{"id":192335,"date":"2005-07-08T00:00:00","date_gmt":"2005-07-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-s-santhanam-on-8-july-2005"},"modified":"2015-10-27T10:31:13","modified_gmt":"2015-10-27T05:01:13","slug":"union-of-india-vs-s-santhanam-on-8-july-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-s-santhanam-on-8-july-2005","title":{"rendered":"Union Of India vs S. Santhanam on 8 July, 2005"},"content":{"rendered":"
Madras High Court<\/div>\n
Union Of India vs S. Santhanam on 8 July, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDATED: 08\/07\/2005  \n\nC O R A M  \n\nTHE HONOURABLE Mr.JUSTICE P.SATHASIVAM           \nAND  \nTHE HONOURABLE Mr.JUSTICE A.R.RAMALINGAM            \n\nW.P. No.16172 of 1998  \nand W.P.Nos., 2317, 3333, 3334, 9869 to 9873, 1179  \n1, 17485 of 1999, 16041 of 2000 and 4027, 4028, 5334, 10076 of 2004\n\nand WPMP.Nos.24448 of 1998, 3300, 4747, 4748, 25414, 14049, 14051,    \n14053, 14046, 14048, 16719 of 1999, 23269 of 2000, \n4765, 5766 and 6181 of 2004. \n\nWrit Petition No.16172 of 1998\n\n1. Union of India,\n   rep. by the Divisional Personnel Officer,\n   Southern Railway,\n   Tiruchirappalli Division\n   Tiruchirappalli 620 001.\n\n2. The Chairman \n   Railway Board\n   Ministry of Railways\n   New Delhi 110 001.\n\n3. Chief Personnel Officer\n   Southern Railway\n   Headquarters Office\n   Chennai 600 003.                     ...             Petitioners\n\n\n-Vs-\n\n1. S. Santhanam \n\n2. The Central Administrative Tribunal,\n   Madras Bench, \n   Chennai-600 104.                                     ...     Respondents.<\/pre>\n
                Petitions filed under Article 226 of the Constitution of India
\npraying for the issue of a writ of certiorari as stated therein.\n<\/p>\n
!For petitioners        in WP.Nos.16172\/98, 2317, 3333, 3334, 17485\/1999 and 5334\/04
\n…     Mr.R.  Thiyagarajan,Sr.  Counsel for Mr.  M.  Sekar.\n<\/p>\n
For petitioners  in  WP.Nos.9869  to  9873\/1999  and  11791\/1999  ….
\nMr.  R.Thiyagarajan, Sr.  Counsel for Mr.  V.  Radhakrishnan.\n<\/p>\n
For petitioner in WP.Nos.4027  and  4028  of  2004  …\n<\/p>\n
Mr.  P.H.  Arvindh Pandian.\n<\/p>\n
For petitioner in WP.No.10076 of 2004 ..  Mr.  L.  Chandrakumar.\n<\/p>\n
No appearance for petitioner in WP.No.16041 of 2000.\n<\/p>\n
^For R.1 in W.P.Nos.16172\/98, 2317, 3333, 3334,  17485\/99,  4027,  4028\/04  and
\n5334 of 2004 ..  Mr.  L.  Chandrakumar.\n<\/p>\n
For R.2 in W.P.Nos.16041\/00, 9869 to 9873\/99 ..  Mr.  C.K.  Chandrasekar.\n<\/p>\n
:COMMON ORDER      <\/p>\n
(Order of the Court was made by P.SATHASIVAM,J.,)
\n                Aggrieved   by   the  orders  of  the  Central  Administrative
\nTribunal, allowing the applications  filed  by  the  applicants  therein,  the
\nRailway Administration has filed the above writ petitions before this Court.\n<\/p>\n
                2.   Since the issue in all the petitions is one and the same,
\nthey are being disposed of by the following common order.\n<\/p>\n
                3.  For convenience, we shall refer the case of the parties in
\nW.P.  No.16172 of 1998.\n<\/p>\n
                (a) The applicant before the Tribunal \/ second  respondent  in
\nthis writ   petition   by   name   S.     Santhanam,  approached  the  Central
\nAdministrative   Tribunal,   for   setting    aside    the    Order    No.T\/P.
