B.M. Ajithkumar vs The Indian Railway Catering and Tourism Corporation Limited

MONDAY, THE 3RD DAY OF AUGUST 2015/12TH SRAVANA, 1937

WA.No. 82 of 2015 IN WP(C).24413/2012 ------------------------------------------ AGAINST THE JUDGMENT IN WP(C) 24413/2012 DATED 13-10-2014 ..............

APPELLANT/PETITIONER : -----------------------------

B.M.AJITHKUMAR, AGED 45 YEARS S/O.K.BHASKARA PILLAI, MANAGER, CATERING SERVICE, INDIAN RAILWAY CATERING AND TOURISM CORPORATION LIMITED REGIONAL OFFICE, CONVENT ROAD, ERNAKULAM RESIDING AT ALUNKAL APARTMENTS, KADAVANTHARA ERNAKULAM.

BY ADV. SRI.P.RAMAKRISHNAN

RESPONDENTS/RESPONDENTS : -------------------------------------

1. THE INDIAN RAILWAY CATERING AND TOURISM CORPORATION LIMITED, 9TH FLOOR, BANK OF BARODA BUILDING 16 PARLIAMENT STREET, NEW DELHI - 110 001 REPRESENTED BY ITS MANAGING DIRECTOR.

2. RAILWAY BOARD, MINISTRY OF RAILWAYS, RAIL BHAVAN, NEW DELHI - 110 001 REPRESENTED BY ITS CHAIRMAN.

R1 BY ADV. SMT.ASHA CHERIAN R2 BY SRI.C.S.DIAS,SC, RAILWAYS

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03-08-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

C.R. ASHOK BHUSHAN, C.J. & A.M. SHAFFIQUE, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. No. 82 OF 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of August, 2015

JUDGMENT

Ashok Bhushan, C.J.

This writ appeal has been filed against the judgment

dated 13.10.2014 passed in W.P.(C) No.24413 of 2012 by

which the learned Single Judge has dismissed the writ petition

filed by the petitioner as not maintainable. The brief facts

necessary for deciding the appeal are:

2. The petitioner joined the Central Railway as

'Booking Clerk' on 10.06.1992 at Mumbai. Later the petitioner

was promoted as Catering Inspector in September 1993. In

the year 1999 the Government of India has formed the Indian

Railway Catering and Tourism Corporation Limited (hereinafter

referred to as 'Corporation'). A notification was invited on

07.04.2005 from employees of catering cadre in Railways and

deemed deputationists working under the 1st respondent for

selection to the post of Assistant Manager. Petitioner was

selected in the service of Corporation as Assistant Manager by WA No. 82 of 2015 -:2:-

Ext.P2. Petitioner thereafter joined as Assistant Manager

(Catering) at Mumbai on 30.11.2005 and has been continuing in

the Corporation.

3. On 10.07.2007 a Circular was issued by the

Corporation seeking option from deemed deputationists who have

opted for absorption in the Corporation for reversion back to

Railways. Though petitioner has submitted an option for

reversion, he was informed that his request cannot be

considered, since he was absorbed in the Corporation through

special selection. The petitioner again represented, but his

request was rejected by letter dated 18.02.2010. Petitioner had

filed O.A. No.486 of 2010 before the Central Administrative

Tribunal challenging Ext.P3, i.e. the letter dated 18.02.2010 by

which his request for repatriation in the Railway service was

rejected. A transfer order issued in the meantime was also under

challenge. The Tribunal held that the petitioner cannot be

repatriated to Railways since he cannot be treated as deemed

deputationist and the option was only for those who are WA No. 82 of 2015 -:3:-

continuing in the Corporation as deputationists. Petitioner having

selected in the Corporation service was not entitled for that

benefit. O.A. No.486 of 2010 was dismissed on 22.08.2011.

4. During the pendency of O.A., a letter dated

22.12.2010 was issued by the Railway Board calling for options

from various category of the Corporation staff. Petitioner

submitted the option for repatriation to Railways. Petitioner

thereafter submitted a representation. Petitioner's option was

not being forwarded to the Railway Board, hence the petitioner

filed the writ petition in this Court being W.P.(C) No. 2572 of

2012 impleading the Corporation as 1st respondent and Railway

Board as 2nd respondent. The writ petition was disposed of by

learned Single judge vide judgment dated 14.03.2012.

