Central Administrative Tribunal - Ernakulam
N.V.Reghunathan vs Union Of India Represented By General ... on 27 February, 2017
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application Nos.180/00339/16 & 180/00340/16
Monday, this the 27th day of February, 2017
CORAM:
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs.P.Gopinath , Administrative Member
O.A 180/00339/2016
N.V.Reghunathan
S/o.T.V.Sankara Warrier
Working as Senior Technician, Trip Shed,
Ernakulam South, Trivandrum Division
Southern Railway, Residing at Nangyankulangara Warriam
Vellankallur P.O, Trichur District ... Applicant
(By Advocate -M/s.Varkey & Martin)
Versus
1. Union of India represented by General Manager
South Railway, Park Town, Chennai - 600 003
2. Senior Divisional Personnel Officer
South Railway, Trivandrum Division
Trivandrum - 695 014
3. Senior Divisional Personnel Officer
South Railway, Salem Division
Salem - 1
4. Mijosh Mathew K.M
S/o.K.S.Mathew
Technician I, Officer of the Senior Section Engineer
Electrical Shed/Erode/Southern Railway
Residing at Leela Sadanam
Kanichukulangara P.O
Cherthala, Alleppey District, Kerala State
Pin - 688 582
5. Unnikrishnan K.V
S/o.Vidyanadhan P.K., Technician II
Office of the Senior Section Engineer
Electrical Shed/Erode/Southern Railway
Residing at Kesava Bhavanam, S.Aryad
Avalakkunnu P.O, Alleppey District
Pin - 688 006 ... Respondents
(By Advocate - Mrs.P.K.Radhika for R 1-3 & Mr.T.C.G Swamy for R 4-
5)
O.A 180/00340/16
1. M.R.Jayakumar
S/o.Rathinam, Senior Technician
Trip Shed, Trivandrum, Trivandrum Division
Southern Railway
Residing at Jayan Nivas, Mecode
Kanyakumari District
2. A.Vinod Kumar
S/o.P.Appu, Senior Technician
Trip shed, Trivandrum, Trivandrum Division
Southern Railway, Residing at Vadakkumkara
Puthiaveedu, Kavalakulam, Kodagavilla P.O
Neyyattinkara
3. Santhosh.S
S/o.Late Sivadas P
Technician II, Trip Shed,
Ernakulam South, Trivandrum Division
Southern Railway, Residing at Puthuparambil House
Thottupally P.O, Alappuzha
4. P.V.Murali, S/o.P.K.Viswanathan , Technician I
Trip Shed, Ernakulam South, Trivandrum Division
Southern Railway, Residing at Attakuzhikattu
Mattathil, Kanichukulangara P.O, Cherthala
5. Jothilal.S
S/o.Sundaran, Technician, Grade II
Trip Shed, Trivandrum, Trivandrum Division
Southern Railway, Residing at Palakattivilla
Kottaikonam P.O, Trivandrum ... Applicants
(By Advocate -M/s.Varkey & Martin)
Versus
1. Union of India represented by General Manager
South Railway, Park Town, Chennai - 600 003
2. Senior Divisional Personnel Officer
South Railway, Trivandrum Division
Trivandrum - 695 014
3. Senior Divisional Personnel Officer
South Railway, Salem Division
Salem - 1
4. Unnikrishnan K.V, Technician II, O/o.Senior Section Engineer
Electrical Shed, Erode, Southern Railway
5. Mijosh Mathew K.M
Technician I, Officer of the Senior Section Engineer
Electrical Shed/Erode/Southern Railway
6. T.Sarath, Technician 1, O/o.Senior Section Engineer,
Electrical Shed, Erode, Southern Railway
7. Southern Railway Mazdoor Union, Palakkad Division
Southern Railway, Palakkad represented by its Secretary
8. Southern Railway Employees Sangh
Palakkad Division, Southern Railway
Electrical Loco Shed, Erode represented
by its Branch Secretary
9. Senior Divisional Electrical Engineer
Southern Railway, Erode ... Respondents
(By Advocate - Mrs.P.K.Radhika for R 1-3 & 9, Mr.T.C.G Swamy for R
4-6)
This Original Application having been heard on 1.2.2017 , the Tribunal on
27.2.2017 delivered the following:
ORDER
By Hon'ble Mrs.P.Gopinath, Administrative Member Applicants who are working as Senior Technicians/Technicians at Trip Sheds at Trivandrum/Ernakulam has filed this Original Application aggrieved by the action of the third respondent in transferring them to Electrical Loco Shed at Erode on the pretext of repatriation. Applicant in O.A No.180/339/2016 also similarly placed as the applicants in O.A 180/340/2016 and are being considered in one order. .
