K. Chandran v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **WEDNESDAY,THE 12TH DAY OF SEPTEMBER 2018 / 21ST BHADRA, 1940** **OP (CAT).No. 37 of 2015** ## **PETITIONER/APPLICANT:** **K.CHANDRAN AGED 53 YEARS S/O.KUNJU (LATE), TECHNICIAN GRADEI/POWER/SOUTHERN RAILWAY/OFFICE OF THE SENIOR SECTION ENGINEER/ELECTRICAL/POWER/PALAKKAD RESIDING AT MADHAVI NIVAS, THANAVU, OLAVAKKODE, PALAKKAD-678 002.** ## **BY ADV. SRI.U.BALAGANGADHARAN** ## **RESPONDENTS/RESPONDENTS:** |**1**|**UNION OF INDIA**| |---|---| ||**REP. BY THE GENERAL MANAGER, SOUTHERN RAILWAY,**| ||**HEAD QUARTERS OFFICE, PARK TOWN (PO), CHENNAI-**| ||**600 003.**| |**2**|**THE CHIEF PERSONNEL OFFICER**| ||**SOUTHERN RAILWAY, HEAD QUARTERS OFFICE, PARK**| ||**TOWN (PO), CHENNAI-600 003.**| |**3**|**THE SENIOR DIVISIONAL PERSONNEL OFFICER**| ||**SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD-**| ||**678 002.**| |**4**|**THE DIVISIONAL PERSONNEL OFFICER**| ||**SOUTHERN RAILWAY, SALEM DIVISION, SALEM-646 005.**| 2 ## **OP(CAT).37/2015** - **5 THE DIVISIONAL ELECTRICAL ENGINEER SOUTHERN RAILWAY, PALAKKAD DIVISION, PALAKKAD678 002.** **BY ADV. SRI.B.RAJESH, SC, RAILWAYS** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 12.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP(CAT).37/2015** 3 ## **JUDGMENT** Ravikumar, J 1.The order dated 9.2.2015 passed by the Central Administrative Tribunal, Ernakulam Bench in O.A.463/2014 is under challenge in this Original Petition. The unsuccessful applicant before the Tribunal is the petitioner. He filed the said Original Application mainly seeking the following reliefs :- (i). Declare that the applicant is entitled to have his lien continued in the Palakkad Division of Southern Railway (ii). Call for the records leading to the issue of Annexure A1 and A15 to the extent they relate to the applicant and quash the sme and direct the respondents to allow the applicant to continue in Palakkad Division as if A1 and A15 had not been issued at all. - 2.The respondents herein who were the respondents before the Tribunal filed reply statement refuting the contentions raised by the petitioner. Upon considering the rival contentions, the Tribunal passed Ext.P4 order whereby the Original Application was dismissed. It is in the said circumstances that the above **OP(CAT).37/2015** 4 mentioned Original Petition has been filed. - 3.We have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 4. A brief narration of the facts is essential for a proper disposal of this Original Petition. The petitioner, who entered into the services of the Southern Railways as Khalasi in its Electrical Department at Palakkad Division, was subsequently promoted as Technician Gr.I in the year 2006. While working so, he submitted an application for transfer to Poddanur in Coimbatore on 5.6.2007. Despite the submission of Annexure-A2 application, no orders were passed thereon. In the meanwhile, carving on some areas within the territory of the State of Tamil Nadu and also from Palakkad Division, Salem Division was formed with effect from 1.11.2007. Since the application for transfer was not considered, the petitioner continued to **OP(CAT).37/2015** 5 work in Palakkad Division itself. Soon after the formation of the Salem Division, options were invited from interested persons to opt Salem Division. Petitioner did not opt. While so Annexure-A8 dated 28.2.2011 was issued by the Divisional Officer, requiring the petitioner to report before the Divisional Personnel Officer, Salem for getting further posting. It is stated therein that consequent to the bifurcation of Salem Division (formation of Salem Division), the petitioner is transferred to Salem Division with immediate effect after his options/request. Thus it is obvious that it is assigning such a reason he was directed to report before the Divisional Personnel Officer, Salem for getting further posting in Salem Division. Immediately on receipt of Annexure-A8 order, the petitioner submitted Annexure-A9 representation carrying a request to the 3[rd] respondent to permit him to continue in Palakkad Division itself. Thereafter, the 3[rd] respondent issued Annexure- **OP(CAT).37/2015** 6 A10 dated 7.8.2012. Obviously it is the request from several employees to cancel their lien at Salem Division and to retain them