Central Administrative Tribunal - Delhi
(By Advocate: Shrii B.S.Mainee) vs Union Of India on 18 March, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.960 of 2009
New Delhi this the 18th day of March, 2010
Honble Dr. Dharam Paul Sharma, Member (J)
Shri Krishan Lal,
S/o Slhri Jiley Singh,
Working as Shunter,
Under Divisional Railway Manager,
Northern Railway,
State Entry Road,
New Delhi
(By Advocate: Shrii B.S.Mainee)
... Applicant
Versus
Union of India,
Through
The General Manager,
Northern Railway,
Baroda House,
New Delhi
The Divisional Railway Manager,
Norhern Railway,
State Entry Road
New Delhi
.. Respondents
(By Advocate: Mr. Chand Kiran)
ORDER
This application is directed against Order No.758-E/380/Pt. IX/P-7 dated 22.01.2009 passed by the Divisional Personnel Officer, Northern Railway, New Delhi, a copy of which is Annexure A-1. By this order, the applicant upon his promotion as Loco Pilot, has been posted to Shakur Basti.
2. The applicant feels aggrieved of this order for the reason, inter alia, that it is in violation of respondents own policy guidelines on transfer. In response thereto, the respondents stand is that it is merely a case of adjustment on promotion and not a case of transfer as has been made out an issue of transfer by the applicant. Even the applicant is not entitled for any transfer grant for this adjustment/posting in Shakur Basti.
3. The applicants case is that he belongs to SC community. He initially joined as Tube Cleaner in 1976 and in due course of time he has been promoted to the post of Shunter. In January,2009, the respondents initiated selection for the post of Driver and after holding written examination, prepared a panel of 323 candidates and the name of the applicant was at Serial No.1 in that panel. The applicant has thus been selected against unreserved vacancy. The respondents issued a letter of posting on the basis of panel dated 15.1.2009 whereby he has been transferred from Delhi to Shakur Basti.
4. The grievance of the applicant has been that the respondents have retained S/Shri Balbir Singh and Shyam Sunder, who are junior to the applicant and much below in the seniority in the said panel at Serial No.135 and 238 respectively. Feeling aggrieved, the applicant filed the present application alleging that the impugned order is in violation of Railway Boards Instructions to the effect, inter alia, that the SC/ST employees should be very rarely and for very good reasons transferred and in case of necessity of transfer the junior most employee should be transferred. The applicant submitted a representation on 2.2.2009 requesting the respondents to retain him in Delhi being a senior employee as compared to those juniors who had been retained in Delhi. There has not been any response to the representation from the respondents. Therefore, the applicant filed OA No.491/2009 which has since been disposed of by this Tribunals order dated 24.02.2009 with the direction to the respondents to consider the case of the applicant and pass an appropriate order on his representation. In compliance with these directions, the respondents passed the order dated 22.1.2009, a copy of which is Annexure A-1 whereby the applicant has been informed that his posting as Driver has been done in Shakur Basti Lobby in order of seniority. It is further stated that Shakur Basti is only 10 Kms away from Delhi and the posting has been so made as there was more need of drivers at Shakur Basti for proper operation of good drivers. Nevertheless, the applicant has been given liberty to get himself registered for transfer to Delhi Lobby after promotion.
5. Shri B.S.Mainee, the learned counsel appearing on behalf of the applicant placed strong reliance on Railway Boards Circular as referred to in Para 4.13 of his application to the following effect:-
(i) the Railway employees belonging to SC/ST category should be transferred very rarely and for very strong reasons only; and
(ii) the Railway Board has also issued instructions that while transferring the staff from one station to the other, the seniority of the staff should invariably be kept in view and junior staff should be transferred out first before transferring the senior staff.
6. The learned counsel for the applicant has referred to the case of K.Ramachandran Vs. The Director, Doordarshan, Kerala, Trivandrum and 3 others (All India SLJ 1991 (1) CAT 398) of Ernakulam Bench of this Tribunal in support of his contention that the applicant, being a Scheduled Caste candidate could not have been transferred.
7. In their reply, the respondents have strongly urged that the instant case is the case of a posting on promotion and not the case of transfer. The applicant has been working at Delhi since 1988. Presently, he has been working as Sr. Shunter in the grade of Rs.5000-8000, which is the same grade as for the post of Loco Pilot Goods (Driver Goods), in which he has been selected and posted at Shakur Basti. Shakur Basti where the applicant has been posted at present is only 10 Kms away from Delhi Lobby and cannot be treated as transfer. The applicant is not even eligible for transfer grant for this adjustment and as such the policy guidelines on transfer is not applicable to this case. Besides, pursuant to this Tribunals order dated 24.02.2009, the respondents have already passed the reasoned and speaking order. The applicant has not been able to point out any legal infirmity in that. It has been very strongly urged by the learned counsel for the respondents that the contention of the applicant that he has been transferred from Delhi Lobby to Shakur Basti is not sustainable and cannot be termed as a transfer.
8. In so far as the alleged discrimination vis-`-vis Juniors is concerned, it has been stated in the reply that the applicant has been posted in Delhi since 1988 and the other two persons with whom he is claiming parity viz. S/Shri Balbir Singh and Shyam Sunder they joined the running cadre in 1996 and 1998 respectively. So far as their stay in Delhi lobby is concerned, they have lesser stay in Delhi Lobby than that of applicant. Besides, it is contended that it is not a case of surplus staff where the juniors have to be moved out first. While in the case of transfer, the persons having longer tenure at a place should be transferred first than the persons having shorter tenure can be subjected to such transfer. It has been further submitted that the case relied upon by the applicants counsel is distinguishable on facts and does not support the applicants case against the impugned posting.
9. The applicants counsel further submitted in reply to the respondents contention that the Railway Boards Circular, relied upon by him, has not been explained nor it has been explained as to how the applicant, being a SC candidate, could have been transferred in the facts and circumstances of the case. Nor the respondents have explained as to why the principle of seniority has been adhered to while making the impugned posting.
10. I have given my careful consideration to the respective submissions made by both the parties. I have also carefully perused the records of the case.
11. At the very out set, the learned counsel raised a preliminary issue whether it is a case of transfer or posting on promotion. Transfer is made in the same post from one place to another. The consideration which applies while giving posting upon promotion may not be the same as in the case of a transfer. That being so, the Railway Boards Circular on transfer, on which reliance has been placed by the applicant, would not be of much help to him. Besides, the applicant has not adduced the original policy guidelines on the subject. The authenticity of the transfer guidelines mentioned in Para 4.13 of the OA has not been established to my satisfaction as invariably, in the matter of transfers, the persons having longer tenure of stay at one place are generally directed to move first than the persons who are having lesser tenure. The respondents have specially stated in their reply that while the applicant has been posted in Delhi Lobby since 1988 and the other two persons with whom he has been claiming parity viz. Balbir Singh and Shyam Sunder have been staying in Delhi Lobby since 1996 and 1998 respectively.
12. In view of the fact that the impugned posting has been made to meet the administrative exigency of service requiring more number of good drivers at Shakur Basti Lobbi than at Delhi Lobby as well as administrative exigency of posting suitable and competent drivers at Shakur Basti, the same is not found faulted with, especially on the ground which has been raised in his application. The Circular, in the instant case relied upon by the applicant, is not of much help as the case being of not transfer but a case of posting on promotion.
13. In view of the aforesaid, I do not find any force in the contentions raised by the applicant and the OA is dismissed accordingly. No order as to costs.
(Dharam Paul Sharma) Member (J) /usha/