salem Division, Salem - 5.
4. The Senior Divisional Personnel Officer,
Southern Railway, Thiruvananthapuram Division,
Thiruvananthapuram - 695 014.
5. The Senior Divisional Electrical Engineer/OP,
MEMU Shed, Southern Railway, Kollam - 691 001.
6. Sajith.C.S.,
Assistant Loco Shed,
MEMU Shed, Near Kollam Railway Station,
Southern Railway, Kollam - 691 001.
7. Sumith.P.J.,
Assistant Loco Shed,
MEMU Shed, Near Kollam Railway Station,
Southern Railway, Kollam - 691 001.
8. V.Gireesh Vijayan,
Aged 43 years, S/o.Vijayan,
Technician Gr.I, MEMU Shed, Kollam.
Residing at Yedukulam, Kannanallur, Kollam.
9. Ranjith Kumar.R.,
Aged 47 years, S/o.Rengaswamy,
Technician Gr.II, MEMU Shed, Kollam.
Residing at Rainbow, Kizhakkela,
Chekkonam P.O., Trivandrum.
10. Sajan.B.,
Aged 47 years, S/o.Balakrishnan,
Technician Gr.III,
MEMU Shed, Kollam.
Residing at Kochuveedu,
Kulangara Bhagam,
Chavara P.O., Kollam.
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11. Bijish Mohan,
Assistant Loco Shed,
MEMU Shed, Near Kollam Railway Station,
Southern Railway, Kollam - 691 001.
12. Ramu.C.Pillai,
Assistant Loco Shed,
MEMU Shed, Near Kollam Railway Station,
Southern Railway, Kollam - 691 001.
13. Abhilash.K.P.,
Assistant Loco Shed,
MEMU Shed, Near Kollam Railway Station,
Southern Railway, Kollam - 691 001.
14. Ananthu.R.R.,
Assistant Loco Shed,
MEMU Shed, Near Kollam Railway Station,
Southern Railway, Kollam - 691 001.
15. Rajila.K.,
Assistant Loco Shed,
MEMU Shed, Near Kollam Railway Station,
Southern Railway, Kollam - 691 001.
16. Preena.E.P.,
Assistant Loco Shed,
MEMU Shed, Near Kollam Railway Station,
Southern Railway, Kollam - 691 001. ...Respondents
(By Advocates Mr.O.M.Shalina [R1-5]
& Mr.Martin.G.Thottan [R8-10])
This application having been heard on 22 nd September 2023, the
Tribunal on 8th November 2023 delivered the following :
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ORDER
HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER The six applicants in this O.A are posted as Senior Technician/ Technician Grade-1/Assistant Loco Shed (ALS) etc., in the Electric Loco Shed (ELS) at Erode in Tamilnadu. They have filed the O.A aggrieved by the rejection in considering them for permanent transfer and appointment at Mainline Electrical Multiple Unit (MEMU) Shed, Kollam (QLN) by the respondents when the cadre in the said unit was made permanent and separate. They have thus prayed for the following relief :
(1) Declare that denial of permanent transfer and appointment to the applicants in their respective categories in the vacancies available at MEMU Shed QLN is violative of their Fundamental Rights guaranteed under Article 14, 16 and 21 of the Constitution and the norms evolved by the official respondents themselves in this regard.
(2) Call for the records leading up to Annexure A-9 and set aside the same.
(3) Direct the official respondents to permanently transfer and appoint the applicants herein in their respective categories in the vacancies available at MEMU Shed, QLN.
(4) Pass such other orders/directions which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
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2. Before we get into the details in relation to the averments made in the O.A, it should be noted that when the O.A was first filed before this Tribunal, it had been submitted at the outset by the learned counsel for the respondents Nos.1-5 that since the applicants were working at Erode, Tamilnadu, this Tribunal had no jurisdiction. Learned counsel later followed up his submission by filing a Note on behalf of the Respondent Nos.1-5 in which it was contended that since all applicants were working at ELS, Erode under the Salem Division of Southern Railway, they fell outside the stipulation of Rule 6(1)(i) of CAT (Procedure) Rules. This rule stipulates that an application shall ordinarily be filed by an applicant with the Registrar of the Bench within the jurisdiction where the applicant is posted for the time being. Various judgments of the Hon'ble High Courts were also brought to bear in this connection. After hearing both sides, this Tribunal on 21.10.2021 noted in its order that the question of maintainability of the O.A had not been considered and decided so far. It was also noted in the order that in an earlier case, the Hon'ble High Court had granted a stay on the order passed by the Tribunal regarding lack of maintainability. In such a situation it was noted that the Tribunal was not in a position to pass any -7- order on maintainability at present. Hence, in view of this, it was made clear that any appointment made thereto, while the O.A was pending, would be subject to the final outcome of the O.A. The matter was then listed on 24.11.2021 for hearing on the issue of maintainability.
3. It appears that the applicants approached the Hon'ble High Court on this issue by filing O.P.(CAT) No.92/2021 against the above order dated 21.10.2021. The Hon'ble High Court then directed that it was of the view that the Tribunal will have to decide the matter in relation to the maintainability as well as interim relief afresh, after examining the aspects borne out from the judgment previously rendered by the Hon'ble High Court in O.P.(CAT) No.67/2021 and O.P.(CAT) No.68/2021 after hearing both sides and in accordance with law. It was also ordered that the vacancies in question available for appointment, as reflected in Annexure A-5 which had occurred before the alleged closure of the cadre, should not be utilised for any method of appointment, including internal promotion, other than for accommodating the present original petitioners as an interim measure, if those vacancies have not already been filled up as on that day. It was also directed that this order was also -8- to be in force until the matter in relation to the maintainability and interim relief was decided by the Tribunal afresh. However, it was also directed that the official respondents may file their reply statement without any further delay.
4. After the above development, it appears from the records of the pleadings that the issue of maintainability was not gone into by the Tribunal in further detail. This was primarily because it appears that in the O.P.(CAT) No.67/2021, referred to by the Hon'ble High Court in its order in the above mentioned O.P.(CAT) No.92/2021, related to the maintainability of another O.A filed by certain Assistant Loco Pilots (ALPs) working at Erode, Salem Division. The matter had been disposed of by the Hon'ble High Court observing that while there was no dispute that the applicants therein were posted in places outside the limits of State of Kerala, their specific case was that part or substantial part of the cause of action in this regard, going by the essential bundle of facts pleaded by them, had in fact arisen within the territorial jurisdiction of the Ernakulam Bench of C.A.T., which was having Tribunal jurisdiction over territorial limits of the State of Kerala. It was further observed therein that this Tribunal had -9- not evaluated this crucial issue regarding territorial jurisdiction from this essential perspective. Further, it was also found as follows in the O.P.(CAT) No.67/2021 :
" ........Going by the essential bundle of facts pleaded by the petitioners, we are of the opinion that atleast part of substantial part of cause of action has arisen within the territorial limits of the State of Kerala. The issue as to the factual correctness or otherwise of those bundle of pleaded facts, could be evaluated later by the Tribunal. The decision of the Tribunal overlooking these crucial and relevant aspects is plainly wrong. In other words, the impugned verdict of the Tribunal in O.A.No.180/322/2021 dated 09.09.2021 will deserve interdiction by the Hon'ble High Court in exercise of the powers of judicial review and supervision, conferred under Articles 226 and 227 of the Constitution of India. Hence, impugned Ext.P1 order of the Tribunal dismissing the O.A on the ground of lack of Tribunal jurisdiction will stand set aside. Consequently the O.A.No.180/322/2021 will stand restored to the files of the C.A.T., Ernakulam Bench for decision and consideration afresh....."
Similarly, in the other referred O.P.(CAT) No.68/2021, which was also filed by another group of Assistant Loco Pilots, again located in Erode, Salem arising out of O.A.No.259/2021 of this Tribunal, the Hon'ble High Court noted that the Tribunal had addressed only the issue as to arising out of Clause (i) of Rule 6(1) of CAT Procedure (Rules) and for that there was no dispute for the -10- applicants that they are in fact posted outside the territorial limits of Kerala. However, it was noted that the crucial issues relating to Clause (ii) of Rule 6(1) of CAT Procedure (Rules) were not seen adverted to and addressed by the Tribunal while dismissing the O.A.No.259/2021 on the ground of jurisdiction. Hence, the matter was found to be requiring to be interdicted by the Hon'ble High Court. The concerned O.A.No.259/2021 was ordered to be restored to the file of the Tribunal, along with O.A.No.322/2021 for a decision afresh.
