Central Administrative Tribunal - Ernakulam
P.G. Nishaj vs Divisional Personnel Officer on 28 June, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. No. 180/00323/2014
Tuesday, this the 28th day of June, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
1. P.G. Nishaj, S/o. Gopalan P.S,
Station Master, Southern Railway,
Guruvayur Railway Station, Guruvayur.
2. George Varghese, S/o. K.C. George,
Station Master, Cheppad Railway Station,
Southern Railway, Cheppad. - Applicants
(By Advocate Mr.P.K. Madhusoodanan)
Versus
1. Divisional Personnel Officer,
Southern Railway, Divisional Office,
Personnel Branch, Thiruvananthapuram - 14.
2. Union of India through the General Manager,
Southern Railway, Park Town, Chennai - 3.
3. The Railway Board represented by its Chairman,
Ministry of Railways, Rail Bhavan, New Delhi - 1.
4. M.S. Madhukumar, Station Master,
Paravur Railway Station, Southern Railway,
Kollam District - 696 001.
5. N.S. Shajimon, Station Master,
Ernakulam South, Southern Railway,
Ernakulam District - 682 016.
6. P.M. Nazir, Station Master,
Kuruppamthara Railway Station,
Southern Railway, Kottayam District - 686 001.
7. K.J. Hariprasad, Station Master,
Kottayam Railway Station,
Southern Railway, Kottayam District - 686 001. -
.... Respondents
(By Advocates : Mrs. P.K. Radhika (represented) for R-1 to 3
M/s. Varkey & Martin for R-6&7, R.4&5 no repn.)
The application having been heard on 08.06.2016, the Tribunal
on 28.6.2016 delivered the following:
ORDER
Per: Justice N.K. Balakrishnan, Judicial Member The two applicants in this case seek to set aside Annexures A13 to A15 and also Annexure A10 so far as it affects the seniority and claim of promotion of the applicants. They also seek to set aside Annexure A16 and for a direction to Respondents 1 to 3 to restore their seniority as shown in Annexure A7 and A8 seniority lists and to place them in between serial numbers 49 and 50.
2. The case of the applicants can be briefly stated thus:
The first applicant was appointed as Traffic Apprentice on 29.7.2002 in Madurai Division of Southern Railway on direct recruitment. He was absorbed as Station Master Grade II (SM-II for short) at Pollachi Railway Station on 8.8.2004 in scale Rs. 5500-
9000. The 2nd applicant was appointed as Assistant Station Master (ASM for short) in Mumbai Division of Central Railway on 10.8.1993 on direct recruitment through Railway Recruitment Board (RRB). He was promoted as SM Gr.III on 10.1.1996 and SM Gr.II on 20.9.2008 in scale Rs.5500-9000. While they were working as SM-II they applied for mutual transfer to Trivandrum Division of Southern Railway in places of Sri K.Senthilkumar and Shri Sanjaykumar who were directly appointed as SM.II by RRB and were working as SM.II in Trivandrum Division of Southern Railway. Senthilkumar and Sanjaykumar applied for direct selection to the post of Traffic Apprentice in the scale Rs. 5500-9000 in Trivandrum Division pursuant to employment notice dated 6.11.2004. They underwent training and were regularly absorbed as SM II in scale Rs. 9300-34800 plus GP of Rs. 4200/- as per Annexure A2 dated 31.12.2008. Both applicants were granted inter divisional mutual transfer as SM II in Pay Band II in scale Rs. 9300-34800 plus GP Rs. 4200/- to Trivandrum Central under the Ist respondent. The applicants reported for duty as SM II on 17.9.2010 and 28.2.2011 respectively at the stations where they are now working. Annexures A5 and A6 are the salary slips of the applicants, which would reveal that they are holding the post of SM.II. In Annexure A7, the provisional seniority list, the first applicant appears at Sl.No.66 and 2nd applicant's substitute Sri Sanjaykumar is at Sl.No. 67. Their dates of appointment as SM II are shown as 29.7.2002 and 13.11.2006 respectively and they are placed just below MJ Jayaram who is at Sl.No.65. On implementation of the 6 th CPC the pay scales of SMI,SM II and SM III were ordered to be merged and placed in the designation and grade as SM in scale Rs. 9300-34800 plus GP Rs. 4200/-. The implementation of the 6 th Pay Commission can have no impact on the seniority of SM II and SM.III. SM II being the higher post in the hierarchy of posts and having greater responsibility, SM II has been placed above SM III in Annexure A7. Persons holding the inferior post should be placed below the last person holding the higher time scale post when integration is brought in. But contrary to the legal position, Annexure A8 seniority list was published wherein the applicants are at Sl.No.155 and 156 respectively. It is illegal. As the applicants were transferred to Trivandrum Division as SM II and were working as SM.II a right in the post of SM.II has been accrued to them and as such they have a vested right to continue as S.M-II. Against the illegal drawing up of seniority list at Annexure A8 the applicants submitted representations Annexures A11 and A12. When hasty attempts were made to give promotion, they moved this Tribunal filing OA 41/2014. This Tribunal directed the Ist respondent to consider on merit and as per rules the representations filed by the applicants. Annexures A13 and A14 replies were furnished to the applicants quoting the very same seniority position as shown in Annexure A8, which is highly illegal and arbitrary. The Memorandum-A15 issued by the Ist respondent treating Annexure A8 as final is also illegal. Thus the applicants have approached this Tribunal seeking the reliefs as mentioned earlier.
