IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33448 of 2004(S)
1. FASULUDEEN KUNJU, AGED 49 YERARS,
... Petitioner
Vs
1. UNION OF INDIA,
... Respondent
2. THE SENIOR DIVISIONAL COMMERCIAL MANAGER
3. THE SENIOR DIVISIONAL PERSONNEL OFFICER,
4. THE SENIOR DIVISIONAL PERSONNEL OFFICER,
5. THE CHIEF PERSONNEL OFFICER,
For Petitioner :SRI.T.C.GOVINDA SWAMY
For Respondent : No Appearance
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :30/07/2008
O R D E R
C .N. RAMACHANDRAN NAIR &
V.K. MOHANAN, JJ.
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W.P.C. Nos.33448/04 & 1712/05
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Dated this the 30th day of July, 2008
JUDGMENT
Ramachandran Nair,J.
W.P.C.No. 33448 of 2004 is filed against the order passed by the
Central Administrative Tribunal in a O.A. filed by the petitioner.
Petitioner was appointed as Commercial Clerk in the Southern
Railways and he was later promoted as Senior Commercial Clerk.
While working in that capacity, petitioner was served with major
penalty charge memo result of which is not disclosed to the petitioner.
At the Tribunal stage, enquiry was stated to be not completed. Even
though petitioner’s juniors were promoted to the post of Head
Commercial Clerk in September, 1995 petitioner was denied
promotion. It is not known whether promotion was denied to the
petitioner on account of pendency of finalisation of disciplinary
proceedings against him. Petitioner did not challenge the promotion
given to his juniors but contented with representation filed before
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higher authorities. However, petitioner applied for the post of Guard in
the goods train, and he was selected for the post. After undergoing
training he was appointed on regular basis as Guard in the goods train.
It is at that time that the petitioner approached the Central
Administrative Tribunal. The Tribunal after finding that petitioner is
entitled to promotion had there been no disciplinary proceedings
concluded against him leading to any punishment, directed the review
DPC to be held to consider the claim of the petitioner. It is against this
order that the petitioner has filed this WPC four years back. We find
that the observations of the Tribunal are in favour of the petitioner. If
review DPC is not held as directed by the Tribunal, it is for the
petitioner to move the Central Administrative Tribunal for contempt or
for enforcement of their order. We find no ground to interfere with the
order of the Tribunal as the same is not against the petitioner.
2. In the connected case, WPC 1712 of 2005, filed by the
Railways, the contention raised is that once the petitioner has opted for
appointment as Goods Guard and he was appointed in that cadre, he
cannot claim promotion in the administrative side from Senior
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Commercial Clerk to Head Commercial Clerk. The Tribunal has given
a finding that petitioner has lien in his parent department. However,
Tribunal has not relied on any rule pertaining to conditions of service
to take this view. Since rules of appointment and promotion in both the
cadres are not considered we leave this issue to be considered by the
review DPC. If petitioner in WPC 33448 of 2004 is not entitled to
retain lien in his parent department and if he opted on permanent basis
as Guard of goods train, then there is no scope for promotion to the
post of Head Commercial Clerk in his parent department and his
promotion will be from Goods Guard to higher cadres in that
department.
Both the Writ Petitions are disposed of directing the review DPC
to take up the above issues and decide within three months from today.
(C.N.RAMACHANDRAN NAIR)
Judge.
(V. K. MOHANAN)
Judge.
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