5. The matters in the above two O.A's were again heard and have since been disposed of by this Tribunal by its order dated 20.07.2023 in O.A.No.322/2021 and order dated 31.05.2023 in O.A.No.259/2021. While disposing of these O.As this Tribunal noted in its order that the Hon'ble High Court had expressed its clear opinion in paragraph 8 of the judgment in O.P.(CAT) No.67/2021 that at least part or substantial part of cause of action has arisen within the territorial limits of the State of Kerala and accordingly the impugned orders of the Tribunal dismissing the O.As on the ground of lack of jurisdiction stand set aside. Since this was the specific opinion of the Hon'ble High Court, this -11- Tribunal then took up and disposed off the matter. Thus, it is with this background that we now examine whether there can be an issue of maintainability of this O.A specifically due to the opinions expressed in O.P.(CAT) No.67/2021 as well as in O.P.(CAT) No.68/2021. While it is clear that the applicants in this specific O.A are posted in the State of Tamilnadu and, as such, under Rule 6(1)(i) of the CAT (Procedure) Rules, 1987 they do not qualify to file an application with the Registrar of this Bench, we also have to be guided by the condition specified under Rule 6 (1) (ii) of the same Rules that the application could be filed with the Registrar of the Bench within whose jurisdiction the cause of action, wholly or in part, has arisen. This was also the issue referred to by the Hon'ble High Court. It is to be noted in this connection that in this O.A that while the cause of action in the initial stages had mainly occurred in the Salem Division at Erode, later a very substantial part of the cause of action took place in the Trivandrum Division at Trivandrum in Kerala. Further the action continued from that stage onwards in the Trivandrum Division. It is on this prime consideration that we have decided, as directed by the Hon'ble High Court, that on the issue of maintainability of the O.A this Tribunal has the jurisdiction to hear and dispose the O.A. Further, the matter has been fully heard and, as such, the issue in relation -12- to the interim relief sought is not being separately considered and the same will be subsumed within the final order of this Tribunal in the O.A as follows :
6. We now examine the main issues that have been raised by the applicants in this O.A. As indicated earlier, the applicants herein are aggrieved by the non consideration by the official respondents for their permanent transfer and appointment in the Mainline Electrical Multiple Unit Kollam (MEMU Shed QLN). It is submitted that the MEMU Shed, QLN had been initially set up by the Southern Railway with three rakes (trains). Later, another four rakes were added and currently the MEMU Shed, QLN has seven rakes. Further, until recently it is submitted that the MEMU Shed, QLN had been operating on the basis of manpower borrowed temporarily from other units of the Railways. It appears that the Divisional Office Salem of the Southern Railway, under whose jurisdiction the MEMU Shed was functioning at the relevant time, issued a notification vide Annexure A-1 dated 17.03.2020, in relation to filling up of vacancies in two MEMU Sheds at Palghat and Quilon. This was as a follow up to the clearance given by the Southern Railway, Headquarters in reference to certain judgments in O.P.(CAT) -13- No.195/2019, 8/2019 and 232/2019 by the Hon'ble High Court of Kerala. It was decided that all sanctioned posts from the level of Junior Engineer (JE) to Assistant Loco Shed (ALS) (Elec) in the MEMU Sheds at Palghat and Quilon were to be declared as vacancies with immediate effect. Further the details of posts under the MEMU Sheds at Palghat and Quilon that were to be operated were also shown in the notification at Annexure A-1.
7. As per the Annexure A-1 notification, a total of 33 posts ranging from JE to ALS (Elec) had been sanctioned in the MEMU Shed Qln. It was proposed to fill up these posts by calling 'volunteers' afresh from among the employees of various units of the Electrical Department, purely as a one time measure. There were also certain specific conditions indicated in the Annexure A-1 notification. These conditions will be flagged when the reply statement submitted by the official respondents is dealt with in this order later. In any case, pursuant to the notification at Annexure A-1 inviting applications by volunteers (employees), the Divisional Office at Salem, vide Annexure A-2 dated 05.11.2020 subsequently published a list of these volunteers who had applied to fill up the vacancies. The names of the employees included in the said list of -14- volunteers was on the basis of their seniority against the vacancies in each category. Though the applicants' had applied pursuant to the Annexure A-1 Notification, they did not find a place in the said list, presumably because they were not senior enough to be considered for the 33 posts available in the MEMU Shed, QLN.
8. It appears that soon after the Annexure A-2 list was published the Salem Division published on 18.11.2020 (a crucial date in relation to what follows in this O.A) a list of employees who had volunteered for transfer to MEMU Sheds at Palghat and Quilon. They were transferred on their existing pay level/pay with immediate effect. In other words, the order/communication at Annexure A-3 was issued by the Salem Division containing names of those persons who had been selected to work in the MEMU Sheds on the basis of their seniority in the available vacancies. It was further indicated at Annexure A-3 that : "With immediate effect, the cadre of MEMU Sheds - PGT & QLN are closed ie., on 18.11.2020." It was also indicated in the Annexure A-3 order/communication that the cadre of MEMU Shed QLN cadre would be under the control of Divisional Railway Manager/Personnel/Trivandrum and that the Divisional Electrical Engineer/Operations/Trivandrum would be the -15- cadre controlling officer. Further, the remaining employees working in MEMU Sheds - Palghat and Quilon were repatriated to their respective parent cadres with immediate effect. It was also indicated at paragraph 8 of the Annexure A-3 order/communication that "once all employees joined the posts, the cadre at MEMU Sheds - Palghat & Quilon will be operated separately and delinked from ELS/ED of Salem Division." Further, it was indicated in the Annexure A-3 that those who were not considered could apply for inter divisional transfer on bottom seniority in recruitment grades against future vacancies and also against further creation of posts.
9. The aforementioned order at Annexure A-3 dated 18.11.2020 was followed by Annexure A-4 order issued by the Senior Divisional Personnel Officer, Trivandrum on 02.12.2020. The subject of this Order was "transfer and posting in MEMU/QLN on cadre closing by SA Division". In this order the list of employees absorbed at MEMU Shed Quilon was indicated. This list consisted of 32 employees, which was in line as we have noted with the 33 posts shown sanctioned in the Annexure A-1 notification. It was also indicated in this order that the employees who were allotted to Quilon, but currently working -16- in other units, may be relieved to join at MEMU/Quilon on receipt of the order. However, in addition to these 32 employees, the order also indicated the names of a further 11 employees, who had been initially recruited by the Trivandrum Division and directly posted and had continued working in MEMU Shed Quilon till 18.11.2020. These employees had not been absorbed in any other cadre in their parent division. It was indicated in the Annexure A-4 order that these employees were being held back at Quilon till further orders were issued from the office. It was also indicated that till such time, they would be signing muster and would be used for the services of MEMU Shed, Quilon.
10. It is the issue of the above 11 employees which is at the heart of the pleadings by the applicants in this O.A. Out of the 11 names that appear it is stated that the person at Sl.No.1 later passed away. The persons at Sl.No.2 and Sl.No.11 were transferred on their own request out of the MEMU Shed, Quilon. Thus, 8 employees were left who have been placed in MEMU Shed Quilon by the Annexure A-4 order in addition to the 32 employees selected on the basis of seniority. This has been objected to by the applicants. It is submitted that they had not been -17- included in the said list for the ostensible reason that after accommodating the senior hands in the list, there were no sufficient vacancies to accommodate them. However, it is submitted by the applicants in the O.A that the 6 th and 7th respondents, who appear among the 11 employees indicated in the same Annexure A-4 order, are actually juniors to the applicants at Sl.Nos.5 & 6, who appear in the Annexure A-2 list drawn up on the basis of seniority. However, they find a place in the final list of persons included in the cadre. The applicants submit that these 11 employees had not been there in the Annexure A-3 list published by the Salem Division. They are directly recruited candidates in the Trivandrum Division who were not absorbed in any cadre in the parent unit. The applicants have objected to these employees being considered for absorption/placement in the MEMU Shed, Quilon even as the Railways had themselves invited applications from employees eligible for permanent transfer to MEMU Shed, Quilon on the basis of their seniority. Their contention is that without appointing persons from the list of those who had applied consequent to Annexure A-1 notification; no other persons should have been accommodated permanently at the MEMU Shed Quilon.
