Central Administrative Tribunal - Ernakulam
Pradeep M vs Union Of India Represented By The ... on 3 April, 2017
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00880/2015
Monday, this the 3rd day of April, 2017
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER
1. Pradeep M,
S/o.Madhavan,
Assistant Loco Pilot,
Erode, Southern Railway.
Residing at Charavila Veedu,
Kuzhiyam South, Chandanathoppe P.O.,
Kollam - 14.
2. P.K.Retheesh,
S/o.V.Kumaran,
Loco Pilot (Shunting),
Erode, Southern Railway.
Residing at Puthenveliyil House,
Manappuram P.O., Cherthala - 688 526. . . . 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, Salem Division,
Salem - 5.
4. The Senior Divisional Personnel Officer,
Southern Railway, Trivandrum Division,
Trivandrum - 695 014. . . . Respondents
(By Advocate Mrs.P.K.Radhika)
This application having been heard on 17 th March 2017, the Tribunal
on 3rd April 2017 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicants who are members of the Scheduled Caste community presently working as Assistant Loco Pilot and Assistant Loco Pilot (Shunting) respectively in the Salem Division of Southern Railway are aggrieved by the denial of consideration for transfer and appointment against SC quota vacancies of Assistant Loco Pilots in the Trivandrum Division of Southern Railway, meant for direct recruitment.
2. The brief facts of the case are that the applicants were initially appointed as Assistant Loco Pilots and allotted to the Salem Division of Southern Railway on 8.8.2011 and 18.9.2009 respectively. In terms of Rule 229 of the Railway Establishment Code Vol.I read with Rule 102-A and Rule 312 of the Indian Establishment Manual Vol.I and the Railway Board instructions on the subject, all the applicants had registered their names for an inter-divisional transfer and appointment against DR quota vacancies of Assistant Loco Pilots in Trivandrum Division. The applicants had so registered their names by Annexure A-1 during the year 2012 and 2013 respectively and their names having been duly forwarded have been registered in the register maintained at Trivandrum Division also. Among the members of the SC community the 1st applicant is placed at the top whereas the 2nd applicant is next below among the members of the SC community.
3. In terms of Annexure A-2 to Annexure A-5 orders and also the subsequent orders issued by the Railway Board, requests for inter-divisional transfers are considered and given effect to, against direct recruitment quota vacancies and also in preference to such recruitment. Whenever, reserved quota vacancies are to be filled, the members of the SC community are appointed by transfer against vacancy meant for them, irrespective of the priority maintained vis-a-vis the persons belonging to the general category. This is because no general category members would be affected by transfer of persons belonging to SC community against reserved vacancies. Despite the above position, the applicants were not being considered by the Trivandrum Divisional authorities for such appointment.
4. The applicants aver that in Trivandrum Division offers of appointments have been issued to certain members of the SC community and that these persons are already undergoing training in the training schools at Thiruchirappalli and that they might join any time filling up the existing vacancies. It is submitted that there are a large number of vacancies of Assistant Loco Pilots meant for SC community in the Trivandrum Division of Southern Railway. It is submitted that all these vacancies would be filled by appointing the persons now sent for training. It is submitted that before making indents, the Trivandrum Divisional Authorities ought to have taken into consideration the requests made by the applicants also and necessary papers sent to the authorities concerned in the Salem Division, so as to enable the Salem Divisional Authorities to relieve the applicants on transfer to Trivandrum Division. The applicants challenges the attempt of the respondents to fill up the existing vacancies of DR quota by candidates by direct recruitment in preference to the applicants. The applicants submit that in terms of Rule 229 of the Railway Establishment Code Vol.I read with Rule 102-A and para 312 of the Railway Establishment Manual Vol.I which are all statutory in character and the Railway Board orders relating to the same, the applicants are entitled to be considered, transferred and appointed against the DR quota vacancies in Trivandrum Division. The applicants submit that as evident from Annexure A-5 such transfer and appointment would only be subject to the fulfillment of the educational qualifications applicable for direct recruits. Going by the seniority rules as well, the same is reckoned only from the date of joining in the Trivandrum Division, which means, that the transfer and appointment is by loss of seniority. The applicants also submit that there have been instances where the respondents have transferred persons belonging to the SC community against the SC community vacancies, against DR quota vacancies.
