T. Jacob, Member(A)

1. This OA is filed by the applicant seeking the following reliefs:

“to set aside the order passed by the 5% respondent vide its order dated. 02.07.2016 bearing Ref. No. 01195/LB/RECT/GRIEV/2016 and direct the respondent to Reckon the seniority of the applicant from the date of promotion to the post of Fitter (Skilled) in the 4" respondent organisation ie. 28.05.1993 and further direct the respondent to grant all attended and financial benefits and to pass such or other order as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case and thus render justice.”

2. The facts of the case as stated by the applicant are as follows:

The applicant was initially inducted as Fitter (Semi Skilled) on 18.2.1991 at the 4" Respondent organisation and, subsequently, was promoted as Fitter (Skilled) on 28.05.1993 and Fitter (Highly Skilled) on 01.09.2003. During 2005, the applicant had applied for compassionate transfer from HAPP, Trichy to HVF, Avadi and based on which, the request transfer order was passed on 19.09.2005 transferring the applicant from HAPP, Trichy to HVF, Avadi. However, in the said transfer order itself the applicant was reverted to the post of Fitter (Skilled) from the post of Fitter (Highly Skilled). He had forgone the higher post of Highly Skilled(HS) and accepted lower post i.e. Fitter (Skilled) post, but after joining Heavy Vehicle Factory, Avadi, the 3 Respondent herein, he came to know that even the seniority of the applicant was reduced and he was put in the lower most position in the seniority in the Fitter (Skilled Grade). For a transfer, the applicant had suffered double jeopardy; one he lost his post as Highly Skilled(HS), second, he was placed at a lower most post in the seniority list for Fitter (Skilled) which is contrary to the OFB Lr.No.429/A/I dated 28/05/1974. He submitted a representation to the Senior General Manager, HVF Avadi to fix his seniority by giving him appropriate place in the grade of Fitter (Skilled) taking into consideration of his date of promotion to the post of Fitter (Skilled) in HAPP, Trichy. However, the respondents rejected the request of the applicant vide impugned order dated 2.7.2016 stating that the order passed in O.A No 1476 of 2013 was in personam and it cannot be extended to the applicant. The order dated 02.07.2016 is under challenge in this OA.

3. The applicant has sought the aforesaid relief, inter alia, on the following grounds:-

(i) The Respondents erred in placing applicant in junior most position in the reversed post of Fitter (Skilled) when he was already reversed to the lower post due to compassionate transfer.

(ii) The Respondents have not followed its own Circular OFB Lr.No.429/A/I dated 28/05/1974 and Ref. No. namely OFB Lr. No.429/Policy/ A/I dated November 2006 guidelines.

(iii) The Respondents failed to see that the applicart has been subjected to great humiliation when his juniors have been posted ta higher post and they are getting promotion as compared to the applicant.

(iv) The Respondents failed to see that the act of the Respondent tantamount to double Jeopardy.

(v) The Respondents have erroneously applied the principal of Estoppel for commissioning an illegal act.

(vi) The Respondents ought to have extended the benefit of the order passed in O.A No 1476 of 2013 as the subject matter is similar,

4. The respondents filed a detailed reply. It is stated in the reply affidavit that the applicant came to HVF, Avadi on his awn request and on his undertaking for reversion to the post of Fitter (Skilled). In view of the undertaking, it is not permissible for the applicant to contend that his initial date of promotion as Fitter (Skilled) in HAPP, Trichy is to be taken into consideration. For better appreciation of the plea advanced by the respondents (R1-3), we may refer to para 4, 5 and 6 of the reply affidavit filed by them and is thus:

