Central Administrative Tribunal - Ahmedabad
Rakesh Kumar vs Western Railway on 26 November, 2024
::1 :: OA No. 23/2024
CENTRAL ADMINISTRATIVE TRIBUNAL
AHMEDABAD BECH
Original Application No. 23/2024
With MA No. 60/2024
Dated this the 26th day of November, 2024
Reserved on: 01.10.2024
Pronounced on: 26.11.2024
CORAM:
Hon'ble Shri Jayesh V Bhairavia, Member (J)
Hon'ble Dr. Hukum Singh Meena, Member (A)
1. Shri Rakesh Kumar
S/o. Shri Binod Prasad Singh
Aged 38 years
Working as Tech. Gr. III under SSEE/RAJ/ADI
R/o at present: Quarter no. 847/12, Rly. Colony,
Maninagar, Ahmedabad - 380 008.
Permanent Address: Simli Chanknuri, Patna City,
Po. Madhav mill, Dist - Patna - 800 008.
... Applicants
(By Advocate Ms. S S Chaturvedi)
V/s.
1. Union of India,
Notice to be served through,
General Manager, Western railway,
Churchgate, Mumbai - 400 020.
2. Divisional Railway Manager (E),
Western Railway, Divisional Office,
Ashrwa, Ahmedabad 380 019.
3. Sr. Divisional Electrical Engineer,
Western Railway, Divisional Office,
Ashrwa, Ahmedabad - 380 019.
4. Divisional Railway Manager
DRM Office, East Central Railway Danapur,
P.O. - Khagaul, District: Patna (Bihar), Pin - 801 105.
... Respondents
(By Advocate Mr. H D Shukla)
::2 :: OA No. 23/2024
ORDER
Per: Hon'ble Shri Jayesh V Bhairavia, Member (J)
MA No. 60/2024
The applicant has filed the present Misc. Application seeking condonation of delay of about 3 years in filing the accompanying OA.
2. In the present MA, it is stated that the applicant had applied for Inter Division Own request Transfer from Ahmedabad Division, Western Railway to Danapur Division, East Central Railway. The GM Hajipur of East Central Railway vide order dated nil. 04.2015 (Annexure A/1 refer) approved the same but the DRM ADI, failed to relieve him.
However, the DRM (E), Ahmedabad Division, Western Railway, sent a letter dated 17.02.2020 (Annexure A/5 refer) to the DRM (P) Danapur, East Central Railway, regarding the accommodation of the applicant in reference to approval dated nil.04.2015. Therefore, there is delay of three years. According to the applicant, it is the duty of the respondents to relieve him after getting approval from the other Division but the respondent department failed to do so.
2.1 It is further stated that the respondent no.2 issued the letter to the respondent no. 4 to advice him to accommodate the applicant vide aforesaid letter dated 17.2.2020. But the respondent no. 4 failed to reply to the same till date. The applicant also made a representation for the implementation of the earlier approved/NOC to the respondent No.2 vide his representation dated 15.12.2014 (Annexure A/17).
::3 :: OA No. 23/20242.2 It is also stated that due to the Covid-19 pandemic during the period from 2020 to 2021, he was unable to contact the Advocate and the Court was also not functioning regularly. When nothing has been done by the respondents on his aforesaid representation, the applicant had submitted another representation dated 05.01.2021 (Annexure A/18).
2.3 It is also stated that applicant's own physical condition also did not allowed him to leave the head quarters. It is further stated that he had also took a loan of Rs. 2,00,000/- for day to day expenditure and further mortgage loan of Rs.15,00,000/- for the treatment of his parents as he himself, his wife and his parents are facing health issues. In such circumstances, he could not file the accompanying OA in time and the delay was occurred due the aforesaid reasons. Accordingly, the applicant has prayed that delay may kindly be condoned and the accompanying OA be decided on its merit.
3. During the course of hearing, learned counsel for the applicant has reiterated his submissions as mentioned in the present MA.
4. Per contra, during the course of hearing, learned counsel for the respondents, admitted that they have not filed any reply to the said Misc. Application seeking condonation of delay and have filed reply on merits of the case.
5. Keeping in view the averments made in the said MA and the submissions of the learned counsel for the respondents as the Hon'ble Supreme Court decision dated 8.3.2021 in Suo Moto Writ Petition (Civil) No.03/2020 titled RE: Cognizance for extension of limitation, the present MA seeking condonation of delay is allowed.
