Central Administrative Tribunal - Mumbai
Sanjay Kumar vs M/O Railways on 8 October, 2021
1 OA.282/2020
Central Administrative Tribunal,
Mumbai Bench, Mumbai.
O.A.282/2020
Dated this Friday the 8th day of October, 2021.
Coram: Dr.Bhagwan Sahai, Member (Administrative)
Ravinder Kaur, Member (Judicial).
Sanjay Kumar,
Son of Hari Mahto,
Worked as : Goods Guard (Group "C" post)
under Station Manager, Nandgaon Railway Station,
Bhusawal Division of Central Railway,
District - Nashik, and residing at :
F.No.36, S.No.60/12, Sri Krupa,
Siddheshwar Nagar, Jail Road, Nashik Road,
Nashik, District : Nashik, State of Maharashtra,
Cell: 08999658287,
Email ID: [email protected]
.. Applicant.
( By Advocate Shri R.G. Walia ).
Versus
1. Union of India, through
General Manager,
Central Railway, Headquarter's Office,
Chhatrapati Shivaji Maharaj Terminus (CSMT),
Mumbai - 400 001.
Email: [email protected]
2. DRM (Divisional Railway Manager),
Bhusawal Division, Central Railway,
Besides Central Railway Ground, Bhusawal,
Maharashtra - 425 201.
Email: [email protected]
3. Birendra Singh,
APM (Asst. Pointsman) or PM "A" (Pointsman "A"),
Under DRM's Office, Bhusawal Division,
Central Railway, Bhusawal - 425 201.
Cell: 8530918234.
4. Assistant Personnel Officer (APO),
DRM's Office, Bhusawal Division,
Central Railway, Bhusawal - 425 201.
Email:[email protected] .. Respondents
( By Advocates Shri V.S. Masurkar along with
Ms.Sangeeta Yadav ).
Order reserved on : 18.08.2021
Order pronounced on : 08.10.2021.
O R D E R
Per : Dr.Bhagwan Sahai, Member (A).
Shri Sanjay Kumar, son of Shri Hari Mahto, working as Goods Guard at Nandgaon Railway Station, Bhusawal Division, district Nashik has filed this O.A. on 25.08.2020 seeking -
(a) setting aside of orders dated 23.07.2020, 03.08.2020, 30.01.2018 and 24.08.2020 with consequential benefits i.e. payment of salary for the period when he was not taken on duty because of these orders;
(b) declaration that he cannot be transferred or posted to the post of Assistant Points Man without his consent, and accordingly direction to the respondents to continue him in Bhusawal Division on the post of Goods Guard with all consequential benefits of promotion, seniority, backwages, etc;
(c) declaration that he can be transferred on the post Goods Guard and that too after his due consent and approval, and accordingly direction to the respondents to continue him in Bhusawal Division and if at all his case has to be processed for transfer, it can be done after his due consent as far as mutual transfer is concerned; and
(d) providing cost of this O.A. The respondents have filed reply to this O.A. on 09.09.2020 and 29.09.2020 along with comparison table. The applicant has filed rejoinder on 14.09.2020. The respondents have also filed sur-rejoinder on 09.10.2020 and an affidavit on 28.01.2021 in compliance of orders of the Tribunal dated 11.01.2021 and 01.03.2021. The applicant and respondents have also submitted clarification on some issues as directed on 18.08.2021. The respondent no.3 has filed his reply and he was also heard. Sr. DPO, Bhusawal, Shri N. Gangurde was also heard on 12.03.2021. The respondents have also submitted their original case record relating to the present case.
Through M.A.302/2020 filed on 10.09.2020 the applicant amended certain contents of the O.A. by adding para 1(g) of the O.A., 4.24 (A) and para 8(a) it was allowed on 11.09.2020.
2. Summarized facts and contentions of the applicant in the O.A., rejoinder, clarification as well as arguments of his counsel :
2(a). This O.A. cannot have any effect on respondent no.5 (there is no respondent no.5 in this O.A., it is meant for respondent no.3) and out of abundant caution the applicant has impleaded him as respondent no.5 who is working as Assistant Points Man whereas the applicant is working as Goods Guard, and thus they are in different posts, grades and categories. The applicant belongs to OBC category and belongs to State of Jharkhand, and was appointed as Assistant Points Man, a Group 'D' post, on 28.05.2012 in Bhusawal Division of Central Railway, when his wife and children were staying in Jharkhand.
2(b). While working as Assistant Points Man, he submitted request for mutual transfer in January/February, 2015, with Shri Birendra Singh, who was working as Assistant Points Man in Chakradharpur Division, Jharkhand, South Eastern Railway. As per model timetable issued by the Railway Board, a request for mutual transfer has to be processed in two months. But his application was not processed promptly by the respondents. In the meantime, he was promoted as Points Man Grade-A by order of 31.12.2015 (Annex-A-5). Shri Birendra Singh, respondent no.3 was released from Chakradharpur Division, to join at Bhusawal and accordingly the respondents issued a letter on 30.01.2018 reverting the applicant to the post of Assistant Points Man from the post of Points Man 'A' and transfering him to Chakradharpur Division.
The applicant claims that this order was issued in illegal manner, was not given effect to and the applicant was neither reverted nor he was relieved from the Bhusawal Division to join at Chakradharpur. He represented on 08.02.2018 that his transfer should not be effected at that late stage and requested for cancellation of his transfer request. Subsequently the impugned order dated 03.08.2020 has been issued by the respondents for his reversion from the post of Goods Guard to Assistant Points Man and to effect his mutual transfer to Chakradharpur.
2(c). The respondents issued notification for selection under Limited Departmental Competitive Examination (LDCE) for posts of Goods Guard on 27.07.2017 along with Corrigendum dated 18.08.2017 (15% quota for graduates). The post of Goods Guard is a Safety Category Post i.e. a running category post and is a entry level post in the cadre of Guards. The applicant applied for it, the LDCE written test was held on 15.02.2018 and its result was declared on 24.04.2018. After completing training course at Zonal Railway Training Institute, Bhusawal, he was promoted to the post of Goods Guard by order dated 09.08.2019 (Annex-A-10) and has been working on that post since 09.08.2019.
2(d). His promotion as Goods Guard was not connected in any way with his mutual transfer request, it was never made subject to the decision on his that request. As he had already requested for cancellation of his mutual transfer vide letter dated 08.02.2018, the order of 03.08.2020 has been issued after 3 years of submission of his application for mutual transfer. Therefore, at late stage the order dated 03.08.2020 is absolutely mischievous. Respondent No.4, Shri B.S. Ramteke not only misled the higher authorities but has caused harm and harassment to the applicant. When the applicant went to meet him personally, he was rude to him and did not hear his grievance. Thus the entire action of the respondents is only against the rules and the law.
2(e). Even if the applicant was to be transferred at late stage by the order of 03.08.2020, then he could have been transferred only as Goods Guard and not as Assistant Points Man.
2(f). As per Railway Board Policy dated 11.01.2019 on mutual transfers (Para 9), mutual transfers may be permitted between staff members in two different grades but only in the recruitment grade of the cadre and not in intermediate grades. Both the employees seeking transfer on mutual exchange shall have to give a written undertaking accepting reversion unconditionally and willingly in their own interest to the recruitment grade and bottom seniority in their respective new units in order to avoid future litigation.