"4. With regard to Para 4.1, it is most respectfully submitted that the applicant was working as Fitter Highly Skilled which is an Industrial Employee Cadre Post in the 4" respondent factory (HAPP, Trichy- a Sister factory). In the said post, Industrial employees are appointed in SemiSkilled post, promoted to Skilled, then to Highly Skilled Grade-II and Highly Skilled Grade-I respectively. The applicant then applied for InterFactory transfer to 3° respondent factory (HVF, Avadi, Chennai -600 054) on compassionate grounds. Since the posts of Industrial Employees are factory based posts, the applicant had already been promoted to the grade of Highly Skilled, in Inter Factory transfer of industrial employees, from other sister factories in the higher grades like HSII & HS-I are not accepted. This is because of the fact that any inclusion of a new incumbent in between in the promotional post will hinder the promotional prospects of the existing employees in the lower grade who are working in the 3% respondent factory. However, as a special case under extreme grounds of compassion, requests for transfer on their-own interest, to a lower post of Skilled grade is considered. This is after giving an unconditional undertaking to that effect that, they are willing to go to the lower grade on their own volition. They will not seek the seniority of Highly Skilled grade, once their appointment on transfer on compassionate grounds is accepted in the recipient factory. Accordingly, it was accepted by the Competent Authority. This consideration on the basis his own Undertaking submitted by the applicant (Annexure-R1). Accordingly, the applicant was relieved from the 4% respondent's factory (HAPP, Trichy). Only after reverting the applicant to Skilled grade vide Factory Order Part II No.1120 dated 16.09.2005 (Annexure A-4 of OA, Page No.11) which clearly stated that his seniority in the post of Fitter Skilled grade will be reckoned only from the date of joining duty at HVF Avadi, Chennai (3% respondent factory) on 19.09.2005 for the purpose of Trade Test and promotion in terms of DGOF Letter No.429/A/T(Vol-II) dated 15.10.1976 as the transfer waS on compassionate grounds. The applicant was taken on the strength of 3rd respondent's factory that too as junior most in the Fitter Skilled grade as per rules on the subject. Had this undertaking not been given, then the question of taking the applicant in the recipient factory (i.e., respondent No. 3) never arises. His case would have been outrightly rejected.

5. It is most respectfully submitted that the above transfer was on the basis of the rules circulated by the 2" respondent. The applicant was fully aware of the consequences of such reversion and knowing it well, he had volunteered for reversion and got his transfer to 3% respondent factory and for this reversion he had submitted an undertaking on his volition. Now after having achieved the compassionate transfer to the 3rd respondent factory after giving an undertaking for his reversion the applicant is now crying foul of such transfer, Having accepted the terms and conditions of transfer, the applicant is now estopped from challenging the same at this stage.

6. With regard to Para 4.2, it is most respectfully submitted that the applicant was fully aware that, he has to lose his Highly Skilled grade and be reverted to Skilled grade on his transfer to 3% respondent factory from 4” respondent factory. The seniority of employees in Industrial Employees Grade is maintained factory-wise and any lateral insertion of employees from other factory will not be acceptable to existing incumbents. In Skilled grade also, the applicant could be placed only in junior most level, since his transfer from the 4% respondent factory to 3 respondent factory may affect the promotional prospects of the existing Fitters in Skilled grade in the 3° respondent factory. Hence, as per the rules on the subject, the applicant has to be placed in the bottom of the seniority list in the skilled grade. The applicant was fully aware of the consequences and had also executed an undertaking to this effect. In cases of transfer on employee's own interest from one factory to another on compassionate grounds, the seniority of the concerned employee in the existing grade shall be reckoned from the date he joins the new factory. In fact, the applicant had attached the relevant OF Board Instructions No.429/Policy/A/I dated 29.11.2006 (Annexure A2 of the OA, Page No.06) where in Para(2.a) it clearly states as under:-

"In case transfer from one factory to another factory on compassionate grounds on individual's own interest, the seniority of concerned individual in the existing grade shall reckoned from the date he joins the new factory”.

Hence, the contention of the applicant that the OF Board letter No. 429/A/I dated 28.05.1974 and Nov 2006 had been violated by the 3 respondent is not correct and hereby denied. There is no double jeopardy as claimed by the applicant. He was well aware of the consequences of transfer from one factory to another on compassionate grounds. It is the applicant who submitted an undertaking to this effect. Had he not done so his case would have been outrightly rejected by the 3” respondent. Now having got his transfer on compassionate grounds, the applicant conveniently wants to forget his own undertakings and policy directives of respondent. After enjoying the fruits of a transfer by under taking by foregoing the same earlier, now the applicant is seeking the benefits, which, he had voluntarily foregone. Hence, the contention of the applicant is not correct and the same cannot be accepted.”

