S.K. Mangalanatha Pisharady v Union of India & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR** **&** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930** **WP(C).No. 15909 of 2005(S)** **-------------------------------------** **OA.956/2000 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ..............................................** **PETITIONER:** - **------------------** **S.K.MANGALANATHA PISHARADY, AGED 38 YEARS, S/O.SHRI KRISHNA PISHARADY, DIESEL ASSISTANT, SOUTHERN RAILWAY, QUILON, RESIDING AT SHYAMALALAYAM, PIRAPPANCODE, VENJARAMOOD, THIRUVANANTHAPURAM.** **BY ADV. SRI.T.C.GOVINDA SWAMY** **RESPONDENTS:** **---------------------** **1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICER, PARK TOWN, CHENNAI.** **2. SENIOR DIVISIONAL PERSONNAL OFFICER, SOUTHERN RAILWAY, TRIVANDRUM.** **3. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, MADRAS DIVISION, CHENNAI.** **BY ADV. SRI.MURALEEDHARA KAIMAL, ADDL.CGSC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO: 15909/2005 s** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1. COPY OF THE ORDER DATED 13/09/2002 OF CAT ERNAKULAM BENCH IN OA NO. 956/00.** **EXT.P2. COPY OF THE ORDER DT. 5/2/2003 OF R.A NO. 21/02 IN OA NO. 956/00 – CAT ERNAKULAM BENCH.** **EXT.P3. COPY OF THE OA NO. 956/00 ALONG WITH ITS ANNEXURES, LESS ANNEXURE A6 TO A7.** **EXT.P4. COPY OF THE REPLY STATEMENT FILED BY THE RESPONDENTS DATED NIL 12.2000 IN OA NO. 956/00 BEFORE THE CAT, ERNAKULAM BENCH.** **EXT.P5. COPY OF THE REJOINDER FILED BY THE PETITIONER DT. 29/12/00 IN OA NO. 956/00 BEFORE THE CAT ERNAKULAM BENCH.** **EXT.P6. COPY OF THE JUDGMENT DT. 4/3/05 IN WPC NO. 38016/01 BY THIS COURT.** **EXT.P7. COPY OF THE RBE ORDER NO. 97/02 DT.18/07/2002.** **EXT.P8. COPY OF THE RBE ORDER NO. 195/02 DT. 29/10/2002.** ## **RESPONDENT'S EXHIBITS NIL.** _True copy_ _tga_ ## **C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No.15909 of 2005-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of March, 2008.** ## **JUDGMENT** ## T.R.Ramachandran Nair, J. Aggrieved by the rejection of O.A. No.956/2000 by the Central Administrative Tribunal, this writ petition is filed. The issue involved is regarding the claim of the petitioner for pay protection consequent on inter divisional transfer under Southern Railway. 2. The particulars regarding the post held by the petitioner and his inter divisional transfer are the following: The petitioner was initially appointed as a Diesel Assistant in Madras Division of Southern Railway on 10.5.1993. He was later promoted on regular basis as Shunter in the scale of Rs.4000-6000 and again he was promoted in an officiating capacity as Goods Driver in the scale of pay of Rs.5000-8000 which was also regularised. He was transferred to Trivandrum Divisional Cadre of Drivers on 25.6.1999, but his basic pay was not protected and it was fixed at the stage of Rs.3875/- with effect from 25.6.1999. The claim raised by the petitioner is that his pay ought to have been protected under Rule 1313(a) (2) & (3) of Indian Railway Establishment Code. WPC 15909/2005 -2- 3. The reply statement filed by the respondents is available as Ext.P4 herein. The contention raised is that the petitioner had not completed two years of service in the promoted post. They also relied upon the decision of the Apex Court in **Comptroller & Auditor General of India & Others v. Farid Sattar** ({2000 SCC L&S 440}). 4. A reading of the order of the Tribunal shows that the Tribunal found against the petitioner mainly for two reasons. The main reason shown is clause 6 in Annexure 8 which is the order of transfer. Under the said clause , it is provided that the employees are eligible for pay protection in Diesel Assistant category on reversion only if they are having two years service in the higher grade or confirmed in that grade. The Tribunal therefore held that the fixation of pay of the applicant on his posting as Diesel Assistant cannot be faulted. Secondly, reliance was also placed on the decision of the Apex Court in Comptroller & Auditor General of India's case (2000 SCC L&S 440). 5. Even though a review petition was filed before the Tribunal, that was also dismissed by Ext.P2. 