Central Administrative Tribunal - Hyderabad
Buddhi Prakash Meena vs South Central Railway on 14 December, 2023
OA No.20/858/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: AT HYDERABAD
OA No.20/00858/2021
Reserved on: 20.09.2023
Pronounced on: 14.12.2023
Hon'ble Mr. Sudhi Ranjan Mishra, Judicial Member
Between:
Buddhi Prakash Meena, S/o. Hanuman Prasad Meena,
Aged 33 years, Occ: Chief Controller,
O/o. Senior Divisional Operations Manager,
South Central Railway, Guntakal Division,
Guntakal, Anantapur Dt, AP.
...Applicant
(By Advocate: Mr. KRKV Prasad)
Vs.
1. Union of India Rep. by
The General Manager,
South Central Railway,
Rail Nilayam, Secunderabad.
2. The General Manager,
North Central Railway,
Subedarganj Prayagraj - 211 011.
3. The Divisional Railway Manager,
South Central Railway,
Guntakal Division, Guntakal.
4. The Divisional Railway Manager,
Agra Division, North Central Railway,
Mall Road, Sultan Pura, Cantt. Idgah,
Uttar Pradesh - 282001.
5. The Senior Divisional Personnel Officer,
South Central Railway,
Guntakal Division, Guntakal.
...Respondents
(By Advocate: Mr. V. Vinod Kumar, Sr. PC for CG)
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OA No.20/858/2021
ORDER
(As per Mr. Sudhi Ranjan Mishra, Judicial Member) The applicant filed this OA seeking the following relief:
"..to call for the records pertaining to letter of acceptance dated 19.01.2021 and 10.09.2021 issued by Agra Division in the matter of Inter Railway Request Transfer of the applicant, and declare the action of the respondent Guntakal Division in delaying the relieving of the applicant to Agra division as illegal, arbitrary, unjust, discriminatory; (ii) direct the respondent Guntakal Division to relieve the applicant to Agra division forthwith and grant all consequential benefits to the applicants.."
2. It is the case of the applicant that the applicant was appointed as Section Controller in the Operating Department of Guntakal Division, SC Railway and he was later promoted as Chief Train Controller. While working so, he applied for Inter-Railway Request Transfer (for short "IRRT") to Delhi Division and the same was forwarded by the Guntakal Division vide letter dt. 20.01.2020. However, Delhi Division vide letter dt. 06.02.2020 conveyed that there was no vacancy in the cadre of Chief Controller at that time. Thereafter, the applicant‟s request was forwarded to Agra Division in North Central Railway and the Agra Division conveyed acceptance vide letter dt. 19.01.2021 with a condition that the applicant shall join the lower grade post of Section Controller on bottom-most seniority. The applicant, vide letter dt. 06.05.2021, requested the 2nd respondent to relieve him to join Agra Division. Through communications dt. 02.06.2021 and 22.06.2021, SC Railway Zonal HQs, with reference to the request of the applicant, wanted to know from the Guntakal Division about status of selection to fill up vacancies and the 5th respondent vide letter dt. 05.07.2021 intimated that it would take 3 months i.e. 30.09.2021 to complete the process. The Guntakal Divisional, vide letter dt. 08.07.2021, also sought extension of the validity of NOC issued to the applicant for a period of further six months as Page 2 of 9 OA No.20/858/2021 his relief was getting delayed and in response thereto, the Agra Division, vide letter dt. 10.09.2021 extended the validity of NOC for six months i.e. up to 18.01.2022. But, as the selection process was not likely to be completed by then, the applicant, who is a cardiac patient, being concerned about the delay in getting relieved from Guntakal, approached this Tribunal.
3. This Tribunal, while ordering notice to the respondents on 16.12.2021, granted an interim order extending the NOC for a further period of six months.
4. The respondents filed reply statement and the applicant filed rejoinder.
5. Heard learned counsel for the applicant and the learned Standing Counsel for the respondents and perused the pleadings and material on record.
6. It is the contention of the respondents that mere acceptance of the request by the Division/ Railway is not final and the process of transfer and relieving is subject to availability of suitable replacement and cadre strength, etc and the same cannot be claimed as a right. It is further stated that transfer being a policy matter and different from cadre to cadre, employees will be relieved on the basis of vacancy position and since the applicant has given undertaking that he may be relieved subject to availability of suitable relief, he cannot claim for immediate relief till vacancy position of the category improves. It is further stated by the respondents that in obedience of the orders of this Tribunal dt. 16.12.2021, Page 3 of 9 OA No.20/858/2021 letter dt. 18.01.2022 was addressed to Agra Division to extend the validity of NOC for a further period of six months, but no such extension has been received from Agra Division. It is the contention of the respondents that, during the pendency of the OA, NOC issued to the applicant was cancelled by the Agra Division of North Central Railway vide letter dt. 07.01.2022 in terms of Railway Board letter dt. 29.05.2020 (RBE No. 40/2020) as the Direct recruitment quota element for the post of Section Controller in GP Rs.4200/- (Level-6) has been withdrawn. Hence, he is not entitled for the relief and sought dismissal of the OA.
