Kerala High Court
Union Of India vs Leena P.K on 21 December, 2012
Author: Babu Mathew P.Joseph
Bench: Thottathil B.Radhakrishnan, Babu Mathew P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH
MONDAY, THE 25TH DAY OF NOVEMBER 2013/4TH AGRAHAYANA, 1935
OP (CAT).No. 2170 of 2013 (Z)
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OA 504/2012 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
DATED 21-12-2012
PETITIONER(S)/RESPONDENTS:
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1. UNION OF INDIA, REP. BY SECRETARY TO THE GOVERNMENT OF
INDIA, DEPARTMENT OF POSTS, MINISTRY OF COMMUNICATIONS,
NEW DELHI - 110 001.
2. THE CHIEF POST MASTER GENERAL, KERALA CIRCLE,
THIRUVANANTHAPURAM 695 033
3. ASSISTANT DIRECTOR GENERAL (STAFF), O/O. CHIEF
POSTMASTER GENERAL, KERALA CIRCLE,
THIRUVANANTHAPURAM 695 033.
4. POST MASTER GENERAL, NORTHERN REGION,
KOZHIKODE 673 011
5. THE SUPERINTENDENT OF POST OFFICES,VADAKARA DIVISION,
VADAKARA 673 101.
BY ADV. SRI.S.KRISHNAMOORTHY, CGC
RESPONDENT(S)/APPLICANT:
--------------------------------
LEENA P.K., W/O.SADANANDAN, GDSMD KAYAKKODY,
RESIDING AT CHATTIPARAMBATH HOUSE, KAKKATTIL.P.O.
PIN 673 507.
BY ADV. SRI.M.R.HARIRAJ
BY ADV. SRI.P.A.KUMARAN
BY ADV. SMT.VINEETHA B.
BY ADV. SRI.NIRMAL V NAIR
BY ADV. SRI.K.RAJAGOPAL
BY ADV. SMT.M.A.JINSA MOL
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 25-11-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CAT) 2170/13
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT.P1 TRUE COPY OF OA.504/12 FILED BY THE RESPONDENT
EXT.P2 TRUE COPY OF THE REPLY STATEMENT IN O.A.504/12 FILED BY
THE PETITIONER
EXT.P3 TRUE COPY OF THE ORDER DT.21/12/12 IN OA.504/12 OF THE
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH
EXHIBITS OF RESPONDENT:
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EXT.R1(A) TRUE COPY OF REPRESENTATION DT.5/8/13 REQUESTING TO
TRANSFER HER TO PATHIRIPATTA BO MADE BY THE PETITIONER
HEREIN/RESPONDENT IN OP(CAT)
EXT.R1(B) TRUE COPY OF ORDER NO.B3/411 DT.9.10.13 ISSUED BY 5TH
RESPONDENT HEREIN/5TH PETITIONER IN OP(CAT)
EXT.R1(C) TRUE COPY OF THE NOTIFICATION NO.B3/411 DT.15.10.13
INVITING APPLICATIONS FOR THE VACANT POST ISSUED BY 5TH RESPONDENT
HEREIN/5TH PETITIONER IN OP(CAT)
//True copy//
PS to Judge.
uj.
THOTTATHIL B.RADHAKRISHNAN &
BABU MATHEW P.JOSEPH, JJ.
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O.P.(CAT) No.2170 OF 2013
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Dated this the 25th November,2013
JUDGMENT
Thottathil B.Radhakrishnan, J We have heard the learned senior counsel appearing for Union of India and the learned counsel appearing for respondent quite in extenso.
