Central Administrative Tribunal - Delhi
Sh. Bhanu Prakash vs Union Of India Through on 6 August, 2013
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-3788/2011
MA-2806/2011
Reserved on : 18.07.2013.
Pronounced on :06.08.2013.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. Bhanu Prakash,
S/o Sh. Ram Bharosi Lal,
R/o 184, Shakarpur, New Vijay Nagar,
Sector-9, Ghaziabad (UP). . Applicant
(through Sh. Yogesh Sharma, Advocate)
Versus
1. Union of India through
the General Manager,
Northern Railway, Baroda
House, New Delhi.
2. The Divisional Railway Manager,
Northern Railway, Delhi Division,
State Entry Road, New Delhi.
3. Divisional Personal Officer,
DRMs Office, Northern Railway,
Delhi Division, State Entry Road,
New Delhi. . Respondents
(through Sh. S.M. Arif, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant has sought the following relief:-
(i) That the Honble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 8.6.2011, declaring to the effect that the whole action of the respondents not fixing the seniority of the applicant at appropriate place on his mutual transfer in Delhi Division is illegal, arbitrary and against the rules and consequently pass an order directing the respondents to fix the seniority of the applicant at par with Sh. Nurender Kumar Manghate by taking account his date of appointment as 27.4.2005 as ALP and dt. 25.2.2009 as LPS with all the consequently benefits.
(ii) That the Honble Tribunal may further graciously be placed to pass an order of quashing the impugned order dated 2.9.2009 only to the extend by which the applicant was given posting to the applicant of ALP, where his partner namely Sh. Nurender Kumar Manghate was working to the post of LPS at the time of transfer and consequently pass an order directing the respondents to treat the applicant posting to the post of LPS at the time of his transfer with all the consequential benefits.
(iii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant with the costs of litigation.
2. Facts of the case are that the applicant was initially appointed in the Railways on the post of Assistant Loco Pilot in the Nagpur Division of South East Central Railway in the grade of Rs. 3050-4590/Rs.5200-20200+grade pay of Rs.1900/- on 25.05.1998. Subsequently, he got promoted to the post of Sr. Assistant Loco Pilot in the grade pay of Rs.2400/- in the same Pay Band w.e.f. 20.03.2006. He made a request for inter railway mutual transfer with one Sh. Nurender Kumar Manghate, Assistant Loco Pilot of Delhi Division in April 2006. Sh. Nurender Kumar Manghate at that time was working in the grade pay of Rs.1900/- in the same pay band. Since two were not of equal level, the request of mutual transfer could not be considered. Subsequently, the applicant gave his willingness on 20.05.2008 for going on mutual transfer with acceptance of lower grade pay of Rs.1900/- i.e. grade pay which Sh. Nurender Kumar Manghate was drawing at that time. The request of the applicant was acceded to by GM/P on 06.01.2009. In the intervening period Sh. Nurender Kumar Manghate had also got promoted as Loco Pilot Shunter in the grade pay of Rs.2400/-. The grievance of the applicant is that on mutual transfer the applicants seniority was fixed by first reverting him to the level of Assistant Loco Pilot in the grade pay of Rs.1900/-. His contention is that since Sh. Nurender Kumar Manghate had already been promoted to the post of Loco Pilot Shunter before the mutual transfer was affected, he should not have been reverted to the post of Assistant Loco Pilot at all. Subsequently, on the basis of the seniority given to the applicant after reversion to the post of Asstt. Loco Pilot, the respondents vide their order 28.01.2011 promoted the applicant to the post of Loco Pilot Shunter. The applicant contends that during the period from 19.08.2009 to 27.01.2011 the applicant was wrongly placed at the level of Assistant Loco Pilot.
3. The respondents have filed their counter in which they have denied the averments made by the applicant. According to them the mutual transfer of the applicant was approved only because he had agreed to accept lower post of Assistant Loco Pilot. Mutual transfer is permitted only of persons of equal level and thereafter their seniority in their new units are fixed in accordance with Rule-230 of Indian Railway Establishment Code, which reads as follows:-
Transfer on mutual exchange. In case of mutual exchange, the senior or the two employees will be given the place of seniority vacated by the other person. The junior will be allowed to retain his former seniority and shall be fitted into the seniority below the persons having the same seniority. If the applicant had any grievance he ought not to have accepted the order when he was relieved and reverted as Assistant Loco Pilot. Rather he should have applied afresh for mutual transfer maintaining his category grade pay of Rs. 2400/-.
4. We have heard both parties and perused the material placed on record.
5. The facts of the case are not disputed. The applicant first applied for mutual transfer in April 2006. Since no action was taken by the respondents on this request on the ground that Sh. Nurender Kumar Manghate with whom mutual transfer was sought was working at a level lower than that of the applicant, the applicant gave his consent for accepting lower level post on mutual transfer. This was done by him on 20.05.2008. However, his request could be acceded to only after a period of about 7 months on 06.01.2009. Meanwhile, Sh. Nurender Kumar Manghate had also got promoted to the level of the applicant. As such, on 06.01.2009 when mutual transfer was agreed to by the respondents, there was no need for reverting either the applicant or Sh. Nurender Kumar Manghate as both at that time were working at the same level. However, the respondents while considering the application of the applicant dated 20.05.2008, lost sight of the fact that in the intervening period Sh. Nurender Kumar Manghate had got promoted. Consequently, they ordered mutual transfer along with reversion of the applicant. In our considered opinion on the actual date on which the transfer was ordered, since both the applicant and Sh. Nurender Kumar Manghate were in the same grade pay, there was no need to resort to reversion. The approach adopted by the respondents is hyper technical. The Scheme of mutual transfer has been framed for the benefit of the employees. However, the respondents are implementing it in a manner that it is acting to the detriment of the employees thereby defeating its very purpose. Had the respondents been careful they would have realized that since they had taken considerable time to take a decision on the application of the applicant dated 20.05.2008, position of the employees involved in the transfer could have under-gone a change during the intervening period. Thus, due to negligence or mistake committed by the respondents the applicant has been made to suffer.
6. In view of the above facts and circumstances of the case, the O.A. is allowed. Impugned order dated 08.06.2011 is quashed by which the representation of the applicant for refixation of his seniority was rejected by the respondents. We direct that the seniority of the applicant be refixed by holding that the inter railway transfer of the applicant was without reversion from the grade pay of Rs.2400/-. There will be no order as to costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/