Central Administrative Tribunal - Jaipur
Kaila Sahai Meena vs M/O Railways on 26 October, 2021
A No. 159/2021 with MA No. 398/2021 CENTRAL ADMINISTRATIVE TRIBUNAL JAIPUR BENCH, JAIPUR ORIGINAL APPLICATION NO. 159/2021 with MISC. APPLICATION NO. 398/2021 Order reserved on 08.10.2021 ATE OF ORDER: 26"! 0-2 DATE OF OR CORAM HON'BLE MR. DINESH Ss HON'BLE MRS. HINA P. HARMA, ADMINISTRATIVE MEMBER SHAH, JUDICIAL MEMBER '14 Sahai Meena son of Late Shri Nanagram Meena, t 53 years, Resident of 44, Bapu Enclave, Near Aasharam Aashram, Goner Road, Ropada, Jaipur Raj-)- 303012 at present working on the post of RE/Jaipur, in the Office of Chief Project Director, Electrification, Old G.M. (NWR) Campus ont of Jal Bhawan, Hasanpura, Jaipur 91 -oup-B Mob. No. 9001046032. .. Applicant Shri S.S. Ola, counsel for applicant. VERSUS 4. Union of India through General Manager, Central organization of Railway Electrification, Nawab yusuf Road, Prayagraj, Allahabad (U.P.) 211001. 2, The Principal Chief Material Manager (Core) Central Organization of Railway Electrification, Nawab Yusuf Road, Prayagraj, Allahabad (U.P.). 211001. 3. The Principal Chief Personal Officer (Core) Cent organization of Railway Electrification, awab Yusuf Road, Prayagraj, Ma. yagraj, Allahabad (U.P).) 4. The Chief Project Director, Railway Electrification Old G.M. (NWR) Campus Building, in front of Jal Bhawan, Hasanpura, Jaipur (Raj.) 302006. Nm OA No. 159/2021 with MA No. 398/2021 5. Shri R.K. Meena, Senior Material Manager, Railway Electrification, Jodhpur (Raj.) PIN 342003. .... Respondents Shri Anupam Agarwal, counsel for respondent Nos. 1 to 4 ORDER
Per: Hina P. Shah, Judicial Member The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs: -
";, The impugned order dated 20.01.2021 (Ann. A/1) as well as reliving order dated 01.02.2021 (Ann. A/9) may kindly be quashed and set aside and further may kindly be directed to respondents to allow for performing of the applicant on the post of SMM/RE/JP and further may kindly be directed to respondent No. 4 to make monthly salary to applicant and other all consequential benefits may be awarded in favour of applicant.
Any other order, direction or relief may be passed in favor of the applicant, which may be deemed fit, just and proper under the facts and circumstances of the case."
2. (a) The brief facts of the case, as stated by the applicant, are that he was initially appointed on 16.04.1991 and posted at Central Railway, Mumbai till April 1996 and thereafter posted to several places. As per letter dated 14.12.2016 of Central Organization of Railway Electrification, Office of Controller of Stores OA No. 159/202 with MA No. 398/2021 A\lahabad, addressed to Controller of Stores, All India Railways with regard to posting of Gazetted and Non- Gazetted Cadre in RE projects and willing officers/staff were called for due to acute shortage of staff for posting in RE projects falling under the jurisdiction of Zonal Railway: Applicant made a representation on is desire to perform his duty at t as he was having medical problems as being taken at Jaipur.
is said request was forwarded to Railway n. Railway Board issued letter 43.06.2017 to General Manager, NCR, habad stating that Ministry of ave with the approval of President ferred rhe applicant to Core on his own request ing his lien and seniority in NCR and in this by retainin regat rd aliahabad Core, Headquarter Office, issued a letter dated 21.09.2017 whereby he was directed to report for duty on 17.08.2017 and was posted as oMM/RE/Jalpur under CPD/RE/JP and Applicant took over charge on 09.10.2017.