2. The applicants who were initially appointed in Railways as Technician Grade - III (Electrical). While working at Electrical Loco shed at Erode they were transferred to Trivandrum Division and posted at Trip Sheds Ernakulam and Trivandrum respectively. The transfer orders issued, argue the applicants, are a temporary one maintaining their lien at Erode. The applicants are the senior most Technicians in their grade and the transfer order is issued on the basis of request made by them for inter divisional transfer to Trivandrum Division. The applicants 1 and 2 are posted in the year 2007 and the 3rd applicant in the year 2012. Consequent upon the electrification of Railway tracks in the Trivandrum Division, the maintenance of Electrical Loco has became necessary and Electric Trip Sheds were established at Ernakulam and Trivandrum. Since, there is no sanctioned post at Trivandrum, the applicants were posted on the exigencies of service to man the Trip Sheds at Ernakulam and Trivandrum. Applicants claim that they were transferred on temporary basis, pending the regular sanction of post of Technician (Electrical) in the Trivandrum Division. Normally temporary transfer can be issued only for a period of 180 days and the provision in Indian Railway Establishment Code does not contemplate a temporary transfer beyond 180 days. The applicants transfer are deemed to be regular one with the passage of time. Applicants were given the benefits of restructuring orders by the Railway Board w.e.f 1.11.2013 by RBE No.102 of 2013 and the applicants are holding the immediate higher grade of pay in their promotional hierarchy. The applicants who were working as Technician (Electrical) is also eligible to be considered for posting in the Memu shed at Quilon. Many persons junior to applicants were considered and transferred to Memu shed at Quilon and they are continuing. Applicants are eligible and entitled for posting in the Memu shed at Quilon on the basis of their request for inter-divisional transfers to Trivandrum Division. 3 Applicants argue that the Trip Sheds at Ernakulam and Trivandrum are essential for the running of trains after the Electrification in the Trivandrum Division. Applicants who are transferred to these sheds temporarily on the basis of the priority and eligibility, are entitled to be considered for retention, since the sanctioning/creation of posts is pending the respondents. The applicants instead of being continued, are in receipt of office order No.SA/19/ELS/2016 dated 6.4.2016 transferring them back vide Annexe A-3 to Electrical Loco Shed, Erode, on the pretext of repatriation. In Annexe A-3 it is stated that the alleged repatriation is subject to the final outcome of O.A No.1192 of 2014 filed before the Central Administrative Tribunal, Madras Bench. Applicants are not parties in the said Original Application and no interim order was passed in the O.A which warrants the passing of Annexure A-3. The Original Application referred in Annexe A-3 order is filed by Technician who joined Electrical Loco Shed Erode subsequent to the applicants transfer to Trivandrum Division seeking a declaration that they were eligible for a transfer to Trivandrum Division on their request. The impugned action is said to have been issued on the basis of the decision arrived in the meeting between the respondents 7 to 9, as seen from the minutes of the meeting between the trade union and respondent, which is challenged by the applicants.
4 Relief sought by applicant is to quash Annexe A-4 and to declare that the same is incapable of implementation, on account of not having any legal sanctity.
5 The respondents argue that the applicants have not made any representation before the competent authority ventilating their grievance. The applicants ought to have made representation to the competent authority and if still aggrieved the applicants have the option of approaching this Tribunal. Without completing the above exercise the applicants have approached this Tribunal directly in violation of Section 20 of the Administrative Tribunals Act, 1985.
6 The Trip Shed at Ernakulam was set up to carryout tripping inspections of Locomotives as per mandatory safety requirement. The Trip Shed at Ernakulam/Trivandrum due to electrification to facilitate trip inspection of Electric Locomotives terminating at Ernakulam/Trivandrum. They are only satellite sheds of Electrical Loco Shed/Erode. Employees from Electrical Loco Shed Erode who are registered for transfer to Trip Shed at Ernakulam/Trivandrum will be posted as per priority and their lien will be maintained at Electrical Loco shed/Erode. Hence, it is clarified that Trip Shed at Ernakulam and Trivandrum are part of Electrical Loco Shed Erode and staff of Erode are posted on priority request and not absorbed on transfer. It is submitted that for filling up of posts at MEMU Shed/Quilon is concerned, volunteers will be called for from employees working at Trip Shed/EMU/MEMU sheds of Electrical Department by HQrs/Southern Railway with the following conditions:
1. Volunteers for the post will be selected based on their seniority.
2. The lien of the selected employees will be maintained in the respective Divisions. There will not be any separate seniority unit. Their promotion will be based on their original seniority position in the Division/unit.