6. Learned counsel for the petitioner submitted that in a batch of writ petitions disposed of by this court as per Ext.P6 judgment dated 4.3.2005 concerning similar nature of inter divisional transfers, it has been held by WPC 15909/2005 -3- this court that the prescription of two years service in the old post to qualify of the benefit, cannot be applied. Therefore, it is pointed out that the order Ext.P1 has to be quashed on that ground. It is also pointed out that the Railway Board itself has clarified that point by two orders, viz. Exts.P7 and P8. Learned counsel for the petitioner also placed reliance upon the judgment of a Division Bench of this court in Writ Petition No.32057/2006, wherein it has been held that in cases of inter divisional transfers, the employees are entitled for pay protection. 7. In Ext.P6 judgment, a similar issue was considered by this court. In fact, in those cases the Tribunal had held that the condition prescribed as two years service in the old post is not covered by any of the provisions of Rule 1313 of the Indian Railway Establishment Code Vol. I. The view taken by the Tribunal was accepted by this court in paragraph 10 of the judgment. It was observed that “this seems to be a reasonable approach as the two year rule does not appear to be one intended to do away with the settled rights of employees.” In the light of the clear finding by this court in the common judgment Ext.P6, the view taken by the Tribunal in Ext.P1 that the said clause will bind the employee herein, cannot be sustained. Therefore, on that ground Exts.P1 and P2 have to be set aside. Learned counsel for the petitioner further pointed out that the reliance placed by the WPC 15909/2005 -4- Tribunal in the decision of the Apex Court in **Comptroller & Auditor General of India's case** (supra) is also not correct. The facts of the case show that the terms and conditions of the transfer clearly provided that the employee, on transfer, would be appointed to a post which is lower to the post which he was occupying prior to his transfer and he was also required to tender technical resignation from the post which he was holding with a view to join the lower post as a direct recruit and was to rank junior to the junior most employee in the cadre of Accountant. He was further required to forgo any benefit of passing any departmental examination while working in the higher post. It was held by the Apex Court that in such a situation, the pay of the employee had to be fixed with reference to the lower pay scale and not with reference to the pay drawn by him in the higher post since he was to be considered as a direct recruit in the lower post. We find that the learned counsel for the petitioner is right in submitting that the facts of the said case decided by the Apex Court are not similar to the facts of this case. Therefore, the respondents are not right in relying upon the principles referred to in the said judgment. The Tribunal was not right in accepting the contention raised by the respondents relying upon the said decision. In Writ Petition No.32057/2006, the inter divisional transferees under the Southern Railway claimed pay protection which was allowed by the WPC 15909/2005 -5- Tribunal. This court after noticing Ext.R1(a) order dated 17.4.2007 read with Ext.R1(b) order dated 14.2.2006, declared that the claim of the applicants for protection of their pay on inter divisional transfer will be governed by those orders. We respectfully follow the same and in that view of the matter also, the petitioner is entitled to succeed in this writ petition. Therefore, Exts.P1 and P2 are set aside. O.A. No.956/2000 is allowed and the respondents are directed to refix the pay of the petitioner accordingly and sanction consequential arrears of pay and disburse the same within four months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No costs. ## **(C.N. Ramachandran Nair, Judge.)** **(T.R. Ramachandran Nair, Judge.)** **kav/** WPC 15909/2005 -6- C.N. Ramachandran Nair & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - I.T. - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 17[th] March, 2008.