at Palakkad Division that persuaded the 3[rd] respondent to issue the same, as is obvious from Annexure-A10 itself. In Annexure-A10 it is further stated thus :- “You are hereby advised to obtain individual willingness or otherwise from the concerned employees whether they want their lien to be maintained at SA Division. A reply to this effect should reach this office on or before 14.8.2012” 5.A list of employees, yet to be relieved from Palakkad Division, having lien at Salem Division, as on 8.8.2012 was also appended therewith. The name of the petitioner figured at serial No.13 therein with the following remarks :- “Office order issued on 28.2.11 not relieved requested retention.” - 6.Subsequent to Annexure-A10, the Senior **OP(CAT).37/2015** 7 Divisional Personnel Officer again issued another proceedings viz., Annexure-A12 dated 6.11.2012. It is stated therein thus :- “The list of employees whose lien is maintained in Palghat Division and Salem Division are furnished in the Annexure and the willingness or otherwise received are indicated against each.” The petitioner's name figured at serial No.12 in Annexure-A12, list of the employees, as on 31.10.2012, who were yet to be relieved from Palakkad Division. In the remarks column it is stated :- “Office order issued on 28.2.2011 not relieved requested retention. Requests for cancellation of lien at Salem Divn.” 7. Subsequently, the respondents issued AnnexureA13 dated 25.2.2013. It is a provisional seniority list of staff of Electrical Dept/G.S staff along with a list, appended therewith, under the sub-caption “San-49 Tech/I/Power in the Revd.Pay Band ` .5200-20200 (PB-1) plus **OP(CAT).37/2015** 8 G.P. ` 2800. The petitioner's name was shown at serial No.7 therein. It is thus obvious that despite issuance of Annexure-A8 order, the petitioner was included in list of staff of Electrical Department in the Palakkad Division which was published on 25.2.2013. Later, the same was sought to be cancelled as per Annexure-A1. Annexure-A1 dated 27.5.2013 was issued for rectifying the alleged mistakes crept in Annexure-A13 provisional seniority list. It is stated therein that the petitioner's name was erroneously included in Annexure-A13 as his lien and seniority were to be maintained at Salem Division. Aggrieved by Annexure-A1 the petitioner approached the Tribunal by filing O.A.519/2013 and the same was disposed of, as per Annexure-A4 order dated 9.4.2014. Evidently, recording the submission of the petitioner that he did not want to pursue with the challenge against Annexures A1 and A12 at that stage and would prefer to confine his prayer for a direction to consider **OP(CAT).37/2015** 9 Annexure-A9 representation submitted by him for cancellation of lien at Salem Division, the said OA was disposed of. The Tribunal disposed of the said OA with a direction to the 2[nd] respondent to take appropriate decision on Annexure-A9, marked as such in the said OA, within the time stipulated therein. Subsequently, Annexure-A15 order dated 6.6.2014 was passed by the 3[rd] respondent. As per the same, the request of the petitioner for retention in Palakkad Division was rejected. It is in the said circumstances that the petitioner filed O.A.463/2014 which culminated in the impugned order. As noticed hereinbefore the Tribunal had declined to accept the contentions of the petitioner and consequently dismissed the OA. 8. We have carefully gone through the pleadings of the petitioner in the OA as also in the Original Petition and that of the respondents in the reply statement. From the rival **OP(CAT).37/2015** 10 pleadings it is evident that there is no dispute with respect to the position that subsequent to the formation of Salem Division, the petitioner had not specifically exercised option and opted Salem Division. It is an admitted fact that the earlier request made by the petitioner for transfer vide Annexure-A2 was prior to the formation of Salem Division and it was the same that was treated as his option to Salem Division. In this context, it is to be noted that even in Annexure-A8 letter issued by the 3[rd] respondent what was stated that the petitioner stands transferred to Salem Division with immediate effect as per his option/request. The precise case of the petitioner is that he had submitted Annexure-A2 representation for transfer to Poddanur which was in Palakkad Division at that point of time and such a request was made much prior to the formation of Salem Division. It is also his case that subsequent to the formation of Salem Division he had never opted Salem Division. He ## **OP(CAT).37/2015** 11 would also submit that Annexures A10 and A12 and the list appended to Annexure-A13 would reveal that even after the formation of Salem Division he continued to work only in Palakkad Division. 