\n481\/I\/3\/SMS\/Pilot dated 22.04.1994 and Order No.T\/P.721\/SO\/94 dated 17.10.1994
\nissued  by the Divisional Personnel Officer, Southern Railway, Tiruchirappalli
\nDivision as illegal and consequently direct the said authority to protect  the
\nlast  drawn  pay  of  the  applicant  on  the date of his transfer to Southern
\nRailway and to pay his salary with all consequential fixation and revision and
\nother benefits.\n<\/p>\n
                (b) According to the applicant, he joined the Railway  Service
\nas Assistant  Station  Master  on 19.02.1988.  He was appointed in the Western
\nRailway and in due course, he was promoted to  the  scale  of  Rs.1400-2300\/-.
\nAfter he had functioned as such in the scale of Rs.1400-2300 for more than two
\nyears  in  the  Western  Railway,  he  made a request for transfer to Southern
\nRailway.  By Office Order dated 22.05.1992, he  was  transferred  to  Southern
\nRailway and  posted  in  Tiruchirappalli  Division.   The transfer having been
\nordered at his request, he has to forego his  seniority  in  the  category  of
\nAssistant Station  Master.    The  order  dated  22.05.1992,  thus  placed the
\napplicant as junior to all  permanent,  temporary  and  officiating  Assistant
\nStation Masters in the Division to which he was transferred on the date of his
\njoining the new seniority unit.\n<\/p>\n
                (c)  After  the  applicant  joined  the  new seniority unit in
\nSouthern Railway, he was fitted in lower scale of Rs.1200-2040, to  which  the
\napplicant  did  not have any objection, as that was the scale at the bottom of
\nthe seniority unit.  However, the actual pay that he was drawing at  the  time
\nof  transfer,  viz.,  the  scale  of  Rs.1400-2300 is to be protected and such
\npayment  is  in  consonance  with  the  provisions  of  the   Indian   Railway
\nEstablishments  Code  and  the  Manual  as well as the conditions of transfer.
\nWhile so, the Divisional Personnel Officer, Southern Railway,  Tiruchirappalli
\nDivision issued an order dated 22.04 .1994, re-fixing the pay of the applicant
\nby reducing  it  considerably in the scale of Rs.1200-2040.  The said order is
\nillegal and arbitrary.  An identical action of the same Southern  Railway  has
\nbeen  held  to  be  illegal in the case of similarly situated employees by the
\nCentral Administrative Tribunal, Ernakulam Bench in O.A.No.333 of  1992.    In
\nspite of the said order, the Trichirappalli Division has fixed the applicant’s
\npay to less than what he was drawing before his transfer.  It is also contrary
\nto para 1313 (a) (ii) of the Indian Railway Establishments Code Volume II.\n<\/p>\n
                4.   The Railway Administration filed a reply statement before
\nthe Tribunal, wherein it is stated that while the applicant  was  holding  the
\npost  of Station Master Grade III in the scale of Rs.1400-2300, he applied for
\nInter-Railways request transfer to Southern Railway on bottom seniority in the
\nscale of Rs.1200-2040 as Assistant Station Master.  His request  was  accepted
\nand  the  applicant  joined  the  Trichirappalli  Division  on  29.06.1992  as
\nAssistant Station Master in the scale of  Rs.1200-2040  on  bottom  seniority.
