Central Administrative Tribunal - Delhi
Shri Suresh Kumar Sharma vs Union Of India Through on 5 May, 2011
Central Administrative Tribunal Principal Bench OA No.3396/2010 New Delhi, this the 5th day of May, 2011 Honble Dr. Ramesh Chandra Panda, Member (A) Shri Suresh Kumar Sharma S/o sh. Jagdish Chander Sharma, Working as Dy. Chief Ticket Inspector/Station, Delhi Sarai Rohilla Station, New Delhi. . Applicant. (By Advocate : Shri Yogesh Sharma) Versus 1. Union of India through The General Manager Northern Railway, Baroda House, New Delhi. 2. The General manager North Western Railway, Jaipur. 3. The Divisional Railway Manager Northern Railway, State Entry Road, New Delhi. 4. The Divisional Railway Manager North Western Railway, Bikaner (Raj). . Respondents. (By Advocate : Shri P. K. Yadav) : O R D E R :
Shri Suresh Kumar Sharma, the Applicant herein, joined the Railways in the post of Ticket Collector in Northern Railway, Bikaner Division on 12.12.1980. It is stated that in the year 2003, in Northern Railway, there was restructuring of Railway Divisions and part of Bikaner Division was transferred to North Western Railway for which some portions of Bikaner Division i.e. from Rewari to Delhi Sarai Rohilla were transferred from Bikaner Division to Delhi Division. The Respondent No.1 decided that the staff working as on 1.04.2003 on the said Section would stand transferred to Delhi Division. Accordingly, the Applicant who was then posted as Hd TTE at Delhi Sarai Rohilla Station while working in Bikaner Division stood transferred to Delhi Division as per the said directions w.e.f. 1.04.2003. It is stated by the Applicant that due to his family circumstances, he vide his earlier letter dated 25.03.2001 submitted a request letter indicating that he may be transferred to Rewari or nearby places but the same request was not considered by the Respondents. It is the case of the Applicant that vide letter dated 24.05.2005 (Annexure-A5) issued by Respondent No.3 under instructions from Respondent No.1 invited options from all the concerned staff transferred from Bikaner Division to Delhi Division on the basis of the then Policy as is where is basis. The said letter indicated that the option of the concerned staff should reach on or before 10.06.2005. It is the case of the Applicant that the benefit of exercising option was not extended to the cadre of ticket checking category as the copy of the letter dated 24.05.2005 including the option form was not forwarded to them. As a result, it is stated, that the Ticket Checking staff category could not exercise their option. It is further stated by the Applicant that w.e.f. 2003, the Applicant was posted under Rajdhani Express Staff, New Delhi and remained out of headquarter at least 4 to 5 days in a week on duty continuously and he did not know that he should be exercising his option as per letter dated 24.05.2005. He came to know of the same in the year 2008-09 from the similarly situated persons who transferred to Delhi Division on as is where is basis returned back to the Bikaner Division after exercising their option. It is the case of the Applicant that as some of the similarly situated employees of the Railways approached this Tribunal and in compliance of the directions of the Tribunal, Respondents transferred those similarly situated persons of other categories back to Bikaner Division. Vide letter dated 25.09.2009, the Applicant submitted his representation to the competent authority (Respondent No.3 and Respondent No.1). However, his request was rejected by the Respondent No.3 vide the order dated 25.09.2009 (Page-14) on the ground that the option time for seeking transfer back to Bikaner Division had expired in the year 2005 and the same would not be entertained in the year 2009. It is further the case of the Applicant that as the option was never called from the Ticket Checking Staff whereas the same was invited from all other categories which was clear from the letter of the Respondents dated 25.09.2009. The Applicant having been aggrieved by the said order submitted a detailed representation giving full facts to all the Respondents including Member-Staff Railway Board, New Delhi. However, vide letter dated 16.07.2010 (Page-15), he was communicated reiterating the same ground and rejecting the Applicants request as was communicated to him vide letter dated 25.09.2009. He further submitted his representation to the Railway Board, which on consideration was again rejected vide letter dated 13.07.2010 (Page-16). Thus, feeling frustrated and aggrieved by the said action of the Respondents and finding no other alternative approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with the following reliefs:-
(a) That the Honble Tribunal may be graciously be to pass an order of quashing the impugned order dated 25.09.09 declaring to the effect that the same is illegal, arbitrary and discriminatory and consequently pass an order directing the respondents to consider the case of the applicant for his transfer back to his parent division BKN Divn by way out inviting option as done in the case of similarly situated persons.
(b) That the Honble Tribunal may further graciously be pleased to pass an order directing the respondent No.4 to grant all the consequential benefits to the applicant on his transfer to BKN Divn like seniority, pay fixation, promotion and financial benefits etc. at par with the juniors of BKN Div.
(c) Any other relief which Honble Tribunal may deem fit and proper in the interest of justice to the applicants.
2. On 28.10.2010, when the case was heard by this Tribunal, learned Counsel for the Applicant who has also filed an additional affidavit, submitted that the Applicants relief would be restricted only to the prayer for transfer to his original Division, namely, Bikaner Division and for other reliefs, he would agitate separately. Accordingly, accepting the said submission the notice was issued to the Respondents and they have filed their counter reply. The case was finally heard on 4.05.2011.
