S.N. Misra and Others vs B.L. Rastogi and Others

Hari Swarup, J.—These appeals have been filed against the judgment of a learned single Judge by which he allowed the writ petition and quashed the order filed along with the writ petition as Annexure 13 in so far as it related to the appointment of opposite parties Nos. 5 to 19 in the writ petition (hereinafter referred to as the Appellants) as Travelling Ticket Examiners and in so far as it directed the reversion of the Petitioners (hereinafter referred to as the Respondents) from the post of Leave Reserve Ticket Collectors.

The Respondents claimed that the Appellants were recruited in the ministerial cadre and their transfer to the open line cadre of Ticket Collectors was without authority of law and that even if it was valid they could not carry with them their seniority to the open line cadre. In case the first contention was accepted the Appellants would have remained in their ministerial cadre without disturbing the seniority in the open line cadre. In case the second and not the first contention was accepted and their seniority was counted from the date of their entry in the open line cadre, the Respondents would suffer no injury as they would remain senior to the Appellants and get chances of promotion.

The learned Single Judge held that the transfer of opposite parties Nos. 5 to 19 to the open line cadre was bad because it was in contravention of the Railway Board''s direction contained in Annexure 10 to the writ petition. Annexure 10 provided that "the junior most employee should be transferred first whenever any curtailment in a cadre takes place." According to the learned Judge the transfers had been occasioned by curtailment in the cadre of ministerial staff and the Appellants (opposite parties Nos. 5 to 19) not being the junior most ,could not be transferred. Their transfer was accordingly held to be invalid. The necessary consequence of which was that the Petitioner''s reversion was held to be unjustified and quashed.

Against the judgment of the learned single Judge the Railway Administration and the opposite parties Nos. 5 to 19, filed the two present Special Appeals. At the time of hearing of the writ petitions and also the special appeals, reliance was placed by the Appellants on a Division Bench judgment of this Court in Special Appeal No. 158 of 1971 arising out of Civil Misc. Writ No. 3285 of 1969-A.K. Banerji v. The Railway Board decided on November 30, 1971 at Allahabad. On behalf of the Respondents in the appeals it was urged that this judgment required reconsideration. The Division Bench, seeing prima facie an cugnable case, referred the matter to a larger Bench: and that is how these appeals have come before a Full Bench.

A scheme of divisionalisation of North Eastern Railway Administration was put into operation in accordance with the Railway Board''s notification dated 25-2-1969. According to this scheme the Administration was divided into four divisions. In pursuance of this scheme of divisionalisation the General Manager of the North Eastern Railway issued a notification in which option was given to the ministerial staff to select the station where they wanted to be posted; an option was also asked from them about their transfer from ministerial cadre to open line direct recruitment categories such as TC, TNC, BC etc. The Appellants were some of those who had given the option for being transferred to open line cadre. The transfer according to the scheme had to be subject to the employee''s suitability and qualifying at the end of training which was necessary to be given for entry in open line categories. The Appellants qualified at the end of the training and on being found suitable were transferred to the open line cadre. These were the transfers which the Petitioners challenged.

According to the view taken by the Division Bench these transfers were occasioned because of the putting into operation of the scheme of divisionalisation. It was held that the transfer was in the interest of the Administration and not at the request of the employees. The effect of these two findings was that the transferees became entitled to carry with them their seniority. The learned Single Judge in the present case did not find any ground of disagreement with the view taken by the Division Bench but arrived at a different conclusion on the basis of Annexure 10 which was not placed before the Division Bench in the earlier case (A.K. Banerji''s case, supra) and had not been considered by that Bench.

In the appeals before us, learned Counsel for the Respondents in support of the judgment under appeal argued that the transfers were void and ineffective as the General Manager had no power under the rules to transfer employees from one cadre to another. The contention is that in the open line category, recruitment can be made only from two sources; 80% are to be recruited in accordance with Rule 125 contained in the Indian Railway Establishment Manual (Second Edition) at page 36, from open market and the remaining vacancies upto a maximum of 20% were to be filled from promotion of staff in class IV categories. There is also a channel for promotion in respect of Ticket Collectors in the Commercial Department. Rule 125 runs as under:

Recruitment - 80% of vacancies in the initial lowest scale of pay Rs. 110-180 are to be filled by recruitment from open market and the remaining vacancies upto a maximum of 20% will be open for promotion of staff in Class IV categories.

