Central Administrative Tribunal - Mumbai
Dr Parag Shrikrishna Marathe vs Central Railway on 27 June, 2023
Bie Magy os tee CENTRAL ADMINISTRATIVE TRIBUNAL, MU MBAL SERCH, MUMBAI ORIGINAL APPLICATION No. 5342/2021 Dr. Parse Shaken Marathe Age:- 36 Years, Oecut-Doctor R Mee 'US, Mukundnagar, Near Ranka Hospital, Pune-4) 1 037. M- SURI TAR, - Applicant (By Advocate Mr. Anand Lawate i/b Shri Sandeep Waghmare } Versus 1, LOU, through Secretary, Ministry of Railways, Rail Bhwan, Raisina Road, New Delhi -- 110 001. (Deleted) 2. Chairman, Raibvay Board, Rall Bhavan, Raisina Road, New Delhi -- Pio O07. 3. General Manager (GM) - Central Railway, c SMM, Mumbai -- 400 BOL. 4. _ Divisional Railway Manag cor (ORM) _ Fone Division, Pune Divisional DRM ¢ Office, RB Mill Road, Near Pune Railway Station, Bune ~ 411 001. 2 OA No. $42,202} Hospital, Maaldhakka Road, Near Pune Railway Station, Pune ~ 411 001, - Respondents (By Advocate Mr. B.R. Shetty) SS ORDER(ORAL)
Ser: Justice Shirt MiG. Sewllkar, Member ( Challenge in this OA under Section 19 of Administrative Tribunals Act, 1985 is to order dated 02°? June, 2020 passed by respondent No.2 - Railway Board vide which applicant was not allowed to join the Railways afier he was relieved from Indian Institute of Science Education and Research (ISER), Pune.
2. Shorn of details, facts are that the applicant is a doctor possessing MBBS and MD qualifications. He joined the Rail ways on 21" April, 2014. Subsequently, an advertisement was published by ISER, Pune which is an autonomous body, on 18.05.2018 for recruitment of Medical Officer. The applicant made an application to the respondent No.2 for permission to apply to IISER, Pune. This application was rejected. The applicant again made an application and respondent No.2 granted permission to him to apply for the post of Medical Officer in LISER, Pune. On his selection, he tendered _ technical resignation to the Railways on 14° November, 2018 and 4 Oa Ne: BEES 202} was relieved on 29" November, 2018. His relieving order shows that he had a lien of two years from the date of his appointment on the new post. Accordingly, the applicant joined JSER on 03% December,
3. However, the applicant tendered his technical resignation al HSER on 02" August, 2019 and was relieved from IISER on 01° November, 2019. Then he applied to GM, Central Railway to be allowed to join the Railways again. This application was rejected by o and * passing the order dated 02° June, 2020 mentioning therein that in pal Rule [406 CA) of Indian Railw ays Establishment Manual £Q weg base bes ioe a Volume-] (REM), the applicant cannot be permitted to join back as on joining the autonomous institution, HSER, Pune, his relation with the respondents stood severed, The applicant has, therefore, filed this 3, The respondents filed their reply contending therein that in terms of Rule 1406 A of If 2M, the applicant was required to S RIS ap tol ew this procedure and he directly applied to the WSER, Pune. As soon as he jomed at TISER, his relation with the responden SHS came to pication through the respondent Nog but he did not 4 Od No 543203) an end and he was deemed to have retired soon thereafter.
5. 'The applicant has filed his rejoinder contending that while seeking permission to apply for the said past at SER, Pune, he had annexed the copy of advertisement issued by [ISER in which it wa clearly mentioned that SER is an autonomous body. Therefore, it was the duty of the respondents to bring to his notice the provisions of Rule 1406(A) of IREM. Since the respondents failed in their duty, they are estopped from contending that the applicant has not retained any hen with the Railways.
6. The respondents have filed reply to rejoinder and reiterated the same contentions as in their reply.
7, We have heard learned counsel for the applicant Shri Lawate holding for Shri Waghmare and learned counsel for the respondents Shri R.R. Shetty.
