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2017 DIGILAW 1458 (GAU)

Union of India v. Sagir Ahmed

2017-11-20

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT : Manojit Bhuyan, J. 1. Sri Sagir Ahmed, the sole respondent in WP(C) 5342/2016 and Sri Bapmani Das in WP(C) 5931/2016 had successfully challenged the office order of transfer and repatriation to their place of lien in two separate Original Applications before the Central Administrative Tribunal, Guwahati Bench. A common order dated 04.04.2016 was passed by the Tribunal in both the Original Applications. This is how the present two writ petitions have come to be preferred by the Union of India. As both the writ petitions involve identical questions of facts and law, the same are adjudicated by this common judgment and order. The facts appearing in WP(C) 5342/2016 are being primarily noticed for case of reference. We have heard Mr. H.K. Das, learned counsel for the petitioners in both the writ petitions as well as Dr. B. Ahmed, learned counsel for the sole respondents in the respective writ petitions. 2. Facts to be noticed are that Sagir Ahmed and Bapmani Das were initially employed as Diesel Khalasi at the Diesel Shed of Siliguri Junction, Katihar Division, N.F. Railway in the year 1999. Their promotion to the rank of Technician Grade-III (Artisan) came about in April 2002 in the same office at Siliguri Junction. In the same year the Diesel Shed at Rangapara Junction under Rangia Division was opened and options were invited for transfer and posting against the post created at Rangapara Junction. Options being made, both Sagir Ahmed and Bapmani Das were transferred and posted at the Diesel Shed of Rangapara Junction in their same pay scale and capacity. This Office Order of transfer dated 13.03.2003 was issued from the Office of the Senior Divisional Mechanical Engineer/Diesel, Siliguri Junction and it was mentioned that the seniority unit of the staff so transferred will be maintained at the Diesel Shed, Siliguri Junction, as usual. Pursuant thereto, the private respondents joined at Rangapara Junction. While serving at Rangapara Junction, by Office Order dated 05.12.2008, issued from the Diesel Shed, Siliguri Junction, Sagir Ahmed was promoted to Diesel Technician Grade-II (Mechanical). Likewise, by Office Order dated 13.05.2010, Bapmani Das was promoted by the same authority as Diesel Technician Grade-11 (Mechanical). In the year 2011 the Diesel Shed at Rangapara Junction was closed down for administrative reasons. As a result, an issue arose with regard to re-deployment of staff from Rangapara Junction. Likewise, by Office Order dated 13.05.2010, Bapmani Das was promoted by the same authority as Diesel Technician Grade-11 (Mechanical). In the year 2011 the Diesel Shed at Rangapara Junction was closed down for administrative reasons. As a result, an issue arose with regard to re-deployment of staff from Rangapara Junction. In this regard a meeting was held on 18.10.2011 between the Railway Authorities and representatives of two Unions. One of the modalities of re-deployment agreed upon was that the staff of maintenance for Diesel Locos of Rangapara Shed will be re-deployed permanently to the cadre of their lien, either at Siliguri Diesel Shed or Lumding Diesel Shed or to other places as per their options subject to availability of vacancy and bottom seniority. Meanwhile, representations were made by Sagir Ahmed and Bapmani Das to the appropriate authority requesting their posting at the Diesel Shed, New Guwahati consequent upon closure of the Diesel Shed at Rangapara Junction. On 15.12.2011, an Office Order was issued transferring and posting both Sagir Ahmed and Bapmani Das at New Guwahati against D.R. quota accepting bottom seniority as Technician Grade-III. This was followed by the letter dated 29.12.2011 issued from the Diesel Shed, Rangapara Junction, informing the Senior Divisional Mechanical Engineer, New Guwahati regarding sparing of Sagir Ahmed on his accepting bottom seniority as Diesel Technician Grade-III (Mechanical). Pursuant thereto, both Sagir Ahmed and Bapmani Das submitted their joining report as Diesel Technician Grade-Hi (Mechanical) by accepting bottom seniority. 3. Despite their joining as above, both Sagir Ahmed and Bapmani Das filed Original Application No. 297/2012 before the Central Administrative Tribunal, Guwahati Bench challenging the order of transfer and posting dated 15.12.2011. The Tribunal allowed the Original Application by setting aside the office order dated 15.12.2011 with direction to the Railway Authorities to fix the grade pay of Sagir Ahmed and Bapmani Das in the post of Technician Grade-II from the date of their actual promotion. 