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11. It is submitted that soon thereafter, on 12.03.2021, the Southern Railway, Divisional Headquarters, Trivandrum issued another Office Order publishing the provisional seniority list of employees who had been permanently absorbed at MEMU Shed Quilon. As per this list, across the categories of JE to ALS (Electrical) (also called Helper), the MEMU Shed Quilon is shown to have been sanctioned as many as 75 posts. As against these 75 posts of the sanctioned strength, it is submitted that only 41 employees are working, which has left a total of 34 vacancies remaining to be filled. The Office Order dated 12.03.2021, which has been produced at Annexure A-5, shows the 6 th and 7th respondents as part of the employees of the MEMU Shed, QLN. These employees, as was mentioned earlier by the applicants in this O.A, are juniors to the 5 th and 6th applicants. This was thus in violation of the rule of seniority in Annexure A-2. Further, a perusal of the list also shows that all the 8 employees, who were temporarily accommodated at MEMU Shed Quilon as per Annexure A-4, have been included. It is submitted that since the Southern Railway had already prepared a list of employees on the basis of their seniority against each category of posts for permanent transfer to the newly formed MEMU Shed Quilon, all the vacancies in the permanent posts of the cadre at -19- MEMU Shed Quilon ought to have been filled up from the said list. Further this list also proves that, in spite of the fact that cadre was supposed to have been closed on 18.11.2020, it had actually not been done so. Otherwise it is submitted that the 8 employees, who were temporarily accommodated at MEMU Shed Quilon vide Annexure A-4, could not have been included in the Annexure A-5 provisional seniority list. In addition to this, all the employees chosen for manning the permanent cadre had not been relieved from their parent units to join at the MEMU Shed Quilon.
12. In other words, it is the contention of the applicants that the Railways ought to have considered them first as they were included in the Annexure A-2 list, when planning the permanent cadre at MEMU Shed Quilon. It is further submitted that even as per the norms in relation to the 'units' of MEMU, the number of employees who ought to have been employed in the MEMU Shed Quilon in the permanent cadre to take care of 7 rakes, should have been 119. However, as against that requirement of 119 employees, the Railways had only sanctioned the posts of 75 employees for MEMU Shed Quilon. It is submitted that this requirement was there, even before the formation -20- of the permanent cadre. In this connection, it is also submitted that the Divisional Office at Trivandrum had initiated steps to obtain sanction for creating 54 additional posts in the year 2015 itself. This is established by the communication produced at Annexure A-7. Therefore, all these points together go to prove that vacancies were in fact available to accommodate the applicants even before the issue of Annexure A-1 notification. The Annexure A-1 Notification only showed 33 sanctioned posts as available. This was far below the sanctioned strength required for the smooth functioning of the MEMU Shed as is clear from Annexure A-7.
13. The applicants submitted a representation, vide Annexure A-8, to consider them in the available vacancies by virtue of their inclusion in the Annexure A-2 list prepared pursuant to Annexure A-1 notification. This representation was submitted to the General Manager, Southern Railway through the proper channel since they were all working at Electrical Loco Shed, Erode. The representation was replied to by the impugned order at Annexure A-9 dated 30.03.2021 issued by the Divisional Office, Personnel Branch, Salem. By the impugned order the respondents have indicated that even in -21- the Annexure A-1 notification it had been indicated that after the closure of the cadre, any remaining request transfers would be considered as per usual rules of inter divisional transfer on bottom seniority in recruitment grade against future vacancies. It is also indicated that after preparation of integrated seniority of the volunteers by disposal of representations, adequate volunteers were posted at MEMU Shed Quilon as per their options against the vacancies notified. The cadre was also closed on 18.11.2020. Further after the closure of the said cadre, 63 employees in the ELS, Erode have already registered for inter divisional one way transfer to the MEMU Sheds at Quilon and Palghat. It is also stated in the Annexure A-9 impugned order that in case the request of the representationists is considered for posting them at MEMU Quilon as per their option after the closure of cadre, it would unsettle a settled issue. This would invite further representations and court cases. It is also indicated that in case the representationists desire to go to the MEMU Shed Quilon, they can apply for inter divisional one way request transfer in the prescribed format accepting the conditions prescribed for such inter divisional one way transfer.
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14. The applicants have however submitted that what has been indicated in the Annexure A-9 reply to them is not true to the facts. They reiterate their contention that even before the issuance of Annexure A-1 notification there were sufficient vacancies to accommodate them. This is evident from the fact that immediately after the formation of the permanent cadre when the provisional seniority list was published by the respondents, the permanent posts were shown as 75, as against which only 41 persons were working leaving 34 vacancies unfilled. This shows that the vacancies as reflected in the Annexure A-5 provisional seniority list of MEMU Shed Quilon published on 12.03.2021 had been existing even before the cadre closure. The vacancies ought to have been filled up by the respondents before that. If this exercise had been undertaken before the issuance of Annexure A-1 notification, the applicants' names would also find a place in the Annexure A-3 and Annexure A-4 lists.
15. It is submitted by the applicants that they are thus entitled to permanent transfer and appointment at MEMU Shed Quilon in view of their seniority in the list at Annexure A-2. It is submitted that the contention of the respondents that the MEMU Shed Quilon had been closed as early as 18.11.2020 is not sustainable for the reason that when -23- Annexure A-5 provisional seniority list was published, persons who were not absorbed in the permanent cadre were also shown included in it. It is further submitted that, in Annexure A-4, the respondents had specifically stated that these 11 persons had been only temporarily accommodated. When the respondents made known the procedure to fill up the vacancies in the permanent cadre and these proceedings were initiated, the said vacancies can be filled up only in accordance with that prescribed procedure. The available vacancies were then correctly filled up from the persons who were included in the Annexure A-2. However, thereafter, when Annexure A-5 provisional seniority list was prepared, it was seen that even those who were temporarily accommodated, like these 11 persons, were given a place in the permanent cadre. This was in violation of the seniority rule and the procedure notified. Their inclusion in the seniority list is, therefore, clearly against the position taken by the respondents in Annexure A-1 and Annexure A-4. It is also reiterated that the cadre had not been actually closed on 18.11.2020 as stated by the respondents. If the respondents had actually closed the cadre, these 8 persons, who were directly recruited and temporarily accommodated, would not have found a place in the provisional seniority list, published by the respondents as Annexure A-5. It must therefore be presumed that -24- as on the date of Annexure A-5 seniority list, the cadre had not been closed and it was open. If that is the case, then, as per the procedure made known to the employees, all vacancies in the permanent cadre have to be filled up from the Annexure A-2 list.
16. The applicants submit that they are thus entitled to an appointment in the permanent cadre of MEMU Shed, Quilon going by the vacancies as shown in Annexure A-5. The respondents have accommodated 8 persons who were directly recruited without considering them. The request therefore submitted by the applicants should have been positively considered by the respondents and they should have been appointed at the MEMU Shed Quilon. The fact that it has not been done is arbitrary, illegal and is in violation of the Fundamental Rights guaranteed under Articles 14, 16 and 21 of the Constitution. Further, the total number of employees required for the MEMU Shed Quilon is 119, whereas, the respondents had only sanctioned 33 posts initially. Immediately, thereafter, as indicated at Annexure A-5, it was increased to 75. It is submitted that all these 75 posts were in existence, even before the issuance of Annexure A-1 selection notification. This is evident from the fact that immediately after the cadre was apparently closed, the -25- permanent posts sanctioned and available went up to 75. The respondents should have, therefore, considered the applicants for permanent transfer in the vacancies available at MEMU Shed Quilon.
