IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 WP(C).No. 32848 of 2005(S) -------------------------- OA.609/2002 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: --------------- N.C.AYYAPPAN, SON OF CHATHAPPAN, KINATTUPARAMBIL VEEDU, EROOR PO-782 306 FROM VELIPPARAMBIL, TRIPPUNITHURA, WORKING AS TRAFFIC PORTER, IRUMPANAM YARD, TRIPPUNITHURA, SOUTHERN RAILWAY. BY ADV. SRI.B.GOPAKUMAR SMT.CHINCY GOPAKUMAR RESPONDENTS: --------------- 1. UNION OF INDIA REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS-3. 2. DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, THIRUVANANTHAPURAM. 3. DIVISIONAL PERSONNEL OFFICER, DIVISIONAL OFFICE, SOUTHERN RAILWAY, THIRUVANANTHAPURAM. ADV. SRI.N.B.SUNIL NATH,SC, RAILWAYS FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/1/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P(C) 32848 OF 2005 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF ORDER IN O.A. 609/2002 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH DT. 28.2.2005 EXT.P2: -DO- OPF ORIGINAL APPLICATION 609/2002 BY THE APPLICANT FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL DT. 30.6.2002 EXT.P3: -DO- OF MEMORANDUM NO: V.R.521/I/IV/OC/RSRP DT. 23.10.1986 OF SOUTHERN RAILWAY EXT.P4: -DO- OF LETTER DT. 24.4.91 VIDE NO: V/P.536/II/CHANGES DT. 24.4.91 (D.O.NO:T.53/91/GR.D) OF SOUTHERN RAILWAY EXT.P5: -DO- OF LETTER BY PETITIONER TO DRM/TVC DT. 1.3.1997 EXT.P6: -DO- OF LETTER BY PETITIONER TO DRM/TVC DT. NIL EXT.P7: -DO- OF LETTER NO: P(R)524/FIXATION/VOL.II DT. 5.8.1992 jj /TRUE COPY/ P.S. TO JUDGE K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------------------------------------------------------------------ W.P(C) NO: 32848 OF 2005 ----------------------------------------------------------------------------------- Dated this the 15th January, 2009. JUDGMENT BALAKRISHNAN NAIR, J. The petitioner was a casual employee under the engineering department of the railways. He was regularised in the post of gangman with effect from 15.10.1979. He was deputed to work in Iraq through RITES, which is another wing of the railways in 1988. He returned and rejoined the traffic department as sweeper-cum- porter with effect from 8.2.1991. The petitioner's transfer to traffic department was treated as a request transfer and therefore, seniority position assigned to him was as junior to the juniormost in the traffic department in the cadre of sweeper-cum-porter. The basic pay drawn by him was also not protected. Highlighting these grievances, after exhausting the statutory remedies, the petitioner approached the Central Administrative Tribunal. The Tribunal dismissed the original application by Ext.P1 order. Hence this writ petition challenging Ext.P1. 2. Since the Central Administrative Tribunal found that the appointment of the petitioner in the traffic department was on his WPC 32848/2005 2 own application based on the documents produced by the railways, petitioner did not seriously contest that point before us. We feel that it was rightly done as it is essentially a finding of fact which this Court cannot disturb under Art.226 of the Constitution of India. But regarding the second claim concerning protection of his pay, the petitioner relies on Ext.P7 produced by him along with I.A 3970/2008. 3. Though the respondents have filed a counter affidavit subsequent to the filing of that I.A, they have not chosen to mention anything about his claim made relying on Ext.P7. Going by Ext.P7 employees who are transferred to another department on their request to a post in the same grade or lower grade is entitled to get pay protection provided the pay drawn does not exceed the maximum of the pay and the grade to which he is transferred. The petitioner submits that at the time of transfer the scale of pay of sweeper-cum-porter was Rs. 750-940. The pay drawn by him in the post of gangman was lower than the maximum of the scale of pay of Rs.750-940. Therefore, he is entitled to get protection of Ext.P7, it is submitted. 4 Having regard to the facts of the case, we feel that the above claim of the petitioner should be considered by the WPC 32848/2005 3 competent authority among the respondents. Accordingly writ petition is disposed of directing the second respondent to consider the claim of the petitioner for pay protection in the light of Ext.P7 within three months from the date of production of a copy of this judgment. Needless to say, his claim for protection has to be considered with reference to the date he joined in the post of sweeper-cum-porter. 5. The petitioner may produce a copy of this judgment before the second respondent along with a copy of Ext.P7. Writ petition is disposed of as above. K.BALAKRISHNAN NAIR Judge K. SURENDRA MOHAN Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: