IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWELFTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 23928 of 2008 Between: S.A. Khader Basha, S/o. S. Ghouse Mohiuddin, Wagon Work Shop, South Central Railways, Guntupally, Rayanapadu, Vijayawada, Krishna District. ..... PETITIONER AND 1 Union of India, Rep by the Secretary to Government, Ministry of Railways, Sanchalan Bhavan, New Delhi. 2 The South Central Railways, Rep by the General Manager, Rail Nilayam, Secunderabad. 3 The Workshop Personnel Officer, Wagon Workshop, Guntupally, Vijayawada. 4 The Senior Section Engineer (Electrical), Wagon Workshop, Guntupally, Vijayawada. 5 P.V. Subba Rao, S/o. and agae not known to the Petitioner Air Conditioning Mechanic Grade-I, Wagon Workshop, Guntupally, Vijayawada, Krishna District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a direction, order or direction more particularly one in the nature of Certiorari (1) calling for the relevant and connected record in connection with the order in Original Application No. 524 of 2007, dated 31-7-2008 on the file of the Learned Central Administrative Tribunal, Hyderabad and set aside the same in so far as not granting the relief to continue the petitioner as Air Conditioning Mechanic Grade-I (2) declare the action of the respondents in issuing proceedings No. GR/P.220/06, dated 19-10-2007 appointing the 5th respondent as Air Conditioning Mechanic Grade-I as arbitrary, illegal and unsustainable, (iii) consequently direct the respondents to continue the petitioner in the Air Conditioning side of the Workship and pass Counsel for the Petitioner:MR.SIVA Counsel for the Respondent No.: SMT.PUSHPINDER KAUR ORDER: (Per Sri Justice GHULAM MOHAMMED) This Writ Petition is filed in the nature of Certiorari to quash the order in O.A.No. 524 of 2007 dated 31.7.2008 on the file of the Central Administrative Tribunal, Hyderabad, and set aside the same in so far as not granting the relief to continue the petitioner as Air Conditioning Mechanic Grade-I and to declare the action of the respondents in issuing proceedings dated 19.10.2007 appointing the 5th respondent as Air Conditioning Mechanic Grade-I as arbitrary, illegal, unsustainable and consequently direct the respondents to continue the petitioner in the Air Conditioning side of the Workshop. O.A. was filed by the petitioner-applicant to declare the action of the respondents in treating the post of AC Mechanics as ex-cadre posts as arbitrary and violative of the Serial Circular NO. 164 of 2004 dated 30.9.2004 and quash the same as illegal. The Tribunal disposed of the O.A directing the respondents to take up a comprehensive review at a senior level of the need for continuing the posts of Air Conditioning Mechanic and other posts in the workshop at Guntupally as ex-cadre posts and the same should be completed within three months. Brief facts of the case are that the petitioner was engaged as a Casual Labourer in 1973 and was regularized as Khalasi on 16.9.1974. He was posted to the Wagon Workshop at Guntupalli in 1984. While he was working as a Helper in the Power side of the workshop, the respondents issued a notification calling for options from persons desirous of working in Air Conditioning Wing of the workshop. The applicant responded to the notification, was subjected to a trade test and on clearing the same, he was posted as Air Conditioning Mechanic Grade III effective from 18.12.1990. He earned further promotions as Air Conditioning Mechanic Grade II and Grade I on 16.8.1984 and 20.6.1997 respectively. He was also granted promotions in the power side and was promoted to Grade III on 6.5.1994, Grade II on 1.12.2000 and Grade I on 12.11.2006. The respondents issued a notification on 17.2.2007 calling for volunteers to work in various trades wherein the trade of Air Conditioning Mechanic Grade I was also included. The applicant did not respond to the notification but he submitted representation on 22.2.2007 requesting that he may be continued. Respondents did not reply to the representation but issued a further notice dated 28.4.2007 alerting the optees who responded to the notification dated 17.2.2007 that the trade test would be conducted on 20.7.2007. But the applicant submitted another representation dated 5.5.2007 that he had neither expressed his unwillingness to continue as Air Conditioning Mechanic Grade-I nor were there any complaints against him. This was rejected by the respondents through the impugned order on the ground that the applicant has been continued for the last 17 years and that the same is more than the tenure period of five years stipulated in CPO’s Sl. Circular No. 160/04. Accordingly, he filed O.A. Respondents filed counter stating that the posts of Air conditioning Mechanic Grade I and Air Conditioning Mechanic Grade II belong to the ex-cadre posts of Electrical Department. When the notification dated 6/7-9.1990 was issued calling for volunteers to work as Air Conditioning Mechanic Grade III, it was categorically mentioned therein that it was an ex-cadre post, that the lien of the employees will be maintained on power side and that they are eligible for promotions in power side also, as per their turn. It was also made clear that the pay of the employees on the ex-cadre posts will not be protected in case of reversion to their parent cadre. The applicant being fully aware of these conditions had volunteered for the posts and got his promotions as Air Conditioning Mechanic Grade II and as Air Conditioning Mechanic Grade I. When the Office Order No. 240/90 was issued to the applicant, it categorically stated that his promotion to the post of Air Conditioning Mechanic Grade III (ex-cadre) was subjected to the conditions stipulated in the notification dated 6/7-9-1990. He was continued in the ex-cadre post as Air Conditioning Mechanic Grade I due to exigencies of services, as sufficient qualified staff were not available in the lower category at that time. The applicant was also trade tested and promoted to the post of ELF Gr. III, ELF Gr. II and ELF Gr. I in 1994, 2000 and 2006 respectively. Respondents have contended that certain isolated posts which require specialization in the Electrical Department, viz., Cable pointer, Mechanical Fitter, Carpenter, Driver, etc., are treated ex-cadre posts because there is no scope of further promotion in the said posts. Hence, these posts are filled up on tenure basis by calling volunteers from the staff of Electrical Department. They have added that in accordance with the rules and consequent on reviewing the position, the Electrical cadre officer has taken a decision