Central Administrative Tribunal - Madras
C Manojkumar vs M/O Railways on 16 August, 2023
1 OA No.310/00576/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00576/2022
Dated Wednesday the 16th day of August Two Thousand Twenty Three
CORAM :
HON'BLE MS. LATA BASWARAJ PATNE, Member (J)
C. Manoj Kumar
S/o. Chandrasekaran Nair
Senior Section Engineer / GTL
Office of the Assistant Mechanical Engineer
Goothy, South Central Railway
Ananthapur District
Andrapradesh , Pin - 515 402. ...Applicant
By Advocate M/s. K. Manickaraj
-vs-
1. Union of India represented by
The Chairman, Railway Board
Rail Bhavan, Raisina Road
New Delhi - 110 001.
2. The Chief Personnel Officer
Southern Railway
Park Town, Chennai 600 003.
3. The Chief Personnel Officer
South Central Railway, Rail Nilayam
Secundarabad
Telengana
4. The Senior Divisional Personnel Officer
Guntakal Division, South Central Railway
Guntakal.
2 OA No.310/00576/2022
5. The Senior Divisional Personnel Officer
Salem Division, Southern Railway
Salem, Tamil Nadu. ....Respondents
By Advocate Mr. Su. Srinivasan
3 OA No.310/00576/2022
ORAL ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) By this OA the applicant is praying for the following reliefs:
"To call for records related to the impugned A-6 order re-directing the applicant to the parent Division/Railway by misreading, misunderstanding and misinterpret the A-7 and A-8 Railway Board order and prayed:
1. to set aside the impugned order which is in violation of their own orders regarding the mutual transfer in the nature of this case in the A-7 and A-8, it contradicting the principle of natural justice and Article 14 and 21 of the Constitution of India
2. To issue direction to the 2nd respondent to allow the applicant to join the post at Salem Division as per the mutual order as it does not violate A-7 and A-8 orders of the 1st Respondent actually it supports the applicant
3. Allow this Original Petition with cost to the applicant and
4. pass such other orders that are deemed just, fair and necessary in the facts and circumstances of the case."
2. The brief facts of the case in nutshell is as under:
The applicant is working as Senior Section Engineer, Gooty, Guntakkal Division of South Central Railway had applied for mutual transfer with one K. Nookeswara Rao working in the same cadre, department and in the same status of the applicant at Salem Division of Southern Railway. After due process as per procedures; South Central Railway had issued order as per the guidelines of the Railway board and relieved the applicant to join 4 OA No.310/00576/2022 in Southern railway and reported at Salem Division. The 5th Respondent not permitted the applicant to join duty after reporting at Salem Division, Southern Railway but directed to report to 2nd Respondent. After reporting the 2nd Respondent; the applicant was re-directed to South Central Railway by impugned order stating that as mode of induction to the grade of SSE is different and not in accordance to the instructions contained in Para 2 of (ii) (b) of Board's letter E(NG)I-2004/TR/16, DATED 22.10.2007. Since the issuance of transfer order and relieving order were made only after approval of the 2nd respondent and as per the orders of the 1st respondent on mutual transfer of Railway staff under Para 2 of (ii) (b) of Board's letter E(NG)I-2004/TR/16, DATED 22.10.2007;
re-direction of the 2nd respondent by misreading, misunderstanding and misinterpreting the Para 2 of (ii) (b) of Board's letter E(NG)I-2004/TR/16, DATED 22.10.2007 is illegal and unlawful and against the Railway Board's policy order on Mutual transfer. In similar matters in O.A. No.742/2015 and O.A.No.41/2016, the Sister bench of Ernakulam had passed interim order directing the respondents, the same respondents herein, to relieve the applicant subject to the outcome of the O.As. Those OAs are pending. Thus this Original Application is filed.
