Central Administrative Tribunal - Allahabad
Praveen Kumar Rai vs Union Of India on 28 February, 2012
Open Court CENTRAL ADMINISTRATIVETRIBUNAL, ALLAHABAD BENCH, ALLAHABAD (This the 28th Day Of February, 2012 Honble Mr. Shashi Prakash- AM Original Application No.145 of 2012 (U/S 19, Administrative Tribunal Act, 1985) Praveen Kumar Rai, JAG/ IRSEE, Batch 1997, aged about 36 years, son of Sri Ramakant Rai, Resident of Quarter No.796, Kaua Bagh Railway Colony, Near Railway Crossing, Gorakhpur. Presently working as Deputy Chief Electrical Engineer under North Eastern Railway, Gorakhpur. . Applicant By Advocate: Shri Shyamal Narain Versus 1. Union of India, through the General Manager, North Eastern Railway, Gorakhpur. 2. The Railway Board, Ministry of Railways, Government of India, New Delhi, through its Chairman. 3. The General Manager, CORE, Allahabad. 4. The General Manager (Personnel) North Eastern Railway, Gorakhpur. 5. Sri Himanshu Singh, Senior Scale/IRSEE, Presently, Deputy Chief Electrical Engineer (Mechanical Workshop), North Eastern Railway, Kaua Bagh, Gorakhpur. .. . Respondents By Advocates: Shri Avnish Tripathi (1 & 4) Shri Anil Kumar ( 2 & 3) O R D E R
This O.A. has been instituted for the following relief/s:-
(i) Quash and set aside the impugned orders dated 09.12.2011 and 20.12.2011 (Annexure Nos. A-1 and A-2 to Compilation No.I to the Original Application, respectively)
(ii) Issue a suitable order or direction to the respondents to retain the applicant under North Eastern Railway, Gorakhpur, and pass the requisite posting orders in that regard.
2. In a nutshell, the facts of the case are that the applicant belongs to 1997 Batch of Indian Railway Service of Electrical Engineer. During the course of his services the applicant has been given several postings, the last being Deputy Chief Electrical Engineer, Railway Electrification on deputation to Central Organization for Railway Electrification (for short CORE) since August, 2009. By an order dated 14.10.2011, the Railway Board issued an order transferring the applicant from the post of Dy. Chief Electrical Engineer, CORE to his cadre the North Eastern Railway, Gorakhpur for further posting. Along with the order of the transfer of the applicant, one Shri Himanshu Singh/ Respondent No.5 was also transferred vice the applicant.
3. The applicant was relieved from his post under CORE on 12.12.2011 and after handing over his charge and the metal pass reported for joining under North Eastern Railway on the same date. A copy of his joining report was furnished to the Chief Electrical Engineer, N.E. Railway, Gorakhpur. After joining N.E. Railway, Gorakhpur the applicant did not get any posting order. Thereafter, on 20.12.2011 the applicant was served with an order intimating that the transfer order dated 14.10.2011 had been cancelled vide Railway Boards order dated 09.12.2011 sending him back to the CORE, Allahabad.
4. It is the case of the applicant that the impugned order dated 09.12.2011 is a thinly veiled exercise to favour Shri Himanshu Singh, Deputy CEE, N.E. Railway/ Respondent No.5, who had also been transferred along with the applicant vide order dated 14.10.2011. It is alleged that the impugned order has been passed to favour the respondent No.5 who wishes to remain in the N.E. Railway and not join CORE. This averment is corroborated by the fact that the applicant, in spite of having joined on 12.10.2011, was not given any posting order for one whole week, when in terms of order dated 14.10.2011 the respondent No.5 could have been relieved and the applicant could have been posted against the post vacated by him. It has further been averred that this exercise was deliberately not undertaken and time was allowed to pass without any reason till the passing of the cancellation order dated 09.12.2011. This averment is further confirmed by the fact that by the order dated 10.01.2012 passed by the General Manager (Personnel), North Eastern Railway, Gorakhpur, the period from 12.12.2011 to 21.12.2011, during which the applicant was not provided any posting was decided to be treated as waiting for order. It is alleged by the applicant that the cancellation of the order of the earlier transfer order was arbitrary in nature in absence of any justifiable reason of administrative interest. It is the case of the applicant that in pursuance of the cancellation order, the applicant has been sought to be repatriated to CORE, Allahabad with the implication that it is now open for the CORE to post him anywhere under CORE, and not necessarily at Gorakhpur, thereby creating difficult personal situation for the applicant. Given these facts and circumstances, the applicant has stated that the order of the Railway Board dated 09.12.2011 cancelling the transfer order dated 14.10.2011 is arbitrary and malafide and therefore, liable to be set aside. He also submitted that he has not been relieved or spared from N.E. Railway till date, where he had, admittedly, joined on 12.12.2011.