Paragraph 5 of the judgment of learned Single Judge reads as

follows:

"5. This writ petition is accordingly disposed of

directing the first respondent to forward Ext.P6 containing

the option exercised by the petitioner to the second

respondent within a period of three weeks from the date of

receipt of a copy of this judgment. There shall be a further WA No. 82 of 2015 -:4:-

direction to the second respondent to consider Ext.P6 in the

light of Ext.P5 proceedings of the Railway Board and to pass

appropriate orders thereon in accordance with law, as

expeditiously as possible and at any rate within a period of

two months from the date of receipt of Ext.P6."

5. The order of learned Single Judge was produced

before the Corporation by the petitioner and Corporation

forwarded the option of petitioner to Railway Board. The Railway

Board considered the petitioner's case and rejected the

petitioner's request for repatriation into Railways. The order the

Railway Board was communicated to the Corporation by letter

dated 26.09.2012. Ext.P11 was the letter issued to the

Corporation indicating the decision of Railway Board rejecting the

prayer of petitioner. Challenging Ext.P11 order the petitioner

filed the present writ petition before this Court where following

reliefs have been claimed.

"a) Issue a writ of certiorari or other appropriate writ

or order quashing and setting aside Exhibit P11.

b) Hold that Exhibit P7 option submitted by the

petitioner is liable to be allowed and that he is entitled to be

repatriated back to the Central Railways.

WA No. 82 of 2015 -:5:-

c) Issue a writ of mandamus or other appropriate writ

or order directing the respondents to repatriate the

petitioner back to Central Railways."

6. Learned counsel for the petitioner in support of his

submission contended that the Corporation, i.e. the 1st

respondent has not been notified under Section 14(2) of the

Administrative Tribunal Act, 1985. Hence the petitioner who

is an employee of the Corporation has, however, jurisdiction to

approach this Court in exercise of writ jurisdiction. It is further

submitted that the petitioner's option was entitled to be accepted

and the Railway Board committed error in rejecting the said

request. He has also referred to a Circular dated 02.03.2015

which is produced as Annexure-F in the appeal, according to

which the petitioner's option ought to have been accepted.

7. Learned counsel appearing for the Railways refuted

the submission of learned counsel for the appellant and contends

that the petitioner wants to be repatriated to Railway service

which is a service under the Union of India. Remedy of the

petitioner was to approach the Central Administrative Tribunal WA No. 82 of 2015 -:6:-

under Section 14 of the Act, 1985. He further submits that in the

writ petition no reliefs are claimed against the Corporation and

the reliefs are against Railway Board and an order under

challenge was issued by the Railway Board. Hence the remedy of

the petitioner was to approach the Tribunal. Learned counsel for

the 1st respondent has also adopted the said submission and

submits that the writ petitioner ought to have approached the

Central Administrative Tribunal.

8. We have considered the submission of learned

counsel for the parties and perused the records.

9. There is no dispute to the issue that the Corporation

had not been governed under Section 14(2) of Act, 1985. But in

the present case from the reliefs claimed in the writ petition, it is

clear that in essence the petitioner wanted to be repatriated to

Railway services. The order of learned Single Judge vide

judgment dated 14.03.2012 which was passed in the writ petition

filed by the petitioner himself has directed the Railway Board to

consider the petitioner's request. Ext.P1 was an order WA No. 82 of 2015 -:7:-

communicating the decision of the Railway Board to the

petitioner. The letter dated 26.09.2012 by which the Railway

Board's decision has been re-produced in paragraph 2 of

Ext.P11. Paragraph 2 of Ext.P11 reads as follows:

"2. In reference to the above, the Chairman/Railway

Board has passed the orders as communicated to this office

through Railway Board's letter No.E(NG)I/2011TR/2 dated

26.09.12,; reproduced as under:-

"Sub.: WP(C) No.2572/2012 filed by one Shri B.M.

Ajith Kumar, Manager/ERS regarding forwarding of option

for going back to the Railways - Issue of appropriate

speaking order."

As per the direction of Hon'ble High Court of

Kerala/Ernakulam in its judgment dated 14.3.2012,

delivered in above mentioned Writ Petition, the second

respondent, i.e. CRB has passed the following order:-

"I have gone through the case and the

circumstance of the deputation of Shri.B.M. Ajith

Kumar to IRCTC. From the facts as adduced, I am

of the view that Shri.Kumar has of his own volition

and being fully aware of the situation, voluntarily

opted for deputation with IRCTC. He went through

the selection held by IRCTC featured in the panel

declared by IRCTC, accepted the terms and

conditions of absorption, was thereafter relieved by WA No. 82 of 2015 -:8:-

his parent Railway i.e. C.Railways to join his post

with IRCTC, which he did on absorption basis. He

also enjoyed the perks and privileges and salary of a

regularly absorbed employee of IRCTC., which were

much higher than deemed deputationists. In view

of the above he cannot at this stage claim to be a

"deemed deputationist". Consequently he cannot

now seek repatriation to the railways, as it is not

within the ambit of rules and regulations. He is a

regular employee of IRCTC and will continue to

remain with the company."

