IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 OP (CAT).No. 2759 OF 2011(Z) ---------------------------- OA.914/2010 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONERS ------------------- 1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3. 2. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. 3. THE DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, MADURAI DIVISION, MADURAI. 4. THE DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, SALEM DIVISION, SALEM. 5. THE SENIOR DIVISIONAL MECHANICAL ENGINEER, TRACTION DISTRIBUTION, SOUTHERN RAILWAY, SALEM DIVISION, SALEM. 6. THE CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3. 7. THE CHIEF CREW CONTROLLER, SOUTHERN RAILWAY, ERODE JUNCTION, ERODE. BY ADV. SRI.N.B.SUNIL NATH,SC, RAILWAYS SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE RESPONDENTS: --------------- 1. V.DINAKARAN, ASST. LOCO PILOT, OFFICE OF THE CHIEF CREW CONTROLLER/SOUTHERN RAILWAY/ERODE/SALEM DIVISION. PERMANENT ADDRESS: NO.3/155, VELLAKOVIL STREET, KEELA ILATHAIKULAM, THACHANALLUR POST, TIRUNELVELI DISTRICT, TAMIL NADU, PIN-627 358. O.(CAT) 2759/2011 2 2. O.M.KAMARAJ, ASST. LOCO PILOT, OFFICE OF THE CHIEF CREW CONTROLLER/SOUTHERN RAILWAY/ERODE/SALEM DIVISION. PERMANENT ADDRESS: PLOT NO.145, TRANSPORT NAGAR, P.T.C.POST, MADURAI, TAMIL NADU, PIN-625 022. 3. M.ARUNACHALAM, ASST. LOCO PILOT, OFFICE OF THE CHIEF CREW CONTROLLER/SOUTHERN RAILWAY/ERODE/SALEM DIVISION. PERMANENT ADDRESS: 1/42, SORISPURAM, KORAMPALLAM P.O., TUTICORIN DISTRICT, TAMIL NADU, PIN-628 101. 4. E.IYYANARMOORTHY, ASST. LOCO PILOT, OFFICE OF THE CHIEF CREW CONTROLLER/SOUTHERN RAILWAY/ERODE/SALEM DIVISION. PERMANENT ADDRESS: 1/65, NORTH SHANMUGAPURAM, KURUMBUR, TUTICORIN DISTRICT, TAMIL NADU, PIN-628 207. 5. P.MUHILVANNAN, ASST. LOCO PILOT, OFFICE OF THE CHIEF CREW CONTROLLER/SOUTHERN RAILWAY/ERODE/SALEM DIVISION. PERMANENT ADDRESS: NO.5, MARIAMMAN KOVIL STREET, KOKKIRAKULAM, TIRUNELVELI DISTRICT, TAMIL NADU, PIN-627 009. THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 27.10.2011, THE COURT ON 04/11/2011, DELIVERED THE FOLLOWING: O.(CAT) 2759/2011 3 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 PHOTOCOPY OF O.A. NO. 914/2010 ALONG WITH ANNEXURES, PREFERRED BY THE RESPONDENTS HEREIN BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P2 PHOTOCOPY OF REPLY STATEMENT FILED BY THE RESPONDENTS IN O.A. NO. 914/2010 BEFORE THE CENTRAL ADINISTRATIVE TRIBUNAL, ERNAKULAM BENCH , ON 12.1.2011. EXT.P3 PHOTOCOPY OF ORDER DATED 5.4.2011 RENDERED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. RESPONDENTS' EXHIBITS: NIL. // TRUE COPY // P.S. TO JUDGE. KNC/- C.N. RAMACHANDRAN NAIR, Ag. C.J. & P.S. GOPINATHAN, J. = = = = = = = = = = = = = = = = = = O.P. (CAT) NO. 2759 OF 2011 = = = = = = = = = = = = = = = = = = DATED THIS, THE 4th DAY OF NOVEMBER, 2011. J U D G M E N T P.S. Gopinathan, J. Petitioners are the respondents in O.A. 914 of 2010 on the file of the Central Administrative Tribunal, Ernakulam Bench. Respondents are applicants before the Tribunal. Respondents were working as Assistant Loco Pilots in Palakkad Division of the Southern Railway. With effect from 1.11.2007, Salem Division was constituted and they became part of the establishment under the Salem Division. They applied for a transfer to Madurai Division. Their application was allowed vide Annexure A4 order issued from the Divisional Office, Madurai. It was approved by the head quarters office by Annexure A5 order. Again Annexure A6 order was issued by the Assistant Personnel Officer from Madurai Division with the approval of the competent authority. But the respondents were not relieved from Salem Division. As a result they could not join at Madurai Division. Respondents having opted for transfer to Madurai Division on their joining duty at Madurai, their seniority would be below the temporary and O.P. (CAT) 2759/2011 2 officiating Loco Pilots in Madurai Division. Consequent to Annexures A4 to A6, the respondents were vacated from the quarters. But they were not relieved. In the intermittent period, some of the Loco Pilots transferred simultaneously were relieved and they joined duty at Madurai Division. Since the seniority of the respondents in Madurai Division would be determined with effect from the date of joining duty, they repeated the request to the authorities to relieve them. But with no effect. With this plea, they approached the Tribunal below seeking a prayer to declare that the refusal on the part of the petitioners to relieve them is arbitrary, discriminatory, contrary to law and hence unconstitutional and also for a direction to assign them seniority with effect from the date of Annexure A6 order. 