Akhil N.S. vs Union Of India & Ors.

Per: Justice Sunil Thomas, Judicial Member -

The applicant is employed as a Pharmacist under the respondent Railways. It is stated that a system of registration of requests for transfer to be considered as and when vacancies arise in the order of priority, was in vogue in the Railways, by virtue of Annexure A3 order dated 1.10.1971. The applicant was originally posted at Perambur, Chennai in 2008. He requested for a transfer to Kollam. However, he was transferred to Nagercoil. He raised a complaint pursuant to which his transfer to Nagercoil was cancelled and was posted at Trivandrum, Pettah. While so, the applicant submitted a request for transfer to Kollam on 20.6.2016. The application was pending. The 5^th respondent who was working at Nagercoil had requested for transfer to Railway Hospital, Trivandrum, Pettah on 20.6.2016 as evidenced by Annexure A2 provisional list of pending request. By Annexure A1 dated 2.7.2020, the 5^th respondent was posted at Kollam. Applicant submitted Annexure A4 representation raising his grievance against non-consideration of his request for transfer to Kollam and the transfer of the 5^th respondent to Kollam. Since there was no response he filed OA No. 286 of 2020 challenging Annexure A1 to the extent of transferring the 5^th respondent to Kollam. The Tribunal passed an order by which the Railways were directed to pass a reasoned order on a representation to be submitted by the applicant and till then to maintain status quo. Annexure A6 representation was accordingly submitted which was rejected by Annexure A7. Aggrieved by Annexure A1 to the extent of transferring the 5^th respondent to Kollam overlooking applicant and challenging Annexure A7, the applicant has approached this Tribunal seeking reliefs.

Essentially the applicant is relying on Annexure A2 provisional list of pending requests of 2018 to contend that the applicant as well as the 5^th respondent had requested for transfer on the same day on 20.6.2016. It was further contended that as per Annexure A2, 5^th respondent had sought transfer to Trivandrum and not to Kollam. However, overlooking his claim, the 5^th respondent was preferred.

On the other hand, the stand taken by the respondents as evident from the reply statement as well as Annexure A7 was that the applicant had submitted a request on 28.3.2016. The 5^th respondent had submitted his request for transfer on 19.3.2016. He had sought transfer to Trivandrum, Petta or Kollam. Since the 5^th respondent was senior as he had submitted his application much earlier that of the applicant, he was placed above in priority. However, by mistake, in Annexure A2, the request of the 5^th respondent to Kollam was not shown in the priority list of 2018. This defect was rectified and shown in the provisional list of 2019. While so, a vacancy arose at Kollam due to retirement of one person, on 31.5.2020. Since the 5^th respondent had requested for transfer to Kollam, he was posted there by Annexure A1 order. There was no breach of any Rule or Regulation, was the contention.

The 5^th respondent had also filed a detailed reply statement contending the same stand. It is true that the 5^th respondent had requested to grant him transfer to Trivandrum, Pettah or Kollam. According to the 5^th respondent, he had submitted the request for transfer on 19.3.2016. A copy of it was produced as Annexure R5/1. It bears an endorsement by an officer accepting the request. Copy of the original application was produced by the Railways as Annexure R3. According to the respondents, in Annexure R5/2 communication dated 10.6.2016, the request of respondent No. 5 was shown as Trivandrum or Quilon. This substantiates the case of the respondents that the 5^th respondent had sought transfer to Kollam also. On finding that there was an omission of Kollam in Annexure A2, the 5^th respondent had submitted requests dated 26.2.2019 and 20.6.2019 for correction, copies of which were produced as Annexures R5/3 and R5/4. By Annexure R5/6 request dated 12.6.2020 of the 5^th respondent, the applicant made a request for posting at Kollam, since a vacancy had arisen.

The Railways had produced the application submitted by the applicant herein dated 28.3.2016 as Annexure R1. The provisional list of the year 2019 supporting the case of the respondents was produced as Annexure R4.

As indicated earlier, the applicant is essentially relying on Annexure A2 to contend that the applicant and the 5^th respondent had submitted applications for request on the same date and also to contend that 5^th respondent had sought for transfer to Trivandrum alone. The materials placed by the respondents and discussed above, clearly show that there was a mistake in Annexure A2 by which the date of submission of application was shown wrongly as well as the choice made by the 5^th respondent. Evidently, the application submitted by the 5^th respondent was prior in time and necessarily his claim had to be considered first. Accordingly, when the vacancy arose at Kollam the first choice naturally went to the 5^th respondent.

Evaluating the entire materials on this perspective, I find that no ground has been made by the applicant for interference. There is no illegality or violation of any Rules or norms in granting transfer to the 5^th respondent to Kollam. The Original Application fails and is accordingly, dismissed. No costs.

Annexure A1 – True copy of the order No. MD/121/2020 dated 2.7.2020 issued from the office of the 2^nd respondent.

Annexure A2 – True copy of revised provisional list of request transfers of Pharmacist as communicated from the office of Chief Personal Officer bearing No. P(S)676/VIII/Pharmacist dated 6.2.2018.

Annexure A3 – True copy of Railway Board order bearing No. E(NG)II-71-TR/14 dated 1.10.1971.

Annexure A4 – True copy of the representation dated 3.7.2020 addressed to the 3^rd respondent submitted by the applicant.

Annexure A5 – True copy of the order in OA No. 180/286/2020 dated 9^th July, 2020 rendered by this Hon’ble Tribunal.

Annexure A6 – True copy of the representation dated 10.7.2020 addressed to the third respondent.

Annexure A7 – True copy of the letter No. V/P535/VII/Pharmacist-Vol.II dated 25.8.2020 issued by the sixth respondent.

Annexure R1– Request transfer application of the applicant.

Annexure R2– Divisional Personnel Officer letter No. V/P.535/VII+/Pharmacists/Vol.II.

Annexure R3– Request transfer application of 5^th respondent.

Annexure R4– Provisional list of request transfer of Pharmacists.

Annexure R5– Representation of 5^th respondent.

Annexure R6– Representation of 5^th respondent through Staff Facilitation Centre functioning at Headquarters.

Annexure R7– A downloaded copy from the Staff Facilitation Portal showing the status of the grievances submitted by 5^th respondent.

Annexure R8– Representation of 5^th respondent.

Annexure R9– Divisional Personnel Officer letter No. V/P.535/VII/Pharmacist-Vol.-III.

Annexure R5/1– True copy of application for transfer dated 19.3.2016.

Annexure R5/2–True copy of Sr. DPO/TVC forwarding letter dated 10.6.2016.

Annexure R5/3– True copy of complaint of respondent dated 26.2.2019.

Annexure R5/4– True copy of another letter for rectifying the mistake dt. 20.6.19.

Annexure R5/5–True copy of rectified list of transfer registerees dt. 29.8.2019.

Annexure R5/6–True copy of application for transfer to Kollam dated 12.6.2020.

Annexure R5/7– True copy of PCPO/Chennai order dt. 24.8.2020.

Annexure R5/8–True copy of list of registrees dated 2.8.2013.

Annexure R5/9– True copy of cancellation order of applicant to Nagercoil.