Volunteers have been already called for filling up of Vacancies in MEMU Car Shed/Quilon vide Annexe R-1 issued by HQrs by Chief Personnel Officer/Southern Railway, Chennai by letter No.P(S) 535/VII/CS Qln dated 23.7.2013.
7 The applicants have not submitted their applications for deputation to MEMU shed at Quilon when the volunteers were called for by letter No.P(S) 535/VII/CS Qln dated 23.7.2013 (Annexe R1). Had the applicants submitted their application, it would have been processed subject to their priority position.
8 It is submitted that a settlement has been reached between the organized labour and the Railway administration during 2007 that the employees who are registering for transfer from Electric Loco Shed/Erode to Trip Shed/Ernakulam/Trivandrum will be posted for a period of 5 years and thereafter repatriated to Electrical Loco Shed/Erode. In their place other employees in the same grade will be transferred to Trip Shed/Trivandrum. In the event an employee is promoted to next higher grade within 5 years, he will be repatriated and posted to Electrical Loco Shed/Erode and the next employee registered for transfer as per priority will be posted to Trip Shed/Trivandrum. Hence the contention that applicant was under temporary transfer and after 180 days it was be made a permanent one is resisted. Rather it is a posting to Trip Shed Trivandrum/Ernakulam. The applicants have never before challenged this and not even represented whenever the seniority list of Electrical Loco Shed, Erode has been issued wherein their names were figuring If the applicants are allowed to continue at Trip Shed Trivandrum/Ernakulam, those who are registered for their turn will definitely get aggrieved and this will lead to discontent and litigations. A separate cadre cannot be created since the Trip sheds are satellite clinics for the passing Locos. Respondent argues that they never called for any option to fill the posts permanently at Trip Shed Trivandrum or Ernakulam. Annexure A-1 was issued by Divisional Personnel Officer/Salem transferring applicants 4 and 5 to Trip Shed/Trivandrum only as a temporary measure, maintaining their lien at Electrical Loco Shed/Erode and applicant's reading of it as a permanent order is misplaced. The 3 rd applicant was transferred to Trip Shed/Trivandrum by Office order No.SA/141/ELS/2012 dated 18.9.2012 only on the condition that he will be transferred to Electrical Loco Shed/Erode on completion of 5 years service at Trip Shed/Trivandrum or on his promotion to the higher post which ever is earlier.
9 By virtue of cadre restructuring, the deputation staff were extended with up-gradation/promotion on 'as is where is basis' as per Para 10 of Railway Board's letter No.P(C) III/2013/CRC/4 dated 8.10.2013 till pinpointing is done. First and Second applicants were also promoted from Tech Gr.I in Pay Band Rs.5200-20200 with Grade Pay Rs.2800 to Sr.Technician in Pay Band Rs.9300-34800 with Grade Pay Rs.4200 against restructured vacancies with effect from 1.11.2013 and allowed to continue in the same unit on 'as is where is basis' at Trip Shed/Ernakulam till pinpointing is done. Para 10 of Annexure R-3 letter states:
'The administration should take steps to pin-point the additional posts arising out of this restructuring as per administrative requirements. However, in those cases where due to pin-pointing of posts staff is required to join duties in the upgraded posts at a different station, such staff may be allowed the benefit of upgradation/promotion on ' as is where is basis' for the time being and allowed to join the pin- pointed post at the new station within six months time from the date of issue of promotion order, subject to the satisfaction of HOD on merit in each case. '
10 As an Original Application was filed before the Central Administrative Tribunal, Madras Bench regarding deputation/repatriation of employees of Trip Shed Ernakulam and Trivandrum and hence, while issuing Office order No.SA/P 19/ELS/2016 dated 6.4.2016 (Annexure A3) for repatriation of the applicant to Electrical Loco Shed/Erode, a condition that 'the office order was subject to final outcome of the O.A 1192/2014 filed before the Hon'ble Central Administrative Tribunal, Madras Bench' was incorporated. 11 Applicants argue that no interim order is passed by the Madras Bench against the continuance of the applicant in Trivandrum Division. Applicants are not parties in the said Original Application. Applicants are now working in Trivandrum for a long time and they have acquired rights to continue by virtue of long stay. They have helped respondent to operationalise the Trip Shed at Ernakulam and Trivandrum which was vital for smooth operation of trains with electric traction. Balance of convenience is in favour of the applicants' continuance subject to the final outcome of the original application pending before the Madras Bench.
