Central Administrative Tribunal - Kolkata
Sarmistha Dey vs Eastern Railway on 11 March, 2024
1 0.4./350/1853/2018 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA O0.A/350/1853/2018. Date of Hearing:- 8/2/2024, with Date of Order:- M.A./350/128/2019 \i(3| OLY M.A./350/129/2019 M.A./350/170/2020 M.A./350/901/2019 M.A./350/459/2019 M.A./350/190/2021 M.A./350/296/2019 Coram: Hon'ble Mr. Anindo Majumder, Administrative Member Hon'ble Mr. Rajnish Kumar Rai, Judicial Member Smt. Sarmistha Dey, JE/Works/New Alipore, Sealdah Division, Eastern Railway, daughter of Sh. Swapan Kumar Dey, residing at 1/1/9, Dum Dum Road, Police Station- Sinthee, Kolkata : 700002 in the state of West Bengal, India. wow Applicant -Versus- 1. Union of India, Service through The General Manager, Eastern Railway, Having Office at Fairley Place, 14, Strand Road, B B D Bagh, Strand Road, Kolkata, West Bengal, PIN- 700001, India. 2. The Secretary (Establishment), Railway Board, having Office at Rail Bhavan, Raisina Marg, New Delhi, PIN-110011, India. 3. The General Manager, Central Railway, having Office at 2nd Floor, GM's Building, Mumbai CST, Maharashtra, PIN 400001, India. 4. The Principal Chief Personnel Officer, Eastern Railway, having office at 14, Strand Road, BBD Bagh, Strand Road, Kolkata, West Bengal, PIN - 700001, India. 5. The Chief Personne: Officer, Central Railway, 2nd Floor, GM's Building, Mumbai CST, Maharashtra, PIN- 400001, India. 6. The Divisional Railway Manager, ae 2 '- 0.A./350/1853/2018 Sealdah Division, Eastern Railway, having office at 223, Kaiser Street, Sealdah, Raja Bazar, Kolkata, PIN - 700009, West Bengal, India. 7. The Chief Administrative Officer (Construction), Central Railway, having office at 6th Floor, Dadabhai Naoroji Road, CST Mumbai, PIN- 400001, Maharashtra, India. 8. The Senior Divisional Personnel Officer, Sealdah Division, Eastern Railway having office at 223, Kaiser Street, Sealdah, Raja Bazar, Kolkata, PIN - 700009, West Bengal, India. 9. The Deputy Chief Engineer (Construction) / 1/ Panvel, Bombay Division, Central Railway, having office at Panvel, PIN - 410206, ' Maharashtra, India. 10. The Additional General Manager, Eastern Railway, Kolkata having its Office at Fairlee Place, 14, Strand Road, Kolkata: 700001, West Bengal, India. 11. -- Sh. Vipin Bihari, son of Sh. Tulsi Prasad Sah, working as Junior Engineer (Works) in the Office of the Dy. CE (Const.) Panvel BB Division, Central Railway, presently at the office of Senior Section Engineer/ Works/ Sealdah, Sealdah Division, Eastern Railway, PIN - 700009, West Bengal. 12. The Senior Section Engineer (Works) New Alipore, Eastern Railway (SSE/W/NAP), having Office at IOW Office Eastern Railway Officers' Enclave, New Alipore, Behind Block No. 5, J.K. Paul Road, New Alipore, Kolkata : 700038. 13. The Senior Assistant Engineer - Town, Eastern Railway, Sealdah (Sr. ATE/ SDAH), having Office at DRM Building 223, Kaiser Street, Sealdah, Raja Bazar, Kolkata, PIN - 700014, West Bengal, India. 14, The Senior Divisional Engineer/ Co-Ordination, Eastern Railway, Sealdah, having Office at DRM Building 223, Kaiser Street, Sealdah, Raja Bazar, Kolkata, PIN - 700014, West Bengal, India. 15. Mr. Prasanta Mitra, The Senior Section Engineer (Works) New Alipore, Eastern Railway (SSE/W/AAP), in his personal capacity having office address at the Office of the Senior Section Engineer (Works) New Alipore, Eastern Railway (SSE/W/NAP), IOW Office Eastern Railway Officers' Enclave, New Alipore, Behind Block No. 5, J.K. Paul Road, New Alipore, Kolkata : 700038 wooeeRespondents --_ 3 0.A./350/1853/2018 For the applicants : Mr. S. Ghosh (Counsel) For the respondent(s) : Ms. D. Ghosh Dastidar (Counsel) ORDER
Per: Mr. Anindo Majumder, Administrative Member The applicant has filed this original application seeking the following relief(s):-
"() An Order declaring that the Order passed by the concerned Respondent Authority dated 20th November, 2018 in connection with Order dated 03.09.2018 on O.A. No. 350/1273/2018 and communicated to the Applicant herein vide No. E- 12/ Court Cases/Sarmistha/2018 Sealdah, 21st November, 2018 {in Re: Smt. Sarmistha Dey Vs. Union of India.and Others), is otherwise bad in law and liable be set aside and/or quashed and;
(ti) A mandatory order directing the concerned Respondent authorities to not to proceed further with the matter of mutual transfer of the applicant herein on the basis of her representation dated 16th January, 2017 and 14th July, 2017 and which is before initiation of any process of mutual transfer on the basis of her earlier application dated 4th February, 2016 seeking such mutual transfer and (iti) A Mandatory order setting aside and/or quash any order and/or orders so passed by the authorities concerned already to transfer the Applicant herein on the basis of said application dated 4th February, 2016 of inter railway and inter divisional mutual transfer to Bombay, Central Railway from Kolkata, Eastern Railway upon said purported mutual consent and
(iv) Adirection upon the Respondents to certify and transmit the records of this case to this Hon'ble Tribunal so that on perusal conscionable justice may be done in favour of the applicant; and
(v) Any other order or orders and/or further order or orders as the Hon'ble Tribunal seems fit and proper."