2(g). As per Para 7 of the mutual transfer policy, where no objection certificate has been given by both the Railway Units i.e. accepting and relieving, both the employees should be spared immediately within a week. Therefore, before passing the impugned order on 03.08.2020, the respondents should have taken into account the instructions of the Railway Board. As per the model timeline issued by the Railway Board for an application for mutual transfer, the overall process should not take more than two months. In the present case the application was made in 2015 but the impugned orders have been issued in the year 2020 and that too by reverting the applicant from the post of Goods Guard to the post of Assistant Points Man. This action of the respondents is mischievous and arbitrary, absolutely illegal and wrong, and has been done due to ill-will and nothing else.
2(h). The respondents claim that the applicant was relieved on 24.08.2020 but this O.A. was filed online on 23.08.2020 and the respondents were communicated its copy along with notice on 23.08.2020. Therefore, letter of the respondents dated 24.08.2020 relieving the applicant is a backdated letter and its copy was served on the applicant through whatsapp on 03.09.2020. The relieving authority for the applicant is Divisional Railway Manager, Bhusawal and not Station Master, Nandgaon. Thus the present affidavit filed by the respondents in reply to O.A. is nothing but complete lies and falsehood. The applicant is willing to go as Goods Guard to the transferred place but not as Assistant Points Man. There is no fairness in the action of the respondents (para 10 of rejoinder).
2(i). The applicant also sought in the O.A. stay to the effect and operation of the orders dated 03.08.2020, 23.07.2020 and 24.08.2020, and direction to the respondents to continue him in the Bhusawal Division on the post of Goods Guard at Nandgaon Station. After hearing the counsels for the parties on 04.09.2020, the respondents were directed not to give effect to the impugned order dated 03.08.2020 till the next date when hearing on interim relief was to take place i.e. 11.09.2020. It was then extended from time to time till 15.02.2021 when hearing got concluded and the O.A. was reserved for orders.
2(j). The respondents have stated in their reply that the applicant's promotion as Goods Guard was an erroneous promotion, but they have not commented on his promotion to the post of Pointsman Grade 'A'. The latter promotion changed the status of the applicant and he could not have been transferred at all without his consent.
The contention of the respondents about erroneous promotion of the applicant is absolutely desperate and mischievous as there is no document issued by them stating that his promotion was erroneous. It is only somehow to justify the absolutely illegal and arbitrary action of the respondents. The respondents have relied upon para 228 (a) of Indian Railway Establishment Manual Vol.I to say that the applicant's promotion is cancelled. But there is no such letter of cancellation of promotion of the applicant issued by the respondents. Therefore, their contention that the applicant's promotion as per Para 228(a) has been cancelled is false and misleading. There is no such para in the IREM, it is only para 228(II)(a). This para has been wrongly relied upon by the respondents. In fact Para 228(II)(d) deals with cases of erroneous promotions and suitable disciplinary proceedings against the officers concerned have to be initiated.
2(k). The applicant's promotion order was issued by Divisional Railway Manager and if at all the promotion was erroneous, any disciplinary proceeding initiated against that officer has not been brought on record. The respondents' contention that once mutual transfer request has been made, such employee must not participate in any selection process and if he has participated, it is erroneous is absolutely illogical stand not supported by any rule or law. No show cause notice has been issued to the applicant about his erroneous promotion. In cases of erroneous promotions, principles of natural justice have to be followed but no such opportunity was given to the applicant by the respondents.
2(l). The Railway Board's order dated 21.04.2006 relied upon by the respondents has been dealt with by various High Courts and Tribunals and their contention has been rejected but even then they have raised the same contention. The judgment of Allahabad Bench of the Tribunal relied upon by the respondents is only per- incuriam and this has been passed by a Single Member without any jurisdiction to deal with matter of transfers as the cases of transfers can be dealt with only by a Division Bench, as per order issued by Chairman, C.A.T. on 08.09.2016. That Single Member Bench judgment did not consider the judgments of High Courts and other Division Benches of the Tribunal. The respondents should have known this fact before placing an "incompetent judgment"
before this Tribunal as a binding precedent.
As per Railway Board order dated 15.09.2017, an employee in whose case mutual transfer request has been accepted should have been relieved by 30.09.2017. This has to be read along with Railway Board's order dated 22.09.2017 which has given a time-line for dealing with the cases of mutual transfers. All these circulars have been violated by the respondents. Their contention that mutual transfer takes time is complete falsehood and wrong contention.
It is relevant to note that the applicant has gone in an absolutely different cadre (running cadre) altogether after passing the LDCE and he could not have been reverted without his consent for mutual transfer and his reversion is in violation of Article 311 of Constitution of India. Once he got promoted as Pointsman Grade 'A', thereafter he could not have been transferred without his consent. This O.A. was filed on 23.08.2020 and its copy was sent to the respondents through email and till filing of the O.A., the applicant had not been served a physical copy of the order dated 24.08.2020, a backdated letter, hence claim of the respondents about its service on the applicant is false.
2(m). Employees on mutual transfer can be transferred only in same cadre and grade but after December, 2015, because of his promotions the applicant came into different grade and cadre i.e. as Pointsman Grade 'A' and Goods Guard respectively. He represented on 08.02.2018 for not transferring him, he had not given any undertaking. Although the Tribunal had stayed operation of the order of 03.08.2020, the respondents have not allowed him to join duty and thus the reply submitted by respondent no.3 is not relevant.
2(n). The case of the applicant is covered by judgments of the Tribunal as well as Rajasthan High Court. By the order of C.A.T., Jaipur Bench dated 08.05.2012 in O.A.183/2011, the order of 15.04.2011 passed by the respondents was set aside directing them to allow the original applicant to continue in Kota Division and give effect to the promotional order dated 16.12.2010 by posting him as Loco Pilot (Goods) on completion of his training. The original applicant in that O.A. was working as Assistant Loco Pilot in Kota Division when he submitted a request for mutual transfer with original respondent in that O.A. who was working as Assistant Loco Pilot, Western Railway, Ahmedabad in November, 2007. Their requests for mutual transfer were pending for more than 3 years and in the meantime the respondent no.1 in that O.A. was promoted as Loco Pilot (Goods) by order dated 16.12.2010 and, therefore, on 17.12.2010 he requested that he was no longer interested in his mutual transfer and that request be treated as cancelled. However, ignoring that request, the mutual transfer was allowed by order dated 15.04.2011. This order was challenged in the O.A. which was allowed. The order of the Tribunal was challenged in Rajasthan High Court Bench at Jaipur in Civil Writ Petition No.11838/2012, which was dismissed on 26.09.2012 taking the view that the order for backtracking mutual transfer should have been considered within a reasonable period of time and not after more than three years when the position of the employee had already undergone change during the intervening period. Therefore, the decision of the Tribunal was upheld.
In O.A.334/2017 decided by Allahabad Bench of the Tribunal on 24.04.2018, the O.A. was allowed and the impugned order dated 06.03.2017 was set aside in view of no rule or instruction of the Railway Board permitting reversion of the applicant to implement his request for mutual transfer and for unexplained delay in processing the request for mutual transfer. This reversion of the applicant in that O.A. to the Grade Pay of Rs.1800/- without his consent to implement the mutual transfer request was not in accordance with the Railway Board instructions and was set aside.
