Christopher Mascrene Vs. Union of India, Represented by the Secretary (Establishment) and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/938910
CourtCentral Administrative Tribunal CAT Hyderabad
Decided OnAug-05-2009
Case NumberO.A. 289 of 08
JudgeTHE HONOURABLE MRS. BHARATI RAY MEMBER (JUDL.)
AppellantChristopher Mascrene
RespondentUnion of India, Represented by the Secretary (Establishment) and Others
Advocates:Counsel for the Applicant : K.R.K.V. Prasad. Counsel for the Respondents : N.R. Devaraj for R. Nos. 1,2,4,6 and 8 V. Rajeswara Rao for R. Nos. 3,5 and 7 None appears on behalf of R. Nos. 9 and 10.
Excerpt:
(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 the inter-railway mutual transfer of the applicant and that of the 10th respondent with 9th respondent from guntakal division of south central railway to the madurai division of southern railway and declare that the mutual transfer agreed to between the 9th and 10th respondents as illegal and void and direct the respondents to effect the mutual transfer of the applicant with the 9th respondent and grant all consequential benefits. 2. it is the case of the applicant that he was appointed as diesel assistant on 05-10-2001 and on completion of training he was posted as assistant loco pilot at nandalur on 07-04-2002. the general manager, southern railway, chennai, respondent no.3 herein intimated the general manager, south central railway, secunderabad respondent no.2 herein vide letter dated 22-06-2005 that one shri kommuri sekhar (sc), assistant loco pilot, 9th respondent herein applied for inter railway mutual transfer with sri christopher mascrene, the applicant herein, working as asstt. loco pilot, guntakal division. by the said letter the 3rd respondent forwarded copy of the service register of 9th respondent and further intimated that no dar/spe/vig. cases pending against him and requested to arrange to forward the inter railway mutual transfer application, copy of service register duly attested and dar/ spe/vig. cases clearance in favour of the applicant herein, sri christopher mascrene, asstt. loco pilot of guntakal division so as to process further. copy of letter dated 22-06-2005 of r-3 is enclosed as annexure r-1 to the counter reply filed by respondents no. 3,5 and 7. from the letter of sr. dpo/gtl dated 1.8.2005 copy of which is enclosed as annexure a-3 to the oa it appears that the applicant sri christopher mascrene applied for inter railway mutual transfer to madurai division of southern railway with 9th respondent sri k. sekhar and the sr. dpo/gtl intimated the cpo/sc to obtain the certified sr of the incoming employee along with dar clearance of shri k. sekhar. it is the contention of the applicant that as per rules governing mutual transfer and in terms of declaration executed by the applicant and the private respondent no.9, the employees seeking mutual transfer are precluded from withdrawing the mutual consent given to each other for transfer. the 9th respondent in proforma- d which is an application for inter railways and inter divisional transfer dated 30-08-2004 had declared that he is willing for mutual transfer with christopher mascrene and willing to abide by the conditions laid down in para 310(b) of the indian railway establishment manual. in the said proforma he had also declared that the will not withdraw his mutual concept given to sri christopher mascrene. since no action was taken on the application made by the applicant and respondent no.9 for mutual transfer the applicant learnt that the 8th respondent vide his letter dated 28.03.2007 while furnishing certain information to the applicant under the right to information act, 2005 has informed that after obtaining sanction of the competent authority the case papers of the applicant was forwarded to the 4th respondent on 24.11.2006 who in turn had forwarded the same to the 3rd respondent on 14.12.2006. it was also indicated by the 8th respondent in the said communication that after receiving the approval of the competent authority, orders of mutual transfer would be issued. when the matter stood thus the applicant learnt that the 8th respondent has issued proceedings of mutual transfer of the 9th respondent with one m. nagaraju, senior diesel assistant, guntakal, 10th respondent herein, and the said m. nagaraju has been relieved on 07-05-2008 to effect the mutual transfer with the 9th respondent. based on the office order dated 15-04-2008 issued by the 8th respondent, the 10th respondent was relieved by the senior loco inspector/chief crew controller/ guntakal vide proceedings dated 07/08.05.2008 and an intimation to this effect was given to the 8th respondent. it is the contention of the applicant that the 4th and 8th respondents have perpetuated an illegality by accepting the mutual transfer papers of the 9th respondent which was processed by the southern railway administration during the pendency of the mutual consent transfer application between the 9th respondent and the applicant which was already on record. the 9th respondent has not withdrawn the mutual consent given to the applicant for mutual transfer (as it is not permissible) and therefore the action of the 8th respondent in entertaining the request/consent of the 9th respondent for mutual transfer with 10th respondent is illegal and void amounting to discrimination. he further contended that the 8th and 4th respondents ought not to have entertained any process in regard to mutual transfer of the 9th respondent with any other employee particularly with the 10th respondent while keeping the applicant's case pending. 3. in this context the applicant has referred to railway board instruction dated 21.04.2006 circulated by 4th respondent on 09.05.2006 (sc no.66/2006) wherein it is stated that the administration under any circumstances shall not entertain the request for backtracking of the mutual exchange arrangement agreed to by the employees. similarly, the employees seeking mutual transfer are also precluded from revising their consent to the detriment of the other. as per para 310 of irem vol. i transfers on the basis of mutual exchange are allowed with no loss or minimum loss of seniority. it is the contention of the applicant that his mutual transfer with the 9th respondent is governed by the provisions contained in para 310 of irem and the instructions mentioned supra. therefore, the act of 9th respondent in seeking and materialising mutual transfer with sri m. nagaraju, 10th respondent herein, is illegal while keeping alive the consent given to the applicant and precluded from withdrawing the same. similarly the 4th and 8th respondent have also violated the manual provision as well as railway board instruction (supra) in entertaining the mutual transfer case of 9th respondent with sri m. nagaraju, the 10th respondent herein. the applicant submitted representation on 30-04-2005 through speed post to the 4th, 6th and 8th respondents followed by another set of representations dated 02-05-2008 through proper channel with a request to stall the process relating to the mutual transfer of 9th respondent with the 10th respondent and issue favourable orders to him but the respondents have not taken any action on his representation and did not stall the relief of the 10th respondent from guntakal division. finding no other alternative the applicant has approached this tribunal seeking for the aforesaid relief. 4. the southern railway and south central railway have filed separate counter reply to contest the oa. mr. n.r. devaraj learned counsel appeared for the south central railway and mr. v. rajeswara rao learned counsel appeared for the southern railway. 5. mr. n.r. devaraj appearing for respondents no. 1,2,4 and 6 submitted that the mutual transfer case of the applicant with 9th respondent was put up for approval of the drm/gtl and the same was approved by the drm on 23.11.2006 and approval of drm was communicated to cpo/sc vide office letter dated 24.11.2006 and the cpo/sc duly sanctioned and forwarded the same to gm(p) southern railway vide letter dated 14-12-2006 for further action. it is the contention of mr. n.r. devaraj that during the pendency of the case of mutual transfer of the applicant, the 10th respondent mr. m. nagarajan, da/gtl has applied for mutual transfer to southern railway vide letter dated 19.09.2006 with the same k. sekhar, da/mdu 9th respondent herein who had already applied for mutual transfer with the applicant mr. christopher mascrene. in para-5 of the counter reply they have categorically stated that the competent authority has not agreed for the mutual transfer of 9th respondent and the same was replied to shri nagaraju vide letter dated 13.09.2007. however, gm(p) southern railway vide letter dated 02.05.2007 intimated that sri sekhar has withdrew his consent for mutual transfer with christopher mascrene, da/nre and cpo/sc advised not to process the mutual transfer case of christopher mascrene, da/nre with sri k. sekhar, da/mdu. on 6.11.2007, cpo/sc forwarded mutual transfer application of shri k. sekhar, da/mdu with nagaraju, da/gtl duly sending sr extract and dar clearance. accordingly, the mutual transfer case of shri m. nagaraju with k.sekhar had been processed and the same has been forwarded to cpo/sc with the approval of drm/gtl for obtaining sanction of competent authority. the approval has been communicated by cpo/sc vide letter dated 01.4.2008 and divisional orders issued on 15.4.2008 accepting the transfer of sri m. nagaraju mutually with sri k. sekhar. accordingly shri m.nagaraju had been relieved to drm(p)mdu on 12.05.2008. 6. this tribunal on 14-05-2008 passed an interim order to maintain status quo as on date which is still continuing. 7. mr. n.r. devaraj learned counsel for the south central railway while advancing the arguments submitted that since the 9th respondent has withdrawn his consent given earlier for mutual transfer with mr. christopher mascrene and given consent for mutual transfer with 10th respondent there is no illegality in processing the same and allowing the mutual transfer and by passing appropriate order as mentioned the counter reply filed by the south central railway. however, no such case has been made out by the south central railway that the case of mutual transfer of 9th respondent with 10th respondent has been finalised after the case of mutual transfer of applicant with 9th respondent has been closed and intimated to the applicant. 8. respondents no. 3,5 and 7 in their counter reply filed in december, 2008 while admitting that applicant and 9th respondent had applied for mutual transfer which was processed and after obtaining necessary clearance and scrutiny records in respect of shri komuri sekhar, the papers were forwarded to the chief personnel officer, chennai, the 5th respondent herein, for further onward transmission to 4th respondent, the 5th respondent forwarded the papers to 2nd respondent by letter dated 22-06-2005 have stated that there was no reply in this regard either from 2nd respondent or 4th respondent for one and half year and in the meantime sri k. sekhar, the 9th respondent submitted a letter dated 11.09.2006 to 7th respondent requesting for cancellation of mutual transfer sought by him with the applicant herein. the 9th respondent submitted another letter dated 04.12.2006 requesting for cancellation of his mutual transfer with the applicant herein. copy of letters are enclosed as annexure r-2 and r-3 respectively. the 7th respondent forwarded 9th respondent's letter dated 04.12.2006 to 5th respondent for onward transmission to 2nd respondent. the 5th respondent, in turn, forwarded 9th respondent's letter dated 04.12.2006 to 2nd respondent by letter dated 02.05.2007 with copy to 7th respondent. thus the fact of withdrawal of consent given by shri k. sekhar for mutual transfer with the applicant has been conveyed to 2nd respondent as early as 02.05.2007. it is, therefore, the contention of respondents no. 3,5 and 7 that in view of the above, further correspondence in the matter ceased. 