Disposed

Sudhakaran Erumbala v. Additional Divisional Railway Manager

Kerala HC29 Jan 2019WP(C)/21932/2015

Case brief

AI extract

What is this about?

The High Court held that an employee has no indefeasible right to remain in a supernumerary post. The court ordered the respondents to consider the petitioner's representation for alternative employment within the division, pending a written submission. The petitioner was directed to join duty at Palakkad immediately.

What did the court decide?

Petitioner permitted to submit representation for alternative post; respondents directed to consider same within one month; petitioner directed to join duty at Palakkad.

Sudhakaran Erumbala Vs Additional Divisional… — Pension and Retirement Benefits | 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 V.G.ARUN

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TUESDAY ,THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940

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WP(C).No. 21932 of 2015

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PETITIONER/S:

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SUDHAKARAN ERUMBALA

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AGED 53 YEARS, S/O.K.C.KORAN NAMBIAR, WITH PERMANENT ADDRESS AT V.V. HOUSE, VATTOLI P.O, CHITTARIPARAMBA,TELLICHERRY, KANNUR, KERALA, PIN-670 650.

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BY ADVS. SRI.RAJESH NAIR SRI.BIJOY CHANDRAN

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RESPONDENT/S:

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1 ADDITIONAL DIVISIONAL RAILWAY MANAGER SOUTHERN RAILWAY, PALAKKAD DIVISION, PALGHAT, PIN-678 002.

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2 SENIOR DIVISIONAL PERSONNEL OFFICER SOUTHERN RAILWAY, PALAKKAD DIVISION, PALGHAT, PIN-678 002.

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3 ASSISTANT PERSONNEL OFFICER/ENGINEERING SOUTHERN RAILWAY, PALAKKAD DIVISION, PALGHAT, PIN-678 002.

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4 SENIOR DIVISIONAL ENGINEER CO-ORDINATION, SOUTHERN RAILWAY, PALAKKAD DIVISION, PALGHAT, PIN-678 002.

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5 CHIEF SECURITY COMMISSIONER, RPF 6TH FLOOR, MOOR MARKET COMPLEX, CHENNAI, PIN-600 003.

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WP(C).No. 21932 of 2015

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6 DIVISIONAL SECURITY COMMISSIONER SOUTHERN RAILWAY, PALAKKAD DIVISION, PALGHAT, PIN-678 002.

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7 INSPECTOR OF RAILWAY PROTECTION FORCE CALICUT RAILWAY STATION, CALICUT, PIN-673 001.

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BY ADVS. SRI.JAMES KURIAN, SENIOR PANEL, RAILWAYS

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 21932 of 2015

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JUDGMENT

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The petitioner, who was working as Sub Inspector in the Railway Protection Force, suffered a heart-attack during April, 2012 and had to undergo a bye-pass surgery immediately thereafter. As a result, the petitioner was medically de-categorised from medical category B-1 to C-1 with the remark that he should be accommodated in a job not involving heavy manual labour. Consequently, a special supernumerary post of Sub Inspector/RPF was created at Calicut, for temporarily accommodating the petitioner. While so, the 7^th respondent issued a letter requiring the petitioner to report before the Divisional Office at Palakkad to undergo a screening test for the purpose of considering him for an alternative employment. The petitioner appeared before the Divisional Office, but no screening test was conducted on that day. Yet later, the respondents issued an

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WP(C).No. 21932 of 2015

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order requiring the petitioner to report for Pro-Commercial Clerk Training at ZRTI, Tiruchirappalli, vide order dated 7.3.2014. Unable to withstand the compulsion to join as a Pro-Commercial Clerk, the petitioner approached this Court by filing W.P.(C) No.12028 of 2014. In that writ petition, this Court issued Ext.P3 interim order directing the respondents to constitute a screening committee to examine the petitioner for consideration of his suitability for alternative employment. Since, in the meanwhile, the petitioner was relieved from Calicut for reporting at the Commercial Branch at Palakkad, this Court directed that the petitioner shall be re-posted at Calicut and be permitted to continue in the supernumerary post of Sub Inspector.

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It is submitted that the petitioner's second son is autistic by birth and is mentally retarded and therefore, requires constant care and attention. It is further submitted

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WP(C).No. 21932 of 2015

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that since the petitioner's wife is suffering from epilepsy, she is not in a position to look after the second son and therefore, the petitioner's physical presence is required at home. The learned counsel for the petitioner points out that Ext.P5 Office Memorandum issued by the Government of India is intended to provide succor to persons like the petitioner, who have children suffering from either physical or mental disablement. Under Ext.P5, the Government employees, who have a disabled child and who serve as the main care giver of such child, is protected from being displaced during transfers.

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The respondents had issued Ext.P7 Note containing the list of persons who were eligible for alternative employment on medical grounds. The petitioner's name figures at serial No.15 in Ext.P7 and his request for continuing at Calicut due to family circumstances

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was recommended therein. On the basis of the recommendation, Ext.P8 was issued posting the petitioner in the alternative post of OS/WB at Calicut. But as evidenced by Ext.P9, the petitioner was not able to join in the new post at Calicut, since the authority concerned took the stand that there is no post vacant in the office to accommodate the petitioner. Immediately thereafter, Ext.P11 was issued cancelling the petitioner's appointment to the alternative post at Calicut. This was followed by Ext.P12 order by which the petitioner was posted as Office Superintendent/Works Branch and deputed to work at Palakkad.

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The writ petition was filed challenging Exts.P10 to P12 and seeking a direction to retain the petitioner in the supernumerary post of Sub Inspector/RPF at Calicut Railway Station. While admitting the writ petition, this Court had granted an interim order staying the implementation of

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WP(C).No. 21932 of 2015

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Ext.P12. As a result, the petitioner has been continuing in

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the supernumerary post of Sub Inspector/RPF at Calicut.

