Gujarat High Court
Union Of India vs Pushp Kumar S/O Parshuram Kanojiya on 17 June, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/3844/2022 JUDGMENT DATED: 17/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3844 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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UNION OF INDIA & 2 other(s)
Versus
PUSHP KUMAR S/O PARSHURAM KANOJIYA & 2 other(s)
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Appearance:
MS ARCHANA U AMIN(2462) for the Petitioner(s) No. 1,2,3
DELETED for the Respondent(s) No. 3
MR KK SHAH(767) for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 17/06/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. The present petition is filed under Articles 226 and 227 of Page 1 of 16 Downloaded on : Sat Dec 24 19:01:15 IST 2022 C/SCA/3844/2022 JUDGMENT DATED: 17/06/2022 the Constitution of India seeking the following prayers.
(a) a writ of certiorari or any other appropriate writ, order or direction may kindly be granted quashing and setting aside the impugned order dated 24/1/2022 passed in O.A. 457/2021 as well as order dated 4/2/2022 passed in R.A. No.4/2022.
(b) pending admission and final hearing of this petition, kindly stay the operation and implementation and execution of the impugned orders dated 24/1/2022 passed in O.A. 457/2021 as well as dated 4/2/2022 in R.A. 4/2022.
(c) grant such other and further relief as may deem fit and proper in the interest of justice.
2. The brief facts giving rise to the present case are as under:
2.1 That respondents are working with the petitioners as Station Superintendent and Station Master respectively. The respondents no.1 and 2 have applied for Inter Railway Transfer to Varanasi Division North East Railways in the year 2012. Prior to 2018, the priority list/register of inter-railway / inter-division transfer was being maintained by the Head Quarter Office at Mumbai. The Head Quarter Office at Gorakhpur of respondent no.3 has accepted the applications of 14 employees seeking inter-railway / inter-division transfer vide letter dated 27.05.2014 with a condition that the division of the Divisional Railway Manager (DRM) will be final based on the available vacancies of Page 2 of 16 Downloaded on : Sat Dec 24 19:01:15 IST 2022 C/SCA/3844/2022 JUDGMENT DATED: 17/06/2022 Station Master. Upon request of inter-railway transfer, the transferee employee is placed at the bottom priority of his post at the transferred railway / division.
2.2 That from 2018, the priority list / register of inter-railway / inter-division transfer has been maintained at the respective Divisional level and the procedure, adopted at Division level before passing of the order of relieving any employee on inter-
railway transfer, is that the inter-railway transfer application is put up to competent authority. That after getting approval of applications, the name of the concerned employee is registered in the priority register with full details like division, zone etc. and after obtaining DAR, Vigilance and other clearance for relieving the employee as per priority register, the applications are again put up to the competent authority. Considering the existing vacant posts, the departmental branch officer recommended the name of concerned employee for relieving on inter-railway transfer as per priority of zone as well as division and such recommendation is forwarded to the DRM through Senior DPO for approval and after approval of DRM, appropriate relieving order is passed.
