Sukumaran S. Good Guard (Ad-hoc) v. Senior Divisional Personnel Officer, Palakkad Division, Southern Railway; Chief Personnel Officer, Southern Railways HQs; Secretary, Railway Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 07TH DAY OF JANUARY 2020 / 17TH POUSHA, 1941** ## **OP (CAT).No.4368 OF 2013(Z)** **AGAINST THE ORDER IN OA NO.269/2012 DATED 15-10-2012 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS:** **1 THE SENIOR DIVISIONAL PERSONNEL OFFICER PALAKKAD DIVISION, SOUTHERN RAILWAY, PALAKKAD-678014. 2 THE CHIEF PERSONNEL OFFICER SOUTHERN RAILWAYS HQS, PARK TOWN, CHENNAI-600 003. 3 THE SECRETARY RAILWAY BOARD, RAIL BHAVAN, NEW DELHI-110001. BY ADV.SRI.SHRIHARI RAO, SC, SOUTHERN RAILWAYS** ## **RESPONDENT/APPLICANT:** **SUKUMARAN S. GOOD GUARD (AD-HOC), SOUTHERN RAILWAY, SHORANUR, PALAKKAD, PIN-678001.** **R1 BY ADV. SRI.U.BALAGANGADHARAN R1 BY SRI.K.SHRI HARI RAO, SC, RAILWAYS** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 07.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP (CAT).No.4368 OF 2013(Z) 2 ## **JUDGMENT** ## **K. Vinod Chandran, J.** **The Railways Establishment is against the order of the Tribunal, directing the applicant to be considered for promotion to the post of Goods Guard. The parties are referred to from their status in the original application and so are the documents.** **2. Admittedly the applicant was working as a Senior Commercial Clerk, which, as per the Indian Railway Establishment Manual, was a feeder category along with other posts for promotion to the post of Goods Guard. While the Rules were so, Annexure-A2 notification was brought out for filling up on an** _**ad hoc**_ **basis the post of Goods Guard available against 60% promotional quota. As we noticed, at the time of Annexure-A1, Senior Commercial Clerks were also entitled to be** OP (CAT).No.4368 OF 2013(Z) 3 **considered for such promotion for reason of the said post having a lower pay band than that of the Goods Guard. The applicant applied under the same and was appointed w.e.f. 26.02.2010, as is evident from Annexure-A3.** **3. Later, the Railway Establishment brought out Annexure-A2 notification dated 12.09.2011 for appointment to the 60% promotion quota of Goods Guards, by which time there was an amendment to the feeder category, as made by the Railway Board, which is produced as Annexure-R1. The Railway Board, by the administrative instructions, provided that for filing up of posts of Goods Guards only staff working in Grades lower than the Grade of Rs.4,500-7,000/- would be eligible to appear in the selection. On the introduction to the 5[th] Pay Commission, the grades were challenged to pay band and grade pay. Hence the pay band would be Rs.5,200-20,200 with grade** OP (CAT).No.4368 OF 2013(Z) 4 **pay of Rs.2,800/-. Annexure A2 specifically indicates that Senior Commercial Clerks are dropped, since they come in the same grade pay of Rs.2,800/-. The grievance of the applicant is that he would loose other benefits available to the Goods Guards. The Tribunal allowed the claim and the Railway Establishment is in appeal.** **4. The Tribunal allowed the claim specifically on the ground that IREM is statutory in nature and administrative instructions cannot amend the same. Sri.Shrihari Rao, the learned Standing Counsel appearing for the Railways, has placed before us a decision of the Hon'ble Supreme Court reported in** _**Union of India & Others v. M. Bhaskar & Others [(1996) 4 SCC 416]**_ **to counter the said ground. The Hon'ble Supreme Court specifically found that Rule 1-A of the Indian Railway Establishment Code prescribes that direct recruitment on limited scale to intermediate** OP (CAT).No.4368 OF 2013(Z) 5 **grades will be made in accordance with instructions laid down by the Railway Board from time to time. The filling up of promotion to the 60% promotion quota comes under the scheme of direct recruitment from serving employees and hence the Railway Board has the power to issue instructions, which even if going against the provisions of IREM, would have force. We quite realise that at the time when the** _**ad hoc**_ **appointments were made, the Senior Commercial Clerks were entitled to be promoted to the posts of Goods Guards. Annexure-A1 was specifically for making** _**ad hoc**_ **appointments and it contain the stipulation that such appointment would not confer any right on the candidate selected to continue as Goods Guards or to claim seniority in that cadre. By the time, Annexure-A2 notification for regular promotion of Goods Guards was issued, the Railway Board had issued instructions, by which the Senior** OP (CAT).No.4368 OF 2013(Z) 6 **Commercial Clerks were removed from the feeder category. The exclusion of Senior Commercial Clerks was also on the ground that they stood equated with the Goods Guards insofar as the pay band and grade pay is concerned on the implementation of the 5[th] Pay Commission. hence, the applicant would have to be appointed as a Senior Commercial Clerk and he would not be entitled to the promotion to the post of Goods Guard.** **In such circumstances, we allowed the original petition, setting aside the order of the Tribunal. There is no order as to costs.** ## **Sd/-** **K.VINOD CHANDRAN** **JUDGE** Sd/- **V.G.ARUN** **JUDGE** **sp/01/2020** OP (CAT).No.4368 OF 2013(Z) 7 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE O.A.269/2012 ON THE FILES OF THE CAT (ERNAKULAM BENCH).** **ANNEXURE A2 A TRUE COPY OF THE NOTIFICATION NO.J/P608/VIII/GOODS GUARDS/VOL.IV/PT DATED 12.9.2011. ANNEXURE A6 A TRUE COPY NOTIFICATION NO.J/P 608/VIII/GOODS GUARD VOL.IV/PILOT DATED 9.3.2012. ANNEXURE A1 TRUE COPY OF NO.J/P608/VIII/GOODS GUARD VOL.IV/DATED 15.9.2009. ANNEXURE A3 A TRUE COPY OF THE APPLICATION OF THE APPLICANT TO THE POST OF GOODS GUARD DATED 23.9.2011. ANNEXURE A4 TRUE COPY OF THE REPRESENTATION OF THE APPLICANT DATED 2.1.2012.** **ANNEXURE A5 TRUE COPY OF ORDER NO.V/P 608/III/CONROLLER VOL.V DATED 28.9.2011 ISSUED BY SR. DIVISIONAL PERSONNEL OFFICER, THIRUVANANTHAPURAM. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS HEREIN IN O.A.269/2012 ON THE FILES OF THE CAT (ERNAKULAM BENCH). ANNEXURE R1 TRUE COPY OF THE RAILWAY BOARD LETTER NO.E(NG)1-2010/PM2/6 DATED 11.8.2011. ANNEXURE R2 TRUE COPY OF THE OFFICE ORDER NO.T.23/10 DATED 1.3.2010.** OP (CAT).No.4368 OF 2013(Z) 8 **ANNEXURE R3 A COPY OF THE LETTER NO.P(S)529/II/GUARD/POLICY DATED 30.4.2010. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 15.10.2012 IN O.A.269/2012 OF THE CAT(ERNAKULAM BENCH).**