Judgment:
1. The applicants in this original application working as Diesel Assistants in DSL Trichy Division have sought the following reliefs: To call for the papers relating to the request transfers of the applicants to Trichy Division and the issue of provisional seniority list on 19.12.2003 on the file of the first and second respondents and: (i) quash the provisional seniority published by the second respondent with reference No. T/P. 612/IV/PR/Mech.Admn., dated 19.12.2003 pertaining to the category of Diesel Assistants in scale Rs. 3050-4590 on the Trichy Division in so far as it related to the seniority positions from SI. Nos. 146 to 172 and (ii) direct the respondents to reassign the seniority of the applicants above that of the third to 13th respondents by reckoning the date of issue of transfer order (7.12.02 and 20.11.2002) instead of actual date of joining Trichy in view of the administrative delay in their relief, duly placing them in the order of merit in panel dated 12.11.1998 and (iii) pass such further or other orders as the Hon'ble Tribunal may deem fit and proper in the interest of justice.
2. The applicants who joined as Khalasi in Trichy Division of the southern Railway during period 1980-89 and working as Technician Grade-III/Khalasi Helpers went through selection process to the post of Diesel Assistants in the scale of pay of Rs. 3050-4590 in 1998 and they were selected and empaneled for the post of Diesel Assistants. They gave Trichy Division as the first preference but the applicants 1 to 5 were posted to Chennai Division and the remaining ten applicants (6-15) were posted to Palghat Division, ignoring the preference of the applicants. They were assured that they will be re-transferred to Trichy Division as soon as soon as vacancies became available.
Therefore the applicants carried out the orders, joining Chennai and Palghat Division in May-October 1999. As the expected re-transfer to Trichy Division did not materials in two or three months, and in accordance with the rules for inter-divisional transfer on request, all the applicants registered for re-transfer to Trichy Division during May-November, 1999. Such transfers are permissible under Rule 226 of the Indian Railway Establishment Code Volume-I and in terms of Para 312 of IREM (1989 Edition), the seniority of Railway servants transferred at their request from one Railway to another should be allowed 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 the officiating or Temporary service of the transferred Railway servants.
According to Note-I in Para 312 of the IREM, the above provisions also applies also to cases of transfer on request from one cadre/division to another cadre/division on the same Railway.
3. Their requests were complied with vide order 7.11.2002 by the first respondent transferring 30 Diesel Assistants from other Divisions to Trichy Division according to their requests and this order covered 12 of the applicants. By another order dated 20.11.2002, the second respondent transferred 6 employees including three applicants herein to Trichy Division. 15 applicants and one another employee Shri Bangaru Gupta, from Bangalore Division covered by the two transfer orders joined Trichy Division in accordance with the date of relief. While the applicants 1 to 5 from Chennai Division were relieved on 19.1.2003 with the date of joining at Trichy as 20.1.2003, the applicants 6 to 15 were relieved from Palghat Division on 13.4.2003 with the date of joining at Trichy Division on 14.4.2003. In the meantime Shri Bangaru Gupta from Bangalore who was relieved on 18.12.2002 joined Trichy on 19.12.2002.
Further during the intervening period three employees promoted as Diesel Assistants against promotional quota of 2002-2003 (R3-R5) had joined the post at Trichy on 18.1.2003 and a batch of 8 candidates recruited from open market through Railway Recruitment Board against direct recruitment quota (R6-R13) joined the working posts between 19.1.2003 and 21.1.2003.
4. The second respondent circulated a provisional seniority list of Diesel Assistants of Trichy Division in December, 2003 wherein the applicants noticed that Shri Bangaru Gupta, the three promotional quota employees and 8 direct recruits who joined in the intervening period have all been placed above the applicants at SI. Nos. 146-157 whereas the applicants whose late joining at Trichy was caused by the administrative delay in their relief from Chennai/Palghat Divisions have been assigned a lower seniority position at SI. Nos. 158-172. As the delay in joining Trichy Division was not intentional but caused by the delayed relief by the Chennai and Palghat Divisions, the applicants submitted individual representations to the second respondent on 19.1.2004 against the lower seniority given to them but without any response so far.
5. The applicants contended that Para 312 of IREM does not say that the date of actual joining should be reckoned nor does it visualise a situation like the ones of the applicants caused by deliberate administrative delay in relief. The respondents failed to appreciate the reasons for the delay caused by the administrative authority themselves though the applicants were too eager to join Trichy Division as early as possible and in spite of their representations as the respondents are not correcting the provisional gradation list, and issuing correct final list and hence the O.A.6. The respondents 1 and 2 in their reply have confirmed the basic facts while denying the allegations in fixing the seniority of the applicants. According to them, the applicants 1 to 5 have joined Trichy Division on 20.1.2003 and applicants 6 to 15 on 14.4.2003 and hence in terms of Para 312 of IREM, Volume-I they have been placed below the then existing employee appointed on 19.1.2003 through Railway Recruitment Board. Relieving the employees depend upon the exigencies of the administration as running staff are most essential in running of trains and employees are also equally responsible for their relief from the division. They added that no applicant in every division was relieved by leaving others who were issued transfer orders. They also filed additional reply statement stating that the order dated 7.11.2002 was not an order to the employee but a common memorandum advised to the Madras, Palghat, and Bangalore Divisions regarding transfer of employees. The Madras Division issued the transfer order on 19.1.2003 based on which five applicants joined on 20.1.2003. The remaining 10 employees were issued with Office Order on 24.3.2004 and these employees were relieved on 13.4.2003 and they joined duty at Trichy on 14.4.2003. As the transfers have been ordered under Para 312 of IREM Volume-I and in accordance with Rule 229 and Railway Ministry's decision under Rule 226 of IREM, Volume-I the applicants have no valid claim for revision of seniority and hence the respondents' pleaded for the dismissal of the O.A.7. Respondents 3 to 5 have filed a separate reply and they have reiterated the stand taken by the official respondents regarding the rule position namely that the applicants were transferred under Rule 226 and hence they were to be placed "below all the existing confirmed and officiating staff and the respondents 3 to 5 continue to be the employees of Trichy Division from the time of their initial appointment and they joined the promotional post as early as on 18.1.2003 whereas the applicants joined Trichy Division on request on 20.1.2003 and 14.4.2003 and the respondents 3 to 5 being "existing staff in the grade" within the meaning of Rules 226 and 312 of the IREM and they are senior to the applicants. Even though notices were served Respondents 8 to 13 there is no reply from them.