Further action in the matter may be taken accordingly in

compliance with the Court's above mentioned order(IRCTC's

case No.IRCTC/HRD/Catg./Policy 55-09 part dated

30.08.2012 connects). "

10. The above order of Railway Board was under

challenge in the writ petition. Looking to the essence of reliefs

which were claimed in the writ petition it is clear that the

petitioner wanted reliefs against the Railway Board i.e. the

Central Government, with regard to his repatriation or joining

back to railway service which relief was rejected by the Railway

Board. The decision of Central Government having been

challenged, the remedy available to the petitioner was to WA No. 82 of 2015 -:9:-

approach the Central Administrative Tribunal which could grant

the reliefs as prayed for.

11. Learned counsel for the appellant in support of his

contention relied on the Apex Court judgment reported in Major

M.R. Penghal v. Union of India and others [(1998) 5 SCC

454]. In the above case the employee of Posts and Telegraphs

Department was posted on deputation to Indian Army Postal

Service. The petitioner was offered employment as 'postal clerk'

in the P&T Department. On deputation the petitioner was posted

as postal clerk in Indian Army and was working there. Petitioner

thereafter gave a representation to the Department for his

promotion. The appellant was served with an order dated

06.07.1995 relinquishing his temporary commission and

repatriating him to the Department of Posts. Petitioner filed a

writ petition which was dismissed by the High Court observing

that the High Court has no jurisdiction. Thereafter the petitioner

preferred an original application before the Central Administrative

Tribunal. The Tribunal in the second instance held that the WA No. 82 of 2015 -:10:-

appellant was an Army personnel, hence the Tribunal has no

jurisdiction. The Apex Court held that the order of High Court

holding that the High Court had no jurisdiction whereas it was the

Central Administrative Tribunal which has jurisdiction to decide

the case. Paragraph 9 of the judgment is as follows:

"As stated above, although the appellant was

selected by the Postal Department for appointment to the

post of clerk, but he could not be given any appointment

due to want of vacancy in the unit of his choice. Under such

circumstances, the appellant was offered an appointment to

work as a clerk in the Army Postal Service on the condition

that he would remain a civilian employee on deputation in

the Army. The appellant accepted the aforesaid offer and

agreed to the conditions that he would revert to the civil

appointment in Posts and Telegraphs Department on his

release from the Indian Army Postal Service. With these

conditions, the appellant continued to serve in the Army as

a permanent employee of the Posts and Telegraphs

Department on deputation and was promoted up to the

rank of a Major in the Indian Army. However, the appellant

was only given a temporary Commission and he worked as

such till the date when his relinquishment was ordered. The

aforesaid facts clearly demonstrate that the appellant has a

lien with the Posts and Telegraphs Department working on WA No. 82 of 2015 -:11:-

deputation in the Indian Army Postal Service and at no

point of time the appellant became a full fledged Army

personnel. Since the appellant was not a member of Armed

Forces and continued to work as a civilian on deputation to

the Army Postal Service, his case was covered under S.14

(1)(a) of the Administrative Tribunals Act. In that view of

the matter, the High Court was right in rejecting the writ

petition filed by the appellant, whereas the Central

Administrative Tribunal erroneously accepted the claim of

the appellant that he is an Army personnel. We, therefore,

uphold the judgment and order of the High Court

dismissing the writ petition filed by the appellant. Since the

appellant while holding civil post was working in the Army

Postal Service on deputation, the Central Administrative

Tribunal had jurisdiction to entertain and decide the

Original Application filed by the appellant. We accordingly

set aside the order dated 31-1-1997 passed by the Central

Administrative Tribunal, Principal Bench, New Delhi, and

remand the case to it to decide expeditiously the Original

Application No. 1647/1996 of the appellant, on merits."

The above case in no manner helps the appellant in the

present case.

Learned Single Judge did not commit any error in

dismissing the writ petition as not maintainable. The petitioner WA No. 82 of 2015 -:12:-

still have the remedy to approach the Central Administrative

Tribunal.

With the above observation the Writ Appeal is

dismissed.

Ashok Bhushan, Chief Justice.

A.M. Shaffique, Judge.

ttb/04/08