Central Administrative Tribunal - Gauhati
Shri Lalsimdik Tusing vs M/O Railways on 21 February, 2020
at i. -CENTRALADMINISTRATIVE TRIBUNAL GUWAHATI BENCH -- Original Application No. 040/00335/2019 Date of Decision: 21.02. 242% "THE HON'BLE MRS. MANJULA DAS, JUDICIAL MEMBER THE HON'BLE MR. N. NEIHSIAL, ADMINISTRATIVE MEMBER oe "Date of hearing: 29.11.2019 Shri Lalsiamadik Tusing Sr.DPo/Rangia Division North East Frontier Railway l1O/C, Officers Colony Rangia, Assam ~ 781354. By advocate (s}: Sri M. Chanda & Si AK. Das -VERSUS- _ The Union of india Represented by the General Manager North East Frontier Raliway Maligaon, Guwahati ~ 11. The General Manager (P} H@, North East Frontier Rallway -Maligaon, Assam, Pin - 781011. Garima Sodhi DPO, Rangia - North East Frontier Railway Rangia, Assam ~ 781354. By advocate: Sri H.K. Das, Rly. 3C Applicant Respondents Date of order, 23. 02. 2° ~ ORDER MANJULA DAS JUDICIAL MEMBER:
ny Being aggrieved with the impugned transfer order dated 17.09.2019 and impugned rejection ordes dated 10.10.2019, the applicant approached before this Thounal under Section 19 of the Adrninistrative Tébunal Act, 1985 with the follawing main reliefs:
Bg.) That the Hon'ble Tribunal be pleased to set aside : "ard quash the impugned Transfer and posting ger dated 17.09.2019 (Annexure-Al) as well as:
the impugned order of rection dated SE 10,9019 (Annexure-A2} wih exemplary cost, --
B2 That ihe Hon'ble Tribunal be oleased to direct : the Respondents fo ailow the applicant fo
--_ confinue the existing place af posting al Rangia Dusion, NE Railway or al nearby station which is nearest fo the home' 'sicte Manipur of the gopiicant under the statutory spouse scheme issued by fhe Railway Board under circular dated 02.02.2010 (Annexure- AS) in fhe same capacity."
2 | the briet facts narratec by the applicant are that ihe applicant was inificily appointed as Assistant Personnel Officer, Engineering under NF. Railway, Maligcaon, Guwahall in the year 2012 and he was transferred and posted at Lumading Division, NE, Railway as APO, IT, in the year 2012 itself. thereafter the applicant was promoted to the post of BPO in the year 2015 and posted at Tinsukic Division, NF.
Railway, He was further orornoted to the post of sr, DRO an ad-hoc basis in the year 2016. However, before completion 3 of minimum tenure af three yours, fhe applicant wos again transferred to Rangia Division, N.F. Railway in the year 2017 and joined there on 19.06.2017. Since then, the applicant is _ discharging his duties at Rangla Division, N.F. Railway.
3. The applicant raised his grievance in this O.A. that immediately after cornpletion ai two years, he applicant is : again sought to be transferred vide transfer order dated 17.09.2019 from Rangla fo Aflourduar and when fhe 'applicant. made o representation dated 26.09.2019, fhe fespondent authorities had rejected his representation of the applicant with a cryptic manner vide rejection order vow dated 10.10.2019, ~ Hence, this Original Application.
4. Heard Si M, Chanda, learned counsel for the applicant: and Sf H.K. "Das, railway counsel for the respondents.
5... The main ofanks of the arguments advanced by SH ~M, Chanda, learned counsel fer the applicant are that {a} the applicant is not yet completed maximum tenure of five
i) yedrs and the impugned transfer order was issued on extraneous consideration to accommodate respondent No.
