Kerala High Court
General Manager vs V.P.Vijayakumar
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939
WP(C).No. 31443 of 2008(Z)
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(AGAINST THE ORDER DATED 19.6.2008 IN O.A.781/2007 OF THE CENTRAL
ADMINISTRATIVE TRIBUNA,L, ERNAKULAM BENCH)
PETITIONERS:
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1 GENERAL MANAGER,
SOUTHERN RAILWAY,
HEAD QUARTERS OFFICE, PARK TOWN P.O., CHENNAI - 3.
2 DIVISIONAL PERSONNEL OFFICER,
SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT.
3 DIVISONAL PERSONNEL OFFICER,
SOUTHERN RAILWAY, TRIVANDRUM DIVISION,, TRIVANDRUM.
4 DIVISIONAL PERSONNEL OFFICER,
SOUTHERN RAILWAY, CHENNAI DIVISION, CHENNAI.
5 CHIEF PERSONNEL OFFICER,
SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN,
CHENNAI - 3
BY ADV.SRI.C.S.DIAS,STANDING COUNSEL, RAILWAYS
RESPONDENTS:
----------------------
1. V.P.VIJAYAKUMAR, AGED 32 YEARS,
S/O.P.G.PARTHASARATHY PILLAI, ASSISTANT LOCO PILOT,
OFFICE OF THE CHIEF CREW CONTROLLER (ELECTRICAL),
BROAD GAUGE/CHENNAI CENTRAL, CHENNAI.
2. SANTU THOMAS, AGED 32 YEARS,
S/O.K.D.THOMAS, ASSISTANT LOCO PILOT, OFFICE OF THE
CHIEF CREW CONTROLLER/SOUTHERN RAILWAY/ JOLARPET.
3. M.SIVAKUMAR, AGED 37 YEARS,
S/O.MADHAVAN PILLAI, ASSISTANT LOCO PILOT, OFFICE OF THE
CHIEF CREW CONTROLLER/ SOUTHERN RAILWAY, KATPADI.
....2/-
WP(C).No. 31443 of 2008(Z) (2)
4. K.T.PRADEEP, AGED 31 YEARS,
S/O.K.V.THANKAPPAN, ASSISTANT LOCO PILOT, OFFICE OF THE
CHIEF CREW CONTROLLER/SOUTHERN RAILWAY/JOLARPET.
5. P.M.SADATH, AGED 35 YEARS,
S/O.C.A.MUHAMMED, ASSISTANT LOCO PILOT, OFFICE OF THE
CHIEF CREW CONTROLLER/ SOUTHERN RAILWAY/JOLARPET.
6. K.SAJI, AGED 31 YEARS, S/O.KARUNAKARAN P
SENIOR ASSISTANT LOCO PILOT, OFFICE OF THE
CHIEF CREW CONTROLLER/SOUTHERN RAILWAY/JOLARPET.
7. C.MANOJ, AGED 29 YEARS,
S/O.CHELLAPPAN, ASSISTANT LOCO PILOT, OFFICE OF THE
CHIEF CREW CONTROLLER/SOUTHERN RAILWAY/JOLARPET
8. LIN.K.DAS, AGED 31 YEARS,
S/O.KUMARADAS, ASSISTANT LOCO PILOT, OFFICE OF THE
CHIEF CREW CONTROLLER/SOUTHERN, RAILWAY/JOLARPET.
9. N.S.RAJESH, AGED 36 YEARS,
S/O.SREEDHARAN, ASSISTANT LOCO PILOT ,OFFICE OF THE
CHIEF CREW CONTROLLER (ELECTRICAL),
BROAD GAUGE, CHENNAI CENTRAL, CHENNAI.
10. ANOOP SUKUMARAN, AGED 31 YEARS,
S/O.V.N.SUKUMARAN, ASSISTANT LOCO PILOT, OFFICE OF THE
CHIEF CREW CONTROLLER/SOUTHERN RAILWAY/JOLARPET.
R1 TO R3, R5 TO R8 & R10 BY ADVS. SRI.T.C.GOVINDA SWAMY
SRI.ALFRED LIONEL WILFRED
SMT.T.N.SREEKALA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-03-2018,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 31443 of 2008(Z)
APPENDIX
PETITIONERS' EXHIBITS:
EXT.P1: TRUE COPY OF ORIGINAL APPLICATION NO.781/2007
EXT.P2: TRUE COPY OF REPLY STATEMENT FILED BY THE RESPONDENT/RAILWAYS
EXT.P3: TRUE COPY OF ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH DATED 19.6.2008 IN OA 781/2007
RESPONDENTS' EXHIBITS: NIL
OKB
TRUE COPY
P.A. TO JUDGE
P.R.RAMACHANDRA MENON &
R.NARAYANA PISHARADI,JJ
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W.P.(C) No.31443 of 2008
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Dated this the 7th day of March, 2018
JUDGMENT
R.Narayana Pisharadi, J Is administrative policy of transfer of employees in a public service undertaking amenable to judicial review? This is the question which essentially falls for determination in this writ petition filed under Article 227 of the Constitution of India.