3. After notice the respondents have filed their reply statement and opposes the relief on the ground that the approval given by the authority is not in accordance with RBE Circular dated 14.08.2007 followed by 5 OA No.310/00576/2022 22.10.2007. Moreover that the said request transfer order has been cancelled on 05.02.2021 and subsequently another person by name K. Nookeswara Rao has requested by his letter dated 13.06.2022 to withdraw his mutual request for transfer. The respondents further contended that though the applicant has been relieved from the present post and joined the transferred place however subsequently the same has been cancelled and accordingly the applicant has been reposted to present post. Hence he submits that prayer of the applicant cannot be granted.
4. The applicant has filed rejoinder to refute the points raised by the respondents.
5. Heard both sides. Perused the OA and other connected records.
6. Learned counsel for the applicant submits that when inter Railway mutual transfer has been considered on 21.08.2020 both the persons applicant as well as other person who are willing for mutual transfer has been shown under the un - reserved category. Accordingly the application has been processed by the applicant's office to transfer the applicant to Salem Division in the place of Shri. K. Nookeswara Rao on 20.01.2021 and on 27.01.2021 the applicant has been relieved from the present place of posting. Accordingly the applicant has joined to the said transfer place at Salem Division on 29.01.2021. However the said mutual transfer request has been cancelled by the Headquarter i.e. respondent no 2 on 05.02.2021.
6 OA No.310/00576/2022
7. The learned counsel for the applicant argued that when the applicant went and joined at Salem and he has returned back to the Gunatakal Division of the South Central Railway and the said action of the respondents is against the Railway Board Circular as well as P.B. Circular No. 90/96 issued by respondent no. 2. As per para 3.0 of the said circular the respondents have not followed with the said guidelines and the act of the respondents is totally in contravention to the said circular.
8. The learned counsel for the applicant relied upon the order passed by this Tribunal in OA 1389/2017 dt. 01.08.2018 in the matter of A. Karthikeyan Vs. UOI, Southern Railway and submitted that the similar issue has been considered and upon hearing set aside the cancellation of mutual transfer request and directed the respondents to accommodate the applicant as per his request by passing necessary orders.
9. Learned counsel for the applicant further refers to the Railway Board letter dated 15.09.2017 wherein specific guidelines has been issued in respect of relieving of staff on mutual exchange basis and directed to release the said employees latest by 30.09.2017.
10. On the other hand learned counsel for the respondents vehemently opposed the relief prayed by the applicant and the arguments raised by the learned counsel for the applicant on the ground that applicant's request has been considered on inter railway mutual transfer against the request received from the Salem division of one of the employee Shri. K. 7 OA No.310/00576/2022 Nookeswara Rao. Though the request of K. Nookeswara Rao of Salem Division was processed. The learned counsel for the respondents further submits that in the matter of applicant the applicant's request has been recommended for approval. However on the other hand, the request made by the another employee for said mutual transfer that is Shri. K. Nookeswara Rao has not been approved nor it is recommended. The applicant's request has been considered on one sided transfer under the wrong impression and applicant came to be released by order dated 27.01.2021 wherein it is categorically stated that the applicant belongs to UR Category. However another person who is also on mutual request with the applicant belongs to OBC category. Though the applicant who has joined the said post at Salem on 01.02.2021 however the competent authority i.e. respondents no. 2 has gone through the said proposal on mutual transfer and has not agreed to the IRMT request as the mode of induction to the grade of SSE is difference and it is not in accordance with the guidelines issued in the RBE letter dt. 22.10.2007 strictly. Therefore they have cancelled the said transfer and instructed the applicant to report back to his original division and further the applicant has been retained at same place. Subsequently the person who has given consent for mutual transfer has submitted his request for cancellation of mutual transfer request on 13.06.2022. Further argued that though the another person Shri. K. Nookeswara Rao has been initially agreed for initial transfer from 8 OA No.310/00576/2022 Salem Division has submitted mutual transfer. However his request neither approved nor recommended by competent authority there by he was not released at any point of time and subsequently he has withdrawn the said request and he has been retained at the same place at Salem Division. Therefore the said guidelines under the clause 3.2 and 3.3 of PB Circular 90/96 are not applicable in the matter of applicant.
