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Judgment
Dr. A.K. Dubey, Member (A)
This OA has been filed by the applicant seeking following reliefs:-
"8.1 Lord ships be pleased to admit this petition. And be pleased to issue order quash and setting aside order no. order No.E/L/1030/5/23 Vol.V dated 05.05.2015 passed by respondent no.2 (Annex.A/2) and, part of the order no. BB.P. Loco 205. ME.IR dated 23.08.2011 passed by Asst.Personnel Officer (T) Mumbai CSTM (Annex.A/6) And be pleased to direct the respondent to revise the applicant's seniority on place of Shri Sunil Mahajan interpolated the applicant name in the seniority list vide no.E/L/1030/5/23 Vol.III dated 10.04.2014 issued by respondent no.2 (Annex.A/3) with consequential benefit of promotion in no.E/L/1025/5/71 Vol.VIII dated 30.06.2014 passed by respondent no.2(Annex.A/1).
8.2 The order for be call for the record.
8.3 Any other relief which the Hon'ble Tribunal deems fit.
8.4 Cost of suit be awarded."
The applicant submits that he was appointed as Assistant Loco Pilot (ALP) in Central Railway, Lonawala, on 04.12.2007. While working there, he applied for mutual exchange transfer with Mr.Sunil Mahajan, another ALP working in Vadodara Division. For his transfer to Vadodara Division, whereupon, his office forwarded his application to the General Manager (P), Western Railway, Mumbai on 06.09.2010. This was on the basis of mutual transfer with Mr.Sunil Mahajan who, at that time was working in Vadodara Division. Vide office order No.46 (ALP)-16/2010 dated 01.10.2010, the name of the applicant was proposed to be promoted to Senior ALP grade (Annexure-A/5). Subsequently, vide office order No.42 (ALP-25) 2011 dated 23.8.2011 (Annexure-A/6), the Central Railway ordered mutual exchange transfer of Mr.Sunil Mahajan and accordingly, the applicant was transferred to Vadodara Division. The order made it clear that they were not eligible for transfer allowance, joining time etc. since it was on their own request. The order also mentioned that the applicant may be relieved subject to confirming that there was no DAR/VIG/SPE case pending against him. 2.1 Consequent upon the inter divisional transfer mentioned above, the two reported to their new respective division. The Mumbai Division relieved the applicant vide its order dated 05.10.2011 with all service particulars (Annexure-A/7). Subsequent to it, the applicant reported to the Vadodara Division which issued the order dated 13.10.2011 (Annexure-A/8) for his posting in CTCC-BRC. This order clearly mentioned that the applicant had reported to that office on 07.10.2011 on reversion to ALP-II scale with GP 1900 after having been mutually transferred with Shri Sunil M.Mahajan ALP-II. This letter also mentioned that the applicant was eligible to seniority applicable to mutual transfer as per extant rules. Upon joining Vadodara division, the applicant was assigned seniority in the list of seniority of ALP-II at the position 121 A vide order dated 03.01.2012 (Annexure-A/9). Prior to the mutual transfer, when Shri Sunil Mahajan worked in Vadodara division, his seniority was at Serial No.110 in the seniority list of ALP with GP1900 (Annexure-A/10). This position 110 was with the remark that he was promoted as senior ALP on 01.05.2011. 2.2 The applicant submitted that the Vadodara Division had issued a memorandum dated 28.05.2021 regarding suitability result for promotion to the post of ALP-1, where the applicant's name was shown at Serial No.5 (Annexure-A/11). However, in seniority list dated 10.04.2014 (Annexure- A/3) for the senior ALP the applicant was shown against serial No.222. The applicant contends that this had adversely changed his position from 121 A assigned vide order dated 3.1.2012 (Annexure-A/9). Aggrieved by this, the applicant filed the main representation against this provision on 24.04.2014 (Annexure-A/12). However, the grievance has not been settled as yet by the respondents. He again filed the representation on 21.05.2014 (Annexure- A/13).
2.3 The applicant avers that as per the rule, seniority in the case of mutual transfer was below ShriSunil Mahajan as he was junior to him. The applicant had been given the position at 222 in the seniority list of Sr.ALP after his joining in Vadodara Division. His main grievance is that Shri Sunil Mahajan with whom he had exchange transfer was given the due seniority but in the applicant's case, RBE 162/2007 was violated and he was re- assigned the seniority and his resultant seniority was reflected incorrectly. The promotion list dated 01.10.2010 shows that the incumbent at Sl. No.34 had been shown as promoted as senior ALP; no date was given. The applicant's claim is that instead of assigning him the seniority at 121-A by interpolating below 121, he should have been given Sunil Mahajan's position. He avers that this was a discrimination and was wrong and against the rules.