By order of Ernakulam Bench of the Tribunal in O.A.276/2008 dated 07.11.2008, the impugned order of 15.05.2008 was set aside as the application for mutual transfer had become infructuous. The respondents were directed to consider retention of the private respondent in that O.A. at Palghat Division subject to accepting his bottom seniority as on the date he had reported.
In the order of Kolkata Bench of the Tribunal dated 25.02.2020 in O.A.1101/2018, the impugned order was set aside and the respondent authorities were directed to consider the case of the applicant in light of other caselaws such as the order of Allahabad Bench of the Tribunal holding that there was no rule or instruction of Railway Board permitting reversion of the applicant to implement the request for mutual transfer and for unexplained delay in processing the request for mutual transfer. In view of the orders in the above caselaws, the applicant's counsel pleads that this O.A. should be allowed.
The respondents have contended as follows:
3(a). The applicant has sought multiple reliefs in this O.A. against distinct orders of mutual transfer and his reversion as Assistant Pointsman. The applicant has also suppressed material facts related to his case. Based on his request for mutual transfer, he was relieved as per order of 22.04.2016 itself. But this fact has not been disclosed by him in the O.A. and thus the applicant has not approached the Tribunal with clean hands. Therefore, it is in violation of Rule 10 of CAT Procedure Rules. Since the applicant had been relieved as per his request for mutual transfer as per the order of 22.04.2016, the present O.A. is beyond limitation and suffers from delay and laches.
The request for mutual transfer was submitted by the applicant under his own signature dated 26.01.2015 when he was working as Assistant Points Man with Shri Birendra Singh, working as Points Man-B. This request was processed by the respondents in time and relieving order had been issued on 22.04.2016. Therefore, after completion of the mutual transfer process, it was not permissible for him to make any request for cancellation of the mutual transfer. The applicant never withdrew his request for mutual transfer before 08.02.2018. If the applicant did not want his transfer from Bhusawal Division to Chakradharpur Division, he ought to have submitted his request before his promotion in December, 2015 which he did not. In January, 2018 when his reversion and transfer order was issued, he was aware about respondent no.3 having already joined at Bhusawal and, therefore, the O.A. having no merit should be dismissed. 3(b). The instructions/circulars of the Railway Board on the subject of mutual transfers are covered in the letters/circulars R.B.No.53/2006 dated 20.04.2006, RBE letter 200 dated 12.11.2009 and the RB policy circular dated 11.01.2019. The respondents had issued order of mutual transfer of the applicant with Shri Birendra Singh on 30.01.2018 and the order of 03.08.2020 was issued only in continuation of that order dated 30.01.2018. The applicant was thus relieved by order dated 24.08.2020.
3(c). As per notification for LDCE dated 27.07.2017, the applicant was not eligible but even then applied on 10.12.2017, appeared in it on 15.02.2018 and based on its result he came to be promoted as Goods Guard from 09.08.2019. For this wrong promotion given to him, disciplinary proceedings have been taken against the concerned staff. Because of that wrong promotion earned by the applicant, with approval of the Competent Authority, and in continuation of the earlier order of 31.01.2018, the Divisional Railway Manager, Bhusawal has issued the order dated 03.08.2020 reverting the applicant as Assistant Points Man and relieving him with immediate effect to join at Chakradharpur as per his own request for mutual transfer with Shri Birendra Singh.
Before that order, as per letter of 23.07.2020, he was informed about his reversion and relief as per the Railway Board instructions dated 21.04.2006 not permitting backtracking of mutual transfer and since Shri Birendra Singh had already joined in his place at the same station.
3(d). The facts about the applicant not eligible for appearing in the LDCE, and even then wrongly participating in it, and getting promoted were discovered later. That is why his reversion and relief got delayed. He has been reverted to the post of Assistant Points Man and relieved by the order of 30.01.2018, and in its continuation by the orders of 03.08.2020 and 24.08.2020 to join as per his own request of mutual transfer.
3(e). Request for inter-railway mutual transfer was submitted by the applicant as per his own willingness. Since the process involved verification of service record of both the employees, processing of the request by Chakradharpur and Bhusawal Divisions for accepting the mutual transfer partner, and approval of the Competent Authority of Central Railway and South Eastern Railway to accept the mutual transfer order for relieving, it took time. Since the mutual transfer partner of the applicant Shri Birendra Singh reported to Bhusawal Division on 15.01.2018, the office order was issued on 30.01.2018 for posting of Shri Birendra Singh as Assistant Points Man in Bhusawal Division and reversion and transfer of the applicant to Chakradharpur Division.
In terms of the para 228 of IREM Vol.I, erroneous promotion of a Railway servant should be cancelled as soon as it is brought to the notice of the appointing authority. The applicant's erroneous promotion has been cancelled as per these provisions and, therefore, he cannot derive any benefit of his wrong selection for the post of Goods Guard, particularly when his request for mutual transfer had already been accepted by the Competent Authority, his mutual transfer partner had joined in Bhusawal Division and he had been reverted and transferred to Chakradharpur Division as per the order of 30.01.2018. Since the applicant's promotion as Goods Guard was erroneous, he was under obligation to accept his mutual transfer to Chakradharpur Division but he chose to take advantage of his own wrongful promotion and has stayed illegally and unlawfully in Bhusawal Division.
3(f). The order of 03.08.2020 is only in continuation of the order dated 30.01.2018, and thus the applicant has not been reverted and transferred only by the order dated 03.08.2020 as wrongly alleged by him in the O.A. The order of his reversion and mutual transfer had been issued on 30.01.2018 itself. The order of 03.08.2020 was only a reminder. He has been relieved from posting station, Nandgaon on 21.08.2020 and he has been relieved from Bhusawal Division vide letter dated 24.08.2020 to report to Chakradharpur Division, South Eastern Railway. This relieving order was not disclosed by the applicant in the O.A. and has been subsequently brought on record only by an amendment application. Since the applicant is a Railway employee coming under the purview of Railway Service Conduct Rules, 1966, on issuing of the order on his own request for mutual transfer, it was his duty to get relieved from Asvali Station and Bhusawal Division. The respondents have not transferred him on administrative grounds but on his own request for mutual transfer submitted on 26.01.2015.
3(g). The applicant's request for mutual transfer is regulated by the Railway Board Circular RBE No.53/2006 dated 21.04.2006 stating that since the mutual transfers are sought with the consent of both the parties, at the time of forwarding applications for mutual transfer it is to be made clear that no request for backtracking from the mutual exchange arrangement will be entertained under any circumstances.
Since the Competent Authority issued the applicant's mutual transfer with Shri Birendra Singh as per order dated 30.01.2018, the applicant cannot be allowed to backtrack from his application for the mutual transfer after the respondents have accepted that application and passed the order on 30.01.2018. He is not entitled to waive his consent for the mutual transfer which has not only been accepted but also acted upon with joining of Shri Birendra Singh. The process of his mutual transfer had been completed prior to the filing of the representation on 08.02.2018. Therefore, it cannot be withdrawn at a subsequent stage and the order of mutual transfer is binding on the applicant.