9. Per contra, the learned counsel appearing for the respondents submitted that no illegality or unreasonableness could be attributed to the action on the part of the authorities in treating Annexure-A2 as his option of Salem Division. It is submitted that as per AnnexureA12, the petitioner had requested for a transfer to Poddanur which is a place falling within the Salem Division. At the same time, the learned counsel would fairly submit that at the time of submission of Annexure-A2, Poddanur was within Palakkad Division and also at that point of time Salem Division was not formed. A scanning of the impugned order would reveal that the Tribunal, without considering such contentions, based on Annexures A10, A12, A13 **OP(CAT).37/2015** 12 as also the fact that at the time of submission of Anneure-A2, Poddanur was in Palakkad Division and the petitioner had therefore submitted only an application for intradivisional transfer and not for interdivisional transfer, considered Annexure-R3 letter dated 9.11.2010 submitted by the petitioner. In paragraph 3 of the said letter dated 9.11.2010, it was stated thus :- “I was requested a transfer to S&T/W/PTJ in the month of June 2007 itself. Since S&T/W/PTJ was in the PGT Division, then even though I am not given an option to the newly formed SA Division. It is come to know from Sr.DPO/PGT that lien is at SA Division. But also this division not getting promotion. So kindly arrange to relieve me from PGT Division early as possible and to join at SA Division without effecting my seniority at the time of formation of SA Division and transfer request at S&T/W/PTJ.” 10. Going by the same, it is evident that he has requested to relieve him from Palakkad Division to enable him to join at Salem Division. This was given much weight by the Tribunal. But at the same time, we are of the view that the Tribunal ought not have given much importance **OP(CAT).37/2015** 13 and weight to the said letter dated 9.11.2010 while passing the impugned order. It is evident from Annexure-A14 which is the copy of the order passed by the Tribunal itself in O.A.519/2013 dated 9.4.2014 that the request of the petitioner in Annexure-A9 letter, marked as such in that OA, carried a request for cancellation of his lien at Salem Division and it was the same that was directed to be disposed of within the time stipulated therein. It is to be noted that Annexure-A15, which is one of the orders impugned by the petitioner before the Tribunal in O.A.463/2014, was passed subsequent to the direction in Annexure-A14 order. In such circumstances, we are of the considered view that in view of Anneuxre-A14 order and the subsequent issuance of AnnexureA15 order, Annexure-A3 letter dated 9.11.2010 of the petitioner had lost its significance and therefore, it ought not have been given much weight by the Tribunal in considering the grievances raised by the petitioner. In short, **OP(CAT).37/2015** 14 the fact that the petitioner is having grievance against considering him as an employee in Salem Division is evident from his representation and also his pleadings before the Tribunal in O.A.519/2013. We have already noted that his precise case is that after the formation of Salem Division, he had never opted Salem Division and being a non-optee, according to him, he ought to have been treated to have opted Palakkad Division and ought to have been permitted to continue in Palakkad Division itself. We have also noted the fact that there is absolutely no case for the respondents that subsequent to the formation of Salem Division, the petitioner had actually exercised an option and opted Salem Division. In other words, from the pleadings of the respondents also it is evident that his request in Annexure-A2 was treated as his option and it is acting upon the same that he was treated as an optee to Salem Division. This position is not seriously disputed by the respondents and in fact, it is **OP(CAT).37/2015** 15 the admitted case. Even if the said letter was treated as an option in the light of Annexures A10 and A12 it has to be taken that optees of Salem Division were given right of re-option. In other words, re-opt to Palakkad Division. The list appended to Annexures A10 and A11, more specifically remarks therein, would reveal that, availing the liberty granted therein, the petitioner had opted to be retained at Palakkad Division itself. 