17. After this O.A was filed and even before the reply statement was received, during the period that the matter in relation to maintainability was under discussion the applicants had filed M.A.No.180/4/2022 to accept the documents produced at Annexure A-11 and Annexure A-12. The said M.A was accepted. The applicants produced at Annexure A-11 a Memorandum dated 03.11.2021 issued by the Divisional Officer, Personnel Branch, Trivandrum on the subject of cadre closure of MEMU Shed, Quilon. After referring to the Annexure A-3 and Annexure A-4 orders in the reference at Sl.No.2 and 3 the said Memorandum went on to state as follows :
" In terms of PCPO/MAS letter under reference and the Office Order issued by DPO/SA vide reference 2 above, the cadre of MEMU Shed/QLN is closed under the terms and conditions stipulated in the letter/office order cited.
Accordingly the cadre of Memu Shed/QLN will henceforth will be under the administrative control of DRM/TVC from the grade of JE/MEMU to Assistant (Helper)/Memu with immediate effect.
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This has the approval of the competent authority."
It is the contention of the applicants that the above Memorandum clearly proves that the cadre of the MEMU Shed Quilon was not closed on 18.11.2020, unlike what has been stated by the respondents. In fact as per the above, the cadre was closed only on the date of issue of Annexure A-11 Memorandum ie., on 03.11.2021. It was only after that that the administrative control of the MEMU Shed Quilon was placed under DRM/TVC (Divisional Railway Manager/Trivandrum). In addition, another seniority list was also published on 05.11.2021 by the office of the Senior Divisional Personnel Officer, Divisional Headquarters, Trivandrum, produced at Annexure A-12. As per this list covering the category of JE to Helper, it is to be noted that the MEMU Shed Quilon had 41 sanctioned posts, against which 38 were in position with a vacancy of 3. Shortly after the M.A.No.180/4/2022 was filed on 03.01.2022, another M.A.No.180/225/2022 was filed by three new Miscellaneous Applicants presently working as Technicians in the MEMU Shed Quilon. They prayed for getting themselves impleaded in the O.A as additional respondents 8 to 10. It was stated in this M.A that the original applicants did not have any preferential right to be -27- considered for appointment in the MEMU Shed, Quilon, apart from seeking appointment on an inter divisional transfer on bottom seniority. It was contended that the vacancies at present existing, if any, should be filled by considering existing employees in MEMU Shed, like these Miscellaneous Applicants on the basis of seniority as a regular promotion. The M.A.No.180/225/2022 dated 17.03.2022 was allowed by this Tribunal and the three Miscellaneous Applicants were allowed to be impleaded as additional respondent Nos.8 to 10. In addition, M.A.No.180/4/2022 filed on 03.01.2022 was also allowed and Annexure A-11 and Annexure A-12 were brought on record.
18. The official respondents in this O.A filed two reply statements. This was followed by an additional reply statement to the rejoinder filed by the applicants. In their first reply statement filed on 14.09.2022, the official respondents countered the main issues raised by the applicants in the O.A. According to the official respondents the MEMU Shed, Quilon had been commissioned on 18.03.2012 with a holding of two conventional 8 car MEMU rakes. Though Quilon falls under the administrative jurisdiction of Trivandrum Division, the MEMU Shed, Quilon was initially placed under the control of Salem Division. This -28- was due to the fact that the Trivandrum Division was not having any previous experience in the maintenance of MEMU rakes. It was submitted by the respondents that only a few Car Sheds and Electrical Loco Sheds located largely in the State of Tamilnadu were having experienced staff and supervisors for the maintenance of MEMU rakes. Due to this reason options were called from all volunteers of Electrical/Rolling Stock Branch for filling up the posts in MEMU Shed, QLN. The Principal Chief Personnel Officer, Madras had approved the process for closure of the cadre of the MEMU Sheds at Palghat and Quilon and, consequently, all the sanctioned posts from Junior Engineer to ALS (Elec) in MEMU Sheds at Palghat and Quilon were declared as vacancies with immediate effect as per Annexure A-1 notification/order dated 17.03.2020 issued by the Salem Division.
19. It is pointed out by the respondents that the Annexure A-1 notification had identified only 33 posts in the MEMU Shed, Quilon ranging from one post of Junior Engineer, two posts of Senior Technician, seven posts of Technician Grade-I, five posts of Technician Grade-II, four posts of Technician Grade-III and 14 posts of Assistant Loco Shed (Elec)(Helper). Volunteers were called from the various units -29- of the Electrical Department as a one time measure to fill these posts. The stipulations in Annexure A-1 had included the following important conditions :
(1) The employees working in MEMU Sheds at Palghat and Quilon also will have to volunteer. It they do not volunteer, it would be deemed that they are not willing to volunteer for MEMU Sheds and they would be repatriated to their respective parent cadre and any correspondence in future would not be entertained.
(2) The volunteers would be arranged in the order of seniority in the respective grades and among them the senior most employees of respective grades would be considered for transfer to MEMU Shed/Palghat and Quilon respectively as per their option to the extent of vacancies available as detailed in the sanctioned order.
(3) The employees who are working in MEMU Sheds at Palghat and Quilon who are volunteering and who are not considered based on their seniority position for the transfer to MEMU Sheds at Palghat and Quilon would be repatriated to their respective parent cadre.
In addition to the above points the Annexure A-1 Notification/Order also indicated the following stipulations :
(1) On completion of all formalities, cadre will be closed for all purposes and final seniority of each shed will be determined on the basis of the employee's Date of Entry (DoE) in their respective grades of the parent cadre.-30-
(2) After closure of the cadre, any remaining request transfers will be considered as per usual rules of inter division transfer on bottom seniority in recruitment grade against future vacancies.
(3) The cadre of MEMU Shed, Palghat will be under the control of DRM/PGT and Sr.DEE/MEMU/PGT will be the cadre controlling officer.
(4) MEMU Shed/QLN cadre will be under the control of DRM/TVC and DEE/OP/TVC will be the cadre controlling officer.
(5) The applications duly verified and certified by the controlling officer are to be forwarded in one bunch to the Salem Division with the usual records.
20. It is submitted by the official respondents that from the list of volunteers who had applied, an integrated provisional seniority was assigned, based on the date of entry in the respective grade and cadre/panel seniority position certified by the concerned Divisions where the volunteers were working. After disposal of representation on the provisional list a final integrated seniority list was issued by the Salem Division as per the Annexure A-2 letter dated 05.11.2020. It was based on this final seniority list that the Annexure A-3 Office Order dated 18.11.2020 was then issued by the Salem Division closing the cadre of MEMU Sheds Quilon and Palghat effective immediately from the date of order. The respondents submit that with effect from this date ie., -31- 18.11.2020, the control of the cadre was then transferred from the Salem Division to the Trivandrum Division and to the Palghat Division, as the case may be. The Trivandrum Division, thereafter, issued Annexure A-4 order dated 02.12.2020 in respect of the MEMU Shed, QLN. This order was regarding transfer and posting in MEMU Shed, Quilon and it contained the list of employees who were absorbed at MEMU Shed, Quilon from the Annexure A-3 final seniority list dated 18.11.2020. In addition, it is submitted that the Annexure A-4 order also included a provision that the transfer of MEMU Shed, Quilon would be carried out by including 11 employees who had been initially recruited by the Trivandrum Division and had continued working in the MEMU Shed, Quilon till 18.11.2020. This was done because these 11 employees had not been absorbed in any cadre in the parent division. They were, therefore, being held back in Quilon for being used in the services of the MEMU Shed, Quilon till further orders were issued. It is submitted that from among these 11 employees, one employee expired and two employees were transferred on their own request to MEMU Shed, Palghat on 09.12.2020. Thus, the remaining 8 employees, remained in MEMU Shed, Quilon. It is submitted that the competent authority then accorded sanction for the permanent transfer of 8 posts from -32- Mechanical/Loco, Ernakulam to MEMU Shed, Quilon in the Electrical/OP Department of Trivandrum Division to accommodate these 8 persons at MEMU Shed, QLN. This was done as per Memorandum dated 03.03.2021, a copy of which has been produced by the respondents, along with their reply statement at Annexure A-3(f). Subsequent to this, the provisional seniority list of MEMU Shed, Quilon for formation of new cadre in the Trivandrum Division was thereafter published by the Trivandrum Division on 12.03.2021, as per Annexure A-5. This list included two Headquarters controlled posts (SSE) in addition to the 33 posts sanctioned by the Salem Division and 8 posts transferred from Mechanical/Loco, Ernakulam to MEMU Shed, Quilon.
