Central Administrative Tribunal - Ernakulam
Marymol Manattu vs The Union Of India on 11 August, 2015
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 957 of 2012
Tuesday, this the 11th day of August, 2015
CORAM:
Hon'ble Mr. Justice N.K. Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
Marymol Manattu, aged 42 years,
W/o. Reji Mathew, Assistant Station Master,
Southern Railway, Kottayam RS & PO,
Residing at Bhagavathiparambil House,
Kanakkari PO, Kottayam District-Pin:686 632. .... Applicant
(By Advocate : Mr. T.C.G. Swamy)
Versus
1. The Union of India, represented by the General Manager,
Southern Railway, Headquarters Office, Park Town P.O.,
Chennai 600 003.
2. The Senior Divisional Personnel Officer,
Southern Railway, Palakkad Division, Palakkad-9.
3. The Senior Divisional Personnel Officer,
Southern Railway, Trivandrum Division, Trivandrum-14.
4. The Chief Personnel Officer, Southern Railway,
Headquarters Office, Park Town PO,
Chennai 600 003. . . . . Respondents
(By Advocate : Mr. Thomas Mathew Nellimoottil)
This application having been heard on 4.8.2015, the Tribunal on
11.8.2015 delivered the following:
ORDER
Per: Justice N.K. Balakrishnan, Judicial Member -
The applicant who is presently working as an Assistant Station Master in PB.1 plus GP Rs. 2800/- at Kottayam Railway Station challenges Annexures.A1 and A2 order to the extent they revert the applicant from PB2 plus GP Rs. 4200/- to PB 1 plus GP Rs. 2800/-. The applicant further seeks a declaration that she is entitled to be absorbed in the Trivandurm Division of Southern Railway in PB2 plus GP Rs. 4200 w.e.f. the date she joined in Trivandrum Division. A further direction that the respondents should treat the applicant as having been appointed in the Trivandurm Division of Southern Railway in the cadre of Station Master in PB 2 with Grade Pay of Rs.4200 w.e.f. from the date the applicant joined the Trivandurm Division of Southern Railway is also sought for.
2. The case of the applicant is stated as under:
2.1 The applicant initially joined the Palakkad Division of Southern Railway as Assistant Station Master on 16.2.1998. The scale of pay attached to the said post is Rs. 4500-7000 which is now equivalent to PB1 plus GP Rs. 2800. The applicant was later promoted as Station Master Grade III in the scale of pay of Rs. 5000-8000 w.e.f 18.8.2003. The next promotional post is Station Master Grade II in the scale of pay of Rs. 5500-
9000. 75% of the vacancies in the above grade is to be filled by promotion and the remaining 25% by a process of direct recruitment out of which 15% from open market and remaining 10% from serving employees who are graduates and working in the lower grade. While so the respondents invited applications against 10% of LDCE quota vacancies, (Total 18 vacancies as per notification dated 7.7.2006 (vide Annexure.A3). The applicant was subjected to the process of selection. Having secured the highest mark she was placed at rank No.1 in the final panel as can be seen from Annexure. A4. The applicant completed her training for 2 years and finally came out successfully as rank No.1 with the benefit of seniority as serial number-1. After the training as above, the applicant was posted against a regular vacancy of the afore mentioned direct recruitment/LDCE quota on and w.e.f. 6.7.2009. In the meanwhile on and w.e.f. 1.11.2007 Salem Division came to be carved out of the then existing Palakkad Division and therefore, the applicant was deemed to have been posted in the Salem Division of Southern Railway. She was sought to be relieved accordingly. Then she moved this Tribunal by filing OA. 396/2009 inter alia seeking a declaration that she is entitled to be considered to be appointed as Station Manager Grade II in Palakkad Division against 10% LDCE quota ear-marked for such appointment. OA 369/2009, was finally allowed as per order dated 26.11.2009 