Central Administrative Tribunal - Madras
L. Viswanathan vs Union Of India (Uoi) And Ors. on 15 December, 2006
Equivalent citations: 2007(3)SLJ245(CAT)
ORDER
P. Shanmugam, Vice Chairman
1. The applicant has prayed for the following reliefs:
to call for the records related to fixation of basic pay of the applicant with respect to Railway Board's order under Rule 226 of the Indian Railway Establishment Code on his transfer from South Central Railway to Southern Railway at personal request vide U/P/524/II/SM/Fix. of Pay/Vol.VI dated 31.07.01 and to quash that concerned to the applicant and further to direct the respondents to fix the basic pay of the applicant at Rs. 6550 with effect from 17.07.2000 in the scale of pay Rs. 5500-9000 with consequential benefits and to pass such other order/orders as this Hon'ble Tribunal may deem fit and proper and thus render justice.
2. The brief facts of the case are as follows:
The applicant was initially appointed as Assistant Station Master in Hubli Division of the South Central Railway. He was promoted as Station Master Grade II in the scale of Rs. 1600-2660/5500-9000 (IV/V CPC recommendation respectively w.e.f. 26.8.1997. While working so, the applicant submitted an application dated 10.2.1999 for inter-railway/inter divisional one-way transfer from Hubli Division of South Central Railway to Madurai Division of Southern Railway. The applicant submitted a declaration to the effect that he will rank junior to all permanent/officiating and temporary Assistant Station Masters in the scale of Rs. 1200-2040 in Southern Railway on the date of his joining the new seniority unit. Sanction was accorded by the third respondent by order dated 18.2.2000 for the request of 39 employees, of which, the applicant was one among them (Annexure R2). One of the condition governing the said inter railway transfer set out in the said order was to the effect that he will rank junior most to all employees in the scale of Rs. 4500-7000 on the date of joining the new seniority unit. Based on this transfer order, the Divisional Railway Manager, Hubli issued an office order T/40-2000 dated 19.6.2000 (Annexure R3) indicating that the Competent Authority sanctioned the request transfer of the applicant alongwith 16 others to the Division of Southern Railway on reversion as Assistant Station Masters in the scale Rs. 4500-7000 on bottom seniority. Conditions are set out in the said order and copies were marked to the employees concerned. Pursuant to the above, the applicant joined Madurai Division as Assistant Station Master in the scale of Rs. 4500-7000 on 17.7.2000 and his pay was fixed at Rs. 6500 + 50 P.P., in the scale of Rs. 4500-7000 (Annexure Al) dated 31.7.2001. The applicant made representation dated 10.8.2001 requesting that his basic pay ought to have been fixed at Rs. 6550 in the scale of pay of Rs. 5500-9000 with reference to the Railway Ministry's decision under Rule 226 of the Indian Railway Establishment Code (IREC) and Note under Para 312 of the Indian Railway Establishment Manual (IREM). However, the respondents have failed to act on the representation and hence the applicant preferred another representation dated 25.11.2004. On the respondents failure to act on the request, the above O.A. came to be filed.
3. The submissions made by the learned Counsel on behalf of the applicant are summarised as follows:
(a) The respondents have failed to protect the applicant's basic pay in the scale of Rs. 5500-9000 which is a relevant grade and the said failure is contrary to the Railway Board's order under Rule 226 of the IREC and Para 312 of the IREM.
(b) The failure to protect the scale of pay is violative of Rule 123 and 229 of the IREC.
(c) The respondents have failed to grant similar treatment given in favour of one Mr. Vaseegaran and Shri M. Sankaravadivelu.
(d) The matter is covered by the decisions of the Hon'ble High Court in W.P. 16172 of 1996 and etc., batch dated 8.6.2005 and W.P. 16562 of 2005 and etc., batch dated 7.11.2005.
4. The submissions made by the learned Counsel Mr. D. Simon on behalf of the respondents are as follows:
(a) The original application is clearly time barred and hit by laches.
(b) The applicant had given a declaration along with his application dated 10.2.1999 that he will rank junior in the Assistant Station Master grade.
