Central Administrative Tribunal - Allahabad
Sachchidanand vs General Manager N C Rly on 10 May, 2019
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Original Application No. 330/01549/2015
Dated: This the 10th day of May 2019.
HON'BLE MR. RAKESH SAGAR JAIN, MEMBER (J)
Sachchidanand S/o Surya Bali, aged about 26 years, R/o 247/3, Naina
Garh, Nagra, Jhansi.
. . . Applicant
By Adv: Shri A.K. Singh
VERSUS
1. Union of India through General Manager, N.C. Railway,
Subedarganj, Allahabad.
2. Chief Works Manager, Jhansi N.C. Railway, Jhansi.
3. Senior Personnel Officer, in the office of CWM, N.C. Railway,
Jhansi.
4. Divisional Railway Manager, Divisional Officer Tugalakabad, New
Delhi.
5. Rajesh Verma S/o Janaki Prasad R/o 5-B, Rajapur, Near Sarai
Kale Khan, New Delhi 110013.
...... . .Respondents
By Adv: Shri Awadhesh Rai
ORDER
1. The present O.A. has been filed by applicant Sachchidanand under Section 19 of Administrative Tribunal Act seeking the following reliefs:
"(I) The Hon'ble Tribunal may graciously be pleased to quash the impugned order dated 26.08.2015 by which the applicant for forcefully transferred and 2 relieved from the office of Chief Works Manager, N.C. Railway, Jhansi to the office of Divisional Railway Manager, Tugalakabad, Northern Railway, New Delhi.
(II) The Hon'ble Tribunal may be pleased to direct the respondents to cancel the mutual transfer on account of his promotion to the post of Technician Grade III in the office of Chief Works Manager, N.C Railway, Jhansi with all consequential benefits.
(III) To issue any such other and further order or direction which this Hon'ble Tribunal may deem fit and proper in the nature and circumstances of the present case.
(IV) Cost of the application may also be awarded".
2. Case of applicant Sachchidanand is that he was appointed as Helper in pay scale of Rs.5200-20200, GP Rs.1800/- in the respondents-department in Jhansi. On 16.10.2013, he moved a joint application for mutual transfer with Rajesh Verma posted in New Delhi.
3. During the pendency of the application, applicant passed the LDC examination for promotion from Helper to Technician - III and his name was shown as successful candidate at Serial No. 10 in the panel dated 28.08.2015 issued by office of Chief Works Manager, Jhansi (Annexure A2).
4. In these circumstances, applicant filed representations dated 05.06.2015, 28.07.2015 and 28.07.2015 for cancellation of mutual transfer. However, respondent No. 3 without considering his representations, issued impugned order dated 26.08.2015 transferring and relieving from the posting at Jhansi to New Delhi. Applicant avers that since his reliever had not joined as yet, he 3 moved representation for retention in the post at Jhansi but the same was rejected. Hence the O.A. for quashing the impugned order dated 26.08.2015.
5. As per paragraph No. 4.7 of the O.A., applicant filed representations dated 05.06.2015, 28.07.2015 and 28.07.2015 for cancellation of mutual transfer. The reply to this paragraph is given by the respondents in Paragraph No. 20 of the counter affidavit which reads as under:-
"20. That the contents of para No. 4.7 of the original application, are vague, misconceived and are emphatically denied. In reply thereto, it is submitted that as no representation dated 5.6.2015 is available on record in the office of the answering deponent. The applicant cannot derive any benefit of representation dated 28.07.2015 and 26.08.2015 as the necessary exercise and approval had already been granted by the authority/Railway Administration and finally the orders of the Head Quarters were also communicated as already indicated above since the instructions as issued by the Railway Board through printed serial No. 53/2006 and 200 of 2009 and not Track Back Policy and the undertaking given by the applicant. The applicant since has already been relieved under the order dated 26.08.2015 and as such the very averments made by the applicant under para reference has no legs to stand. Any allegations contrary to the submission thus are not admitted and are emphatically denied".
6. In reply, respondents have averred that applicant seeks quashing of relieving order dated 26.08.2015 in pursuance to transfer order passed on the application moved for mutual transfer by the applicant and Rajesh Verma. As per the 4 respondents, both applicant and Rajesh Verma stand relieved and that Rajesh Verma assumed office on 14.09.2015.
7. The objection of respondents against cancellation of order dated 26.08.2015 is delineated in Paragraph No. 11 and 12 of the counter affidavit which read as below:
"11. That at this juncture, it will not be out of place to mention that the claim of the applicant is of a mutual transfer from one zonal railways to another zonal railways and after due approval of the competent authority of the zonal railways, the request for cancellation of their mutual request cannot be entertained as per the rules. The relevant provisions as contained in Indian Railway Establishment Manual, Volume - I Para 310, and the instructions issued by the Railway Board in respect of such request made by the individuals as circulated by R.B.E. No. 53 of 2006 dated 21.04.2006 and R.B.E. No. 200 of 2009 dated 12.11.2009. Such request cannot be considered at this belated stage. Specially in the circumstances when a Track Back Certificate is already on record of the incumbent who had already resumed the office in pursuance of the exercised so done at the competent level.