vide Annexure.A5. The respondents challenged Annexure.A5 order before the Hon'ble High Court by filing Writ Petition, which was later dismissed by the Hon'ble High Court as per judgment dated 12.7.2010 in WP(C) No. 19941/2010. Since there is an element of direct recruitment in PB2 + GP Rs. 4200 in the cadre of Station Master the applicant ought to have been transferred and appointed in Trivandrum Division of Southern Railway against one of the direct recruitment quota vacancy in PB 2 + GP Rs. 4200/. The applicant was transfered and posted as Station Master in PB2+GP Rs. 4200/- and posted as Assistant Station Master in PB1+GP Rs. 2800/-, taking away about 14 years of service rendered by the applicant in Railways. The applicant had registered her request for inter divisional transfer from Palakkad Division to Trivandrum Division in 1998 itself but it was only on account of the laxity that the same was delayed till 2012. Prior to Annexure.A1 and A2 willingness of applicant for transfer was requested for and the same was given by the applicant to be given effect to in accordance with the rules in force as per Annexure.A6 letter. Since gross injustice and irreparable injury was caused, Annexure.A7 representation was given. There is an element of direct recruitment in the said grade ie., 25% and that in terms of Para 312 of Indian Railway Establishment Manual (IREM) Vol.I the applicant ought to have been transfered and appointed against a direct recruitment quota vacancy of Station Master in PB2+GP Rs.4200/-. The applicant was entitled to be considered and appointed against one of the vacancies and therefore reversion of the applicant from PB2+GP Rs. 4200/- to PB1 + GP RS. 2800/- in terms of Annexure.A1 is arbitrary, discriminatory and is contrary to law.
3. The respondents resisted the claim contending as follows:
3.1 The applicant herself submitter her request for one way inter-
divisional transfer from Palakkad Division to Trivandrum Division in the proforma in the year 1998 as Assistant Station Master in scale of Rs. 4,500- 7,000/- as per the terms and conditions attached to such transfer, while she was working as such in Palakkad Division. For want of vacancies in the cadre of Assistant Station Master in Trivandrum Division it materialized only in the year 2010 as per her seniority position and as such she was issued with Annexure A8 transfer order dated 12.5.2010. It was stipulated that she should join Trivandrum Division as Assistant Station Master in PB- 1 Rs. 5200-20200/- plus Grade Pay of Rs. 2800/- and that she will rank junior most to all permanent and temporary officiating Assistant Station Masters as on the date of joining the Trivandrum Division. Only after accepting the same she submitted her willingness to be posted as ASM Grade-III in PB-1 with Grade Pay of Rs. 2800/- in Trivandrum Division. Based on her willingness relieving order was issued at Palakkad Division as per Annexure A1 dated 31.1.2012. Having accepted the same she cannot now turn around and say that the transfer order issued is against the existing rules and regulations. She has not challenged the transfer order and as such she cannot challenge the relieving order also. She was posted against her request and so she is not expected to retract from her earlier stand. The applicant has no right to be transferred in the promoted grade over the registrants of Station Master Grade-II. She has not registered for transfer in the higher grade after getting promotion as Station Master Grade-II. Still she was well aware that she would be junior most in the seniority list of Station Master Grade-II registrants for inter-railway/inter-divisional transfer to Trivandrum Division.
4. The point for consideration is whether Annexures A1 and A2 are liable to be quashed to the extent the applicant was reverted from PB-2 plus GP Rs. 4,200/- to PB-1 plus GP Rs. 2,800/- ?
