Upendra Kumar Singh vs The Union Of India & Ors.

The applicant was appointed as Senior Section Engineer on 20.01.2006 and, after completion ofof his apprentice period, joined under Tata ADEN-I, Tata West onon 20.01.2007. After serving at various places, he was posted as SSE (Works)-in-charge at Sini with effect from 17.09.2020. The applicant states that he has a serious cardiac condition and underwent major heart surgery at Apollo Hospital, Delhi on 13.01.2018, pursuant to a referral from the Railway Hospital. He continues to receive treatment from the Railway Hospital at Sini and his heart is presently supported by a pacemaker.

The applicant contends that despite his medical condition, he was transferred by office order dated 14.07.2023, subsequently modified on 17.07.2023, and was directed to take charge as SSE (Land)/Tata. Before the transfer was effectively settled, he was again transferred within about three months by order dated 27.12.2023 and directed to take charge as SSE/Works/Spl./BJMD at Bara Jamda. According to the applicant, such frequent transfers are contrary to the normal practice of transferring employees after completion of the prescribed tenure and have caused him considerable physical and mental hardship.

The applicant had earlier approached the Central Administrative Tribunal in O.A. No. 051/000719/2023 seeking relief against the transfer. The Tribunal directed him to submit a fresh representation before the competent authority and directed the authority to consider the same and pass a reasoned order. Pursuant thereto, the applicant submitted a representation dated 25.09.2023, raising his health condition and other grievances. He alleges that the representation was rejected by a reasoned order dated 06.10.2023 without proper observance of the principles of natural justice. He further relies upon Railway Vigilance guidelines dated 16.12.2019 and 17.01.2022, as well as Master Circular No. 24, which provide for periodic transfer of employees holding sensitive posts generally after four years.

The applicant further asserts that several employees junior to him, including persons who have completed four years at their ^Bench respective postings, have not been transferred, whereas he was transferred before completing three years at Sini. On this basis, he alleges that the applicable transfer guidelines and the principle of seniority have not been uniformly applied to him and that he has been subjected to discriminatory treatment. He also states that he submitted representations dated 24.08.2023 and 29.12.2023 seeking consideration of these issues, but nono effective action was taken by the respondents.

The applicant states that although he joined as SSE (Works)/Land/Tata (I/C) on 19.10.2023, the handing-over and taking-over process was not properly completed and he was allegedly left without substantive work at the transferred post. He refers to correspondence from the railway authorities requiring him to take over charge and states that he ultimately completed the handing-over process at Sini. Since no railway quarter was available at Tata and his family remained settled at Sini, he claims that he was required to travel between Sini and Tata merely to mark attendance, despite his cardiac condition. He contends that this arrangement caused physical and mental hardship and also resulted in non-utilisation of his services at the transferred post.

The applicant additionally relies upon his deteriorating health during the relevant period, including a sick memo dated 26.08.2023 and medical advice requiring blood and ECG tests and medical observation. He states that when his condition did not improve, he was subsequently taken to a heart clinic at Patna. His case, therefore, is that the impugned transfers and the manner in which the transfer orders were implemented reflected lack of sensitivity with his serious medical condition, the applicable Railway transfer guidelines, and the circumstances of other similarly situated employees. He seeks appropriate relief against the respondents and consideration of his representations in accordance with the applicable rules and his medical circumstances.

A. The respondents submit that although the applicant complied with the transfer order from Sini to Tata and reported at Tata on 19.10.2023, he did not actually take over the charge of SSE/Land/In-charge/Tata despite repeated requests. According toto the respondents, the applicant raised various grievances concerning the transfer and his health condition instead of assuming the duties attached to the post. The respondents rely upon the communication of ADEN/I/Tata dated 24.11.2023 and contend that the applicant’s representations dated 10.11.2023 and 18.11.2023 demonstrated his reluctance to take charge. They further allege that he approached various higher authorities, including the Vigilance, PMO and Railway authorities, seeking enquiries and raising complaints without exhausting the departmental remedies.

B. In relation to the earlier proceedings before the Tribunal, the respondents contend that the Tribunal’s order dated 21.09.2023 in O.A. No. 000719/2023 was duly complied with. According to them, pursuant to the Tribunal’s direction, a reasoned and speaking order was passed by the Senior Divisional Personnel Officer, Chakradharpur, on 06.10.2023, following which the applicant was spared from Sini to Tata in his existing capacity. The respondents specifically deny having violated or disobeyed any interim or final direction of the Tribunal and maintain that the transfer was implemented in accordance with the Tribunal’s order.

C. The respondents further state that, after joining at Tata, the applicant allegedly attempted to avoid taking over the charge and engaged in prolonged correspondence and complaints to Vigilance and higher authorities, citing his health condition as the reason for his inability to assume the post. According to the respondents, a liberal view was thereafter taken in favour of the applicant and he was transferred and posted at Bara Jamda (BJMD). They assert that the transfer was not arbitrary, as the proposal had been considered by the duly constituted Transfer Management Committee and the approval of the competent authority had been obtained before issuance of the transfer order.