2. The applicant has filed an M.A. 128 of 2019 for addition of some of the respondents in the cause title of the 0.A. Having heard the Ld. Counsel for both the sides, the M.A. for addition for the parties is allowed. Accordingly, names of the respondents as prayed for in the M.A. are incorporated in the cause title of the O.A. ba 4
0.A./350/1853/2018 The applicant and the respondents have filed several other M.As praying for certain other directions. Having heard the Ld. Counsel for both the sides, those M.A.s are not allowed.
3. The applicant, who is a Group C employee of Eastern Railway, had applied for inter-railway mutual transfer on 4 February 2016 with one Shri Vipin Bihari (Respondent no. 11) on the ground that her husband was posted at Mumbai at that point of time.
4, Subsequently, the applicant submitted a representation dated 16 January 2017 to the concerned authority praying for cancellation of her earlier application dated 4 February 2016, seeking inter zonal mutual transfer. |
5. The request of the applicant for inter zonal transfer was approved by the GM, Eastern Railway and the applicant was accordingly transferred vide office order dated 14/9/2017 subject to the condition that Shri Vipin Bihari, being senior, should be released first.
6. Shri Vipin Bihari (Respondent No. 11) joined Eastern Railway and SSE/Works/ Sealdah on 07/05/2018.
7, The applicant had filed an original application being OA No. 350/1273/2018 before this Tribunal which was disposed of vide order dated 03/09/2018 with directions upon the respondent authority to look into the grievance of the applicant as projected in her representation and to dispose it of in accordance with the rules governing the field with a reasoned and speaking order within four weeks..
8. The Senior Divisional Personnel Officer, Eastern Railway, Sealdah and Respondent No. 8 passed a speaking order' dated 20/11/2018 whereby the representation of the applicant for cancellation of her inter oe, 5
0.A./350/1853/2018 zonal mutual transfer order was not considered by the competent authority on the ground that back tracking from mutual exchange is not allowed as per the Railway Board letter dated 12/11/2009 (RBE No. 200/2009). An extract from the said speaking order is reproduced below:-
"Hon'ble CAT/CAL by its order dated 03.09.2018 have been pleased to direct the competent Respondent authority" to look into the grievance of the applicant as projected in her representation and to dispose it of the representations in arccordance with rules governing the field with a reasoned and speaking order within four weeks. The decisions so arrived at be communicated to the applicant forthwith."
Undersigned, Sr. DPO/SDAH being Respondent No. 8 perused above order of Hon'ble CAT/CAL and the appeals of the applicant as shown in Enclosures 'A- 2' and 'A-4' and following observations have been made.
The fact remains that the applicant Smt. Sarmistha Dey, JE/Works/New Alipore submitted an application vide dated 04.02.2016 seeking her mutual transfer with Sri Vipin Bihari, JE/Works/Panvel/BB. Division of Central Railway. Her above appeal was forwarded to CPO/ER/Kolkata on 22.08.2016 and subsequently, it was further sent to GM(P)/Central Railway on 29.08.2016. Approval of GM(P)/E Railway dated 09.02.17 addressing GM(P)/Central Rly./Mumbai CST with a copy to DRM/E. Rly/Sealdah had been received by the office of the undersigned on 21.02.2017. On the basis of approval of GM(P)/E Rly vide his letter dated 09.02.2017 Office Order No. E-12/Engg/135/2017 under Docket No. E-12/IDMT & IRMT/Engg/JE/W/2016 dtd. 14.09.2017 issued by the office of the undersigned subject to condition that Vipin Bihari, JE/Works/Panvel of BB Divn /Central Railway, being senior, should be released first.