The Railway Board circulars of 2006 and 2009 were issued to avoid situation like the present case. The above circulars in categorical terms prohibit any withdrawal of the consent for mutual transfer. There was no compulsion on either party to agree to a mutual transfer and both of them voluntarily had given consent for mutual transfer and therefore, in terms of Railway Board circulars 2006 and 2009, it is not open for either of them to backtrack from the conditions stipulated therein. Therefore, the applicant cannot challenge the order of mutual transfer once passed by the respondents.
3(h). For withdrawing his request for mutual transfer, no request was made by the applicant after his promotion in December, 2015, and it was made only on 08.02.2018 i.e. after he was reverted and transferred with immediate effect on 30.01.2018. In the order of C.A.T., Jaipur and Rajasthan High Court relied upon by the applicant, the applicant in the O.A. had requested for cancellation of his mutual transfer request immediately after his promotion. The present applicant was working as Assistant Points Man when he applied for mutual transfer. Then by order dated 21.12.2015 he was appointed as Points Man Grade 'A' but after that promotion he did not withdraw his request for the mutual transfer. Since the applicant submitted his request for withdrawing his mutual transfer on 08.02.2018 only after his reversion and transfer order of 30.01.2018, the orders of C.A.T., Jaipur and Rajasthan High Court are not applicable to the case of this applicant.
3(i). The respondents have relied upon the judgment of the Allahabad Bench of the Tribunal in case of Sachchidanand Vs. General Manager, Central Railway (O.A.330/01549/2015) dated 10.05.2019 and Andhra Pradesh High Court in the case of M. Nagarajan Vs. Union of India and Ors (W.P.No.22873/2009) decided on 23.12.2009.
In the order of the Allahabad Bench of the Tribunal in O.A.330/01549/2015 dated 10.05.2019, no illegality or error was noticed in the order of the respondents in view of the circulars of the Railway Board. That judgment was also relied upon in the decision of Hyderabad Bench of the CAT in O.A.289/1988, Christopher Mascrene Vs. Union of India. The C.A.T. Bench order was challenged in Writ Petition No.22873/2009, M. Nagarajan Vs. Union of India, Secretary, Railway Board. The Andhra Pradesh High Court in order dated 23.12.2009 upheld order of C.A.T. taking the view that undertaking given in mutual transfer application has to be honoured.
In O.A.289/2009, C.A.T., Hyderabad Bench set aside order of the respondents for overlooking not honouring of undertaking of the concerned employee in mutual transfer application.
3(j). In spite of this, the applicant did not carry out his reversion as APM and continued to work as Pointsman 'A' and later on got promoted as Goods Guard due to oversight and error of concerned dealing staff, against whom DAR proceedings have been taken for misleading the administration. By availing of the erroneous promotion, the applicant has been misleading the administration and he cannot take undue advantage of it because he is bound by the Conduct Rules which he has failed to follow and, therefore, on this ground itself the O.A. deserves to be dismissed.
3(k). As per Railway Board letter dated 11.01.2019 (Para 9), both the employees seeking mutual exchange shall have to accept reversion unconditionally and willingly in their own interest to the recruitment grade and bottom seniority in their respective new unit to avoid further litigation. The applicant had himself submitted his request for mutual transfer but even after its acceptance by the respondents he continued disobeying the transfer order. The applicant's mutual transfer in continuation to earlier order of 31.01.2018 was issued on 03.08.2020, after which the office of Station Manager, Nandgaon issued the letter to relieve him from that Station and to report to Divisional Headquarters i.e. DRM office, Bhusawal.
Since the applicant was demanding leave, he was granted leave from 06.08.2020 to 15.08.2020 and thereafter he was expected to attend office on 16.08.2020 to collect his relieving order from the office of DRM, Bhusawal for his final relieving order for Chakradharpur Division, but he did not turn up to collect his relieving letter till 21.08.2020 and remained unauthorisedly absent. Therefore, the Station Manager sent the letter dated 04.08.2020 (signed on 21.08.2020) to DRM Office for further disposal. A copy of the letter dated 04.08.2020 was pasted on notice board of the office in presence of two witnesses. Thereafter the final relieving order dated 24.08.2020 from DRM (P) was issued but due to unauthorized absence of the applicant, the office order and relieving order to be served on the applicant had to be sent on whatsapp and by post. This procedure has been followed as per Para 192-194 of the Railway Act, 1989. 3(l). The promotion to the post of Pointsman 'A' was in the hierarchy of the same cadre and the applicant had to be reverted as Assistant Points Man at the time of mutual transfer. Since the applicant had been promoted erroneously to the post of Goods Guard and the DAR proceedings have been initiated against the concerned staff, it was also the responsibility of the applicant to bring the error to the notice of the respondents but he did not do so, and he took undue advantage of that promotion. When error in his promotion was noticed subsequently by the respondents, it can be rectified at any stage during the service period and the applicant has been reverted to APM from Goods Guard to join at Chakradharpur on mutual transfer. After acceptance of request for mutual transfer, the concerned Railway Divisions have to release the employees immediately but in the present case the applicant intentionally avoided to get relieved and submitted his representation only on 08.02.2018 but backtracking of his mutual transfer is not permissible.
3(m). An interim order issued by the Tribunal on 04.09.2020 was communicated to the respondents on 06.09.2020 at 07.04 pm (Sunday) i.e. after the relieving order had already been despatched on 04.09.2020 by 2 PM and since the applicant had been unauthorizedly absent from 16.08.2020, the order had also been sent to him on whatsapp on 03.09.2020. Then the relieving order was sent on 04.09.2020 to the applicant's residential address by Speed Post since he was unauthorizedly absent from 16.08.2020.
Regarding the decision of Allahabad Bench of the C.A.T., the respondents are relying upon the ratio in it.
3(n). The respondent no.3 was heard and he has submitted his reply on 10.11.2020 stating that he was serving in Chakradharpur Division, South Eastern Railway from September, 2014. Since his family was residing at Nashik, he applied for the mutual transfer to Bhusawal along with Shri Sanjay Kumar in Janaury, 2015. The mutual transfer was approved by both Zonal Railways during the year 2015 and as per the letter of headquarters, Central Railway, Mumbai dated 22.04.2016, Divisional Railway Manager, Bhusawal Division was directed to relieve the applicant to report at Chakradharpur Division in a week's time. Since he was senior of the two, he was to be relieved first.
In the Railway Board letter dated 15.09.2017, it was directed to relieve all employees whose mutual transfers had already been approved by the Zonal Railways by 30.09.2017 and confirmation about it was to be given by 05.10.2017.
As per these instructions of the Railway Board, he got relieved from Chakradharpur Division on 12.01.2018 and reported on mutual transfer at Bhusawal Division on 15.01.2018. As per Para 7 and 10 of Proforma D submitted by applicant for mutual transfer, both had agreed that they would not withdraw the mutual consent given in our own interest and accept the bottom seniority under the rules of mutual transfer. With these submissions, respondent no.3 has requested that he should be retained in Bhusawal Division as he had joined in this Division on 15.01.2018 through proper channel.