9. it is contended by mr. v. rajeswara rao, the learned counsel for the southern railway that after withdrawing his consent for mutual transfer with the applicant, respondent no.9 proposed for mutual transfer with 10th respondent herein who was working as asstt. loco pilot at guntakal division of south central railway. the said mutual transfer was further processed and sent to 2nd respondent. the 2nd respondent processed the matter and conveyed his consent for the mutual transfer between respondent no.9 and 10 and issued a memorandum dated 01.04.2008. copy of this memorandum is enclosed as annexure r-4. based on the above memorandum, an office order was issued by 7th respondent for the mutual transfer of 9th and 10th respondent. accordingly, shri m. nagaraju was relieved from south central railway and reported to madurai division on 14.05.2008 and posted to work as asstt. loco pilot at madurai. consequent on his joining in madurai division on 14.05.08, on 28.06.2008 a fax message was received from southern railway headquarters office to 7th respondent office enclosing the order of the tribunal directing to maintain status quo. in compliance with the orders of the tribunal shri k. sekhar's relief was immediately deferred and he has not been relieved from madurai to carry out his mutual transfer. 10. mr. v. rajeswara rao, learned counsel appearing on behalf of respondents no. 3, 5 and 7 submitted that in view of withdrawal of the consent given earlier by the 9th respondent in regard to mutual transfer with the applicant, the subsequent application made for mutual transfer was processed and subsequent orders were issued and 10th respondent was relieved accordingly. however, it is not the case of respondents no. 3, 5 and 7 that (i)applicant has ever been informed about the withdrawal of consent by the 9th respondent given earlier for the mutual transfer with the applicant and (ii) in regard to the order of the mutual transfer between 9th and 10th respondent passed by the railways. 11. mr. n.r. devaraj, learned counsel appearing on behalf of respondents no. 1,2,4,6 and 8 argued that applicant who had applied for mutual transfer was kept mum for long time and has approached this tribunal questioning the mutual transfer of 9th and 10th respondents. 12. i have heard mr. k.r.k.v. prasad, learned counsel appearing on behalf of applicant, mr. n.r. devaraj, learned standing counsel for respondents no. 1,2,4,6 and 8 and mr. v. rajeswara rao, learned counsel for respondents no. 3, 5 and 7. none appeared on behalf of respondents no. 9 and 10. 13. it is not in dispute that 9th respondent had earlier applied for mutual transfer with the applicant herein and the same was processed. it is evident from the letter of sr.dpo/gtl dated 8.03.2007,copy of which is enclosed as annexure a-4 to the oa that the case of the applicant for mutual transfer with 9th respondent was forwarded to cpo/sc duly approved by drm/ gtl for obtaining sanction of competent authority vide letter dated 24.11.2006 and the same was forwarded by cpo/sc to gm(p) southern railway under letter dated 14.12.2006. by the said letter the applicant was advised, that after receiving the approval of the competent authority orders of mutual transfer will be issued. no such case has been made out by either south central railway or southern railway that applicant had ever been informed about the subsequent request of mutual transfer between 9th and 10th respondent and that the case of mutual transfer between 9th respondent and applicant was closed before the case of mutual transfer of 9th and 10th respondent was taken up. the question, therefore, falls for consideration is whether the respondents are justified in entertaining the request of mutual transfer of 9th and 10th respondents when admittedly, the 9th respondent had already given consent for mutual transfer with applicant and that too without informing the applicant. 14. it is the case of the official respondents that 9th respondent vide his letter dated 11.09.2006 withdrew his consent with applicant herein subsequently. in this context learned counsel for the applicant has drawn my attention to annexure r-2 to the counter reply filed by respondents no. 3, 5 and 7 wherein the 9th respondent had stated that he had made an application for mutual transfer from mdu/divn./s.rly to sc rly with christopher mascrene/alp/nre/ guntakal division and that the guntakal division did not accept his mutual transfer with applicant as the 9th respondent belongs to sc community and the applicant belongs to obc community and therefore requested to cancel the mutual transfer. it is the contention of the learned counsel for the applicant that soon after this application was submitted by 9th respondent, he made another representation dated 4.12.06 requesting for cancellation of mutual transfer due to family circumstances. the learned counsel for the applicant argued strenuously that 9th respondent vide letter dated 11.09.2006 tried to mislead the drm/p/mdu by giving a false information that guntakal division did not accept their mutual transfer on community ground. from the counter reply filed by respondents no. 1,2,4 and 6 it is clear that no such case has been made out by the respondents. in fact in para-3 of the counter reply it is stated that the mutual transfer case was put up for approval of the drm/gtl and the same was approved by the drm on 23.11.2006 and the same was communicated to cpo/ sc vide letter dated 24.11.2006. neither the respondents nor the applicant has stated that guntakal division did not accept the request for mutual transfer of the applicant with 9th respondent on community grounds. i have noted that the sr.dpo/gtl vide letter dated 13.09.2007 informed the 10th respondent that his request for intern railway mutual transfer with shri k. sekhar, da/mdu of s. rly. (9th respondent herein) and also the withdrawal of mutual transfer of shri k. sekhar, da/mdu with sri christopher mascrene, da/nre (applicant herein) has not been accepted by the competent authority. however, subsequently the same was processed and approved and order was issued which according to the applicant is illegal, and contrary to rules on subject. i have also noted that the 9th respondent on 30.08.2004 expressed his willingness to carry out his transfer to guntakal division of sc railway on the terms and conditions stipulated by the railways in their letter dated 19.03.1996 and 01.12.86 for transfer from one railway unit to another on personal request. one of the conditions stipulated therein is that "i will also not withdraw my mutual concept given to sri christopher mascarene." a copy of the application filed in proforma d which is enclosed along with application for mutual transfer is enclosed along with the oa filed by the applicant herein which is not denied by the respondents. i find that applicant has enclosed railway board instructions contained in letter dated 21.04.2006 circulated through serial circular no. 66/2006 as annexure a-8 to the oa. the said circular was issued on the subject of inter railway and intra-railway transfers on mutual exchange and the same reads as under : "as the railways are aware in terms of extant procedure in vogue vide para 310 of indian railway establishment manual vol. i, 1989, transfers on the basis of mutual exchange are allowed with no loss or minimum loss of seniority. instances have come to notice where employees make request for such mutual exchange transfer and later on backout when orders are issued and even after one of the two employees gets relieved to join the new place. 2. board have reviewed the matter and decided that as mutual transfers are ordered with the consent of both the parties, it should be made clear right at the time of forwarding applications for mutual transfer that no request for backtracking from the mutual exchange arrangement will be entertained under any circumstances. strict adherence to this procedure may please be ensured. " 15. it is admitted position that mr. nagaraju, 9th respondent herein applied for mutual transfer on 19.09.2006 with shri k. sekhar and has submitted his application for cancellation of his mutual transfer request made earlier vide letter dated 11.09.2006 and 4.12.2006, whereas the railway board instruction was issued on 9.5.2006. it is, therefore, clear that the 9th and 10th respondents submitted their application much after the railway board circular was issued. that being so, and in view of the declaration given by the 9th respondent that he will not withdraw his mutual concept given to sri christopher mascrene, i.e. the applicant herein, the respondents cannot entertain the request for mutual transfer with respondent no.10. i have also noticed that in the application submitted dated 11.9.2006 the 9th respondent has given false statement that guntakal division did not accept the request for mutual transfer of 9th respondent with applicant on community ground. in fact, the competent authority at scr/guntakal division has already approved the case as discussed above. the respondents are, therefore, not justified in entertaining such application which is based on false information and also it should not have been entertained in view of railway board's circular no. 66/2006 (supra). 16. in view of the above instructions on the subject and in view of the above discussion i hold that respondents are not justified in entertaining and processing the application for mutual transfer between 9th and 10th respondent based on the request of cancellation of consent given by 9th respondent vide his application dated 11.9.2006 and 4.12.2006 which were made long after sr. circular no. 66/2006 was issued and for the reason discussed above. the official respondents, by entertaining the request of 9th respondent for mutual transfer with 10th respondent and accepting the same and by issuing order of their mutual transfer, violated the relevant instruction on the subject contained in sr. circular no. 66/2006. the order of mutual transfer of 9th and 10th respondents dated 01-04-2008 is, therefore, not sustainable in the eyes of law. official, respondents are therefore directed not to effect order of mutual transfer between respondents no.9 and 10 and to quash the said order. they are further directed to process the case of the applicant and 9th respondent as per rule/instruction on the subject and pass appropriate order within a period of one month from the date of communication of the order. 17. oa is allowed to the extent indicated above with no order as to costs.
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 the inter-railway mutual transfer of the applicant and that of the 10th respondent with 9th respondent from Guntakal Division of South Central Railway to the Madurai Division of Southern Railway and declare that the mutual transfer agreed to between the 9th and 10th respondents as illegal and void and direct the respondents to effect the mutual transfer of the applicant with the 9th respondent and grant all consequential benefits.