8. We have heard the learned Counsel for the applicants and the respondents and perused the relevant records carefully.
9. Both the applicants and the respondents agree on the facts namely the transfers are on request of the applicants and the seniority is to be fixed in accordance with Rules 312, 226 and 229 of the IREM, Volume-I which reads as under: Rule 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 servant" Rule 229: Transfer on request: Transfer ordered in the interest of employees shall be within the same seniority group, or different group or a mutual exchange. If such transfer are within the same seniority group under the same Railway the seniority is not affected but if the transfers are inter divisional or outside the seniority group, the Railway Ministry's decision below Rule 226 for Inter-Railway transfers shall apply.
Railway's Ministry's decision: (Under Rule 226): Requests from Railway servants in Group 'C D for transfer from one Railway to another on grounds of special cases of hardships may be considered favourably by the Railway Administration. Such staff transferred at their request from one Railway to another shall be placed below all the 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 servant of the transferred employees.
10. Thus the admitted position of both sides is that the seniority of the applicants "should be allotted below that of the existing, confirmed temporary and officiating Railway servants. "Hence the question to be decided is the actual meaning of the word "existing". It is noticed that the original decision to transfer of the employees was taken on 7.11.2002 and 20.11.2002. Both these orders contained the following condition: They will rank junior most to all the existing D ATs in scale Rs. 3050-4590 in TPJ Division to which these D ATs are to be posted This condition has been transplanted into the communication given to the employees at different times namely in Madras on 19.1.2003 in Palghat on 13.4.2003. Slid Bangaru Gupta whose name figures in the order of 7.11.2002 has joined on 19.12.2002 from Bangalore. The respondents have taken the plea that the applicants seniority will be decided in accordance with the date of joining in Trichy Division. If this plea is to be accepted, by giving the meaning to the word "existing" with reference to date of joining then a junior most person from the nearest station, getting relieved at the earliest can become senior while those at far off placed and or getting relieved subsequently due to the administrative exigencies, will suffer in their seniority. The respondents in their reply have clearly stated that: relieving the employees depend upon the exigencies of the administration as running staff are most essential in running of trains and employees are also equally responsible for their relief from the division.
11. Thus is the case of the employees whose transfer order has been approved as on 7.11.2002 and 20.11.2002, the delay in relief was essentially in public interest, in order to maintain the services unaffected for which both the administration and the employees have a common and shared responsibility. This is a valid and responsible observation made by the respondents and we fully subscribe to the same.
But holding such a rationale in public interest against the employees by giving seniority as on the date of 'joining' and relieving them at different dates, provided an unintended advantage to those who got the earlier relief or were positioned during the interregnum due to promotion or recruitment so that they could join the place of posting earlier, the respondents created inequity among the applicants and unjustifiable disadvantage to the applicants which is not sustainable.
Whereas the applicants' transfer orders were approved in November 2002 placing their seniority from the date of joining namely 19.12.2002, 20.1.2003, and 14.4.2003 is a clear violation of the principles of equity and natural justice. The basic principle in communication is to avoid any ambiguity in interpretation because where there is ambiguity, the interested parties would draw meaning which would facilitate their own interest. Therefore, the communication should be so worded that it has no scope for different interpretation by different parties as it has happened in the instant case. In a similar context, a sister Department of Govt. of India has the following provisions as Rule 38 of P&T Postal Manual Volume-IV. When an official is transferred at his own request but without arranging for mutual exchange, he will rank junior in the gradation list of the new unit to all officials of that unit on the date on which the transfer order is issued, including also all persons who have been approved for appointment to that grade as on that date.
12. From the above it is evident that the seniority on requests transfer has to be with reference to the date of the order in which the transfer is issued and not with reference to the date of joining, which is bound to be different for different persons in the same order. Thus the meaning of the word "existing" Railway servants in para 312 of the IREM has to be as those existing on the date on which the order is issued and not as on the different dates in which the applicants could actually join in keeping with the administrative interest they had to take care of. Also the respondents cannot cite different communications at various levels to deny the applicants the benefit of approval of their transfers as on 7.11.2002 and 20.11.2002 and those two dates on which the first order got issued should be taken as the relevant date to reckon with reference to the condition 'existing' staff in seniority list.
13. Therefore, the respondents plea that 'existing' refers to date of joining and not date of the issue of the order, is not sustainable being illogical, and unjust and hence the provisional seniority list dated 19.12.2003 issued on the above interpretation is set aside in so far as the applicants are concerned. The respondents are directed to recast the seniority by placing the applicants in the seniority list as on the date of the issue of their order namely 7.11.2002 and 20.11.2002 and complete this exercise within a period of two months from the date of receipt of a copy of this order. The O.A. is allowed. No costs.