3. The official respondents 1 to 3 filed reply statement contending as follows.
The applicants are working in Trivandrum Division on inter-divisional mutual transfer with two other SM Gr.II. Their seniority in Trivandrum Division after joining is counted, as provided in Paragraph 310 of the IREM.Vol.I Though the dates of promotion of the applicants as SM.II are 29.7.2004 and 26.9.2008 respectively, their counter parts in Trivandrum Division with whom they got transfer mutually were promoted as SM II only w.e.f. 13.11.2008 and hence the applicants' seniority in Trivandrum Division can be counted only from 13.11.2008. The prayer for seniority from a date earlier to 2008 is not maintainable. The seniority of the applicants' counter parts in Trivandrum Division was counted w.e.f 13.11.2008. They did not make any representation for revision of their seniority from a date earlier to 13.11.2008. They did not raise any grievance against Annexure A10. As such the applicants' cannot put forth a claim for their seniority earlier to 13.11.2008. The first applicant was appointed in Madurai Division in scale Rs. 5500-9000. He was transfered from Madurai Division to Trivandrum Division on inter divisional mutual transfer with Mr. Senthilkumar SM II of Trivandrum Division in scale Rs. 5500-9000 and joined Trivandrum Division on 17.9.2010. The 2nd applicant was appointed as ASM in Mumbai Division on 10.8.1993. He was promtoed SM.III in Gr Rs, 5000-8000 on 10.1.1996 and SM II in scale Rs. 5500-9000 on 26.9.2008. He was transferred to Trivandrum Division under inter-divisional mutual transfer with Mr.Sanjaykumar, SM II in scale Rs. 5500-9000. The 2 nd applicant joined Trivandrum on 28.2.2011. Shri Senthilkumar and Shri Sanjaykumar with whom the applicants have come on mutual transfer have been selected through RRB for appointment as Traffic Apprentice/SM.II in scale Rs. 5500-9000 and they were sent for training on 13.11.2006. On completion of training they were absorbed as SM.II in scale Rs. 5500-9000 on 13.11.2008. Anexure A1 document is only an offer of appointment for the post of temporary Traffic Apprentice issued to Mr.Senthilkumar ie., the person with whom the Ist applicant had got an inter-divisional transfer in the post of SM II subsequently. Shri Senthilkumar and Sanjaykumar is figuring at Sl.No.1&2 respectively in Annexure A2. Their date of absorption is shown as 13.11.2008. The applicants joined Trivandrum Division on 17.9.2010 and 28.2.2011 respectively on inter divisional mutual transfer. As per extant rules on mutual transfer, the employees who seek mutual transfer will either retain their seniority or take the seniority of the other in the new seniority unit to which they are transferred, whichever is lower. Based on that, applicants were assigned seniority as SM Gr.II in Trivandrum Division on 13.11.2008. Annexure A7 seniority list was of a date prior to the merger of grades. The dates of appointment are shown in Annexure A10. It denotes initial appointment in Railways. The seniority is on the basis of date of entry into the present grade. The applicants' seniority in Trivandrum Division on inter divisional mutual transfer is to count from 13.11.2008. In Annexure A7 the position of Shri Sanjaykumar has been shown as from 13.11.2008.
Station Master Grade II and Grade III got merged on implementation of the recommendation of the VI CPC with effect from 01.01.2006 in PB-2 9300 plus Grade Pay of Rs. 4200/-. The applicants' seniority is to be fixed as per the rules applicable for mutual transfer. Hence, the claim made by the applicants is unsustainable. Shri Sanjaykumar and Shri Senthilkumar, Station Master Grade II in Trivandrum Central Division joined the post of SM Grade II only on 13.11.2008 after completion of training; that is, after the cut off date 04.09.2008. Their seniority position was revised and placed below those who were in Grade Pay Rs. 4200/- as on 04.09.2008. Based on this the seniority of the two applicants who came on mutual transfer with the persons mentioned earlier was also revised in the provisional seniority list of Station Masters published on 10.12.2013. The applicants joined the Trivandrum Division only on 17.09.2010 and 28.02.2011 respectively. Hence the respondents 1 to 3 prayed for dismissal of the O.A.
