Central Administrative Tribunal - Ernakulam
K.Abdul Razik vs The General Manager on 17 August, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.No.668/2009
Tuesday this the 17th day of August, 2010
CORAM:
HON'BLE MR.JUSTICE K.THANKAPPAN, JUDICIAL MEMBER
HON'BLE MR.K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
1. K.Abdul Razik, S/o. Kunhamadkutty, Working as Loco Pilot
(Shunting), Office of the Chief Crew Controller, Broadgage,
Southern Railway, Thiruvottiyoor.
2.M.Manoj Sreedharan, S/o. Sreedharan, Working as Loco Pilot
Gr.II(Shunting),Office of the Crew Controller, Southern
Railway, Madras.
3.P.Vinodkumar, S/o. P.Narayanan, Working as Loco Pilot Gr.II
(Shunting), Office of the Crew Controller, Broadgage,
Southern Railway, Chennai.
4.N.P.Shyamraj,S/o.Dharmarajan, orking as Senior Assistant
Loco Pilot, Office of the Chief Crew Controller, Southern
Railway, Jolarpettai.
5.M.K.Sunilkumar, S/o. M.K.Kuttappan, Working as Loco Pilot
(Goods), Office of the Chief Crew Controller, Southern
Railway, Jolarpettai.
6.Biju C.K., S/o. C.Balakrishnan, Working as Loco Pilot Gr.II
(Shunting), Office of the Chief Crew Controller, Southern
Railway, Jolarpettai.
7.Disheed Parol, S/o. P.Chandran, Working as Loco Pilot Gr.II
(Shunting), Office of the Chief Crew Controller, Southern
Railway, Jolarpettai.
8.R.Janardhanan, S/o. M.Rajan, Working as Loco Pilot(Goods),
Office of the Chief Crew Controller, Southern Railway,
Jolarpettai.
9.K.N.Rajesh, S/o R.T.Raghavan, Working as Assistant Loco Pilot,
Office of the Chief Crew Controller, Southern Railway,
Jolarpettai.
10.Praveen, S/o. Kesavan, Working as Assistant Loco Pilot,
Office of the Chief Crew Controller, Southern Railway,
Jolarpettai.
11.A.V.Ramesh, S/o. Velayudhan, Working as Assistant Loco
Pilot, Office of the Chief Crew Controller, Southern Railway,
Jolarpettai.
.. Applicants
By Advocate: Sri Martin G.Thottan
vs.
1. The General Manager, Southern Railway, Headquarters Office,
Chennai-3.
2.The Chief Personnel Officer, Southern Railway, Park Town P.O.,
Chennai.
3.The Divisional Personnel Officer, Southern Railway, Salem
Division, Salem.
4.The Divisional Personnel Officer, Southern Railway, Palghat
Division, Palghat.
5.The Divisional Personnel Officer, Southern Railway, Madras
Division, Madras.
6.Vipin A.V.Assistant Loco Pilot-Diesel, Chief Crew Controller,
Southern Railway, Erode.
7.Baneesh Kumar B, S/o K.K.Balan, Assistant Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
8.A.N.Suresh, S/o. K.Narayanan, Assistant Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
9.Nisar K.A, S/o. Aiyar K.P, Assistant Loco Pilot-Diesel, Chief
Crew Controller, Southern Railway, Erode.
10.Aneesh K, S/o. Damodharan K, Assistant Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
11.Manoj A, S/oA.Ashokan, Assistant Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
12.Sibin S, S/o.Soman N, Asstt. Loco Pilot-Diesel, Chief Crew
Controller, Southern Railway, Erode.
13.T.P.Gopakumar, S/o P.Gandhadharan Nair, Asst. Loco Pilot-
Diesel, Chief Crew Controller, Southern Railway, Erode.
14.Joby John, S/o K.J.John, Assistant Loco Pilot-Diesel,
Chief Crew Controller,Southern Railway, Erode.
15.Aromal Sasi S, Assistant Loco Pilot-Diesel, Chief Crew
Controller, Southern Railway, Erode.