8 Shri Lawate submits that Rule 1406 A of IREM casts a duty on the railways to give a clear understanding while forwarding the application to an autonomous body that if he joins the snore 8 body, he shall sever all connections with the Railways and shall be deemed to have retired. He submits that ti the action of the respondents Kg oe owed yoo.
end me To4 oo tg tg aod One bos Dad ~ is agains! the provisions of Rule [406 A of IREM. The respondents not only did not bring to the netice of the applicant the consequence of joining the autonomous body but have also relieved him by with IISER and applied for reversion to the respondents vide application dated G2" November, 2019. He submits that the respondents, thereafter, realised their folly and rejected bis application mentioning therein that in terms of the said rule, the applicant is deemed to have retired. Therelore, he cannot be allowed to join back the duties. Ne submits that the respondents are estopped fram contending that the applicant has not retained lien of two years when they relieved him mentioning that he would have to revert "within two years, io he is not permanently absorbed in USER. Since > the applications were required fo be submitted online, he had no _opportiuity to route the sail anplication through the respondents, Therefore, be directly applied fo the HSER. | sfore that, he had obtained permission for making application to IISER. He contends 6 Od No $422021 that the applicant had made application through proper channel. He places reliance on the case of CU. Thakore Vs. Ahmedabad Dist.
Panchayat and others, 198] Legal Eagle 151, Aas . . ae eX Oy i te] eae 2 < me, BS oe : ae Re ees eee! g. AS against this, Sivi Shetty submits that the AOMUCENY Hac obtained permission to apply to the IISER, Pune. The permission was also accorded. But the duty cast upon the respondents begins only when the applicant makes an application through proper channel. The applicant did not make any such application and directly applied to the HSER. Therefore, the respondents had no opportunity to bring the Rule position to the notice of the applicant, Therefore, the applicant cannot turn around and say that the respondents failed in their duty and therefore he be permitted to join back on duty. He submits that the principle of estoppel will not come into play for there cannot be estoppel against a statute. He has placed reliance on the case of Suman Devi and Others Vs. State of Uttarakhand and Others, 2021 (2) §CC (L&S) 219, and on State of Nigam Saneharsh Samiti and Others, 2009 1) SCC A&S8) 2?
Lorry 'e 7 04 No $42002) id. We have given thoughtful consideration to the submissions made al Bar by the counsels on | bok the sides.
4 the relevant rules of [REM Volume-
i, 2669, Rule 1406 oe about forwarding of the applications of Railway ae ees for posis under State Government and their undertakings subject to the provisions of Para 1404 and instructions issued from time to Gme and within the limit a down for forws nding applications for outside posts. Rule [404 speaks about retention of lien on selection on the basis of the forwarding of Roy.
es application, it states that if a permanent Railway employee selected on the basis of his application for posts in other Central Government Department/Ofices, his lien may be retaimed in the parent department for a period of two years.
G2 Rule 1406 A speaks about forwarding of applications for posts oes advertised by Central/Public Sector Undertakings/Central . Autonomous Bodies. This nave is beme fe > Seen ene nee ; 2. og 3 Foo nee #06-4 Forwarding of applications for posts advertised 3 : ? Se keen ae & : atta FOE : ag be CentralvPubiic Seetor -- Underiekines/Central 8 Od No b43/2021 Autonomous Bodies:-Applications of Railway servants in response fo press advertisement for posts in Central Public Enterprises/dutonamous Bodies may be forwarded with a clear understanding with the Railway servants that in the event of their selection for the post applied for they will sever their connections with the Railways before joining the Public Sector Undertakings/dutonamous Bodies. There is ne question of retention of lien in such cases. A Railway servant selected on the basis of his application with praper permission for post in Central Public Enterprises/Central Autonomous Bodies will be required to give his'her technical resignation before histher relief from Railway service. The Railway servant may thereafter be relieved to take up appointment in the Public Sector Undertaking/dutoenomous Body The relieving order shauld indicate the period within which the official showd jein the Public -- Sector Undertaking/Autonomous Body. Normally this period should not be more than 13 days. This period may be extended by the campetent authority for reasons beyond the control of the official. Necessary notification/arders accepting the resignation of the Railway servant from Railway service should be issued from the actual date af his/her joining the Public Sector Undertaking/Autonomous Body, The period between the date of relieving and the date of joining Public Sector Undertaking/Autonomous Body can be regulated as leave of the kind due and admissible and if no leave is due, dy grant of extra ordinary leave. In case, he/she is not able to join the Public Sector Undertakine/Autoanamous Body within the period allowed by the competent authority, he/she should repert back to the parent office forthwith."
In terms of this Rule, a duty is cast on the Railways to forward the applications of the applicants in response to an advertisement for posts In Central Public Enterprises/Autonomous Bodies with a clear Yo be iy GA No 882/202 I understanding that. in the event of their selection for the post applied for they will sever their connections with the Railways before joing the Public Sector Undertakings/Autonamous Bodies. In such fention of Hen. This rule clearly stipulates that once a Railway servant is selected for the post he had applied for in Central/Public Sector Undertakings/Central Amouomous Bodies, he shall sever all the connections with the Railways. This rule further submits that in such cases. there shall be no question of retention of Hen, i3. Ip the case at hand, the applicant had sought permission from the Railways to apply for the post ady ertised by the IISER, Pune. His application was rejected once. The applicant again made an application which was allowed. The applicant, thereafler, made online applic Heation. Admittedly, he did not make application through the respondents. To the contention of the applicant that he had no S opportunity to apply through proper channel as the application we we do not agree. The applicant:
S tn such & case, the ly through proper channel.