2. The respondent, a graduate in Mathematics applied and was appointed as GDS MD, Kayakkodi Post Office. While working so, according to her, she developed a knee pain due to sciatica and underwent treatment. She also got married. Meanwhile, she came to know that vacancy of GDSBPM was available in Thaliyil Post Office. She submitted a request for transfer to that post. That was rejected. She thereafter made a request for transfer and appointment to the vacancy of GDSBPM, Cheekkonnummal West. She was asked to submit necessary documents to process her request. She produced them. Pleading that no OP(CAT) 2170/13 2 action is being taken on her request and understanding that the establishment had issued a notification calling for applications for appointment as GDSBPM, Cheekkonnummal West Post Office, she moved the Central Administrative Tribunal for relief.
3. At the outset, we may note that in Kayakkodi Post Office, she was working as GDS MD in the revised TRCA of 4220-75-6470. The invitation for applications for appointment as GDSBPM, Cheekkonnummal West was in the TRCA of 2745-50-4245.
4. The order that was impugned before the Tribunal also stood in the form of Annexure R1 dated 20/4/2012 whereby the Assistant Postmaster General(S & V) had informed Postmaster General, Northern Region, Calicut that the request of the respondent for transfer was considered by the competent authority but rejected in view of the fact that the residence of the GDS does not fall in the delivery jurisdiction of the proposed post office or in the post village. This was the only reason that was stated in Annexure R1. In OP(CAT) 2170/13 3 the reply statement filed before the Tribunal, the establishment further pleaded that the rejection of the request for transfer was on the ground that the transfer was sought to a post with lower TRCA. It was stated that a decision was taken to allow transfer to GDS only against the post having the same or higher TRCA. Reverting to Annexure A6, we may note that the said communication addressed from the Assistant Director General of Staff in the office of the Postmaster General to Additional Private Secretary to Minister of State for Home Affairs in the Government of India also shows that a decision has been taken to allow transfer of GDS only against the post having same or higher TRCA.
5. Ultimately, when the matter was heard by the learned Tribunal, among other things, it was noted that the question as to whether the transfer could be made without reference to the difference in TRCAs and the further question whether such transfer could also carry with protection as to higher TRCA which is being enjoyed, stood OP(CAT) 2170/13 4 governed by the decision of the Full Bench of Central Administrative Tribunal in different matters which ultimately fell in judicial review before this Court and which were decided upon by the Division Bench by judgment dated 12/1/2012 in W.P.(C) No.13112/2009 and connections. The Tribunal held that the respondent herein was entitled to transfer on the ground preferably to maternal home, and on facts, the said house being within 15 minutes walk to the Post Office and having regard to the other matters noticed in paragraph 9 of its order, the respondent was entitled to transfer sought for by her. In paragraph 10 of the Tribunal's order dated 21/12/2012, the Bench refers to Full Bench decision of the Tribunal and its confirmation by the Division Bench of this Court.
6. In this original petition under Article 226 of the Constitution, the establishment fundamentally focussed its attack to the contents of paragraph 10 of the Tribunal's order which would protect the TRCA of the respondent in which she is working before the proposed transfer. OP(CAT) 2170/13 5
7. For one thing, as rightly pointed out by the learned counsel for the respondent before us, no such plea on the basis of comparable nature of different TRCAs was projected before the Tribunal through pleadings on the basis of Annexure R1 before it. The decision rendered by the establishment rejecting respondent's request for transfer was put only on the ground preferably to her residence. Learned counsel for the respondent further points out that even in the original petition filed under Article 227, no case is built on any issue preferably to non- comparable nature of different TRCAs and as to whether a particular person could be transferred from a higher TRCA to lower TRCA and yet, establishment to protect her TRCA.
8. The issues raised in relation to the difference between TRCAs and as to comparable nature between TRCAs vis-a-vis eligibility to move from higher TRCA to lower TRCA post on transfer and as to protection of higher TRCA that is being enjoyed are pure questions of law and facts within the jurisdiction of Tribunal and they are mixed OP(CAT) 2170/13 6 questions of law and facts and they would not be challenged under Article 227 of Constitution, more particularly, without any facts and particulars which could form the foundation of such attack to the constitutional jurisdiction under Article 227, having regard to the law laid down by the Apex Court in L.Chandra Kumar v. Union of India [AIR 1997 SC 1125].