::4 :: OA No. 23/2024 OA No.23 of 2024The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 challenging the impugned order dated nil.04.2015 (Annexure A/1), seeking following reliefs: -
"Para 8 8.1 Lord Ships be pleased to admit this petition.
And be pleased to direct the respondents to get the NOC (Annexure A/1) revalidated and thereafter relieve the applicant immediately with all consequential benefits.
8.2 That the Hon'ble Tribunal may be kindly pleased to call for the entire record of the applicant in possession of the respondent for its kind perusal.
8.3 Any other relief which the Hon'ble Tribunal deems fit.
8.4 That the Hon'ble Tribunal in the facts and circumstances of the present case may further be pleased to grant cost of the application the applicant."
2. The brief facts of the case are as under: -
2.1 Applicant while working as ELE T/L Khalasi under SSE/ELECT/GIM (Gandhidham) in ADI Division had made an application for own request transfer from Ahmedabad Division, Western Railway to Danapur Division, East Central Railway (Annexure A/2 refer) in 2014 which was forwarded to the DRM Office, Ahmedabad Division on 13.1.2014 (Annexure A/3 refer).
2.2 The General Manager, Hajipur, East Central Railway, vide letter dated nil.04.2015 (Annexure ::5 :: OA No. 23/2024 A/1 refer) conveying the approval of the competent authority for inter Railway own request transfer of the Khalasis/Helpers (Elect) of Western Railway to the respondent no. 1, i.e., General Manager, Western Railway, Churchgate, Mumbai in which the name of the applicant appeared at Sr. No. 2.
2.3 In response to the aforesaid approval from East Central Railway, the DRM office, Ahmedabad issued letter dated 15.06.2015 (Annexure A/4 refer) to the SSE (Elect.) Bhuj, Gandhidham and informed to take the willingness from the candidates who are willing for own request Inter Division Transfer. In the said letter, the applicant's name appeared at Sr. No. 3. Accordingly, the applicant has given his willingness for own request Inter Division Transfer.
2.4 Although, the applicant had submitted his willingness for own request transfer in accordance with the aforesaid NOC/Approval letter, the respondent nos. 2 and 3 failed to relieve the applicant within the stipulated time.
2.5 However, the respondent nos. 2 & 3 had not relieved applicant was not relieved despite the aforesaid approval received long back in the month of April 2015. Thereafter, in respect to said NOC issued in favour of the applicant, the respondent no.2 after five years, vide letter dated 17.02.2020 address a letter to the office of DRM (P) Danapur EC Railway and had sought advice that whether at present the applicant can be accommodated or not (Annexure A/5 refer).::6 :: OA No. 23/2024
It is the duty of the respondents' authority after receiving the approval letter from the other Division to relieve the candidates at the earliest as per the Railway Board Circular and Statutory Provisions. However, the respondents have failed to do so.
2.6 It is stated by the applicant that his father is suffering from Asthma and his mother is also suffering from Orthopedic problem, Knee Problem, Thyroid and Earthrises (Annexures A/6 & A/7 refer). The applicant's wife is also suffering from Migraine and Thyroid (Annexure A/8 refer). The applicant himself also suffering from T.B. and also Cock Chest Stone of 6 mm. The applicant is undergoing treatment for the same (Annexure A/9 refer). The applicant's whole family is suffering from medically critical conditions; therefore, his case is required to be decided on priority basis.
2.7 It is stated that the Railway Board vide RBE No. 131/2017 dated 22.09.2017 again issued various instructions with regard to mutual transfer whereby it was further clarified by the Railway Board that for divisionally controlled posts, applications for mutual transfer duly signed by both applicants in the proper format, from a Division of one Railway to the Division of another Railway need not be through the Head Quarter offices. It shall be dealt directly only by the Divison concerned and in this regard detailed procedure has been prescribed with timelines to be followed while considering the request of mutual transfer (Annexure A/10 refer).
::7 :: OA No. 23/2024As per the instructions contained in the said RBE No. 131 it has been stipulated that after the acceptance by the receiving HQ/Division within 25 days all the procedure including the relieving the employee required to be completed, but in the present case, the respondent failed to relieve the applicant.