11. We will consider another aspect as well. To call an option from an employee, at least two choices must be there. As regards an option to choose one Division the right to choose at least two Divisions must be there. We have already taken note of the fact that Annexure-A2 request for transfer was submitted by the petitioner when Poddanur was part and parcel of Palakkad Division. It is also an undisputed position that at that point of time Salem Division was not formed. When that be so, it **OP(CAT).37/2015** 16 could not be said that an option could have been exercised with respect to divisions at that point of time because there was absolutely no question of opting Salem Division which was not in existence at that time. We have no hesitation in the said circumstances, to hold that Annexure-A2 application ought not have been treated as an option exercised by the petitioner. We have also taken note of the fact that even if that could be taken as an option, right to re-opt was granted and it was exercised by the petitioner, as is evident from Annexures A10 and A12. The undisputed fact is that despite Annexure-A8 order, the petitioner has been continuing in Palakkad Division itself, was not at all given due consideration by the Tribunal. It is also a fact that even for a single day petitioner had worked in Salem Division even after its formation and that all throughout he has been working only in Palakkad Division. There cannot be any doubt with respect to the fact that an inter-divisional **OP(CAT).37/2015** 17 transfer can be effected only on option. At any rate, there is no case for the respondents that he was inter-divisionally transferred to Salem Division by way of punishment. The crucial aspect that the petitioner had submitted in Annexure-A2 at a time when Salem Division was not formed and after the formation of Salme Division that he had never submitted an option, in writing, opting Salem Division, was not given due consideration by the Tribunal. As noticed hereinbefore, a scrutiny of the impugned order would reveal that the Tribunal had given weight to the letter dated 9.11.2010. When such crucial aspect for considering the question whether the petitioner had opted Salem Division was not taken into consideration and at the same time an irrelevant material which is the letter dated 9.11.2010 was taken into consideration, we have no hesitation to hold that the consideration which culminated in the impugned order can only be described as perverse. When an order is infected with **OP(CAT).37/2015** 18 perversity on account of such consideration, certainly the power for judicial review is available to this Court. In such circumstances we are of the view that this is an eminently fit case where we should invoke the power of judicial review available in the light of the decision of the Apex Court in L.Chandra Kumar v. Union of India (1997 (3) SCC 261). As a result, the Original Petition is allowed. In such circumstances and for the forgoing reasons the impugned order is set aside. Consequently Annexure-A1, to the extent it pertains to the petitioner, and Annexure-A15, are set aside. This O.P stands disposed of, as above. Sd/- C.T.RAVIKUMAR JUDGE Sd/- A.M.BABU JUDGE Mrcs/13.9 **OP(CAT).37/2015** 19 ## **APPENDIX** ## **EXHIBITS** **P1 TRUE COPY OF ORIGINAL APPLICATION 463 OF 2014 ALONG WITH ITS ANNEXURE DATED 01-07-2014.** **P2TRUE COPY OF A REPLY STATEMENT FILED BY THE RESPONDENT IN OA.463/2014 DATED 24.11.2014 ALONG WITH ITS ANNEXURE** **P3TRUE COPY OF THE MISCELLANEOUS APPLICATION 1288/2014 ALONG WITH ITS ANNEXURE A16, A17 & A18 DATED 28-11-2014.** **P4TRUE COPY OF ORDER OF THE TRIBUNAL IN OA 463 OF 2014 DATED 09-02-2015.** ## **/True Copy/** **P.S.To Judge**