(c) The General Manager, Southern, Railway accorded sanction for transfer of the applicant as Assistant Station Master in his office order dated 10.2.2000 clearly indicating that he will rank junior most to all employees in the Assistant Station Master grade followed by the office order of the Division Railway Manager, Hubli, ordering reversion of the applicant as Assistant Station Master. The applicant had joined as Assistant' Station Master on 17.7.2000. All these orders have become final and had not been challenged at any stage till date.
(d) The applicant is estopped from questioning his reversion and transfer.
(e) The pay of the applicant at Rs. 6500 + 50 PP which he was drawing at Hubli Division is duly protected as his last pay drawn.
(f) The applicant cannot be permitted to affect the promotional prospects of the existing employees of the Madurai Division by transfer as Station Master Grade II.
(g) The Note under Para 312 of the IREM enables the Railways to consider the request transfer of the applicant to any of the grades where there is an element of direct recruitment since the applicant has no right to claim transfer.
(h) The transferee should possess the relevant educational qualifications laid down for direct recruitment to the relevant post.
(i) The judgments referred to by the learned Counsel for the applicant in support of his case are hot similar and are distinguishable on facts.
5. We have considered the rival submissions.
6. In the light of the pleadings, the question that arises for consideration are as follows:
(a) Whether the O.A. is filed within the period of limitation?
(b) Whether the applicant is estopped from questioning the order of reversion?
(c) Whether the applicant is entitled for protection of scale of pay of Rs. 5500-9000?
Limitation:
7. The applicant in his prayer has sought for quashing the pay fixation order and to fix his pay in the scale of Rs. 5500-9000. However, the applicant, finding no response, made another representation on 25.11.2004. The O.A. is filed on 2.2.2006. The main submission of the applicant is that the pay fixation order dated 31.7.2001 can be questioned at any time, at any stage, since it affects him monetarily and cause of action arises every month. If this pay fixation is not with reference to the applicant's reversion as Assistant Station Master, the applicant's submissions can be accepted. But in this case, it is seen that on the basis of the applicant's request for transfer dated 10.2.1999 with a declaration that he would rank junior in the ASM Scale of 1200-2040, two orders were passed- one dated 18.2.2000 by the General Manager, Southern Railway and another dated 19.6.2000 by the DRM, Hubli. A copy in respect of the second order which has been furnished to the applicant clearly stipulates as follows:
(a) The above staff stands reverted to the scale of Rs. 4500-7000 (RP) from the date they join the respective Divisions.
(b) ...
(c) They will rank junior most to all permanent and temporary ASMs in the scale Rs. 4500-7000(RP) on the date of joining in the new seniority unit of Southern Railway.
8. The applicant in pursuance of these sanctioned orders, joined Madurai Division as ASM on 17.7.2000. Therefore, the cause of action as against reversion has arisen on the date of passing of the order of reversion and his joining as ASM at Madurai Division on 17.7.2000 in the reverted post. The consequent pay fixation was made on 31.7.2001. Having objected to the fixation of pay in the ASM scale, he has made a representation on 10.8.2001. In this context, it is to be seen that the applicant is one among 39 employees transferred vide order dated 18.2.2000. He is also one among 16 employees reverted and transferred to the Madurai Division. The applicant having secured transfer to his preferred Division and having accepted the reversion and his reversion having been considered favourably by the respondents and orders issued to that effect and the applicant having joined the reverted place, did not question the said reversion order dated 19.6.2000 at any point of time. But for the reversion order passed by the DRM, Hubli, the applicant could not have been transferred to Southern Railway. Even in this O.A., the applicant only seeks fixation of pay in the scale of Rs. 5500-9000 which is possible only if reversion order is set aside. Therefore, the application should have been filed immediately on finding that there was no response to his representation dated 10.8.2001. The O.A. on this ground has to be held as barred by limitation provided under Section 21 of the Administrative Tribunals Act, 1985.