4. The party respondents 6 and 7 filed reply statement almost in tune with the contentions raised by respondents Nos. 1 to 3. Rule 230 of Indian Railway Establishment Code I has been referred to by these respondents as well. The seniority of the applicants in Trivandrum Division would be the same seniority possessed by K. Senthilkumar and Sanjaykumar. Applicant No. 1 who came to the place of Senthilkumar and the remaining incumbents in Annexure A- 2 office order were wrongly ranked as Serial Nos. 66 to 70 in Annexure A-11 seniority list. Subsequently final list was published in the matter.
5. Rejoinder was filed by the applicants disputing the pleas raised by the respondents. It is contended that in Annexures A-3 and A-4 issued to the first applicant and similar order issued in the case of the 2nd applicant, they were not informed that they will lose seniority in the cadre of Station Master Grade II and will be placed below the erstwhile SM III on merger of the pay scales of SM II and SM III with effect from 01.01.2006 or 04.09.2008. The benefit of seniority the applicants had enjoyed on their appointment or promotion and placement in SM II or SM III, which has not been set aside in accordance with law, cannot be denied to the applicants retrospectively on the basis of Annexure A-10 dated 26.09.2012.
6. We have heard the learned counsel for the parties and and have also gone through the pleadings and documents produced in this case.
7. The point for consideration is whether Annexure A-8 seniority list which has been confirmed by Annexure A-15 which denied the post of Station Master Gr.II and affecting the seniority of the applicants are liable to be set aside?
8, It is not disputed that the first applicant reported for duty in Trivandurm Devision on 17.9.2010. The second applicant reported for duty in Trivandrum Division on 18.2.2011. It is the admitted case that they were transferred on 'mutual transfer' request. It is also not disputed that the first applicant replaced Mr. Senthilkumar and the second applicant replaced Mr. Sanjaykumar of Trivandrum division. Rule 230 of Indian Railway Establishment Code (IREC for short) Vol.I is applicable to the facts of this case. It reads:
' 230: Transfer on Mutual Exchange:- In case of mutual exchange, the senior of the two employees will be given the palace of seniority vacated by the other person. The junior will be allowed to retain his former seniority and shall be fitted into the seniority below the persons having the same seniority.' (It is exactly identical to Para 310 of IREM.Vol.II.) The applicants would contend that the first applicant was promoted as SM Gr.II on 29.7.2004 and the second applicant was promoted as such on 29.6.2008. Therefore, according to the applicants, since they had already been promoted as SM Gr.II and continued to be so, their position as SM Gr.II cannot be disturbed at all on the premise that there was merger of posts of SM Gr.II and SM Gr.III. According to them even if the merger took place based on the recommendation of the 6th CPC, it dos not postulate that officers who were SM Gr.III can get seniority over SM Gr. II. According to the applicants, since they were working as SM.Gr.II from the dates referred to above their seniority cannot be affected at all.
9. The contention aforesaid is stoutly opposed by the respondents pointing out that so far as the applicants are concerned, they are bound by Rule 230 of IREC just quoted above and so the position occupied by S/Shri Sanjaykumar and Senthilkuar as mentioned above alone can be occupied by the transferees by virtue of this rule. Therefore, the question whether the applicants were promoted as SM Gr.II long prior to the party respondents herein or other respondents cannot have no relevance at all, for it is the seniority or the position of S/Shri Sanjaykumar and Senthilkumar as on the date of transfer which is more germane for consideration by virtue of the rule quoted above. The fact that the applicants' seniroty is to be fixed as per the rule applicable for mutual transfer, quoted above, is beyond any cavil of doubt.