The respondents have filed their reply in which they have maintained that there was no violation of any instruction in the matter of assigning seniority to the applicant. The respondents submits that on the eve of his application for inter railway mutual transfer, Shri Sunil Mahajan was working as ALP-II in Vadodara Division. Obviously, both were in ALP-II grade. After they had applied for mutual transfer, they were promoted as Sr. ALP grade and after due process, both were relieved on the Level of ALP-II. The applicant was transferred to Vadodara Division on reversion i.e., back in ALP-II scale, which is clear from the office order dated 23.08.2011 (Annexure-A/6) and Memorandum dated 13.10.2011 (Annexure-A/8). Shri Sunil Mahajan and the applicant had applied for mutual transfer after having been promoted to the ALP-I grade in their previous division. However in the case of the applicant, he was transferred to Vadodara Division on reversion i.e. back to ALP-II and thus seniority was assigned afresh in Vadodara Division.
Reply of the respondents makes it clear that the order dated 03.01.2012 (Annexure-A/9) and Annexure A-10 were showing the seniority list of ALP- II whereas the seniority list at Annexure-A/3 was that of the senior ALP. Accordingly, the applicant was at the position 121A in the seniority list of ALP dated 3.1.2012; the seniority list attached to the order dated 10.04.2014 (Annexure-A/3) is of Sr.ALP where the applicant is at the position 222. The re-assignment of seniority position consequent upon mutual transfer is as per rules and there is nothing arbitrary in this action. For the same reason it is not discriminatory either.
The applicant submitted his rejoinder reiterating the contentions mentioned in the OA. The learned counsel for the applicant submitted that in the matters of transfer on mutual exchange the following provision of the Railway Board should be taken into account:
"In case of mutual exchange, the senior of the two employees will be given the place of seniority vacated by the other person. The junior will be allowed to retain his former seniority and shall be fitted into the seniority below the persons having the same seniority."
5.1 Further, para 310 of Indian Railway Manual (IREM), shows a provision of mutual exchange, which says that a Railway servant transferred on mutual exchange from one cadre of a division, office or railway to the corresponding cadre in another division, office or railway shall retain his seniority on the basis of the date of promotion to the grade or take the seniority of the railway servants with whom they have been exchanged, whichever of the two may be lower. The claim of the applicant is that he should take the seniority of Shri Sunil Mahajan with whom he was mutually transferred and this course of action was mandated under para 310 quoted above.
Learned counsel for the respondents submitted that the date of entry of the applicant into ALP grade was 4.12.2007 whereas in case of Shri Sunil M.Mahajan it was 21.05.2007. Similarly, their date of entry into ALP-I grade too is different; applicant got ALP-1 grade on 01.10.2010 whereas Shri Sunil Mahajan on 01.05.2010. Further, the date of mutual request is 28.10.2009. The relieving letter of the applicant (Annexure-A/7) clearly mentioned that he was relieved on mutual exchange transfer order basis and he was relieved in reversion as ALP-II grade. Counsel for the respondents argued that in terms of para 310 of IREM, his seniority has been correctly assigned. It is also pointed out in course of arguments (Annexure-A/9) that fixing the seniority of the applicant at position 121 A vide order dated 03.01.2012 was not challenged on this ground and questioning that now was not maintainable. Later, vide memorandum dated 28.05.2012 (Annexure- A/11) the applicant also got promoted post of ALP-I.
Learned counsel for respondent Nos.5 and 6 made similar submissions and argued that the seniority was correctly assigned as per rules and the applicant's contention was not sustainable as provisions stipulated in this matter had been adhered to.
Heard the counsel for both the parties. Counsel for the applicant relied on the judgment of this tribunal's Jaipur Bench in OA No.463/2012 passed on 17.03.2015, in which the matter of mutual transfer, consequent seniority, consequent promotion and subsequent benefits were the matters under consideration. The judgment of this tribunal quoted by counsel for the applicant is not helpful in this particular case because although that was a case of mutual transfer, identical position does not obtain in this particular case.
We have perused the material on record and the documents presented before us. The date of entry into service, the date of request for mutual transfer, and the date of entry into ALP-I are not in dispute. It is clearly mentioned in the order relating to the applicant that he was relieved due to his own request for transfer to another division on mutual exchange basis and accordingly, he was relieved from the Mumbai Division and in due course joined in Vadodara division in ALP-II grade. Prior to that, vide Western Railway Memorandum dated 13.10.2011, the applicant had joined in the ALP-II grade and this order clearly mentioned that his seniority would be as per the extant rules (Annexure-A/8). Besides, his transfer to the requested division was in reversion.
In view of the aforesaid factual matrix, we are of the opinion that the respondents have followed the existing provisions and rules with regard to assignment of seniority upon mutual inter divisional transfers and there is no infirmity or irregularity in their action. We therefore, find that the OA lacks merit as applicant has not been able to make out a case for himself. Accordingly, OA is dismissed. Pending MAs are also disposed of. No Costs.