Central Administrative Tribunal - Ernakulam
Friday vs Union Of India Represented By on 11 February, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. NO. 814 OF 2009
Friday, this the 11th day of February, 2011
CORAM:
HON'BLE Ms. K. NOORJEHAN, ADMINISTRATIVE MEMBER
1 B. Gopinathan, S/o. V. Balakrishnan
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Mangalore
Residing at New Street, Budalur (P.O)
Thanjavur District, Pin - 613 602.
2 C. Francis Arul Nathan, S/o. I.F. Clifford
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Mangalore
Residing at No. 53, St. Antony Street
Rock View, Golden Rock, Trichy - 4.
3 R. Manoraj, S/o. T.S. Rangarajan
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Kasargode
Residing at No. 28, Mallisahib Street
Big Bazar, Trichy -8.
4 P. Manickam, S/o. M. Perumal
Residing at Pappaiyammal Store
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Kasargode
Palace Theatre Back side
Bharathi Nagar, Tennur, Trichy - 17.
5 K. Udayakumar, S/o. P. Karuppaiah
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Mangalore
Residing at No. 56-A, Narammai St.,
M.K. Kottai, Trichy - 11
6 S. Sivanandam, S/o. Sivalingam
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Mangalore
Residing at A3/55, Kailasapuram Bhel
Township , Trichy - 620 014.
7 R. Loganathan, S/o. G. Rajasekharan
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Mangalore
Residing at No. 6
Challai Amman Kovil Street
M.K. Kottai, Trichy - 620 011.
8 T. Saravanan, S/o. K. Thalamegam
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Mangalore
Residing at Flat No. 35
Mahalakshmi Nagar
K.K. Kottai, Trichy - 620 011.
9 M. Senthil Kumar, S/o. P.T. Manoharan
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Mangalore
Residing at No. 52, Kavi Bharari Nagar
Udayanpattil, K. Sathanur (P.O)
K.K. Nagar, Trichy - 620 021.
10 M. David, S/o. A Micheal
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Mangalore
Residing at 4/108/1
Amul Nagar, Nathamadi Patti
Kelakuruchi, Trichy - 620 011.
11 K. Rajesh, S/o. R. Kannan
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Mangalore
Residing at No. 52
Meenakshi Nagar, K.K. Kottai
Trichy - 620 011.
12 R. Mahendran, S/o. A.P. Ramasamy
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Mangalore
Residing at 10/A 5th Cross
Mukambikai Nagar, M.K. Kottai
Trichy - 620 011.
13 K. Muthukalaignan, S/o. K.M. Karuppaiah
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Mangalore
Residing at No. 03, Goodshed Road
Thiruverambur, Trichy - 620 013.
14 N. Durai, S/o. S. Neelakandan
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Kasargode
Residing at Plot No. 34
3rd West Cross Street
Mahalakshmi Nagar, Tanjore Main Road
Trichy - 620 008.
15 A Francis Xavier, S/o. A. Arokia Samy
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Kasargode
Residing at 9.5-3, Vellalar Street
Ariyamangalam, Trichy - 620 010.
16 N. Karthikeyan, S/o. A. Rajakannu
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Kasargode
Residing at No. 19, Arual Namar Extm.,
Jeeva Street, Ponmalaz Patti
Trichy - 4.
17 R. Ganesh Kumar, S/o. Namachivayam
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Kasargode
No. 10/27, Rathna Illam, D. Nagar
Thiruverumbur, Trichy - 13.
18 S. Malarselvan, S/o. T. Selvanathan
Trackman, O/o. Sr. Section Engineer
P.Way/Southern Railway, Kasargode
Residing at 1/454, North Street
Ullikkottai, Mannargudi
Thiruvarur District, Pin - 614 018 ... Applicants
(By Advocate Mr. T.C. Govindaswamy)
Versus
1. Union of India represented by
the General Manager
Southern Railway
Headquarters office, Park Town (P.O)
Chennai - 3.
2. The Chief Personnel Officer
Southern Railway
Headquarters Office
Park Town (P.O), Chennai - 3
3. The Senior Divisional Personnel Officer
Southern Railway, Palghat Division
Palghat
4 The Senior Divisional Personnel Officer
Southern Railway, Thiruchirappalli ... Respondents
(By Advocate Mr. Thomas Mathew Nellimoottil)
The application having been heard on 04.02.2011, the Tribunal on
11.02.2011 delivered the following:
O R D E R
HON'BLE Ms. K. NOORJEHAN, ADMINISTRATIVE MEMBER The applicants have filed this Original Application aggrieved by the denial of consideration for transferring them as Trackmen to Thiruchirappalli Division, in preference to those Act Apprentices, who stand allotted vide Annexure A-8 order.