7. The applicant filed rejoinder contending that his application was made for IRRT in March 2020 and NOC was received on 19.01.2021 and he requested on 06.05.2021 to relieve him. The Zonal HQs also wanted to know when Guntakal Division would relieve him and the latter indicated to the Zonal HQ that the applicant would be relieved by 30.09.2021. As the priority for relieving is maintained based on the date of application, the subsequent Railway Board letter dt. 28/29.05.2020, conveying that there is no direct recruitment in the cadre of Section Controller has no application to his case. Even after the Railway Board order vide RBE No.40/2020, based on the Guntakal Division‟s request on 08.07.2021, Agra Division also extended the NOC issued to him, by six months vide letter dt. 10.09.2021. It is contended by the applicant that, change in policy of recruitment is silent above the pending requests for IRRT and as such, without consulting Railway Board, cancelling the NOC issued earlier by the Agra Division vide letter dt. 07.01.2022 is not correct. More so, when this Tribunal granted an interim order on 16.12.2021 extending the validity of Page 4 of 9 OA No.20/858/2021 NOC by six months, without leave from this Tribunal, the Agra Division could not have cancelled the NOC and such action tantamounts to contempt of the court as it is in deliberate violation of the interim order dt. 16.12.2021.
8. The applicant filed written submissions wherein he reiterated that his application for IRRT was made in March 2020 and even after the RBE No. 40/2020, dt. 28.05.2020 discontinuing the post of Section Controller on Direct Recruitment quota, both the Railways acted on his request and NOC was granted by Agra Division, which was also extended further. It is further contended that Railway Ministry‟s decision under relevant statutory Rule 226 of IREC does not speak of „direct recruitment‟. He cited the judgment of the Hon‟ble Apex Court in Madhya Pradesh v. Yogendra Shrivastava (2010) 12 SCC 538, to submit that the executive orders cannot be given effect in violation of Rules framed under Rules 309 of the Constitution of India and that rights already accrued canot be taken away by amendment of the Rules with retrospective effect. He further submitted that executive instructions would not prevail over the statutory regulations as per the decision of the Apex Court in T.N. Housing Board v. N. Balasubramanium (2004) 6 SCC 85.
9. Respondents, while admitting the factual position as above, stated that request transfers are allowed only in initial recruitment grades or in such intermediate grades in which there is an element of direct recruitment and since the element of direct recruitment in the Controller category is withdrawn, the request of the applicant for IRRT has not been considered by the Agra Division.
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OA No.20/858/2021
10. It is seen that due to personal difficulties, the applicant requested for IRRT and he is prepared to join the lower recruitment grade in the new zone/ division, by foregoing the seniority as well. His request was accepted by the relieving Administration as well as the accepting Administration and the latter also gave NOCs to the applicant. Having accepted the request of the applicant on IRRT long back, the respondents are supposed to come up with a concrete action plan to relieve the applicant at the earliest, because the applicant will have to join in the lowest recruitment grade, with bottom seniority. The arrangement of IRRT itself is formulated by the highest body in the Railway Administration, having taken all the stakeholders on board. It is for both the Railways/ Divisions concerned to sort out the issues inter se and see that the requests on IRRT, with valid NOC is acted upon and the employee concerned is relieved to join the respective division/ zone.
11. The primary contention of the respondents is that IRRT is accepted to posts which are notified for direct recruitment. Whereas, in the instant case, Agra Division cancelled NOC granted to the applicant on the ground that the post to which the applicant seeks IRRT is no more available for Direct recruitment in view of the Railway Board letter dt.29.05.2020. But, the fact remains that the applicant made his application for IRRT much prior thereto. Both the Railways/Divisions acted upon the same and issued NOC, which was extended by Agra Division at the request of Guntakal Division even after the above referred Railway Board order and eventually, Agra Division cancelled the NOC vide letter dt. 07.01.2022 referring to the Railway Board order dt. 29.05.2020. Even this Tribunal passed interim order dt. 16.12.2021 directing the respondents to extend the NOC of the Page 6 of 9 OA No.20/858/2021 applicant for another six months and the said interim order has been extended from time to time. The authorities of Agra Division/ Northern Central Railway are very much party to the instant OA. That being so, cancelling the NOC issued in favour of the applicant when the interim order is subsisting and during the pendency of the OA is not correct. Agra Division cancelled the NOC issued to the applicant on 07.01.2022, whereas, Guntakal Division addressed a letter to Agra Division on 18.01.2022 (Annexure R-3), keeping in view the interim order dt.16.12.2021, requesting to extend the validity of NOC for a further period of six months in favour of the applicant so as to relieve the applicant. Thus, it is clear that both the Railways/ Divisions acted on the request of the applicant for IRRT even after the Railway Board order and having done so, abruptly cancelling the NOC issued to the applicant by the Agra Division, without even intimation to this Tribunal when the matter is sub-judice before this Tribunal, is not correct.