Sgn ayes is She aeellngsinn be hk. ad Supposed §) submit the application to concerned au 10 Od No 322/202} department and after processing it, the application could have been forwarded by the Respondents online to the SER. The applicant did not follow this procedure. Therefore, the applicant cannot contend 3 q Ss Fee ene e $f. ae Aes Sena AS.
what He was not EVEN ¢ clear und fVSiamding oF The camsecduences of 3 = + making application to Autonomous Body. Even if we accept the contention of the applicant for the sake of argument that the respondents failed in their duty in bringing the consequence of Rule I406A of IREM, stil the applicant does not stand to gain, The Rule does not say that if the respondents fail to bring to the notice of the applicant that on selection, he would stand retired, the applicant will be entitled to retain lien. Therefore, having considered from any angle, it cannot be said that the applicant is entitled to join back with the Railways. The rule is clear. It provides that the moment the Railway servant is selected for the post he had applied for in an autonomous body, he shall be deemed to have retired from the Railways.
14. Even otherwise, there cannot be estoppel against a statute. The Rule makes it explicitly clear that the Railway servant once selected in Autonomous Body, he shall be deemed to have retired from the es :
ch yn 6 oe . i' & S Bs oa CR ox ey : ea % ge re pe : Ee a 5 Pe , oy ;
we eis gs & & Se oe he Ss & a ted a, me Ge ROE wy me ee Oe os ¢ Ss Soin ogee gy SE Se RS trea NS Me Re ny ' ee ws 3S oe, Bm iD Be 3 ME RO ay oo Loot Bs oe as me pe OS 1 oS sepek 3 eine EO Sf, oe Booty he ee LS % oo oh = a 2 se Be mee oF oe & B & OT te OR te 2 as ee om eos BS Ly is of % st vs Pe ees De eg es ye comme te ano aie es feed ee - Pro a os is a SB RR cg ee ee wm oe ta a ee g De ee ee Re oe ;
ES. aca Nese ta Hoge: are f ee he IR Soe Sng: Bio os tap nd on RS Oy BB eS hel pace ie a Sh en sea ares es a Sy a oe a SO Sa ga Rt Bao Ry ae =! cree RECS y fee rg : Son EE fy RO ta Se Pe TE pi Eee) eg Nest ees bead Pas *y on ¥ Sy : ' inc gies noo AR o ' _ fa £4 hes oe Pe ey = coq Fa ae ad tAp oe 3S ous = bss} wee Sok * ne gh ign ed Es - ee Sed peeves etenn. Sanaa By, Sod ce oe bee st; ee veg 2 be aaah Sey we one EG ore os se Caton i et OM a RE y : eg et a tag Me aaa Bet £ hy ee eR Shay ER ty oe <a Se ena t Oe cee eae He ®@ 6 £22 sees oo SS og ro es ao ee ; Saw cece nee oes fb oor} : pape os ec' % ee ee no Biypy gee ER ht ee Rta rR ag Re os gS oo) sees:
"C3 Ss © S Sse SP ESS See € 5S ot el ie ; pd " ae CER peg BS, me % he oS Read oe ee Thea tea, cS Bos ton etic. Scennaney statins Sanna oe zee Begg Da So Rig ag Bocas Ra wit a> os Do ns Oe wee ne pineeae gamer) e tFeag OR pit ; Sat : ; Sel i Bigg og gets ron se poe ae : Bee ye Py yee oS Bag IN ge Becneer et Bored teers et a = oo ° 8 Sg SOR & 4 ED ee oo te Ss ce : "apack £3) He 2 eng: By " ad he [aterm t ins ae eae | Bae is to es ee ee Re 4 OB a oy it a re ; eo et page eee fe eR ieee ce or i A 1% BE om BIO ee es wee SS o ee xe: £5 5 Rg ge beg Ns %, Neat ee naar se Mh Teh Spi e ee fe a " ts eer eee a Ss Pas tg fe 03 : : ope ear : ee * Ss ee :