2. The applicants are natives of Thiruchirappalli and surrounding areas. They were recruited as Act Apprentices after a due course of selection, they underwent the requisite training in the Railway Workshop at Golden Rock, near Thiruchirappalli, they qualified in the examination and were wait listed for appointment against future vacancies. They were allotted as substitute Trackmen at Palghat Division in the months ranging from August 2007 to May, 2008. On completion of 120 days of continuous service, the applicants were granted temporary status and they were regularised soon after, in December 2007 to May 2008. All of them except the applicant at Serial No. 16 requested for transfer to Thiruchirappalli Division. While they were eagerly awaiting their transfer to Thiruchirappalli Division, they came across Annexure A-8, wherein 60 Act Apprentices juniors to them were allotted to Engineering Department in Thiruchirappalli Division. According to them, the Railway Board letters at Annexure A-3 to A-7 lay down clear cut guidelines to the respondents to grant the request transfers before the vacancies are notified for direct recruitment. These orders are in existence right from 1971. They allege that the proposed action to appoint 60 Act Apprentices against DR quota vacancies, in preference to them is arbitrary, discriminatory and illegal and it will cause substantial prejudice, irrepairable damages and recurring monthly losses to them. Therefore, they have filed this Original Application seeking the following main reliefs:-
" (I) Call for the records leading to the issue of Annexure A-8 and quash the same to the extent it allots 60 Act Apprentices to be appointed as Trackmen in preference to the applicants in Thiruchirappalli Division of Southern Railway".
"(II) Direct the respondents to forthwith fill up the existing vacancies of Trackmen in Thiruchirappalli Division of Southern Railway by considering the applicants for transfer and appointment, in preference to those covered by A8."
3. Per contra, in the reply statement, the respondents submitted that the applicants are working in the safety category post as Trackmen and they have been imparted special training based on the geographical nature of the Railway track. Hence, their request for en-mass transfer without considering the administrative exigencies is not feasible. They added that the applicants have prayed to quash Annexure A-8 to the extent it allots 60 Act Apprentices to Trichy Division and as per the Interim Order dated 27.08.2009 in W.P. 8821/09 by Hon'ble High Court of Madras, these Act Apprentices cannot be regularised till the Railway Recruitment Board, Chennai finalises the open market recruitment. However, they conceded that the applicants having completed three years of service on 07.10.2010 are eligible for consideration of their request transfer to Thiruchirappalli Division.
4. The applicants filed rejoinder refuting the stand of the respondents. They averred that they have been regularised well before the interim order of the High Court of Madras and hence there is absolutely no bar to transfer the substitutes, now working in Thiruchirappalli Division, and who are their juniors to Palghat Division.
5. The respondents filed a reply to the rejoinder. They strongly contended that the applicants have failed to implead the 60 Act Apprentices, who are working as substitutes in Trichy Division, and who are likely to be affected, if any orders are passed against them and hence, the Original Application is liable to be dismissed on non-joinder of necessary parties. They added that condition No. 3 of the appointment order at Annexure R-7 shows that the applicants are liable to be posted at any station in Southern Railway. They relied on AIR 2004 SC 1632 and 1994 (3) 87 SC wherein Hon'ble Apex Court held that it is prerogative of the department to make transfer of its employees to different divisions. They also cited 2004 AIR SC W 5563, wherein the Hon'ble Supreme Court observed that "transfer, which is an incidence of service is not to be interfered with by the courts unless it is shown clearly arbitrary or visited by malafide or infraction of any prescribed norms of principles governing the transfer". They affirmed that Trackmen fall in the safety category and their work has a critical bearing on safety of train operations and track maintenance. Their duties involve heavy manual labour in the laying of tracks, repair of tracks and patrolling, etc. Being in the safety category, the Trackmen are required to undergo refresher course once in five years. In the territorial jurisdiction of Palghat Division there is ghat section with sharp curve and the Trackmen are being trained to work in the ghat sections also. Hence, 17 trained applicants cannot be transferred at one go without affecting the task of Railway track maintenance. They produced R-4 showing the classifications of post as Safety category.
