OP (CAT) No.1862 of 2012 (Z)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HON'BLE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 4TH DAY OF OCTOBER 2012/12TH ASWINA 1934** **OP (CAT).No. 1862 of 2012 (Z) ----------------------------OA.724/2010 OF CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH ------------------------** ## **PETITIONER (RESPONDENTS IN THE OA) :** **--------------------------------------------------------------** **1. UNION OF INDIA REPRESENTED BY THE CHIEF POSTMASTER GENERAL KERALA CIRCLE, TRIVANDRUM.** **2. THE SENIOR SUPERINTENDENT OF POST OFFICES TRIVANDRUM NORTH POSTAL DIVISION TRIVANDRUM-695001.** ## **BY ADV. SRI.S.KRISHNAMOORTHY, CGC** ## **RESPONDENT (APPLICANT IN THE OA) :** **-----------------------------------------------------------** **B. GOPALAKRISHNAN UNNITHAN S/O.LATE BHASKARAN UNNITHAN GRAMIN DAK SEVAK MAIL CARRIER, KOKKOTTUKONAM B.O. PALLICKAL KILIMANOOR, TRIVANDRUM NORTH DIVISION RESIDING AT 'BHASKARA VILASAM', CHALAMKONAM PULIYOORKONAM, PALLICKAL KILIMANOOR TRIVANDRUM DISTRICT - 695 701.** ## **BY ADV. SRI.M.A.SHAFIK** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 12/09/2012, THE COURT ON 04-10-2012 DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **OP (CAT).No. 1862 of 2012 (Z)** ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** - **EXHIBIT P1: TRUE COPY OF THE OA 724/2010 FILED BY THE RESPONDENT. EXHIBIT P2: TRUE COPY OF THE LETTER NO.ST/120/3/2008 DATED 9-7-2010.** - **EXHIBIT P3: TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS.** - **EXHIBIT P4: TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENT.** - **EXHIBIT P5: TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE PETITIONERS.** - **EXHIBIT P6: TRUE COPY OF THE COMMON ORDER DATED 21-2-2012 IN OA 724/10.** - **EXHIBIT P7: TRUE COPY OF THE COMMON JUDGMENT IN WPC 13112/2009 AND OTHERS.** **EXHIBIT P8 COPY OF THE CIRCULAR NO. 19-10/2004-GDS (PART) DATED 21.7.10. RESPONDENTS' EXHIBITS : NIL** ## **//TRUE COPY//** **P.S. TO JUDGE** ## **Mn** ## **MANJULA CHELLUR, CJ & A.M.SHAFFIQUE, J. * * * * * * * * * * * * *** O.P.(CAT) No.1862 of 2012 ---------------------------------------Dated this the 4[th] day of October 2012 ## **J U D G M E N T** ## **SHAFFIQUE,J** The writ petition is filed by the respondents in O.A.No.724/2010 of Central Administrative Tribunal (CAT) challenging the order dated 21/02/2012. Respondent herein is the applicant in the O.A. 2. Facts of the case disclose that the applicant, while working as GDSMD at Kokkottukonam requested for a transfer on medical grounds. According to him, the regular Gramin Dak Sevak Branch Post Master (GDS BPM) at Kokkottukonam GDS BO died on 17/03/2009 and the said post became vacant. The petitioner submitted a representation for transfer to the said post as the applicant was not in a position to discharge the duties of GDSMC. The applicant was diagonised with cardiac complaint and started getting treatment at Medical College Hospital, Thiruvananthapuram. In the meantime, the 2[nd] respondent's office called the applicant and orally enquired whether he is O.P(CAT) No.1862/2012 2 willing to work on the lower TRCA in the post of BPM. The applicant had given his consent in writing. Thereafter, he was advised a by pass surgery for his cardiac problems and he was awaiting his turn at the Government Hospital. It is, at this point of time that Annexure A1 notice is issued by the department requesting the applicant to submit an application for appointment to the post of GDS BPM at Kokkottukonam GDS BO on a TRCA of Rs.2745 - 50 -4245. 3. Annexure A1 is challenged by the petitioner on the ground that it is arbitrary and unfair and when the request for transfer is made on genuine medical grounds and the transfer, if granted, does not amount to any financial burden on the respondents since the applicant had given his willingness in lower TRCA than what is drawn by him presently. According to the applicant, the action of the respondents in inviting applications for the post even before the respondents had passed any orders on his request, is arbitrary and illegal and hence requested for quashing Annexure A1 and seeks a transfer as GDS BPM, Kokkottukonam BO on medical grounds and for a direction to the respondents to issue necessary orders to transfer O.P(CAT) No.1862/2012 3 the applicant as GDSBPM, Kokkottukonam BO in preference to any outsiders. 4. Before the Tribunal, petitioners contended that there is no provision for transfer except on the strength of order dated 17/07/2006 produced as Annexure R1 and in so far as transfer is to a post on lower TRCA since Courts have held that TRCA drawn has to be protected, a decision was taken by the respondents to give transfer to the GDS only to posts having the same TRCA drawn by them at the time of transfer. Request of the applicant was thus rejected and the decision of the Chief Post Master General was communicated to the IP of Attingal Sub Division. 5. After considering the matter at length, the Tribunal came to a finding that the rejection of the application for transfer on public interest is not at all correct as public interest includes GDS suffering from extreme hardship due to a disease and for medical attention/treatment such transfer request is to be allowed on production of a valid medical certificate from the Medical Officer of a Government Hospital. Since the applicant expressed his willingness to accept lower TRCA his case should be considered by the respondents and otherwise being found O.P(CAT) No.1862/2012 4 suitable, the applicant be posted as GDSBPM Kokkottukonam BO and on that basis the OA was allowed. 