16.Anand S.U, S/o B.Sasidharan Pillai, Asst.Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
17.Mahesh Balachandran, S/o. M.V.Balachandran, Asst.Loco Pilot-
Diesel, Chief Crew Controller, Southern Railway, Erode.
18.Mahesh G, S/o S.Gopalakrishnan Nair, Asst. Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
19.Jijo Mannukadan, S/o M.P.Devassy, Asstt. Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
20.AneeshV,S/o. Viswambharan, Asstt. Loco Pilot-Diesel, Chief
Crew Controller, Southern Railway, Erode.
21.Hari C.G., S/o R.Chandrasekharan Nair,Asstt.Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
22.Kishor Kumar A, S/o.S.Arumugham, Assistt.Loco Pilot-
Diesel, Chief Crew Controller, Southern Railway,Erode.
23.Jacob Raju, S/o Raju A.C, Asstt.Loco Pilot-Diesel, Chief Crew
Controller, Southern Railway, Erode.
24.Sabir N, S/o K.N.Nazeerkunju, Asstt. Loco Pilot-Diesel, Chief
Crew Controller, Southern Railway, Erode.
25.Laiju R, S/o T.U.Rajappan, Asstt. Loco Pilot-Diesel, Chief Crew
Controller, Southern Railway, Erode.
26.Krishna Raj P, S/o. Prabha Kumar, Asstt. Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
27.Binu Kumar P.S., S/o K.C.Sundaresan, Asstt.Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
28.Maneksha R, S/o. S.Raveendran Nair, Asstt.Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
29.Anoop V.N., S/o. N.K.Vijayan, Asstt. Loco Pilot-Diesel Chief
Crew Controller, Southern Railway, Erode.
30.B.S.Hari Krishnan, S/o. T.Balachandran Pillai, Asstt.Loco Pilot-
Diesel, Chief Crew Controller, Southern Railway, Erode.
31.Sobin Babu, S/o. V.Babu, Asstt. Loco Pilot-Diesel, Chief Crew
Controller, Southern Railway, Erode.
32.Ajith Kumar, S/o Chandukutty T, Asstt. Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
33.Ratheesh Nair G,S/o R.Gopinathan Nair, Asstt. Loco Pilot-
Diesel, Chief Crew Controller, Southern Railway, Erode.
34.Shibu S, S/o R.Surendran, Asstt.Loco Pilot-Diesel, Chief Crew
Controller, Southern Railway, Erode.
35.Shibu G.Kurpu, S/o S.Gopalakrishna Kurup, Asstt.Loco Pilot-
Diesel, Chief Crew Controller, Southern Railway, Erode.
36.Satheesh Kumar K.R., S/o P. Kumaran Nair, Asstt.Loco Pilot-
Diesel, Chief Crew Controller, Southern Railway, Erode.
37.Praveen P.S, S/o K.Prabhakran Pillai, Asstt.Loco Pilot-
Diesel,Chief Crew Controller, Southern Railway, Erode.
38.Sreejith N,S/o. Lohithakshan E, Asstt. Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
39.Prasanth S.K, S/o.A.Sasidharan Pillai, Asstt.Loco Pilot-
Diesel,Chief Crew Controller, Southern Railway, Erode.
40.Vishnu Sidharth, S/o P.Sidharthan, Asstt. Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
41.Renjith A.S,S/o. Appunni Nair, Asstt.Loco Pilot-Diesel, Chief
Crew Controller, Southern Railway, Erode.
42.Sandeep P, S/o Subhsh K, Asstt. Loco Pilot-Diesel, Chief Crew
Controller, Southern Railway, Erode.
43.Renjith S,S/o K.Sukumara Pillai, Asstt.Loco Pilot-Diesel, Chief
Crew Controller, Southern Railway, Erode.
44.Saneyav S, S/o R.Sasi, Asstt.Loco Pilot-Diesel, Chief Crew
Controller, Southern Railway, Erode.
45.Sajeesh K.N, S/o K.M.Narayanan Kutty, Asstt.Loco Pilot-
Diesel, Chief Crew Controller, Southern Railway, Erode.
46.Sujith Sudhakaran, S/o Sudhakaran, Asstt.Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
47.Rajesh K.,S/o Krishnan Kutty K, Asstt.Loco Pilot-Diesel, Chief
Crew Controller, Southern Railway, Erode.