2. It is the case of the applicant that he was appointed as Diesel Assistant on 05-10-2001 and on completion of training he was posted as Assistant Loco Pilot at Nandalur on 07-04-2002. The General Manager, Southern Railway, Chennai, respondent No.3 herein intimated the General Manager, South Central Railway, Secunderabad respondent no.2 herein vide letter dated 22-06-2005 that one Shri Kommuri Sekhar (SC), Assistant Loco Pilot, 9th respondent herein applied for Inter Railway Mutual Transfer with Sri Christopher Mascrene, the applicant herein, working as Asstt. Loco Pilot, Guntakal Division. By the said letter the 3rd respondent forwarded copy of the Service Register of 9th respondent and further intimated that no DAR/SPE/Vig. cases pending against him and requested to arrange to forward the Inter Railway Mutual Transfer application, copy of Service Register duly attested and DAR/ SPE/Vig. cases clearance in favour of the applicant herein, Sri Christopher Mascrene, Asstt. Loco Pilot of Guntakal Division so as to process further. Copy of letter dated 22-06-2005 of R-3 is enclosed as Annexure R-1 to the counter reply filed by respondents No. 3,5 and 7. From the letter of Sr. DPO/GTL dated 1.8.2005 copy of which is enclosed as Annexure A-3 to the OA it appears that the applicant Sri Christopher Mascrene applied for inter railway mutual transfer to Madurai Division of Southern Railway with 9th respondent Sri K. Sekhar and the Sr. DPO/GTL intimated the CPO/SC to obtain the certified SR of the incoming employee along with DAR clearance of Shri K. Sekhar. It is the contention of the applicant that as per rules governing mutual transfer and in terms of declaration executed by the applicant and the private respondent No.9, the employees seeking mutual transfer are precluded from withdrawing the mutual consent given to each other for transfer. The 9th respondent in Proforma- D which is an application for Inter Railways and Inter Divisional Transfer dated 30-08-2004 had declared that he is willing for mutual transfer with Christopher Mascrene and willing to abide by the conditions laid down in para 310(b) of the Indian Railway Establishment Manual. In the said proforma he had also declared that the will not withdraw his mutual concept given to Sri Christopher Mascrene. Since no action was taken on the application made by the applicant and respondent No.9 for mutual transfer the applicant learnt that the 8th respondent vide his letter dated 28.03.2007 while furnishing certain information to the applicant under the Right to Information Act, 2005 has informed that after obtaining sanction of the competent authority the case papers of the applicant was forwarded to the 4th respondent on 24.11.2006 who in turn had forwarded the same to the 3rd respondent on 14.12.2006. It was also indicated by the 8th respondent in the said communication that after receiving the approval of the competent authority, orders of mutual transfer would be issued. When the matter stood thus the applicant learnt that the 8th respondent has issued proceedings of mutual transfer of the 9th respondent with one M. Nagaraju, Senior Diesel Assistant, Guntakal, 10th respondent herein, and the said M. Nagaraju has been relieved on 07-05-2008 to effect the mutual transfer with the 9th respondent. Based on the office order dated 15-04-2008 issued by the 8th respondent, the 10th respondent was relieved by the Senior Loco Inspector/Chief Crew Controller/ Guntakal vide proceedings dated 07/08.05.2008 and an intimation to this effect was given to the 8th respondent. It is the contention of the applicant that the 4th and 8th respondents have perpetuated an illegality by accepting the mutual transfer papers of the 9th respondent which was processed by the Southern Railway administration during the pendency of the mutual consent transfer application between the 9th respondent and the applicant which was already on record. The 9th respondent has not withdrawn the mutual consent given to the applicant for mutual transfer (as it is not permissible) and therefore the action of the 8th respondent in entertaining the request/consent of the 9th respondent for mutual transfer with 10th respondent is illegal and void amounting to discrimination. He further contended that the 8th and 4th respondents ought not to have entertained any process in regard to mutual transfer of the 9th respondent with any other employee particularly with the 10th respondent while keeping the applicant's case pending.