316. Smit. Garima Sedhi withaut even cancelling fhe earler MM YVV9QVB@OOCOEEKEKEEESSSJCa'LD?céLCEISEEEEEEEOEEELLLL RL LAL LL LLL & transfer and posting order dated 12.07.2019 whereby the respondent No. 3 was transferred and posted at Alpurdvuar Junction. .
fb} the impugned transfer order has been issued without. any administrative exigency and public interest as well asin violation of statutory scheme of spouse posting issued by the Railway Board vide. circular dated 02.02.2010 and in _ violation of iransfer policy of the Railway Board letter dated 31.08.2015. The opplicant hardly completed only two years of service af Raniga Division, NF. Railway. {c) Thet vide order dated 10.10.2019 wos Gg non-speaking and crypiic order and no valid reason has been assigned while relecting ihe representation of the applicant, {dj}. The apolicant's wife is a Government Officer, serving as Medical Officer at Churachandpur Disiricf of Manipur. Since, Rangia DI BENE, District Kamrup [Rural], Assarn, as such if is convenient on the part of the applicant to reach his family with a minimum shortest possible time.
[e} Acco cases of Sri ' shok Rumer Sinha, APO, Tinsukia as well as Smt. relaction of the representation of the applicant _ vision of N.F, Railway Is located under the . rding to Jearned counsel for the applicant, the s = = Y - Gatima Sodhi, DPO/RNY were suitably modified by faking info. consideration of their personnel inconvenience. As such, sald impugned rejection order dated 10.10.2019 is fable fo be set aside and quashed.
6, To substantiate his argument, learned counsel for the | applicant relied on the following decisions:
{a} {2003} 11 SOc 740, Sarvesh Kumar Awasthi Vs. U.P. Jal Nigam & Ors.
(a) 2005 (4) GLT 371 Dilip Kumar Sika Vs. State of Assam & Ors. _ oo {ce} Decision of Allahabad High Court in case-of | . Ul & others Vs, Smt. Parwail Devi & Ors, | 7. | To counter fhe arguments advanced by SH Chanda, learned railway standing counsel Sti H.K, Das submitted that the respondent No. 3 Le. Smt. Garima Sodhi initially joined as APO/| at Lumding on 01.09,201 4. she was transferred in the | month of December' 2017, on spouse ground to Railway
- Headquarter, Maligaan, Guwahati as $PO/Garetted on ad-
hoc promotion and she worked as SPO/Gazetied fil
-- 49.02.2018. Thereafter, she was transferred to SPO/Traffic & Electric and served there til 26.08.2018. She was again . transferred as DPO/Guwahati on 27.08.2018 and remained there ti 24.12.2018. Lastly, she was transferred as DPO and -- § .
posted at Rangia Division w.e.f, 25.12.2018 and she is serving there till date.
8. S11 HK. Dos, Rly 'counsel further by referring para 3.5 of the witten datement of the respondents submitted that | ihe respondent No. 3 Le. Smt. Garirna Sodhi, on receipt of the order 'of transfer dated 12.07.2019, submitted a repieccHiatign dated 1 5,07.2019 an spouse ground contending that in at her previous orders of transfers she could not complete her fenure of posting. She further : contended that she was working as DPO, Rangia from last 7 [seven] months only. She expressed her inability to go to Allpurduar as her husband is working as Senior Mechanical Engineer at NE. Railway, Head Quarter w.e 4. 18.04.2019. She further stated that she had already completed 2 (two) years. of her mariage 'ond intended to start family and such frequent franster would cerfainly cause hindrance in starting of her family life. Therefore, she requested her retention at Rangia at least for a period of 2 (two) years of her tenure. a Leamed Rly. Counsel further submitied that the said representation of the respondent No. 3 was placed before the Placement Committee for ifs consideration. The | Placement Committee afier considering the representation of fhe respandent No. 3 decided in ther minutes dated -
-
Y 25.07.2019, to cancél the item No. lof the earlier transfer order dated 12.07.2019 by which the respondent No. 3 was transferred and posted as. DPO/IC/APDJ. Thereafter, again in partial modification of tem No. 2 of the said transfer order dated 12.07.2019. Ms Papr Roy was posted as SPO/HQ, Accordingly, the office order No, 20/2019 {Personnel} dated 15.07.2019 was issued by which the transfer and posting of | | respondent No. 3 fo Alipurduar Division as DPOAC was _ cancelled,.
