Central Administrative Tribunal - Patna
Ashish Kr Arya vs Railway on 5 July, 2019
1
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA/050/00109/2019
Reserved on :- 03.07.2019
Date of Order : 05.07.2019
COR AM
HON'BLE MR. JAYESH V. BHAIRAVIA, JUDICIAL MEMBER
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
Ashish Kumar Arya, son of Sri Kamdeo Prasad Barnwal, Senior Divisional
Electrical Engineer (G), East Central Railway, Danapur, P.O.-Khagaul, P.S.-
Danapur, Town & District-Patna, Pin Code-801105 (Bihar).
.......... Applicant.
- By Advocate : Shri M.P.Dixit.
-Versus-
1. The Union of India through Chairman, Railway Board, Ministry of Railway,
Government of India, Rail Bhawan, New Delhi-110001.
2. The Secretary, Railway Board, Ministry of Railway, Government of India,
Rail Bhawan, New Delhi-110001.
3. The Member (Traction), Railway Board, Ministry of Railway, Government
of India, Rail Bhawan, New Delhi-110001.
4. The Director (Establishment), Railway Board, Ministry of Railway,
Government of India, Rail Bhawan, New Delhi-110001.
5. The General Manager, East Central Railway, Hajipur, P.O.-Digghi Kalan,
P.S.-Hajipur (Sadar), District-Vaishali, Pin Code-844101 (Bihar).
6. The General Manager (Personnel), East Central Railway, Hajipur, P.O.-
Digghi Kalan, P.S.-Hajipur (Sadar), District-Vaishali, Pin Code-844101
(Bihar).
7. The Principal Chief Electrical Engineer, East Central Railway, Hajipur, P.O.-
Digghi Kalan, P.S.-Hajipur (Sadar), District-Vaishali, Pin Code-844101
(Bihar).
......... Respondents.
By Advocate :- By Advocate :- Shri B.K.Choudhary with Shri Kumar Sachin.
2
ORDER
Per Mr. J.V. Bhairavia, J.M.:- In the instant OA, the applicant has prayed for the following reliefs :-
"8.1 That your Lordships may graciously be pleased to quash and set aside the impugned order dated 26.10.2018 issued by the respondent no. 4 as contained in Annexure A/1 together with the spare order if any qua the applicant.
8.2 That the respondents be further commanded/directed to allow the applicant to continue as Sr. Divisional Electrical Engineer (G), East Central Railway, Danapur without any disturbance and interference of the respondents.
8.3 That the respondents be further directed to grant all consequential benefit in favour of the applicant.
8.4 Any other relief or reliefs including the cost of the proceeding may be allowed in favour of the applicant."
2. Aggrieved by the transfer order dated 26.10.2018, the applicant has preferred this OA. Vide the impugned order, the applicant has been ordered to be transferred from E.C. Railway to N.F. Railway while working on the post of Sr. Electrical Engineer (G), E.C. Railway, Danapur. It is submitted by the applicant that the applicant is working in selection grade and within sixteen months of joining he was posted at Danapur.
3. It is submitted that the transfer order passed by the respondents is bad in law and contrary to the terms and conditions stipulated in comprehensive transfer policy for Railway Officers dated 31.08.2015. As per the said policy, ordinarily, a Group 'A' Officer will not be transferred out of his allocated Zone/Unit till selection grade. Since the applicant is under selection grade, respondents ought not to have issued the impugned order.
3
4. It is further contended that the applicant has been posted against the post of Sr. Divisional Electrical Engineer (G) under Selection Grade and as per the transfer policy, the applicant cannot be transferred from his allocated Zone unless and until he get promotion in Senior Administrative Grade which is above selection grade.
5. It is further submitted that from bare perusal of the impugned order dated 26.10.2018, it clearly transpires that one officer namely Shri Om Shankar Prasad has been transferred from E.C. Railway, Mugalsarai to RDSO Lucknow vide order dated 16.07.2018 on administrative ground but he has again been brought back to E.C. Railway within three months on his own request which is contrary to para 1 (iii) of aforesaid comprehensive transfer policy for Railway officers and now the said Shri Om Shankar Prasad has been posted at Danapur in place of the applicant. Therefore, the respondents have adopted pick and choose policy for the purpose of transfer of the Railway officer and not followed the comprehensive transfer policy.
6. It is further contended that even in the transferred Zone i.e. N.F. Railway, there is no vacancy in the said grade/cadre and the officers are surplus. Therefore, a person cannot be posted without a post. It is further submitted that the applicant has come to know that the General Manager, E.C. Railway, Hajipur has also requested the Railway Board vide their letter dated 31.10.2018 for cancellation of transfer of the applicant showing inconvenience in the working of E.C. Railway. In fact, the transfer 4 order was passed without any reason and in contravention of transfer policy.
7. It is further submitted that the applicant has not completed minimum ten years service at Danapur and only within sixteen months, the respondents have issued transfer order from E.C. Railway to N.F. Railway i.e. one Zone to another. Therefore, the impugned is contrary to the transfer policy published by the respondents Railway Board.