3. In this context the applicant has referred to Railway Board instruction dated 21.04.2006 circulated by 4th respondent on 09.05.2006 (SC No.66/2006) wherein it is stated that the administration under any circumstances shall not entertain the request for backtracking of the mutual exchange arrangement agreed to by the employees. Similarly, the employees seeking mutual transfer are also precluded from revising their consent to the detriment of the other. As per para 310 of IREM Vol. I transfers on the basis of mutual exchange are allowed with no loss or minimum loss of seniority. It is the contention of the applicant that his mutual transfer with the 9th respondent is governed by the provisions contained in Para 310 of IREM and the instructions mentioned supra. Therefore, the act of 9th respondent in seeking and materialising mutual transfer with Sri M. Nagaraju, 10th respondent herein, is illegal while keeping alive the consent given to the applicant and precluded from withdrawing the same. Similarly the 4th and 8th respondent have also violated the Manual provision as well as Railway Board instruction (supra) in entertaining the mutual transfer case of 9th respondent with Sri M. Nagaraju, the 10th respondent herein. The applicant submitted representation on 30-04-2005 through speed post to the 4th, 6th and 8th respondents followed by another set of representations dated 02-05-2008 through proper channel with a request to stall the process relating to the mutual transfer of 9th respondent with the 10th respondent and issue favourable orders to him but the respondents have not taken any action on his representation and did not stall the relief of the 10th respondent from Guntakal division. Finding no other alternative the applicant has approached this Tribunal seeking for the aforesaid relief.