2.8 It is further stated that the respondents have also violated the instructions and guidelines stipulated in RBE No.203/2019 dated 26.11.2019 (Annexure A/11 refer). Learned counsel for the applicant emphasized that the instructions contained in the last para of the said RBE No.203/2019 ought to have been followed in the case of the applicant by the respondent. The said relied upon last para of the RBE No.203/2019 reads as under:-
"The matter has accordingly been considered in the Board. While it may not be desirable/feasible to assign seniority to transferred employee in the new unit from the date of approval of the transfer, when the employee is still actually working in the parent unit, every effort should be made to relieve her/him at an early date. Where delay in relieving of the employee after orders are issued exceeds/is likely to exceed
3 months, the case should be put up by Sr.DPO/WPO to DRM/CWM as the case may be giving specific reason for the delay and likely date of relief".
2.9 Further, in support of his claim, the Applicant has also placed reliance on RBE No.22/2023 dated 02.02.2023 and RBE No.53/2023 dated 13.04.2023 whereby Railway Board advised that the transfer ::8 :: OA No. 23/2024 cases be processed on priority wherever feasible. (Annexure A/13 refer). Again, by referring the instructions contained in RBE No. 53/2023 the Railway Board vide RBE No. 83/2023 dated 23.06.2023 informed to the General Manager (P)/all Zonal Railways & PU's that the transfer cases may be processed on priority wherever feasible and further it was also advised that all mutual transfer cases pending for NOC may be finalized on priority (Annexure A/14 refer).
2.10 Therefore, it is the grievance of the applicant that in spite of various instructions issued by Railway Board to consider and finalize the inter Railway request transfer applications on priority basis, but in the case of applicant the respondents have not followed the said instructions and deprieved him for his Inter Railway Own Request Transfer. Being aggrieved by inaction on the part of the respondents in relieving him to join Danapur Division, Eastern Central Railway, the applicant has filed this OA.
3. Per contra, respondents have filed their reply and denied the contentions of the applicant.
3.1 It is stated that applicant had submitted that in respect to NOC received from the office of DRM Danapur Eastern Railway in favour of the applicant in the month of April 2015, he could not be relieved at the relevant time on account of administrative exigencies.
3.2 It is submitted that as per para 226 of IREC Vol I, ordinarily, a Railway servant shall be employed ::9 :: OA No. 23/2024 throughout his service on the Railway or Railway establishment to which he is posted on first appointment and shall have not to claim as of right for transfer to another Railway or another establishment.
However there are some welfare provisions facilitated for transfer to employee in special circumstances. Although this aspect may also be kept in mind that a large number of transfer requests from newly recruited employees and their relieving by Railway adversely affecting the smooth functioning for want of trained manpower.
3.3 It is further submitted that transfer is not a vested right of the applicant. Though the Railway Board has issued several circulars on inter divisional transfer to facilitate the employees, but concerned Railway has to examine the feasibility on various aspects and also not at the cost of Safety and train operations.
As the applicant's work is related to train movement, which is a safety category work. Hence, in the interest of public at large having regard to the vacancy in this category, applicant could not be relieved.
3.4 It is further reiterated that the Railway Board has issued several circular regarding transfer to other Divisions of Railway and/or other zone of Railways and expressed their bonafide intention in order to see well-being of the employees. However, it is significant to mention that, in all the referred ::10 :: OA No. 23/2024 circular/RBEs, it is clearly mentioned that, transfer cases may be processed on priority where ever it's feasible.
3.5 It is also submitted that, after receiving of NOC from receiving Railway Division, i.e., East Central Railway, the feasibility ought to have been examined by the Ahmedabad Division, Western Railway for smooth running of the administration whilst keeping in mind need of the running staff from the point of safety of the public at large.
3.6 It is further submitted that recently RRC allotted panel of total 117 candidates in which Assistant TL and AC category is 94 in which 89 candidates have resumed and in the category of Assistant power is 23 in which 23 candidates have resumed. Therefore, it is required mention that at present 49 vacancies are available in the cadre of Coaching-Electrical department, whereas Ahmedabad Division raised a demand from RRC for filling up 134 posts in Ahmedabad Division (Annexure R/2 & R/3).