21. The respondents at the operational level then apparently took steps to initiate creation of even more posts in the MEMU Shed, Quilon. They sent a proposal for concurrence by the Divisional Finance Manager, Trivandrum Division. Annexure R-3(g) Memorandum was then published dated 03.03.2021 after having received the financial concurrence of Senior Divisional Finance Manager, Trivandrum for creation of 34 more posts for the newly added assets in MEMU Shed, Quilon. It is explained by the respondents that it is on the strength of the -33- Annexure R-3(g) that the sanctioned posts of the cadre was shown as 75 in Annexure A-5. This consisted of 33 posts earlier sanctioned by Salem Division, 8 posts transferred from Mechanical Loco, Ernakulam and the 34 new posts totalling 75 posts. However, the respondents further explain that the Ministry of Finance, Department of Expenditure had earlier issued on 04.09.2020 an O.M in relation to expenditure management and further economy measures. As per this O.M., it had been indicated that there would be a ban on creation of new posts except with the approval of Department of Expenditure in all Ministries/Departments, Attached Offices, Subordinate Offices, Statutory Bodies and Autonomous Bodies. This ban was to cover creation of all posts under powers which had been delegated to organizations, regardless of the source of such authority or power. It had been ordered further that wherever such posts have been created after 01.07.2020 under delegated powers or authority without the approval of Department of Expenditure and had not yet been filled, then such posts would not be filled. However, if it was deemed absolutely essential to fill them, a proposal could be sent for approval of Department of Expenditure. The copy of this Department of Expenditure, O.M dated 04.09.2020 has been produced by the respondents at Annexure R-3(h).
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22. The Railway Board, thereafter, intimated all Zonal Railways that creation of new posts would require the approval of Department of Expenditure, under the Ministry of Finance, vide letter dated 25.03.2021. Thus, in line with Annexure R-3(h), as well as the Railway Board letter dated 25.03.2021, a proposal for creation of the 34 posts in MEMU Shed, Quilon (from Junior Engineer to Assistant) was sent for getting the approval of Department of Expenditure vide letter produced by the respondents at Annexure R-3(j) dated 12.05.2021. It is submitted that the approval of Department of Expenditure for creation of these 34 posts is still awaited. As such, it is submitted that since no approval has been received, the total number of sanctioned posts in MEMU Quilon will have to remain only at 41, being the 33 posts sanctioned by the Salem Division + 8 posts transferred from Mechanical Loco at Ernakulam to MEMU Shed, Quilon, instead of 75 as mentioned in Annexure A-5. Later on 03.11.2021, the Annexure A-11 Memorandum was issued by Trivandrum Division indicating the cadre closing of MEMU Shed, Quilon under the terms and conditions stipulated in the Annexure A-4 Office Order dated 02.12.2020. On 05.11.2021 the Annexure A-12 draft seniority list of MEMU Shed, Quilon was also published indicating the cadre position as on date of issue, as per which, a list of 38 employees -35- who are actually posted at MEMU, Quilon against the total 41 sanctioned posts was given. The respondents submit that this is then the factual position regarding the cadre at the MEMU Shed, Quilon.
23. Next after the above factual position, the respondents have addressed the contentions made in the O.A by the applicants. They submit that the contention of the applicant that 6th and 7th respondents who are juniors to the 5th and 6th applicants in Annexure A-2 have found a place in the final list of persons included in the cadre is correct. However, they clarify that the 6 th and 7th respondents have found place in the cadre for the reason that they are among those 11 employees who were initially recruited by the Trivandrum Division and had continued working in MEMU Shed, Quilon till 18.11.2020, when the cadre was closed by Salem division. These two respondents were ordered to be held back in Quilon till further orders were issued by Trivandrum Division. Their services were directed to be used in the MEMU Shed, Quilon as per the provisions made in Annexure A-4, while carrying out the transfer of cadre closing by the Salem Division. It is clarified that these two respondents or even all the 11 employees do not occupy any of the 33 vacancies sanctioned by Salem Division after cadre closure vide -36- Annexure A-3. They were recruited by the Railway Recruitment Cell and had been allotted to Trivandrum Division, but had been directly appointed at MEMU, Quilon. These employees at Respondent No.6 and 7 had given options in response to Annexure A-1. They were placed junior to the 5th and 6th applicants in Annexure A-2 integrated seniority list based only on their date of entry. However, they now occupy 2 of the 8 posts transferred from Mechanical/Loco at Ernakulam to MEMU Shed, Quilon. It is submitted that the applicants in the O.A cannot make any claim to the said 8 posts based on their submission of option as per Annexure A-1 which was in the context of the 33 posts, which were sanctioned by the Salem Division.
24. It is further submitted by the respondents that all the 33 vacancies sanctioned by Salem Division have been filled only according to the seniority as per Annexure A-2. The cadre control of MEMU Shed, Quilon passed under the purview of the Trivandrum Division as per Annexure A-3 dated 18.11.2020. Thereafter the Annexure A-4 order was issued by the Trivandrum Division, which is the competent authority to utilize its recruited manpower at the appropriate places. It is submitted that orders placing 11 employees, recruited through a duly prescribed -37- recruitment process at a place where their manpower is to be properly used as per operational requirements is well within the powers of administration. The contention of the applicants that without appointing persons from Annexure A-2 list, no other persons could have been accommodated permanently at MEMU Shed, Quilon is thus without any basis and is contrary to facts.
25. It is submitted that Annexure A-5 dated 12.03.2021 is the list of incumbents posted to MEMU Shed, Quilon and the provisional seniority list. The sanctioned posts at MEMU Shed, Quilon starts with the JE post. The cadre strength is a total of 41 only. It is submitted in this regard that the Annexure A-5 order was issued on the basis of the internal financial concurrence received for creation of new posts as per Annexure R-3(g). Though a proposal for creation of 34 new posts in MEMU Shed, Quilon has since been sent for getting the approval of Department of Expenditure as per the O.M referred earlier, it has not been approved so far. As such, the total number of sanctioned posts at MEMU Shed Quilon has to remain at 41 (33 posts sanctioned by Salem Division + 8 posts transferred from Mechanical/Loco, Ernakulam to MEMU Shed Quilon) instead of the 75 as mentioned in Annexure A-5. -38- In these circumstances it is submitted that no posts are lying vacant at MEMU Shed Quilon to accommodate the applicants. The only option now available for the applicants in this O.A to get posted at MEMU Shed, Quilon is by opting for inter divisional transfer, as stipulated in Annexure A-3. However, the respondents submit that none of the applicants herein have so far made any request for inter divisional transfer. Clarifying the confusion regarding date of cadre closure of MEMU Quilon, it is submitted that it is with respect to its control by the Salem Division that the closure was made effective from 18.11.2020. Annexure A-3 was the order by which the cadre was closed by the Salem Division. It is contended that any rights accrued to the applicants in terms of the Annexure A-1 Notification/Order concluded with their placement or otherwise in the list at Annexure A-3 which was declared by the Salem Division. If any of the juniors of the applicants in the Annexure A-2 final seniority list had found place in Annexure A-3 only then would the claims and insinuations made by the applicants be sustainable. It is submitted that the applicants do not have any rights more than what was promised and contained from Annexure A-1 to Annexure A-3 orders. There has been no violation of any statutory rules by the administration with respect to the inclusion of -39- 11 persons in Annexure A-4, which is just the list published by the Trivandrum Division after the MEMU Shed, Quilon came under their control.