The respondents pray for dismissal of the O.A

5. The respondents have relied upon the following decision of the Hon'ble High Court of Madras dated 05.07.2016 in WP No. 4669 of 2016 in support of their contention.

6. Heard the learned counsel -for the respective parties and perused the pleadings and documents on record.

7; It is contended by the learned counsel appearing for the applicant that the applicant came to the 3% respondent on request transfer foregoing his promotional post as Fitter (Highly Skilled) accepting the lower post as Fitter (Skilled). As per the circulars of the respondent department, the employee on request does not loose the seniority on the lower post. Learned counsel refers to the circular dt. 28.08.1974. Much emphasis has been laid on the following portion of the circular which reads as hereunder:

“ Doubts have been raised by certain Factories whether Seniority of IEs who are transferred on mutual basis will also be reckoned from the date they join the New Factories and whether in cases of Volunteers who seek transfer on reversion to lower posts in the new factories; loss of seniority would also be involved. It may be clarified that in cases of mutual transfers, loss of seniority will also arise on the lines indicated in this Headquarters circular letter quoted above. So far as volunteers seeking transfer on reversion to lower posts are concerned, loss of seniority in the lower grade also should not arise."

Further, learned counsel for the applicant also cited order of this Tribunal dated 19.08.2015 passed in OA 1160/2013.

8. Learned counsel for the respondents submits that the undertaking given by the applicant at the time of transfer from one factory to other is crystal clear that he is foregoing not only his promotional post but also seniority in the lower cadre. The learned counsel laid much emphasis on the undertaking given by the applicant. (Annexure R1). Learned Counsel for the respondents also relied on the order of the Hon'ble High Court of Madras dated 05.07.2016 in WP 4669 of 2016 in a similar matter (appeal filed by the respondents against order of CAT-Madras Bench order dt. 19.08.2015 in OA 1161/2013). Learned counsel for the respondents has further stated that there is no All India seniority and factory-wise seniority is only maintained and, therefore, the request of the applicant cannot be acceded to.

9. It is an admitted fact that prior to transfer to HVF, Avadi, the applicant has served as Fitter (Highly Skilled) in HAPP, Trichy and subsequently, on his request he has been transferred to HVF, Avadi and posted as Fitter (Skilled). The only point that has to be decided in the present OA is as to whether the applicant can claim his original seniority since he has been transferred from one factory to another. The entire contention put forth on the side of the respondents is based on OF Board Instructions No. 429/Policy/A/I dt. 29.11.2006 wherein para 2.a clearly states as under:

"In case of transfer from one factory to another on compassionate grounds on individual's own interest, the seniority of concerned individual in the existing grade shall be reckoned from the date he joins the new factory."

10. It is an admitted fact that the applicant has been transferred from HAPP, Trichy to HVF, Avadi only on the basis of his undertaking wherein, inter alia, it is stated as thus:

"1. I understand that my transfer to HVF/Avadi on reversion Fitter-Skilled grade is purely on compassionate grounds.

2. I have understood that my seniority will be as per existing rules on compassionate grounds transfer at, HVF on reporting."

11. Two aspects are involved in this case - (a) Reversion to a lower grade and (b) loss of seniority in the transferred post. The former is governed by FR. 15(a)(2)(a) while the latter, by guidelines of transfer from one factory to another. In so far as (a) is concerned, a request transfer could be acceded to, for transferring an individual from one post to another carrying a less pay than the pay of the post one holds on substantial basis. This benefit is afforded to the individual to accommodate him in the new place of posting at his request and the price paid for the same is loss in his pay. Such a loss in his pay does not in any way affect any other persons. In so far as transfer on compassionate grounds from one unit to another having disparate seniority lists, if the seniority of the previous unit is maintained even in the new factory, the same would unduly affect the promotional prospects of those in the said grade in the transferred unit. The guidelines thus take care of the interest of those individuals already working in the transferred unit in the following way:-

(a) The transfer is permissible only when there is an element of direct recruitment in the concerned post to which an individual is transferred from one unit to another. This is to ensure that the promotional prospects of those in the feeder grade are not hampered.