5. It is not disputed that the applicant had made a request for one way inter-divisional transfer from Palakkad Division to Trivandrum Division in the year 1998 when she was working as Assistant Station Master in the grade of Rs. 4,500-7,000/-. It is also not disputed that while she was working at Palakkad Division itself she was promoted as Station Master Grade-III in the scale of Rs. 5000-8000/- on and with effect from 18.8.2003. It is also not in dispute that the applicant had sought appointment against 10% of the LDCE quota vacancies, pursuant to notification dated 7.7.2006 (Annexure A3) and that in the selection process she ranked No. 1 as evident from Annexure A4. The respondents would also admit that the applicant completed her training for about two years. According to the applicant she came out successful again as ranked No. 1. Thereafter the applicant was posted against a regular vacancy of aforementioned direct recruitment/LDCE quota on and with effect from 6.7.2009. When Salem Division came to be carved out the applicant sought that she be retained in Palakkad Division itself. When that was refused she moved this Tribunal by filing OA 396/2009. As per Annexure A5 order dated 26.11.2009 this Tribunal allowed her claim and it was declared that the applicant is entitled to be posted in Palakkad Division after completion of the Traffic Apprentice Training in preference to others in the select list. Annexure A1 order allowing the applicant's request for inter-divisional transfer to Trivandrum was issued on 31.1.2012. Respondents would contend that the applicant accepted the transfer order and pursuant to the relieving order issued to her she was relieved from Palakkad Division and she joined the Trivandrum Division as Assistant Station Master in PB-1 Rs. 5,200-20,200/- plus Grade Pay of Rs. 2,800/-. It was also made clear in the transfer order and in the relieving order that she will in rank be junior most to all permanent and temporary officiating Assistant Station Masters as on the date of her joining in Trivandrum Division. The fact that she would be getting only bottom most seniority was never disputed by the applicant also. But the main contention advanced by the applicant is that though she made a request for inter-divisional transfer in the year 1998 when she was Assistant Station Master she did not get the transfer order but Annexure A1 transfer order was issued only in 2012. According to the respondents as and when the applicant got promotion to Station Master Grade-III and when she was selected to the next promotion post after she was appointed against 10% of LDCE quota she did not make a separate application for transfer in the respective post. According to the respondents that was cleverly done by the applicant realizing the fact if she makes an application for transfer in the higher post then she would become the junior most in which case the chance of getting a transfer would be practically nil as there would be so many other officers who had earlier submitted their transfer request. Therefore, according to the respondents the applicant having chosen to stick on to her transfer request made in the year 1998 to get an edge over other registrants, cannot now turn around and contend that besides getting a transfer order to Trivandrum her higher post should also be maintained ignoring the basic fact that when she is transferred to Trivandrum Division, she has to forego her seniority as well as other benefits. She cannot approbate and reprobate at the same time, the respondents contend. It is also contended by the respondents that the applicant did not raise any objection when the transfer order was issued and when she was asked to relieve so as to take up the assignment at Trivandrum Division as Assistant Station Master Grade-III in PB-1 with a Grade Pay of Rs. 2,800/-. She accepted the same without demur and joined Trivandrum Division knowing fully well that it was because of the transfer request made by her that she was posted as ASM Grade-III in PB-1 with Grade Pay of Rs. 2,800/-. Having accepted and carried out the transfer order willingly with her clear mind he/she cannot turn around and say that it is against the rules. Though the contention so raised by the respondents is attractive, no rules/circulars has been produced by the respondents to contend that a when a request was made while holding a post and when the registrant was subsequently promoted he/she should again submit her request for transfer and at a later stage if he/she is transferred he has to join the other division with bottom most seniority that too in the lower post which he/she was holding at the time the request was made.
6. Though it is contended by the respondents that if the plea of the applicant is accepted and if she is transferred in the higher scale it will cause great injustice to the registered registrants of Station Master Grade-II. No document or seniority list of registrants has been produced before us to hold that as on the date when the applicant was transferred there were seniors in the higher post who were waiting for a long after registration. In which event it could have been very well contended by the respondents that in the higher post the applicant would be junior most and so if she accepts the transfer in the lower scale then she cannot later turn around and contend that her transfer should be given effect to in the higher scale only. According to the respondents the applicant was well aware of the fact that it would take more time if she registers for transfer in the higher scale and it was because of that fact that the applicant did not register her request for transfer in the higher scale. It is not disputed by the applicant that she accepted the order of transfer as Assistant Station Master in PB-1 with Grade Pay of Rs. 2,800/- willingly and silently and given effect to the transfer order. After having joined the Trivandrum Division