\nHis   pay   was   re-fixed   in  the  scale  of  Rs.1200-2040,  after  joining
\nTiruchirappali Division, as per the orders then in force.  The judgment of the<\/p>\n
Central Administrative Tribunal ( Ernakulam Bench ) is not applicable  to  the
\ncase  of  the  applicant,  since  the applicant in O.A.No.333 of 1992 had been
\nconfirmed in Higher Grade of Rs.1400-2300 in Palghat Division.\n<\/p>\n
                5.  In all other writ petitions since similar  averments  have
\nbeen  made  by  the  respective  parties, as said earlier, there is no need to
\nrefer the same.\n<\/p>\n
                6.  The Central Administrative  Tribunal  (Madras  Bench),  on
\ngoing  through  the materials and the order of Central Administrative Tribunal
\n(Ernakulam  Bench)  dated  10.12.1996  in  O.A.No.1041  of  1995,  wherein  an
\nidentical  issue  had been decided in favour of the applicant therein and also
\ntaking note of the fact  that  following  the  said  decision,  Railway  Board
\ncirculated  the  same by its letter dated 14.08.1997, affording pay protection
\nto the applicant therein, allowed the application.\n<\/p>\n
                7.  Since similar order has not  been  passed  in  favour  the
\napplicants  on  the  basis  of the decision of Ernakulam Bench, the applicants
\ntherein have filed WP.Nos.4027, 4028, 10076 of 2004 and 16041 of 2000.\n<\/p>\n
                8.   Heard  the  learned  senior  counsel  for   the   Railway
\nAdministration and the learned counsel for the respondents \/ applicants.\n<\/p>\n
                9.   For  convenience,  we  shall refer the parties, viz., the
\npetitioners as Railway Administration and the respondents as applicants.\n<\/p>\n
                10.  The only point for consideration in these writ  petitions
\nis, whether the Central Administrative Tribunal is right in accepting the case
\nof  the applicants that even after request transfer, they are entitled to have
\nthe pay in the scale of Rs.1400-2300, drawing prior to their transfer?\n<\/p>\n
                11.  It is the categorical case of the applicants  that  those
\nwho  are  working  as  Assistant  Station  Masters  in  the  scale  of  pay of
\nRs.1200-2040 were earlier working in the higher scale of pay of  Rs.1400-2300.
\nIt  is also their claim that their promotion to the scale of Rs.1400 -2300 was
\nnot on regular basis and thereafter, on their request, they  were  transferred
\nto a  different Division in the lower scale of Rs.12 00-2040.  It is the claim
\nof the applicants that on such transfer they are entitled to have their pay in
\nthe scale of Rs.1400-2300 protected in terms of Rule  1313  (a)  (ii)  of  the
\nIndian Railway Establishment Code Vol.II.\n<\/p>\n
                12.   It  is  the  case of the Railway Administration that pay
\nprotection was denied to the applicants  on  the  ground  that  they  had  not
\ncompleted two  years  in the scale of Rs.1400-2300 in parent Division.  It was
\ndemonstrated before the Tribunal as well as before us that actual pay that the
\napplicants were drawing in the higher scale of Rs.1400-2 300 at  the  time  of
\ntransfer  was  protected and such payment is in consonance with the provisions
\nof the Indian Railway Establishment Code and Manual as well as the  conditions
\nof transfer.    As  rightly  stated,  that  may  be  the reason, why the order
\ntransferring the applicants does not mention about the reduction in  scale  of
\npay  as  one of the conditions for transfer, but merely mentions about loss of
\nseniority.  It is relevant to point out that the completion of  two  years  to
\ngain  the  higher  scale  of  pay  was considered by the CAT, Ernakulam Bench.
\nAfter considering the relevant Rule,  viz.,  Rule  1313(a)(3)  of  the  Indian
\nRailway  Establishment  Code Volume II, the Ernakulam Bench has concluded that
\nit was enough  to  protect  the  claim  of  the  employee  and  there  was  no
\njustification for  putting him in the lower pay scale.  The Bench has observed
\nthat under the terms and conditions of transfer, the pay which  the  applicant
\nwas drawing in higher post was not required to be protected when he joined the
\nlower post.  While considering the said contention and taking note of the fact
\nthat  as  the  Railway  Administration  is  one of the largest employer of the
\ncountry, yardstick has to be uniformly applied with  reference  to  the  Rules
\nensuring fairness, equity and equality, the Tribunal accepted the claim of the
\napplicants  \/  railway  employees  and rejected the stand taken by the Railway
\nAdministration.\n<\/p>\n
                13.  Even prior to this order, the very same  Ernakulam  Bench
\nwhile considering similar grievance of Railway employees against the orders of
\nthe Railway Administration putting them in a lower grade, quashed the same and
\ndeclared  that  the  applicants  therein are entitled to have their pay in the
\nscale of  Rs.1400-2300  prior  to  the  transfer  protected  and  allowed  the
\napplications on the above terms.\n<\/p>\n
                14.  It is not in dispute that in all the impugned orders, the
\nCentral  Administrative  Tribunal  merely  applied  and  followed the decision
\nrendered by Ernakulam Bench.  The learned counsel appearing for the applicants
\nhave  also  brought  to  our  notice  that  the  Railway  Administration   had
\nimplemented the said  decision.    In  such  a  circumstance,  though  Mr.  R.
