T. Mayilswamy, Vs. Union of India and Others - Court Judgment

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CourtCentral Administrative Tribunal CAT Ernakulam
Decided OnAug-26-2010
Case Number Original Application No. 652 of 2010
JudgeTHE HONOURABLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER
AppellantT. Mayilswamy,
RespondentUnion of India and Others
Advocates:For the Petitioner: T.C. Govindaswamy, Advocate. For the Respondents: R1 to R3 - Thomas Mathew Nellimoottil, Advocate.
Excerpt:
hon'ble mr. k. george joseph, administrative member 1. this o.a. has been filed by the applicant who is working as junior engineer grade-ii at mangalore railway station of palghat division, aggrieved by the non-feasance on the part of the respondents in relieving him from palghat division to join salem division in spite of the orders of transfer dated 27.04.2007/31.10.2007 and 14.11.2007. 2. on having exercised the option for joining the newly formed salem division, the applicant along with others were transferred and posted to the mechanical branch of divisional office at salem vide annexure a-1 order dated 27.04.07/31.10.2007. this was followed by another order at annexure a-2 dated 14.11.2007 stating that the applicants and others are transferred on their same pay and scale and posted to the mechanical branch, divisional office, salem division against the posts transferred from palghat. though the order of transfer was issued in october, 2007, the applicant was not relieved to join salem division despite repeated requests. in the meanwhile, the respondents passed annexure a-3 order no. j/p676/salem divn/formation dated 01.09.2008 granting him lien in the newly formed salem division and annexure a-4 order dated 20.11.2008 stating that the applicant along with others are provided with lien in the newly formed salem division and they will not be considered for promotion in the palghat division and annexure a-5 order no. sa:m193/candw staff dated 13.12.2009 stating that unless the applicant and others are transferred from palghat division to salem division, their promotions will not be considered. the applicant further submitted a representation dated 14.06.2010 which is still pending for a response. on being informed by the respondents orally that the applicant will not be relieved unless a substitute is provided, the applicant has found out one shri g.b. sreekumar who is willing to be transferred to palghat division and submitted a request for mutual transfer as at annexure a-7. all those who were transferred in terms of the orders dated 27.04.2007/31.10.2007 and 14.11.2007 have already been relieved and the applicant is the only person who has been singled out for a differential treatment. 3. the applicant submits that the orders of his transfer are still in force and they have not been modified or nullified. therefore, non-feasance on the part of the respondents to relieve him from palghat division to join salem division is arbitrary and discriminatory. as a matter of fact, a person has newly joined as a junior engineer grade-ii in the mechanical branch of southern railway, palghat division. the applicant understands that six persons are already undergoing their training at tiruchirapalli, four of whom are to compete their training by october, 2010 and the remaining two in december, 2010. therefore, there is no reason to withhold the applicant's relieving to salem division in terms of the aforesaid transfer orders. the applicant is the only person who has been singled out for a discriminatory treatment. therefore, the o.a. should be allowed. 4. the respondents contested the o.a. it was submitted by them that the applicant has not represented at any point of time so as to become an aggrieved person. the applicant is seeking the relief after 3 years of his transfer order. there is inordinate delay in filing the o.a. the applicant is working in the supervisory cadre of carriage and wagon supervisors in which there are 23 vacancies at present. therefore, the applicant could not be relieved since the position of supervisors has not improved. as the applicant is working in the category of carriage and wagon supervisor, relieving him without proper replacement will affect the safe running of trains in palghat division. even though the transfer order was issued on 14.11.2007, as no replacement has been provided, the 4th respondent is forced to detain the applicant until the position of the supervisors is improved. all those who are transferred from palghat division to salem division are seniors to the applicant. the respondents have not refused to relieve the applicant from palghat division to salem division. the only reason for the non-relief of the applicant is acute shortage of carriage and wagon supervisors who are responsible for the examination of coaches and, therefore, responsible for safe running of trains. for the above reason, the respondents prays for dismissal of the o.a. 5. arguments were heard and documents perused. 6. the contentions of the respondents that the applicant has not represented at any point of time so as to become a aggrieved person and that there is a delay in filing the o.a., are not acceptable for the reason that the transfer order is still in force. the respondents have neither cancelled nor modified it. the applicant is running around for getting implemented the order of his transfer issued in october, 2007. the administrative exigencies cited by the respondents for not relieving the applicant are also not justifiable. if a substitute is required, the applicant, vide annexure a-7 request for mutual transfer, has already provided one mr. g.b. sreekumar, as a substitute in his place. further, six persons are completing their training by october/december, 2010 and will be available as stated by the applicant in the o.a. the respondents are silent as far as the above submissions of the applicant are concerned. the respondents have also made it clear that he will not be considered for promotion in palghat division as his lien is in salem division nor in salem division as he is not posted there. thus the applicant is put in serious jeopardy by non relieving him from palghat division. in the facts circumstances of the case, it clearly seen that the administrative exigencies that prevented the respondents from relieving the applicant from palghat division to join salem division can easily be solved either by granting mutual transfer sought by the applicant and shri g.b. sreekumar or by the persons who are about to complete their training. therefore, the o.a. is allowed on merit. 7. the respondents are directed to relieve the applicant from palghat division to join salem division in accordance with the transfer orders dated 27.04.07/31.10.2007 and14.11.2007 within a period of sixty (60) days from the date of receipt of a copy of this order. no order as to costs.
Judgment:

HON'BLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER

1. This O.A. has been filed by the applicant who is working as Junior Engineer Grade-II at Mangalore Railway Station of Palghat Division, aggrieved by the non-feasance on the part of the respondents in relieving him from Palghat Division to join Salem Division in spite of the orders of transfer dated 27.04.2007/31.10.2007 and 14.11.2007.