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C/SCA/3844/2022 JUDGMENT DATED: 17/06/2022 2.3 That in priority list / register of inter-railway transfer, respondent no.1 was at sr.no.116 and respondent no.2 was at sr.no.119. The NOC for inter-railway transfer of respondents no.1 and 2 was received in the year 2018 from respondent no.3 and willingness of respondents no.1 and 2 were sought for and both have shown their willingness for inter-railway transfer vide letters dated 20.06.2018. The Railway Recruitment Board provided a panel of 150 candidates for serving in the traffic department in the year 2018 and 43 employees working at Ahmedabad Division, who were ahead of respondents no.1 and 2 in the priority list / register were relieved from Ahmedabad Division in December 2018 for joining at division / railway as per extant rules prevailing at that point of time. The respondents no.1 and 2 have opted for inter-railway transfer at Varanasi Division of North East Railway and they appeared at sr.no.4 and 5 of the priority list and one of the employee who appeared at sr.no.1 of the priority list / register opted for Varanasi Division, was not relieved to join at Varanasi along with 42 employees in December 2018 and, therefore, respondents no.1 and 2 were not relieved at that time as two employees ahead of them in Page 4 of 16 Downloaded on : Sat Dec 24 19:01:15 IST 2022 C/SCA/3844/2022 JUDGMENT DATED: 17/06/2022 seniority / register list of inter-railway transfer for Varanasi had not received NOC from the recipient railways. 2.4 It came to the notice of the petitioners that the employee at sr.no.2 in priority list was removed from service but his name was not struck off from the list. It was also noticed that the person, who appeared at sr.no.3 in the said list had opted for two divisions i.e. Varanasi and Allahabad and for whom NOC from Allahabad Division was received, but no NOC for Varanasi Division was received and, therefore, the said person at sr.no.3 had not carried out his transfer to Allahabad Division and his name was removed from the said list for not honouring inter- railway order at Allahabad. The respondents no.1 and 2 made representation dated 08.05.2019 requesting to transfer them immediately, however, as there was no sufficient staff strength in the category of Station Master, the said representation was not considered and they made another representations on 02.01.2020 and 20.03.2020. That to process the representations for inter-railway transfer, a proposal was forwarded departmentally to fill upon the vacant posts of Station Masters through promotion of the employees of lower cadre. But as there Page 5 of 16 Downloaded on : Sat Dec 24 19:01:15 IST 2022 C/SCA/3844/2022 JUDGMENT DATED: 17/06/2022 was huge vacancy in the posts of lower cadre of traffic department filling up posts of Station Masters by selection for promotion from lower cadre was not possible and feasible and, therefore, the competent authority has deferred the division of filing up the posts of Station Masters through promotion vide noting dated 02.09.2020.
2.5 The Railway Board issued R.B.E. No.85/2020 deciding that NOC issued by receiving railway should be valid for a period of six months and if transfer of employees concerned are not effected within this period the NOC in such cases should be mandatorily revalidated and the employees should be relieved on transfer only after re-confirming the validity of the NOC. In view of R.B.E. No.85/2020, a fresh NOC was required from Varanasi (NER) Division in case of inter-railway transfer. The respondents made another representation dated 20.01.2021 requesting for inter-railway transfer and raising several issues and, therefore, the necessary steps were taken for appropriate order of the competent authority who vide Office Note dated 09.04.2021 informed to obtain fresh NOC from Varanasi Division regarding inter zonal transfer of the respondents no.1 and 2. Page 6 of 16 Downloaded on : Sat Dec 24 19:01:15 IST 2022
C/SCA/3844/2022 JUDGMENT DATED: 17/06/2022 That pursuant to the said Office Note, a fresh NOC was sought for vide letter dated 12.04.2021 from respondent no.3 and respondent no.3 granted the NOC vide letter dated 02.08.2021 and as per R.B.E. No.85/2020, the NOC was valid for a period of six months i.e. till 01.02.2022.
2.6 The said representation dated 20.01.2021 was not entertained and respondents no.1 and 2 were informed vide letter dated 13.10.2021 that as on date in Station Master category, there is 73 vacancies which is leading to overtime at some stations/selections and as and when staff strength in Station Master is improved, the case of respondents no.1 and 2 can be reviewed and action will be taken accordingly based on the condition prevailing at that time. The respondent approached the Tribunal by filing Original Application No.457 of 2021 with a prayer to admit their petition and for a direction to the petitioners to issue transfer and relieving order forthwith. The respondent also prayed for interim relief for a direction to the petitioner to complete transfer formality and produce the same before the Tribunal. The Tribunal after hearing both the sides, the Tribunal allowed the original application on without Page 7 of 16 Downloaded on : Sat Dec 24 19:01:15 IST 2022 C/SCA/3844/2022 JUDGMENT DATED: 17/06/2022 considering the affidavit and misinterpreting R.B.E. No.170/2005 and R.B.E. No.203/2019 allowed the original application on 24.01.2022 directing the petitioners to take steps to relieve respondents no.1 and 2 within the validity of NOC till 01.02.2022 directing the petitioners to follow their own rules and provisions and also given direction to relieve the respondents pursuant to NOC issued vide letter dated 02.08.2021, which was valid till 01.02.2022 with a further direction to take steps to relieve the respondent. Therefore, the respondents appeared before the Tribunal by filing Original Application No.457/2021 with a prayer to admit the petition and for a direction to the petitioners to relieve the respondents for Varanasi Division with all consequential benefits including the seniority from the date the others were relieved as per the order dated 10.12.2018. The respondents also prayed for interim relief for a direction to the petitioners to relieve the respondents to Varanasi Division since NOC was expiring on 1st February with or without conditions. The Tribunal, after hearing both the sides, allowed the original application on 24.01.2022 directing the petitioners to follow their own rules and provisions and to relieve the respondents pursuant to NOC issued vide letter dated 02.08.2021, which was Page 8 of 16 Downloaded on : Sat Dec 24 19:01:15 IST 2022 C/SCA/3844/2022 JUDGMENT DATED: 17/06/2022 valid till 01.02.2022 with a further direction to take steps to relieve the respondents.
