Central Administrative Tribunal - Ernakulam
Wasnik Harshavardhan Tarachand vs The General Manager on 10 August, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 180/00561/2016
Wednesday, this the 10th day of August, 2016
CORAM:
HON'BLE Mr. U. SARATHCHANDRAN, JUDICIAL MEMBER
Wasnik Harshavardhan Tarachand,
Working as Senior Goods Guard,
Palghat, Palghat Division,
Southern Railway, Pemanently residing at:
Flat No. 53, Misal Layout,
Near Deshpandy Flour Mill,
Jaripatka Road, Nagpur - 14. - Applicant
(By Advocate M/s. Varkey & Martin)
Versus
1. The General Manager,
Southern Railway,
Headquarters Office,
Park Town, Chennai - 2.
2. The Senior Divisional Personnel Officer,
Southern Railway, Palghat Division,
Palghat -2.
3. The Chief Personnel Officer,
Central Railway, Headquarters Office,
Mumbai CST, Mumbai - 400 032. - Respondents
(By Advocates Mr. Thomas Mathew Nellimoottil)
The application having been heard on 10.08.2016, the Tribunal
on the same day delivered the following:
O R D E R (Oral):
Per: Mr. U. Sarathchandaran, Judicial Member Applicant is a Senior Goods Guard in the Palghat Division. He is hailing from Nagpur. After appointing as Goods Guard in 2012 in the Southern Railway he submitted request for inter-railway transfer to Nagpur Division of Central Railway. Initially, his application was not forwarded by the respondent authorities due to certain defects in the photograph. So, he submitted Annexure A-2 application again. The competent authority of the Central Railway granted approval to accommodate applicant in the Nagpur Division. However, the request for relieving him from the Southern Railway was kept pending by respondent No.2. They stated in Annexure A-3 that there is shortage of manpower for handling the post of Goods Guard and the selection process for filling up of vacancy. Applicant states that even after the selection process of new Goods Guards has been completed, he was not relieved as promised in Annexure A-3 despite several reminders and hence he has approached this Tribunal seeking the relief as under:-
'i) To direct the respondents 1 and 2 to pass necessary orders relieving the applicant from Palghat Division in order to join in Nagpur Division of Central Railway.
ii) Award costs of and incidental to this application.
iii) Grant such other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.'
2. Respondents admit that the approval of the Central Railway for accommodating the applicant in Nagpur Division has been received by the Southern Railway as indicated in Annexure R-2 communication addressed to the DRM Palghat Division by respondent No.2. They state that as the vacancy position in the cadre of Guard became acute Annexure A-3 letter was sent in relation to the applicant's request for inter-railway transfer pending his relieving till the vacancy position improved. According to respondents despite selection of 15 persons to the posts of Goods Guards vacancy position of the Goods Guards cadre at present is 26. They have given the details of the vacancies arose after 2015. It is further contended by the respondents that though Central Railway has communicated their consent of inter-railway transfer pertaining to the applicant as the applicant has not yet been relieved due to the shortage of manpower in the Southern Railway. Therefore the prayers in this O.A cannot be allowed.
3. In support of their contention the respondents rely on Annexure R-4 to 7 copies of the administrative instructions. Annexure R-4 states that in view of the critical position in the matter of manpower and safety issues, the request for inter-railway transfers of the ASM and ALP categories would be considered only after completion of 5 years working in the post, after training. Annexure R-5 is another administrative instruction which mandates one year period after training for Goods Guards to applying for inter-railway/inter-divisional transfer. Annexure R-6 is Railway Board's letter dated 31.08.2015 dealing with the Comprehensive Transfer Policy for Railway Officers wherein it has been instructed that no inter-railway transfer request will be considered without completion of 5 years of assigned zone.
4. Learned counsel for the respondents submitted that the applicant having not completed 5 years of residency period as required by Annexure R-6 instructions and as he has not yet been relieved by the Southern Railway, his request cannot be considered in view of the acute shortage of Goods Guard.
5. Learned counsel for the applicant referring to Annexure R-6 Railway Board letter dated 31.08.2015 submitted that the instructions contained therein the administrative instructions and hence is prospective in nature. This contention is further strengthened by Clause (xvii) in Annexure R-6 letter which states that 'All fresh transfer orders will be governed by this policy'. Therefore, obviously, instructions in Annexure R-6 are applicable only in cases of fresh transfer orders subsequent to Annexure R-6 instructions.
6. Learned counsel for the applicant further referred to Annexure R-7 communication produced by respondents. Annexure R-7 is a Personnel Branch Circular No. 14/2016 dated 04.02.2016, wherein it has been clearly stated that :
'(b) However IRT cases may be now finalised, where prior to issue of PBC 184/2015 approval has already been received from & / communicated to other railway after confirming with the concerned railway.'
7. Learned counsel for the applicant referred to certain observations made by the High Court of Kerala in a matter relating to similar transfers withheld by the Southern Railway raising the contention that vacancies continue to exist and is affecting the functioning of the Railway. The observation of the High Court in para 5 in its judgment dated 09.09.2013 in O.P (CAT) No. 3124/2013 reads:
'5. It is for the Southern Railway to take appropriate action to fill up the vacancies. We are sure that in this Great Bharath, that is India, a land of educated and unemployed youth, there should be no dearth of persons, if proper and prompt selections are made for the purpose of recruitment and appointments are made well in time. Lethargy on the part of the superior authorities in an establishment to initiate necessary steps for timely recruitment is no answer to deprive the benefit of transfer to the incumbents who are eligible to such transfers in accordance with the settled norms. In effect, it only demonstrates coveted exclusion of opportunity of open market candidates in this land of the needy.'
8. Taking stock of the facts and circumstances revealed through the pleadings and records and after hearing both sides, it appears to this Tribunal that respondents are taking an untenable stand in the matter of releaving the applicant in spite of having obtained a clear communication from the Central Railway approving his request for inter-railway transfer to Nagpur Division of that Railway. The contention of the respondents based on Annexure R-6 and R-7 administrative instructions are also not acceptable as they are prospective in nature. It is clear that Annexure R-6 instructions of the Railway Board in relation to the residency period of 5 years is applicable only after 31.08.2015. The afore-quoted extract from Annexure A-7 shows that IRT cases can be finalised where prior to the issuance of Annexure R-6 Railway Board letter of approval has already been received from/communicated to the other railway after confirming with the concerned railway.
9. In this case, the communication of approval from the Central Railway has been received much prior to Annexure R-6 Railway Board instructions. Therefore, this Tribunal is of the view that respondent Nos. 1 and 2 are obliged to comply with the request of the applicant for relieving him in pursuance to the approval granted by the Central Railway for his request for inter-railway transfer to Nagpur Division as Senior Goods Guard where he will be at bottom seniority in the grade.
10. The Original Application is allowed. Respondents shall relieve the applicant within 15 days of receipt of a copy of this order. Parties shall suffer their own costs.
(Dated, this the 10th August, 2016.) (U. SARATHCHANDRAN) JUDICIAL MEMBER ax