b) As per letter dated 20.01.2021 issued by Central organization of Railway Electrification, Headquarter office, Prayagraj, Applicant was transferred from RE, OA No. 159/2021 with MA No. 398/2021 Jaipur to Core Prayagra] and Respondent No. 5 was given additional charge of SMM/RE/JP.* Applicant submitted a representation dated 25.01.2021 that he is suffering from cancer and is constantly taking medical treatment from Mahaveer Cancer Hospital as well as Tata Memorial Hospital and as he resides in Jaipur and, accordingly, requested to cancel the transfer order. Vide order dated 91.02.2021 issued by ce of Railway Electrification, Jaipur, Applicant the offi was relieved from Jaipur to join under Core Headquarters prayagra). But as the applicant was undergoing treatment, he could not attend office of and without handing over charge, the RE/ r issued qa letter dated 01.02.2021 and as such
-espondent No. 4 passed an order with malafide wntention. But no action was taken by the official
-espondents on pending representation dated 92.02.2021: In the meantime, official respondents iggued letter dated 05.02.2021 to the Applicant stating that a$ he has completed his tenure of three years at ge/Jaipur, therefore, in the interest of the administration, his transfer has been made. It was further stated that he has been relieved on 92.02.2021 from JE Projects, Jaipur, but he stated that as he is under treatment, therefore, he could not attend the office and as such how can relieving order be passed by the respondents. Again a detailed representation was submitted by Applicant dated 92.04.2021 as well as 09.02.2021 and stated that as the project at RE Electrical, Jaipur is still running, he may be continued a5 he is still under medical treatment. Applicant further states that his periodical as been cancelled in pursuance of Railway transfer h Board jetter RBE No. 65/2020 dated 07.08.2020 and RBE No. 25/2021 dated 31.03.2021 in which passed with regard to cancellation of Respondents vide letter dated 7,04.2024 replied to applicant that his transfer Is to the RBE No. 25/2021 dated 31.03.2021 and the same ig not applicable to him. Thus, Applicant is aggrieved by the order dated 20.01.2021 (Annexure a/1) as well as order dated 01.02.2021 (Annexure a/9) and has approached this Tribunal for redressal of nis grievance.
3, Official respondent Nos. 1 to 4, after issue of notices, filed their reply and stated that the Applicant was posted at Jaipur Project in October 2017 and has 6 OA No. 159/2021 with MA No. 398 2021 been transferred vide order dated 20.01.2021. As such, Applicant has completed three years on the said date. Applicant belongs to Gazetted cadre of Store Department and has an All India transfer liability, he has though alleged malice in making his transfer but mere assertion is of no relevance. In fact, respondent No. 5 was directed to look after the work at Jaipur because Jaipur project is an old project and the said project Is at the verge of completion while the work at Jodhpur is 4 new project and a senior scale officer is already posted at Jodhpur. It is further stated that applicant has been transferred vice Shri B.B. Kalra, senior scale officer transferred to Ambala Project who has already joined at new place. Thus, there is no e officer working at CORE Headquarter. Respondent No. 5 is asked to look after the work at Jaipur while Applicant is transferred to raj to better utilize his services, cannot be said prayag to be violative of the rights of the applicant. It is further pointed out that Applicant is a cancer patient since 9012 and when he was posted at Allahabad or agra he never objected to his transfer and posting since 2012 till the filing of the present O.A. Official respondents had considered his case and had allowed him to join at Jaipur because of vacancy at Jaipur, but OA No. 159/2021 with MA No. 398/2021 due to non availability of vacancy of senior scale officer at Jaipur, he was again transferred to Allahabad/Prayagraj, which cannot be said to be illegal or violative of his rights. Thus, official respondents state that there is no illegality in the action of the respondents and the O.A. deserves to be dismissed.