48.Subin Chakravarthy, S/o.Chakran, Asstt.Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
49.Sijo Paulson, S/o Paulson T.A., Asstt. Loco Pilot-Diesel, Chief
Crew Controller, Southern Railway, Erode.
50.Ramachandran N, S/o R.Annamalai Pillai,
Asstt.Loco Pilot-Diesel,Chief Crew Controller,Southern Railway,
Erode.
51.Joseph Martin M.G, S/o M.M.George,
Asstt.Loco Pilot-Diesel, Chief Crew Controller,
Southern Railway, Erode.
52.Rineesh T.T, S/o T.T.Gangadharan,
Asstt.Loco Pilot-Diesel, Chief Crew Controller, Southern
Railway, Erode.
53.Bijoy E.P, S/o E.P.Poulose, Asstt. Loco Pilot-Diesel, Chief Crew
Controller, Southern Railway, Erode.
54.Ratheesh A, S/o K.Ayyappan, Asstt.Loco Pilot-Diesel, Chief
Crew Controller, Southern Railway, Erode.
55.Sreenu K.K, S/o Kannan E.K, Asstt. Loco Pilot-Diesel, Chief
Crew Controller, Southern Railway, Erode.
56.Anoop K.S, S/o E.N.Sasidharan,
Asstt.Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
57.S.Ajith Pramod, S/o V.Sankunni Achary,
Asstt. Loco Pilot-Diesel, Chief Crew Controller,Southern
Railway, Erode.
58.O.Abilash, S/o. O. Aramughan, Asstt.Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
59.Abhilash K.C.,S/o Achuthan K.C.,
Asstt.Loco Pilot-Diesel, Chief Crew Controller, Southern
Railway, Erode.
60.Biju P, S/o K.Peethambaran,
Asstt.Loco Pilot-Diesel,
Chief Crew Controller, Southern Railway, Erode.
..Respondents
By Advocate: Mr.K.M.Anthru(R1-5)
Mr.Mohana Kumar for Mr.T.C.Govinda Swamy(R6-
27,29-48, 52-53,55-56,58-60)
The Application having been heard on 03.08.2010, the Tribunal
on 17.08.10 delivered the following:-
ORDER
HON'BLE MR.JUSTICE K.THANKAPPAN, JUDICIAL MEMBER:-
The applicants, 11 in number, filed this Original Application with two prayers,namely, to reconsider the order passed in O.A.No.235/08 and to declare the applicants therein are not entitled to have their lien at Palghat Division and secondly, it is prayed for a direction to the respondents to consider the applicants for inter divisional transfer to Palghat Division on the basis of their seniority position in the register kept for that purpose. The O.A. has been admitted and notice ordered to the respondents and in the mean while M.A.No.322/2010 has been filed by the applicants to implead additional respondents 8 to 60 in the proceedings which was allowed by this Tribunal as per the order dated 9.4.10. Hence notices were served to the additional respondents . On receipt of the notice issued, a reply statement has been filed for official respondents 1 to 5 on 23rd November,2009. A reply statement also has been filed for and on behalf of the party respondent No.6. Though notices were served on the additional respondents, no reply is seen filed on behalf of the additional respondents. On receipt of the reply statements a rejoinder has been filed by the 4th applicant for and on behalf of the other applicants also. After the rejoinder filed on behalf of the applicants, the official respondents 1 to 5 filed an additional reply statement on 12th July,2010. On completion of the pleadings we have heard the counsel appearing for the parties and perused the documents produced in this O.A. Mr.Martin G.Thottan appearing for the applicants has pinpointed his arguments on two aspects. Firstly, the counsel contended that an anomaly crept in the order passed in O.A.No.235/08 to draw a conclusion that the applicants in O.A.No.235/08 are similarly situated as the applicants in O.A.No.754/2007. The counsel contended that O.A.No.754/07 was filed for a transfer of the applicants therein from Erode depot(erstwhile Palghat Division) to various other depots in Palghat Division and the apprehension of the applicants therein was that in the event of direct recruitees joining in the post of Assistant Loco Pilots at Palghat Division before the finalization of their transfer, the applicants would lose their seniority. However, the counsel submits that this Tribunal finally held in that O.A. that the vacancies to the post of Assistant Loco Pilot exist in the present Palghat Division will be the basis for transfer and while transferring the applicants therein their seniority has to be protected and the apprehension of the applicants therein that in the event of direct recruitees joining the post of Assistant Loco Pilot at Palghat Division before finalization of their transfer applications the applicants would lose their seniority. It is also further directed by this Tribunal to consider the transfer applications made by the applicants therein as early as possible preferably before effecting any new appointment in the Palghat Division on regular basis. The said order of this Tribunal has been misinterpreted by this Tribunal while disposing of O.A. No.235/2008. This Tribunal considered the applicants in O.A.No.235/08 are similarly situated