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Judgment
[Per: Kumar Rajesh Chandra, Member (A)]
This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
“(i)That your Lordships may graciously be pleased to quash and set aside the impugned Order of Transfer dated 09.06.2022 as contained in Annexure-A/1.
(ii)That the Respondents be further directed to allow the Applicant to continue at Katihar without any disturbance.
(iii)That the Respondents be further directed to grant all consequential benefit in favour of applicant.
(iv)Any other relief or reliefs including the cost of the proceeding may be allowed in favour of the Applicant.”
For the sake of clarity, the brief facts of the case, as stated by the applicant in the O.A., are being discussed and delineated as under:-
Applicant, who was initially appointed against Group-D post of Helper (Elect/TRD) on 01.01.2007 under South East Central Railway, Bilaspur Division, came on own request transfer to N.F. Railway, Katihar Division in the year 2011. While he was working against Group-D post the applicant was selected against the post of Chief Commercial Clerk-II against Employment Notice No. 03/2012 issued by the Railway Recruitment Board, Siliguri in the year 2015. After passing required training he was posted against independent post vide order dated 30.10.2017 (Annexure-A/2) at Aluwabari.
It is further stated by applicant that while working at Aluwabari he was transferred to Radhikapur vide order dated 27.06.2018 (Annexure-A/3) which was carried out.
On account of family problem and illness of his widow mother the applicant submitted own request transfer application on 09.08.2021 (Annexure-A/4) for transferring him to Katihar which was duly considered by the respondents vide order dated 27.09.2021 (Annexure-A/5) in which the name of applicant was at sl. No. 2 and accordingly he was posted as Chief Commercial Controller Katihar under the office of Respondent No. 4.
The applicant was shocked to know the transfer order dated 07.06.2022 whereby he has been ordered to be transferred to Rampur Bazar which is a halt station being manned by Station Halt Agent and not by railway employee. The applicant has submitted that at the bottom of the said order dated 07.06.2022 (Annexure-A/6) it is written that “Recommendation of the competent authority and have been approved by the placement committee” which, according to the applicant, is absurd, non application of mind, punitive and ill motivated for the reason that Railway employees not being posted at Halt station. It is alleged by the applicant it is a cyclostyle order without recommendation of the placement committee.
The applicant has further alleged as to how the placement committee and competent authority has singled out applicant when it is neither periodical transfer nor routine transfer. The applicant has also alleged ulterior motive on the part of the respondents as there is no valid reason for the respondents to transfer the applicant as the applicant had joined at Katihar against the present post on his own request only vide order dated 27.09.2021, i.e. hardly 8-9 months earlier.
Again after 3 days of the issuance of order dated 07.06.2022 the respondents have issued another order on 09.06.2022 (Annexure-A/1), impugned in this OA, in supersession of said order whereby applicant has only been ordered to be transferred from the post of Chief Commercial Controller, Katihar to Kaliaganj against the post of Chief Commercial Cum Reservation Supervisor which, according to the applicant, is bad in law, arbitrary, unjust, punitive and malafide.
The applicant has challenged the impugned order dated 09.06.2022 on the following grounds:-
At the bottom of the order dated 09.06.2022 though it has been mentioned that “This has the approval of competent authority and have been recommended by placement committee” but neither the competent placement committee has recommended nor constituted as per Para-2(iv) of the Railway Board order dated 10.06.2014 (Annexure-A/7) issued after the judgment of Hon’ble Supreme Court in the case of T.S.R. Subramanian.
The applicant has been singled out for transfer when it is neither periodical transfer nor routine transfer.
The urgency or any compelling situation has not been disclosed while transferring the applicant as applicant joined the present post on his own request vide order dated 27.09.2021, i.e. hardly 8-9 months earlier.
The impugned order is neither in administrative interest nor in public interest as despite the strength of two Chief Commercial Controller at Katihar only one person is working at Katihar and neither any person vice the applicant has been posted nor anyone is posted against the second post.
In view of Railway Board order dated 05.04.2019 the applicant cannot be posted even against the post of Chief Commercial cum Reservation Supervisor as the said Railway Board order clearly speaks that Commercial and Reservation cadre for appointees prior to 22.02.2018 are separate and common for the appointees after 22.02.2018.
The very purpose of applicant for coming to Katihar has been defeated by the impugned order as the old ailing widow mother is undergoing treatment at Katihar.
The instant OA has been filed since the applicant is at present under private medical sick since 08.06.2022 and has no remedy.
Per contra, the respondents in their written statement have submitted as follows:-
It is submitted that applicant was transferred from Aluwabari to Radhikapur on administrative ground and again he was transferred from Radhikapur to Katihar Commercial Control on own request vide order dated 27.09.2021. The applicant was transferred from Katihar Control to Rampur Bazar on administrative ground vide order dated 07.06.2022 on the approval of placement committee against sanctioned post of CCC/II.
The respondents have denied that Rampur Bazar station is a halt station and submitted that rather it is a full-fledged station where SM, P/Man & Commercial Clerk are posted.It is further submitted that considering the staff shortage, the applicant was posted at Kaliaganj by reviewing the earlier order of Rampur Bazar.
The respondents have further averred that the transfer has been done on the sole administrative ground without having any ulterior motive. Referring to the service terms and conditions laid down in appointment letter dated 30.10.2017, it is submitted that in the said letter it is clarified that the applicant’s service is transferable even outside the Division wherever required in exigencies of service. The respondents have alleged that in spite of the transfer order the applicant did not report on transferred station place and absented unauthorizedly w.e.f. 08.06.2022 to till date. As per norms, the railway servant at first has to join duty to carry out the order of transfer and thereafter may represent his claim before authority for its consideration.
The respondents have further averred that there is no change in the designation of the applicant and it is the standard designation applicable for all Commercial Clerk under HRMS. The applicant is not posted against the common cadre of Commercial Cum Reservation Clerk and his status, pay and designation has not changed due to this transfer.
It is further submitted that the transfer has been made in administrative interest at station where all basic medical and educational facilities are available at par with Katihar. The respondents have further alleged that the applicant never intimated about sickness of his mother and as the railway employee is provided medical facility by the Railway, the applicant should have reported to Railway Hospital for medical treatment.
Referring to the fact that Hon’ble Supreme Court of India has time and again held that transfer is an incident of service and employee has no right to demand posting to a particular place and it is the employer’s prerogative, the respondents have prayed for dismissal of OA.
Rejoinder to the written statement has been filed by the applicant in which the applicant while denying submissions made by the respondents in their written statement has reiterated the submissions as made in the OA. It is further stated that the transfer order has been issued in violation of Railway Board’s order dated 10.06.2014 (Annexure - A/7) in which para-2(iv) speaks about the committee for the officials in Level of Group-C in the Division. As per the policy, Committee member should have been from three categories, i.e. (i) JA/SG (Junior Administrative Grade/Selection Grade) officers of Personnel branch (ii) Cadre Controlling Officer of the Department (JAG/SG/Sr. Scale) & (iii) JA Grade officer outside Department (JAG/SG/Sr. Scale) who will recommend for transfer for acceptance by the competent authority, i.e. DRM/ADRM. But in the instant case from perusal of Annexure-R/2 of WS it appears that 3 Group-B officers , i.e. ACM, AOM and APO have been nominated as member of the placement committee which is illegal and contrary to the order of Railway Board dated 10.06.2014 which was issued in compliance of the Hon’ble Apex Court judgment. The applicant has, accordingly, submitted that the impugned order is fit to be set aside on the ground of incompetent committee itself. Moreover, the transfer order has been approved by DCM In-charge and not by DRM/ADRM.
It is further submitted by the applicant that he submitted a detailed representation on 24.11.2022 (Annexure-P/2) in compliance of the order dated 14.11.2022 passed by this Tribunal highlighting the wrongs, personal problems and infirmities of the impugned order but nothing was done.
Learned counsel for the applicant during the course of hearing has produced a copy of order dated 06.03.2023 issued by the respondents whereby he was ordered to be deployed at Katihar as a temporary measure till further orders.