5. In the Counter Affidavit, the respondents have stated that the applicant is a Grade A Officer belonging to IRSEE having an All India Services Liability as per the administrative requirement of the Department and hence he can be posted anywhere in India. It has further been stated that the applicant has been posted in N.E. Railway at Gorakhpur for a prolonged period excepting certain stray period. Keeping in view the exigencies of work, the applicant was transferred from CORE to N.E.R. Gorakhpur and Shri Himanshu Singh, Respondent No.5 was transferred to CORE in his place. It is stated that as per the Railway Board letter dated 7.8.1998 on the subject of the implementation of Inter-Railway Transfer of the officers, such transfer orders are closely monitored by Railway Board every month and review of transfer orders is undertaken and appropriate decision taken based upon administrative exigency.
6. The order dated 14.10.2011 transferring the applicant to North Eastern Railway and posting the respondent No.5 in his place was not implementation for more than 1 and = months. It was in contravention of the Railway Boards circular mentioned above and hence, transfer order dated 14.12.2011 was reconsidered by the Board and was cancelled by an order dated 09.12.2011. As 10th and 11th December, 2011 were Saturday and Sunday, the confirmation of this order was dispatched to the concerned authorities on 12.12.2011. It is stated by the respondents that since the cancellation order was issued on 9.10.2011 before reporting for joining by the applicant on 12.12.2011 there is no malafide intention behind issue of cancellation of transfer order dated 14.12.2011. Therefore, the allegation of malafide in the matter is not tenable.
7. The respondents also filed Supplementary Counter Reply, wherein it has been clarified that since the transfer order dated 14.10.2011 had not been carried out till the issue of impugned cancellation order dated 09.12.2011 and sufficient time of 1 and = months had lapsed, the Chief Electrical Engineer, N.E. Railway Gorakhpur requested Railway Board for cancellation of the same. Accordingly, the Railway Board being the Competent Authority in the matter, considered the request of the Chief Electrical Engineer, N.C.R. Gorakhpur and cancelled the earlier transfer order before the relinquishing of the charge by the applicant.
8. It may be relevant to mention here that the notice was issued to the respondent No.5 on 09th February, 2012 and as per office report the same has not been back.
9. Learned counsel for the applicant referred to the averments made by him in his Rejoinder Affidavit and submitted that while in Para-2 of the Counter Affidavit, the respondents have clearly stated that the order of transfer dated 14.10.2011 was cancelled by the Railway Board on the request made by the Chief Electrical Engineer, N.E. Railway in administrative interest, however, in subsequent Para Nos. 9, 10, 21, 22, 24 and 28 of the Counter Reply the stand taken is at variance with the position taken in Para-2. He drew the attention to the impugned order of the Railway Board dated 09.12.2011, wherein the sole reason cited for cancellation of the applicants transfer from CORE to N.E. Railway was the request made by the CEE, N.E. Railway in this regard. He pointed out that it is evident from the counter reply that the reason repeatedly given for cancellation of the transfer order was non implementation of the transfer order for 1 and = months which led to review of the transfer order by the Railway Board. This reason is altogether missing from the impugned order.Learned counsel further argued that the respondents have not annexed any record of the Railway Board to show that the order of the transfer dated 14.10.2012 had been cancelled on the ground that the same had not been implemented for a month and half as this reason does not find mentioned in the impugned order. Learned counsel argued that the same has been concocted for the purpose of this case and has no existence in the fact. In the circumstances, the impugned order is arbitrary and hence needs to set aside.
10. Learned counsel for the respondents reiterated the stand taken in their Supplementary Counter Reply and confirmed the stand taken by the respondents in Para -2 of the Counter Reply. He argued that while the applicant was transferred from CORE to N.E. Railway, Gorakhpur by letter dated 14.10.2011, the same could not be implemented till the issue of the impugned cancellation order dated 9.12.2011. He further submitted that as the applicant could not join in view of earlier transfer order dated 14.10.2011 and sufficient time of 1 and = months had elapsed since then, the Chief Electrical Engineer, Gorakhpur requested the Railway Board for cancellation of his transfer order and accordingly the Railway Board considered the said request and cancelled the earlier transfer order by its letter dated 09.12.2011. He argued that it will be observed that the impugned cancellation order was passed before relinquishing of charge and submission of joining report at N.E. Railway by the applicant on 12.12.2011. In the circumstances there is no malafide intention behind the issue of cancellation order of the transfer and the O.A. lacks merit and deserved to be dismissed.
11. Heard counsel for both the parties and also perused the pleadings on record as well as the original file furnished by the counsel for the respondents relating to processing of the impugned order cancelling the transfer order dated 14.10.2011. Here, it is thought fit that a recapitulation of the events may be useful for full appreciation of the issues involved in the case. It is seen that the applicant vide letter dated 14.10.2012 was transferred by the Railway Board from CORE to his parent cadre, N.E. Railway along with respondent No.5, who was transferred to CORE vice the applicant. Accordingly, the CORE by its letter dated 02.12.2011 issued the transfer order of the applicant. The applicant relinquished the charge in CORE on 12.12.2011 and also handed over metal pass No.455, which was received in the office. On the same day, the applicant reported in the N.E. Railway, Gorakhpur and submitted his joining report and requested for issue of posting order. Thereafter, by order dated 9.12.2011, the Railway Board cancelled the transfer order dated 14.10.2011 issued by it. The cancellation order of the Railway Board was served upon the applicant on 21.12.2011 as per the communication dated 10.01.2011 of General Manager (P) N.E. Railway (Annexure No.9). In the same communication it was mentioned that period of applicant from 12.12.2011 (date of joining) till 21.12.12011 (date of serving the cancellation transfer order) was declared as period waiting for order. By another communication, the Office of the General Manager, N.E.R. Gorakhpur, intimated the General Manager, CORE, Allahabad about the cancellation of the transfer order of Shri P.K. Rai (Applicant) by the Railway Board vide their order dated 9.12.2011 and placed his services at the disposal of Core.
