Kerala High Court
Union Of India vs B.Manoj
Author: A.Muhamed Mustaque
Bench: Thottathil B.Radhakrishnan, A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
THURSDAY, THE 6TH DAY OF MARCH 2014/15TH PHALGUNA, 1935
OP (CAT).No. 5 of 2014 (Z)
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AGAINST THE ORDER/JUDGMENT IN OA 12/2013 of CENTRAL ADMINISTRATIVE
TRIBUNAL,ERNAKULAM BENCH DATED
PETITIONER(S)/RESPONDENTS 2 TO 5 AND 12:
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1. UNION OF INDIA,
REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY,
HEADQUARTERS OFFICE, PARK TOWN.P.O.,CHENNAI-600 003.
2. THE CHIEF PERSONNEL OFFICER,
SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN.P.O.,
CHENNAI-600 003.
3. THE DIVISIONAL RAILWAY MANAGER,
SOUTHERN RAILWAY, PALGHAT DIVISION, PALGAHT-678 009.
4. THE DIVISIONAL RAILWAY MANAGER,
SOUTHERN RAILWAY, TRIVANDRUM DIVISION,
TRIVANDRUM-695 014.
5. THE DIVISIONAL PERSONNEL OFFICER,
SOUTHERN RAILWAY, MADURAI DIVISION, MADURAI-625 016.
BY ADV. SRI.TOJAN J.VATHIKULAM,SC,RAILWAYS
RESPONDENT(S)/APPLICANTS & RESPONDENTS 6 TO 11:
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1. B.MANOJ, AGED 31 YEARS,
S/O.G.BHASKARAN PILLAI, ASSISTANT LOCO PILOT,
OFFICE OF THE SENIOR SECTION ENGINEER(CARRIAGE AND WAGON),
SOUTHERN RAILWAY, PALAKKAD, RESIDING AT PARAYIL VEEDU,
MAVERKKAL, ALAMCODE.P.O., ATTINGAL,
THIRUVANANTHAPURAM-695 101.
2. SUNIL KUMAR S, AGED 29 YEARS,
S/O.SURENDRAN M, ASSISTANT LOCO PILOT,
OFFICE OF THE SENIOR SECTION ENGINEER(CARRIAGE AND WAGON),
SOUTHERN RAILWAY, PALAKKAD,
RESIDING AT NAINAKONTHU VEEDU, PUNNACADU,
PERUMPAZHUTHOOR.P.O., THIRUVANANTHAPURAM-695 126.
3. ABY PETER GEORGE M.G, AGED 30 YEARS,
S/O.GEORGE M.P,SENIOR ASSISTANT LOCO PILOT,
OFFICE OF THE SENIOR SECTION ENGINEER(CARRIAGE AND WAGON),
SOUTHERN RAILWAY, PALAKKAD,
RESIDING AT MALIACKAL HOUSE, LANE NO.8, PARADISE ROAD,
PONNURUNNI, VYTTILA.P.O., KOCHI-682 019.
OP (CAT).No. 5 of 2014 (Z)
4. P.KRISHNA RAJ, AGED 28 YEARS,
S/O.PRABHAKUMAR, ASSISTANT LOCO PILOT,
OFFICE OF THE SENIOR SECTION ENGINEER(CARRIAGE AND WAGON),
SOUTHERN RAILWAY, PALAKKAD,
RESIDING AT MOOLEPARAMBIL HOUSE, KALLARA SOUTH.P.O.,
KALLARA, KOTTAYAM DISTRICT-686 611.
5. DINIL V.DEVAN, AGED 27 YEARS,
S/O.M.VASUDEVAN, ASSISTANT LOCO PILOT,
CRC CREW BOOKING OFFICE, SOUTHERN RAILWAY, SHORANUR,
RESIDING AT V.P.NIVAS, KUMBALAM, PULLUPANA.P.O.
KADAKKAL, KOLLAM-691 536.
6. PRASANTH S.K, AGED 29 YEARS,
S/O.A.SASIDHARAN PILLAI, ASSISTANT LOCO PILOT,
OFFICE OF THE SENIOR SECTION ENGINEER(CARRIAGE AND WAGON),
SOUTHERN RAILWAY, CALICUT, RESIDING AT PRANAVAM,
CHERUVALLIKUZHI, PAZHAKUTTY.P.O.,NEDUMANGAD,
THIRUVANANTHAPURAM-695 541.
7. SHIBU S, AGED 29 YEARS,
S/O.R.SURENDRAN, ASSISTANT LOCO PILOT,
OFFICE OF THE SENIOR SECTION ENGINEER(CARRIAGE AND WAGON),
SOUTHERN RAILWAY, PALAKKAD DIVISION,
RESIDING AT S.S.BHAVAN, T.C.18/419(1), ARAMADA.P.O.
PUNNAKKAMUGAL, THIRUVANANTHAPURAM-695 032.