9. Section 21 of the Administrative Tribunals Act, 1985 prescribes a period of limitation. In this case, the order of reversion is dated 19.6.2000 and the consequent order of fixation of pay is dated 31.7.2001. The representation as against fixation of pay is dated 10.8.2001. As a matter of fact, the cause of action in this case has arisen from 19.6.2000 i.e., the date of his reversion which has become final and if that is reckoned, there is a delay of six years, Assuming for the sake of argument, the consequential order of pay fixation is dated 31.7,2001 and his representation dated 10,8,2001 is taken into account, the O.A. ought to have been filed on or before February 2003, i.e. 11/2 years back from the date of representation. The applicant has neither given any reason for the delay nor filed an application for condonation of delay.
10. In Jacob Abraham and Ors. v. Union of India and Ors. 1994 (28) ATC (FB) 177, the Full Bench of this Tribunal at Emakulam has taken a view that a belated claim has to be rejected on the ground of laches. The Full Bench held has follows:
12. During the course of argument, respondents stated that the claim of the applicants was barred by limitation. The burden of proof to show that they satisfy Section 21 of the Administrative Tribunals Act, is on the applicants. The pleadings do not give any material in this behalf apart from the bald statement that the application is within the time. In this case, the claim relates to 1984. There are laches on the part of the applicants. The applicants would have it that because of the various decision of the Tribunal spread over a number of years, the law of limitation should not be applied against them. But other decision in similar cases cannot give a fresh cause of action and the period must be counted from 1984 for purposes of limitation. A large number of decisions were cited. We would notice in this connection, Bhoop Singh v. Union of India, it is stated at page 1416:
It is expected of a Government servant who has a legitimate claim to approach the Court for the relief he seeks within a reasonable period, assuming no fixed period of limitation applies. This is necessary to avoid dislocating the administrative set-up after it has been functioning on a certain basis for years. During the interregnum those who have been working gain more experience and acquire rights which cannot be defeated casually by collateral entry of a person at a higher point without the benefit of actual experience during the period of his absence when he chose to remain silent for years before making the claim. Apart from the consequential benefits of reinstatement without actually working, the impact on the administrative set-up and on other employees is a strong reason to decline consideration of a stale claim unless the delay is satisfactorily explained and is not attributable to the claimant. This is a material fact to be given due weight while considering the argument of discrimination....
There is another aspect of the matter. Inordinate and unexplained delay or laches is by itself a ground to refuse to the petitioner, irrespective of the merit of his claim.... Article 14 or the principle of non-discrimination is an equitable principle and, therefore, any relief claimed on that basis must itself be founded on equity and not be alien to that concept.
(Emphasis supplied).
The claim of the applicants is liable to be dismissed on this ground also.
13. It may also be noted that if relief is granted according to the orders of 13.3.1984, actual benefit would have to be allowed with effect from 1.11.1985. This would lead to a large expenditure. The invisible tax-payer is not a party before us. In a recent case, the Supreme Court has cautioned against allowing claims which have large retrospective effect. In Shri Malaprabha Coop. Sugar Factory Ltd. v. Union of India, the following passage occurring at page 294 of Judicial Remedies in Public Law by Clive Lewis is quoted:
The Courts now recognise that the impact on the administration is relevant in the exercise of their remedial jurisdiction. Quashing decision may impose heavy administrative burdens on the administration, divert resources towards reopening decisions, and lead to increased and unbudgeted expenditure. Earlier cases took the robust line that the law had to be observed, and the decision invalidated whatever the administration inconvenience caused. The Courts nowadays recognise that such an approach is not always appropriate and may not be in the wider public interest. The effect of the administrative process is relevant to the Courts' remedial discretion and may prove decisive.
11. If the case of the applicant has to be accepted, he has to be posted as Station Master in that scale with effect from the date of his reversion. As observed earlier by the Hon'ble Supreme Court in Bhoop Singh's case (supra), apart from the consequential benefits and restoration without actually working, the impact on the administration set up on other employees is a strong reason to decline consideration of a stale claim unless the delay is satisfactorily explained and is not attritubutable to the claimant.