8. The applicant has submitted a detailed representation on 30.1.2019 through e-mail against the transfer order and on receipt of it, the respondents have issued the spare order on the said date (Annexure A/4). Hence, this OA.
9. Learned counsel for the applicant vehemently submitted that in contravention of the policy for transfer, the impugned order of transfer has been passed, which is bad in law. The respondents have issued the impugned order with bad intention and deprived the applicant from the benefit of comprehensive transfer policy. Therefore, the impugned order is required to be quashed and set aside being bias in nature and contrary to the transfer policy.
10. On the other hand, the respondents have filed their written statement on 07.03.2019 and denied the contention of the applicant. It is submitted that applicant has been transferred from E.C. Railway to N.F. Railway on Vigilance ground. It is submitted that since the applicant has already in selection grade, he is liable to be transferred under transfer policy. It is further submitted that under the comprehensive transfer policy 5 more particularly as per para (xiii), in administrative exigencies, transfer orders may be issued as and when required. Accordingly, the applicant has been transferred from E.C. Railway to N.F. Railway i.e. RDSO, Lucknow.
11. It is further submitted that since the Vigilance case is pending against the applicant, it was not administratively expedient to continue the applicant in E.C. Railway. The respondents have denied the claim of the applicant to grant equal treatment to the applicant as was given to one Sri Om Shankar Prasad. In this regard, it is further submitted that the same is not relevant for transfer of the applicant. It is further submitted that there are two vacancies in Electrical Engineering Department as on 01.02.2019 in N.F.Railway (Annexure R/1). Therefore, it is denied that there is no post available at N.F. Railway. Continuance of the applicant in E.C. Railway beyond 31.01.2019 is untenable. In fact, after 30.01.2019, the applicant reported sick and the post vacated by him has also been filled-up. The spare order of the applicant was issued on 30.01.2019 (Annexure R/2).
12. The respondents have further submitted that the applicant is not entitled for any relief as sought in this OA.
13. The applicant has filed rejoinder on 16.04.2019 and additionally contended that the reply of the respondents is misleading, ill motivated. The impugned order has been issued with malafide intention. It is submitted that respondents had not stated correct fact in their reply as also the said reply of the respondent is contrary to the service record. It is further contended in the rejoinder that vide letter dated 31.10.2018, respondent no. 5, the General Manager, E.C. Railway, Hajipur addressed a 6 letter to Railway Board wherein it is stated that the applicant has been working for the last sixteen months as Senior DEE/G/ Danapur Division and during his short tenure, applicant has carried out tremendous work and achieved major mile stones, the applicant has also done exemplary work in the field of corruption eradication by eliminating contractor's official nexus with criminal connection which was prevalent in Danapur Division etc. and thereby respondent no. 5 has requested the Railway Board to allow the applicant to work at Danapur Division, E.C. Railway by cancelling his transfer from E.C. Railway to N.F. Railway (Annexure P/1).
14. It is further submitted that the applicant has sought information with regard to so called pending Vigilance case under the provision of RTI Act. However, the respondents have not supplied any information about the Vigilance case or complain. It is submitted that as such there is no Vigilance case pending against the applicant. Therefore, the transfer order which is said to be issued due to Vigilance case is totally incorrect and the same has been passed with malafide intention.
15. It is further submitted that information sought by the applicant under RTI Act with regard to sanction strength as also vacancy position in N.F. Railway has been replied by the respondents vide letter dated 30.03.2019. According to the information supplied to the applicant, there are 12 sanctioned strength of SG/JAG grade as on 01.03.2019. There are 13 officers on roll and, as such, one person has been shown surplus. The said information established the fact that the respondents have submitted their reply contrary to the actual position of the availability of the post at 7 transferred place. In fact, there is no post available at RDSO Lucknow. Since there is no post available at N.F. Railway, the respondents ought not to have passed the transfer order (Annexure P/3).
16. It is further contended by the applicant that the applicant was sick and without declaring him fit, the respondents ought not to have discharge the applicant from sick list. It is further contended that the officer who has been granted selection grade vide various order dated 28.04.2016, 28.09.2018 and 19.02.2019, the said officers are posted in the same Railway i.e. E.C. Railway even on their promotion in selection grade (Annexure P/4 series). Therefore, the applicant has contended that the impugned transfer order is discriminatory in nature and hence, the same may be quashed and set aside.
17. As against rejoinder, the respondents have filed their supplementary reply on 03.06.2019 and by denying the submission of the applicant, it is additionally submitted that, it is a general practice that since grant of NFSG in the higher scale without any assumption of higher duties and responsibilities, most of the officers on grant of NFGS are allowed to continue in the said post. That does not mean that such officer cannot be transferred out of their present place of posting.