8. V.ANEESH, AGED 35 YEARS,
S/O.VISWAMBHARAN, ASSISTANT LOCO PILOT,
OFFICE OF THE SENIOR SECTION ENGINEER(CARRIAGE AND WAGON),
SOUTHERN RAILWAY, SHORANUR, RESIDING AT V.S.MANDIRAM,
KARAMCODE.P.O., KOLLAM-691 579.
9. B.S.HARIKRISHNAN, AGED 28 YEARS,
S/O.T.BALACHANDRA PILLAI, ASSISTANT LOCO PILOT,
OFFICE OF THE SENIOR SECTION ENGINEER(CARRIAGE AND WAGON),
SOUTHERN RAILWAY, PALAKKAD,
RESIDING AT MADHAVA VILASOM, VELLIMON(W) P.O.,
VELLIMON, KUNDARA, KOLLAM-691 511.
10. REJITH.S, AGED 32 YEARS,
S/O.K.SUKUMARA PILLAI, ASSISTANT LOCO PILOT,
OFFICE OF THE SENIOR SECTION ENGINEER(CARRIAGE AND WAGON),
SOUTHERN RAILWAY, PALAKKAD, RESIDING AT KAROOR,
SREERANGAM, CHERAVALLY, KAYAMKULAM.P.O.,
ALAPPUZHA DISTRICT. 690 502.
11. VISHNU SIDHARTH, AGED 29 YEARS,
S/O.P.SIDHARTHAN, ASSISTANT LOCO PILOT,
OFFICE OF THE SENIOR SECTION ENGINEER(CARRIAGE AND WAGON),
SOUTHERN RAILWAY, PALAKKAD,
RESIDING AT RESIDING AT VADAKKEY PUNNACKAL,
PARAYAKAD.P.O., CHERTHALA, ALAPPUZHA-688 524.
OP (CAT).No. 5 of 2014 (Z)
12. P.BIJU, AGED 36 YEARS,
S/O.K.PEETHAMBARAN, ASSISTANT LOCO PILOT,
OFFICE OF THE SENIOR SECTION ENGINEER(CARRIAGE AND WAGON),
SOUTHERN RAILWAY, PALAKKAD, RESIDING AT POURNAMI,
T.C.33/1517, GRA-C 262, GURUJI ROAD,
NAMBAVANKAVU, VATTIYOORKAVU.P.O.,
THIRUVANANTHAPURAM-695 013.
13. VIPIN A.V, AGED 32 YEARS,
S/O.A.P.VASU, ASSISTANT LOCO PILOT,
OFFICE OF THE SENIOR SECTION ENGINEER(CARRIAGE AND WAGON),
SOUTHERN RAILWAY, PALAKKAD,
RESIDING AT ANAKUTHIYIL HOUSE, MEKKADAMPU.P.O.
MUVATTUPUZHA, ERNAKULAM-682 316.
14. C.JAYARAJ, AGED 26 YEARS,
S/O.CHANDRAN, ASSISTANT LOCO PILOT, SOUTHERN RAILWAY,
PALAKKAD DIVISION, RESIDING AT JAYA BHAVAN,
NALANDA NAGAR 156, AYYATHIL.P.O., KOLLAM-691 017.
15. D.S.AJITH, AGED 29 YEARS,
S/O.D.DEVARAJAN, ASSISTANT LOCO PILOT,
SOUTHERN RAILWAY, PALAKKAD DIVISION,
RESIDING AT AJITH BHAVAN, KOTTAKKAKOM, PERINAD.P.O.,
KOLLAM-691 501.
16. A.JYOTHI DAS, AGED 23 YEARS,
S/O.ARU, ASSISTANT LOCO PILOT, SOUTHERN RAILWAY,
THIRUVANANTHAPURAM CENTRAL, THIRUVANANTHAPURAM,
RESIDING AT VADAKKEKALAM HOUSE, VILAYANNOOR.P.O.
THENKURISSI, PALAKKAD-678 671.
17. P.T.KRISHNA PRASAD, AGED 29 YEARS,
S/O.HARIDASAN, ASSISTANT LOCO PILOT, SOUTHERN RAILWAY,
THIRUVANANTHAPURAM CENTRAL, THIRUVANANTHAPURAM,
RESIDING AT MALEDHRIYIRPURAYA, VAZHAKYOOR EAST,
MALAPPURAM DISTRICT-673 633.
18. SRI.ABILASH C.NAIR,
ASSISTANT LOCO PILOT, ERNAKULAM JUNCTION R.S.,
ERNAKULAM-682 011.
19. SRI.SURESH KUMAR,
ASSISTANT LOCO PILOT,SOUTHERN RAILWAY,
MADURAI DIVISION, MADURAI-625 016.
THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 06-03-2014, ALONG
WITH O.P(CAT).NO.3559 OF 2013. THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
DG
OP (CAT).No. 5 of 2014 (Z)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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P1- TRUE COPY OF THE O.A.NO.12/2013 FILED BY THE RESPONDENTS 1 TO 13
HEREIN BEFORE OF THE CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM.
P2- TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE
PETITIONERS BEFORE THE CAT IN O.A.12/2013.
