Central Administrative Tribunal - Jaipur
Srijan Mishra vs North Western Railway on 24 May, 2024
1
OA No. 560/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
...
ORIGINAL APPLICATION No. 560/2023
Order reserved on :29.04.2024
Date of order: 24.05.2024
CORAM:
HON'BLE MS. RANJANA SHAHI, MEMBER (J)
HON'BLE SHRI LOK RANJAN, MEMBER (A)
Srijan Mishra s/o Dinkar Mishra aged around 29 years
Residing at C/o Ramratan Thakuria Near Maliram
Hospital Railway Station Road, Bassi, Jaipur Rajasthan-
301409 on the post of JE PW JHIR. Group-C
Mob- 8058894553 Email: [email protected]
Subject: Transfer
...Applicant
(By Adv: Shri Prabhansh Sharma)
Versus
1. Union of India through its General Manager, NWR
HQ Office, Jawahar Circle Jagatpura, Jaipur
Rajasthan 302017.
2. Senior DEN, DRM OFFICE NWR HQ Office, Jawahar
Circle Jagatpura, Jaipur, Rajasthan 302017.
3. Sanju Kumar Meena JE/PWAY/ Rajgarh Alwar,
Rajasthan 301408
...Respondents.
(By Adv: Shri Arun Sharma)
2
OA No. 560/2023
ORDER
Per : Hon'ble Shri Lok Ranjan, Member (A)
The Applicant has filed the present Original Application upon being aggrieved by the Order dated 24.04.2023 of the Respondents - whereby his request dated 14.09.2022 for his inter-Railway mutual transfer from North Western Railway (NWR), Jaipur Division to North Central Railway (NCR), Prayagraj Division vice Shri Sanju Kumar Meena had been approved by the competent authority ; in that despite his subsequent request for cancellation of his own request mutual inter- Railway transfer, the same had been rejected by the Divisional Railway Manager (DRM) (Estt.) Jaipur, NWR vide Order dated 12.05.2023.
2. The matrix of facts relevant to the present case had emerged from the pleadings and presentations as follows briefly. The Applicant was selected for the Group-C post of JE Passenger Way (PW)by the RRB Ajmer and allotted to the NWR, Jaipur under the overall charge of the Respondent No.1. After completion of the prescribed training, the Applicant was posted under ADEN, Bandikui, 3 OA No. 560/2023 vide posting Order dated 14.10.2021. Subsequently, as per the applicable Policy dated 11.01.2019 for mutual transfer of non-gazetted staff, the Applicant had on 14.09.2022, applied for his own-request mutual inter- Railway transfer vice one Shri Sanju Kumar Meena (Private Respondent No.3), from North Western Railway (NWR), Jaipur Division to North Central Railway (NCR), Prayagraj Division - citing medical requirements of the Applicant and his family members, who were residing in the State of Uttar Pradesh. Later, the Order of mutual inter-Railway transfer for the Applicant and the Private Respondent No.3 was passed on 24.04.2023.
3. In pursuance, the said Private Respondent No.3 was relieved on 02.06.2023 by the DRM (Estt), Prayagraj, NCR and upon joining in NWR he was eventually posted as JE (PW) Rajgarh under SSE, (PW)-II, Bandikui vide Order dated 13.09.2023 of the DRM (Estt), Jaipur, NWR. On the other hand however, the Applicant had upon receipt the said Order dated 24.04.2023 for acceptance of mutual transfer, made a short representation to the Sr. DEN (CO), DRM Office Jaipur - thereby stating "... I Srijan Mishra, currently working as a JE (PWay) Jhir, had 4 OA No. 560/2023 requested for mutual transfer for NCR on dated 14 Sept 2022, for which office order has been drafted on date 24 April 2023, but due some family issue, I want to stay at my headquarter (Jhir). So, I request to you to please consider my application for cancellation of mutual transfer. ..." That representation was disposed of by the DRM (Estt) NWR, Jaipur vide communication dated 12.05.2023 - stating thereby that as per the Railway Board RBE No.08/2019, Para 4(iv), no backtracking was allowed under any circumstances once mutual exchange was agreed, since mutual transfers are ordered with the consent of both the parties ; hence, the Applicant's mutual request transfer cannot be cancelled as per extant instructions.