4. Applicant has filed rejoinder denying the contentions of the official respondents. He further stated that as Per letter dated 05.02.2021, it Is clear that the transfer of the Applicant is periodical transfer because as per conditions mentioned in letter dated 18.08.2020, 4 years conditions is required for periodical transfer and Respondents have clearly violated the provisions of the said letter and, thus, his transfer !S not sustainable in eyes of law. In fact, the transfer of the Applicant is not a routine transfer because 4s per letter dated 08.09.2021 issued by the official respondents, it states that irregularities of working were pointed out and he was asked to improve his working skill and so this was the basis of his transfer order dated 20.01.2021, but he was neither given any warning nor any show cause notice was given to improve his skills. Thus, present transfer is not a routine transfer but a punishment which is OA No. 159/2021 with MA No. 398/2021 awarded by the Railway Administration, therefore, the action of the official respondents is not sustainable in the eyes of law. Applicant has relied on the judgment of the Hon'ble Apex Court passed in the case of h Tiwari vs- Union of India & Ors., wherein ved that transfer order passed in lieu ment is liable to be set aside being wholly illegal. Also giving additional work to respondent No. allowance will have to be paid and the een made only to accommodate No. 9- In fact there are no administrative ing out transfer in the case of the d there are many employees who are ing for more than 4 years but he is only and is transferred after completion of 3 Thus, the present transfer order dated and relieving order dated 01.02.2021 in
a) official respondents filed Addl. Affidavit in reply to wards the rejoinder submitted by the applicant stating that the representation of the applicant dated 95.01. 2021 was decided with communication to him vide letter dated 50.02.2021 yet the Applicant failed 9 to report for duties rather went on_ preferring representations after representations. Applicant is alleging about the transfer not being a routine one but it is by way of punishment. In fact, the Applicant while working aS Senior Material Manager, Railway Electrification Jaipur was found not to be acting as per procedure in issuing purchase orders by the vigilance department. He was, therefore, counseled vide letter dated 19.06.2020, (Annexure R/1), to be careful in future while dealing with such matters. But he failed to follow the same and to stop the irregularities in making the purchase, therefore, he was again instructed by vigilance department vide letter dated 04.12.2020 and 29.12.2020. However, due to transfer Shri B.B. Kalra and due to non availability of senior scale officer at CORE Headquarter and due to administrative exigency, applicant was transferred vide order dated 20.01.2021. In CORE Headquarter, there are two posts of Senior Material Manager and due to non-joining of Applicant, there is no Senior material Manager which is causing undue delay in completion of electrification projects and, thus, loss to Railways. Applicant is transferred due to administrative exigency.
10 OA No. 4159/2021 with MA No. 398/2021
b) The applicant preferred O0.A. followed by DB Civil writ Petition No. 616/2021 wherein Hon''ble High Court vide order dated 27.05.2021 has stayed the operation of order dated 20.01.2021 and the same is still continuing because Of the order of the Hon''ble High Court dated 26.07.2021. As the vigilance department has found action of applicant in purchasing as irregular and in contravention of the procedure the purpose, therefore, official hile complying with the directions of the have passed orders dated Annexure R/4) directing that all purchase of RE/Jaipur project be performed by SMM/RE/JU terial Manager Jodhpur). Applicant being ded by the order dated 18.08.2021 has made a tion dated 21. 08.2021 which was replied ents further state that merely because they respond have constantly advised the applicant to stop wreguiarities in purchase activities, cannot make the transfer 4° punitive. The Hon'ble Apex Court in the case of Rajendra Singh & Ors. vs. State of UP & ors. reported in 2009 (15) SCC 178 as well as in the case of Shilpi Bose vs. State of Bihar, has held that the scope of judicial review in transfer matters is VErTy I OA No. 159/2021 with MA No. 398/2021 limited and the Courts should not interfere with a transfer order, which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rules or on the grounds of malafides. A government servant holding @ transferable post has no vested right to remain posted at a particular place, he is liable to be posted from one place to other and courts should not ordinarily interfere in such orders. If Courts interfere in day to day transfer orders issued by Government and its subordinate authorities, there will be complete chaos In the administration which would not be public interest. It has also been held that ple High Court has overlooked these aspects interfering with the transfer orders. A bare of the transfer order would make it clear that applicant has been transferred due to the aamministratlve exigency and, thus, any challenge to the came would be unjust and illegal. On the other nand, the Applicant should be directed to report to duties immediately without any delay. Thus, the present 0.A. deserves to be dismissed as the applicant ig not entitled for any relief.
cea epar niet ttt OA No. 159/2021 with MA No. 398/202)
6. The official respondents have also filed M.A. No. 398/2021 praying for taking on record copy of order dated 27.05.2021 (Annexure MA/1) and copy of order dated 26.07.2021 (Annexure MA/2) passed by the Hon''ble High Court of Rajasthan, Jaipur Bench in DB civil Writ Petition No. 6161/2021 (Kaila Sahai Meena ys. UOI & Ors.). It is seen that the Hon'ble High Court had stayed the operation of orders dated 20.01.2021 and 01.02.2021 vide interim order dated 27.05.2021. Thereafter, vide order dated 26.07.2021, It has been opserved that "however, since the interim order ig Court is operating for last two months, ose of the writ petition with direction to the tribunal t° consider the prayer of the petitioner for grant of interim relief expeditiously, preferably within qa period of one month. The interim order passed by inue till disposal of the prayer for ief by the CAT. Needless to say that the prayer for interim relief shall be considered by the tribunal after due examination of merit, without being wafluenced by the grant of interim relief by this Court and its continuation pending disposal of the stay application before it."
in view of the above position, the copies of order dated 27.05.2021 and order dated 26.07.2021 passed by the Hon'ble High Court are taken on record. Accordingly, M.A. No. 398/2021 is allowed.
