Allowed

G. Jayakumar v. the Chief Personnel Officer

Kerala HC3 Dec 2019OP (CAT)/76/2014

Case brief

AI extract

What is this about?

Two Judge Bench allowed original petition in an administrative complaint filed by a senior clerk challenging his placement as the junior-most officer in the cadre of Senior Clerks in Thiruvananthapuram Division by the Central Administrative Tribunal. Court upheld decision.

What did the court decide?

Original petition allowing continuation of petitioner as junior most in Senior Clerk cadre of Thiruvananthapuram Division was allowed. Costs suffered.

G. Jayakumar Vs the Chief Personnel Officer — Service and Employment | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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TUESDAY, THE 03RD DAY OF DECEMBER 2019 / 12TH AGRAHAYANA,

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1941

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OP (CAT).No.76 OF 2014(Z)

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AGAINST THE ORDER/JUDGMENT IN OA 829/2012 DATED 16-08-2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH

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PETITIONER:

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G. JAYAKUMAR, S/O. KNG. NAIR, SENIOR CLERK, O/O. SR. DIVISIONAL COMMERCIAL MANAGER, SOUTHERN RAILWAY, THIRUVANANTHAPURAM DIVISIO, THIRUVANANTHAPURAM RESIDING AT TC 19/850(7) MUDAVANMUGHAL, PUJAPURA, THIRUVANANTHAPURAM.

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BY ADVS.

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SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN

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RESPONDENTS:

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1 THE CHIEF PERSONNEL OFFICER SOUTHERN RAILWAY, HEADQUARTERS OFFICE, CHENNAI600003.

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2 THE CHIEF COMMERCIAL MANAGER SOUTRHERN RAILWAY, HEADQUARTERS OFFICER, CHENNAI-600003.

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3 THE SENIOR COMMERCIAL MANAGER SOUTHERN RAILWAY, THIRUVANANTHAPURAM DIVISION, THIRUVANANTHAPURAM-14.

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4 THE SENIOR DIVIONAL PERSONNEL OFFICER SOUTHERN RAILWAY, THIRUVANANTHAPURAM DIVISION, THIRUVANANTHAPURAM-14.

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R1 BY SRI.K.SHRI HARI RAO, SC, RAILWAYS R1-4 BY ADV. SRI.V.K.MOHAMMED YOUSUF

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THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 03.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P(CAT) No.76/2014 2

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JUDGMENT

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Dated this the 03^rd day of December, 2019

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Vinod Chandran, J. The petitioner who was the applicant before the Tribunal is aggrieved with the direction in the impugned order placing him as junior most in the cadre of Senior Clerks in Thiruvananthapuram Division as on the date of the order.

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2. Learned Senior Counsel Sri Sugunapalan submits that the petitioner was continued right from 1991 in the Thiruvananthpuram Division and it was on account of a complaint raised against a Vigilance Inspector that the transfer of the petitioner to the Headquarters at Madras had been issued. It is also submitted that the applicant when transferred from Madras to Thiruvananthapuram was so transferred along with a post and hence he never retained a lien in the Madras Division.

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3. On brief facts it is to be noticed that

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O.P(CAT) No.76/2014 3

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the petitioner was a Senior Clerk in the Madras Division having joined there on 15.06.1990. As per Indian Railway Establishment Code (for short 'IREC') he had applied for Inter-Divisional transfer to Thiruvananthapuram. While the said application was pending, by an order dated 14.02.1991 the applicant was transferred to Thiruvananthapuram on request, along with the post, for a period of six months only taking into account the medical condition of the applicant. We are not told as to what exactly was the medical condition, but, however, it is pertinent that the transfer was for six months; hence temporary.

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4. The applicant continued at

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Thiruvananthapuram, according to the respondent, on account of an inadvertent omission. The applicant also did not press for any inter-divisional transfer as per the application submitted by him.

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O.P(CAT) No.76/2014 4

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5. While continuing in Thiruvananthapuram the applicant received an advise for appointment from the Kerala Public Service Commission to the Kerala State Electricity Board. The applicant then requested regularising him at Thiruvananthapuram; which itself indicates that he had been continuing temporarily in a post which also stood transferred from Madras division to Thiruvananthapuram division. The applicant did not join in KSEB and continued in Thiruvananthapuram division itself. Later in the year 2012 the applicant was transferred back to Madras division which was challenged in O.A NO. 170/2012, the order in which is produced as Annexure A8.

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6. Before the Tribunal at the earlier

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instance also it was contended that the transfer was malafide for reason of a complaint raised against the Vigilance Inspector. The Tribunal at

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O.P(CAT) No.76/2014 5

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the earlier instance opined that the applicant was transferred in 1991 and had been continuing long in Thiruvananthapuram. The applicant also was not seen to have been retained in the seniority list as available in the Madras division which is produced as Annexure A1. Considering these facts the Chief Personnel Officer under whose control both the Madras division as well as Thiruvananthapuram division falls, was directed to look into the matter. The applicant was directed to be continued till a decision is taken.