Along with a copy of the Railway Board instructions dated 15.09.2017, he has also enclosed a copy of the letter issued by the Personnel Branch, Headquarters Office, Mumbai CST, Central Railway on 21/22.04.2016 on the subject of Inter- Railway Mutual Transfer between Shri Sanjay Kumar, APM, Bhusawal Division, Central Railway and Shri Birendra Singh, APM, Chakradharpur Division, South Eastern Railway mentioning approval of Competent Authority for their Inter-Railway Mutual Transfer on usual terms and conditions, and in terms of Railway Board letter dated 30.04.2014, the senior person should be relieved first and the entire exercise be completed in a week's time. Arrangement should be made to relieve Shri Sanjay Kumar, APM, Bhusawal Division, Central Railway, first, he being senior, to report to DRM, Chakradharpur Division, South Eastern Railway, for further posting.
4. Analysis and conclusions :
4(a). We have carefully considered the averments made in the O.A. and contentions of the parties in the reply, rejoinder, sur- rejoinder, clarifications as well as in the submissions made during arguments of their respective counsels. Since the subject matter of this O.A. pertains to mutual transfer of this applicant and respondent no.3, the relevant instructions of the Railway Board on this subject are as follows:-
A. Mutual transfers: (i). RBE No.53/2006 dated 21.04.2006, addressed to the General Managers (P), All Indian Railways and PUs.
Sub: Inter-Railway and Intra-Railway transfers on mutual exchange.
As the Railways are aware in terms of extant procedure in vogue vide para 310 of Indian Railway Establishment Manual, Vol.I, 1989, transfers on the basis of mutual exchange are allowed with no loss or minimum loss of seniority. Instances have come to notice where employees make requests for such mutual exchange transfers and later on backout when orders are issued and even after one of the two employees gets relieved to join the new place.
Board have reviewed the matter and decided that as mutual transfers are ordered with the consent of both the parties, it should be made clear right at the time of forwarding applications for mutual transfer that no request for backtracking from the mutual exchange arrangement will be entertained under any circumstances. Strict adherence to this procedure may please be ensured.
Please acknowledge receipt.
Sd/-
(J.S. Gusain) Director Estt.(N) Railway Board."
(ii) RBE No.200/2009 dated 12.11.2009 "Circular Subject: Inter-Railway and Intra
-Railway transfers on mutual exchange.
As per Board's letter of even number dated 21.04.2006 requests for backtracking from the orders issued for transfer on mutual exchange basis, should not be entertained under any circumstances and strict adherence of the orders issued, is required to be ensured. Instances have come to notice that requests for backtracking have been considered by Railways. This have been viewed seriously by the Railway Board. Railways are requested to ensure strict compliance of the extant instructions."
(iii) Railway Board letter dated 30.04.2014 "Sub: Request for Mutual transfer by Railway Employees.
Please call for this office letter of even no.
dated 10.03.2014 vide which certain decisions were conveyed regarding request transfer which are otherwise found in order must be disposed of quickly without any delay to ensure transparency as it provides relief of one person for another. Once the mutual order is issued the senior person should be relieved first and the entire exercise may be completed in a week's time.
Please acknowledge receipt."
(iv). RBE No.131/2017 "No.E(NG)I-2017/TR/24 Dt.22.09.2017
The General Managers,
All Zonal Railways & Production Units
(As per standard list).
Sub:- Inter-Railway Mutual Transfer.
In continuation of this office letter of even number dated 15.09.2017 (R.B.E. No.130/2017), the procedure for Mutual Transfer is further simplified. Hereafter, for Divisionally controlled posts, applications for Mutual Transfer duly signed by both applicants in the proper format, from a Division of one Railway to Division on another Railway need not be routed through the HQ offices. It shall be dealt directly only by the Divisions concerned.
Different activities and timelines have been prescribed in that letter."
(v). R.B. No.E(NG)I-2018/TR/8 Dt.11.01.2019 Sub : Comprehensive policy on Mutual Transfer of non-gazetted staff on the Zonal Railways.
Policy instructions regulating transfer on Mutual Exchange basis and assignment of seniority thereafter are contained in the Para 230 of IREC Vol.I and Para 310 of IREM Vol.I 1989 Edition. Administrative instructions for effecting such transfer(s) have also been issued from time to time. Recognising the need to consolidate and supersede the obsolete/antiquated instructions, this circular lists out all the updated policy instructions on the subject as on date in supersession of all the earlier instructions.
4(iv) No backtracing once Mutual Exchange agreed :-
Since mutual transfers are ordered with the consent of both the parties, it should be made clear right at the time of forwarding applications for mutual transfer that no request for backtracking from Mutual exchange arrangement will be entertained under any circumstances. (Board's letter No.F(NG)I-2006/TR/6 dated 21.04.2006 (R.B.E. No.53/2006).
9. Mutual Transfer on reversion :- It has been decided that Mutual Transfers may also be permitted between staff in two different grades but only in the recruitment grade of the cadre and not in intermediate grades. Both the employees seeking mutual exchange shall have to give a written undertaking accepting reversion unconditionally and willingly in their own interest to the recruitment grade and bottom seniority in their respective new Unit in order to avoid future litigation. The expression mentioned in preceding lines, should necessarily be incorporated in the application submitted by the employee concerned."
The note below para 2(o)(iii) of Board's letter dated 22.09.2017 as mentioned in para 1 above stands deleted.
Other terms and conditions for mutual exchange are contained in Board's letters dated 14.08.2007 and 22.10.2007 remain.
B. Erroneous promotions:
Para 228 of IREM-Vol.I reads as under:
"228. Erroneous Promotions-(I) Sometimes due to
administrative errors, staff are over-looked for
promotion to higher grades could either be on account of wrong assignment of relative seniority of the eligible staff or full facts not being placed before the competent authority at the time of ordering promotion to some other reasons. Broadly, loss of seniority due to the administrative errors can be of two types :-
(i) Where a person has not been promoted at all because of administrative error, and
(ii) Where a person has been promoted but not on the date from which he would have been promoted but for the administrative error.
Each such case should be dealt with on its merits. The staff who have lost promotion on account of administrative error should on promotion be assigned correct seniority vis-a-vis their juniors already promoted, irrespective of the date of promotion. Pay in the higher grade on promotion may be fixed proforma at the proper time. The enhanced pay may be allowed from the date of actual promotion. No arrears on this account shall be payable as he did not actually shoulder the duties and responsibilities of the higher posts.
(II) In pursuance of Rule 1326-R.II, 1987 Edition the following provisions shall govern the pay and increments of the Railway servant whose promotions or appointments in a substantive or officiating capacity to a post is later found to be erroneous on the basis of facts-
(a) The orders of notification of promotion or appointment of a railway servant should be cancelled as soon as it is brought to the notice of the appointing authority that such a promotion or appointment has resulted from a factual error and the railway servant concerned, should, immediately on such cancellation, be brought to the position which he would have held but for the incorrect orders of promotion or appointment.
4(b). In this O.A. the issue involved is of mutual transfer of the applicant on his request with Shri Birendra Singh and his relief from Bhusawal Division to join in Chakradharpur Division.
4(c). In Proforma 'B' of the application form for mutual transfers, to abide by and accept seniority and its administrative rules for mutual transfer, and to accept bottom seniority under rules as transfer is sought at own request, certain conditions have been listed and the concerned employee has to accept them.