12. The issue relating to IRRT was dealt by the Hon‟ble High Court for the State of Telangana in WPs 31544/2016 and WP Nos. 11551/2019 & batch and observed that once a policy decision is taken to grant IRRT, it would not be proper not to relieve those who got the IRRT. Following the order of the Hon‟ble High Court, this Tribunal adjudicated OA 402/2021 vide order dt. 17th day of June, 2021 as under:
"The dispute is in regard to not relieving the applicants on IRRT. Respondents not relieving the applicants is a common dispute which figures too frequently before this Bench. In fact, the issue has become so acute that the Hon'be High Court of Judicature at Hyderabad for the state of Telangana and for the State of Andhra Pradesh had to intervene when a challenge was made against the order of this Tribunal in a batch of OAs and issue directions in WP No. 31544 of 2016 & batch, on 31.10.2017, as under:Page 7 of 9
OA No.20/858/2021 "8. We have carefully considered the above submissions. As seen from the Serial Circular issued way back in the year 2005, the employees are entitled to make requests for transfer from one Zone to another. Such transfers may be accepted or may not be accepted. But once these requests are accepted, the employees are to take the bottom most seniority in the Zone to which they are transferred.
9. In the cases on hand, it is not the case of the Administration that the requests of the respondents for Zonal transfer were liable to be rejected. Their requests were already accepted. The respondents did not go to the Tribunal seeking a positive mandamus directing the Railway Administration to transfer them from one Zone to another. If they were seeking a transfer through Court order, the Administration may be entitled to put Rule 226 of the Indian Railway Establishment Code.
10. But once their requests for Zonal transfers have been accepted, the same cannot be kept in cold storage. If we have a look at the timeline of events, it could seen that by the Circular dated 02-11-
2005, the Administration was directed to draw a time-bound programme. Exactly a period of 12 years has now passed from the date of the said Circular. No time-bound programme has been chalked out by the Administration. The Circular also mandates that existence of vacancies need not deter the implementation of the orders of transfer. Therefore, the Tribunal was right in allowing the applications of the contesting respondents.
11. It is interesting to note that the requests of the respondents for Zonal transfers were accepted way back in the year 2012 and 2013. Now a period of 4 to 5 years has passed. As and when the respondents go and join in the respective Zones, they have to take the bottom most seniority. Therefore, any further delay on the part of the Administration, will only weaken the morale of the persons, as it may dampen the prospects of their further promotions.
12. It is not the case of the Administration that no recruitment ever took place after 2012-13 up to this date. Their only case is that adequate number of persons could not be selected.
13. Therefore, in such circumstances, the blame, if at all there is any, may perhaps lie on the part of the Railway Recruitment Board and not upon the individual employees. Therefore, the writ petitions are dismissed. However, the Administration is given time up to 28th February, 2018 to relieve the respondents to enable them to join in their transferred places. To facilitate these applicants, the Railway Recruitment Board is directed to complete the process of recruitment by 31st January, 2018. The miscellaneous petitions, if any, pending in these writ petitions shall stand closed. No costs."
Thus, there are directions to the respondents from the Hon'ble High Court of Judicature at Hyderabad to relieve the employees who were granted Inter Railway Request Transfer, in a specified period. Respondents have to abide by the directions of the Hon'ble High Court.
II. Besides, Railway Board orders vide RBE No. 203/2019 dt.26.11.2019 & dt.1.10.2020 and R-1 instructions are clear that the employees granted IRRT have to be relived within 6 months and in case it is not possible, NOC has to be re- validated. Applicants claim that R-2 has been accommodating employees who have been granted NOC later without following the seniority in respect of Page 8 of 9 OA No.20/858/2021 approval of IRRT. This requires a reply statement to be filed by the respondents to verify this aspect.
III. Be that as it may, in the context of the directions of the Hon'ble High Court at Hyderabad cited supra and the directions of the Railway Board vide letters dated 26.11.2019 & 1.10.2020, it would not be appropriate for the respondents to delay the relief of the applicants, as it would adversely effect their seniority and future promotions. Thus, given the directions of the Hon'ble High Court & Railway Board, in the interest of justice, we direct the R-2 to accommodate the applicants as and when vacancies arise, strictly on the basis of the date of approval of IRRT in the respective cadre. NOC issued by R-2 in respect of applicants, if required, shall be re-validated as per Railway Board orders cited, till applicants are adjusted in East Central Railway. Further, R-5 is directed not to delay relief of applicants on receipt of appropriate orders from R-2."
13. In the peculiar circumstances of the case, this Tribunal deems fit to direct the respondents to take steps to accommodate the applicant in the Agra Division in view of the earlier acceptance given by both the Railways i.e. South Central Railway and the North Central Railway, dehors the cancellation order dt. 07.01.2022 issued by the Agra Division.
14. In view of the above, the respondents are directed to take necessary steps to accommodate the applicant in Agra Division on IRRT, by extending the NOC of the applicant, if necessary. The above exercise shall be completed by the respondents i.e. South Central Railway and the North Central Railway in coordination with each other, within a period of four months from the date of receipt of this order. Till then, interim order granted in this OA shall hold good. It is made clear that, this order shall not be treated as a precedent.
15. With the above directions, the OA is disposed of. There shall be no order as to costs.
(SUDHI RANJAN MISHRA) JUDICIAL MEMBER /evr/ Page 9 of 9