IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 WP(C).No. 33448 of 2004(S) -------------------------- OA.823/2003 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER: ------------ FASULUDEEN KUNJU, AGED 49 YERARS, S/O. K.IDROSE KUNJU, GOODS GUARD, SOUTHERN RAILWAY QUILON, RESIDING AT THADATHILVEEDU, OTTAKKAL P.O., THENMALAI, QUILON. BY ADV. SRI.T.C.GOVINDA SWAMY SMT.D.HEERA RESPONDENTS: ------------- 1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3. 2. THE SENIOR DIVISIONAL COMMERCIAL MANAGER SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. 3. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. 4. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, TRIVANDRUM DIVISION,TRIVANDRUM. 5. THE CHIEF PERSONNEL OFFICER, SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK TOWN P.O., CHENNAI-3. BY SC SRI. ALEXANDER THOMAS THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2008, ALONG WITH WPC NO. 1712 OF 2005 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 APPENDIX (WPC 33448/2004) PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORIGINAL APPLICATION NO. 823 OF 2003 ALONG WITH ITS ANNEXURES BEFORE THE HON'BLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P2 TRUE COPY OF THE REPLY STATEMENT DATED MARCH 2004 FILED BY THE RESPONDENTS IN OA NO.823 OF 2003 EXT.P3 TRUE COPY OF THE ORDER DATED 29.4.2004 IN O./A.NO. 823 OF 2003 HONBLE CAT EXT.P4 TRUE COPY OF THE ORDER DATED 28.10.2004 OF THE HON'BLE TRIBUNAL IN R.A.NO.15 OF 2004 IN O.A.NO. 823 OF 2003, HON'BLE CAT EXT.P5 TRUE COPY OF OFFICE ORDER BEARING NO. T.25/99/GDS. DATED 9.4.99 ISSUED BY THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, TRIVANDRUM. RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C .N. RAMACHANDRAN NAIR & V.K. MOHANAN, JJ. -------------------------------------------- W.P.C. Nos.33448/04 & 1712/05 -------------------------------------------- Dated this the 30th day of July, 2008 JUDGMENT Ramachandran Nair,J. W.P.C.No. 33448 of 2004 is filed against the order passed by the Central Administrative Tribunal in a O.A. filed by the petitioner. Petitioner was appointed as Commercial Clerk in the Southern Railways and he was later promoted as Senior Commercial Clerk. While working in that capacity, petitioner was served with major penalty charge memo result of which is not disclosed to the petitioner. At the Tribunal stage, enquiry was stated to be not completed. Even though petitioner's juniors were promoted to the post of Head Commercial Clerk in September, 1995 petitioner was denied promotion. It is not known whether promotion was denied to the petitioner on account of pendency of finalisation of disciplinary proceedings against him. Petitioner did not challenge the promotion given to his juniors but contented with representation filed before 2 higher authorities. However, petitioner applied for the post of Guard in the goods train, and he was selected for the post. After undergoing training he was appointed on regular basis as Guard in the goods train. It is at that time that the petitioner approached the Central Administrative Tribunal. The Tribunal after finding that petitioner is entitled to promotion had there been no disciplinary proceedings concluded against him leading to any punishment, directed the review DPC to be held to consider the claim of the petitioner. It is against this order that the petitioner has filed this WPC four years back. We find that the observations of the Tribunal are in favour of the petitioner. If review DPC is not held as directed by the Tribunal, it is for the petitioner to move the Central Administrative Tribunal for contempt or for enforcement of their order. We find no ground to interfere with the order of the Tribunal as the same is not against the petitioner. 2. In the connected case, WPC 1712 of 2005, filed by the Railways, the contention raised is that once the petitioner has opted for appointment as Goods Guard and he was appointed in that cadre, he cannot claim promotion in the administrative side from Senior 3 Commercial Clerk to Head Commercial Clerk. The Tribunal has given a finding that petitioner has lien in his parent department. However, Tribunal has not relied on any rule pertaining to conditions of service to take this view. Since rules of appointment and promotion in both the cadres are not considered we leave this issue to be considered by the review DPC. If petitioner in WPC 33448 of 2004 is not entitled to retain lien in his parent department and if he opted on permanent basis as Guard of goods train, then there is no scope for promotion to the post of Head Commercial Clerk in his parent department and his promotion will be from Goods Guard to higher cadres in that department. Both the Writ Petitions are disposed of directing the review DPC to take up the above issues and decide within three months from today. (C.N.RAMACHANDRAN NAIR) Judge. (V. K. MOHANAN) Judge. 4 kk