4. The Southern Railway and South Central Railway have filed separate counter reply to contest the OA. Mr. N.R. Devaraj learned counsel appeared for the South Central Railway and Mr. V. Rajeswara Rao learned counsel appeared for the Southern Railway.

5. Mr. N.R. Devaraj appearing for respondents No. 1,2,4 and 6 submitted that the mutual transfer case of the applicant with 9th respondent was put up for approval of the DRM/GTL and the same was approved by the DRM on 23.11.2006 and approval of DRM was communicated to CPO/SC vide office letter dated 24.11.2006 and the CPO/SC duly sanctioned and forwarded the same to GM(P) Southern Railway vide letter dated 14-12-2006 for further action. It is the contention of Mr. N.R. Devaraj that during the pendency of the case of mutual transfer of the applicant, the 10th respondent Mr. M. Nagarajan, DA/GTL has applied for mutual transfer to Southern Railway vide letter dated 19.09.2006 with the same K. Sekhar, DA/MDU 9th respondent herein who had already applied for mutual transfer with the applicant Mr. Christopher Mascrene. In para-5 of the counter reply they have categorically stated that the competent authority has not agreed for the mutual transfer of 9th respondent and the same was replied to Shri Nagaraju vide letter dated 13.09.2007. However, GM(P) Southern Railway vide letter dated 02.05.2007 intimated that Sri Sekhar has withdrew his consent for mutual transfer with Christopher Mascrene, DA/NRE and CPO/SC advised not to process the mutual transfer case of Christopher Mascrene, DA/NRE with Sri K. Sekhar, DA/MDU. On 6.11.2007, CPO/SC forwarded mutual transfer application of Shri K. Sekhar, DA/MDU with Nagaraju, DA/GTL duly sending SR extract and DAR clearance. Accordingly, the mutual transfer case of Shri M. Nagaraju with K.Sekhar had been processed and the same has been forwarded to CPO/SC with the approval of DRM/GTL for obtaining sanction of competent authority. The approval has been communicated by CPO/SC vide letter dated 01.4.2008 and divisional orders issued on 15.4.2008 accepting the transfer of Sri M. Nagaraju mutually with Sri K. Sekhar. Accordingly Shri M.Nagaraju had been relieved to DRM(P)MDU on 12.05.2008.

