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2017 DIGILAW 309 (GAU)

Union of India v. Kumar Rajnish

2017-03-14

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT : Ajit Singh, J. This petition under Article 226 of the Constitution is directed against order dated 18.11.2015 passed by the Central Administrative Tribunal, Gauhati Bench, Guwahati, whereby it has allowed Respondent’s OA No. 040/00332/2015. 2. The Respondent hails from Matihari, District East Champran, Bihar. He participated in the recruitment process for filling up the vacancies in Northeast Frontier Railway (N.F. Railway) and on being selected, he joined as Assistant Station Master on 15.1.2005 under Lumding Division, N.F. Railway. But soon thereafter on 26.7.2005, he made a representation for his Inter Railway Transfer from N.F. Railway, Lumding Division to East Central Railway, Hajipur, Bihar on the ground of his parents’ old age related ailments as well as illness of his minor daughter. The representation was forwarded to the General Manager (P), N.F. Railway, which was approved on 19.10.2011, but subject to his services being spared from Lumding Division, N.F. Railway. The Respondent is presently posted as Instructor/ZRTI/N.F. Railway at Alipurduar (West Bengal). 3. The issue of sparing of Respondent was, therefore, considered by a competent authority whereupon it was found that there were 92 Inter Railway Transfer requests registered in Lumding Division and his turn in priority was at No.11 in the Divisional Priority Register plus there being huge vacancies, 138 in numbers, it was not possible to spare his services at the moment. The authority, therefore, by a speaking order dated 18.6.2015, declined to spare Respondent, but observed and assured that as and when the cadre position will improve, his sparing will be considered, as per turn. 4. Aggrieved, the Respondent filed OA No.040/00332/2015 for a direction against Petitioner Nos.3 and 4 herein to spare him and the Tribunal, by the impugned order, has allowed the same. The Tribunal has held that Inter Zonal Transfer of Respondent cannot be withheld on the ground of existence of vacancies in the light of Railway Board Instructions dated 6.10.2005 and 13.5.2008. The Tribunal has also held that once the representation of Respondent for his transfer from N.F. Railway, Lumding Division to East Central Railway, Hajipur was approved, Petitioner Nos. 3 and 4 had no authority to refuse his sparing. 5. After hearing the respective learned counsel for the parties, we are of the considered view that the order passed by the learned Tribunal cannot be allowed to sustain. 3 and 4 had no authority to refuse his sparing. 5. After hearing the respective learned counsel for the parties, we are of the considered view that the order passed by the learned Tribunal cannot be allowed to sustain. The Tribunal lost sight of the fact that the Railway Board Instructions dated 6.10.2005 and 13.5.2008 related to Inter Zonal Transfer whereas the Respondent’s request is for Inter Railway Transfer. The Instructions are thus apparently not applicable in Respondent’s case. Moreover, the approval of Respondent’s transfer from Lumding Division, N.F. Railway to East Central Railway, Hajipur is subject to sparing his services from Lumding Division, N.F. Railway. And merely because Petitioner Nos. 3 and 4 had forwarded the representation of Respondent to General Manager (P), N.F. Railway, Maligaon for approval, it would not mean as if an indefeasible right is created to him for his transfer once the approval was made irrespective of necessity of his services plus vacancies in Lumding Division. The practice followed by Petitioner Nos.3 and 4 is to forward all the representations of such requests to the concerned authority and on approval, requests are registered in the Priority Register whereafter sparing is done as per turn from the list prepared. As mentioned above, the name of Respondent at present is at No.11 and Petitioner Nos.3 and 4 have assured to consider his case for sparing when the cadre position will improve as per turn. It is to be noted that when the Respondent joined his services in N.F. Railway, he was aware from day one that he will be away from his parents. For these reasons, it cannot be held that Petitioners have acted either arbitrarily or with malice against the Respondent. On the contrary, the action of Petitioners is just and reasonable. We accordingly hereby quash order dated 18.11.2015 passed by the Tribunal. 6. The writ petition is allowed.