6. It is the case of the petitioner that as per Annexure R1, there is no necessity to transfer a GDS other than in public interest. If such transfer is made in terms of Annexure R1, the GDS is bound to comply with paragraph 3(iii) of Annexure R1 which reads as under: “3. The limited transfer facility to GDS from post/unit to another will be subject to fulfillment of the following conditions. The conditions mentioned below are only illustrative. (i) X X X X (ii) X X X X (iii) TRCA of the new post shall be fixed after assessment of the actual workload of the post measured with respect to the cycle beat in respect of GDS MD/MC/Packer/Mail Messenger in terms of Directorate letter No.14-11/97-PAP dated 01/10/1987.” 7. It is not in dispute that transfer is permissible. Even according to the petitioner, the argument is that transfer is possible only in public interest; but if such transfer is made in 5 O.P(CAT) No.1862/2012 public interest and medical ground also being in public interest, compliance of paragraph 3(iii) is also required and if the petitioner is not willing for the same, such transfer cannot be given. 8. On the other hand, learned counsel for the respondent submitted that the argument of the petitioner is not at all sustainable since even as per Annexure R1 transfer is possible on medical grounds and what is requested for is a transfer to a lower post in the same office and the petitioner had agreed to work at lower TRCA. Learned counsel for the respondent also brought to our notice that the contention urged by the petitioner has no basis in so far as a Full Bench of the Tribunal had held in O.A.No.349/2007 that in respect of transfer from one post to another within the same recruitment unit but with different TRCA (that is higher to lower) pay protection on the same lines as in respect of transfer from one post to the same post with different TRCA within the same recruitment unit would be available. A Division Bench of this Court at Ext.P7 upheld the judgment of the Full Bench of the Tribunal and it is held as follows: O.P(CAT) No.1862/2012 6 “11. The only benefit given in the impugned judgment of the Full Bench of the Tribunal is that when a GDS enjoying a higher TRCA moves to a different office where the applicable TRCA would be of a lower level, the pay is protected. It is not the pay scale that is protected. The manner in which the Full Bench has moulded the relief is only to ensure that GDSs who, at that time, were drawing TRCA at the range noted in the immediately preceding paragraph are not deprived of the benefit in terms of the pay that they were drawing in a particular TRCA while they are transferred to other offices in the same recruiting unit.” 9. But, it is argued on behalf of the petitioners that such rights are available only if the transfer is effected. Taking into consideration the financial implication involved in the matter, it may not be justified on the part of the employees to claim transfer as a matter of right and when financial implication is involved, the department is justified in not transferring the employee in public interest. According to the learned counsel for the petitioners, the judgment of the Division Bench had been taken in appeal before the Supreme Court. O.P(CAT) No.1862/2012 7 10. Whatever that may be, as matters stand now, the judgment of the Full Bench in O.A.No.349/2007 which was upheld in W.P.C.No.1312/2009 holds the field and a different view is possible only if the Supreme Court interferes in the matter. The learned counsel for petitioner also relies upon the judgment in **Senior Superintendent of Post Offices v. Raji Mol [2004(1) KLT 183]** to contend for the position that if an employee seeks transfer to a post equivalent to the one held by him, the rules as at present do not place any bar and his claim has to be considered by the authority. In case an employee seeks appointment by transfer to higher post than the one or which he is working, the department can consider his claim subject to his fulfilling the conditions of eligibility along with that of the eligible persons who may offer their candidature for appointment. We do not think that the facts involved in the above case will have any reference to the case on hand since here the transfer is requested by the employee; but, admittedly, to a lower post carrying a lower TRCA. 11. It is needless to state that when an employee seeks transfer on medical grounds unless the department has a case O.P(CAT) No.1862/2012 8 that the request is not genuine, the department is bound to comply with such a request and in that view of the matter, merely for the reason that the petitioner's pay requires to be protected even in the lower post cannot be a reason for denying the said benefit. In that view of the matter, we do not think that any ground exists to interfere with the order passed by the Tribunal. Hence Original Petition is dismissed. (sd/-) **(MANJULA CHELLUR, ACTING CHIEF JUSTICE)** (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr O.P(CAT) No.1862/2012 9 O.P(CAT) No.1862/2012 10