4. The Applicant had in his pleadings and the brief presentation by his learned counsel had made several contentions, inter alia - firstly that, the Applicant had already sent a letter dated 12.05.2023 that he was no more willing for mutual transfer due to various reasons ; secondly that, his original request for mutual transfer dated 14.09.2022 was not accepted within the time- frame as indicated in the Para-10 of the applicable Policy 5 OA No. 560/2023 / instructions dated 11.01.2019 for mutual transfer of non-gazetted staff and was thus not valid ; thirdly that, vide the posting order dated 13.09.2023, the Private Respondent No.3 had been posted as JE (PWay) at Rajgarh, which was lower than the post of Senior Section Engineer (PW) that he held in his original zone which was purportedly contrary to the Rules ; fourthly that, pursuant to his joining in NWR, the Private Respondent No.3 was not posted at the position which was held by the Applicant and numerous vacant posts of the Applicant's level were still available in the NWR ; and fifthly that, since the petitioner and the Private Respondent No.3 belonged to different community categories, their mutual transfer would affect the balance with reference to reservations prescribed. At the same time, it was also contended on behalf of the Applicant that his letter dated 12.05.2023 stated the main reason for his being no more willing for mutual transfer - in that he was due to get married and his fiancé was a State Government employee who cannot be transferred outside the State of Rajasthan ; and that his old parents had meanwhile shifted to the place of his present posting. Hence, the Applicant had prayed that the impugned 6 OA No. 560/2023 mutual transfer dated 24.04.2023 be quashed and set aside qua the Applicant ; and he be not transferred from the present post of JE (PW) under SSE PWAY-I, Bandikui.
5. The learned counsel for the Respondents had referred to the various provisions of the applicable Circular RBE No.8/2019 titled "Comprehensive Policy on Mutual Transfer of Non-Gazetted Staff on the Zonal Railways" that was issued vide No.E(NG)I-2018/TR/8 dated 11.01.2019 ; and had incorporated the updated policy instructions in this regard in supersession of all the earlier instructions. These had been noted, with particular attention to the provisions pertaining to the issues at hand through the present O.A., which were further perused carefully. The position as had emerged thereupon follows hereafter.
6. In respect of the first point that although the Applicant had applied for mutual transfer on 14.09.2022, but later vide his letter dated 12.05.2023 conveyed that he was no more willing for mutual transfer due to various reasons - it was pointed out at the outset that the communication of the Applicant dated 12.05.2023 was 7 OA No. 560/2023 made after the request for mutual transfer related was approved duly by the competent authority and the impugned Order dated 24.04.2023 had already been issued. Further, the relevant provisions of Para-4 (iv) of the Policy instructions dated 11.01.2019 were referred to, which were found to read as follows :
"4 (iv) No backtracking once Mutual Exchange Agreed :-
Since mutual transfers are ordered with the consent of both the parties, it should be clear right at the time of forwarding applications for mutual transfer that no request for backtracking from Mutual Exchange agreement will be entertained under any circumstances. {Board's letter No.E(NG)-2006/TR/6 dated 21.04.2006 (R.B.E. No.53/2006) refers}."
It was thereby contended that the Applicant once having made the mutual transfer request as per the applicable Policy / instructions dated 11.01.2019 for mutual transfer of non-gazetted staff was bound by its provisions ; and it was thus clear right from the stage of forwarding of the mutual transfer request / application dated 14.09.2022 in the present case, that no backtracking from the said mutual request would be entertained under any circumstances.
7. Regarding the second point that the Applicant's request for mutual transfer dated 14.09.2022 was not 8 OA No. 560/2023 accepted within the time-frame applicable - the relevant Para-10 of the Policy instructions dated 11.01.2019 was shown to be titled as :"10.Model Timelines to deal with Mutual Transfer cases" and had tabulated each component activity of the mutual transfer process along with the respective time period set out. It was contended by the learned counsel for the Respondents that the provisions of the Para-10 of the said Policy / Instructions that were sought to be relied upon by the Applicants were very clearly stated to be Model Timelines to deal with the mutual transfer cases ; and that while these were sought to be adhered to, but mere variance from the same cannot invalidate the properly issued Orders for mutual transfer - inter alia the impugned Order dated 24.04.2023 in the present case.