5. Relief sought by the applicants is to declare that they are entitled to be considered, transferred and appointed as Assistant Loco Pilots against the DR quota SC vacancies of Assistant Loco Pilots available in Trivandrum Division in preference to open market recruitment.
6. Respondents in their preliminary objection argue that the applicants are presently working in Salem Division which is coming under territorial jurisdiction of Madras Bench of the Tribunal where as the applicants filed this O.A before this Bench in violation of Rule No.6(1) of C.A.T. (Procedure) Rules, 1987. The applicants are Assistant Loco Pilots and are bound to reside in their respective Headquarters. Just for filing this O.A they have given the residential address other than their present normal residential address. Applicants argue that since transfer sought is to Trivandrum, the application comes under the jurisdiction of this Tribunal.
7. The 1st applicant was appointed as Assistant Loco Pilot during the year 2011 and submitted an application for inter-divisional one way transfer to Trivandrum Division and registered in Salem Division on 27.2.2012. The 2nd applicant was appointed as Assistant Loco Pilot during the year 2009, promoted as Senior Assistant Loco Pilot and then to Loco Pilot (Shunting). While working as Senior Assistant Loco Pilot he has submitted application for inter-divisional one way transfer to Trivandrum Division and registered in Salem Division on 28.4.2014. Respondent argues that inter-divisional transfer on request are considered in the light of Rule 226 of Indian Railway Establishment Code Vol.I which reads as follows :
'226. Transfers : Ordinarily, a railway servant shall be employed throughout his service on the railway or railway establishment to which he is posted on first appointment and shall have no claim as of right for transfer to another railway or another establishment. In the exigencies of service, however, it shall be open to the President to transfer the railway servant to any other department or railway or railway establishment including a project in or out of India. In regard to Group C and Group D railway servants, the power of the President under this rule in respect of transfer, within India may be exercised by the General Manager or by a lower authority to whom the power may be re-delegated.
Railway Ministry's decision : Request from railway servants in Group C and D for transfer from one railway to another on grounds of special cases of hardships may be considered favrouably by the railway administration. Such staff transferred at their request from one railway to another shall be placed below all existing confirmed and officiating staff in the relevant grade in the promotion group in the new establishment, irrespective of date of confirmation or length of officiating service of the transferred employees.'
8. In view of the critical situation prevailing in Southern Railway in the matter of Manpower and Safety issues, the issue of railway transfers was examined and the same was referred to Railway Board who in turn have advised this railway to decide the same at GM's level. Accordingly, it is decided in terms of provisions contained in Para 124 of Indian Railway Establishment Code Vol.I that registration of transfer requests in the case of both Assistant Station Master and Assistant Loco Pilot categories, including inter-railway and inter-divisional transfers would be after completion of 5 years in the working post after training. A further reference made to Chief Personnel Officer, Southern Railway, Chennai regarding minimum service conditions stipulated in case of inter-divisional transfer it has been advised by letter No.P(S) 676/VI/IDT/ALP/Divn. Dated 23.12.2015 that inter-divisional transfer of Assistant Loco Pilot may be considered after completion of one year of service.
9. It is submitted that the applicants will be considered for inter- divisional one way transfer as per priority maintained in Trivandrum Division. Inter-divisional request transfer of employees are allowed only in the initial recruitment grade (or) in such intermediate grade in which there is an element of direct recruitment. The request of applicants in the O.A and 40 other employees of Salem Division who have registered for inter- divisional transfer were forwarded to Trivandrum Division by Divisional Personnel Officer, Salem Division by letter No.SA/P 676/VI/IDT/ALP/Vol.VI/TVC dated 15.12.2014. The priority of the applicants maintained at Salem Division for inter-divisional transfer is 34 and 36 respectively. It is submitted that applicants alone are not the registrants for transfer to Trivandrum Division. There are such registrations from other Divisions also and hence consideration of the applicants request is based on the priority being maintained at Trivandrum Division. More over the registrants for inter-divisional transfer can be considered against direct recruitment quota and again it is subject to availability of vacancies under the quota. It is submitted that inasmuch as process of recruitment, initial training, road learning take considerable period of time, a new recruit candidate will be available for working in a post as an independent entity after all these stages and on successful completion of such training. The issue has been examined in entirety, taking into account the necessity of the safe and secure operation of the essential and vital transport need to be catered to general public by the Railway and also the aspiration of the candidate joining the Railways in this important category to get posted to their home towns.