12 The above argument of applicants is contested by respondents. The applicants transfer to Trip Shed/Ernakulam is for a period of 5 years only or till they are promoted to the next grade. 1 St, 2nd and 4th applicants were promoted from Tech Gr.I in Pay Band Rs.5200-20200 with Grade Pay Rs.2800 to Sr.Technician in Pay Band Rs.9300-34800 with Grade Pay Rs.4200/- against restructured vacancies with effect from 1.11.2013 and allowed to continue in the same unit on 'as is where is basis' at Trip Shed/Trivandrum/Ernakulam till pinpointing is done. Hence, it cannot be construed by applicant that his transfer on deputation has been made permanent. The pinpointing of posts has now been made and the request transfer of the employees who have registered for transfer to Trip shed at Trivandrum/Ernakulam is to be considered. The applicants who had worked for more than 5 years and also got one promotion have to be repatriated to Electrical Loco Shed at Erode as as to give a chance to other employees who have registered for transfer to Trip Shed at Trivandrum/Ernakulam. 13 Applicants argue that if the impugned order is construed as a order of repatriation then the respondents are bound to follow the principle of 'last come first go'; in that event applicants who were seniors are not liable to be included in the impugned order. However, respondent argues the applicants were on a tenure based posting followed by continuation on as-is-whereis basis subject to pin pointing. The applicants have not acquired any rights of permanent transfer and were on tenure based posting. The applicants contest the Annexure A-4 minutes and the decision entered between the respondent nos.4 to 6. Annexure A-4 has effect of making a rule or altering the existing rules and policy decision on the subject. Respondent nos.4 to 6 has no authority in such matters and such powers are vested with the General Manager and the Railway Board as contained in Rules 120, 123 and 124 of the IREC, Vol.1. Hence Annexure A-4 is without jurisdiction argue the applicants.
14 M.A No.180/767/2016 had been filed for permitting the miscellaneous applicants to implead themselves as additional respondents 4 to 6 and to allow them to place their contentions and arguments in the matter before a final decision is taken. The same was allowed on 30.09.2016. Additional respondent nos. 5 and 6 who are Technicians I and the 4 th respondent is Technician II, working under the Se.Section Engineer/Electric Loco Shed/Southern Railway/Erode. In their argument they submit that Annexure M.A 2 is the list of registrants working as Technician I for transfer to Trivandrum/Kochuveli and Ernakulam South Trip Sheds. Such a list of registrants would not be maitained had the applicants been transferred permanently. Applicants are reading more than what was intended in the tenure based transfer to a satellite shed. The first original applicant is at Sl.No.1 and the 2nd original applicant is at Sl.No.5. Similarly, it may be seen that the 5th respondent is at sl.no.31 and the 6 th respondent is at sl.no.29. The name of the 4th respondent is not shown because his name is in another list meant for Technician-II. In terms of the policy, on completion of five years or as and when promotions are ordered, those who are working at Trivandrum/Kochi are bound to be transferred back to their parent unit. However, in spite of their promotions as per re-structuring, and even though there are no sanctioned posts, the original applicants were being allowed to continue at their respective offices at Trivandrum/Kochuveli/Ernakulam South as the case may be, depriving persons like the Miscellaneous Applicants herein an opportunity of being transferred to Trivandrum/Kochi/Ernakulam South.
15 Some of the persons similarly situated had approached the Central Administrative Tribunal, Madras Bench, by filing O.A 1192/2014, which was, however, disposed of by order dated 06 April 2016 reproduced below.
'The applicants are working as Technicians in the Electrical Loco Shed in Erode in Salem Division. The respondents took options from the applicants for being transferred to Trip Sheds at TVC and ERS on deputation for a tenure of 5 years in the same scale of pay with a pre-condition that they should seek seniority and promotion in the parent establishment. Under these circumstances, in the guise of implementing cadre restructuring some of the incumbents on deputation were upgraded to higher grades ignoring the priorities of the applicants awaiting for a chance for deputation and hence this original application is filed.