8. On the third point that vide the posting order dated 13.09.2023, the Private Respondent No.3 had been posted as JE (PWay) at Rajgarh, which was lower than the post of Senior Section Engineer (PW) that the Private Respondent No.3 had held in his original zone - it was pointed out at the outset that this pretext was being proffered presently, whereas the Applicant had earlier 9 OA No. 560/2023 vide request dated 14.09.2022 clearly sought to be transferred inter-Railway mutually with the same Private Respondent No.3, in the very same situation of their being in different grades. Moreover, the relevant provisions contained in the definition clause itself at Para-2 of the Policy instructions dated 11.01.2019 were referred to, which read as follows :
"2. Definition : Any Railway servant who is a member of Railway services of a Railway/Division/Unit can seek Mutual transfer with the employee of another Railway/Unit/ Division working in the same grade ; or by reverting willingly and unconditionally (if working in higher/different grades) subject to provisions contained in para 226 of IREC Vol.I."
It was thereby contended that the Private Respondent No.3 in the present case, who was working in a grade higher/different than the Applicant, had reverted willingly and unconditionally to the grade of Junior Engineer to avail of the mutual transfer. Hence, the contention of the Applicant that the Private Respondent No.3 was working in a different grade and therefore could not have been transferred mutually with himself was clearly erroneous - as such a mutual transfer was permissible and in accordance with the applicable provisions of the Policy instructions dated 11.01.2019, and not contrary to the said Policy instructions.
10OA No. 560/2023
9. Moreover, pertaining to the point that pursuant to his joining in NWR, the Private Respondent No.3 was not posted at the position which was held by the Applicant, it was shown that the definition clause at Para-2 of the said policy instructions dated 11.01.2019, provided for mutual transfer for any Railway servant who was a member of Railway services of a Railway / Division / Unit with the employee of another Railway / Division / Unit. Thus, it emerged that the mutual transfer was not prescribed to be done on a post-to-post basis - implying thereby that the two employees allowed mutual transfer were not necessarily required to take over in the very same respective posts that were previously held by their counterpart mutual transferees. Thus, in the present case, the mutual transfer of the Applicant and the Private Respondent No.3 that was allowed between the Jaipur Division of the NWR and the Prayagraj Division of the NCR was compliant to the applicable provisions of the Policy instructions dated 11.01.2019.
10. Further, in respect of the point that since the Applicant and the Private Respondent No.3 belonged to 11 OA No. 560/2023 different community categories, their mutual transfer would affect the balance with reference to reservations prescribed - the relevant provisions contained inter alia in the Para-5 and Para-6 of the Policy instructions dated 11.01.2019 were referred to, which read as follows :
"5. Community Restriction :- (i) Hon'ble High Court of Kerala at Ernakulam vide their order dated 07.06.2005 in O.P. No.2150/02 while partially upholding the order of CAT, Ernakulam Bench dated 31.12.2001 in OA No. 851/1999, held that mutual transfers should be allowed between staff belonging to the same category (i.e. General with General, SC with SC and ST with ST). Subsequently in OA No.612/2005 the CAT, Ernakulam Bench directed that the Railway Board should decide the policy arising out of High Court of Kerala's order dated 07.06.2005 referred to in this para, as expeditiously as possible.
(ii) In the light of the above, Ministry of Railways have decided that in order to maintain the balance in the post-
based rosters with reference to reservations prescribed for SC and ST staff and to avoid hardship to staff in the feeder grade in the matter of their promotion, transfers on mutual exchange basis should be allowed between employees belonging to the same category (i.e. General with General, SC with SC and ST with ST). However, transfers on bottom seniority in recruitment grades need not be restricted with reference to points in the post based rosters. The procedure being followed generally in this regard to adjust shortfall/excess in future may continue. But such transfers should be allowed only repeat only against vacant direct recruitment quota posts and not against promotion quota posts. The above instructions do not in any way alter the 12 OA No. 560/2023 existing procedure as aid down by this Ministry regarding operation/maintenance of post-based rosters. {Board's letter No. E(NG)I-2004/TR/16 dated 14.08.2007( R.B.E. No.107/2007) refers}.