11. It is to be noted in the present case though the request of the applicant has been processed by his present Division on 21.08.2020 under the observation that the person who is seeking mutual transfer from the salem division belongs to UR category and the approval has been given by the competent authority in the matter of the applicant on the condition that the said mutual transfer is acceptable by the southern Railway on receipt of approval from South Central Railway and necessary action will be taken for issue of office order. Subsequently the applicant's said request has been approved subject to the terms and conditions mentioned in the letter dated 20.1.2021. Further the applicant came to be relieved on 27.01.2021 by his GTL Division wherein the cognizance of the community f the Shri. K. Nookeswara Roahas been taken and he has been shown under the OBC category. The applicant has been relieved by one side. Accordingly the applicant has been reported at the said Salem Division on 29.01.2021, so far there was no approval to the another person who has requested for mutual transfer to exchange with applicant has not 9 OA No.310/00576/2022 been given any approval or not recommended. Hence he was working at that place only.
12. By order dated 05.02.2021 the respondent no. 2 has after going through the said communication made by the GTL Division has found that though the approval has been given by the Division however there was no acceptance of IRMT and the instructions issued by the Railway Board by their letter dated 22.10.2007 has not been followed in the matter of said transfer. The said transfer request has been effected without the approval of the southern railways.
13. It is to be noted that subsequently the person who has accepted to exchange the said transfer mutually has submitted for withdrawal of request on 13.06.2022 and as per Para 3.2 and 3.3 of P.B. Circular No. 90/96 reads thus:
"3.2 Even after the issue of order of transfer made mutually, sometime one of the two backs out resulting in the transfer becoming one way. This will pose problem subsequently in assignment of seniority of the person who has joined the new unit by the time. Since mutual transfer is processed only on the written request made duly accepted by the Controlling Officials, once the order is issued, under no circumstances, there should be situation of half way implementation. Either should be implemented completely or not implemented at all. The person who has sought mutual transfer must be spared as otherwise it will pose problems for the assignment of seniority to the incoming person. 3.3 In case the outgoing person requests for retention inspite the incoming person having been released from his unit and / or joins, then it may be done only on his written request for retention on assignment of bottom seniority on the date of joining of the incoming person 10 OA No.310/00576/2022 who in any case gets his own seniority or the seniority of the outgoing person whichever is later. However this may result in usurping the promotional quota for want of vacancy against Direct Recruitment quota to retain him in addition but being inevitable it may have to be adjusted by the subsequent vacancy arising. It is therefore preferable not to entertain such request and once the order is issued it is to be implemented completely."
14. It is to be noted that to give the effect to the said guidelines in the present matter it has not been implemented as directed in the guidelines. One person who has requested has been relieved however another person has not been relieved subsequently he has withdrawn his request.
15. It is to be noted that the applicant who has challenged the impugned order dated 05.02.2021 filed the present OA on 06.07.2022. It is to be noted that the Registry has not raised any objection on limitation while giving number. However it is seen that the applicant has not approached this Tribunal and filed OA within the prescribed time limit under the Administrative Tribunal Act.
16. It is also to be noted that the person who has considered for said mutual transfer has requested for cancellation of said mutual transfer on 13.06.22 much prior to filing of the OA.
17. It is to be noted that the circular issued by the Railways has to be followed in accordance with the rules. Accordingly if the same has not been followed by the Railways the authorities are having power to act and rectify the actions. In the matter of the applicant nodoubt his case has 11 OA No.310/00576/2022 been processed and recommended. However, on the other hand the person who is willing to come on mutual transfer his request neither processed nor approved. When there is mutual request, simultaneously both the division has to process the file for approval and have to be accept the said request. However in the present case the same has not been done. Moreover the applicant has not challenged the said order well within the period of limitation and subsequently the person who is willing to come on mutual transfer he has also withdrawn his request. Neither the order nor the circulars relied by the applicant is helpful / applicable in the present matter.
18. In view of the same no interference is required. Accordingly, OA is dismissed. No order as to costs.
(Lata Baswaraj Patne) Member (J) 16.08.2023 AS