26. In relation to the claim of the applicants by which they seek to establish that there are still sufficient number of vacancies as per the norms in the MEMU Shed, Quilon, it is clarified by the respondents that even though it is stated that the norms prescribe 7.0 staff per unit (1MC + 3TCs) for MEMUs maintenance activity, that was only a yard stick for the required number of posts. The posts made available will actually be different. It is submitted that due to the advancement of technology, three phase MEMU rakes have been introduced and for that average Indian Railway bench marking for EMU Car Shed for the manpower set is 2.62 only. Thus, according to manpower which is now set at 2.62, the manpower required is only 45 for the maintenance of 17 units. As already noted though proposal for creation of 34 posts has been sent to PCPO/Madras for getting approval of the Department of Expenditure, at present there are only 41 sanctioned posts in MEMU Shed, Quilon. It is to be noted that the 119 posts mentioned in the O.A by the applicants were never created and, therefore, no claim can be made against fictitious -40- posts. Annexure A-6 it is submitted is only a letter to all concerned indicating the general guidelines to be followed. Since there are no vacancies as on date in the MEMU Shed, Quilon, no more employees can be accommodated from the Annexure A-2 list.
27. It is also submitted that the Trivandrum Division has no record of any inter division transfer applications by the applicants in the O.A forwarded by the competent authority in ELS, Erode. Hence, the applicants cannot be considered for posting as of now in the Trivandrum Division on that ground as well. Thus, the respondents reiterate that, as per the list published in the Annexure A-3 Office Order dated 18.11.2020 by the Salem Division, only the employees named therein had been delinked from their respective parent units and transferred and posted to the MEMU Shed, Quilon. There has been no violation of seniority as alleged by the applicants, since all the employees allotted to the MEMU Shed, Quilon as per Annexure A-3 order by the Salem Division are higher in the final seniority list. The applicants in this O.A are still borne in the cadre of ELS/Erode and, hence, cannot claim any seniority in the Trivandrum Division for transfer and posting, without applying through the proper channel as per extent rules. Thus it is submitted that all the -41- procedures in this regard were duly followed and there was no deviation. Further, it is also submitted that it is pertinent that the applicants at Sl.Nos.1-4 are Senior Technicians/Technician Grade-I. The 8 employees who were allotted to MEMU Shed, Quilon to fill up the newly transferred 8 posts from Mechanical/Loco, Ernakulam however belong to Helper category. Hence, even on grounds of seniority in the post, applicants 1 to 4 cannot be compared to them. The representation which was submitted by the applicants was thus rightfully rejected by the authority vide Annexure A-9 and there are no legally sustainable grounds to set aside the same.
28. After the above reply statement was filed by the official respondents, another reply statement was filed by Respondents Nos.8 to
10. In this the Respondents Nos.8 to 10 submitted that the applicants in the O.A are not senior enough to consider for appointment/absorption in MEMU Shed, Quilon. The cadre at MEMU Shed, Quilon was closed with effect from 18.11.2020 by Salem Division and it was brought under the administrative control of the Trivandrum Division, thereafter. Having made no challenge against the closure of cadre with effect from 18.11.2020, the relief sought in the O.A cannot be regarded as -42- maintainable. In any case, being a policy decision, the decision of cadre closure is not amenable for challenge without valid reason. The posts sanctioned and vacancies which have occurred after the cadre closure, have to be filled up only by promotion and by inter divisional transfer on bottom seniority whenever there is an element of direct recruitment as provided under the rules. The applicants, thus, have no vested right for being considered for appointment/posting at MEMU Shed Quilon.
29. In reference to the reply statement, a short rejoinder was filed on behalf of the applicants. In the rejoinder the applicants submitted that they were only claiming appointment on the basis of the proceedings initiated by the Railways through the Annexure A-1 in the MEMU Shed, Quilon. They submitted that they are entitled to be considered in the vacancies available before the cadre closure, which even according to the respondents themselves, is 03.11.2021. The applicants had produced the documents (Annexure A-11 and Annexure A-12) to show that the respondents themselves admitted that the cadre was closed only on 03.11.2021. It is submitted that any contention contrary to this documentary proof cannot be accepted. It is further submitted that the applicants are seeking appointments only in the sanctioned posts and -43- consequent vacancies as reflected in Annexure A-5. The respondents themselves have produced Annexure R-3(f) to show that additional 8 vacancies were sanctioned before the closure of cadre and that a total of 41 posts are sanctioned. It is submitted that the sanctioning of additional vacancies over and apart from the above has no bearing on the contentions raised in the O.A., unlike what is contended by the Railways in the reply statement. The accommodation of 8 persons recruited to the Trivandrum Division in MEMU Shed, Quilon is illegal and arbitrary. It is submitted that these persons were recruited to the vacancies available in the Trivandrum Division and, therefore, if they wanted to move to the MEMU Shed, Quilon, which is an independent unit, they should have come through the process already initiated by the Railways by Annexure A-1. It is contended that without coming through the said process the said 8 persons cannot be accommodated at MEMU Shed, Quilon. Further, all the said 8 persons are Assistants who cannot be accommodated in the higher grades of Technicians which were the posts transferred from Mechanical/Loco Ernakulam. Assistants can be accommodated only in the vacancies of the Assistants and not in the posts of Technicians. This is illegal and cannot be allowed. Thus, it is submitted that the applicants are only seeking appointment in accordance -44- with the procedure initiated by Annexure A-1. According to the respondents the cadre at MEMU Shed, QLN was closed only on 03.11.2021. Hence, all the vacancies that occurred before the said date were available for appointment as per the procedure initiated by Annexure A-1 and as per the seniority list published thereafter. The respondents are not at all justified in not appointing the applicants at MEMU Shed, Quilon.
30. The applicants then filed M.A.No.180/654/2023 in which they prayed for impleadment of additional respondent No.11 to 16 in the party array. These respondents were the remaining 6 of the 8 Assistants who had been appointed at MEMU Shed, Quilon. The M.A was allowed by the Tribunal. Subsequent to this, the official respondents 1 to 5 filed yet another additional reply statement dated 08.08.2023 primarily to deal with the contentions submitted in the rejoinder dated 23.10.2022. They contended that the submission of the applicants that the cadre of MEMU Shed, QLN was closed only on 03.11.2021 was wrong. It is submitted that the proceedings were initiated by Salem Division for cadre closure at MEMU Shed, Quilon and MEMU Shed, Palghat as per Annexure A-1. This had culminated with the Annexure A-3 order issued -45- by the same Division. In other words, the cadre was closed by Salem Division on 18.11.2020 with immediate effect as per Annexure A-3. Once the 33 sanctioned posts declared vacant as per AnnexureA-1 for MEMU Shed, Quilon were filled up and the select list was published as per Annexure A-3, the only option available for employees, who did not find place in Annexure A-3 but were desirous to come to MEMU Shed, Quilon, was to submit applications for inter division transfer, as per the terms mentioned in Annexure A-1 and Annexure A-3. It is again reiterated that none of the applicants have made any inter division transfer request till date.
31. The respondents reiterate that the Annexure A-3 order issued by the Salem Division had specifically stated that the cadre was closed on 18.11.2020 with immediate effect. The contention of the applicants that the cadre is to be taken as closed on 03.11.2021 is wrong. It is specifically averred in the reply statement filed by the respondents that the cadre was closed by the Salem Division with effect from 18.11.2020, the date of issue of Annexure A-3 order. It is submitted that no document has been produced by the applicants in the O.A to show that the respondents had specifically admitted that the cadre was closed on -46- 03.11.2021. Hence any statement to the contrary is incorrect. It is submitted that this contention of the applicants that the cadre was closed on 03.11.2021 seems to be largely based on a RTI reply dated 09.11.2021, obtained by one Shri.Sreejith.K.V., which was produced in O.P.(CAT) No.92/2021 filed by the applicants before the Hon'ble High Court. The order made available along with the RTI Reply was the aforementioned Annexure A-11 Memorandum. It is submitted that nowhere in the Annexure A-11 Memorandum it is mentioned that the cadre is closed with effect from 03.11.2021. It is submitted that a careful reading of Annexure A-11 Memorandum would make it clear that what has been mentioned in the said Memorandum is that the cadre of MEMU Shed, Quilon was closed vide reference 2 therein. This reference is nothing but the Annexure A-3 order dated 18.11.2020. Further, the closure was as per the terms and conditions mentioned in letter/office order dated 02.12.2020 ie., Annexure A-4 issued by Trivandrum Division. It was stated that the cadre would henceforth be under the administrative control of Divisional Railway Manager, Trivandrum Division. The date 03.11.2021 is thus nothing but the date of the Memorandum issued to declare the formal opening of the new cadre of MEMU Shed, Quilon under the administrative control of Divisional -47- Railway Manager, Trivandrum Division as per the terms mentioned in Annexure A-3 ie., on completion of joining of all the 33 employees in their respective posts. Further the respondents submit that in case there is a statement anywhere that the cadre closing is 03.11.2021 in their reply statement, which is the date of issue of Annexure A-11 Memorandum, it is only an inadvertent error.