3. Shri Yogesh Sharma, learned Counsel for the Applicant, highlighting the positions stated above, contended that the Applicant did not receive any intimation to exercise his option as per the Respondent No.3s letter dated 24.05.2005. He, therefore, could not exercise his option. He further submits that all the employees who were transferred from Bikaner Division to Delhi Division on the basis of as is where is basis principle constitutes a separate class and their option should have been called for whether to return back to their parent division (Bikaner Division) or to remain in Delhi Division. He further contends that the Ticket Checking Staff including the Applicant were not given that opportunity and no communication of the said letter of 24.05.2005 was given, as a result of which, the Applicant was deprived of opportunity to submit his option for returning back to Bikaner Division from Delhi. Therefore, the Respondents ground for rejecting his claim to return to Bikaner Division that he did not exercise option is not sustainable in the eyes of law. He also submits that the Applicant has been invidiously discriminated as similarly situated persons were transferred from Delhi Division to Bikaner Division and they have been transferred on the basis of the directions issued by this Tribunal. In support, he referred to the case of Algu versus Union of India (OA No.1172/2005 decided on 24.01.2006), K. L. Tank versus Union of India, S. P. Singh versus Union of India, etc., wherein, the Tribunal directed the Respondents to invite and consider the options of those employees and the Respondents implemented the said directions. The Applicant, Shri Yogesh Sharma contends, is entitled to similar treatment and relief.
4. On the other hand, the Respondents have submitted their counter reply on 8.02.2011 and controverted the contentions raised by Shri Yogesh Sharma. Shri P. K. Yadav, learned Counsel for the respondents, submits that it is a simple open and shut case where the Applicant did not exercise option as per the letter dated 24.05.2005 and has approached the Respondents belatedly and even has approached the Tribunal belatedly. He presented a copy of the letter addressed by Station Superintendent of Delhi Sarai Rohilla, Northern Railway, dated 2.05.2011 and stated that the notification calling for option of willing staff seeking transfer from Delhi Division to Bikaner Division was circulated and displayed on Notice Board and willingness staffs requests were forwarded to the Respondent No.3s office. It was also stated that the Applicant was posted at DEE and was working under the control of CTI DEE/Line and the staffs of the said Unit were being maintained by CTT/Line separately coming under the control of Branch Officers. His contention is that the Applicant did not opt in time and his request was properly rejected.
5. I have carefully considered the rival contentions and perused the pleadings. The main controversy is whether the Applicants request for transfer from Delhi Division to Bikaner Division should have been considered by the concerned Respondents or not?
6. Admittedly, there was restructuring of the Divisions in the year 2003 and the staff were reallocated on as is where is basis without seeking their option from one Division to the other Division. After a lapse of two years on 24.05.2005, the option of the employees were called for in Delhi Division to find out the staff who would be willing to go from Delhi Division to Bikaner Division or to stay in Bikaner Division. It is an admitted fact that the Ticket Checking Category Staffs were not informed of the said option issued on 24.05.2005. The Respondents take the stand that the official correspondence was issued to the Station Masters. Station Masters are responsible for transmission of the accurate information contained in such communication and by posting such notifications on the Notice Board of each Station at appropriate place. The responsibility of the Respondents would cease with regard to the transmission of the notifications calling for the options of the employees. It is seen from the duties and responsibilities of Station Staff that the communications to be displayed in the Notice Board and the correspondence to be received in the Stations to be communicated to the individuals though might have been followed but in the present case the Notification dated 24.05.2005, it is evident that the Applicant has not received any communication from any of the sources to exercise his option at the appropriate time. The Respondents could not demonstrate that the Applicant had been given intimation within the time prescribed in the Notification dated 24.05.2005 to exercise his option. In the absence of such particulars from the Respondents, it cannot be construed that the Applicant has been aware of the Communication dated 24.05.2005 and he has failed to exercise his option in spite of giving the notice. It is, thus, an admitted fact that the Applicant being one of the Ticket Checking Staff was not aware of the option sought to be exercised by him as per said Notification dated 24.05.2005 wherein the last date to exercise such option was prescribed. Though the Applicant has applied no sooner he has come to know of the same, non-consideration of the same and passing order rejecting his claim is discriminating in nature in as much as similarly situated employees belated option has been accepted and acted upon. Action of the Respondent will not pass the test under Article 14 of the Constitution of India. By rejecting the claim of the Applicant, I wonder how the object of calling for option would be achieved by the Respondents. Thus, the Applicants request needs re-examination and reconsideration.
7. In view of the above facts brought out in the OA, it is found that rejection of the Applicants claim by the Respondent No.3 vide his order dated 25.09.2009, is not legally sustainable as the Applicant was earlier working in the Bikaner Division. When the Notification dated 24.05.2005 was issued he should have been specifically requested whether he should continue to remain in Delhi Division or would like to go back to his earlier parent Bikaner Division. Therefore, the order dated 25.09.2009 rejecting the Applicants representation is not sustainable in the eyes of law and is, therefore, quashed. Resultantly, the Respondents are directed to call for the option of the Applicant within a specified time frame and on receipt of the same pass appropriate order. This exercise shall be completed within a period of three months from the date of receipt of certified copy of this order. In peculiar circumstances of the case, it is directed that this order is qua the Applicant and shall not be treated as a judicial precedent.
8. The Original Application having merits is allowed in terms of the above directions. There is no order as to costs.
(Dr. Ramesh Chandra Panda) Member (A) /pj/