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7. The order issued in compliance of the directions is produced along with the OA as Annexure A9. The Chief Personnel Officer found that the applicant having been transferred to Thiruvananthapuram Division along with the post, for a period of six months retained the lien in the Madras division. The transfer to Thiruvananthpuram

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O.P(CAT) No.76/2014 6

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was also on a temporary basis which however, the administration failed to notice by an oversight. The petitioner's name never figured in the seniority list of Thiruvananthapuram division and he also did not make any attempt to enable

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assignment of his seniority within the

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Thiruvananthapuram district. Only when a vigilance enquiry was initiated in a routine manner; totally independent of the issue raised herein, it was noticed by the administration that a six months' temporary transfer was continued for long. The vigilance enquiry had not at all influenced the administration in taking the step of repatriation of the petitioner to his parent cadre. On noticing the fact that the petitioner was continued for a long period without repatriation to his parent cadre, the administration had taken corrective steps to rectify its own mistake. It was also

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O.P(CAT) No.76/2014 7

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found that despite the petitioner having stayed away from his parent cadre for long, his opportunities for promotion in the parent cadre was not affected. A promotion to the applicant would have been due only as on 20.03.2012 and if the applicant had accepted the repatriation order on 22.02.2012 he would have been considered for such promotion. The applicants claim for retention in Thiruvananthapuram hence was negatived.

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8. The Tribunal found that the finding of the CPO was perfectly in order. The applicant was fully aware of the fact that he was on a temporary transfer but chose to continue in Thiruvananthapuram taking advantages of the oversight that occurred on the part of the administration. The applicant never sought for being assigned a seniority in the

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Thiruvananthapuram division and when he was offered

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O.P(CAT) No.76/2014 8

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a post in Kerala State Electricity Board, he requested for a permanent transfer to Thiruvananthapuram. The request made for a

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permanent transfer itself indicates that he was aware of the temporary nature of his transfer to Thiruvananthapuram.

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9. The Tribunal had equitably considered the matter and directed his continuance in Thiruvananthapuram as the junior most as on the

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date of which the order was passed. Noticing the entire facts and also the fact that the petitioner had been continued for long in Thiruvananthapuram

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and had by such continuance not lost any promotional opportunities in his parent cadre till he was repatriated back to Madras; we enquired with the Instructing Counsel as to whether he would wish to be repatriated to his parent cadre with his seniority preserved. The learned Senior Counsel on

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O.P(CAT) No.76/2014 9

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instruction from the Advocate on record has informed us today that he does not wish to go back to his parent cadre. In that context we do not find any reason to interfere with the decision of the Tribunal.

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We reject the original petition leaving the parties to suffer their respective costs.

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Sd/K. VINOD CHANDRAN, JUDGE.

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Sd/V.G. ARUN, JUDGE.

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Jma/03.12

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O.P(CAT) No.76/2014 10

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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ANNEXURE A7 TRUE COPY OF THE OFFICE ORDER HEARING NO.14/2012/OC DATED 22.02.2012 ISSUED BY THE 4TH RESPONDENT.

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ANNEXURE A9 TRUE COPY OF THE ORDER BEARING NO.P(S)535/III/SR.CLERK/CLAIMS DATED 10.09.2012 ISSUED BY THE FIRST RESPONDENT.

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ANNEXURE A1 TRUE COPY OF THE OFFICE ORDER NO.12/91 DATED 14.02.1991

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ANNEXURE A2 TRUE COPY OF THE MEMO NO.EB2/8/9293/822 DATED 12-08-1992 ISSUED BY THE KSEB.

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ANNEXURE A3 TRUE COPY OF THE REPRESENTATION DATED 12.08.1992 SUBMITTED BY THE APPLICANT.

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ANNEXURE A4 TRUE COPY OF THE NOTE NO.C.415/C1.111/STAFF/VOL.III DATED 11.02.1992.

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ANNEXURE A5 TRUE COPY OF THE LETTER NO.R1B(2)8757/92/GW/822 DATED 11.11.1993 ISSUED BY THE PUBLIC SERVICE COMMISSION, KERALA.

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ANNEXURE A6 TRUE COPY OF THE REPRESENTATION DATED 07-09-2011 SUBMITTED BY THE APPLICANT. ANNEXURE A8 TRUE COPY OF THE ORDER DATED 17.08.2012 IN OA NO.170/2012

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ANNEXURE A13(a) TRUE COPY OF THE LETTER DATED

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O.P(CAT) No.76/2014 11

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31.12.2013 SUBMITTED BY THE APPLICANT. ANNEXURE A13(b) TRUE COPY OF THE REPLY DATED 29.01.2013 FURNISHED BY THE SR.DFM, TRIVANDRUM. ANNEXURE R1 TRUE COPY OF THE MEMORANDUM DATED 1009.2012 ANNEXURE R2 TRUE COPY OF LETTER DATED 24-09-2012 ISSUED BY SR.DCM/TVC. ANNEXURE A10 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT IN OA NO.170/2012. ANNEXURE A11 TRUE COPY OF THE REPRESENTATION DATED 12.02.1994 SUBMITTED BY THE APPLICANT. ANNEXURE A12 TRUE COPY OF THE OFFICE ORDER NO.69/2010/OC DATED 28.12.2010. EXHIBIT P1 P1. ORIGINAL APPLICATION. EXHIBIT P2 P2. COPY OF THE INTERIM APPLICATION DATED 6-2-2013. EXHIBIT P3 P3. COPY OF THE REPLY STATEMENT. EXHIBIT P4 P4.REJOINDER FILED BY THE APPLICANT. EXHIBIT P5 P5. TRUE COPY OF THE REPLY TO REJOINDER DATED 13-12-12.

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EXHIBIT P6 P6. TRUE COPY OF THE ORDER DATED 2.7.2013 IN O.A. NO. 829/12.

G. Jayakumar v. the Chief Personnel Officer

Case brief

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G. Jayakumar v. the Chief Personnel Officer

Case brief

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