4. Following the directions made by the Tribunal, two Office Orders came to be issued, which were again put to challenge in the related Original Applications. The said two Office Orders dated 6.8.13 and 23.12.14 are reproduced hereunder as the same forms the crux for determination of the present writ petitions. "The first Office Order dated 06.08.2013 reads as: N.F. Railway Office Order In supersession to this Office Order issued vide No. E/227/52/2(M) Loose dt. The said two Office Orders dated 6.8.13 and 23.12.14 are reproduced hereunder as the same forms the crux for determination of the present writ petitions. "The first Office Order dated 06.08.2013 reads as: N.F. Railway Office Order In supersession to this Office Order issued vide No. E/227/52/2(M) Loose dt. 15.12.11 the following staff, who were working at RPAN Diesel Shed and were ordered for transfer and posting under Sr. DME/Diesel/NGC on bottom seniority in their respective category against DR quota, consequent to closure of RPAN Diesel Shed due to Gauge conversion and had joined at NGC Diesel Shed are hereby ordered to repatriate back to their place of lien i.e. under Sr. DME/Dsl/SGUJ:- Shri Siddartha Bordoli, JE/Dsl/Mech. Shri Dwijn Ch. Boro, Sr. Tech/Dsl/Elec. Shri Bijoy Rajbongshi, Tech. II/Dsl/Mech. Shri Sagir Ahmed, Tech. II/Dsl./Mech. Shri Bapmani Das, Tech./II/Dsl./Mech. The above order has been made in compliance of CAT/Guwahati's order dated 05.04.13 in OA No. 297/2012. If the staff still want to continue/retain at NGC/Diesel Shed itself they have to give a declaration stating that they are ready to accept bottom seniority in the lowest rung of the category in which they are working, immediately. (P.G Johnson) SPO/Mech for General Manager (P) The office order dated 23.12.2014 reads as under: N.F. Railway Office order In terms of GM(P)/MLG's Letter No. E/227/52/2(M) dtd. 23.12.2014 Sri Sagir Ahmed, Tech. Gr. Ill (M) working in DLS/NGC is hereby transferred and spared from this end on 23.12.2014 (AN) to report SGUJ/D/Shed under Sr. DME (Diesel)/Siliguri Jn. to join as Tech. Gr. II (M) for repatriating back to their place of lien on PB-1 in scale Rs. 5200-20200/- +Grade Pay 2400/-. This has the approval of competent authority. DME(Diesel)/NGC for Sr. DME (Diesel)/NGC" 5. The aforesaid order of transfer dated 23.12.2014 was put to test before the Central Administrative Tribunal in two Original Applications filed separately by Sagir Ahmed and Bapmani Das. The Tribunal by common order dated 04.04.2016 allowed both the applications by setting aside the order dated 23.12.2014 and the spare memos dated 23.12.2014. DME(Diesel)/NGC for Sr. DME (Diesel)/NGC" 5. The aforesaid order of transfer dated 23.12.2014 was put to test before the Central Administrative Tribunal in two Original Applications filed separately by Sagir Ahmed and Bapmani Das. The Tribunal by common order dated 04.04.2016 allowed both the applications by setting aside the order dated 23.12.2014 and the spare memos dated 23.12.2014. By making reference to the earlier order passed in OA No. 297/2012, the Tribunal justified its order by holding that the earlier order of the Tribunal having been complied with, the condition now requiring their declaration to accept bottom seniority in the lowest rung of the category in which they are working if they desired to continue at New Guwahati Diesel Shed, was without any justification. The Tribunal held that there was no good ground or justification for issuing the conditional order dated 06.08.2013 and the consequential order dated 23.12.2014. Aggrieved, the Union of India is before this Court. 6. The first approach towards adjudicating the present cases would essentially involve the undisputed fact that both Sagir Ahmed and Bapmani Das were transferred and posted at New Guwahati Diesel Shed on their own request and after they consented to accept bottom seniority as Technician Grade-III. Their Joining Reports at New Guwahati Diesel Shed makes it abundantly clear of the position above. Thus, we find that both Sagir Ahmed and Bapmani Das sought transfer to New Guwahati Diesel Shed on their own volition and on terms and conditions laid down by the Railway Authority, which were duly accepted by them. The order of transfer to New Guwahati Diesel Shed on 15.12.2011, followed by the letter dated 29.12.2011 and finally their joining letter dated 12.01.2012, which mentions the terms and conditions of unilateral transfer to New Guwahati Diesel Shed, are very clear and there are no ambiguities in it. To reiterate, the respondents were clearly informed that on transfer they will be posted at the bottom seniority as Technician Grade-III, which is lower to the grade which they were occupying prior to seeking and accepting the transfer on the set terms and conditions. 7. The Office Order dated 06.08.2013 is an order issued in compliance of the directions of the Tribunal in OA No. 297/2012. 