7. Heard learned counsels for parties. By their consent, the matter is heard finally since pleadings are complete. We have also examined the material available on record including judgments cited by the pa rties.-
g. The applicant besides reiterating his submissions as made earlier further stated that the he had been transferred on 21.09.2017 from Northern Central railway to SGMM/RE/Jaipur vice Shri R.K. Meena Le.
5. The said transfer is carried out with intention only to accommodate respondent 5 as ne ig given additional charge of Jaipur and he given TA/DA though the applicant has carried out his work satisfactorily. The applicant has hardly completed three years in Jaipur and, thus, he has been transferred in an arbitrary manner. As per Railway Board Circular RBE No. 65/2020 dated 97.08.2020, periodical transfers have been cancelled i] 31-03-2021 and by RBE No. 25/2021 dated 31.03.2021, the same have been extended till OA No. 159/2021 with MA No. 398/202) 30.06.2021. But the Railway Administration has not considered his representation and rejected the same stating that the transfer of the Applicant has been done prior to RBE No. 25/2021 but transfer of the Applicant has been issued on 20.01.2021 which is in violation of RBE No. 65/2020 whereby periodical transfers were cancelled till 31.03.2021. Therefore, the present transfer order deserves to be quashed and set aside. He is constantly taking treatment for cancer in Jaipur and official respondents have not considered his medical ground. There are no administrative reasons in the present transfer order and relieving order. since he is at present sick, he has not handed ver charge and though being a sensitive post no O handing over and taking of charge is passed and behind his back, respondent No. 4 has issued relieving order and, thus, relieving order is not sustainable and deserves 0 be quashed.
g, The official respondents too reiterated the submissions made earlier and further stated that applicant is not transferred because of completion of his tenure but it is due to administrative exigency at CORE Headquarter and, therefore, he has no right to continue at the place of his choice and the same does OA No. 159/2021 with MA No. 398/2021 not entitle the applicant to continue at the same place i.e. Jaipur. Even earlier official respondents had obliged by posting the applicant at the place of his choice at Kota in the year 2013 and also at Jaipur in the year 2017. Only additional charge has been given dent No. 5 and, therefore, Applicant cannot to respon allege the ground of malice. It was further stated that periodical transfers of officers working in sensitive posts is 4 routine exercise only to refresh the administration but Applicant has been transferred as there is no Gazetted Officer i.e. Senior Material Manager at Allahabad and the project at Jaipur is nearly on the verge of completion and, thus, there is no justification to retain a Gazetted Officer at Jaipur. pandemic cannot be a ground to impede the process of working: It had only restricted routine exercise to avoid inconvenience. Applicant was transferred vide order dated 2 2021. He was very well aware of the said 0.01.2021 and he represented on 25.01.
eransfer but apprehending his relieving order, he went on sick without waiting for the outcome of. his representation. The respondent No. 5 joined and relieved the applicant, which was disclosed to the applicant when his representation was rejected vide order dated 05.02.2021, yet Applicant failed to report 16 OA No. 4159/2021 with MA No. 398/2021 to duties rather preferred the present O.A. Thus, as the action of official respondents is just and proper, the transfer order cannot be interfered.