12. In Ex-Capt. Harish Uppal v. Union of India 1994(2) SLJ 177, Their Lordships of the Hon'ble Supreme Court while observing that it is well within the policy of law that the parties should agitate their rights and remedies promptly and not sleep over their rights, held as follows:
The petitioner sought to contend that because of laches on his part, no third party rights have intervened and that by granting relief to the petition no other person's rights are going to be affected. He also cited certain decisions to that effect. This plea ignores the fact that the said consideration is only of the considerations which the Court will take into account while determining whether a writ petition suffers from laches. It is not the only consideration. It is a well-settled policy of law that the parties should agitate their rights and remedies promptly and not sleep over their rights. If they choose to sleep over their rights and remedies from an inordinately long time, the Court may well choose to decline to interfere in its discretionary jurisdiction under Article 226 of the Constitution of India and this is what precisely the Delhi High Court has done. We cannot say that the High Court was not entitled to say so in its discretion.
For all these reasons, we hold that the first question against the applicant in this 0. A. is liable to be rejected on the ground of limitation.
Estoppel:
13. The applicant in his own declaration made along with his application (Annexure R1) has stated as follows:
I would rank junior to all juniors and officiating and temporary ASMs in scale of Rs. 1200-2040 (RSRP) in Southern Railway on the date of their joining in the new seniority unit.
14. On the basis of this application and declaration, the General Manager, Southern Railway, accorded sanction for transfer of the applicant as Assistant Station Master against the vacancies falling under direct recruitment quota. The applicant is one of the 39 persons so transferred. The office order No. T/40/2000 dated 19.6.2000 was issued by the DRM, Hubli reverting the applicant as ASM on bottom seniority and informing the sanction of the Competent Authority. The order dated 19.6.2006 specifically states as follows:
Sanction of the Competent Authority is hereby communicated for Inter-Railway Request Transfer of the following SMs in grade Rs. 5500-9000 (RP)/Rs. 5000-8000 (RP) of this Division to the Divisions of Southern Railway shown against each on reversion as ASMs in scale Rs, 4500-7000 (RP) on bottom seniority:
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Sl. Staff S.R. Name Present Divn. allotted No. No. No. (S. Shri) Desgn/Stn/Scale in S.Rly.
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01 ...........................
02 ...........................
11. HTS-4089 V-209B. Vijayan SM/CNR/5000-8000 MDU 12 ...........................
13 ...........................
17 ...........................
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15. From the above it is clear that the applicants 'stand reverted' to the scale of Rs. 4500-7000 (RP) from the date they join their respective Divisions. These declaration and orders are not in dispute. The applicant has not disclosed the order of reversion and has chosen to challenge only the consequent fixation of pay.
16. The conditions set out in the order dated 1,9.6.2000 are as follows:
(a) The above staff stand reverted to scale Rs. 4500-7000 (RP) from the date they join the respective divisions. They pay fixation on reversion will be done by respective divisions.
(b) They will not seek re-transfer to their parent unit/divn./Railway at a later date.
(c) They will rank Junior-most to all permanent/temporary ASMs in scale Rs. 4500-7000 (RP) on the date of joining in the new seniority unit of Southern Rly./Divisions.
(d) They will not claim for allotment of Rly. Qtrs. on out of turn basis.
(e) They are not eligible for any transfer benefit as the transfers are ordered at their own request.
(f) They should be free from DAR/SPE/VIG cases on the date of relief,
(g) They should vacate Rly. Qtrs, if in occupation and hand over all Railway materials if any in their possession before carrying out the transfer.
Concerned SSs/TIs have to ensure that the relief letter should bear specimen signature and passport photograph of the employee duly attested by concerned SS. Employee should also bring 2 unsigned passport size photographs to this office to issue bearer/identification letter.
They should report to this office on relief to obtain bearer letter/identification letter.
(This has the approval of the Competent Authority).
17; The transfer order dated 18.2.2000 reads as follows:
Transfer is accorded for Inter Railway transfer of the following Assistant Station Masters to various divisions in Southern Railway at their request as indicated against the vacancies falling under direct recruitment quota subject to the usual conditions:
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Sl. Name Designation/ Division to Remarks No. S/Shri/Smt/Kum Station which transferred
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1. R. Giriprakash ASM/UBL MAS
2. ...........................
3. ...........................