As is clear from the documents submitted by the applicant with this O.A., he along with Shri Birendra Singh (respondent No.3) applied for mutual transfer on 26.01.2015 (Annex-A-4 of the OA) when the applicant was working as Assistant Points Man at Asvali Station in Bhusawal Division of Central Railway and Shri Birendra Singh working as Points Man 'B' in Chakradharpur Division of South Eastern Railway. In this application the applicant submitted proforma-B to abide by the conditions given therein. In proforma-D of the applicant for inter-Railway transfer (item no.3) he submitted that he was willing to carry out the transfer to Chakradharpur Division of South Eastern Railway on terms and conditions stipulated by the Railway Board in the letters dated 15.05.1955 and 01.02.1966 for transfer from one Railway unit to another on personal request. In item no.6 in that proforma, he submitted that he would not seek re-transfer to his parent railway at later date. In item no.7 he submitted that he would not withdraw his mutual consent given to. In the declaration attached with the application form, the applicant undertook to accept seniority as laid down in the Ministry of Railway / Railway Board letter of 19.05.1965 and 01.12.1966.
4(d). Their application for mutual transfer dated 26.01.2015 was processed by respective divisions of the two Zonal Railways and then on 21/22.04.2016 the headquarters office (Personnel Branch) of Central Railway, Mumbai CST instructed DRM(P), Bhusawal and GM (P), SER, Kolkata that inter-Railway mutual transfer between the applicant, APM, Bhusawal Division, Central Railway and Shri Birendra Singh, APM, Chakradharpur Dn. S.E. Railway had been approved by the competent authority on usual terms and conditions, and they should be relieved to report to respective divisions, and in terms of Railway Board letter dated 30.04.2014, applicant being the senior person should be relieved first and entire exercise should be completed in a week's time.
However, in pursuance to the above order of 21/22.04.2016, the applicant did not get relieved. But Shri Birendra Singh got relieved from Chakradharpur Division on
12.01.2018 and reported at Bhusawal Division on 15.01.2018. Then as per the order of DRM (P), Bhusawal dated 30.01.2018, the applicant was reverted as Assistant Points Man and transferred with immediate effect to Chakradharpur Division.
4(e). Once the process of mutual transfer was completed with the approval of the competent authorities of the two Zonal Railways as per the instructions of 22.04.2016, it was primarily the duty of the applicant being senior to get himself relieved. But in pursuance to the order dated 30.01.2018 of effecting the mutual transfer with immediate effect also, the applicant did not get himself relieved. Thereafter he submitted an application on 08.02.2018, to DRM (P), Bhusawal Division, Bhusawal claiming that he had applied for mutual transfer in 2014 and during the previous 3-4 years he did not get any information about it, he got promoted from Assistant Points Man to Points Man "A" and he was also preparing for selection as goods guard, his family was also settled in Bhusawal and, therefore, he requested for cancellation of his mutual transfer to Chakradharpur Dn. South Eastern Railway and to allow him to remain in Bhusawal Division only.
4(f). As far as mutual transfer is concerned, on analysing his case in terms of mandate in the Railway Board instructions issued from time to time on this subject and undertaking given by the applicant in his own application for mutual transfer, it is clear that after having applied willingly for the mutual transfer and undertaking not to withdraw it, backtracking of such request is not permissible. However, after completion of mutual transfer process, the applicant evaded to get relieved himself, even when it was primarily his responsibility to get relieved from Bhusawal Division. In the meantime Shri Singh kept waiting for relief of the applicant to join at Chakradharpur Division. Thus inspite of resiling from the undertaking submitted in his mutual transfer application and back tracking of approved mutual transfer not being permissible, the aplicant has violated his undertaking, and defied the order of the respondents reverting and relieving him on 30.01.2018. Shri Birendra Singh (respondent no.3) has complied with the mandate in those instructions, got relieved and joined at Bhusawal on 15.01.2018. In those circumstances, the applicant was reverted as Assistant Points Man and relieved with immediate effect by order dated 30.01.2018. This order issued by the respondents was fully justified and the applicant never challenged that order before filing of the present O.A. on 25.08.2020 and now his counsel has taken the plea that the order of 30.01.2018 got merged with the subsequent order dated 03.08.2020 issued in continuation of that order. However, he had no answer for not challenging the order of 30.01.2018 before 25.08.2020. But in spite of repeated orders to relieve him i.e. 22.04.2016, 30.01.2018 and 03.08.2020, instead of getting himself relieved, the applicant has defied those orders, and then has filed this O.A. on 25.08.2020.
The defiance of the instructions of the Railway Board and concerned respondent authorities in this manner amounts to indiscipline i.e. irresponsible conduct of the applicant. He seems to have a persistent mindset to get things done only on his own terms i.e. in manner and timings of his choosing. Upto 08.08.2018 i.e. before his promotion as Goods Guard from 09.08.2019, he was in the cadre of Points Man only i.e. APM earlier and Points Man Grade 'A' thereafter. As provided in Para 9 of the Railway Board Circular of 11.01.2019, mutual transfers are permitted on reversion between staff in two different grades but in the recruitment grade of the cadre and not in intermediate grades. That is why based on his own request for the mutual transfer, the applicant was relieved on 30.01.2018 after reverting him to the grade of APM. Thus his transfer after reverting him to the grade of APM was permissible and has been done because that was the post vacated by his partner Shri Birendra Singh, to be occupied by him in Chakradharpur Division.
From these facts of the case, it is clear that the applicant has totally failed to comply with the orders of the respondents issued in pursuance to his own request for mutual transfer, he has not honoured the undertaking given by himself in his mutual transfer application, and did not withdraw his request before completion of processing of the request and not before even his order of reversion to Assistant Points Man and transfer dated 30.01.2018 to join at Chakradharpur.
4(g). The claim of the applicant that he was never relieved is fallacious because once the mutual transfer process got completed, it was is responsibility to get relieved and by order dated 30.01.2018 he had been reverted and transferred. The falsehood of this claim is further proved by the applicant's own submission in his letter dated 12.03.2020 (available in case record of the respondents) stating that after Shri Birendra Singh had reported in January, 2018 at Bhusawal Division, the applicant himself had requested Shri Narpat Singh, Sr. Divisional Operations Manager, Bhusawal for retaining him and as per his oral instructions, he continued to remain in the Bhusawal Division. From this submission of the applicant in his letter dated 12.03.2020, it is reasonable to infer that in connivance with some of employees of the respondents, the applicant has somehow has managed to cling on the post in Bhusawal Division in defiance of the instructions of the headquarters of Central Railway, Mumbai dated 22.04.2016 and order of 30.01.2018 issued by the Bhusawal Division authorities. This has happened when neither it was permissible for the applicant to make any such request nor Shri Narpat Singh, Sr.DOM, Bhusawal was authorised to allow the applicant to continue in Bhusawal Division inspite of the orders of 22.04.2016 and 30.01.2018 reverting and transferring him with immediate effect.
4(h). The claim of the applicant's counsel that since the applicant continued in Bhusawal Division inspite of the order dated 30.01.2018 and after his promotion as Goods Guard (for which he was not eligible and even then he participated in the LDCE, got promoted as Goods Guard and thereafter continued on that post) the applicant's mutual transfer request got nullified is totally false. There is no stipulation in the instructions of the Railway Board about nullification a mutual transfer application or it becoming void.