as that of the applicants in O.A.No.754/2007. Hence it requires reconsideration. The second limb of the arguments of the counsel appearing for the applicant is that as the applicants in the present O.A. have applied for interdivisional transfer the party respondents who are impleaded and others especially respondent No.6 cannot be treated as similarly situated applicants as that of O.A.No.754/07. The 6th respondent and other impleaded respondents are not having their lien at Palghat Division as they were not appointed in the Palghat Division whereas they were appointed in the erstwhile Salem Division after the bifurcation of Salem Division from the erstwhile Palghat Division. The counsel also relies on the definition of the word 'lien' as defined in rule 28 of chapter 1 of Indian Railway Establishment Code which means the title of a Railway servant to hold on regular basis either immediately or on the termination of a period or periods of absence, a post including a tenure post,to which he has to be appointed on regular basis and on which he is not on probation. As far as respondents 6 to 60 are concerned, they were appointed on regular basis and joined as Assistant Loco Pilots after the formation of Salem Division who were on probation even on the date of the cadre closure and if so, they are not having their lien in Palghat Division. Hence the preference if any given to these respondents in the matter of transfer from Salem to Palghat will be irregular and illegal. The counsel for the applicant also relies on the order of the Railway Board dated 1.11.2007 prescribing procedure for formation of new Salem Division in which it is stated that all cadres of the new Division will be kept open till 31.10.2008 or such other date as may be decided by the competent authority to facilitate inward and outward movement as per the options. The party respondents are concerned they have not given any option to come over to Palghat Division. Hence the preference if any given for transferring the respondents to the Palghat Division will infringe the right of the applicants for transferring them to Palghat Division on interdivisional transfer basis.
2. The above arguments of the counsel appearing for the applicant have been answered by Mr.Thomas Mathew Nellimoottil,Mr.K.M.Anthru appearing for the respondents relying on the respective reply statements. The main stand taken in the reply statement filed for and on behalf of the respondents 1 to 5, the official respondents are that the applicants in O.A.No.235/08 belonged to Assistant Loco Pilots cadre which is classified as running cadre and all these respondents were appointed before the bifurcation of the Palghat Division and posted in the areas coming now under the newly formed Salem Division and after bifurcation as per the orders given by this Tribunal in O.A.574/2007 the respondent Nos.6 to 60 are entitled to be transferred in accordance with their appointment and lien which they have at Palghat Division. Further it is stated that there are 107 running staff who are working now in Salem Division, as per the list maintained at Palghat Divison, have got lien with the Palghat Division. At present there are 59 vacancies available in the running cadre of Salem Division and the running staff are essentially employed in running of trains and relieving of employees whose lien are maintained at Palghat at a time will hamper train operation and definitely cause public inconvenience and unrest. So the Railway is taking a stand that transfer will be given on lotwise and strictly in accordance with seniority and further it is stated in an earlier O.A.,namely in O.A.No.413/08 this Tribunal had held that since on account of bifurcation of Palghat Division the employees now under the Salem Division have at a better footing to have their transfer to Palghat Division in preference to any other grounds of transfer to or outside the Palghat Division. Hence respondents 1 to 5 are bound to follow the orders passed by this Tribunal. The further stand taken in the additional reply statement filed on behalf of respondents 1 to 5 is that respondent Nos. 6 to 60 are recruited for Palghat Division and they were sent for training and as they have not completed the training while the bifurcation of the two Divisions namely Salem and Palghat has taken place. As the party respondents are recruited to Palghat Division they are having their lien at Palghat Division. Further stand taken in the reply statement is that though the respondents were allowed to serve the Salem Division temporarily on completion of their training they will not lose their lien and the Railway Division was not in a position to accommodate all the trained Loco Pilots or the Assistant Loco Pilots at Palghat on bifurcation of the Divisions.