6. The applicant's counsel strenuously argued to establish his point that only higher posts of Section Mate in PB-II and Keymen and P.Way Mistry in PB-I in the Civil Engineering Department alone are included in the safety category and the Trackmen always work under their supervision. Therefore, there is no mention of the post of Trackmen in the safety category under the Civil Engineering Department at R-4. The counsel for the applicants added that the applicants completed their apprenticeship during the periods ranging from 1996 to 1999 and 1999 to 2003. They were regularly appointed only in 2007/2008 and majority of them have completed three years of service and hence eligible for transfer to Trichy Division. He also added that the applicants are low paid employees and hence they find it economically difficult to maintain two establishments.
7. Heard the learned counsels on both sides and perused the records. The un-disputed fact is that a few of the applicants have completed the three year mandatory service after their regularisation and others will be completing the three year service soon and hence are eligible for a request transfer to their choice station. Annexure R-2 produced by the respondents is a letter from the Ministry of Railways on streamlining the processing of request transfer. The relevant portion is extracted below:-
GOVERNMENT OF INDIA Ministry of Railways (Railway Board) No. E (Rep)I-2006/Transfer/Misc./1 25.08.2008 The General Managrs (P) All Zonal Railways & Production Units Sub:- Inter-Railway Transfer cases - streamlining Ref:- Board's letter of even number dated 23.10.2006 Attention is invited to the condition as laid down in Board's letter under reference regarding completion of minimum 5 (five) years service (including training period) for considering the inter-railway request transfers in respect of non-gazetted employees working on Zonal Railways/Production Units.
The matter has been reviewed and Board has decided that -
a) This minimum service condition will not be applied in case of mutual transfers, request transfers of compassionate appointees, and in those cases where transfer is sought on the ground of employee's spouse working in Central/State Government;
b) In case of Group 'D' employees. The minimum service condition stands reduced from 5 (five) to 3 (three) years;
c) On the lines of putting up inter-division and intra-division transfer requests on Railnet as already instructed vide Board's letter under reference, Zonal Railways/PUs should also upload registered inter-Railway transfer requests on Railnet........"
Vide R-3, the Chief Personnel Officer has instructed to follow the minimum three years service condition for grant of Inter Divisional Transfers also. As early as in 1971, the Railway Board has given explicit instructions on effecting request transfers vide Annexure A-3. The relevant portion is extracted below:-
Estt-Serial No. 29/71. Circular letter No. P(r) 563 dated 25th January, 1971.
"......... The Board have decided that your Administration should take into consideration the number of persons in various categories who have applied for transfer to the Railway/Division while making recruitment of additional Man and placing indent with the Railway Service Commission so that transfers may take place without any hitch as soon as replacement becomes available with the appointment of fresh recruits..........."
8. The directives of the Railway Board communicated in their circular vide Annexure A-3 to A-7 show very clearly that preference has to be given to those, who have been regularly appointed and who have requested for transfer to their home towns in preference to fresh hands, who are to be recruited under the Direct Recruitment quota. Therefore, R-4, was expected to process, the cases of these applicants to consider their request transfer to Trichy in consultation with R-3 for arranging the relief of the applicants and getting substitutes in their place. The applicants have stated that there are as many as 1000 vacancies of Trackmen in Thiruchirappalli Division. The Annexure A-8 refers to a recruitment process initiated to fill up the vacancies of 2008 or 2009. Logically, more vacancies would have arisen and hence, even if the 60 vacancies referred to Annexure A-8 are to be left out, on the plea of the pending writ petition, there will be other vacancies to accommodate the applicants. Therefore, it is left to the 3rd respondent to initiate action to get substitutes and train them. The respondents are expected to act as per the guidelines of the Railway Board on the matter of grant of request transfer. The ends of justice will be met, if the applicants are transferred to Trichy Division, in different spells and not at one go without compromising the operational requirements of the administration.
9. In this view of the matter, the 3rd and 4th respondents are directed to grant the request transfer of the 17 applicants, in phases, as and when they complete three years of service. This process may commence within a period of eight weeks from the date of receipt of this order.
10. The O.A is allowed as above. No order as to costs.
(Dated, the 11th February, 2011.) K. NOORJEHAN ADMINISTRATIVE MEMBER ax