IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 WP(C).No. 23269 of 2008(S) -------------------------- OA.21/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: ------------ 1. UNION OF INDIA, REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY, PARK TOWN.PO., MADRAS-600003. 2. DIVISIONAL RAILWAY MANAGER SOUTHERN RAILWAY, TRIVANDRUM DIVISION TRIVANDRUM-695014. BY ADV. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI RESPONDENT: ------------- L.MONY, S/O.LAKSHMANA REDDIAR LOCO PILOT (PASSENGER) SOUTHERN RAILWAY ERNAKULAM.JUNCTION, RESIDING AT DEVI NILAYAM THYCOODAM, ERNAKULAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- W.P.(C) NO. 23269 OF 2008-S ----------------------------------------- Dated 4th August, 2008. JUDGMENT Balakrishnan Nair, J. The petitioners were the respondents in O.A.No.21/2008 before the Central Administrative Tribunal, Ernakulam Bench. The respondent herein was the applicant. The applicant, who was a Loco Pilot (Passenger) working in Ernakulam Junction of the Southern Railway, submitted an application for voluntary retirement on 3.10.2007, which is to take effect from 10.1.2008. The said application was rejected by Annexure – R1 communication. Though the competent authority attempted to serve the said letter on the respondent/applicant, he did not accept it. So, it was affixed in the notice board. The said order reads as follows: “Request for voluntary retirement in favour of the above named employees have not been accepted by the competent authority.” The applicant filed the O.A., taking the stand that no order has been served on him, disposing of his application for voluntary retirement. WPC 23269/08 2 Therefore, it should be taken that the said request is deemed to be allowed. So, he sought a declaration that he has voluntarily retired from service with effect from 10.1.2008. Copy of the O.A is produced as Ext.P1. The writ petitioners, who were the respondents in the O.A., filed Ext.P3 reply statement, in which they have stated as follows: “4. Regarding the averments in paragraph 4(a) of the OA, it is humbly submitted that Annexure-A1 is not in tune with the provision in Rule 1802(b) of IREC Volume-II as the applicant had not completed 55 years of age as on the date of application on 3.10.2007. It is pointed out that the applicant himself states in Annexure-A1 that he is attaining 55 years of age only on 11.12.2007. Accordingly, the 3 months notice is to count from 11.12.2007 and is to expire on 10.3.2008, as provided for in Rule 1802(1) of IREC Volume-II. Annexure-A1 was submitted before the competent authority. The request for voluntary retirement has been considered but could not be agreed to by the competent authority, on administrative reasons.” The applicant filed Ext.P4 rejoinder. The matter was heard by the Tribunal and the O.A was allowed by Ext.P5 order, directing the respondents therein to treat that the applicant retired from service with effect from 10.1.2008 and grant him all terminal benefits. This Writ Petition is filed, challenging the said order of the CAT. 2. In this writ petition, the petitioners have raised a contention WPC 23269/08 3 that at present the Railways cannot afford to spare the services of Loco Pilots and therefore, the application of the respondent/applicant for voluntary retirement cannot be granted. Based on the above ground, the impugned order of the CAT is challenged. But, we notice that before the CAT, the main point canvassed was that the application was not in accordance with the Rules. According to the writ petitioners, only after crossing the age of 55, the incumbent could have applied for voluntary retirement. The applicant attained the age of 55 only on 11.12.2007. He submitted the application on 3.10.2007. Therefore, it is an invalid application, it was contended. But, the Tribunal took note of a note in the concluding part of Chapter 18 of the Establishment Code Vol.II, which says that the application could be submitted before attaining the age of 55. But, the date on which the voluntary retirement is to take effect should be one after the employee attains the age of 55. Based on that note to the Rule, the CAT overruled the contentions of the Railways and allowed the O.A. But, before this Court, it is urged for the first time that the services of the respondent/applicant cannot be spared on administrative reasons. Though, in Ext.P3 reply a bald WPC 23269/08 4 statement is made that the applicant's application was rejected on administrative grounds, the same was not further amplified. The said point was not argued before the CAT also. If that point was taken, the same would have found a place in the order of the CAT. The petitioners do not have a case before this Court that such a contention was specifically raised or argued, but the CAT did not advert to it. A point, which was not taken before the CAT, cannot be permitted to be taken before this Court. In the result, we find nothing wrong with the order the CAT, warranting interference with the same under Article 226 of the Constitution of India. Accordingly, the writ petition fails and it is dismissed. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. Nm/ WPC 23269/08 5