P3- TRUE COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS 14
AND 15 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL IN O.A.12/2013.
P4- TRUE COPY OF THE MISCELLANEOUS APPLICATION FOR AMENDMENT OF
THE ORIGINAL APPLICATION NO.O.A.12/2013.
P5- TRUE COPY OF THE ORDER DATED 13.8.2013 IN O.A.NO.12/2013 OF THE
CENTRAL ADMINISTRATIVE TRIBUNAL.
RESPONDENT(S)' EXHIBITS - NIL
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//TRUE COPY//
P.A TO JUDGE
THOTTATHIL B.RADHAKRISHNAN &
A.MUHAMED MUSTAQUE, JJ.
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O.P.(CAT).No.5 of 2014
&
O.P.(CAT).No.3559 of 2013
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Dated this the 6th day of March, 2014
J U D G M E N T
Thottathil B.Radhakrishnan, J.
1.These original petitions under Article 227 of the Constitution of India are filed by the Railway Administration and private respondents in an original application filed by certain Railway Loco Pilots of Palakkad Division. The question relates to interpretation of clauses 3 and 3.1 of Railway Board Establishment Circular No.107/2007, issued after a checkered litigation graph on issues relatable to mutual transfers and bottom seniority transfers viz-a-viz the claims of members of Scheduled Castes and Scheduled Tribes and general category candidates including OBC.
2.Transfer from one Railway/Division/Unit to another Railway/Division/Unit on request on bottom seniority and on mutual exchange basis fell for pointed consideration of the O.P.(CAT).Nos.5/14 &3559/13 2 Railway Board following the order of this Court in O.P.No.2150 of 2002, upholding the order of the Central Administrative Tribunal, Ernakulam Bench in O.A.No.851 of 1999 and later direction of the Central Administrative Tribunal in O.A.No.612 of 2005. As can be seen from the opening part of the R.B.E. Circular No.107/2007, request transfers are allowed from one seniority unit to another in terms of the provisions contained in the Indian Railway Establishment Manual noted therein. It envisages two categories of transfers. The first can be called 'on bottom seniority transfers' and the second category can be called 'on mutual exchange basis'. In clause 3 of R.B.E. Circular No. 107/07 the Railway Board expressed the decision of the Ministry of Railways that for transfer on mutual exchange basis, balance should be maintained in the post based rosters with reference to reservation prescribed for SC and ST staff. Therefore, transfer on mutual exchange basis should be allowed between employees belonging to same category, i.e. general with general, SC with SC and ST with ST. By a later classificatory order it has been clarified that OBCs have also to be treated as part of general category since O.P.(CAT).Nos.5/14 &3559/13 3 they do not fall within SC, ST category, eligible for particular reservation in promotion.
3.Though clause 3.1 of R.B.E. Circular No.107/2007 opens with the word 'however', the use of that expression in that clause is not indicate that provisions in clause 3.1 operates as 'exclusions' or 'provisos' to the contents of clause 3 of R.B.E. Circular No. 107/2007. While, clause 3 deals with transfers on mutual exchange basis, clause 3.1 deals with transfers on bottom seniority in recruitment grades. Clause 3.1 is utilized at that position in R.B.E. Circular No.107/2007 only to explain that the category principle required to be applied in mutual transfers need not be applied in transfers on bottom seniority. Therefore, the transfers on bottom seniority in recruitment grades from one Railway/Division/Unit to another Railway/Division/Unit should be allowed only against vacant direct recruitment quota post and not against promotion quota posts. That is the effect of the last sentence in clause 3.1 of R.B.E. Circular No.107/2007. This is also in conformity with Articles 14 and 16 of the Constitution of India. In this view of O.P.(CAT).Nos.5/14 &3559/13 4 the matter we do not find any infirmity in the decision of the learned Tribunal having allowed the original application by holding that the exercise of transfer on bottom seniority being passed off as mutual transfer cannot be countenanced. We say so, because, this is a net effect of the findings of the learned Tribunal.
4.We may however, notice that, to our query, we are informed that the private respondents before the Tribunal who are the petitioners in O.P.(CAT).No.3559 of 2013 had not moved to the transfered places, since interlocutory orders by the Tribunal had interdicted them from doing so. We record this, since paragraph 17 of the impugned order proceeds as if the private respondent before the Tribunal had certain equitable grounds to be permitted to continue in the stations where they have taken charge following transfers. Noticing this, we leave it to the Railway Establishment to appropriately modulate and recast the transfer orders as between the private respondents and the applicants before the Tribunal and thereby give effect to the directions contained in the Tribunal's order so that the O.P.(CAT).Nos.5/14 &3559/13 5 seniority positions are maintained in terms of the laws. Let this be done within an outer limit of three months from the date of receipt of this order.
Subject to what is stated in paragraph No.4 above, these original petitions are dismissed.
Sd/-
(THOTTATHIL B.RADHAKRISHNAN, JUDGE) Sd/-
(A.MUHAMED MUSTAQUE, JUDGE) //TRUE COPY// P.A TO JUDGE DG