10. The applicants' seniority in Trivandrum Division on inter-
divisional mutual transfer is to count from 13.11.2008, since that was the seniority position of the counter parts S/Shri Sanjaykumar and Senthilkumar in Trivandrum Division. The fact that Sanjaykumar and Senthilkumar were promoted as SM Gr.II only w.e.f. 13.11.2008 could not be effectively controverted by the applicants. If the counter parts Sanjaykumar and Senthilkumar could become SM Gr.II only w.ef..13.11.2008 how could the applicants claim seniority based on their seniority obtained earlier while they were in the parent division,is the pertinent question posed by the respondents. It is seen that the contentions vehemently advanced by the applicants were in fact ignoring the provision contained in Rule 230 quoted earlier. It is also important to note that Sanjaykumar and Senthilkumar did not question their seniority at all which they had occupied in Trivandrum Division as SM Gr.II, who were promoted as such only on 13.11.2008. There is no case for the applicants that Sanjaykumar and Senthilkumar had become SM Gr.II long prior to the merger effected consequent to the recommendation of the 6 th CPC. It is undoubtedly clear that the applicants can occupy or replace only Sanjaykumar and Senthilkumar referred to above. Therefore, even if the applicants had secured seniority earlier, that cannot be protected at all, in view of the rule relating to mutual transfer referred to above.
11. The very object of mutual transfer/replacement rule, according to the respondents is to avoid unnecessary litigation relating to seniority by other officers who just below ranked, such replaced officers. It is not disputed that the applicants can occupy only the slots occupied by S/Shri Senthilkumar and Sanjaykumar. The contention that the seniority earned or acquired by the applicants while they were serving in the parent division has to be protected and maintained is found to be devoid of any merit. They cannot make a comparison of their case with other persons on the basis of SM Gr.II or S.M Gr.III. 12. Much argument was advanced by the applicants based on Annexure A7 provisional seniority list published on 18.1.2011. The very fact that it was only provisional would make it clear that such a seniority list was published so as to enable all the employees to raise their objection, if any. After considering the objection against Annexure A7 (the provisional list), Annexure A8 provisional seniority list was published on 1.11. 2013. That was accepted as per final list as can be seen from Annexure A15 dated 10.3.2014.
13. As per Annexure A7 which was the provisional seniority list, the first applicant is seen at Serial No. 66 whereas the 2nd applicant's substitute Shri Sanjay Kumar is seen at Serial No. 67. It is stated that their date of appointment was then shown as 29.07.2002 and 13.11.2006. In Annexure A8, the 1st applicant is seen at Sl.No. 155 and 2nd applicant is shown at 156. It is contended by the party respondents also that the seniority of the applicants in Trivandrum Division would be the same seniority which was held or possessed by Mr. Senthilkumar and Mr. Sanjaykumar. It is discernible from Annexures A1 and A2 that Mr. Senthilkumar and Mr. Sanjaykumar were on training from 13.11.2006. After successful training, they reported for duty on 13.11.2008 only. It is seen that they were absorbed as SM in scale Rs.9300-34800 plus Rs.4200/- Grade Pay. So much so, it is seen that they became Station Masters in that scale only with effect from 13.11.2008. They were given that position while they were placed at Sl. No. 155 and 156 in Annexure A8. The last column would show that they became Station Masters with effect from 13.11.2008. Since Mr. Senthilkumar and Mr. Sanjaykumar could be absorbed in service only with effect from 13.11.2008 after successful completion of two years training as can be seen from Annexure A2, it is indiscernible how the applicants can steal a march over others and contend that they should be given seniority position as they had acquired or gained while they were in the parent division /former division.
14. It is submitted by the learned counsel for the party respondents and also by the learned counsel for the official respondents that apart from the party respondents impleaded in this case, there are so many other officers, who were absorbed in PB- 9300-34800 + 2400/- Grade Pay with effect from 01.01.2006 in terms of Railway Service (Revised Rules), 2008. It is stated that Mr. Senthilkumar and Mr. Sanjaykumar who are the counter-parts of the applicants joined and was on training with effect from 13.11.2006 on a stipend of Rs. 5000 plus DA and they continued to be for two years. At the risk of repetition, it has to be stated that only on 13.11.2008 those two persons entered the scale of Rs. 9300-34800 + Grade Pay Rs. 2400/-.
15. The whole argument advanced by the learned counsel for the applicants proceeds on the footing that the applicants had earned promotion as SM-II earlier and the promotion so earned cannot be disturbed at all. That contention cannot be sustained in view of the fact that the applicants sought voluntary mutual transfer and so they will be placed only at the slot or position which were held by Mr. Sanjaykumar and Mr. Senthilkumar as provided under Rule 230 of IREC. The question is not whether the applicants were holding the post of SM II or not but what was the post or what was the seniority position of Mr. Sanjaykumar and Mr. Senthilkumar with whom replacement had been ordered and done. That cannot be undone by the applicants on the premise that they had earned promotion earlier.
16. We find no merit in this Original Application and accordingly, the OA is dismissed. No order as to costs.
(Mrs. P. Gopinath) (N. K. Balakrishnan) Administrative Member Judicial Member kspps