3. Being aggrieved by the said decision, the petitioners preferred Review Application No.4 of 2022 before the Tribunal, wherein the Tribunal vide order dated 04.02.2022 dismissed the review application with a direction that the applicants have failed to point out any error much less an error apparent on the face of record justifying the exercise of power under sub-clause (f) of sub-section (3) of Section 22 of the Administrative Tribunals Act, 1985. Being aggrieved by the said order of the Tribunal as well as the order passed in review application, the present petition is filed.
4. Heard Ms.Archna Amin, learned advocate for the petitioners and Mr.K. K. Shah, learned advocate for the respondents.
5. Ms. Archna Amin, learned advocate for the petitioners submitted that the impugned orders are arbitrary, unjust, improper, contrary to the facts and circumstances and and also Page 9 of 16 Downloaded on : Sat Dec 24 19:01:15 IST 2022 C/SCA/3844/2022 JUDGMENT DATED: 17/06/2022 contrary to the administrative exigency and instructions of the Head Quarter Office as well as Railway Board. She submitted that the respondents are not relieved from Ahmadabad Division as there is shortage of staff in the category of station master in department. She submitted that NOC was called for from the recipient railway with clear observation that after obtaining NOC, final relieving will be considered depending upon the staff strength at that time. She submitted that no one can claim immediate transfer after NOC from the recipient railway is received and NOC is an administrative procedural requirement which is always subject to relieving of staff as per staff strength. She submitted that the Ahmadabad Division has already initiated the steps in the year 2019 to fill up the vacancies of station masters by direct recruitment or promotion as per procedure of filling up direct recruitment is stalled due to the pandemic and filling up vacancies by promotion from the employees by LDCE is differed for the time being considering the less staff strength that is much before the NOC for inter zonal railway transfer for the respondent was called for. She further submitted that the Tribunal ought to have allowed the review application as there is an error apparent in the order dated 24.01.2022 in interpreting Page 10 of 16 Downloaded on : Sat Dec 24 19:01:15 IST 2022 C/SCA/3844/2022 JUDGMENT DATED: 17/06/2022 R.B.E. 170/2005 and R.B.E. No.203/2019. She further submitted that while forwarding applications to recipient railway for NOC that relieving will depend on the vacancy position. She therefore, requested that impugned orders dated 24.01.2022 and 04.02.2022 may be quashed and set aside.
6. Per contra, Mr.K. K. Shah, learned advocate for the respondents submitted that the present petition is not maintainable and the same deserves to the dismissed. He therefore, submitted that if the present respondents are not relieved now, they have to again approach the competent authority from pillar to post looking for NOC for their transfer and relieving order. He submitted that the Tribunal has not committed any error in facts and law by passing the impugned orders and the same are just and proper and as per the evidence on record. He, therefore, submitted that the present petition may be dismissed.