mS sy ay ns e @ BS Sf S me oy eS oe ee oa dag a eee Dh ys "deed : : % ce ss % pea en see eemtcons aa * : a8 oe xs) fe ee oe, ee eee ae ese 5 Ge Spies aes Ey Be eS pias : pee ek 63 yon ae Ss: nS. a Lt nad Bh ee ; z oe aid cre ark : : ® tee Moy ings ee' yee: pre wernt. seaeeey en eines poags oe Fey snee eee cit Senn : be pit Seana ee = Ce oe i ty Bk ee * ee Sep es a = oe a : eg ts we Lei Er otal teat eee Lees eared 4 fsa Ps, nas Este} fies &3 a u £5, pas ae cat <4 : wee nh ace * pod se ee oe Z 4 2 : ns o Ene og & a a a oe & ae eee eee 5 ret OS) : ss : A 3 os yee 3 tah Pag ls as f « ye Sed eS es bd . on Ne tn i "Pay ee, OE tae ee ies ag eB & i te eS 'es mo = Oe, & ee ee ae ey a he ba A peed: ise) Ee sears 2 ' Snip Sees eed el ASE rs eee ea go US o : Recs 3 poe wees : a fe ee ee KS on Pre ee OG ea Be wef ; i coat 2 Ke, bis Pa 85 oS Ne ey SR ey Ne © ao) 2 Eo ta te ap ee a3 Yrewid oD noel y oy ¥ ss : es ie bes} "4 Bagg 8 Pee oS ay eae Ny ed ve Fo B e ¥ apap ig RE peg os ts, ct Sy? ms rats ag ¢ Bosc ee yah Sot a> Z Sa Be & fron ta A . is eee DR TD sey ey SS 7 wee +8 ee : Se Om Bog oN & me 5 4, S Ey & i fie on ge A Saeed Sirk, G4 "oy "i i) : & es eee ies fe tye : ¥ 3 ca ity, gag ieee Piensa tor Be ee 4 SR foe eee oct NS j he i oh S de oo oy Beye Te eg Sa ea feng et teed ey pee vas By eA 2 BR OS te SS OR a bet ee ot gh om or sued a Pp po ee ee oe Som Se Uw eo Pe wer is ee oS 4 os ae RAG: 5 te, ie iat B50 Spe piss es is Bice teases eee ae eer se oe a 2 to we pe : pion ee ee OAS Gs Sai ete, eee oe ete Z : met a aE ai ¢ to Phe ; GN ee OR Rd ben ge otek ae % "B pa a Sa ER co ann 9 eRe occa pee ees koe & a us vet 3 en a {3 SE So =) so Pe ge Enact eer a5 on na ths he seer Ge 3 t SP ee AS ee teas oe a pecs: £4 "ge uA fa" ont TPs eo rs hese: ss ees se so A os veh : om oh, ee a ie oe "%G ee a Be es ' op eter oe Die ot wy tf oe Eaocs pete ee eh yok reed, ead el 5 got te i ye beac' Real ts is tes tag ite phon 7? bon pat \ o fy d i ee snd og NA ae Se oo 12 OA No. 332/202 1 i6. In the case of Suman Devi and Others Vs. State of Uderakhand and Others (supra), the Hon'ble Supreme Court in para 29 held thus:-
is y ... Pherefore, the argument that the State was bound by the standards it na specified (in the advertisement which had omitted anv mention as to the educational qualification of intermediate with science) did not relieve the State from the obligation of enforcing 2 Statutory rules. If is too late in the day to assert that any kind of estoppel can operate against the State of compel if to give effect to a Promise contrary to law or prevailing rules that have statutory force. All arguments to this effect on the part of the appellants are therefore rejected."
iv. Similar observations are found in the case of State of Uftar Pradesh and Another Vs. User Pradesh Raiva Akanii Vikas Nigam Sangharsh Samiti and Others (supra). t has been held in this Supreme Court decision that there is no estoppel against statute and even an undertaking of any officer or counsel is irrelevant, it is the statute which governs the field. Therefore, the relieving order which mentioned that the applicant is entitled to lien of two years is against the provisions of Rule 1406-4, This mention made by office of the respondents does not bind the Railways. Therefore, the question of estoppel does not came into play in this case. In the case 5 z x v 13 Od No So 2002) of C0 fheker (supra) relied on by the applicant, it is held that where the challenge is based on the ground that the authority has falled to act in accordance with the stat utory rules, R is estoppel of kos i8 'Thus, from the above ¢ CISCUS ssions, it is clear Gal the applicant had been deemed to have retired from the Railways the mament he There of this, this OA is bereft of any merit. Ip is, therefore, disraissed, (dustide DUG Sewlikar) Member GF)