to repatriate the existing staff working in ex- cadre posts beyond the permissible tenure of five years. Accordingly, the applicant was repatriated back to his patent cadre as he was continued in the ex-cadre post beyond the tenure period and notification was issued on 17.2.2007 for filling up of nine ex-cadre posts in the Electrical Department. The Tribunal, as regards the plea taken by the respondents that the applicant has no right to continue as Air Conditioning Mechanic Grade I, in the Electrical Department because when he was originally appointed as Air conditioning Mechanic Grade III, he was fully aware of the conditions under which he was taken, held that there is no justification in his claim that he should be continued in ex-cadre post. It further held that the respondents have right to issue a fresh notification and when the notification was issued on 17.2.2007, the applicant did not apply and without applying the same, the applicant cannot claim a right to be continued as Air Conditioning Mechanic and directed the respondents to take up comprehensive review at a senior level of the need for continuing the posts of Air Conditioning Mechanic and other post in the workshop at Guntupally as ex-cadre post and the review should be completed within a period of three months from the date of receipt of a copy of the order. The learned counsel appearing for the petitioner relied on the circular dated 30.9.2004, which reads as under: “Copy of Board’s letter No. E (NG)1/2004/PM1/19 dated 27.8.2004 (RBE No. 191/04) Sub: Ex.Cadre posts in Group C & D-Procedure and procedure for filling up the same including duration of tenure, has been prescribed by the Board. These posts include the posts in Production Control Organization (PCO) in Workshops and Faculty Members in Training Centres. However, it has come to the notice of the Board that Railways themselves operate certain posts as ex-cadre without prescribing a proper procedure for filling up the same. This gives rise to complaints and at times even allegations of favoritism crop up. The matter has been considered by the Board. It has been decided to lay down the following guidelines: (i) Posts should be operated as ex-cadre only when it is inescapable I the exigency of service and with personal approval of CPO in consultation with PA & CAO (ii) Posts which should normally form part of the existing cadre should not be operated as ex-cadre. (iii) A comprehensive procedure regarding the method of filling up the ex-cadre post indicating the designation, scales or pay, staff eligible for managing the posts, qualifications, tenure, etc should be prescribed and the post filled up on a regular basis duly following the procedure so prescribed. (iv) In no case an ex-cadre post should be operated/filled without prescribing the method of filling up the same incorporating the relevant provisions as mentioned. (v) While prescribing the method for filling up an ex-cadre post care should be taken to ensure that it does not contain any provision which is inconsistent with or contrary to any provision/instructions laid down by the Board, e.g the extant procedure inter alia reuires that for each promotion a person should render a minimum of two years service in the immediate lower grade in which he should be working on a regular basis. (vi) In order to ensure that the staff selected for ex-cadre posts do not lose touch with the working of his parent post/cadre a reasonable tenure say not exceeding five years only be prescribed. (vii) Once the procedure for filling up the ex- cadre post has been prescribed there should be no deviation there from. CPOs and the HODs concerned should ensure that the above instructions are strictly adhered to.” By virtue of the above, the posts should be operated as ex-cadre only when it is inescapable in the exigency of service and with personal approval of CPO in consultation with PA&CAO and the posts which should normally form part of the existing cadre should not be operated as ex-cadre. He further contended that the very declaration itself treating the post as ex-cadre post is not proper and the guidelines issued in circular No. 164 of 2004 dated 30.9.2004 has not been implemented in letter and spirit. Though the Tribunal had directed to undertake review, the authority should have continued the petitioner. It is contended that the Tribunal has erred in not directing the petitioner to continue in the existing cadre. On the other hand, the learned Standing counsel contended that the petitioner has not even complied with the conditions of the notification. When once he accepted the offer with certain conditions, which are very clear and categorical and inasmuch as those conditions are there, he has no right to continue in the post. During the period when none-else was there he was continued and there is no legal or enforceable right which is infringed so as to direct him to continue in the said post. We have also perused the circular dated 30.09.2004. Clause (vi) of the Circular says that in order to ensure that the staff selected for ex-cadre posts do not lose touch with the working of his parent post/cadre a reasonable tenure not exceeding five years. On the last occasion, we directed the learned Standing Counsel to take necessary instructions with regard to the last portion of the directions where the Tribunal directed to undertake a comprehensive review of the staff position, he brought to our notice the letter dated 11.11.2008 which reads as under: “ As per the judgment in the said case, the Hon’ble Court directed the respondents to take up a comprehensive review at a senor level of the need for continuing the post of Air Conditioning Mechanic and other posts in this workshop as Ex-cadre post within a period of three months from the date of receipt of a copy of this order. However, the case has been put up to the competent authority and a decision is awaited in this case.” A copy of the judgment has been received by them on 1.11.2008. In the circumstances, we do not find any infirmity or illegality or error of jurisdiction with the impugned order passed by the Tribunal warranting interference under Article 226 of the Constitution of India. When once the petitioner is relying on Circular No. 164 dated 30.9.2004 he cannot take advantage of one portion and ask the authority to ignore the other portion, which is disadvantageous to him. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. _____________________________ GHULAM MOHAMMED, J ___________________________ G. BHAVANI PRASAD, J Dt. 12.11.2008 KA ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1. 2CD copies