D. With regard to the applicant’s reliance upon the Vigilance guidelines and Master Circular No. 24 concerning periodic transfers, the respondents state that such guidelines and circulars are being followed in accordance with administrative requirements. They contend, however, that the applicant’s transfer was made in the administrative interest while also taking into account his health condition and his alleged reluctance to take charge at Tata. The respondents deny the allegation of discrimination and submit that the applicant has not produced any cogent material establishing that similarly situated employees were treated differently or that the transfer caused intentional mental or physical harassment.

E. On the issue of handing over and taking over charge at Tata, the respondents contend that the applicant himself failed to cooperate. They state that after his joining on 19.10.2023, ADEN-I/Tata instructed the previous incumbent, Sri R.K. Singh, to hand over the charge of SSE (Works)/Land/Tata to the applicant. According to the respondents, the previous incumbent was ready to hand over the charge, but the applicant refused to take over and subsequently proceeded on joining leave. The respondents therefore dispute the applicant’s assertion that the authorities deliberately failed to initiate the handing-over process and maintain that the applicant himself was responsible for the non-assumption of charge.

F. Regarding the applicant’s medical condition and subsequent representations, the respondents state that these assertions are matters of record but dispute the allegations insofar as they are inconsistent with their stand. They contend that the applicant did not produce adequate medical documentation from a competent Railway medical officer to substantiate the claimed inability to perform the duties at Tata. The respondents further rely upon the applicant’s own admission that hehe travelled from Sini to Tata merely for marking attendance, contending that this demonstrated his refusal to take charge and discharge the duties of SSE/Land/Tata. They allege that, despite continuing to receive salary and service benefits, the applicant devoted substantial time to making complaints and representations before various authorities. Finally, the respondents deny the allegation that the applicant’s representations remained unattended and assert that the same had already been considered and disposed of by a reasoned and speaking order.

The applicant’s principal grievance is against his transfer from Sini to Tata and the subsequent transfer to BJMD, mainly on the grounds of his medical condition, alleged violation of the prescribed tenure for transfer, and alleged discriminatory treatment. However, the respondents have explained that the transfer was made on administrative grounds after consideration by the Transfer Management Committee and approval of the competent authority. The applicant has not placed sufficient material on record to establish that the impugned transfer orders were actuated by mala fides, were passed by an incompetent authority, or were contrary to any statutory provision.

The applicant has relied upon the Vigilance guidelines and Master Circular No. 24, particularly the provision regarding periodic transfer of employees holding sensitive posts after four years. However, the said guidelines, as relied upon by the applicant himself, prescribe a general administrative framework for transfers. Non-completion of a particular period at a station does not, by itself, confer an indefeasible right upon an employee to remain posted there. The respondents have specifically stated that the guidelines are being followed subject to administrative requirements and that the applicant’s transfer was made in administrative interest. No material has been produced by the applicant to establish that the relevant provisions created an absolute right in his favour or that the competent authority was legally prohibited from transferring him before completion of four years.

The applicant has also alleged discrimination on the ground that certain junior employees continued at their respective places of posting for more than four years. Such an allegation, by itself, cannot invalidate the applicant’s transfer. For establishing discriminatory treatment, the applicant was required to demonstrate that the employees relied upon by him were similarly situated in all material respects and that their cases were governed by identical administrative considerations. The respondents have denied the allegation and stated that no cogent material establishing discrimination has been produced. Mere reference to the seniority list, without establishing parity of circumstances, therefore does not substantiate the allegation of discrimination.

As regards the applicant’s medical condition, there is no dispute that he has referred to his cardiac ailment and past treatment. However, the question before the Tribunal is whether the transfer order is liable to be interfered with solely on that ground. The respondents have stated that the applicant’s health condition was also taken into consideration and that a liberal view was subsequently taken while transferring him to BJMD. The applicant has not demonstrated, on the material placed before the Tribunal, that the competent Railway medical authority had declared him medically unfit for the transferred post or that the transfer was medically impermissible. The applicant’s medical condition, though deserving of due consideration, cannot by itself create a vested right toto a particular place of posting. Moreover, Tata (Jamshedpur) has admittedly better medical facilities than Sini in Saraikela-Kharsawan district.

The allegation that the respondents deliberately prevented the applicant from taking over charge at Tata is also not established. The respondents have produced correspondence showing that the previous incumbent was instructed to hand over charge to the applicant and have specifically stated that the previous incumbent was ready to do so, but the applicant did not cooperate in taking over the charge. Thus, the material on record presents a disputed factual position, and the applicant has not established that the respondents intentionally withheld the charge from him. His subsequent transfer to BJMD was explained by the respondents as an administrative decision taken after his reluctance to assume the duties at Tata.

The Tribunal also finds that the earlier direction of the Tribunal in O.A. No. 000719/2023 was complied with by the respondents by considering the applicant’s representation and passing a reasoned and speaking order dated 06.10.2023. Similarly, the allegation that his subsequent representations were not considered is controverted by the respondents, who have relied upon the earlier reasoned order and the disposal of his grievance. In matters of transfer, interference by the Tribunal is ordinarily not warranted and is required only where the transfer order is shown to be contrary toto a statutory rule, passed by an incompetent authority, or vitiated by mala fide or other legally sustainable grounds. The applicant has not established any such ground in the present case.