12. That the applicant cannot derive any benefit, the benefit of the selection for the post of Technician Grade III especially in view of the position that the request for mutual transfer has already been accepted by the competent authority and has already been relieved on 26.08.2015 and as such the applicant has no legal enforceable right to maintain the present proceedings before this Hon'ble Tribunal and as such the present original application is deserves to be dismissed with costs".5
8. So, as per, the respondents, the request for cancellation/withdrawal cannot be entertained in view of Para 310 of IREM Volume-I, R.B.E. No. 53 of 2006 dated 21.04.2006 and R.B.E. No. 200 of 2009 dated 12.11.2009. The said Rules read as below:
"310. Mutual Exchange:--Railway servants transferred on mutual exchange from one cadre of a division, office or railway to the corresponding cadre in another division, office or railway shall retain their seniority on the basis of the date of promotion to the grade or take the seniority of the railway servants with whom they have exchanged, whichever of the two may be lower.
RBE No.53/2006:
GOVERNMENT OF INDIA/BHARAT SARKAR MINISTRY OF RAILWAYS/RAIL MANTRALAYA (RAILWAY BOARD) No.E(NG)I-2006/TR/6. New Delhi, dated 21-04-2006. The General Manager (P) All Indian Railways and PUs (As per standard list) 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 minimum loss of seniority. Instances have come to notice where employees make request for such mutual exchange transfer and later on backout when orders are issued and even after one of the two employees gets relieved to join the new place.
3. 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 6 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.
(J.S.Gusain) Director Estt.(N) Railway Board RBE No. 200/2009 Railway Board Letter No E[NG]I-2006/TR/6 dated 12.11.2009 Date 2009-11-12 RBE No 200/2009 Circular Subject Inter-Railway and Intra-Railway transfers on mutual exchange As per Board's letter of even number dated 21.04.06 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".
9. I have heard and considered the arguments of the learned counsels for the parties and gone through the material on record.
10. Both applicants Sachchidanand posted in Jhansi and Rajesh Verma posted in New Delhi moved application for mutual transfer. Under the Indian railway Establishment Code, under rule 230, transfer on mutual exchange is permissible. The same is regulated by a circulars R.B.E. No. 53 of 2006 dated 21.04.2006 and R.B.E. No. 200 of 2009 dated 12.11.2009 wherein it is further 7 provided that in case of inter-railway and intra-railway transfers on mutual exchange, the board had reviewed the work out of the scheme of transfers on mutual exchange and on noticing that there are instances where the employees who earlier made a request for such mutual exchange transfer and later opted to back out from the same when orders are issued and even after one of the two employees gets relieved to join the new place. In that view, the Board had reviewed the matter and decided that as mutual transfers are ordered with the consent of both 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.
11. In the instant case, after completion of the procedure and formalities, the competent authority approved the mutual transfer of applicant and Rajesh Verma which is apparent from letter dated 08.05.2015 (Annexure No. CR-3) filed by respondents.
12. The question for consideration is weather applicant can seek withdrawal of his consent for mutual transfer with Rajesh Verma. I have considered the contentions of both the learned counsel and am of the view that in terms of the Circular referred to above, on the request respective employees seeking mutual transfer, the order for their mutual transfer has been accorded prior to the filing of the representations by the applicant and the same cannot be withdrawn at this stage and is binding upon both of the said employee.
13. It is to be noted that the aforementioned circulars of 2006 and 2009 issued by the railways was only to avoid a situation of the present nature as has happened in the present case. The said Circular in categorical terms prohibits any such withdrawal of the consent for mutual transfer. It is not in dispute that mutual transfer 8 is a scheme and once an employee seeks to take benefit of the scheme, the terms and conditions of such scheme cannot be said to be conditions in terrorem or conditions opposed to contract or conditions opposed to freedom of contract. There was no compulsion on either party to agree to a mutual transfer inter se. They voluntarily on his own given consent for mutual transfer and in terms of the Circulars referred to above, it was not open for either party to resile from the conditions stipulated therein. It was therefore not open for the applicant to withdraw his consent by his representation since the order for mutual transfer had already been passed prior to the submission of the representation.
14. Applicant placed reliance upon O.A. No. 289/1988 titled Christopher Mascrene v/s Union of India decided by CAT, Hyderabad vide order dated 05.08.2009. The dispute in that case was mutual transfer between applicant and respondent No. 9 but the respondents quashed the mutual transfer of applicant and respondent No. 9 on request of latter and ordered mutual transfer between respondent no. 9 and 10 which was cancelled. The facts of the said case are entirely different from the facts of the present case and inapplicable to the present case.
15. In view of the pleadings of the parties as well as the circulars of the Railways, I have not been able to find any illegality or error in the impugned order and no interference is called for. The O.A is, therefore, devoid of merits and is liable to be dismissed.
16. The Original Application is, accordingly, dismissed. There shall be no order as to costs.
(RAKESH SAGAR JAIN) MEMBER-J Manish/-