6. In the context of the above instructions, the following doubts had been raised:-
i) Whether the restriction does not apply to employees belonging to OBCs as the same has not been mentioned in the instructions ibid; and
ii) Whether the restrictions on mutual transfer will apply when such transfers take place in recruitment grades.
6.1. The matter had been considered carefully and clarified item-wise as under:-
i) There being no reservation in posts filled by promotion for OBCs, the term 'General' should include OBCs also. In other words, staff belonging to General/OBC categories may contract mutual transfers with staff belonging to General/OBC.
ii) In view of the fact that the instructions dated 14.08.2007 do not impose any restriction on transfer on request on bottom seniority in recruitment grades, mutual transfer in the recruitment grades will also be allowed without restriction provided:-
a) The posts in the grade are entirely filled by direct recruitment from open market;
b) In case where posts in the grade are partly filled by promotion and partly by direct recruitment both the employees seeking mutual transfer should have been recruited directly from the open market; the intention being that both of them should be borne in the post based rosters maintained for direct recruitment. In other words, if one or both the employees are borne in the post-based rosters maintained for promotion, the restriction on mutual transfer as per instructions 13 OA No. 560/2023 dated 14.08.2007 will apply. {Board's letter No. E(NG)l-2004/TR/16 dated 22.1 0.2007 ( R.B.E. No. 134/2007) refers}.
......"
In the present case, once again it was it was pointed out at the outset that this pretext was being proffered presently, whereas the Applicant had earlier vide request dated 14.09.2022 clearly sought to be transferred inter- Railway mutually with the same Private Respondent No.3, in the very same situation of their being from different communities. It was also found that the Applicant was directly recruited for the Group-C post of JE(PW)by the RRB Ajmer and thus was in the bottom recruitment grade, whereas the Respondent No.3 had unconditionally and voluntarily reverted to the said grade. Further, each of them was also placed in the same recruitment grade in the Divisions to which they had been transferred vide the impugned Order dated 24.04.2023. Hence, it was clear that the relevant provisions in Para-5 and Para-6 of the applicable Policy instructions dated 11.01.2019 were not contravened while the impugned Order dated 24.04.2023 were issued by the Respondents.
14OA No. 560/2023
11. Having gone through the facts of the case, the respective contentions of the parties and the examination of these with reference to the extant comprehensive and updated Policy instructions vide Circular RBE No.8/2019 titled "Comprehensive Policy on Mutual Transfer of Non- Gazetted Staff on the Zonal Railways" issued vide No.E(NG)I-2018/TR/8 dated 11.01.2019 it is found that the consideration and acceptance by the Official Respondents of the request for mutual transfer of the Applicant with the Private Respondent No.3 was in accordance with the extant Policy instructions dated 11.01.2019 and not in violation of any substantive provisions thereof. Moreover, the impugned Order dated 24.04.2023 of the Respondents is not in any way shown to be vitiated by mala fides or made in violation of any statutory provision. Therefore, we do not find that the impugned Order dated 24.04.2023 is required to be interfered with by this Tribunal on substantive merits.