2. The Tribunal below, having heard and perusing the documents, arrived at a finding in favour of the respondents. Consequently, application was allowed and petitioners were directed to relieve the respondents so as to enable them to join at Madurai Division. Petitioners were also directed to assign seniority to the respondents with effect from the date of Annexure A6 order. Assailing the above order, this original petition was filed under Article 227 of the Constitution of India. O.P. (CAT) 2759/2011 3 3. We have heard Senior Advocate Smt. Sumathi Dandapani, standing counsel appearing for the petitioners and perused the records. 4. The fact that the respondents were transferred to Madurai Division as per Annexures A4 to A6 is not disputed. Though Annexure A6 is dated 31.3.2010, respondents were not so far relieved. According to the learned standing counsel, since there is dearth of Loco Pilots in Salem Division, respondents were not relieved. However, such an argument does not find any place in Annexures A4 to A6. Therefore, the argument is not entertainable. The contention of the respondents that some of their colleagues who were transferred simultaneously were relieved and they had taken charge at Madurai Division and they had already got their seniority from the date of their joining duty is not denied by the petitioners. Since the petitioners declined to relieve the respondents, the respondents would lose seniority at Madurai Division, if the contention of the petitioners is accepted. The explanation given by the learned standing counsel for not relieving the respondents is not at all convincing. If there was dearth of Loco Pilots in Salem Division, petitioners should not have issued Annexures A4 to A6 orders. At least it should have been mentioned there. In the event there were more applicants requesting for transfer to Madurai O.P. (CAT) 2759/2011 4 Division, it should have been processed in its order of seniority or priority as the case may be. But that was not done. However, some of the Loco Pilots transferred were relieved and they joined at Madurai and had, as stated earlier, got settled their seniority from the date of joining. Since the petitioners could not convince the Tribunal with good reasons for declining to relieve the respondents, the Tribunal had appropriately directed the petitioners to relieve the respondents without any further delay. Before us also, no good reason is given for not relieving the respondents. Therefore, we find no good reason to interfere with the order of the Tribunal directing the petitioners to relieve the respondents. 5. As regards the commencement of their service in Madurai Division according to the learned standing counsel, it would take effect only from the date of their joining duty. Learned counsel, in support of her argument, had canvassed our attention to the decision of the Tribunal in O.A. No. 64/2004 and connected cases. So also, the orders in O.A. 691/1997, O.A. 545/2008, O.A. 774/2009 and the judgment of the Madras High Court in W.P. ( C) 20542/2009 as well as the Circular 95/95 were produced. It is not disputed that the Madurai Division was recently constituted and on constitution of the Madurai Division, the respondents O.P. (CAT) 2759/2011 5 and others applied for transfer. No material was placed before us to show that the applications for transfer were considered with due regard to any of the guidelines issued by the petitioners. Since some of the Loco Pilots transferred were relieved earlier and allowed them to join duty from various Divisions and the respondents alone were retained, by the conduct of the petitioners, the respondents will be put to injustice because they would loose their seniority. Suppose an officer was ordered to be transferred on the first day of a month but not relieved; and his junior officer was transferred on the 10th day relieved on the next day and taken charge, the junior would get seniority over the senior officer. We cannot accept such a procedure. Learned standing counsel could not show any good reason for not framing guidelines or rules taking into account all these sorts of situations. Therefore, in this case, the order of the Tribunal is justified in directing the petitioner to give seniority to the respondents with effect from the date of Annexure A6 order. That direction is based on equity, good conscience, principle of natural justice and in tune with service jurisprudence though it deviated from the practice followed hitherto. The order of the Tribunal only protected the just right of the respondents without adversely affecting the right of any other officer. Determining O.P. (CAT) 2759/2011 6 seniority on the basis of transfer can no way be illegal. Such a procedure, if not adopted, would take away the right of the respondents to retain their legitimate seniority. We find no reason to interfere with order under challenge. In the result, the original petition is dismissed. No costs. Sd/- C.N. RAMACHANDRAN NAIR, (Ag. CHIEF JUSTICE) Sd/- P.S. GOPINATHAN, (JUDGE) KNC/-