Learned counsel for the respondents mainly argued on the basis of written statement and further submitted that since written statement was filed on 12.10.2022 there was no mention of this order dated 06.03.2023 whereby the applicant was ordered to be deployed at Katihar.
After hearing the learned counsels for the parties and going through the records, I have considered the matter in its entirety and come to the following conclusion:-
It is not in dispute that the applicant was initially appointed in the Railways in the year 2007 and subsequently came to N.F. Railway, Katihar Division, on own request transfer in the year 2011. It is also not in dispute that after his selection and appointment against the post of Chief Commercial Clerk-II, he was posted at Aluwabari and thereafter transferred to Radhikapur on administrative grounds. Subsequently, on the applicant's own request, he was transferred from Radhikapur to Katihar Commercial Control vide order dated 27.09.2021. The impugned order dated 09.06.2022, whereby the applicant was transferred from Katihar to Kaliaganj, was thus issued within a period of about eight to nine months from his posting at Katihar.
It is trite that transfer is ordinarily an incidence of service and an employee has no vested right to remain posted at a particular place. The employer is ordinarily competent to decide where and at which station an employee is required to be posted, having regard to administrative exigencies and the requirements of service. The scope of judicial review in matters of transfer is, therefore, limited. At the same time, an order of transfer cannot be sustained if it is shown to have been passed by an incompetent authority, in violation of a binding statutory or administrative policy governing the transfer, or for an extraneous/punitive purpose without authority of law.
In the present case, the principal challenge of the applicant is not merely on the ground that he has been transferred from Katihar. His specific contention is that the impugned order has been passed in violation of the Railway Board's instructions dated 10.06.2014, particularly paragraph 2(iv), relating to constitution and functioning of the Placement Committee for Group-C employees in the Division. According to the applicant, the committee which considered his case consisted of ACM, AOM and APO, all being Group-B officers, whereas the policy contemplated a committee comprising officers of the categories specified therein. It has further been contended that the impugned order was approved by DCM In-charge and not by the DRM/ADRM, who, according to the applicant, was the competent authority under the said instructions.
The respondents, in their written statement, have relied upon the approval of the Placement Committee and have stated that the transfer was made on administrative grounds. However, from the pleadings placed before us, there appears to be a specific and material dispute regarding the constitution of the Placement Committee and the authority which ultimately approved the impugned transfer. Since the applicant has founded his challenge upon an alleged violation of the Railway Board's binding instructions issued pursuant to the judgment of the Hon'ble Supreme Court, the said issue cannot be brushed aside merely by observing that transfer is an incidence of service.
It is equally relevant that the impugned order dated 09.06.2022 itself records that the same had the approval of the competent authority and had been recommended by the Placement Committee. Therefore, once the applicant specifically challenged the competence and constitution of the Placement Committee as well as the competence of the authority granting approval, the respondents were required to place sufficient material on record to demonstrate that the procedure prescribed under the Railway Board's instructions had, in fact, been followed in the applicant's case.The respondents have not, in the pleadings referred to before this Tribunal, satisfactorily demonstrated how the constitution of such committee conformed to the aforesaid policy or under what authority a committee so constituted could exercise the functions contemplated under paragraph 2(iv).
This Tribunal is conscious of the fact that every deviation from an administrative instruction would not necessarily render an order of transfer void. The effect of the alleged deviation would depend upon the nature and binding character of the instruction and the role assigned to the prescribed authority or committee. However, in the instant case, the very authority which is stated to have recommended the transfer has been questioned. Thus, the issue goes to the decision-making process itself and cannot be treated as a mere irregularity in the matter of transfer.
Another circumstance which requires consideration is that the applicant had joined at Katihar pursuant to an own-request transfer order dated 27.09.2021 and was thereafter transferred by the impugned order dated 09.06.2022. The own request transfer involves cost in the terms of accepting bottom seniority. The applicant has asserted that no intervening administrative necessity or compelling circumstance has been disclosed in the order. The respondents, on the other hand, have described the transfer as being on administrative grounds and have stated that, considering staff shortage, the applicant was subsequently posted at Kaliaganj after reviewing the earlier order of posting at Rampur Bazar.
