R. Gunasekar v. The Senior Divisional Personnel Officer Southern Railway & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 02..4..2008Coram: The Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW. P. No. 12759 of 2004andW.P.M.P. No. 14865 of 2004R. Gunasekar... Petitioner-vs-1.The Senior Divisional Personnel OfficerSouthern RailwayPark Town, Chennai2.The Divisional Railway ManagerSouthern RailwayChennai DivisionChennai3.Union of IndiaRep. by the General Manager Southern RailwayChennai DivisionChennai4.The RegistrarCentral Administrative TribunalChennai – 104... RespondentsPetition under Article 226 of the Constitution of India praying to issuea writ of Certiorarified Mandamus calling for the records on the file of the Tribunal in O.A. No. 905 of 2002 dated 20.3.2003, quash the same and direct the first respondent to retransfer the petitioner to the post of Goods Driver by protecting his seniority from the original date of promotion ie., 24.01.1997 with all consequential and attendant benefits. For Petitioner : Mr. G. ThiyagarajanFor Respondents 1-3: Mrs. Litta Srinivasan https://hcservices.ecourts.gov.in/hcservices/ ORDER(Order of the Court was made by K. CHANDRU, J.)Heard the arguments of Mr. G. Thiyagarajan, learned counsel appearing for the petitioner and Mrs. Litta Srinivasan, learned counsel representing the respondents 1 to 3 and perused the records.

The writ petition was admitted on 30.4.2004 and in the stay application, only notice was ordered by this Court.

The petitioner herein filed the original application before the fourth respondent Central Administrative Tribunal [CAT] in O.A. No.905 of 2002 challenging the order dated 12.3.2002 passed by the first respondent, the order dated 24.6.2002 passed by the third respondent and the order dated 20.8.2002 passed by the first respondent. He also wanted retransfer to the post of Goods Driver with consequential benefits.

The petitioner was working as an Assistant Driver in the Southern Railway from 26.6.1987 and was promoted as a Shunting Driver on01.8.1995 in the pay scale of Rs. 4000 – 6000. He was further promoted as a Goods Driver on 21.6.1996 in the pay scale of Rs. 5000 – 8000. Hemade a request to revert him as a Shunter citing personal reasons due to family problems. The petitioner's request was considered and he was reverted to the lower post of Shunter and posted at Jolarpettai. Healso sought for pay protection consequent on his reversion. By an order dated 04.4.2000, the said request was allowed and due tore version, his pay was also protected as a personal pay. Subsequently, when applications were called for to the post of Driver, the petitioner also participated in the selection but he was not selected. Though he made several representations, he could not succeed and, therefore, he moved the Tribunal for the relief as set out already.

The contentions raised by the petitioner before the CAT was that his transfer to the lower post was not in accordance with Rule 312of the Indian Railways Establishment Manual (IREM). Though he was reverted to the lower post on request, he had a lien over the GoodsDriver post and he cannot be asked to undergo any fresh selection.

On behalf of the respondents 1 to 3, it was contended that solong as the petitioner had not challenged the order of reversion, he cannot now make a grievance about the same. In fact, the petitioner due to family circumstances, voluntarily sought for a reversion and sucha reversion can be considered as a transfer at request, which is also covered by Rule 312 of the IREM. The pay protection was given to him in terms of the Railways Ministry's circular dated 04.10.1994.

The CAT held that the posts of Shunter, Goods Driver and Passenger Driver belong to the same cadre though one post may be higher https://hcservices.ecourts.gov.in/hcservices/ than the other. Though the petitioner was not transferred involuntarily, his request for lien in the post of Goods Driver as well as pay protection was denied to him by a specific order dated 04.4.2000.In the absence of the petitioner challenging the said order, he cannot attack the said order collaterally. The CAT also held that the petitioner was estopped from seeking retransfer on the plea that all the posts belong to the same cadre. It also further held that the plea of the petitioner that he had held the post of Goods Driver for more than three years and he should be restored to the said post, cannot have any legal basis. It also held that the panel prepared vide order dated24.6.2002 had already expired and if he wants the said post, he has togo through the selection process all over again. It is against the dismissal of the Original Application by the CAT vide order dated30.3.2003, the present writ petition has been filed.

A counter affidavit has been filed on behalf of respondents 2and 3 reiterating the stand of the Railways as projected before the CAT.The following passage found in paragraph 3 of the counter may be usefully reproduced below:-".... The Divisional Railway Manager, considering thepetitioner's representation vide office order No. M/P[1E]LRG/26/2000 dated 4.4.2000, the petitioner was reverted as Shunter in scale of Rs.4000 – 6000 and retained at Jolarpet and his pay on reversion was protected in accordance with Railway Board's letter No. F[E]11 /91/Misc./2 dated 20.8.1999. Before the request for transfer to the lower post was received from the applicant, a selection notice dated 16.11.99 for the post of Passenger Driver was issued. While his request was being considered, the applicant was also called for and attended the selection, which consisted of viva voce on18.3.2000. The petitioner had not qualified to the post of Passenger Driver. Subsequently, the petitioner made arepresentation on 19.2.2001 requesting for a transfer back to the post of Goods Driver from which post he was reverted at his request on 4.4.2000. The request of the applicant for re-promotion as Goods Driver was examined by the Chief Personnel Officer and the same was not agreed toin view of the provisions contained in paragraph 224 of the Indian Railway Establishment Manual, which stipulates that an employee who has refused promotion can be promoted again subject to continued validity of the panel in which he is borne; otherwise, he will have to appear again in the selection and further also on the ground that there version was sought at his own request after having working as a Goods Driver for more than three years during which period, the validity of the panel also expired. " https://hcservices.ecourts.gov.in/hcservices/

Apart from referring to the counter affidavit filed by the Department, Mrs. Litta Srinivasan, learned counsel appearing for the Railways, also referred to Rule 220 of the IREM so as to prove that the life of the panel prepared by the competent authority is only for two years or till the names are exhausted whichever is earlier and, therefore, the petitioner's submission that he should be posted as aPassenger Driver cannot be accepted. Even the petitioner's further request that he should be posted as a Goods Driver also cannot be accepted since the reversion was sought for voluntarily by him.

Except reiterating the very same contentions addressed before the CAT, the learned counsel for the petitioner is not able to make out any case for interfering with the order of the CAT. Therefore, we haveno hesitation in rejecting the contentions made on behalf of the petitioner. The order of the CAT under challenge does not call for any interference. Accordingly, the writ petition will stand dismissed. However, there will be no order as to costs. ConnectedMiscellaneous Petition is closed. Sd/Asst. Registrar/true copy/Sub Asst. RegistrargriTo1.The Senior Divisional Personnel OfficerSouthern RailwayPark Town, Chennai2.The Divisional Railway ManagerSouthern RailwayChennai Division, Chennai3.Union of IndiaRep. by the General Manager Southern RailwayChennai Division, Chennai4.The RegistrarCentral Administrative TribunalChennai – 104.la (co)krd / 18.6.08 W. P. No. 12759 of 2004