IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930 OP.No. 31680 of 2001(S) ------------------------------------ PETITIONER: --------------------- P.SOMARAJAN, AGED 48 YEARS, S/O.PADMANABHAN, SENIOR TRACKMAN, OFFICE OF THE SENIOR SECTION ENGINEER, (PERMANENT WAY), SOUTHERN RAILWAY, TRIVANDRUM, RESIDING AT: NO.T/C17/765, MELETHIL HOUSE, CHATHRAKONAM LANE, POOJAPURA,TRIVANDRUM. BY ADV. SRI.T.C.GOVINDA SWAMY SRI.K.M.ANTHRU SRI.MARTIN G.THOTTAN SRI.MANNATIL KUMAR SRI.K.JAYAKUMAR (RAVIPURAM) RESPONDENTS: -------------------------- 1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN P.O., CHENNAI – 3. 2. THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM. Kss ..2/- ...2..... O.P.NO.31680/2001 S 3. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION, TRIVANDRUM. 4. THE CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN P.O., CHENNAI – 3. 5. P.PARAMESWARAN PILLAI, BALLAST TRAIN CHECKER, SOUTHERN RAILWAY, TRIVANDRUM THROUGH THE 3RD RESPONDENT. 6. THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, REPRESENTED BY ITS REGISTRAR. BY ADV. SRI.T.S.RAJAN, SC, RAILWAYS SRI.N.ANIL KUMAR, SC, RAILWAYS SMT.M.R.SREELETHA, SC, RAILWAYS THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 26/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.51704/2001 IN O.P.NO.31680/2001 S DISMISSED 26/03/2008 SD/-K.BALAKRISHNAN NAIR, JUDGE SD/- P.N.RAVINDRAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER IN O.A.NO.769/2001 DTD. 4/09/2001 OF THE CAT/ERNAKULAM BENCH. EXT.P2: COPY OF THE O.A.NO.769/2001 WITH ITS ANNEXURES. EXT.P3: COPY OF THE RELEVANT PORTION OF RAILWAY BOARD ORDER BEARING NO.99/E(RRB) 25/2 DTD. 18/03/1999 ISSUED BY THE RAILWAY BOARD. EXT.P4: COPY OF THE LETTER NO.V/P 535/I/MISC./OUTDOOR/ VOL.IV DTD. 31/05/2001. /TRUE COPY/ P.A.TO JUDGE Kss K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Original Petition No. 31680 of 2001-S ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 26th day of March, 2008 J U D G M E N T BALAKRISHNAN NAIR, J. The petitioner was the applicant in O.A.No.769/2001. Respondents herein were the respondents in that O.A.. The petitioner filed Ext.P2 original application challenging Annexure A8 order by which the fifth respondent has been selected for appointment to the post of Supervisor Permanent Way, pursuant to Annexures A4 and A5 notifications. The petitioner was also an applicant for the same. He was having all the requisite qualifications also. Though he was considered for selection, he did not find a place in Annexure A8 because the fifth respondent herein was included in it. According to the petitioner, the fifth respondent was a Bellast Train Checker. In otherwords, he was not in the feeder category of Senior Trackman. So he was ineligible to be considered for selection to the post of Permanent Way Mistry (Supervisor) and the petitioner is excluded only because the fifth respondent is included, it is submitted. The O.P.No.31680/2001-S -: 2 :- Tribunal dismissed the original application in limine. The respondents did not even file a counter affidavit. The aggrieved petitioner has prepared this writ petition. 2. The only point that was canvassed before us is that the fifth respondent was not a Trackman and, therefore, he not being in the feeder category, his claim ought not have been considered. It is a common case that the fifth respondent was a Senior Gangman which is presently re-designated as Senior Trackman. But, according to the petitioner, the fifth respondent was selected and appointed following the due procedure as Bellast Train Checker, therefore, he was no longer in the feeder category and so his consideration was illegal. The petitioner also contended that the Bellast Train Checker became an ex-cadre post of Senior Gangman/Senior Trackman only on the issuance of Annexure A9, dated 30/06/2000 and going by Annexures A4 and A5 notifications, the qualifications of the candidates has to be reckoned with reference to 10/05/2000. So, on the strength of Annexure A9, which was issued only on 30/06/2000, the fifth respondent cannot claim that he is in the feeder category. 3. The official respondents have filed a counter affidavit and also an additional counter affidavit. The respondents O.P.No.31680/2001-S -: 3 :- contended that the fifth respondent was appointed in 1988 as Bellast Train Checker treating the same as an ex-cadre post. He was never regularised as a Bellast Train Checker. He always has his lien in the post of Senior Gangman/Senior Trackman. Therefore, he was rightly considered and selected. 4. The learned counsel for the appellant/writ petitioner relied on two judgments of the Central Administrative Tribunal in O.A.No.305/1991 and O.A.No.1606/1997 to contend that in the Thiruvananthapuram Division of the Railways, the Bellast Train Checker was treated as a cadre post. Learned counsel also relied on a seniority list of Bellast Train Checker published on 01/03/1993, in which the fifth respondent is shown as Serial No.2. The learned counsel for the respondents submitted that in the Thiruvananthapuram Division of the Southern Railways for quite sometime, the post of Bellast Train Checker when filled up by Senior Trackman/Senior Gangman the same is treated as an ex-cadre post of the latter. She also relied on the seniority list of Bellast Train Checker published on 22/04/1996 which would show that the fifth respondent and two others were shown as ad hoc promotees to the post of Bellast Train Checker. It is specifically stated therein that only when they are promoted on O.P.No.31680/2001-S -: 4 :- regular basis they will be included in seniority list of Bellast Train Checkers. 5. We considered the rival contentions and also the materials on record. We notice that there is cadre post of Bellast Train Checker in the railways in Thiruvananthapuram Division. But the question is when Senior Trackman/Senior Gangman is posted in that post, whether it should be treated as an appointment to an ex-cadre post or a regular post. The learned counsel for the respondents handed over a copy of the order appointing the fifth respondent as Bellast Train Checker which shows that the fifth respondent was treated as appointed in an ex-cadre post or as an ad hoc appointee. If he is an ad hoc appointee, then he must be having lien in his cadre post of Senior Gangman. So, going by the materials on record, including the seniority list of Bellast Train Checker published on 22/04/1996, a copy of which was handed over to us by the learned counsel for the petitioner, the view taken by the official respondents that the fifth respondent was retaining his lien in the post of Senior Gangman cannot be said to be illegal. If that be so, we find nothing illegal or irregular with his inclusion in Annexure A8. So, the impugned judgment in the O.A has to be upheld. We O.P.No.31680/2001-S -: 5 :- agree with the reasons and conclusions therein. In the result, the writ petition fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (P.N.RAVINDRAN, JUDGE) ms O.P.No.31680/2001-S -: 6 :- K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Original Petition No. 31680 of 2001-S ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ J U D G M E N T 26th March, 2008