(b) While accommodating an_ individual against a direct recruit post, in so far as seniority is concerned, the seniority position of those already in the concerned post in which the individual is transferred should not be hampered. It is for this reason that the transferred individual is placed at the bottom of the seniority list.

The undertaking given by the applicant as extracted above meets the above two requirements - former for transfer to a post carrying less pay and thus in terms of FR 15(a)(2)(a) and the latter with reference to loss of seniority in terms of the guidelines.

12. The applicant seeks the relief of direction to be issued to the respondents to keep his seniority intact from the date he has been holding the post of Skilled Grade in the fourth respondent organisation. His focus in the representation has been only for retention of his seniority in the Skilled Grade intact. If the relief is acceded to, the same would then offend the guidelines on request transfer and it would unduly affect the seniority of others in the transferred unit. Therefore, it is quite clear that the seniority of the applicant cannot be reckoned from the date he was holding the said post of Skilled grade in the earlier factory. Thus, the 3° respondent after considering the existing circular, clarification and guidelines has rightly stated in the impugned order that the seniority of the applicant will be reckoned from the date of joining in the new factory. Further the applicant after joining 3% respondent's factory on 19.09.2005 had also been promoted to Highly Skilled Grade-II on 01.08.2008 and Highly Skilled Grade-I 01.07.2015, by virtue of his own seniority availed in the 3% respondent factory. None of the juniors of the applicant were granted promotion before the applicant overlooking his claim or seniority. Hence as such the applicant has nothing to lose. Further, the revision of seniority at this stage will unsettle the settled position.

13. The Hon'ble High Court of Madras vide in its order dated 05.07.2016 made in WP No. 4669 of 2016 in a similar matter (appeal filed by the respondents against this CAT Madras Bench order dated 19.08.2015 in OA No. 1161 of 2013); held as under:

“7. The only point that has to be decided in the present petition is as to whether the first respondent/applicant can claim his original seniority, since he has been transferred from one factory to another.

8. The entire contention put forth on the side of the petitioners is based on the Circular dated 28.5.1974, wherein it is stated like thus:-

"4 » that in the case of an Industrial employee transferred from one factory to another on . compassionate grounds on request, his seniority in the existing post will be reckoned from the date he joins in the new factory".

9. It is an admitted fact that first respondent/ applicant has been transferred from Aruvankadu to Avadi only on the basis of his requisition, wherein it is stated like thus:-

I understand that my seniority in the re-designated/. reverted trade/ Grade will be reckoned from the date I join new factory for the purpose of trade test, promotion, permanency etc,.

10. Even in the Policy Guidelines and instruction of transfers of Industrial employees, it is stated that in cases of transfer from one factory to another factory on compassionate grounds, on individual's own request, the seniority of the concerned individual in the existing grade shall be reckoned from the date he joins the new factory. Therefore, it is quite clear that the seniority of the first respondent/applicant will be reckoned only from the date of joining in the new factory.

11. The Central Administrative Tribunal, without properly considering the Circular and other Guidelines, has erroneously set aside the impugned order dated 26.6.2013 passed by the third petitioner/third respondent. In fact, the third petitioner/ third respondent, after considering the existing Circular, Clarifications and Guidelines, has rightly stated in the impugned order that the seniority of the first respondent/ applicant will be reckoned from the date of his joining in new factory. Therefore, viewing from any angle, the order passed by the Central Administrative Tribunal, Madras Bench is totally erroneous and same is liable to be quashed. In fine, this writ petition is allowed without cost.

The order of the Hon'ble High Court of Madras dt. 05.07.2016 in WP 4669 of 2016 (supra) is applicable to the facts of the present case.

14. The undertaking requisitioned by the respondents also is in order on the basis of which too, the applicant had to forego his seniority of the previous factory and thus it is not a case of unconscionable transaction to treat the undertaking void under Sec. 23 of the Contract Act. O.A. No 1476 of 2013 relied upon is also of no avail to the applicant in view of the decision of the High Court of Madras in WP 4669 of 2016.

15. Accordingly, the OA being devoid of merit is dismissed but in the circumstances without any order to cost.