3.7 It is also stated that it is settled law that Transfer is not a right of the applicant. Railway Board has issued several circulars on inter divisional transfer to facilitate the employees but Railway has to examine the feasibility on various aspects and also not on the cost of safety and train operations. Therefore, Present OA is nothing but a sheer abuse of process of law. Hence, the same should be dismissed.
::11 :: OA No. 23/20244. The applicant has filed rejoinder and denied the contention of the respondents as stated in their reply.
Learned counsel by referring the grounds stated in OA as well averments in rejoinder additionally argued that the applicant is working as Tech. Gr. III under SSE/RAJ/ADI whereas the respondents produced the vacancy position of Group D (Helper) as on 24.7.2024 (Annexure R/2) wherein at serial No.24 meant for RAJ/ADI under MOR category, 27 men are shown to be in roll and -7 vacancy, meaning thereby that 7 more employees are working in the cadre of RAJ/ADI. As such the averment made by the respondents in their reply about shortage of staff is not tenable.
It is further stated that the respondents have themselves quoted the para 226 of the IREC which provides that "Request from railway servant in Group C and D for transfer from one railway to another on the ground of special cases of hardship may be considered favorably by the Railway Administration."
4.1 It is further stated that the respondents had admitted that the acceptance for Inter Railway Own Request Transfer of the applicant from Ahmedabad Division to Danapur Division had been received from ECR/Danapur vide its letter dated 04.04.2015. However, the respondent no.2 could not relieve the applicant due to the administrative exigencies. Further the respondent no.2 admitted that the applicant's willingness was received on 18.6.2015 and forwarded to the HQ Office. The respondent no.2 sent the letter dated 17.2.2020 to the Danapur ::12 :: OA No. 23/2024 Division but the Danapur Division failed to reply to the same till date.
4.2 It is also stated that as per RBE No.170/05 dated 6.10.2005 which is on the subject of Inter Zonal request transfers on bottom seniority which provides that "It has been brought to the notice of this Ministry that inter zonal request transfers are being withheld on account of existence of vacancies. Since requests by Railway servants for transfer on bottom seniority are made on grounds of special cases of hardship, it has been decided that requests for inter zonal transfers may not be withheld on account of existence of vacancies. If, however, request for transfer are withheld in the exigency of service on account of existence of vacancies, a time bound programme should be chalked out to fill up the vacancies by direct recruitment or promotion, as the case may be."
Further it is reiterated that in RJ/ADI already 7 excess employees are working in MOR. Therefore, withholding of relieving of the applicant on the ground of administrative exigency is not sustainable.
In support of the claim, the applicant, has placed reliance on the judgment dated 28.9.2022 passed by of the Mumbai Bench of this Tribunal in OA No.159/2022, titled Deepak Kumar and others vs. Union of India and others.
4.3 Further it is stated that keeping in view the medical conditions of the applicant himself, his wife and his parents, the case of the applicant required to be considered as a special case for inter Railway own ::13 :: OA No. 23/2024 request transfer, as there is no fault on the part of the applicant.
4.4 It is submitted that on receipt of NOC from the office of DRM Danapur EC Railway, the respondents have not taken steps immediately to relieve the applicant and as such the respondents have violated the provisions of RBE No.203/2019 dated 26.11.2019. The instructions contained in said RBE reads as under:-
"As the Railway administrations are aware, instructions already exist which provide that in cases of request transfer, the requests should be dealt with in an organized and expeditious manner so that there is no occasion for any grievance in the mind of the staff in regard to the handling of their request.
It has been observed that despite the existence of such instructions, due to administrative exigencies, it sometimes becomes difficult to relieve the transferred employee within a reasonable time, which results in loss of seniority to the employee in his new place of posting. The loss is even greater when he goes to posts one grade below, and new recruits from subsequent batches join before him.
The loss in seniority in such cases resulting from delayed relieving of the employee often leads to litigation, and strictures passed by Hon'ble Courts.
In one such case recently, the Hon''ble CAT/Chennai in OA No.751/2019 and other similar OAs, vide their common order dated 05.07.2019, inter-alia observed as under:-
Since it is submitted by the counsel for the applicants that IREC is silent on the above issue ::14 :: OA No. 23/2024 and accordingly there is a void in this regard in the policy, we deem it appropriate to direct the first respondent to consider the concern raised in the OAs as a policy issue and take an appropriate decision on whether and if so, how the interests of such transferred employees should be protected in regard to their seniority at least from the date from which they were approved for IRT, if they could not be relieved soon thereafter in public interest. Such policy decision may be taken and orders issued within a period of six months from the date of receipt of a copy of this order."