32. Further, in relation to the applicants' contention that they are seeking appointment only in the sanctioned posts and consequent vacancies as reflected in Annexure A-5, it is submitted by the respondents that the applicants can seek appointment only to the 33 sanctioned posts as declared in Annexure A-1. However, they did not find place in the final list published as per Annexure A-3. As far as the contention in relation to consequent vacancies as reflected in Annexure A-5 is concerned, it is submitted that in Annexure A-5 the actual posts are shown as 41, which included the 8 posts permanently transferred to accommodate the 8 persons listed in Annexure A-4. The Annexure A-5 issued on 12.03.2021 is regarding the seniority list of MEMU Shed, Quilon for formation of new cadre. The 34 vacancies assessed in Annexure A-5 were submitted to the competent authority for creation of -48- posts. It is still pending sanction/approval of the Department of Expenditure. The contention of the applicants that 8 vacancies had been sanctioned before the closure of cadre is thus incorrect. It is only to be understood that these 8 posts had been permanently transferred as per Annexure R-3(f) dated 03.03.2021, after the cadre was closed by Salem Division on 18.11.2020. No additional posts have been sanctioned to MEMU Shed, QLN as the proposal for creation of the additional 34 posts, shown as vacancies in Annexure A-5, has not yet so far got the approval of the Department of Expenditure. This was explained in the reply statement earlier.
33. In any case, it is submitted by the respondents that the accommodation of 8 employees in the newly formed MEMU Shed, Quilon cadre, who were earlier recruited to Electrical/Operations Department in Trivandrum Division, is totally legal. It has been done invoking the powers vested in the competent authority. The applicants cannot dictate the terms under which employees recruited by Trivandrum Division have to be utilized by the administration. The Electrical/Operations department of Trivandrum Division had placed the said 8 employees at the disposal of MEMU Shed, Quilon to -49- temporarily work as Assistants till the cadre was closed by Salem Division on 18.11.2020. As far as Trivandrum Division is concerned, MEMU Shed, Quilon is a new cadre. All the 33 employees selected as per Annexure A-3 had joined the new MEMU Shed, Quilon cadre on different dates between 18.11.2020 and 02.11.2021. On the completion of joining of all the selected candidates, the cadre at MEMU Shed, Quilon was delinked from Electric Loco Shed, Erode of Salem Division. The extended period after the closure of the cadre on 18.11.2020 was only for enabling the selected/transferred employees to get relieved from their parent cadre and joining the new cadre at Trivandrum Division. The long period between 18.11.2020 and 02.11.2021 for joining of the selected/transferred employees was mainly due to the Covid-19 pandemic, which affected the train running operations as well as administrative functions. Thus, the process/procedures ie., relieving from parent cadre and joining MEMU Shed, Quilon under Trivandrum Division, between the period from 18.11.2020 and 02.11.2021 has its relevance only to the 33 employees, who had found place in the final list of employees published as per Annexure A-3. It has no relevance for anyone else.
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34. In respect to the contention that the 8 posts transferred to MEMU Shed, Quilon are higher grade posts whereas the 8 persons adjusted there are Assistants, who cannot be accommodated against the said posts, it is submitted that the said contention has been raised only due to the ignorance of the applicants with respect to the rules/powers governing permanent transfer of posts. As per the terms contained in the Schedule of Power 2018 (SOP 2018), a Divisional Railway Manager has full power to transfer posts permanently within his Division from one cadre to another cadre with the concurrence of the Finance department. The 8 employees who were recruited by Trivandrum Division earlier and who were not absorbed in any cadre or seniority unit in Trivandrum Division were absorbed in the posts permanently transferred to MEMU Shed, Quilon with the approval of the competent authority. The permanent transfer of the said 8 posts was initiated on 02.12.2020 (Annexure A-4). The necessary order was issued on 03.03.2021 ie., before the 33 employees joined in the newly formed MEMU Shed, Quilon cadre. Giving further details in this connection in relation to the transfer of the posts at the technical level to accommodate the 8 persons who are Assistants, it is submitted that the said higher grade posts had been downgraded and are being operated at the lower level. However, by -51- virtue of future promotions of the incumbents they would become available to be operated as the original higher grade posts in due course. There is no illegality or arbitrariness, as alleged by the applicants, since the action taken by the respondents for the permanent transfer of 8 posts is only after duly complying with the rules and as per the powers conferred on the competent authority.
35. However, we note that all the above contentions made in the additional reply statement have not been accepted by the applicants. They have contended in an additional rejoinder filed by them that the respondents points are only repetitive of the averments made in the reply statement filed by them. The respondents have not produced any documents to show that a prior decision was taken to accommodate the 8 Loco Assistants in exercise of powers in terms of the Schedule of Powers in the Indian Railways. They have no authority to accommodate the said 8 assistants/additional respondents as contended, since the same is in violation of the procedure prescribed and adopted by them in Annexure A-1. In Annexure A-1 it had been stipulated that the vacancies occurring thereafter would be filled by inter divisional transfer on bottom seniority basis. The same procedure has to be followed in the case of transferring -52- out persons from the MEMU Shed, Quilon also. Further, the reply under the Right To Information Act has been furnished by the applicants by which they seek to show that the MEMU Shed, Quilon was actually closed on 03.11.2021. This was produced as Annexure A-13 in the additional rejoinder and is a response to a RTI request made by one Shri.Subhash.R., signed by the Divisional Personnel Officer & PIO, Trivandrum Division. It cannot be a mistake since the same officer has issued the same reply as averred earlier in the additional reply statement. Thus, all contentions that the cadre was closed earlier on 18.11.2020 are an after-thought.
36. This Tribunal is of the view after going through the above detailed analysis and various contentions made by both sides that ultimately the issue boils down to a large extent to whether the applicants have a clear right for being considered against whatever vacant posts were there or made available in the MEMU Shed, Quilon. This has to be seen mainly in relation to the post of the 8 employees/additional respondents appointed there, who are juniors to the 5 th and 6th applicants in the O.A. After going through all the documents and contentions, first of all, we do not think that any such case has been built up in this regard by the -53- applicants. From whatever information that has been provided we would consider that is fairly established that the cadre at MEMU Shed, Quilon was closed vide Annexure A-3 on 18.11.2020 by order No.SA/211/ELS/2020 issued by the Salem Division of the Southern Railway. In the said order it was specifically indicated that the cadre of MEMU Shed, Palghat and Quilon are closed on 18.11.2020 with immediate effect. Further, it had also been indicated that the cadre of MEMU Shed, Quilon would be henceforth under the control of DRM/P/TVC (Divisional Railway Manager, Trivandrum) and DEE/OP/TVC (Divisional Electrical Engineer, Trivandrum) would be the cadre controlling officer. It was also indicated therein that once all employees had joined the posts, the cadre at MEMU Shed, Palghat and MEMU Shed, Quilon would be operated separately and delinked from ELS/Erode of Salem Division. The respondents have clarified that the subsequent Annexure A-11 letter/order produced by the applicants cannot be taken as some indication that the cadre was closed only on 03.11.2021. We note that the order at Annexure A-11 dated 03.11.2021 has a reference to the Annexure A-3 order dated 18.11.2020. It states that the cadre at MEMU Shed, Quilon is closed under the terms and conditions stipulated at Annexure A-3. It appears to indicate that as on -54- 03.11.2021 the MEMU Shed, Quilon would be henceforth under the administrative control of DRM, TVC from the grade of JE/MEMU to Assistant (Helper)/MEMU with immediate effect as the staff has joined the organization. To draw from this order an extended understanding that the cadre was only closed on 03.11.2021 and, hence, whatever action was taken as per Annexure A-4 for retaining/utilizing the services of 11 employees at MEMU Shed, Quilon, thus, indicates that the cadre was not closed but was kept open to our understanding is to stretch things too far. The respondents have explained in their reply statement as to how the 8 employees (out of 11) had been initially recruited and appointed in the MEMU Shed, Quilon and not in other cadre in the Trivandrum Division. Hence these employees had a right to be considered to be posted there and were also kept there as per administrative exigencies. They had not followed a part of the 33 posts indicated in Annexure A-1, against which posts only can the applicants be considered. The respondents have explained how such transfer of posts from one organisation/cadre to another is allowed under the rules. This cannot be considered as creation of new posts before a cadre was closed, as is being alleged by the applicants.