12. Further, it is also observed that the case constructed by the Applicant vide the present O.A. in many aspects is that though the mutual transfer as prayed for by him was approved by the Respondents, 15 OA No. 560/2023 such approval was illegal and not covered by the afore said Policy instructions dated 11.01.2019. However, at the same time, it emerged clearly that this was being contended despite the fact that the Applicant vide his request dated 14.09.2022 had opted for the mutual transfer with the Private Respondent No.3, in full knowledge and under the purview of these Policy instructions dated 11.01.2019.Moreover, the Applicant had after his request dated 14.09.2022- neither indicated any shortcoming in that request for mutual transfer nor updated the status in respect of the grounds for seeking the said mutual transfer. Further, the Applicant had not conveyed any consequent intent on his part to seek cancellation of his mutual transfer request - at any point of time till 12.05.2023which was clearly after the acceptance of the mutual transfer of the Applicant with the Private Respondent No.3 as well as the issue of the related Orders dated 24.04.2023 by the Official Respondents. Thus, apart from the finding on substantive merit in respect of such contentions herein before, a recourse to such grounds as afore-mentioned through the present O.A. would prima facie be estopped under the circumstances mentioned herein above. 16 OA No. 560/2023
13. The Applicant had through the pleadings also contended that since numerous vacancies existed in the posts of his level in the NWR, his transfer to NCR was unnecessary thus. It is noted at the outset that such a contention was beyond the scope of mutual transfer policy and instructions. Also, the management of vacancies in any posts is clearly and squarely in the domain of the administrative authorities concerned. We would advert to the law laid down in the matter on the authority of the Orders/Judgments of the Hon'ble Apex Court, in a catena of related cases - that the interference by the Courts / Tribunals cannot be done lightly as the administrative authorities were best placed to assess the niceties of the administrative needs and requirements of the situation concerned ; that the scope of judicial review in the administrative-cum-policy decisions is rather limited because the courts cannot substitute their own decision for that of the administrative authorities; and that even the transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless vitiated by mala fides or made in violation of any statutory provision. In the present case, even if the contention of existence of 17 OA No. 560/2023 numerous vacancies of the Applicant's level in NWR were to be accepted, the same would not create any legally enforceable right of the Applicant to be retained in the NWR Zone / Jaipur Division of the Railways. Therefore, we hold that no directions interfering with the Order dated 24.04.2023 are called for on this account as well.
14. During the arguments before us, the learned counsel for the Applicants had cited the Order of the Central Administrative Tribunal (Principal Bench) in O.A. No.1554/2009 dated 05.08.2009 the copy of which was taken on record. It was contended that the case of the Applicant in the present O.A. was similar to above said OA in which "the order of mutual transfer as prayed had broken down." On careful perusal, it emerged that the circumstances of the said Order dated 05.08.2009 in O.A. No.1554/2009 by the CAT (PB) were that neither of the employees who had applied for the mutual transfer had moved ; it was averred by one of the Railway Zones involved that the mutual transferee under them was required to continue and will not be relieved as there were large number of vacancies ; and the conditions under which the applicant in that O.A. had applied had 18 OA No. 560/2023 changed and resultantly the need for his transfer did not exist anymore. In the instant case before us -although the Applicant in the present O.A. had on similar lines mentioned of changed personal circumstances and the extinguishing of the need for his transfer - the NCR had not indicated any problem in relieving the mutual transferee working with them, in fact the said transferee (Private Respondent No.3) had been relieved by the NCR and had already joined in NWR. Thus, the Case relied upon/cited was found to be not entirely similar to that presently before us.
15. Moreover, it is noted that the direction vide the said Order dated 05.08.2009 in O.A. No.1554/2009 by the CAT (PB) was for consideration by the Respondent of the Applicant's request to cancel the mutual transfer order. Apart from the outcome of such consideration by the Respondent being not before us, it is already noted that such a consideration in the present O.A. before us would be encumbered by the fact that the other mutual transferee has accepted the mutual transfer vide the impugned Order and had also joined in NWR meanwhile. 19 OA No. 560/2023
16. The pleadings, the policy and rules related, the arguments before us, the law laid down regarding relative powers of Courts/Tribunals and administrative authorities for policy/administrative matters and the precedent cited have been carefully gone through. In the conspectus of the foregoing examination and analysis, we find that the impugned Order dated 24.04.2023 and pursuant actions of the Respondents were in accordance with the policy and instructions related to mutual transfer ; and did not suffer from any mala fide or violation of the applicable statutes. Therefore, we hold that no right is created in favour of the Applicant for relief as prayed for; and hence no interference with the impugned Orders dated 24.04.2023 and its follow-up actions is called for on part of this Tribunal.
17. Accordingly, the instant OA does not succeed and is dismissed for the reasons recorded above. I.R., if any, granted earlier stands vacated. No order as to costs.
(Lok Ranjan) (Ranjana Shahi) Member (A) Member (J) !Vv