6. This Tribunal on 14-05-2008 passed an interim order to maintain status quo as on date which is still continuing.

7. Mr. N.R. Devaraj learned counsel for the South Central Railway while advancing the arguments submitted that since the 9th respondent has withdrawn his consent given earlier for mutual transfer with Mr. Christopher Mascrene and given consent for mutual transfer with 10th respondent there is no illegality in processing the same and allowing the mutual transfer and by passing appropriate order as mentioned the counter reply filed by the South Central Railway. However, no such case has been made out by the South Central Railway that the case of mutual transfer of 9th respondent with 10th respondent has been finalised after the case of mutual transfer of applicant with 9th respondent has been closed and intimated to the applicant.

8. Respondents No. 3,5 and 7 in their counter reply filed in December, 2008 while admitting that applicant and 9th respondent had applied for mutual transfer which was processed and after obtaining necessary clearance and scrutiny records in respect of Shri Komuri Sekhar, the papers were forwarded to the Chief Personnel officer, Chennai, the 5th respondent herein, for further onward transmission to 4th respondent, the 5th respondent forwarded the papers to 2nd respondent by letter dated 22-06-2005 have stated that there was no reply in this regard either from 2nd respondent or 4th respondent for one and half year and in the meantime Sri K. Sekhar, the 9th respondent submitted a letter dated 11.09.2006 to 7th respondent requesting for cancellation of mutual transfer sought by him with the applicant herein. The 9th respondent submitted another letter dated 04.12.2006 requesting for cancellation of his mutual transfer with the applicant herein. Copy of letters are enclosed as Annexure R-2 and R-3 respectively. The 7th respondent forwarded 9th respondent's letter dated 04.12.2006 to 5th respondent for onward transmission to 2nd respondent. The 5th respondent, in turn, forwarded 9th respondent's letter dated 04.12.2006 to 2nd respondent by letter dated 02.05.2007 with copy to 7th respondent. Thus the fact of withdrawal of consent given by Shri K. Sekhar for mutual transfer with the applicant has been conveyed to 2nd respondent as early as 02.05.2007. It is, therefore, the contention of respondents No. 3,5 and 7 that in view of the above, further correspondence in the matter ceased.

