IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 WP(C).No. 21664 of 2007(S) -------------------------- OA.233/2006 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: --------------- K.C.CHAMI, STAFF NO.32, BRICKLAYER, SOUTHERN RAILWAY, QUILANDI, KOZHIKODE DISTRICT. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENTS: --------------- 1. THE UNION OF INDIA, REPRESENTED BY SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF RAILWAYS, NEW DELHI. 2. SOUTHERN RAILWAY, REPRESENTED BY ITS GENERAL MANAGER, CHENNAI. 3. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALAKKAD. 4. THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, ERNAKULAM. ADV. SRI.B.JAYASANKAR, SC, RAILWAYS FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.21664/2007 APPENDIX PETITIONER'S EXTS: EXT.P1: COPY OF ORIGINAL APPLICATION NO.233/2006 ALONG WITH ANNEXURES ON THE FILE OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P2: COPY OF ORDER DT.23.4.2007 IN O.A.NO.233/2006 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & M.L. JOSEPH FRANCIS, JJ. ---------------------------------------- W.P.(C) No. 21664 OF 2007 ---------------------------------------- Dated this the 6th day of February, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The writ petitioner is the applicant in O.A.No.233/2006. He filed the Original Application before the Central Administrative Tribunal, Ernakulam Bench, seeking the following reliefs: “(a) an order declaring that the applicant is entitled to be absorbed in the service of the respondents as Bricklayer. (b) directing the respondents to absorb the applicant as Bricklayer and pay to him the pay and allowances due to him as Bricklayer for the period during which he had worked as Bricklayer and grant to him all consequential monetary and other benefits.” 2. The brief facts of the case are the following: The petitioner was appointed as a casual labourer under the Railways on 21.6.1978. He was working as a Briklayer. On 21.8.1980, he acquired temporary status in that post. He was treated as a skilled worker having temporary status. The W.P.(C) No.21664/2007 2 applicant worked as a skilled labourer up to 20.2.1982. He was appointed as a Gangman, which is a Group 'D' post on 21.1.1989 and he joined duty also. In the meantime, his claim for absorption in the Group 'C' post of skilled worker, Bricklayer, was also considered. He cleared the trade test for the same and he was appointed, in the 25% quota set apart for such employees, on 27.2.1989. Later, realising that he has already joined the group 'D' post of Gangman, his appointment as Bricklayer was cancelled by order dated 6.3.1989. The respondents would submit that the order appointing him as Bricklayer on 27.2.1989 and the order cancelling that appointment on 6.3.1989 were not served on the applicant. 3. The applicant on the strength of his service as Bricklayer claimed regularisation in that post by filing Annexure- A6 representation. Since the same was not considered, the Original Application was filed seeking the above reliefs. The Tribunal dismissed the application by Ext.P2 order. Hence this writ petition challenging Ext.P2. W.P.(C) No.21664/2007 3 4. The Tribunal proceeded on the footing that there is no material on record to show that the applicant ever worked as Bricklayer and therefore his claim for regularisation in that post cannot be allowed. But, respondents would submit that though he was eligible he was not appointed because he failed to relinguish his appointment as Group 'D' Gangman and chose to join duty in that post on 21.1.1989 and thereafter he is ineligible to be considered for absorption as bricklayer. 5. From the facts mentioned above, it is common case that he was eligible to be absorbed as Bricklayer, but for his absorption as Group 'D' Gangman on 29.1.1989. Normally, if an employee opts to join a post by absorption or promotion through one channel and when his turn for promotion or absorption through another channel also comes, he is given liberty to opt the channel which is favourable to him, by virtue of his lien in the lower post. This concept, familiar in all services, if applicable to the Railways also, we feel that joining the post of Gangman and working in that post for about one month should not defeat the claim of the applicant to join the post of skilled worker (Bricklayer). But, W.P.(C) No.21664/2007 4 since there are not pleadings or materials to decide the point, we feel that the Original Application should be remitted to the C.A.T. for fresh consideration of the above point. Accordingly, we set aside Ext.P2 order of the C.A.T. and remit the matter to the Tribunal for fresh consideration of it, in accordance with law. The parties will be free to place their pleadings and materials on the above point. The Tribunal shall endeavour to dispose of the matter, as expeditiously as possible, preferably within five months from the date of production of a copy of this judgment. The writ petition is allowed as above. (K.BALAKRISHNAN NAIR, JUDGE) (M.L. JOSEPH FRANCIS, JUDGE) ps