12. It is seen from the Counter Reply and submissions made by the respondents that the reason cited by them are inconsistent and run contrary in the face of each other. While, in Para-2 of the Counter Reply, it has been specifically mentioned that the cancellation of the transfer order was due to the request made by CEE, N.E. Railway, in the subsequent paragraphs of the Counter Reply, it has been said that the cancellation of the transfer order passed by the Railway Board was in pursuance of Railway Board Circular under which the Board is required to closely monitor the transfer orders of Senior Officers and review the same for appropriate action. It has been contended that since the transfer order remained unimplemented for the period of 1 and = months, the Railway Board reviewed the aforesaid order and undertook to cancel it. A perusal of the original file as produced by counsel for the respondents (Photocopy of which has been taken on record) indicates that in both the correspondence and noting part of the processing of the cancellation of this order, there is a request made by the Chief Electrical Engineer, N.E. Railway, Gorakhpur to Additional Board Electrical, Railway Board vide letter No. l&,Yk@dl@7@Hkkx-1 dt. 04.11.2011 referring to his discussion with the Additional Member, Railway Board (Electrical) for cancellation of the transfer of the applicant. The CEE in his letter specifically stated that keeping the discussed facts in mind the transfer order of the applicant should be cancelled. From the note-sheet side of the file, it is clear that the aforesaid request of Chief Electrical Engineer is the sole basis for cancellation of the transfer order. This fact has been further affirmed by the Railway Board in its letter dated 15.02.2012 (Annexure RA-1) addressed to General Manager, North Eastern Railway, Gorakhpur, the extract of which reproduced below:-
The factual position of the matter is that the Application is a Gr. A officer of the Indian Railway Electrical Service having All India Service Liability and as such he can be transferred and posted anywhere in India. The Applicant was transferred from CORE to NER vide Railway Boards wireless No. E(O)III-2011/TR/364 dated 14.10.2011. However, his transfer order was cancelled vide Railway Boards wireless No. E(O)III-2011/TR/364 dated 09.12.2011 dated 09.12.2011. The order was cancelled by the Competent Authority considering the request made by Chief Electrical Engineer, NE Railway for cancellation of transfer order of the Applicant in administrative interest. (emphasis added)
13. This communication of the Railway Board unequivocally establish that the cancellation of the transfer order has been made specifically on the request of the Chief Electrical Engineer, N.E. Railway, Gorakhpur. In this connection, it may be relevant to note that the request of the Chief Electrical Engineer, N.E. Railway, Gorakhpur to the Additional Member Railway Board was issued on 04.11.2011. The Railway Board seems to have slept over this letter and it would be reasonable to infer that it is only when the applicant in pursuance of the transfer order got himself relieved and joined at N.E.R., Gorakhpur on 12.12.2011 that it chose to take action on the request of Chief Electrical Engineer. Taking these circumstances into account, it may be deduced that the cancellation order could perhaps have been back dated to 09.12.2011 as alleged by the applicant to give the impression that it was issued before relinquishing of charge and submission of the joining report by the applicant in pursuance of transfer order. In this connection it may be also relevant to note that in the communication dated 10.01.2012 (Annexure A-9) issued by General Manager (P), N.E. Railway relating to fact of the service of the cancellation order on the applicant on 21.12.2011 shows 09/12.12.2011 as the date of the cancellation order. This fact also adds an element of ambiguity so far as the date of issue of the cancellation order by the Railway Board is concerned. It is to be further noted that the request letter of CEE to Additional Member, Railway Board is terse in nature and does not state any specific reason calling for the cancellation of the transfer order of the applicant. It merely makes a mention of a discussion with the Additional Member, Railway Board and its content. What were those content is any bodies guess. In absence of any specific reason for seeking cancellation of the order of the transfer order, the entire exercise comes under cloud. It also demonstrates a lack of transparency and objectivity in handling of the matter.
14. Having regard to the above facts, it is clear that the impugned cancellation order of the transfer of the applicant has not been made in an objective and fair manner. I am inclined to observe that in cases of such isolated transfer there should be sufficient reason behind it, which needs to be appropriately reflected in the record while processing the same. In the instant case, it is plain that the entire process of passing the impugned order suffers from lack of objectivity, transparency, fairness and arbitrariness.
15. Accordingly, the O.A. is allowed. The order dated 09.12.2011 (contained in Annexure No.1) and the consequential order dated 20.12.2011 is quashed and set aside. No costs.
(Shashi Prakash) Member-A Sushil ??
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