The matter has accordingly been considered in the Board. While it may not be desirable/feasible to assign seniority to transferred employee in the new unit from the date of approval of the transfer, when the employee is still actually working in the parent unit, every effort should be made to relieve her/him at an early date. Where delay in relieving of the employee after orders are issued exceeds/is likely to exceed 3 months, the case should be put up by Sr.DPO/WPO to DRM/CWM as the case may be giving specific reasons for the delay and likely date of relief."
4.5 It is stated that despite the aforesaid guidelines issued by the Railway Board, the respondents have not relieved the applicant in the year 2015. Thereafter, vide letter dated 17.02.2020 had sought advice from the Danapur Division whether the applicant can be accommodate there. However, till date the Danapur Division has not responded to the said request/letter of the Ahmedabad Division.
::15 :: OA No. 23/20245. Heard the counsel for the parties and perused the material on record.
6. It emerges from the record, undisputedly applicant's inter- railway on request transfer from ADI Division of Western Railway to Danapur Division, Eastern Railway was accepted and approved by the O/o the General Manager (P) vide its communication dated 21.04.2015 (Annexure A/1). In the said letter of NoC it was categorically mentioned that the acceptance is valid for six (6) months only and in case the staff does not report to the Railway within prescribed time limit, the said acceptance will be treated as cancelled. It is also not in dispute that though the applicant conveyed his willingness to join at Danapur, ECR as per approved NoC but due to administrative exigency as stated by the respondent no.2 herein, the applicant was not relieved within prescribed time limit of six months by the O/o DEM (E), ADI Division. Thus, in terms of NoC issued in the month of April, 2015, the applicant could not report to Danapur, ECR. Thereafter, the applicant thereafter continued to work as Khalasi- ELE T/L under SSE/ Elect/ Gandhidham, ADI Division and presently working under ADI Division, Western Railway. In the meantime, vide letter dated 17.02.2020 the O/o DRM (E), ADI had sought advice/feasibility from the O/o DRM (P) Danapur, ECR whether at present, the applicant can be accommodated or not. However, till date the said request/letter of O/o DRM (E), ADI has not been responded by the O/o DRM, Danapur, ECR.
7. It is the grievance of the applicant that the respondent failed to adhered to timeline in terms of various instructions guideline issued by Railway Board in RBE No. 22/2023, dated 02.02.2023, RBE No. 53/2023 dated 13.04.2023, RBE No. 83/2023 wherein it was directed that the all Inter-Railway ::16 :: OA No. 23/2024 Request Transfer/ All Mutual Transfer Cases pending for NoC may be finalized in priority by the concerned Railway Officials. The core submission of learned counsel for the applicant that the respondent also failed to follow the time line to relieve the applicant in terms of RBE No. 131/2017 dated 22.09.2017 as well as instructions contained in RBE No. 170/2005 dated 06.10.2005 and in this regard would also argue that at the relevant time the respondents ought not to have withheld his inter-zonal transfer on account of the existence of vacancies or any administrative exigency.
On the other hand, learned counsel for the respondents would argue that the applicant could not relieve at the relevant time on account of administrative exigency. In the case of the applicant, the NoC approved in the year 2015, its validation had expired longback. The O/o DRM (E) , ADI had as such requested DRM (P) Danapur, ECR for revaluation of the NoC and same has not received till date. Therefore, at this stage, the applicant cannot be relieved in absence of revalidated NoC issued by the receiving Railway. It is submitted that the guidelines issued b the Railway Board, in RBE No. 22/2023, 53/2023, 83/2023 are subsequent to the NoC granted in the year 2015. It is submitted that the on receipt of revalidation NoC or by way of obtaining fresh NoC, the case of the applicant can be considered for inter-railway transfer on own request transfer.