9. It is contended by Mr. V. Rajeswara Rao, the learned counsel for the Southern Railway that after withdrawing his consent for mutual transfer with the applicant, respondent no.9 proposed for mutual transfer with 10th respondent herein who was working as Asstt. Loco Pilot at Guntakal Division of South Central Railway. The said mutual transfer was further processed and sent to 2nd respondent. The 2nd respondent processed the matter and conveyed his consent for the mutual transfer between respondent no.9 and 10 and issued a memorandum dated 01.04.2008. Copy of this memorandum is enclosed as Annexure R-4. Based on the above memorandum, an office order was issued by 7th respondent for the mutual transfer of 9th and 10th respondent. Accordingly, Shri M. Nagaraju was relieved from South Central Railway and reported to Madurai Division on 14.05.2008 and posted to work as Asstt. Loco Pilot at Madurai. Consequent on his joining in Madurai division on 14.05.08, on 28.06.2008 a fax message was received from Southern Railway Headquarters office to 7th respondent office enclosing the order of the Tribunal directing to maintain status quo. In compliance with the orders of the Tribunal Shri K. Sekhar's relief was immediately deferred and he has not been relieved from Madurai to carry out his mutual transfer.

10. Mr. V. Rajeswara Rao, learned counsel appearing on behalf of respondents No. 3, 5 and 7 submitted that in view of withdrawal of the consent given earlier by the 9th respondent in regard to mutual transfer with the applicant, the subsequent application made for mutual transfer was processed and subsequent orders were issued and 10th respondent was relieved accordingly. However, it is not the case of respondents no. 3, 5 and 7 that (i)applicant has ever been informed about the withdrawal of consent by the 9th respondent given earlier for the mutual transfer with the applicant and (ii) in regard to the order of the mutual transfer between 9th and 10th respondent passed by the Railways.

11. Mr. N.R. Devaraj, learned counsel appearing on behalf of respondents No. 1,2,4,6 and 8 argued that applicant who had applied for mutual transfer was kept mum for long time and has approached this Tribunal questioning the mutual transfer of 9th and 10th respondents.

12. I have heard Mr. K.R.K.V. Prasad, learned counsel appearing on behalf of applicant, Mr. N.R. Devaraj, learned standing counsel for respondents No. 1,2,4,6 and 8 and Mr. V. Rajeswara Rao, learned counsel for respondents No. 3, 5 and 7. None appeared on behalf of respondents No. 9 and 10.

13. It is not in dispute that 9th respondent had earlier applied for mutual transfer with the applicant herein and the same was processed. It is evident from the letter of Sr.DPO/GTL dated 8.03.2007,copy of which is enclosed as Annexure A-4 to the OA that the case of the applicant for mutual transfer with 9th respondent was forwarded to CPO/SC duly approved by DRM/ GTL for obtaining sanction of competent authority vide letter dated 24.11.2006 and the same was forwarded by CPO/SC to GM(P) Southern Railway under letter dated 14.12.2006. By the said letter the applicant was advised, that after receiving the approval of the competent authority orders of mutual transfer will be issued. No such case has been made out by either South Central Railway or Southern Railway that applicant had ever been informed about the subsequent request of mutual transfer between 9th and 10th respondent and that the case of mutual transfer between 9th respondent and applicant was closed before the case of mutual transfer of 9th and 10th respondent was taken up. The question, therefore, falls for consideration is whether the respondents are justified in entertaining the request of mutual transfer of 9th and 10th respondents when admittedly, the 9th respondent had already given consent for mutual transfer with applicant and that too without informing the applicant.