2. The challenge in this writ petition is directed against Ext.P3 order dated 19.6.2008 passed by the Central Administrative Tribunal, Ernakulam Bench (hereinafter referred to as the Tribunal) in O.A. No.781 of 2007. The applicants before the Tribunal were employed in the Chennai Division of the Southern Railways as Assistant Loco Pilots. They challenged before the Tribunal the proceedings dated 24.10.2007 (Annexure A-8) issued by the Railways regarding transfer of employees and the method of maintenance of the priority register (Annexure A-9) with regard to transfer kept in the Trivandrum Division. The reliefs sought by them in O.A. No.781 of 2007 were the following:
''(i) Call for the records leading to the issue of Annexure W.P.(C).31443/08-Z :2:
A9 and declare that the arrangement of registrants for appointment by transfer as Assistant Loco Pilots against direct recruitment quota vacancies based only on the date of receipt of communication from the different divisions/Railways is arbitrary, discriminatory and hence, opposed to Articles 14 and 16;
(ii) Declare that Annexure A9 priority register is to be maintained based on the date of registration of the individual candidates for eventual transfer and appointment as Assistant Loco Pilots against the direct recruitment quota vacancies in Trivandrum Division.
(iii) Call for the records leading to the issue of Annexure A8 and quash the same to the extent it directs transfer and appointment of persons only from Palghat Division of Southern Railway irrespective of the date of registration of persons like the applicants in the Chennai Division of Southern Railway.
(iv) Direct the respondents to appoint the applicants by transfer as Assistant Loco Pilots against direct recruitment quota vacancies of Trivandrum Division, in preference to those who have registered later than the applicants for such transfer and appointment.''
3. The grievance of the applicants before the Tribunal was that if the priority for transfer is determined on the basis of the entries made in Annexure A-9 register as per the existing practice, then many employees, who have made application for transfer to Trivandrum Division on dates subsequent to the dates on which the applicants have made application for transfer, would get transfer to Trivandrum Division much earlier than the applicants. The applicants contended before the Tribunal that this anomaly has arisen due to the fact that W.P.(C).31443/08-Z :3:
priority for transfer is determined on the basis of the date on which the applications for transfer are forwarded to the Divisions to which transfer is sought and not on the basis of the date on which the application for transfer is made by the employee.
4. The writ petitioners, who were the respondents in O.A. No.781 of 2007, filed reply statement before the Tribunal contending that maintenance of transfer application register giving priority on the basis of the date of application for transfer is not practicable and the existing regulations do not provide for such a procedure. They also contended that the priority for transfer is determined strictly in accordance with the procedure prescribed under Annexure R-1 order dated 30.10.1996 issued by the General Manager.
5. After considering the rival contentions of the parties, the Tribunal passed the following order:
''(a) It is declared that date of registration for inter-divisional transfer shall be the criterion for issuing letter seeking willingness for transfer and to issue transfer order. Consequently, order at Annexure A-9 which declares that the date of communication by the parent Division Railway shall dictate aspect of issuing transfer order and consequent seniority in the transferred Division is held to be invalid and hence, Annexure A-9 is quashed and set aside.
(b) As a consequence, Annexure A-8 is also quashed and set aside.
W.P.(C).31443/08-Z :4:
(c) Respondents are directed to reschedule the
order of transfer of various individuals on the basis of their initial date of registration in the parent division/railways and also fix the seniority, on their joining, in the same order of their date of registration. ''
6. The learned counsel for the writ petitioners has contended that the impugned order passed by the Tribunal cannot be sustained in law for the simple reason that the Tribunal cannot substitute its wisdom with regard to the implementation of the transfer policy in the Southern Railways. Learned counsel would contend that the priority for transfer is decided as per the procedure prescribed in Annexure R-
1 circular and the applicants before the Tribunal have not challenged Annexure R-1 and therefore, the Tribunal has gone wrong in inventing a new policy of transfer and in giving direction to implement such policy.
7. Per contra, the learned counsel for the respondents/applicants would submit that there is no quarrel with regard to the fact that transfers are to be effected by the writ petitioners as per Annexure R-1 circular but the directions contained therein are not being properly implemented and it results in loss of seniority to the employees in the Division concerned. Learned counsel would submit that the priority for transfer is determined on the basis of the date of forwarding the applications for transfer from each Division and delay in forwarding W.P.(C).31443/08-Z :5:
applications for transfer from some of the Divisions causes hardship to the employees.
8. Rules 226 and 229 of the Indian Railways Establishment Code (hereinafter referred to as b