\nThiyagarajan, learned senior counsel  vehemently  argued  to  distinguish  the
\ndecision of the Ernakulam Bench, as rightly contended, the facts and issues in
\nall  these cases, including the cases that were decided by the Ernakulam Bench
\nare one and the same and we are of the view that the Tribunal  (Madras  Bench)
\nis  perfectly  right  in  granting  relief  by  following  the decision of the
\nErnakulam Bench.\n<\/p>\n
                15.  In the case of Union of India vs.  V.N.  Bhat<\/a> reported in
\n2003 (8 ) SCC 714, the Supreme Court has held that even on voluntary transfer,
\nemployee only loses seniority and not other benefits and cannot be deprived of
\nhis experience and eligibility for promotion.\n<\/p>\n
                16.  The learned senior  counsel  appearing  for  the  Railway
\nAdministration  very  much  relied on the decision of the Supreme Court in the
\ncase of Comptroller & Auditor General of India vs.  Farid Sattar<\/a>  reported  in
\n2000 (4)  S.C.C.    13, wherein while considering FR.22(I)(a)(2), 22 (I)(a)(3)
\nand the agreed terms and conditions, the Supreme Court held that  the  pay  of
\nthe  employee  had  to  be fixed with reference to the lower pay scale and not
\nwith reference to the pay drawn by him in the higher post, since he was to  be
\nconsidered as a direct recruit in the lower post.\n<\/p>\n
                17.  Mr.   Chandrasekar, learned counsel appearing for some of
\nthe applicants, after taking us through the  entire  factual  details  in  the
\nabove  said Supreme Court decision would contend that the said decision is not
\napplicable to the case on hand.  A perusal of the  said  decision  shows  that
\nviz.,  Comptroller  and  Auditor  General  of  India  and  others disputed the
\ncontentions of the respondent, on the ground that he was bound  by  the  terms
\nand  conditions of the unilateral transfer and on acceptance of such terms and
\nconditions, the respondent was required to tender technical  resignation  from
\nthe  post  of  Senior  Accountant and to join as a direct recruit in the lower
\npost of Accountant ranking junior most in the cadre of Accountant.  As rightly
\npointed out, in the present case, none of the applicants were asked to  tender
\ntechnical  resignation  from  the  post  held  prior to the order of transfer.
\nAccordingly, we accept the claim of the learned counsel for the applicants and
\nconsidering the special feature in the decision of the Supreme Court, the same
\nis not directly applicable to the case on hand and it is distinguishable.\n<\/p>\n
                18.  The learned counsel appearing  for  the  applicants  have
\nalso brought to our notice a Division Bench decision of this Court in the case
\nof Union of India  vs.   Registrar, CAT<\/a> reported in 2002 (3) L.L.N.  35 2.  It
\nis a  writ  petition  filed  by  the  very  same  Southern  Railway,  Chennai,
\nquestioning  the order of Central Administrative Tribunal, in and by which the
\nTribunal allowed the application  filed  by  the  second  respondent  therein.
\nSince the Division Bench decision is directly on the point, we intend to refer
\nto the  factual  details  therein.   The second respondent therein entered the
\nservice in South Central Railway in the post of Traffic  Signaller.    He  was
\npromoted to the post of Assistant Station Master, then to Station Master Grade
\nIII and ultimately to Station Master Grade II, where his pay was Rs.1600-2660.