4(i). The next claim of the applicant's counsel that after promotion of the applicant, the respondents should have obtained his fresh consent to transfer him is also without any basis. The Railway Board instructions do not provide for obtaining any fresh consent from the applicant for effecting the once approved mutual transfer and as the applicant's promotion as Goods Guard was erroneous, such claim is totally false.
4(j). His further contention about non-observance of timeline by the respondents for effecting mutual transfer is also not relevant. This timeline was provided in the Railway Board letter dated 22.09.2017 but the applicant's mutual transfer had already been completed with instructions of the headquarters office of the Central Railway dated 22.04.2016.
4(k). The contention of the applicant that he cannot be reverted and transferred on mutual transfer after his promotion as Assistant Points Man 'A' and Goods Guard is not correct because as per Railway Board Policy Circular dated 11.01.2009 (Para 9) cited by the applicant himself in Para 4.22 of the O.A., on request for mutual transfers, it is also permitted with reversion. Therefore, this contention is especially false and irrelevant.
4(l). The fact of his relief by order of 24.08.2020 was not disclosed by the applicant in the O.A. and even on 04.09.2020 when the O.A. was heard and the respondents were directed not to give effect to the order of 03.08.2020 till the next date of hearing. This fact was disclosed by the applicant only in the amendment application, although he himself has mentioned that the order of 24.08.2020 relieving him had been received by him on whatsapp on 02.09.2020. Therefore, the applicant's claim that he had never received the order of 24.08.2020 by any means is false. The claim of the applicant about issuing of backdated order of 24.08.2020 also has no substance.
4(m). His claim of sickness during that period is also without any evidence. Since the applicant and his counsel signed the O.A. on 24.08.2020, it is clear that the applicant was camping in Mumbai during that period and was busy in briefing the counsel and seeking his learned advice, and preparing this O.A. Therefore, it cannot be believed that he was sick. The claim of the applicant that a soft copy of the O.A. had been sent to the respondents on 23.08.2020 itself is also not acceptable because the O.A. has been actually received in CAT office on 25.08.2020 and it was signed by the applicant and his counsel on 24.08.2020. The respondents have clarified that because of unauthorized absence of the applicant from office from 16.08.2020 onwards, the order of 24.08.2020 had been sent at his residence, it was also placed on the office notice board and had also been sent on whatsapp.
4(n) - Caselaws relied upon by the applicant. (i) Decisions of C.A.T., Jaipur Bench and Rajasthan High
Court in case of OA 183/2011 (G.K.Badonia) - in that case request was made in November, 2007, order of mutual transfer was issued on 15.04.2011 and the applicant requested to cancel his mutual transfer on 17.12.2010, that is he had requested to cancel his mutual transfer immediately after his promotion and before the order of mutual transfer was issued. Therefore, facts of that case were different.
(ii). Decision of Allahabad Bench of CAT in O.A.No.334/2017 - in that case the mutual transfer application was made on 21.03.2014, the transfer was approved by letter of 16.01.2017 and he was reverted on 06.03.2017. In between by order of 21.03.2014 he was given the benefit of MACP from 01.09.2012 and he was promoted on 16.11.2016. Thus he was promoted before the order of mutual transfer was issued and in issuing that order there was delay of more than three years and he applied for cancellation of his mutual transfer on 13.02.2017 before the order of reversion was issued. Therefore, the facts of that case were also different.
(iii). Decision of Ernakulam Bench of C.A.T. in O.A.276/2008 dated 07.11.2008 - in that case the application for mutual transfer was submitted in August, 2005, then he got promoted and withdrew his application on 05.04.2007, whereas the transfer order was issued on 15.05.2008. Thus his request withdrawing the mutual transfer was made before the order of mutual transfer was issued. Therefore, in that case also facts were different.
(iv). Decision of Kolkata Bench of the C.A.T. in O.A.350/1101/2018 dated 25.02.2020 - in that case application for mutual transfer was submitted in February, 2012 and it was approved on 01.01.2017 but in between he got promoted from 10.11.2013 and when he was asked, he refused his willingness to mutual transfer. Therefore, facts of that case were also different. Thus the caselaws relied upon by the applicant are of no help to him.
Caselaws relied upon by respondents-
(i). By the decision of Allahabad Bench of CAT (Single Bench) in O.A.330/01549/2015 dated 10.05.2019, the O.A. was dismissed because the representation was made after the order of mutual transfer had been issued.
(ii). The Andhra Pradesh High Court decision in M.Nagarajan Vs. Union of India and others in W.P. No.22873/2009 dated 23.12.2009 - in that case, the view taken was that once the applicant had submitted his own request for mutual transfer voluntarily with his own consent, then it was not open for him to resile from the conditions stipulated therein. These caselaws support the contentions of the respondents.
4(o). The present case also reveals not only persistent attempts of the applicant for not observing mandate of the Railway Board instructions, laxity on the part of the respondents is also clear. After his request for mutual transfer was concurred by the South Eastern Railway, Kolkata as per letter of 07.03.2016, the Personnel Branch of the Central Railway, Headquarters, Mumbai had issued instructions on 21/22.04.2016 to relieve the applicant to report to DRM, Chakradharpur for further posting as being the senior person between the two he was to be relieved first but in spite of these instructions sent to DRM, Bhusawal and also General Manager (P), S.E.R., Kolkata for relieving the applicant and his counterpart in the mutual transfer Shri Birendra Singh, the respondents did not implement this order to relieve the applicant. Subsequently the order was issued on 30.01.2018 by the office of DRM (P), Bhusawal with approval of Competent Authority to effect the mutual transfer immediately by reverting the applicant as APM, Level-1. The applicant received that order of 30.01.2018 but never challenged it for three and half years before filing of this O.A. on 25.08.2021. When the applicant's counsel was questioned on this, his response was that the order of 30.01.2018 got merged with that 03.08.2021. But before 03.08.2021, there was no case of such merger. Thereafter finally in continuation of the order of 30.01.2018 the respondents issued the next order for the applicant on 03.08.2020 and only thereafter they have relieved the applicant on 24.08.2020.
4(p). In this case, we observe that with a crafty mind, the applicant has made false, inconsistent and contradictory claims as well as serious allegations against the respondents in the OA and rejoinder as under:
(a) about Shri Birendra Singh -
(i) he is respondent No.3 in the OA but he has been mentioned as respondent No.5 in paragraph No.4.2 of the OA.
(b) about his request for mutual transfer to Chakradharpur - (i) in his application on 08.02.2018 (page 62 of OA), he stated that he had applied for mutual transfer in 2014 while in his handwritten application dated 25.01.2018 (it is at page 45 of case record of respondents and not enclosed with O.A.), he stated that he had applied for the mutual transfer in February, 2014. All other contents of these two applications are also not exactly same. But he had actually submitted his application with his own signatures only on 26/27.01.2015, and in para B page 3 of O.A., it has been mentioned that he had applied on 02.02.2015, although he had actually submitted his request with his signature dated 26/27.01.2015. Then in his application dated 05.08.2020 he stated to have applied for mutual transfer in 2015 but did not get any information about his transfer, this is inspite of his reversion and relief by order of 30.01.2018, and joining of his mutual transfer partner in Bhusawal on 15.01.2018, as stated in his application of 08.02.2018. In his application dated 12.03.2020 submitted to DRM (P), Bhusawal, he stated to have applied for mutual transfer in 2014. But his attempt to be clever by half has also given some clues. He has also mentioned that after Shri Singh had joined in Bhusawal Division he had requested the then Sr.D.M. (Shri Narpat Singh) to retain him in Bhusawal which was accepted and as per his oral instructions, he was retained in Bhusawal (copy of that letter at page 5(c) of respondents case record). The respondents have not mentioned anything about it in their reply or sur-rejoinder or arguments or clairification.