. «SH_R.K. Das, Rly counsel further submitted that the a . applicant hod to be transfered to Allourduar on : ddministetive | "exigency because vide order dated 13.08.2019. Si Sansanka Sarma, Deputy CPO, GAZ. was _telleved from additional responsibility of Chatman, RRC and Sri SS, Kamble, Sr. DPO/APDJ was transferred and posted as | Chairman, RRC. So, after franster of Sd Ramble, the railway administration thought for posting of Sr. DPO having vast experience likewise the applicant to mane the works 'at Alipurduar and accordingly the applicant has" been considered for posting af Alfourduar, The transfer of the -- applicant has got no link with the posting of faspondent Ne. , 3 because he is much senior to the respondent No. 3 and he | isin the JAG cadre.
& H 7 Leamed Rly. Counsel further submitted that so far as the judgement of nem Kumar Awasthi Vs. U.P. Jal Nigam and Ors. cited by the applicant is concemed, the citation given by the applicant is wrong. However, proposition of law - laid down by the Hon 'ble Apex Court in the case of Sarvesh | Kumar Awasthi Vs. UP. Jal Nigam and others Is not ail disputed but same is easily distinguishable in the present facts of the cose. In Sarvesh Kumar Awasthi the petitioner was fransfered on recommendation of some Minister/MLA "inthe backdrop of some complaint filed against him. In such backdrop the Han'ble Apex Court observed that an order of transfer should no! be arbitrary and mala-fide. However, in. the. present case, the doplicant has been transferred purely on administrative reasons because his service is required at Alipurdvar after pasting of Sri SS. Kambie as Chairman, RRC. According fo him, the applicant - unnecessarily dragged the issue of respondent No. 3 fo make oul g case of axtraneous consideration, whereas there was no such extraneous consideration in modification _ af posting of resoondent No. 3.
12. _ To distinguish the case of Dilip Kumar Saikia Vs. State of Assam & Ors. relied on by the learned counsel for the applicant, Sti H.K. Das, Rly counsel submitted that in the a "
said case, pefitioner (Sr Dilip Kumar Sinha} was sought to be _ transferred at fhe behest of the respondent No. 3 by polilical influence on the basis of complaint against the pelitioner before completion of tenure of 3 (ihree} years without the approval of Chief Minister of the State as mandated by the O.M.s dated 04.02.2003 and 22.05.2002. The complaint was inquired and the allegations were found fo be false and the _ petitioner therein was found fo be a good teacher. |f is in such backdrop the Hon'ble High Court interfered with the ransfer of the petitioner therein. Here there ls no such fact in a the present case. In the present case, fhe applicant has _ been transferred purely on administrative reasons because | his service is required at Alipurduar after posting of Sr SS. Kamble as Chairman, RRC. The applicant, being a Central Government employee having transfer liability cannot make out an offence against his transfer where the respondents wanted to ulllize vast experlence of ihe applicant to mane* the increased work at Allpurduar.
13. For coming to a logical conclusion, we have perused the impugned transfer order dated 17.09.2019. issued by the General Manager, Maligaon. {respondent No.2}, transferring the applicant Le. Shri L. Tusing, Sr.DPO/RNY as S.DPO/APDJ vice $1 8.S. Kamble and the respondent No. 19 3 he. Smt. Goma' Sodhi, DPO/RNY who has been
14. We have - nofed that though the arguments advanced from the respondents' side that the impugned transfer order dated }7.09.2019 of the applicant as well as the respondent No. 3 was issued in the interest of public and administrative exigency and to utilise the vast experience of |
- the applicant at Allourduar, but it ls apparent from the said order thot the respondent No. 3 in fact on promotion posted atSr.DPO Rangia inplace ofthe applicant. Thus if is. candid clear that the impugned transfer order is mace fo accommodate the respondent No. 3 in place of the applicant af Rangia that too on promotion which is not a fair play of administration of the department. 1B. The Hon'ble Gauhati High Court while allawing the observed as hereunder:
"OE12) A transfer order issued as in fhe instant ccse only fo gecommodate anciher person ond that joo without atfording any opportunity to the person whore inte s effected, oannot be said fo an order issued in : Hive exigencies.