3. The reply statement filed on behalf of the 6th respondent would also show that the party respondents were appointed to Palghat Division and sent for training at a time before the bifurcation of the area comprising of the present Salem Division from Palghat Division and while they have completed their training they were temporarily allowed to continue at the newly formed Salem Division. Hence the stand taken by this Tribunal in O.A.No.235/08 is fully in accordance with the order given by this Tribunal in O.A No.754/07.
4. On our earnest consideration of the contentions raised by the counsel appearing for the parties and on verifying the relevant documents, the question to be decided is that whether the applicants are justified in filing the O.A. or not. Before we consider this question it is advantageous to bear in mind of the stand taken by this Tribunal in O.A.No.754/07. The said O.A. has been filed for a direction to the respondents therein to transfer the applicants, 5 in number, in preference to the direct recruitees of Assistant Loco Pilots in Palghat Division. Further the apprehension of the applicants therein was that if the applicants are transferred before effecting any new direct recruitment their seniority in the said post will be affected and their seniority for such transfer should be protected. The said O.A. has been disposed of by this Tribunal directing the official respondents therein to transfer the applicants therein in preference to any direct recruitment to be made. The said view was also reiterated in O.A No.235/08. In both these O.As this Tribunal directed to give preference to the employees who have got lien or claim for transfer to Palghat in preference to direct recruitees if any be appointed. Hence we are of the view that the law has been declared by this Tribunal in giving preference to transfer of employees who have got lien at Palghat Division to any other category of employees. The next question to be considered is that whether the respondent Nos. 6 to 60 have got or any of them have got lien at Palghat Division. The applicants in the present O.A. earlier approached this Tribunal by filing O.A.686/2008 for the same relief which now they sought in the present O.A. But the said application has been closed by this Tribunal as per the order dated 27th March, 2009. The claim of the applicants herein is that they have applied for interdivisional transfer from Madras to Palghat Division and their names were registered in the register kept for that purpose and if respondent Nos. 6 to 60 are given preference in the matter of transfer, it will affect their rights. It is an admitted fact that respondent Nos. 6 to 60 are recruited to Palghat Division before the formation of the new Salem Division and as per the offer of appointment given to such appointees as per the offer dated 4.4.2007, a copy of which is produced as Annexure R6(a) along with the reply statement filed for and on behalf of the 6th respondent, it is clearly stated that the respondents have been selected by the Railway Recruitment Board for the post of Assistant Loco Pilot and it is proposed to appoint them as apprentice Assistant Loco Pilots (DSL/Electrical) on monthly stipend of Rs.3050/- and further it is stated in clause 13 that if there are no vacancies to absorb , the candidates shall work as temporary Assistant Loco Pilots. It is further stated in clause 18 that the initial posting and subsequent promotion will normally be in Palghat Division and liable in the exigencies of service to be transferred any where in the Southern Railway. It is also to be noted that the training period shall also count for pension and other service benefits. If so, we have no hesitation to hold that the party respondents have been recruited for the Palghat Division though they were temporarily allowed to serve at Salem Division as Assistant Loco Pilots, they have got their lien at Palghat Division. Hence the contention of the counsel appearing for the applicants that the party respondents have no lien at Palghat has no legal basis. It is also to be bear in mind that the party respondents 6 to 60 were offered appointments temporary at Salem Division and at the same time, the Railway is under the obligation to keep their lien with the Division to which they were recruited. Hence we are of the view that the applicants may not have any preference for transfer over the party respondents. If so, the O.A. has no legal basis and it stands dismissed as meritless. Ordered accordingly. No order as to costs.
(K.GEORGE JOSEPH) (JUSTICE K.THANKAPPAN) MEMBER (A) MEMBER(J) /njj/