I do not propose to examine whether the administrative decision itself was the most appropriate decision, as such an exercise would fall outside the limited scope of judicial review in transfer matters. Nevertheless, where a transfer is challenged on the ground that the prescribed decision-making mechanism was not followed, the respondents cannot avoid scrutiny of that procedural issue merely by describing the transfer as one made in administrative interest.
The applicant has also placed reliance upon the fact that, during pendency of the proceedings, the respondents issued an order dated 06.03.2023 whereby he was deployed at Katihar as a temporary measure till further orders. This subsequent development is of some significance. The said order does not, by itself, establish that the original order of transfer dated 09.06.2022 was illegal. However, it demonstrates that the respondents themselves subsequently considered it administratively appropriate to deploy the applicant at Katihar, at least temporarily.
The learned counsel for the respondents has contended that the order dated 06.03.2023 was not referred to in the written statement as the written statement had already been filed on 12.10.2022. This explanation is factually understandable, but the subsequent order dated 06.03.2023 is nevertheless a relevant development for deciding the relief which may now be granted. The Tribunals are entitled to take subsequent developments into consideration where such developments have a bearing upon the relief to be moulded in the proceedings.
I also take note of the applicant's contention that he had submitted a detailed representation dated 24.11.2022 pursuant to the order dated 14.11.2022 passed by this Tribunal, raising his grievances regarding the transfer and the alleged procedural infirmities. It is stated that the said representation was not considered. In the circumstances, the applicant has been able to demonstrate that he had pursued the grievance administratively as well.
So far as the applicant's plea regarding his ailing widow mother is concerned, the same may constitute a personal hardship warranting sympathetic consideration by the competent authority, but such circumstance by itself cannot confer an indefeasible right upon the applicant to remain posted at Katihar. Likewise, the applicant's allegation of mala fide or ulterior motive has not been supported by sufficient particulars or by impleading any individual officer against whom such allegation is made. This Tribunal, therefore, does not find it necessary to record any finding of mala fide against the respondents.
I am of the considered view that the impugned order dated 09.06.2022 cannot be sustained without the respondents first satisfying themselves that the procedure prescribed under the applicable Railway Board instructions was duly followed and that the order was approved by the competent authority in accordance with the governing instructions.
In view of the subsequent order dated 06.03.2023 whereby the applicant has been deployed at Katihar as a temporary measure till further orders, and having regard to the fact that this arrangement is still continuing as per the learned Counsel of the applicant the situation has materially changed since the filing of the instant O.A.
In view of the submission made by the learned Counsel for the applicant that a detailed representation dated 24.11.2022 had already been submitted by the applicant, this Tribunal deems it appropriate to dispose of this O.A. in the following terms:
The impugned order dated 09.06.2022 is set aside.
The respondents are directed to take an early decision in this regard as compared to the continuation of a temporary arrangement for more than three years where the applicant is working at his desired place of posting at Katihar but drawing the salary from the strength of the transferred place on paper.
The respondents are directed to consider afresh the applicant's case for posting/transfer in accordance with the applicable Railway Board instructions. The respondents shall also consider the applicant's representation dated 24.11.2022 and the subsequent order dated 06.03.2023 while taking such decision.
It is made clear that I have not expressed any opinion on the administrative requirement of the Railways to transfer the applicant. The respondents shall remain at liberty to take an appropriate decision regarding his posting in accordance with the applicable rules and instructions, after following the prescribed procedure.
The competent authority shall pass a reasoned and speaking order and communicate the same to the applicant. Till such decision is taken, the applicant shall be permitted to continue at Katihar pursuant to their own order dated 06.03.2023.
The entire exercise, as directed above, shall be completed within a period of two months from the date of receipt of a copy of this order.
The O.A. is accordingly disposed of in the aforesaid terms. In view of the facts and circumstances of the case, there shall be no order as to costs. Pending M.A., if any, shall also stands disposed of.