LLL ELLLEEELEEEELEEEEEEEEEESELL! es (18) For thé foregoing reasons and discussion, | have no hesitation fo hold thet impugned arder of transfer dated 14.10.2008 has nal been issued in any public interest, but has been isswecl only to accommodate the respandent No. 5 and in the process the aforesaid transfer guidelines cams fo be violated. Consequently, the impugned order of fransfer dated 14,1 10.2008 stands set aside and quashed. a
16. Now we are in hand that impugned rejection order dated 10.10.2019 by which the respondents rejected the yepresentation of the appl cant coled 264: 06. 2019, The said "telection i is made in one senience and not in speaking without assigning any reason. 'The said. order reads Os _ "hereunder: :
. "This is ta inform that, your request for modification of transfer order dated 17.09.2019, submitted vide your
-representation dated 24. 09,2019 fo POPO/NER, cannot be oaccepfed."
The basic pr nciple of law does nef permit the employer to pass such cryptic order without assigning 4 cagenf reason dgdins! a representation's of employer whose interest is "affected. Even there is no such expression exisis in the "impugned rejection order ebiout' any public "interest or admin istrat ive exigency, "Thus, ihe sald impuoned rejection order is hagrant violation of principle of fair play of the administration. More $0, it is apparent from the transfer order dated 17.09.2019 thal the respondent authorities failed to follow ithe guideline incerporaied in the Railway Board . -# ~ Gg 22 "incorporated ie 'the Railway Board Guidelines dated 02.02.2010 and 31,08,2015 which is stipulated as hereunder:
"d - Where one of the spouses Is o railway servant
- and the other belongs fo a state service, on/place in the Railway/Division/PU in whose teriforal jurisdiction the place/state of pos fing of hissher spouse falls, lf Fis not possible 6, foarequest tr the roliway servant fo the. Controlling _Autsodty of the spouse for his/her posting at the place of posting of the railway servant is recelved the samme may be forwarded fo the _ concermed authority for sympathetic consideration.
e. : Where ene of the spouses Is a railway servant (all : {odio service) and the other Js warking in a . Railway servant should be posted at the gentral/ state/Public Sector Underiaking/ : Avlonomous Body/ Private Sector, ae orty for Q = posting ot the Naee of aetna. of hisfher spouse which, may be consicered _ favourably by the competent authority. If ne post i available for posting of the railway servan) af fhe place of posting of ihe spouse he/she may be posted to a place closer fo the place of posting of the spouse. {f this also is not possible
--opotication frorn the railway servant for posting of spouse oawho jg. working in the arded fo the controling auiharity of the ihe railway servant."
The Hon' ble Supreme Court in the case of Sarvesh Kumar Awasthi Vs. u P. Ja Nigam & Ors. Reported in (2003) 11 SCC. 740 held thot "trans sfer of officer | is required fo be effected on the basis of se} pornas or guidelines."
17. In view of the above, we hold that the transfer order dated 17.09.20) 9 is bad in law and accordingly the same is niral/Siate/Public Sector Undertaking may be. se oF hisfner pasting af or near ine place of. ~ set aside and quashed. Interim order dated 15.10.2019 is hereby made absolute. The applicant shall be allowed to
18. OA. stands allowed. No order asfoc 12 continue in his present place of posing af Rangid, Sd/-
Maniula Das Hon'ble Member {J} Mir. NNeihsial Hon'ble Member (A)