8. At this stage, it is further apt to mention that the learned counsel for the applicant has placed reliance on the instructions/guidelines issued by the Railway Board vide RBE No.170 /2005 dated 06-10-05 on the subject to Inter Zonal request transfers on bottom seniority, the relevant paras of the same reads as under:-
::17 :: OA No. 23/2024"In terms of extant procedure request transfer from one Railway / Division / Unit to another Railway /Division/Unit are considered in recruitment grades on bottom seniority subject to the condition that the employee seeking transfer fulfills the condition of qualification for recruitment to the posts in the grade to which transfer is sought.
2. It has been brought to the notice of this Ministry that inter zonal request transfers are being withheld on account of existence of vacancies. Since requests by Railway servants for transfer on bottom seniority are made on grounds of special cases of hardship, it has been decided that requests for inter zonal transfers may not be withheld on account of existence of vacancies. If, however, request for transfer are withheld in the exigency of service on account of existence of vacancies, a time bound programme should be chalked out to fill up the vacancies by direct recruitment or promotion, as the case may be."
8.1 Further this Bench of the Tribunal in the case of Hariher Paswan vs. Union of India and others in OA No.417/2022 decided on 3.5.2023 has observed as under:-
"8. Respondents in their reply have mentioned about 18 senior applicants. However, their NOC status after acceptance by the receiving railway has not been described. At any rate that does not negate the stipulations in the three RBEs mentioned and discussed above.
9. However, there is procedural difficulty due to expiration of the NOC dated 31.12.2021 which, the records before us show, is largely due to inaction of the respondents. This is after all a procedural requirement and the receiving railway (Malda Division in this case) may be requested to revalidate it, should it still be required. Upon receipt of revalidation of the NOC, the applicant should be relieved. His relieving should not be withheld any further keeping in view the various instructions of RBE quoted above.
In view of the factual matrix obtaining from submissions and exposition above, we direct the respondents to get the NOC revalidated within a ::18 :: OA No. 23/2024 period of four weeks from the date of receipt of copy of this order and thereafter relieve him immediately so as to enable him to join the receiving railway (Malda in this case). No order as to cost."
8.2 It is further relevant to mention that this Bench of the Tribunal by placing reliance on the aforesaid decision in the case of Hariher Paswan (supra) had decided a similar case, being OA No.234/2023, titled Shri Ravikant vs. Union of India and others decided on 17.4.2024, the relevant paras of the same are as under:-
"11. Thus in view of the aforesaid discussion, present OA is disposed of with following observation/direction:-
9. By relying upon the aforesaid orders, learned counsel for the applicant would submit that applicant is required to be considered by the respondents by seeking revalidated NoC from the receiving Railway Authority.
10. In the present case, undisputedly, There is procedural difficulty due to expiration of the NOC dated 21.04.2015 which, the records before us show, is largely due to inaction of the respondents. This is after all a procedural requirement and accordingly the request /claim of the applicant for his inter- zonal railway own request transfer from ADI Division, Western Railway to Danapur ECR require to be consider by the respondents in terms of the guideline/instruction in vogue issued by the Railway Board. Accordingly, as per the said policy/guideline on the subject the feasibility the receiving railway ( Danapur Division) ECR, may be requested to revalidate the NoC.
::19 :: OA No. 23/2024Thus, in light of what is discussed herein above, we deem it appropriate to dispose of this OA with the following directions:-
(i) The applicant is at liberty to submit his another comprehension representation /application for revalidation of the NoC/ a NoC in respect to his inter-
zonal own request transfer from ADI Division Western Railway to Danapur, Eastern Railway before the respondent no. 2 within two weeks from the date of receipt of certified copy of this order.
(ii) On receipt of the representation/application of the applicant herein, the respondent no.2 is directed to consider the same expeditiously not later than four weeks in light of the instructions/guidelines issued by the Railway Board vide various RBEs and policy in vogue for the purpose of getting revalidation of NoC or a fresh approval.
(iii) If the revalidation of the NOC or approval in this regard are given by the receiving railways based on administrative exigencies and RBE guidelines then the applicant should be relieved within the NOC period without causing any further litigation. His relieving should not be withheld any further keeping in view the various instructions of RBE quoted above.
11. Accordingly, the OA stands disposed of. MA stands disposed of accordingly. There shall be no order as to costs.
(Hukum Singh Meena) (Jayesh V Bhairavia)
Member (A) Member (J)
::20 :: OA No. 23/2024
/ravi/PA