20. M.S. Pandian ASM/UBL MDU
21. P. Karikalan ASM/UBL MDU
22. L. Viswanathan ASM/UBL MDU
23. B. Vijayan ASM/UBL MDU
24. ...........................
25. ...........................
39. ...........................
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18. The conditions governing the Inter Railway transfer reads as follows:
(i) They will rank junior most to all employees in scale Rs. 4500-7000 (RPS) on the date of their joining the new seniority Unit.
(ii) They are not eligible for joining time, transfer grant transfer passes etc., as the transfer are ordered at their own request.
(iii) There are no DAR/SPE/Vig. cases pending against the employees on the date of their relief.
(iv) The actual date of relief and joining duty may be advised to this office.
(v) The abovenamed employees shall be relieved with directions to report to respective DRMs as indicated against each:
This has the approval of the Competent Authority.
19. In the instant case, the applicant was designated as Assistant Station Master (ASM) and following the conditions governing the inter Railway transfer, he was placed junior most in the ASM scale of Rs. 5500-7000. Therefore, there is no ambiguity in the clear conditions and orders passed by the respondents i.e., the applicant was reverted from the post of Station Master to the post of Assistant Station Master and thereafter he was transferred.
20. The specific case of the respondents is that the request of the applicant even to a lower grade was accepted to obviate the hardship of the applicant working in far-away Division, away from his native place and take the enabling provision and at the same time not to affect the promotional prospects of the existing employees of the Madurai Division and the applicant's own request to come on transfer on reversion as ASM. His request was favourably considered to his preferable Division. The applicant was ready to abide by the condition of reversion. After having joined, the applicant sought for fixation of pay in the scale of Rs. 5500-9000 available to Station Master Grade II. The applicant is, therefore, estopped from going back on his declaration and acting on the sanction order and accepting and joining the Madurai Division on 17.7.2000. Therefore, we find that the applicant cannot be permitted to go back from his initial request and acceptance of reversion order dated 19.6.2000. The respondents have acted on the basis of the representation of the applicant and the applicant cannot be permitted to resile from the same. As indicated earlier, the applicant is not questioning the reversion order but accepted and working in the reverted post from the year 2000. He cannot indirectly challenge the reversion order by assailing the consequent pay fixation.
21. The Hon'ble Supreme Court in Comptroller and Auditor General of India v. Farid Sattar 2000 SCC (L&S) 440, in somewhat similar case held that a person is bound by the terms and conditions of transfer. In that case, the respondent joined as Auditor in the office of the Accountant General (A&E), West Bengal. He was promoted to the post of Senior Accountant. He applied for mutual transfer to the Accountant General's Office, Sikkim. As mutual transfer was not permissible in the cadre of Senior Accountant, the officer was advised to apply for the unilateral transfer after seeking reversion to the lower post of Accountant as a direct recruit. He applied accordingly and was permitted to take such transfer on certain terms and conditions. Prior to his transfer, he was drawing salary of Rs. 1560 p.m. in the pay scale of Rs. 1400-2600 as Senior Accountant. The question that arose for consideration in that case was whether the officer was entitled to protection of pay consequent to his unilateral transfer as Accountant in the pay scale of Rs. 1200-2040. The Central Administrative Tribunal allowed the application in favour of the officer. The appeal filed by the Department was allowed by the Hon'ble Supreme Court holding that the terms and conditions provided that the respondents on transfer, could be appointed to a post which is lower to the pre transfer post and taking into consideration other relevant factors, the Hon'ble Supreme Court held that the pay of the officers had to be fixed with reference to the lower pay scale and not with reference to the pay drawn by him in the higher post.
22. The distinguishing feature in this case is that the applicant was not directed to submit his technical resignation, whereas, there is an order of reversion in our case. In all other respects, the terms and conditions of transfer remained the same. In our view, the above judgment squarely applies to the facts of the present case against the applicant.
23(a). Their Lordships of the Hon'ble Supreme Court in BSNL and Ors. v. Subash Chandra Kanchan and Anr. , while observing that the legal right possessed by a person, if waived, cannot be enforced, held as follows:
A person may have a legal right and if the same is waived, enforcement thereof cannot be insisted.