7. From the aforesaid factual background and the documents produced on record, it is evident that the respondents employees were working as station superintendent and station master and Page 11 of 16 Downloaded on : Sat Dec 24 19:01:15 IST 2022 C/SCA/3844/2022 JUDGMENT DATED: 17/06/2022 in the year 2012 they had applied for their own request inter railway transfer from Ahmedabad Division to Varanasi Division. The petitioner - department considered the said application as per its prevailing rules and regulations and approved the request for transfer made by the said respondents and subsequently, issued the NOC certificate in favour of the respondents at the end of the year 2018. The said NOC was valid for a period of six months form the date of its issuance. It appears that the petitioner - department had not relieved the respondents during the validity of the said NOC for the reasons best known to it. Subsequently, the respondents again requested for transfer vide their application dated 02.01.2020 and 20.03.2020. The said request was also granted and the petitioner department issued fresh NOC in favour of respondents vide NOC dated 02.08.2021. The said NOC was valid upto 01.02.2022. In spite of issuance of subsequent NOC vide letter dated 02.08.2021, the respondents were not relieved by the petitioners.
8. The respondents, therefore, preferred Original Application before the Tribunal, seeking appropriate directions against petitioners for compliance of NOC dated 02.08.2021. The said Page 12 of 16 Downloaded on : Sat Dec 24 19:01:15 IST 2022 C/SCA/3844/2022 JUDGMENT DATED: 17/06/2022 application was allowed by the Tribunal vide order dated 24.01.2022.
9. Having gone through the impugned order dated 04.02.2022 passed by the Tribunal, we find that the main premise on which Original Application allowed was that the petitioner - department had issued NOC in favour of the respondents in accordance with its prevailing rules and regulations. It is not the case of the petitioners that NOC issued by them was erroneous or not in accordance with the prevailing rules and regulation. Thus, it is a matter of fact that the petitioner department had issued NOC in favour of the respondents at the end of the year 2018. Considering the above aspects and having issued NOC in favour of respondents, we are of the view that it is now not open for the petitioner department to sway away from their responsibility of complying their own NOC, which was issued in accordance with their own rules and regulations. Thus, the Tribunal was completely justified in allowing the Original Application preferred by the respondents.
10. It is also noticeable that the petitioner department filed the Page 13 of 16 Downloaded on : Sat Dec 24 19:01:15 IST 2022 C/SCA/3844/2022 JUDGMENT DATED: 17/06/2022 review application against the impugned order dated 24.02.2022 passed by the Tribunal, however, the Tribunal has rightly rejected the review application in view of the fact that if the petitioner- department is aggrieved by the earlier order dated 01.02.2022 then, it ought to have challenged the said order before the higher forum and the review application was not the proper remedy.
11. In view of the above facts and circumstances of the case, we are of the considered opinion that the Tribunal has not committed any illegality or infirmity in passing the impugned order. We are in complete agreement with the reasoning given by the Tribunal in the impugned order and hence, we find no reason to entertain this petition. It is expected from the petitioner - department, being a nodal employer and which is public sector enterprise in the country, it would abide by its own rules and regulations and would do the needful to redress the grievance of the respondents considering the fact that it had issued the NOC in favour of the respondents on two different occasions. We hereby direct the petitioner - department to transfer the respondents to Varanasi Division within a period of Page 14 of 16 Downloaded on : Sat Dec 24 19:01:15 IST 2022 C/SCA/3844/2022 JUDGMENT DATED: 17/06/2022 eight weeks from the date of receipt of this order. The Coordinate Bench of this Court has decided the similar issue vide order dated 21.04.2022 passed in Special Civil Application No.6066 of 2022.
12. Since, the respondent employee has been made to run from pillar to post from the year 2012, we impose the cost upon the petitioner department, which is quantified at Rs.10,000/- (Rupees Ten Thousand Only) to be deposited with the Registry within a period of one month from today, which was in turn be paid to the respondents by way of an account payee cheque after necessary verification.
13. For the forgoing reasons, present petition is dismissed. Rule is discharged.
(SONIA GOKANI, J) (HEMANT M. PRACHCHHAK,J) FURTHER ORDER Learned advocate for the petitioners requests the Court to grant six months time to comply with the direction. However, on Page 15 of 16 Downloaded on : Sat Dec 24 19:01:15 IST 2022 C/SCA/3844/2022 JUDGMENT DATED: 17/06/2022 earlier two occasions, approval was granted by the higher authority for transfer the respondents. Therefore, the request cannot be accepted.
(SONIA GOKANI, J) (HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 16 of 16 Downloaded on : Sat Dec 24 19:01:15 IST 2022