18. It is further submitted by the respondents that the applicant is a Group 'A' Officer of Indian Railway Service who has an all India transfer liability and is liable to post anywhere within the jurisdiction of Indian Railway in administrative exigencies. It is not open for the applicant to claim his posting at one particular place. It is further submitted that the 8 cadre controlling authority keeping in view the recommendation of the Vigilance department of the Ministry had decided that the applicant should be transferred out of E.C. Railway in view of the complaints received against him by the Vigilance department and, as such, his transfer out of E.C. Railway is in public interest.
19. It is further contended that on the date of issuance of transfer order, the vacancy position i.e. as on 26.10.2018, there were two vacancies available in N.F. Railway, therefore, it is not correct on the part of the applicant that there was surplus officer in N.F. Railway. The respondents have prayed for to vacate the interim order passed on 04.02.2019 so that the applicant can join in his transferred place as his continued presence in E.C. Railway is not in administrative interest.
20. The learned counsel for the respondents placed reliance on the order passed by the Principal Bench of the Tribunal in the case of Sri Pravin Kumar and ors. vs. U.O. I. & ors, decided on 30.12.2010 and the order passed by Hon'ble Apex Court in the case of State of Madhya Pradesh vs. S.S. Kaurav and ors. reported in 1995 SCC (3) 270 and submitted that applicant has no legitimate right to claim to work at particular place.
21. Learned counsel for the applicant has also placed reliance of the order passed by the Principal Bench of the Tribunal in the case of T.L. Gupta vs. U.O.I. & ors. in OA 191/2003 decided on 23.06.2003 and it is submitted that, for any misconduct, disciplinary proceeding are to be initiated and the transfer is not a only remedy. He has relied upon the letter dated 20.06.2019 of General Manager, E.C. Railway in which, the GM has 9 requested the Railway Board that there is a shortage of JAG/SG RSEE officers in E.C. Railway, therefore, he has requested the Board to consider cancellation of transfer order of the applicant.
22. Heard the parties. It is well settled principle of law that Court/Tribunal should not ordinarily be interfere with the transfer order unless such transfer raise doubt of bias and malafide and/or has been made in violation of statutory mandatory rules. In this context, the decision of the Hon'ble Supreme Court in Silpi Bose & ors. vs. State of Bihar & ors., AIR 1991 SC 532 lays down as follows:
"4. In our opinion, the Courts should not interfere with a transfer order which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory Rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with the day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public to public interest. The High court overlooked these aspects in interfering with the transfer orders."
23. In the instant case, the applicant while working as IRSSE/ E.C. Railway has been ordered to be transferred to N.F. Railway vide impugned order dated 26.10.2018. To justify the said transfer, the respondents in their reply stated that the same has been issued in administrative exigencies as they have received complain by the Vigilance department 10 against the applicant and hence, in the public interest, the said transfer order has been issued.
24. On the other hand, learned counsel for the applicant vehemently submitted that inspite of demanding the details of Vigilance case, the said details has not been provided to the applicant. According to the applicant, as such, there is no Vigilance case or complain pending against the applicant. The respondent no. 5 i.e. General Manager, E.C. Railway, Hajipur has requested the Railway Board to review/cancel the transfer order of the applicant since the applicant has joined his duty only before sixteen months at Danapur Division, E.C. Railway and has also achieved mile stone in discharging his duty within a short span. The said respondents i.e. G.M., E.C. Railway has not stated anything about any complain or Vigilance case pending against the applicant, on the contrary, the respondent no. 5 has requested the Railway Board to retain the service of the applicant at E.C. Railway. It is also contended by the applicant that applicant is in selection grade and as per comprehensive transfer policy for Railway officers dated 31.08.2015, ordinarily a Group 'A' officer ought not to be transferred out of his allocated Zone/unit.
25. We have perused the material on record as also the judgments relied upon by the applicant. We are of the considered view that the respondent Railway Board has find it appropriate to transfer the applicant from E.C. Railway to N.F. Railway. The applicant is a Group 'A' Officer of Indian Railway service, liable to be posted any where under the jurisdiction of Indian Railway in administrative exigencies. As such, applicant has no 11 vested right to claim his posting at any particular place. We do not found any infirmity in the impugned order since it is passed by the competent authority in public interest. The contention of the applicant that the impugned order is passed contrary to the transfer policy, there is no Vigilance case against the applicant and the GM, E.C. Railway, respondent no. 5 has recommended the retention of the applicant at E.C. Railway, Danapur, the said aspect, in our considered view, can be looked into by the concerned higher authority i.e. Director (E), Railway Board and it is within the administrative power and jurisdiction of the Railway Board to consider the recommendation of the GM, E.C. Railway.
26. In view of the above discussion and the law laid down by Hon'ble Apex Court in the case of Silpi Bose (supra), we declined to interfere with the impugned order. However, it is open for the respondents Railway Board to consider the representation of the applicant as well as the request of GM, E.C. Railway, Danapur. The OA is accordingly dismissed and the interim order passed earlier is hereby vacated. No costs.
[ Dinesh Sharma ] [ Jayesh V. Bhairavia ] Administrative Member Judicial Member Pkl/