23(b). In Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel. Their Lordships of the Hon'ble Supreme Court while dealing with the principle of waiver, held as follows:
73. ...
74. The term 'waiver' is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct.... A person who is entitled to rely on a stipulation, existing for his benefit alone, in a contract or of a statutory provision, may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent, and the fact that the other party has acted on it is sufficient consideration....
It seems that, in general, where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, so as to alter his position, the party who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relationship as if no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he has himself so introduced, even though it is not supported in point of law by any consideration. (See Halsbury's Laws of England, 4th Edn., Vol. 16, Para 1471.) 23(c). In Indu Shekar Singh v. State of U.P. , the Hon'ble Supreme Court held that once option is exercised and they obtained entry on that basis, they cannot be allowed to turn round and contend that the conditions are illegal. Their Lordships held as follows:
26. They, therefore, exercised their right of option. Once they obtained entry on the basis of election, they cannot be allowed to turn round and contend that the conditions are illegal.
Transfer to Relevant Grade:
24. The relevant rule relating to transfer is governed by Rules 226 and 229 of the IREC (Vol.1) which reads as follows:
Rule 226: Transfers: Ordinarily, a railway servant shall be employed throughout his service on the Railway or Railway establishment to which he is posted on first appointment and shall have no claim as of right for transfer to another Railway or another establishment. In the exigencies of service, however, it shall be open to the President to transfer the railway servant to any other department or Railway or Railway establishment including project in or out of India. In regard to Group C and Group D Railway servants, the power of the President under this rule in respect of transfer, within India may be exercised by the General Manager or by a lower authority to whom the power may be redelegated.
Railway Ministry's decision:-Requests from Railway servants in Group C and D for transfer from one railway to another on grounds of special cases of hardships may be considered favourably by the Railway Administration. SKc/i staff transferred at their request from one railway to another shall be placed below all existing confirmed and officiating staff in the relevant grade in the promotion group in the new establishment, irrespective of date of confirmation or length of officiating service of the transferred employees.
Rule 229: Transfer on request'.- Transfers ordered in the interest of employees shall be within the same seniority group or different group or a mutual exchange. If such transfers are within the same seniority group under the same railway the seniority is not affected and if the transfer are inter-divisional or outside the seniority group, the Railway Ministry's decision below Rule 226 for inter-railway transfers shall apply.
25. The relevant grade has been explained in Para 312 of the IREM which reads as follows:
312. Transfer on Request : The seniority of railway servants transferred at their own request from one railway to another should be allotted below that of the existing confirmed, temporary and officiating railway servants in the relevant grade in the promotion group in the new establishment irrespective of the date of confirmation or length of officiating or temporary service of the transferred railway servants.
NOTES:
(i) This applies also to cases of transfer on request from one cadre/division to another cadre/division on the same railway.
[Rly.Bd. No. E(NG) 1-85 SR 6/14 of 21.1.1986].
(ii) The Expression "relevant grade" applies to grade where there is an element of direct recruitment. Transfers on request from Railway employees working in such grades may be accepted in such grades. No such transfers should be allowed in the intermediate grades in which all the posts are filled entirely by promotion of staff from the lower grade (s) and there is no element of direct recruitment.
[No. E(NG) 1-69, ST6/15, dated 24.6.1969) ACS-14].