9. Having regard to the aforesaid, we may now proceed to note the couple of judgments referred to by the counsel for parties. In Sub Divisional Inspector of Post Offices v. C.A.T [2000 (3) KLT 541], this Court held that the grant of transfer is not merely at the discretion of the department and when an employee satisfies all the conditions required for transfer, the claim of transfer is not to be rejected. We may note that the facts of this case do not touch upon any aspects regarding TRCA. Coming to Senior Superintendent of Post Offices v. Raji Mol [2004 (1) KLT 183], this Court noted that so far as appointment by transfer is concerned, the rule is that a OP(CAT) 2170/13 7 person may transfer from one post to another post, provided, the post is in same rank and scale of pay. In certain service, even appointment by transfer to higher post is permissible. The Division Bench laid down that however, in a case where a person working on a lower post seeks appointment by transfer to a higher post than the one held by him, the Department can consider his claim and every eligible person has right to be considered. That judgment was also delivered without making any reference to any difference between the concept of TRCA either in the form of scale of pay or quantum of amount to be drawn in TRCA vis-a-vis, the provisions contained in FR 22(1)(a)(i) or (ii) of the Fundamental Rules. Therefore, the distinction between TRCA, central pay etc. were no matters of focal attention by the Division Bench.
10. We may note that the Full Bench of the Tribunal, on matters which were ultimately fell for consideration of the Division Bench of this Court in W.P.(C) Nos.13112/2009 and connections, rejected the prayer of the employees for a OP(CAT) 2170/13 8 declaration that they are entitled to have pay fixed as per Fundamental Rules noted above. However, Full Bench had declared that TRCA drawn shall be protected and the same fixed in the TRCA applicable to the transferred post and if there is no such stage, the TRCA shall be fixed at the stage below the TRCA drawn, the balance being treated as personal allowance, to be adjusted in future annual increase.
11. Considering the findings of the Full Bench of the learned Tribunal, this Court noted that crux of the issues dealt with by the Full Bench of the Tribunal can be resolved with reference to a clarification issued by Postal Department as D.G.Posts No.19-51/96-ED & Trg., dated 11/2/1997. The said clarification was quoted by this Court in the judgment in W.P.(C) No.13112/2009 and connections and it was ultimately held that though it was essentially within the volition of the establishment to grant or refuse the request for transfer, once an establishment exercising its authority, considers a request for a transfer and grants OP(CAT) 2170/13 9 it, it is not open to that establishment to further make out a case against the employee, on the premise that the transfer was on request, unless of course, the rule enabling transfer cripples off any of the entitlements of the employee being transferred. We may immediately recall the judgment of Sub Divisional Inspector of Post Offices (supra) in which it was held that once grounds for transfer are justified, orders of transfer ought to be issued. Remember, these are not transfer, transfer from one scale to another scale under the Rule of Service Jurisprudence. These are transfers which would fall within "appointment by transfer"
in two different postal vacancies and that is treated as method of requirement. Having regard to what has been questioned and laid down by this Court in Sub Divisional Inspector of Post Offices (supra) and Raji Mol (supra). That being so, reverting to Bench decision in W.P.(C) No.13112/2009 and connections, we see that if in the judicial review process establishment is required to be called upon to make an order of transfer in the nature it is OP(CAT) 2170/13 10 now made, it is also well within the authority to direct that such transfer will be treated as one made by the establishment in accordance with law and therefore, the employee would have entitled to all the benefits of appointment thereto, including the protection of the TRCA.
12. For the aforesaid reasons, we do not find any jurisdictional infirmity or irregularity in the impugned order of the Tribunal. This original petition therefore fails.
In the result, this original petition is dismissed. No costs.
(THOTTATHIL B.RADHAKRISHNAN) JUDGE (BABU MATHEW P.JOSEPH) JUDGE uj.