2. On having exercised the option for joining the newly formed Salem Division, the applicant along with others were transferred and posted to the Mechanical Branch of Divisional Office at Salem vide Annexure A-1 order dated 27.04.07/31.10.2007. This was followed by another order at Annexure A-2 dated 14.11.2007 stating that the applicants and others are transferred on their same pay and scale and posted to the Mechanical Branch, Divisional Office, Salem Division against the posts transferred from Palghat. Though the order of transfer was issued in October, 2007, the applicant was not relieved to join Salem Division despite repeated requests. In the meanwhile, the respondents passed Annexure A-3 order No. J/P676/Salem Divn/Formation dated 01.09.2008 granting him lien in the newly formed Salem Division and Annexure A-4 order dated 20.11.2008 stating that the applicant along with others are provided with lien in the newly formed Salem Division and they will not be considered for promotion in the Palghat Division and Annexure A-5 order No. SA:M193/CandW staff dated 13.12.2009 stating that unless the applicant and others are transferred from Palghat Division to Salem Division, their promotions will not be considered. The applicant further submitted a representation dated 14.06.2010 which is still pending for a response. On being informed by the respondents orally that the applicant will not be relieved unless a substitute is provided, the applicant has found out one Shri G.B. Sreekumar who is willing to be transferred to Palghat Division and submitted a request for mutual transfer as at Annexure A-7. All those who were transferred in terms of the orders dated 27.04.2007/31.10.2007 and 14.11.2007 have already been relieved and the applicant is the only person who has been singled out for a differential treatment.

3. The applicant submits that the orders of his transfer are still in force and they have not been modified or nullified. Therefore, non-feasance on the part of the respondents to relieve him from Palghat Division to join Salem Division is arbitrary and discriminatory. As a matter of fact, a person has newly joined as a Junior Engineer Grade-II in the Mechanical Branch of Southern Railway, Palghat Division. The applicant understands that six persons are already undergoing their training at Tiruchirapalli, four of whom are to compete their training by October, 2010 and the remaining two in December, 2010. Therefore, there is no reason to withhold the applicant's relieving to Salem Division in terms of the aforesaid transfer orders. The applicant is the only person who has been singled out for a discriminatory treatment. Therefore, the O.A. should be allowed.

4. The respondents contested the O.A. It was submitted by them that the applicant has not represented at any point of time so as to become an aggrieved person. The applicant is seeking the relief after 3 years of his transfer order. There is inordinate delay in filing the O.A. The applicant is working in the supervisory cadre of Carriage and Wagon Supervisors in which there are 23 vacancies at present. Therefore, the applicant could not be relieved since the position of supervisors has not improved. As the applicant is working in the category of Carriage and Wagon Supervisor, relieving him without proper replacement will affect the safe running of trains in Palghat Division. Even though the transfer order was issued on 14.11.2007, as no replacement has been provided, the 4th respondent is forced to detain the applicant until the position of the Supervisors is improved. All those who are transferred from Palghat Division to Salem Division are seniors to the applicant. The respondents have not refused to relieve the applicant from Palghat Division to Salem Division. The only reason for the non-relief of the applicant is acute shortage of Carriage and Wagon Supervisors who are responsible for the examination of coaches and, therefore, responsible for safe running of trains. For the above reason, the respondents prays for dismissal of the O.A.

5. Arguments were heard and documents perused.

6. The contentions of the respondents that the applicant has not represented at any point of time so as to become a aggrieved person and that there is a delay in filing the O.A., are not acceptable for the reason that the transfer order is still in force. The respondents have neither cancelled nor modified it. The applicant is running around for getting implemented the order of his transfer issued in October, 2007. The administrative exigencies cited by the respondents for not relieving the applicant are also not justifiable. If a substitute is required, the applicant, vide Annexure A-7 request for mutual transfer, has already provided one Mr. G.B. Sreekumar, as a substitute in his place. Further, six persons are completing their training by October/December, 2010 and will be available as stated by the applicant in the O.A. The respondents are silent as far as the above submissions of the applicant are concerned. The respondents have also made it clear that he will not be considered for promotion in Palghat Division as his lien is in Salem Division nor in Salem Division as he is not posted there. Thus the applicant is put in serious jeopardy by non relieving him from Palghat Division. In the facts circumstances of the case, it clearly seen that the administrative exigencies that prevented the respondents from relieving the applicant from Palghat Division to join Salem Division can easily be solved either by granting mutual transfer sought by the applicant and Shri G.B. Sreekumar or by the persons who are about to complete their training. Therefore, the O.A. is allowed on merit.

7. The respondents are directed to relieve the applicant from Palghat Division to join Salem Division in accordance with the transfer orders dated 27.04.07/31.10.2007 and14.11.2007 within a period of sixty (60) days from the date of receipt of a copy of this order. No order as to costs.