IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 OP.No. 6796 of 2002(S) ---------------------- OA.617/2001 of CENTRAL ADMINISTRATIVE TRIBUNAL,COCHIN BENCH .................... PETITIONERS: ------------ 1. M.K.SURESH, AGED 31 YEARS, S/O. M.K.KANDAN, SENIOR CLERK (ELECTRICAL BRANCH), DIVISIONAL OFFICE, SOUTHERN RAILWAY, PALGHAT, PERMANENT ADDRESS: MANIYANTHARAYIL HOUSE, PANANGAD P.O., ERNAKULAM. 2. K.A.PRIYA, AGED 30 YEARS, W/O. M.R.NANDAKUMAR, SENIOR CLERK, O/O. SECTION ENGINEER (ELECTRICAL), SOUTHERN RAILWAY, SHORNUR, RESIDING AT: KALLATUVALAPPIL HOUSE, PERINGANDOOR, THRISSUR-680 581. 3. T.VIJAYALAKSHMI, AGED 37 YEARS, W/O. RAMANATHAN, SENIOR CLERK(ELECTRICAL BRANCH), TRACTION DISTRIBUTION, DIVISIONAL OFFICE, SOUTHERN RAILWAY, PALGHAT, RESIDING AT: 296 A, NORTH COLONY, PALGHAT-9. 4. A.C.JAYACHANDRAN, AGED 33 YEARS, S/O. P.C.RARICHAN,SENIOR CLERK (ELECTRICAL BRANCH) ELECTRICAL LOCO SHED, SOUTHERN RAILWAY, ERODE, PERMANENT ADDRESS: AMMAYARA CHAWL, KAVILUMPARA P.O., KOZHIKODE. BY ADV. SRI.T.C.GOVINDA SWAMY SRI.K.M.ANTHRU RESPONDENTS: ------------- 1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O., MADRAS-3. OP NO.6796/2002 2. THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. 3. THE ADDITIONAL DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. 4. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. 5. MS. K.T.GEETHA, SENIOR CLERK (ELECTRICAL BRANCH), TRACTION DISTRIBUTION, DIVISIONAL OFFICE, SOUTHERN RAILWAY, PALGHAT. BY ADV. SRI.VARGHESE P.THOMAS, SR.SC,RAILWAYS SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.S.VISHNU THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP 6796/2002 APPENDIX PETITIONERS' EXTS. EXT.P1 - TRUE COPY OF THE ORDER DATED 23RD JULY 2001 IN O.A. NO.617 OF 2001 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P2 - TRUE COPY OF THE ORDER DATED 1ST FEBRUARY, 2002 IN R.A.NO.29/01 IN O.A.NO.617/2001 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P3 - TRUE COPY OF THE ORIGINAL APPLICATION FILED BY THE PETITIONERS IN O.A.NO.617 OF 2001 ALONG WITH ITS ANNEXURES. EXT.P4 - TRUE COPY OF THE REVIEW APPLICATION NO.29/22001 IN O.A.NO.617/01 (LESS ANNEXURES) RESPONDENTS' EXTS. EXT.R5(1) – TRUE COPY OF ORDER NO.J/P.676/VI/G/VOL.VI DATED 30.9.1999. /TRUE COPY/ K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ----------------------------------------- O.P. NO. 6796 OF 2002-S ----------------------------------------- Dated 1st January, 2008. JUDGMENT Balakrishnan Nair, J. The petitioners are Senior Clerks working in the Electrical Branch of the Southern Railway, Palakkad Division. One Mr.S.K.Sanilkumar, Head Clerk, working in the Personnel Branch of Palakkad Division and the 5th respondent, who was a Senior Clerk working in the Works Branch of Trivandrum Division were mutually transferred as per the Rules Governing such transfer. Normally, the 5th respondent should join the Personnel Branch of Palakkad Division. Instead, she was posted in the Electrical Branch. The said posting was subject to the condition that her seniority in the new unit will be governed by the orders governing mutual transfers. This will be evident from Annexure-A2 proceedings dated 24.11.1999. On coming to know of the said condition governing her posting to the Electrical Branch, the petitioners filed Annexure-A3 representation dated 27.1.2000. Earlier they had filed Annexure-A1 representation against the posting of the Op 6796/2002 2 5th respondent in their Branch as per communication dated 4.10.99. At that time the terms of her posting were not evident. Annexure-A3 representation was followed by Annexures A4 to A7 representations. These annexures are produced along with Ext.P3 copy of the O.A. Later, when the competent authority published Annexure-A8 provisional seniority list assigning seniority to the 5th respondent above them, they filed Annexure-A9 and similar objections. Thereafter, Ext.P3 O.A was filed challenging Annexure- A2 and also seeking a declaration against the assignment of seniority to the 5th respondent. The Tribunal considered the matter and dismissed the O.A in limine, holding that the application is barred by limitation. The CAT took the date of Annexure-A1 as the starting point of computation of time for reckoning the period of limitation. If the said date is taken, 18 months were over by 23.5.2001. But, they filed the O.A dated 25.6.22001 on 5.7.2001. As mentioned earlier, on the ground of limitation, the O.A was dismissed by Ext.P1 order. The petitioners attempted a review application, a copy of which is produced as Ext.P4. The same was dismissed by Ext.P2 order. This Original Petition was filed, challenging Exts.P1 and P2 and also seeking consequential reliefs. 