4. The applicants have not made any representation against ignoring their priorities for deputation promotion/upgradation ordered contrary to the mandatory settlement. This application is premature and they have to make representations before the concerned authority.
5. Learned counsel for the respondents represented that the applicants' turn for promotion/up-gradation has not come and when their turn comes they will be considered.
6. In the above circumstances, we direct the applicants to make fresh representations to the concerned authorities within a period of a month from the date of receipt of a copy of this order and in that event the respondents are directed to dispose them in accordance with law and by a reasoned and speaking order within a period of 6 weeks thereafter.'
16. Additional respondent nos.4 to 6 argue that they would be directly affected in case the O.A is decided in favour of the original applicants. The original applicants are aware of these facts and they have not impleaded these additional respondents who would be directly affected.
17. Heard learned counsel for applicant and the respondents and perused the written submissions made.
18. The main issue which comes up for consideration is the status of applicants in TRS/EMU/MEMU Sheds. Annexure R1 issued in a similar case gives a lot a clarity in the matter. Annexure R1 calls for applications from volunteers from EMU/MEMU/Trip Sheds for MEMU/CS/QLN. As neither applicants nor respondents have produced a similar proposal for filling up similar posts in EKM/TVM) the case for Quilon Shed which is similar to the case of calling for volunteers to EKM/TVM Sheds is being referred. The document clearly stipulates that persons applying will be 'deputed to work' and not 'transferred'. The document also states that the lien of selected employees will be maintained in the respective Divisions which would not be the case if the staff were intended to be transferred on a permanent basis. It is also stated that for the staff transferred there will not be any separate seniority unit, and promotions will be based on their original seniority position in the Division/Unit they belong to, until any modification/changes in the maintenance of the cadre is introduced. Hence, applicants are borne on the seniority list of the original division from where they are deputed to the newly electrified units.
19. It is submitted by respondent that in settlement reached between the recognised organised labour federation and the Railway Administration in 2007, it was agreed that such volunteers from Erode Electric Loco Shed when transferred would be for a period of 5 years and thereafter repatriated to Erode and replaced by another set of volunteers, thus giving a chance to all who want to work in EKM/TVM till permanent posts are created to man the unit. If the applicants are permanently retained in EKM/TVM this would result in usurping the chance of others similarly placed in Erode attempting to volunteer for a 5 year term in EKM/TVM. Hence, we find no illegality or injustice in the convenient arrangement attempted by respondent, to give all natives of Kerala State posted in Erode a five year chance to work in their home State.
20. Being a newly created shed with no persons recruited exclusively to man the Units at EKM/TVM, the respondents experimented with a temporary transfer from Erode at the first instance and the staff federation in an attempt to distribute the bounty of a posting to home State equally, negotiated for a five year term to ensure that all their bretheran from Kerala State got an equal chance to work in the term-tenure. We see no illegality in this arrangement and frown at the attempt of applicants to monopolise the posts on account of their being the first entrant and upset the system of home State posting bounty which the respondent and the staff federation are attempting to equally share among interested persons. Such an arrangement, till application for permanent posting are called, wherein all will be given equal chance to apply for permanent transfer and be considered as per clearly stipulated conditions/guidelines, be continued and the Tribunal would not interfere with the present 5 year term posting arrangement.
21. The applicants are holding their lien at Erode Electrical Loco Shed and have not acquired any rights by their temporary 5 year posting to EKM/TVM to continue there indefinitely or beyond the prescribed tenure of 5 years. The respondent has held discussions with the recognised staff federation to finalise the manner in which posts in TVM/EKM will be filled and we find no irregularity in consultation with the Staff Federation to decide this matter amicably. Such a collabarative conciliation and consultative move will take the interests of a larger group of affected employees into consideration, as such a benefit is required to be shared amongst all interested persons and not be restricted to a few who happened to be the first to enter the field.
22. We would not look upon the matter as repatriation as contended by applicant while advocating the principle of 'last come first go'. We consider this movement as a tenure based transfer for 5 years which would give a chance to all natives to volunteer to work for a limited period in the home State. It is an attempt to give an equal chance to all natives working outside the State to work in the State and attend to family and other needs.
23. We are of the view that there is no need to interfere with the respondent's attempt to spread equity to a larger number of persons. Original Application is devoid of merits and is dismissed. No costs.
(MRS.P.GOPINATH) (N.K.BALAKRISHNAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER sv