Full Judgment
(Per Hon'ble Mrs. Bharati Ray, Member (J)
This application has been filed by the applicant seeking for the following relief :
To call for the records pertaining to Memorandum No. B.P.676/III/ Rg/I/Vol.IX dated 11/13.04.2007 and set aside same as illegal and direct the official respondents to declare the applicant as belonging to Vijayawada division in accordance with the Inter Divisional Mutual transfer order S.O.O.No. 22/ELR/ 3/2006 dated 20.03.2006 and Office Order No. Mech/BG/2S/2006 dated 12-04- 2006 and fix his seniority in the Driver (Goods) cadre of Vijayawada division as per the rules relating to mutual transfer and grant all consequential benefits including fixation of seniority.
2. The applicant was appointed as apprentice Diesel/Electrical Assistant in scale Rs.3050-4590 in Secunderabad Division of South Central Railway on 27.04.1994 and progressed further to the post of Goods Driver in scale of Rs.5000-8000 RS(RP). The applicant while working as Goods Driver had sought Inter Divisional Mutual Transfer with 7th respondent Sri P.L.A. Khan who was working as Goods Driver under the control of Chief Crew Controller / Rajahmundry in Vijayawada Division of South Central Railway. Both the employees were working in the same grade of Rs.5000-8000 RS(RP) at the time of applying for Inter Divisional Mutual Transfer, which is an intermediate grade and filled on promotion only. The Inter Divisional Mutual Transfer of both the employees were got approved by the competent authority subject to fulfillment of the following terms and conditions applicable to such transfers as mentioned in the5th respondent's office order dated 12-04-2006 copy of which is enclosed as Annexure R-I to the counter reply filed by the respondents. The conditions stipulated therein are :
(a) The employee will take their seniority in the new seniority units to which they are transferred as per extant orders applicable for mutual transfer i.e. they will retain their own seniority or take the seniority of the other in the new seniority unit to which they are posted, whichever is lower.
(b) They will retain their lien in their parent Division till such time they are confirmed in the new seniority unit to which they are posted.
(c) They should not seek re-transfer to their parent unit at a later date.
(d) As the transfer is ordered at their own request they will not be entitled for any transfer facilities such as joining time, transfer, pass, composite transfer grant etc.
(e) There are no DAR/SPE/Vigilance cases pending/ contemplated against them and they should not be undergoing any penalty on the date of their relief.
(f) Those employees should possess the Gand SR Certificate issued by ZRTI.
3. In pursuance to the terms and conditions laid down in the mutual transfer order dated 20.03.2006, the applicant got relieved by the Divisional Railway Manager/ Personnel/ Secunderabad on 31.03.2006 and reported to Sr. Divisional Personnel Officer/Vijayawada on 03.04.2006. The applicant was posted to work under the control of Chief Crew Controller/Bitragunta on 12.04.2006. The applicant while working as Goods Driver at Bitragunta, volunteered for the post of Crew Controller and on being found suitable for the post, he was posted as Crew Controller/Rajahmundry on 04.01.2007. However, the 7th respondent with whom mutual transfer was made was absent from 13-04-2006 and reported for duty on 31.07.2006. He was sent for medical examination by Chief Crew Controller/Rajahmundry in which he was found unfit for foot-plate duties w.e.f. 26.08.2006. Accordingly he was medically decategorised for the post of Goods Driver and was kept on supernumerary post to provide alternative appointment. Due to his medical decategorisation the 7th respondent was not relieved to Secunderabad division on mutual transfer with the applicant. The respondents, therefore, cancelled the Inter Divisional Mutual Transfer of both the employees vide memorandum dated 13.04.2007, copy of which is enclosed as Annexure A-I at page 9 of the OA. Questioning the said cancellation of the mutual transfer the applicant has approached this Tribunal seeking for the aforesaid relief.
4. Respondents have filed a counter reply and additional counter reply. It is the case of the respondents that due to medical decategorisation of 7th respondent he could not be relieved to Secunderabad Division on Inter Divisional Mutual transfer of the applicant. It is, therefore, their contention that as per the terms and conditions stipulated in office order dated 12-04-2006, the applicant and the 7th respondent will retain their lien in their parent division till such time they are confirmed in the new seniority unit to which they are posted. Since the 7th respondent could not be relieved to Secunderabad division and did not join there, their lien was still maintained in the parent division even after the applicant joined at Vijayawada division. Therefore, as per the conditions laid down in the office order, the lien of the applicant is still maintained in Secunderabad division as the 7th respondent has not joined there. It is further stated by the respondents that after the applicant joined Vijayawada division, the events occurred in respect of 7th respondent and due procedure has been followed, consequent to that the 7th respondent was medically decategorised and ultimately he took voluntary retirement. Therefore, there is nothing wrong in cancelling the mutual transfer vide impugned memorandum dated 13.04.2007.
5. Drawing our attention to the conditions stipulated in the office memorandum dated 12.04.2006, copy of which is enclosed at page-9 of the reply, learned counsel for the respondents submitted that in terms of condition No.2 they will retain their lien in their parent division till such time they are confirmed in the new seniority unit to which they are posted. Since the applicant was not confirmed in the new seniority list, the 7th respondent could not be relieved to join the post held by the applicant. There is nothing wrong in cancelling the mutual transfer so that the applicant can return to his earlier division. He further submits that applicant's seniority and pay will in no way be affected.
6. Heard Mr. K.R.K.V. Prasad learned counsel for the applicant and Mr. N.R. Devaraj learned counsel for the respondents. We have gone through the facts of the case and material papers placed before us.
7. On 18-06-2008 when the OA came up for admission hearing this Tribunal granted interim order to the extent of maintaining status-quo as on that date.
8. In view of the above facts and circumstances which are not in dispute the question that falls for consideration is whether the respondents are justified in cancelling the mutual transfer of the applicant with 7th respondent.
9. It is not in dispute that on approval of the mutual transfer by the competent authority the applicant was relieved on 31.03.2006 and reported to Sr. Divisional Personnel Officer/ Vijayawada on 03-04-2006.
10. We do not find force in the contention of the learned counsel for the respondents that since the applicant has not been confirmed in terms of condition (b) of mutual transfer, he is liable to be transferred back since his reliever did not join the post he was holding . On the contrary, there is no bar in confirming him in the transferred post he joined because of the failure on the part of the other person to join the post for the reasons given by the respondents. In fact, since the other person has not been relieved, nobody is going to be prejudiced for retention of the applicant in his transferred post. The reasons given by the respondents are not convincing for cancellation of their transfer. In fact, in terms of condition (c) of mutual transfer (supra), once the applicant joined the transferred post, he is not entitled to seek re-transfer to his parent unit. That being so, respondents cannot, now, transfer him back to his parent unit against his will. It is for the respondents to confirm him there in his transferred post. Para(b) cannot be read in isolation. It is to be read along with other para (c) and other conditions stipulated in the order. The applicant is in no way responsible for the failure on the part of the other person (7th respondent) to join the post. More over, nobody is going to be prejudiced for his not joining the said post.
11. We are, therefore, of the view that impugned memorandum dated 11/13.04.07 of DRM (P) in connection to cancellation of mutual transfer and consequent repatriation of applicant to his parent Secunderabad division is not in order for the reasons mentioned above and the same is not sustainable in the eye of law. The same is accordingly quashed and set aside to the extent of cancellation of his transfer and repatriation to his parent division. The seniority of the applicant will be fixed as per the seniority of the person (7th respondent) who retired voluntarily on medical decategorisation.
12. The OA is allowed to the extent indicated above with no order as to costs.