2. The petitioners would point out that they came to know about the terms of posting of the 5th respondent to their unit only on coming to know Op 6796/2002 3 of Annexure-A2 dated 24.11.1999. Immediately, they filed Annexure-A3 representation. From the date of Annexure-A3, 18 months will be over only on 27.7.2001. They, in fact, filed the O.A on 5.7.2001. Therefore, it was filed in time, it is submitted. Regarding the merits of the case, it is submitted that each Branch is a unit. Therefore, the 5th respondent can join only the Personnel Branch, retaining her seniority permissible as per the extant Rules. If she wants to join the Electrical Branch, which is a separate unit, she should take the juniormost position on the date of joining. 3. The respondents 1 to 4 have filed a counter affidavit, supporting the orders of the C.A.T. The 5th respondent has also filed a counter affidavit, supporting the stand taken by the official respondents. She also submitted that the Tribunal has left open the grievance of the petitioners against Annexure-A8 seniority list. Therefore, they cannot be said to be aggrieved by the impugned orders of the Tribunal. It is also submitted that the petitioners must be presumed to know the terms of her transfer when they preferred Annexure-A1 representation. Reckoning from the date of that representation, the application is clearly barred by limitation. Therefore, the orders passed by the C.A.T are legal and valid. It is further submitted that since the petitioners have not challenged the inter-divisional mutual transfer of the 5th respondent, no relief could be granted to them. It Op 6796/2002 4 is all the more so, because they have failed to challenge her posting to the Electrical Branch. Subsequently, Annexure-A8 was finalised and a final seniority list was published, in which the 5th respondent was shown senior to the petitioners. It was followed by another seniority list. The petitioners have chosen not to challenge them. Therefore, the Original Petition is liable to be dismissed, it is submitted. 4. We heard the learned counsel on both sides. Annexure-A2 is not an order marked to the petitioners, nor are they supposed to be served with a copy of it. They have no grievance against the inter-divisional mutual transfer of the 5th respondent to the Personnel Branch also. They became concerned only when she was posted to the Electrical Branch and that too with the seniority she was entitled to get, if she was posted to the Personnel Branch. They came to know of it only from Annexure-A2. Within a reasonable time of the issuance of Annexure-A2, they have represented by filing Annexure-A3. Going by the date of Annexure-A3, the original application was filed within time. The finding of the Tribunal that it is barred by limitation, is plainly wrong. The contention raised by the 5th respondent that the petitioners have not challenged the final seniority list or the subsequent seniority list, cannot be accepted. They are orders issued pending the O.A or pending the writ petition. They are all dependent Op 6796/2002 5 orders. If the clause assigning seniority to the 5th respondent in Annexure- A2 is quashed, all dependent proceedings will fall to ground. Therefore, the contention of the 5th respondent in this regard is untenable. 5. The 5th respondent got inter-divisional mutual transfer to the Personnel Branch. She is entitled to get seniority in that Branch as per the relevant Rules. With the said seniority, she cannot join the unit of the petitioners, which is Electrical Branch. It is not in dispute that for the purpose of seniority of ministerial staff, each Branch is a separate unit. If that be so, the posting of the 5th respondent to the Electrical Branch with the impugned seniority, is ultra vires and unauthorised. The condition in Annexure-A2 assigning seniority to her in the Electrical Branch as per the Rules governing mutual transfer is quashed. If she wants to continue in the Electrical Branch, she shall be assigned seniority in that Branch as the juniormost person on the date of Annexure-A2. But, she is given liberty to exercise option to go back to the Personnel Wing. In that event she will get seniority as per the Rules governing inter-divisional mutual transfer. In the result, the Original Petition is allowed in terms of the directions and declarations made hereinabove, with costs, which shall be paid by respondents 1 to 4. If the 5th respondent wants to go back to the Personnel Op 6796/2002 6 Wing, she may exercise her option by filing a representation before the 2nd respondent within two months from today. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. Nm/ Op 6796/2002 7 K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. --------------------------------------- O.P. NO.6796/2002-S ---------------------------------------- JUDGMENT 1.1.2008.