\nHe was then serving in the Hubli Division in Karnataka.  From there, he sought
\ntransfer  to  the Southern Railway, which transfer was given, but strangely he
\nwas placed in the pay scale of Rs.1200-2040.   For  this,  the  Railway  Board
\nrelied  upon  their resolution that where there is a transfer from one Railway
\nto another, the person concerned would be entitled to be placed at the  bottom
\nof the  seniority  list only.  Its further case was that the transfer from one
\nRailway to another can be done only if the post in which such an  employee  is
\ntransferred has  the element of direct recruitment.  It is also its claim that
\nsince the  post  of  Station  Master  did  not  have  the  element  of  direct
\nrecruitment,  he was placed in the post of Assistant Station Master, which had
\nthe element of direct recruitment and therefore he was bound to be  placed  in
\nthe lower pay scale of Rs.1200-2040.  Aggrieved by this, the second respondent
\nhas approached   the   Tribunal.    The  Tribunal  has  allowed  the  Original
\nApplication and directed  that  he  shall  be  placed  in  the  pay  scale  of
\nRs.1600-2660,  which is applicable to the Station Master Grade II, but in that
\nhis seniority will be at the bottom.\n<\/p>\n
                19.  An  argument  was  advanced  on  behalf  of  the  Railway
\nAdministration  that it was possible for an employee to seek transfer from one
\nRailway to another like the second respondent, if only the employee sought for
\na post, which could be filled in by direct recruitment, fully or partly.   For
\nthis,  learned  counsel  invited the attention of the Court to the decision of
\nthe Railway Ministry under rule 226 of the Railway Establishment Code.  On the
\nside of the applicant it was argued that the post of Station Master always had
\nan element of direct recruitment to the extent of 25 per cent.   The  Division
\nBench, accepted the argument of the applicant and rejected the argument of the
\nRailway Administration for the simple reason that it is a trite principle that
\nwhere  the  concerned person has to be put at the bottom of the seniority, for
\ndoing so, he cannot be straight away reverted to the  post  in  which  he  was
\nworking earlier.  The following conclusion of the Division Bench is relevant:-\n<\/p>\n
“8.   The  argument raised on behalf of the writ petitioner Railway Board must
\nfail for the simple reason that  it  is  a  trite  principle  that  where  the
\nconcerned  person has to be put at the bottom of the seniority for doing so he
\ncannot be straight away reverted to the post in which he was working  earlier.
\nHere  is  clear  example  where  a person who was working as Assistant Station
\nMaster and had earned two promotions, is being posted in the post which is two
\nstages below the post  of  Station  Master,  merely  because  of  his  request
\ntransfer.  This is to say the least absurd interpretation of the rule.  ”\n<\/p>\n
                20.   After  finding so, the Division Bench has concluded that
\nthe Tribunal has correctly read the Rule and ordered the second respondent  to
\nbe  placed  in  the  pay  scale  applicable to the Station Master Grade II and
\ndismissed the writ petition as devoid of any merit.  It is also brought to our
\nnotice that the Special Leave Petition filed  by  the  Railway  Administration
\ncame  to  be  dismissed  by  the Hon’ble Supreme Court at the admission stage.
\nThough it was argued that there is no law laid down by the  Supreme  Court  by
\ndismissing  the SLP filed by the Railway Administration, the fact remains, the
\ndecision of the earlier Division Bench, viz., 2002 (3) LLN 352  (cited  supra)
\nis  binding  us  on  the  basis of the precedence and considering the relevant
\nrules and factual details, we  are  in  respectful  agreement  with  the  view
\nexpressed  by  the  Division  Bench and reject the contra argument made by the
\nRailway Administration.\n<\/p>\n
                In the light of our discussion, we are unable  to  accept  the
\nstand taken  by  the  Railway  Administration.    On the other hand, we are in
\nagreement with the decision of the Central Administrative Tribunal and  we  do
\nnot find  any ground for interference.  Consequently, the writ petitions filed
\nby the Railway Administration are dismissed and  the  writ  petitions  by  the
\napplicants are allowed.  No costs.  Connected WPMPs., are closed.\n<\/p>\n
Index:Yes
\nInternet:Yes<\/p>\n
kh.\n<\/p>\n
To<\/p>\n
The Registrar
\nCentral Administrative Tribunal
\nHigh Court
\nChennai. <\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Union Of India vs S. Santhanam on 8 July, 2005 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08\/07\/2005 C O R A M THE HONOURABLE Mr.JUSTICE P.SATHASIVAM AND THE HONOURABLE Mr.JUSTICE A.R.RAMALINGAM W.P. No.16172 of 1998 and W.P.Nos., 2317, 3333, 3334, 9869 to 9873, 1179 1, 17485 of 1999, 16041 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-192335","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nUnion Of India vs S. 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