26. It is not in dispute that the transfer cannot be claimed as a matter of right. However, his request for transfer from one Railway to another was considered on grounds of special cases of hardship. While so transferred, they must be placed below all existing staff in the relevant grade in the promotion group in the new establishment. In this case, the respondents have reverted the applicant as Assistant Station Master and transferred thereafter. The said Assistant Station Master grade has an element of direct recruitment. It is open to the respondents to consider the request of the applicant either in the grade of Station Master or in the grade of Assistant Station Master. In the case of Station Master Grade II, there is an element of direct recruitment only to the extent of 15% and the said recruitment has to be conducted by the Railway Recruitment Board from open market. In the grade of Assistant Station Master also, there is an element of direct recruitment to certain percentage. We are "unable to find out from Para 312 of the IREM that the applicant should be considered for transfer in the same grade only. As pointed out by the learned Counsel for the respondents that the General Manager, Southern Railway accorded sanction in reference to 39 candidates for the vacancies falling under direct recruitment in the grade of Assistant Station Master as per Annexure R2 Office Order dated 18.2.2000. The question whether there was any vacancy available in the same grade did not arise for consideration since the applicant had given a declaration requesting him to transfer on a lower grade. In any event, as pointed out by the learned Counsel for the respondents, transfer can be considered in both the grades depending upon the vacancies in the relevant grade and there is no obligation that the applicant should have been considered only in the same grade. The question is now academic. Had the applicant requested for transfer on the same grade, the same would have been considered by the General Manager, Southern Railway in the year 2000 itself. On the contrary, the request of the applicant was for a lower grade and on the basis of vacancy, it was accepted. The respondents have justified in providing an opportunity to the applicant to exercise his option accepting the bottom most seniority construing it as the relevant grade. We do not find any illegality in such a construction.
27. The pay of the applicant has been fixed at Rs. 6500 though in a lower grade of Rs. 4500-7000, thereby protecting his last pay drawn. It is true that his scale was not protected since the respondents proceeded on the basis that the applicant has requested for transfer on reversion and acted on orders on that basis. There is no provision for voluntary reversion except on terms and conditions accepted by the applicant. The Hon'ble Supreme Court in the case of Comptroller & Auditor General of India and Ors. v. Farid Sattar (supra) has held that neither FR 15 nor FR 15(l)(a)(2) or FR 22(l)(a)(3) is applicable. However, the terms and conditions of transfer on reversion would be acceptable. In that case, their Lordships Held that the officer who joined the lower post is not entitled to the pay protection on the scale of the higher post. As per O.M. dated 1.10.1981, the Government servant is permitted to refuse the promotion and the Appointing Authority can accept the same. Applying the same analogy, the Appointing Authority is empowered to accept the voluntary reversion on the option of the employee, so that, he can be considered for transfer as per the terms and conditions.
28. In O.A. 62/2006 decided by this Tribunal on 10.10.2006, the applicant was working as Goods Driver in the grade of Rs. 5000-8000 in Bangalore Division. At his own request, he was transferred to Chennai Division and his pay was fixed at Rs. 3875 in the scale of Rs. 3050-4590 as Assistant Loco Pilot. After referring to Rule 227 of the IREC and the clarification given by the Railway Board, the O.A. was allowed to the extent of directing the respondents to fix the pay at the maximum of the lower scale of Rs. 3050-4590 at Rs. 4590. The Tribunal accepted the clarification to the effect that when the Government servant seeks transfer to a post from which he was promoted, it will be treated as a case of reversion and his pay will be fixed at a stage what he would have drawn had he not been promoted.
29. In O.A. 61/2006, by order dated 27.9.2006, this Tribunal held that in case of voluntary reversion besides voluntary inter-divisional transfer, the matter will be covered by Rule 1313(l)(a)(3) of IREM (Vol.11). The Railway Ministry's order under Rule 3(3) are as follows:
When appointment to a new post is made on transfer at his request under Rule 227(1)(2) FR 15-A(2) and maximum pay in the time scale of the post is less than the substantive pay in respect of the old post, he will draw the maximum as initial pay.
30(a). The Hon'ble High Court in W.P. 16172/98 etc., batch dated 8.7.1985 was dealing with a case in which the appellant had requested to protect the last pay drawn. In that case, the appellant was working as Station Master Grade III, applied for inter railway request transfer to Southern Railway as Assistant Station Master. The categorical case of the applicant was that his claim for promotion in the scale of Rs. 1400-2300 was not on regular basis. The case of the Railway Administration was that the pay protection was denied on the ground that he had not completed who years in the scale of Rs. 1400-2300 in the parent Division and there was no mention about the reduction in the scale of pay as one of the conditions for transfer in that case. Their Lordships also found that the Central Administrative Tribunal merely applied and followed the decision rendered by the Ernakulam Bench of this Tribunal. The plea of the Railway Administration in that case was that the post of Station Master did not have the element of direct recruitment. The Hon'ble High Court held that there is an element of direct recruitment to the post of Station Master to the extent of 25% and following the judgment of another Division Bench reported in 2002(2) LLN 352, allowed the O.A. The Hon'ble High Court was not dealing with the case of reversion and transfer thereafter. Their Lordships also distinguished the judgment of the Hon'ble Supreme Court in Comptroller & Auditor General of India v. Farid Sattar's case on the ground that there was no condition stipulated for technical resignation.