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37. We also note that the respondents have explained in great detail that the contention that there are actually 75 sanctioned posts (as per the Annexure A-5) in MEMU Shed, Quilon, of which 34 are vacant, cannot be endorsed. These posts have not been approved/sanctioned by the Department of Expenditure and do not exist. Thus there are actually only 41 posts are available in the MEMU Shed, Quilon, of which 38 appear to be filled. Hence, no other posts are available for consideration of the applicants in the O.A. All these issues have been adequately and effectively addressed in the reply statements filed. Even if there was some confusion caused by the words in the replies to the RTI Applications in relation to the date of cadre closure, it cannot to our mind amount or result in the applicants' case being considered in MEMU Shed, Quilon. The simple fact is that there were no such vacant posts at their level available there. The 8 posts which were transferred from elsewhere were done only to accommodate the ALSs who are already working there. These posts have to be looked upon on a different footing as they were only transferred and made available in MEMU Shed, QLN only in order to accommodate the first time appointees working there, who had not worked in any other cadre.
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38. The applicants on the other hand are clearly a part of the cadre of ELS, Erode and cannot be considered, after the closure of the cadre on 18.11.2020 for posting at the MEMU Shed, QLN except on an inter divisional transfer basis. As employees belonging to another cadre they have no vested right for consideration for absorption in a separate cadre. None of their service conditions or facilities have been affected by the non consideration of their applications. It is also significant that none of them applied for such inter divisional transfer. It appears that they were hopeful of being adjusted at MEMU Shed, QLN because they were under the expectation that there will be a large number of vacancies opening up there to be considered. As is quite well known, the creation of posts in Government Organizations is a long drawn out process even in the best of times. It is now more complicated since it is something that is not possible by the Railways to do themselves and needs the approval of the Ministry of Finance. There are only a total of 41 actual posts in MEMU Shed, Quilon which have largely already been filled up in order of seniority and also to adjust the 8 employees who were initially appointed there. We find that the applicants have no right to be considered in place of anybody else who has been appointed there. It is clear that the 33 posts were filled up by their seniors and, as already explained, 8 -57- employees were adjusted as they were initially recruited and appointed there and belonged to no other cadre within the Trivandrum Division. Thus we cannot see any violation of the principles of natural justice or any malafide in the matter.
39. In parting we would also like to make a general observation that in our experiences these sorts of O.As based on purported discrimination filed by Railway employees are fairly common. Even a cursory reading of some of the documents produced in the O.A. by the applicants makes it quite clear that many of these issues, that have been brought out by the applicants in detail, must have involved a great investment in time and effort by them. It is not for this Tribunal to speculate whether the employees are truly so aggrieved or whether a chance is being taken by them after not being considered for a posting, by bringing in various considerations with a hope that orders would follow in favour. Of course, while making this general observation we clarify that we are not against any Railway or other government employee approaching the Tribunal for redressal of very many genuine grievances that they might have.
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40. It is with these views and observations and due to the reasonings brought out earlier that we are not allowing the O.A. The O.A is dismissed. No order as to costs.
(Dated this the 8th day of November, 2023)
K.V.EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp
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List of Annexures in O.A.No.180/00195/2021
1. Annexure A-1 - A copy of the Notification
No.SA/P.135/VII/ELS/MEMU Shed dated 17.03.2020.
2. Annexure A-2 - A copy of the Letter No.SA/P.135/VII/ELS/MEMU Shed dated 05.11.2020.
3. Annexure A-3 - A copy of the Office Order No.SA/211/ELS/2020 dated 18.11.2020.
4. Annexure A-4 - A copy of the Order No.V/P.535/Elec/MEMU dated 02.12.2020.
5. Annexure A-5 - A copy of the Letter No.SR/P-
TVC/Memu/ALN/Seniority dated 12.03.2021 along with provisional seniority list.
6. Annexure A-6 - A copy of the Man Power Planning Rules No.2001/Elect(G)/138/3 dated 16.03.2006.
7. Annexure A-7 - A copy of the Letter No.V/E.OP/28/MEMU/Manpower Planning dated 15.04.2016.
8. Annexure A-8 - A copy of the representation dated 22.03.2021 submitted by the applicants.
9. Annexure A-9 - A copy of the Letter No.SA/P.135/VII/ELS/MEMU Shed dated 30.03.2021.
10. Annexure A-10 - A copy of the Interim Order dated 27.09.2021 of the Hon'ble High Court of Kerala in O.P.(CAT) No.67 of 2021.
11. Annexure A-11 - A copy of the Order bearing No.V/P.535/VIII/Ele/OP/Memu Shed/Qln., dated 03.11.2021.
12. Annexure A-12 - A copy of the Seniority List No.APO/II/VII(3)ELE/OP dated 05.11.2021.
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13. Annexure A-13 - A copy of the Reply No.V/P.Co ord/SRTVD/R/T/21/00217 dated 15.11.2021 under the Right to Information given to the 1st applicant.
14. Annexure R-3(a) - A copy of the Order in O.A.No.577/2013 dated 07.11.2016 issued by this Hon'ble Tribunal.
15. Annexure R-3(b) - A copy of the Order in O.A.No.697/2013 dated 20.08.2013 issued by this Hon'ble Tribunal.
16. Annexure R-3(c) - A copy of the Order in O.A.No.1116/2017 dated 15.01.2018 issued by this Hon'ble Tribunal.
17. Annexure R-3(d) - A copy of the Order in O.A.No.259/2021 dated 09.09.2021 issued by this Hon'ble Tribunal.
18. Annexure R-3(e) - A copy of the Letter No.SA/P.135/VII/ELS/MEMU Shed dated 28.08.2020.
19. Annexure R-3(f) - A copy of the Memorandum No.V/P.135/Elect.OP dated 03.03.2021 by which competent authority accorded sanction for the permanent transfer of 8 posts.
20. Annexure R-3(g) - A copy of the Memorandum No.V/P.135/Elect.OP dated 03.03.2021 issued by the 4 th respondent.
21. Annexure R-3(h) - A copy of the Ministry of Finance, Department of Expenditure O.M.No.F.No.7(2)/E.Coord/2020 dated 04.09.2020.
22. Annexure R-3(i) - A copy of the Railway Board Letter No.E(MPP)/2021/1/13 dated 25.03.2021.
23. Annexure R-3(j) - A copy of the Proposal sent for creation of 34 posts in MEMU/QLN as per Letter No.V/P.135/Misc., dated 12.05.2021.
24. Annexure R-3(k) - A copy of the Seniority List of MEMU Shed/QLN published as per No.APO/Ele/OP/MEMU shed/QLN dated 22.02.2022.
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25. Annexure R-3(l) - A copy of the RTI application received from Sri.Sreejith.K.V., on 07.10.2021 along with its reply dated 09.11.2021 and enclosure.
26. Annexure R-3(m) - A copy of the relevant page of SOP 2018.
27. Annexure R-3(n) - A copy of the relevant pages of Master Circular 37.
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