as Assistant Station Master Grade-II at the bottom most seniority, she cannot be allowed to derive undue advantage over other employees now seeking a request that she should be posted in the higher scale itself. As stated earlier that contention would have been accepted if the respondents have produced documents to show that if the request of the applicant is allowed that would cause hardship to other meritorious candidates seeking transfer to Trivandrum Division who were seniors to the applicant. Since no such document was produced by the respondents it is not possible for us to hold that if the transfer of the applicant in the higher post is accepted it would cause undue hardship to any other officer. Though a prayer was made in the application that her seniority should also be protected, learned counsel for the applicant has not pressed that request evidently because no such request can be entertained, since the transferee has to take up the bottom most seniority position when she is transferred on her own request. A person should not be allowed to derive any undue advantage over other employees but in order to substantiate that plea the respondents should have produced documents or list of the officers showing the year of registration to show that there were officers who were seniors in the queue seeking a request for transfer. Though the respondents contend that since the applicant has not registered for transfer in the higher grade after getting promotion as Station Master Grade-II and as such she has no right to claim to be transferred in the promoted grade over the registrants of Station Master Grade-II, no rule or circular has been produced to strengthen that contention nor did they produce the register showing the officers in the higher grade who sought transfer so as to hold whether the applicant was entitled to get a transfer in the higher grade. Though the applicant contends that the respondents should have allowed her request for transfer in 1998 or within one or two years, we find absolutely no reason to accept that plea since it is within the domain of the administration as to when and to which place one is to be transferred. It depends upon a number of factors, namely, availability of vacancy, the reliever and nature of the work one is engaged with. The respondents are also justified in contending that the transfer cannot be issued whenever asked for or based on the applicant's convenience or at the cost of administration or by causing inconvenience to the public. But so far as the case on hand is concerned the respondents did not produce any document to show that there were other aspirants and registrants in the higher grade senior to the applicant.
7. A plea was also raised that the application is barred by limitation. We find no merit in that contention since the cause of action for filing this OA arose only when Annexure A1 order was issued in the year 2012.
8. The learned counsel for the applicant has also relied upon an order passed by this Tribunal in OA.807/2011 dated 27.6.2012 (T. Vinu & Anr. v. Union of India & Ors.). The learned counsel for the applicant submits that in that case also the applicants have to wait for more than ten years to get inter-divisional transfer to Trivandrum Division. The stand of the respondents in that case was that when the applicants applied for transfer entered in a particular grade they can be transferred only in that grade and not in the higher grade. The learned counsel for the applicant would also submit that the expression 'relevant grade' occurring in Rule 312 applies to grade where there is an element of direct recruitment. That has been projected by the learned counsel in support of the submission that she had applied for appointment against 10% of the LDCE quota vacancies as per Annexure A3 notification and she stood first in the LDCE examination and after training also she was given rank No. 1. Therefore, according to the applicant the explanation/note to Rule 312 which deals with the transfer on request also is in support of the case of the applicant. The decision of the Hon'ble Supreme Court in Union of India v. V.N. Bhatt - 2003 (8) SCC 714 has also been relied upon in support of the contention raised by the applicant that even on voluntary transfer employee only looses seniority and not other benefits and cannot be deprived of his experience and eligibility for promotion.
9. Therefore, though on request transfer, the transferee should be put at the bottom of the seniority he cannot be reverted to the post in which he was working earlier at the time when the request was made. Following other decisions of the Tribunal and that of the Hon'ble High Court of Madras, OA No. 807/2011 (cited supra) was allowed by this Tribunal directing absorption of the applicant as a junior most Station Master Grade-II (as sought for in that application). Learned counsel for the applicant would submit that the facts of that case are exactly identical to the facts of this case. That was also a case concerning inter-divisional transfer and the issue involved was also was identical.
10. Therefore, in the light of what has been stated above, and considering the peculiar circumstances of this case, this Original Application is allowed. Annexures A1 and A2 to the extent of causing reversion of the applicant from PB-2 plus Grade Pay of Rs. 4,200/- to PB-1 plus GP Rs. 2,800/- is quashed. The applicant must be deemed to have been absorbed in the Trivandrum Division of Southern Railway in PB-2 plus GP Rs. 4,200/- from the date when she joined Trivandrum Division. But it is made clear that she would be at bottom seniority as on that date. The applicant would be entitled to get the consequential benefits as well. The respondents are directed to pass appropriate orders in the light of what is stated above. No order as to costs.
(P. GOPINATH) (N.K. BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER kspps/sa