14. It is the case of the official respondents that 9th respondent vide his letter dated 11.09.2006 withdrew his consent with applicant herein subsequently. In this context learned counsel for the applicant has drawn my attention to Annexure R-2 to the counter reply filed by respondents No. 3, 5 and 7 wherein the 9th respondent had stated that he had made an application for mutual transfer from MDU/Divn./S.Rly to SC Rly with Christopher Mascrene/ALP/NRE/ Guntakal Division and that the Guntakal division did not accept his mutual transfer with applicant as the 9th respondent belongs to SC community and the applicant belongs to OBC community and therefore requested to cancel the mutual transfer. It is the contention of the learned counsel for the applicant that soon after this application was submitted by 9th respondent, he made another representation dated 4.12.06 requesting for cancellation of mutual transfer due to family circumstances. The learned counsel for the applicant argued strenuously that 9th respondent vide letter dated 11.09.2006 tried to mislead the DRM/P/MDU by giving a false information that Guntakal division did not accept their mutual transfer on community ground. From the counter reply filed by respondents No. 1,2,4 and 6 it is clear that no such case has been made out by the respondents. In fact in para-3 of the counter reply it is stated that the mutual transfer case was put up for approval of the DRM/GTL and the same was approved by the DRM on 23.11.2006 and the same was communicated to CPO/ SC vide letter dated 24.11.2006. Neither the respondents nor the applicant has stated that Guntakal division did not accept the request for mutual transfer of the applicant with 9th respondent on community grounds. I have noted that the Sr.DPO/GTL vide letter dated 13.09.2007 informed the 10th respondent that his request for Intern Railway Mutual Transfer with Shri K. Sekhar, DA/MDU of S. Rly. (9th respondent herein) and also the withdrawal of Mutual Transfer of Shri K. Sekhar, DA/MDU with Sri Christopher Mascrene, DA/NRE (applicant herein) has not been accepted by the competent authority. However, subsequently the same was processed and approved and order was issued which according to the applicant is illegal, and contrary to rules on subject. I have also noted that the 9th respondent on 30.08.2004 expressed his willingness to carry out his transfer to Guntakal division of SC Railway on the terms and conditions stipulated by the Railways in their letter dated 19.03.1996 and 01.12.86 for transfer from one railway unit to another on personal request. One of the conditions stipulated therein is that "I will also not withdraw my mutual concept given to Sri Christopher Mascarene." A copy of the application filed in Proforma D which is enclosed along with application for mutual transfer is enclosed along with the OA filed by the applicant herein which is not denied by the respondents. I find that applicant has enclosed Railway Board instructions contained in letter dated 21.04.2006 circulated through Serial Circular No. 66/2006 as Annexure A-8 to the OA. The said circular was issued on the subject of Inter Railway and Intra-Railway transfers on mutual exchange and the same reads as under :

"As the Railways are aware in terms of extant procedure in vogue vide para 310 of Indian Railway Establishment Manual Vol. I, 1989, transfers on the basis of mutual exchange are allowed with no loss or minimum loss of seniority. Instances have come to notice where employees make request for such mutual exchange transfer and later on backout when orders are issued and even after one of the two employees gets relieved to join the new place.

2. Board have reviewed the matter and decided that as mutual transfers are ordered with the consent of both the parties, it should be made clear right at the time of forwarding applications for mutual transfer that no request for backtracking from the mutual exchange arrangement will be entertained under any circumstances. Strict adherence to this procedure may please be ensured. "

15. It is admitted position that Mr. Nagaraju, 9th respondent herein applied for mutual transfer on 19.09.2006 with Shri K. Sekhar and has submitted his application for cancellation of his mutual transfer request made earlier vide letter dated 11.09.2006 and 4.12.2006, whereas the Railway Board instruction was issued on 9.5.2006. It is, therefore, clear that the 9th and 10th respondents submitted their application much after the Railway Board circular was issued. That being so, and in view of the declaration given by the 9th respondent that he will not withdraw his mutual concept given to Sri Christopher Mascrene, i.e. the applicant herein, the respondents cannot entertain the request for mutual transfer with respondent No.10. I have also noticed that in the application submitted dated 11.9.2006 the 9th respondent has given false statement that Guntakal division did not accept the request for mutual transfer of 9th respondent with applicant on community ground. In fact, the competent authority at SCR/Guntakal division has already approved the case as discussed above. The respondents are, therefore, not justified in entertaining such application which is based on false information and also it should not have been entertained in view of Railway Board's circular No. 66/2006 (supra).

16. In view of the above instructions on the subject and in view of the above discussion I hold that respondents are not justified in entertaining and processing the application for mutual transfer between 9th and 10th respondent based on the request of cancellation of consent given by 9th respondent vide his application dated 11.9.2006 and 4.12.2006 which were made long after Sr. Circular no. 66/2006 was issued and for the reason discussed above. The official respondents, by entertaining the request of 9th respondent for mutual transfer with 10th respondent and accepting the same and by issuing order of their mutual transfer, violated the relevant instruction on the subject contained in Sr. Circular No. 66/2006. The order of mutual transfer of 9th and 10th respondents dated 01-04-2008 is, therefore, not sustainable in the eyes of law. Official, respondents are therefore directed not to effect order of mutual transfer between respondents no.9 and 10 and to quash the said order. They are further directed to process the case of the applicant and 9th respondent as per rule/instruction on the subject and pass appropriate order within a period of one month from the date of communication of the order.

17. OA is allowed to the extent indicated above with no order as to costs.