(ii) In para C of O.A., he has stated that he has worked as Goods Guard from 20.08.2019 though he was actually promoted as per order dated 09.08.2019 and in para B and para 4.16 of O.A., he has himself mentioned that he has been working as Goods Guard from 09.08.2019.
(iii) In para 5(i) of O.A., he has mentioned that his transfer request became redundant. In the clarification dated 23.08.2021, he has claimed in para 5 (iii) that on his promotion as Points Man 'A', his request for mutual transfer stood nullified. But he has failed to produce any evidence of such mention in the Railway Board instructions about mutual transfer requests becoming redundant or nullified. Even in the MA No.302/2020 submitted for amendment of the OA on 10.09.2020, he himself has stated that he is still willing to go to Chakradharpur but as Goods Guard.
(c). about the respondents -
(i) No action was taken on his request of mutual transfer dated 02.02.2015 by the respondents for five years and he has not been transferred till the date of filing of this O.A. This is in spite of orders of 22.04.2016, 30.01.2018, 03.08.2020 and 24.08.2020.
(ii) As per order of 30.01.2018, he was never reverted and continued to work there as Points Man 'A' and later on as Goods Guard from 20.08.2019. In para 5 of the rejoinder he has mentioned that the order of 30.01.2018 was deemed to have been withdrawn when he was allowed to appear in the LDCE. But there is no such deeming provision in the Railway Board instructions about deemed withdrawal of a mutual transfer application.
(iii) In para 4.24(A) - this OA was filed online on 23.08.2020 with a copy to the respondents on the same day but this OA has actually been signed by the applicant only on 24.08.2020 and received in CAT office only on 25.08.2020. Since the applicant had himself signed it on 24.08.2020, it could not have been filed on 23.08.2020 because without his signature on it and verification of contents, an O.A. is not a valid one.
(d) Allegations against the respondents-
(I) The applicant has made repeated serious allegations against the respondents in different parts of the OA, rejoinder and clarification. For example in para 4.14 of O.A. - that he was never reverted and continued to work as Goods Guard; in para C, E and G and para 4.17, 4.19 and 4.23 of the O.A. that the order of 03.08.2020 was issued only to harass and harm the applicant, reference to this order of 30.01.2018 in that order of 03.08.2020 is absolutely arbitrary, mischievous, unfair, misleading, absurd, illogical and showing ill-will and vindictive attitude against the applicant; and in para 5, 6, 8 of the rejoinder in response to the reply of the respondents, it has been claimed that their reply is complete falsehood. Instead of articulating his case in sober and polite language, this liberal use of such terms against the respondents as if they are hostile to him, in drafting the O.A., rejoinder and clarification is reflection of extreme poverty of thought process. We deprecate it in the strongest terms. Use of such language must be eschewed by the applicant and his counsel.
In para 4.19 of the O.A., the applicant has made allegations against Respondent no.4 i.e. Shri Ramteke. In his
clarification dated 23.08.2021, he has made allegations against Shri Ramteke and Shri Gangurde of harassing and victimizing his family. These allegations have been made without making them respondents in their personal capacity. Therefore, no cognizance can be taken of these allegations. It was because of these false and contradictory claims and allegations that we had to seek clarifications in this case more than once and decision got delayed.
4(q). The facts of the case bring out failure of the applicant on the following points -
(i) He has suppressed knowledge about the letter dated 07.03.2016 issued by the South Eastern Railway, Kolkata and the order dated 22.04.2016 issued by headquarters of Central Railway, Mumbai for relieving him as per the relevant Railway Board instructions.
(ii) Since the applicant himself had sought mutual transfer and did not withdraw it before 22.04.2016, i.e. before on completion of his mutual transfer process or before 15.01.2018 or 30.01.2018, his reqest of 08.02.2018 did not deserve consideration.
(iii) In not complying with the mutual transfer order dated 30.01.2018 and also in participating in LDCE even when he was not eligible after his order of transfer on immediate basis had been issued on 30.01.2018,
(iv). In not joining on mutual transfer after even the second order of reversion issued on 03.08.2020 in continuation of earlier order of 30.01.2018 and releiving order of 24.08.2020.
4(r). The facts of the case also reveal failure of the respondents on these counts:
(a). The Bhusawal divisional office did not promptly implement the order/instructions issued by the headquarters office of Central Railway dated 22.04.2016 approving the mutual transfer of the applicant with Shri Birendra Singh and for relieving him within a week. They also did not implement expeditiously their own order dated 30.01.2018 by which the applicant had been reverted from the post of Assistant Points Man A and asked to be transferred with immediate effect when his mutual transfer partner Shri Birendra Singh had already joined in Bhusawal Division on 15.01.2018.
(b). From the facts of the case, particularly as revealed by the applicant's letter dated 12.03.2020, the applicant as well as some officers and / or staff members of the respondents have operated in connivance in not relieving him as per order of 30.01.2018 and allowing him to continue in Bhusawal division, then to permit him to participate in LDCE for selection as Goods Guard and thereafter promoting him to join on the post of Goods Guard from 09.08.2019. For all these failures and serious lapses on the part of the respondents, inspite the applicant's letter of 12.03.2020 being on their record, neither investigation, has been done on this aspect nor responsibility has been fixed so far. They have submitted only a vague reply that DAR proceedings have been initiated against the concerned staff members but even after more that 3 years, they have not reported their final decision against the concerned staff members. In fact as per Para 228 of IREM Volume I, as soon as the applicant's erroneous promotion as Goods Guard in August, 2019 was noticed/detected, the Competent Authority ought to have taken the corrective action immediately by cancelling that promotion order. But reversion from the post of Goods Guard was effected only by the order of 03.08.2020. We expect the respondent no.1 to get the investigation completed into connivance of some officers and/or staff members indicated above and DAR proceedings against the concerned concluded expeditiously.
4(s). In view of the above conclusions, we do not find any merit in this O.A. Inspite of not honouring of his own undertaking by the applicant and continuous defiance of lawful orders of the respondents to get relieved and not joining on transfer as per his own request for mutual transfer and continuing in Bhusawal Division, the applicant's counsel has pleaded for sympathetic consideration to the applicant. However, in the facts and peculiar circumstances of this case, there is no case for any sympathy for him. If misplaced sympathy is allowed in such an undeserving case, then it would be patently unjust and unfair to those who observe discipline, follow lawful instructions and directions of superior authorities, and comply with their own undertakings. Hence this O.A. deserves dismissal with cost, but we are restraining from imposing the cost
5. Decision :
This O.A. is dismissed. No costs. (Ravinder Kaur) (Dr.Bhagwan Sahai) Member (J) Member (A). H.