10. The question which requires consideration Is whether the applicant deserves to be retained at Jaipur in spite of administrative exigency and whether the transfer order can be interfered with when the same iS a5 per rules.
the case is that the applicant the transfer order dated 20.01.2021 ich he has been transferred to CORE/PRY? from SMM/RE/Jaipur. He has also the relieving order dated 01.02.2021 y. It is the claim of the Applicant that he e to the present place at Jaipur only in the cording to him, during the pandemic, periodical transfers due to RBE No. 65/2020 dated 7th august 2020 as well as RBE No. 25/2021 dated 31.03: 2021 by which the unimplemented periodical transfers orders of the staff working on sensitive posts be reviewed and pended till 31.07.2020 and then till 31.03.2021 due to the extra ordinary situation created the andemic COVID-
by P D-19. He has raised other QA No. 159/2021 with MA No. 398/2021 ground of he being sick and suffering from cancer and taking medical treatment in Jaipur. Also his other ground rotates On the fact that the present transfer order is issued merely to accommodate respondent No. 5 and that there Is N° administrative exigency and o. 5 will get TA/DA and that instead the transfer order issued Is arbitrary, in the eyes of law and, e same deserves to be quashed and set the transfer order dated 20.01.2021 is administrative exigency as there Is no d officer at CORE Headquarter, Prayagraj. As resent transfer is concerned, the same y malice as respondent No. 5 is only additional charge. Also the work at Jaipur given ect is nearly on the verge of completion as per the proj njeadin9® made and, therefore, it is to be left to the employer to decide as to who should work at which place: as wheels of the administration have to eunction- With regard to the ground of periodical transfer the question of the same cannot arise in lieu OA No. 159/2021 with MA No. 398/2021 of administrative exigency as it is clear that during pandemic-COVID-19, unnecessary transfers be avoided but that does not mean that transfers cannot be effected In public interest and in administrative Coming to the r and, therefore, he should be exigencies. ground of he being ring from Cance d at Jaipur. Towards this ground, it is accommodate ffering from Canter since
-espondent-department has sympathy nd it is for the same reason he was n there was a vacancy in the year d when there was a vacancy in the at does not mean that the possible, the Department has tried to AS far im at his choice places but when there wnistrative requirement he cannot avoid the nd show that he is sick. After receipt of ated 20.01.2021, he filed a4 cum mbent ig about to join, went on leave and did not bother © get himself relieved and did not hand o ver e to the joining incumbent.
_ charg Also the ground that i "respondent No. 5 will get TA/DA for which he sh oon > should
i) not bother as the official respondents will very well take care of the same. Thus, none of the grounds raised by the applicant are sustainable in the eyes of law. Therefore, We do not find violation of any rules by the official respondents nor that the present transfer order Is arbitrary:
13. AS observed by the Lon'ble Apex Court in catena of judgments namely; State of M.P. & Ors. VS. Sri. s.S Kourav & Ors., reported in (1995) 1 SCSLJ 350 ; National Hydro Electric Power Corporation Ltd.
vs shri Bhagwan, reported in (2001) 2 SCSI 396 ; state of U.P. & Ors. VS. Gobardhan Lal, reported in (2005) SCC (L&S) 55; that Courts or Tribunals are not Appellate Forums to decide on transfer of officers on administrative grounds. The same cannot be wntervened unless it is passed by any incompetent authority or passed in colourable exercise of power or that the same is punitive or that there is violation of statutory provisions. Transfer in public interest cannot be dubbed as a punishment. Thus, as observed in catena of judgments, interference in transfer order is in excess Of jurisdiction and improper exercise of judicial power and in breach of settled principles and precedents consistently enunciated and followed by SS 2l the Hon'bl e Supre with the j d me Court. We ymen's relied by the offi agreement icial re spond ents that sco oP pe of judicial review i d.
14. In view of the observations mad ade h erein-
above we are of the opi opinion that the impug ned tra dated 20 01 01,202 1, (Annexure A/1 : ), as well a S i order dated 01.02.2021, (A jus an proper and d , (Annexure A ve the sviinal A ° not deserve any inte /9), are devoid of pplication filed by th nerence
- any merits, the same d e applicant is a ee Original sonics to be No order as to costs. | plication is view of the O A. .
being dismissed ' it is m ade
15. In t the interim O rder dated 27.05 05.2021 passed clear tha the Hon t now exist i in vie w of further ord ated 'ble High C ourt of Rajasthan, Jai
- ipur Be nch does no 36.07-2077 passed ) , by the Hon'bl rajast an whereby i e Hi der passed it had been obse ah Court of order sed shall conti rved ontinue till disp that interim osal of the Prayer m relief / sta Y application by th is Tribu nal.
for inter te cuay ® JUDICIAL MEMBER (pr N SHARM ISTRATIVE MEM =-MBER jake