7. The Office Order dated 06.08.2013 is an order issued in compliance of the directions of the Tribunal in OA No. 297/2012. There are no documents to show that the service of Sagir Ahmed and Bapmani Das had been snapped from their parent work-place i.e. Diesel Shed of Siliguri Junction under Katihar Division. In fact, even on their transfer and posting to Rangapara Diesel Shed under Rangia Division, their seniority was maintained at Siliguri. Also, their promotion to Diesel Technician Grade-II was issued from the Office of the Senior Divisional Mechanical Engineer, Siliguri Junction. Bearing this in mind, we find from the Office Order dated 06.08.2013 that they were repatriated to their place of lien under the Senior Divisional Mechanical Engineer, Diesel Shed at Siliguri Junction incompliance of the Tribunal's order. In the same Office Order it was also mentioned that if Sagir Ahmed and Bapmani Das wanted to continue at New Guwahati Diesel Shed, they are to give declaration indicating their willingness to accept bottom seniority in the lowest rung of the category in which they are working, immediately. This part of the Office Order have raised a contentious issue, which would now require an answer from this Court as to whether the same can withstand the scrutiny of law having regard to the relevant Rules in force. The legality and validity of the consequential Office Order dated 23.12.2014 would be dependant on the answer to the aforesaid issue. 8. The general conditions of service of Railway employees is governed under the Indian Railway Establishment Code, Volume-I (in short, the Code), which has been enacted in exercise of powers conferred on the President by the proviso to Article 309 of the Constitution of India. Rule 312 of the Code relates to transfer on request. For better appreciation, the same is reproduced hereunder: 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 servants. Note: (i) This applies also to cases of transfer on request from one cadre/division to another cadre/division on the same railway. [Rly. Bd. No. E(NG) 1-85 SR 6/14 of 21.1.1986]. Note: (i) This applies also to cases of transfer on request from one cadre/division to another cadre/division on the same railway. [Rly. Bd. No. E(NG) 1-85 SR 6/14 of 21.1.1986]. (ii) The expression D relevant grade D applies to grade where there is an element of direct recruitment. Transfers on request from Railway employees working in such grades may be accepted provided they fulfil the educational qualifications laid down for direct recruitment to the post. No such transfers should be allowed in the intermediates grade in which all the posts are filled entirely by promotion of staff from the lower grade(s) and there is no element of direct recruitment. (Railway Board's letter No. E(NG) 1/99/TR/15 dated 08.02.2000) A reading of the above Rule 312 makes it clear that transfer at own request would place the seniority of the railway servant below a railway servant in the relevant grade in the promotion group in the new establishment. The expression 'relevant grade' is made applicable to grade where there is an element of direct recruitment. In so far as the Mechanical Department [Diesel/Elect. Loco/EMU (Technician, JE/SSE)] is concerned, the channel of promotion starts with Technician-III, which is a direct recruitment grade made through open market; Technician-II, which is a promotional post on the basis of seniority-cum-trade test; Technician-I, which is a promotional post on the basis of seniority-cum -suitability and finally the promotional post of Senior Technician, the criteria being seniority-cum-suitability. Now, reading the meaning of the expression 'relevant grade' in Rule 312 above, it would only apply to Technician Grade-III, which only has the element of direct recruitment in the normal channel of promotion in the Mechanical Department Therefore, the Office Order dated 06.08.2013 has to be read in a manner that the same was issued in due compliance of the directions of the Tribunal in OA No. 297/2012, permitting the respondents to repatriate to their place of lien as Technician-II. At the same time, being issued in due compliance of Rule 312 of the Code, permitting the respondents to continue at New Guwahati Diesel Shed, to which they were transferred at their own request, by accepting the bottom seniority in the lowest rung of the category in which they are working. This part of the Office Order is in tandem with Rule 312 of the Code. This part of the Office Order is in tandem with Rule 312 of the Code. The Office Order dated 06.08.2013 cannot be held to have been passed illegally and/or without any justification. Statutory Rules, even if it causes some individual hardship, has to be respected and given effect to so long as it stands in the statute book. For all the reasons stated above, we find no infirmity in the Office Order dated 06.08.2013 and the consequential order dated 23.12.2014, issued by competent railway authorities. As a necessary corollary, both the writ petitions are allowed and the common order dated 04.04.2016 passed by the Tribunal in OA No. 040/00437/2014 and OA No. 040/00001/2015, is hereby set aside. There shall be no order as to cost.