30(b). Their Lordships of the Hon'ble Supreme Court in the case of Union of India v. Major Bahadur 2006 (6) SCC (L&S) 959, while observing that the Courts should not place reliance on decision without discussing as to how the factual situation fit in with the fact situation of the decision on which reliance is placed, held as follows:
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions tin two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Lord Denning in the matter of applying procedents have become locus classicus:
Each case depends on its own facts and a close similarity between once case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line as case falls, the board resemblance to another case is not at all decisive.
30(c). In C.I.T. v. Sun Engineering Works (P.) Ltd. , Their Lordships of the Hon'ble Supreme Court held as follows:
...A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings.
30(d). In PA. Shah v. State of Gujaraj and Ors. , Their Lordships held that a decision ordinarily is a decision on the case before the Court while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. The Court has to carefully ascertain the true principle laid down in the previous decision. It was held that the scope and authority of precedent should never be expanded unnecessarily beyond the needs of a given situation.
30(e). In Ambia Quarry Works etc. v. State of Gujarat and Ors. , the Hon'ble Supreme Court has held that the ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides and not what logically follow from it.
30(f). In Ashwani Kumar Singh v. U.P. Public Service Commission and Ors. 2004(1) SLJ 28 (SC) : 2004 SCC (L&S) 95, it was held that Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems or as persons of the statute. These observations must be read in the context in which they appear.
31. The facts of the present case are different from the case that were before the Hon'ble High Court in W.P. 16562/2005. Here the applicant had submitted a declaration and there is an order of reversion. The Railway Administration pleads that the element of transfer is available both in Station Master Grade and Assistant Station Master grade and the respondents have acted on the request of the applicant. The plea of limitation against the order of reversion and fixation of pay and estoppel of the acceptance and functioning in the reverted post without objection is pressed for consideration in this case. The Tribunal found that the relief such as promotion etc., would be subject to the plea of laches etc., to disentitle this relief, whereas, the pay fixation to the limited extent of proper pay fixation, cannot be treated as time barred since it is based on the recurring cause of action. In the case of transfer which is governed by relevant rules, the transferred officer cannot be reverted nor will he be placed in a lower scale, whereas, the case before us is different. The applicant has declared to accept the lower post and thereafter transferred. This situation is governed by the terms and conditions which was acted upon. The order of transfer was never questioned. Therefore, the ratio of the above judgment is not applicable to the facts of the present case.
32. In Union of India v. Registrar, C.A.T. 2002(3) LLN 352, the Hon'ble High Court held that i is a trite principle that where the concerned person is to be put at the bottom of the seniority, for doing so, they cannot straight away be reverted to the post in which he was working earlier. The plea of the Railway Administration before the Hon'ble Principal Bench of this Tribunal at Delhi that there was no element of direct recruitment in the post of Station Master, was not accepted. If it is a case of simple transfer, as per the Rule the officer will be transferred in the same grade/rank in the bottom seniority. As we have seen earlier here, it is a case of reversion and transfer was made in the reverted post.
33. The respondents in their counter have stated that in the case of Vaseekaran, the vacancy position may be dissimilar in different Division and he could not have been considered against the vacancy in the scale of Rs. 5500-9000 in the direct recruitment quota at the appropriate time. In other words, the plea is that there is a provision for transfer to the same grade depending on the vacancy position. In this case, considering the fact that it related to the transfer of 39 persons similarly placed and 17 persons to the Division Office at Madurai and considering the request of the applicant for reversion and transfer, the same was acted upon and enabling provision was invoked. Therefore, such transfers made in favour of Vaseekaran cannot be of any help to the applicant.
34. For all the above reasons, we do not find any ground to grant the reliefs sought for by the applicant. The O.A. fails and is dismissed with no order as to costs.