Meanwhile the applicant appealed for cancellation of Inter Railway Mutual Transfer vide her representation dated 16.01.2017 (Enclosure 'A-2') addressed to CPO/E Rly/Kolkata and copy to Sr. DPO/SDAH.
On an enquiry by CAO (Con)/Mumbai CST vide his letter dated 12.08.2017, GM(P)/E. Rly/Kolkata replied that the appeal for cancellation of Inter Railway Mutual Transfer of Smt. Sarmistha Dey could not be considered by the competent authority as back tracking from mutual exchange is not allowed as per Rly. Board's letter No, E(NG)I-2006/TR/6 dated 12.11.2009(RBE No. 200/2009).
In view of above observations and also in consonance with Railway rules, prayer for cancellation of Mutual Transfer is not tenable at this stage and it is rejected.
The matter has been disposed of accordingly in pursuance of above order of Hon'ble CAT/CAL".
9, We have heard the Learned Counsels for both the sides and have considered the material on record.
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10. During hearing, Learned Counsel for the applicant submitted that the applicant had submitted a representation dated 16/01/2017 praying for the cancellation of her earlier request dated 04/02/2016 for inter zonal mutual transfer with Shri Vipin Bihari, an employee of Central Railway since she reconsidered her decision to relocate to Mumbai in view of illness of her in-laws. Learned Counsel for the applicant further submitted that although the respondents, have, in the speaking order dated 20/11/2018, taken the ground that the representation of the applicant dated 16/01/2017 for cancellation of the request for inter zonal transfer on mutual basis, cannot be considered. There are several instances where requests for cancellation of mutual transfer have been allowed. He submitted that such instances have been mentioned in the rejoinder of the applicant to the counter-reply submitted by the respondents.
11. During hearing, Learned Counsel for the respondents submitted that once a request for inter-zonal transfer on mutual basis is approved the Same cannot be subsequently withdrawn in terms of Railway Board's letter dated 12/11/2009 (RBE no. 200/2009). He also drew the attention to terms and conditions as mentioned in the transfer order dated 14/9/2017 wherein it is clearly stated that "No backtracking will be allowed". He further submitted that Shri Vipin Bihari, Respondent No. 11 has already joined Eastern Railway on 07th May, 2018 whereas the applicant has not yet reported to Central Railway.
12. The applicant is a Group C employee. Ordinarily, Group C employees do not have any liability for transfer from one zonal railway to another.
They are usually transferred within the different divisions of their parent dest
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0.A,/350/1853/2018 zonal railway. However, inter-zonal transfer of such employees on mutual basis is allowed with the approval of the competent authority under certain conditions.
13, In the instant case, the applicant had sought inter zonal transfer on mutual basis with Sri Vipin Bihari, Respondent No. 11 since her husband was at that time posted in Mumbai. The request was approved and she was transferred vide order dated 14/9/2017. .
14. The applicant, subsequently, had a change of mind presumably on account of her altered family circumstances, and had thereafter applied for cancellation of her earlier request for inter zonal transfer vide her representation dated 16 January 2017. Meanwhile, Shri Vipin Bihari had joined Eastern Railway on 07/05/2018. Since the terms and conditions of the order dated 14/9/2017 clearly stipulates that backtracking of request for mutual transfer is not allowed, she was therefore aware that such a request will not be entertained.
15. However, since the applicant is a lady employee belonging to Group- C post and ordinarily does not have liability for inter-zonal transfer, the respondents could have sympathetically considered her representation dated 16/01/2017 praying for the cancellation of her earlier request for inter zonal transfer on mutual basis . Moreover, Shri Vipin Bihari with whom she had sought inter zonal transfer had joined Eastern Railway on 07/05/2018, which was well after the date on which the applicant had sought cancellation of her request for inter-zonal transfer. The applicant has placed on record some copies of replies that she had received in response to her application made under the RTI Act from which it appears that notwithstanding the claim of the respondents to the effect that the 5 , 8
0.A./350/1853/2018 employees are not alowed to backtrack from their request for transfer on mutual grounds, there are several instances where such requests for cancellation of representations for mutual transfer have been allowed,
16. In the light of the above discussion, we direct the competent respondent authority to review the transfer order dated 14/9/2017 in respect of the applicant and reconsider her request for cancellation of the said order. The decision taken by the Competent Authority should be communicated to the applicant by way of a reasoned speaking order within a period of two months from the date of receipt of a certified copy of this order.
iv. With these directions, this Original Application is disposed of. There will be no order as to casts.
(Raj nish Kamar Rai) (Anindo Majumder) Judicial Member Administrative Member