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Counter affidavit has been filed on behalf of the respondents, pointing out that Ext.P5 is not applicable in the instant case, since Ext.P5 pertains to routine/rotational transfer of employees having children who require special care. The learned Standing Counsel for the Railways submitted that the petitioner has been idling in the supernumerary post of Sub Inspector and the Railway establishment has not been able to utilise his services for the

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past many years, while at the same time, being compelled to pay salary and emoluments to the petitioner. It is also stated that earlier the petitioner was provided with an alternative post at Calicut itself and even that was challenged by the petitioner resulting in Ext.P3 interim order. That, the petitioner could not be accommodated at Calicut on the

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WP(C).No. 21932 of 2015

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basis of Ext.P8, since there was no vacant post in the works

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branch, to which the petitioner was posted. It is further pointed out that the only post that was available was at Palakkad and that it was in those circumstances that Ext.P12 was issued, providing the petitioner an alternative post at Palakkad, retaining his pay and emoluments.

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On consideration of the rival contentions, I am of

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the opinion that the petitioner do not have an indefeasible right to continue in a supernumerary post, even based on Ext.P5. No employee has a right to claim that he should be permitted to continue in the post from which he was not making any contribution to the establishment, while at the same time, enjoying the benefits. This Court has taken note of the pathetic condition under which the petitioner is placed due to his personal ailment and the mental disability of his son. The situation of the petitioner had engaged the

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WP(C).No. 21932 of 2015

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attention of the Railway authorities on an earlier occasion

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and I am hopeful that it will be considered in future also.

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The learned Standing Counsel for the Railways, after getting instructions, submitted that at present the only vacancy to which the petitioner could be given an alternative posting is at Palakkad and that if, in future, any other suitable vacancy arises within the Division, the authorities would be willing to consider the petitioner's request for accommodation against that vacant post. The learned counsel for the petitioner has submitted that even as on date, one vacancy is available at Calicut itself.

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Taking into consideration the submissions as above, I deem it appropriate that the respondents consider the request made by the petitioner for accommodating him in a suitable alternative post, which is available or would be available within the Division. For this purpose, the

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petitioner is permitted to submit an appropriate representation within a period of two weeks from the date of receipt of a copy of the judgment. In the event of such a representation being filed, the respondents shall consider the same and take an appropriate decision, keeping in mind the situation being faced by the petitioner, within a period of one month thereafter. It is made clear that for the time being, the petitioner will have to join duty at the alternative post available at Palakkad, for which purpose, the respondents shall grant the petitioner the ten days' joining time from today.

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The writ petition is disposed with the above direction.

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sd/- V.G.ARUN JUDGE

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Scl/29.1

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WP(C).No. 21932 of 2015

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 P1 - TRUE COPY OF THE DISCHARGE CERTIFICATE ADDL. CMS PGT MEDICAL CERTIFICATE 29/2012-13 DATED

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22.10.2012 BY THE ASSISTANT MEDICAL OFFICER, SOUTHERN RAILWAY PALGHAT.

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EXHIBIT P2 P2 - TRUE COPY OF THE MEMORANDUM (NO.J/XP.II/MD/VOL.II DATED 21.11.2012) ISSUED BY THE OFFICE OF THE 4TH RESPONDENT

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EXHIBIT P3 P3 - TRUE COPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN WRIT PETITION (C) NO.12028 OF 2014 ON 30TH OF MAY 2014.

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EXHIBIT P4 P4 - TRUE COPY OF THE CERTIFICATE ISSUED BY THE DISTRICT MEDICAL OFFICER KANNUR DEPARTMENT OF HEALTH SERVICES, GOVERNMENT OF KERALA AS PER APPLICATION NO.353288 DATED 28.11.2010

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EXHIBIT P5 P5 - TRUE COPY OF THE OFFICE MEMORANDUM (NO.42011/3/2014/ESTT(RES) DATED 06.06.2014 ISSUED BY THE MINISTRY OF PERSONNEL, GOVT. OF INDIA.

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EXHIBIT P6 P6 - TRUE COPY OF THE RELEVANT PORTION OF INDIAN RAILWAY ESTABLISHMENT MANUAL (IREM)

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EXHIBIT P7 P7 -TRUE COPY OF THIS NOTE (J/P.II/CON/PB/SPL.SUPY.POSTS/VOL.II DATED 18.06.2015) ISSUED BY THE 2ND RESPONDENT.

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EXHIBIT P8 P8 - TRUE COPY OF THE OFFICE ORDER (NO.20/2015, JXP II/MD/VOL.III) ISSUED BY THE 6TH RESPONDENT ON 08.07.2015 EXHIBIT P9 P9 -TRUE COPY OF THE LETTER (NO.CLT/SI(SNP)2015 DATED 09.07.2015) ISSUED BY THE 7TH RESPONDENT. EXHIBIT P10 P10 - TRUE COPY OF THE LETTER (NO.CLT/F.21/2015 DATED 15.07.2015) ISSUED BY THE 7TH RESPONDENT. EXHIBIT P11 P11 - TRUE COPY OF THE INTIMATION (NO.JXP11/MD/VOL III DATED 15.07.2015) ISSUED BY THE 6TH RESPONDENT. EXHIBIT P12 P12 - TRUE COPY OF THE ORDER NO.22 OF 2015 (NO.JXP 11/MD/VOL.III) DATED 16.07.2015 ISSUED BY THE 6TH RESPONDENT

Sudhakaran Erumbala v. Additional Divisional Railway Manager

Case brief

What is this about?

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Sudhakaran Erumbala v. Additional Divisional Railway Manager

Case brief

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