10. Respondent contests the argument of applicants that irrespective of their priority vis-a-vis persons belonging to general category, the applicants are to be considered for inter-divisional transfer against direct recruitment SC vacancies, since transfers are being considered from the date of registration for request transfer and not against communal reservation. It is further submitted that request transfers are allowed from one seniority unit to another on bottom seniority in grades having direct recruitment quota/posts subject to the condition that the employee requesting transfer fulfills the qualification prescribed for direct recruitment quota. By adjusting applicants against communal quota the bottom seniority principle would be lost and applicants given accelerated seniority against reserved points which negates the principle of inter-divisional transfer on bottom seniority. Applicants have already availed reservation benefit in the recruitment division. The condition for inter-divisional transfer is on bottom seniority and any principle applied will otherwise adversely affect the seniority of those originally recruited to the Division. Applicants have already earned and availed communal reservation on recruitment in the original division. Thereafter they can only be adjusted on transfer by choice to bottom seniority. Request transfer of a Government servant, argues respondents, is not a fundamental right, it is only civil right. Hence the applicants cannot claim that there is violation of fundamental rights under Article 14 & 16 of Constitution of India.
11. As per the directions of this Tribunal dated 8.12.2016 a counsel statement has been filed by the counsel for the respondents clarifying the priority position of the applicants in the Trivandrum Division and their chance of getting transfer against SC/ST quota. 1 st and 2nd applicants have been registered for inter-divisional transfer on request in Trivandrum Division against Sl.No.178 and 180 respectively in general seniority list. There are 4 other SC employees who have registered for inter-divisional own request transfer to Trivandrum Division prior to the applicants and they have been assigned Sl.Nos.158 to 161 in the inter-divisional seniority list. Hence respondents argue that seniority SC/ST quota is also not met by applicants.
12. Counsel for the applicant contests this by arguing that as early as on 27.11.2015 this Tribunal passed an interim order directing the respondents to keep two vacancies of Assistant Loco Pilots (SC vacancy), unfilled provisionally and subject to the final outcome of the O.A. However, such an order can not be operated to the detriment of other SC community persons who have registered themselves on a date prior to applicants nor does the interim order say so. The applicants may categorically say that there were vacancies meant for SC employees as on the date of filing of the O.A and there are vacancies even now. By keeping two posts vacant as requested by applicants, the Tribunal never intended to give undue advantage of bypassing those registered above applicants in the inter- divisional request transfer or quashing the Government of India position that persons seeking inter-divisional transfer in any Government department would be on the basis of bottom seniority assigned as and when transfer is effected. The applicants' case is not one where they were denied reservation quota. They have already availed benefit of reservation quota in the Division of recruitment, and in a choice exercised inter-divisional transfer, applicants are required to abide by the bottom seniority principle applicable to all, failing which those who have been recruited in the Division of Transfer and expecting a promotion in turn will be constantly pushed down by inter-divisional transferees claiming a second reservation quota, having availed the first reservation quota in the Division of recruitment. Such a position of depressing established seniority of the Division was never intended when inter-divisional transfer facility was created.
13. We are aware that inter-divisional transfer is a permanent feature, as persons desiring to return to their home stations will always be wait listed. A long or permanent stoppage of direct recruitment quota is not advisable as DR input is necessary in every service. We are also inclined to agree to the request of the counsel for the applicant that the direct recruitment to the quota against which inter-divisional transferees are proposed to be adjusted may be temporarily stopped, not indefinitely, but for a short period to be decided by the respondents, till inter-divisional request transferees are accommodated as per their date of request for transfer.
14. O.A is disposed of as directed above. No costs.
(Dated this the 3rd day of April 2017)
(P.GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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