If this rule were to be applicable, the transfer of the Appellants would be unauthorised. We are, however, not satisfied that the ''transfer'' is recruit-meat, The term "recruitment" as used in Rule 125 is in respect of initial recruitment and does not deal with the cases of transfer of an employee from one cadre to another cadre. If there exists in the Rules a power of transfer of an employee from one cadre to another, it will imply that Rule 125 does not apply to cases of transfers or is subject thereto. Rule 146 contained in the Indian Railway Establishment Code Volume I, provides:

Ordinarily, railway servant shall be employed throughout his service on the railway or railway establishment to which he is posted on first appointment and shall have no claim as of right for transfer to another railway or railway establishment. In the exigencies of service, however, it shall be open to the President to transfer the railway servant to any other department or railway or railway establishment including a project in or out of India. In regard to non-gazetted railway servants, the power of the President under this rule in respect of transfer within India, may be exercised by an Agent or by a lower authority to whom the Agent may re-delegate hit power.

....

Rules 314 and 312 contained in Chapter 111 of the Indian Railway Establishment Manual (Second Edition) also deal with transfer of employees. They run as under:

Transfer in the interest of administration. - Seniority of railway servants on transfer from one cadre to another in the interest of the administration is regulated by the date of promotion/date of appointment to the grade as the ease may be.

Transfer on request. - The seniority of railway servants transferred at their own request from one railway to another should be allotted below that of the existing confirmed and officiating railway servants in the relevant grade in the promotion group in the new establishment irrespective of the date of confirmation or length of officiating service of the transferred railway servants.

Note- (i) This applies also to cases of transfer on request from one cadre/division to another on the same railway.

....

In the presence of these provisions it is not possible for us to accept the contention that the Railway Administration had no power to make the transfer of employees from one cadre to another cadre. The power of transfer under the rules was vested in the General Manager. The transfers cannot, therefore, be challenged as invalid on this ground.

The next contention of the learned Counsel for the Respondents was that Rule 312 and not Rule 311 was applicable as in the circumstances of the case the transfers must be deemed to be transfers at the request of the employees. The Division Bench in A.K. Banerji''s case (supra) had taken the view that the transfers could not be deemed to be at the request of the employee but were in the interest of the administration. The learned Single Judge in the present case has also taken a similar view. We see no reason to disagree with the view taken by the learned Judges. A transfer on request means a transfer which is initiated by the employee. It implies that if the employee had not made the request, there would not have been a transfer. In the present case, such is not the situation. It was under the scheme of divisionalisation that the transfers had become necessary. It was the General Manager who had initiated the process of transfers, the employee was only to give an option to elect the place or the cadre where he wanted to be transferred. The transfer was not at his initiation. The transfers in the present case cannot, therefore, be deemed to be transfers at the request of the employees. The scheme of divisionalisation had come into operation at the instance of the administration and not the employees. The divisionalisation was in the interest of the administration and the transfers came only as a consequence of the implementation of the scheme. The transfers must, therefore, be deemed to be in the interest of the administration. It would thus be Rule 311 and not Rule 312 that will be applicable to the circumstances of the present case and the Appellants would be entitled to carry their seniority with them unless, as held by the learned single Judge, the transfers were void in view of Annexure 10 to the writ petition.

The relevant portion of Annexure 10 on which reliance has been placed by the Respondents runs as under :

A copy of the Railway Board''s letter No. E/NC/66 TR2/20 dated 27-7-1966 addressed to the General Manager, All Indian Railways and others.

Sub-Transfer in the event of the curtailment of cadre etc.

It has been brought to the notice of the Board that the practice of transferring staff in the event of curtaliment of a cadre varies from Railway to Railway and even from division to division on a Railway. With a view to bring about uniformity in the matter, the Board desire that, as a general rule, junior-most employee should be transferred first whenever any curtailment in a cadre takes place.

The evidence in the case shows that due to divisionalisation some ministerial staff become surplus and it had to be absorbed and that some of them were absorbed in the open line cadre. It is on this basis that the learned single Judge has held that Annexure 10 was applicable and will make the transfers invalid. The advice contained in Annexure 10, in our opinion, is meant to be operative only in such case where retrenchment takes place in a particular cadre due to the decrease in need and by reason thereof there Is a curtailment in the cadre. The intention of Annexure 10 is that when other thing remain the same, that is, when there is no whole sale readjustment in the administrative set up and still a curtailment in the cadre takes place, the transfer should follow the rule; last come, first go. Such is not the situation here. There was no retrenchment or curtailment in the cadre of ministerial staff but the surplus had occurred in the process of the implementation of the scheme of divisionalisation. The scheme of divisionalisation had necessitated readjustment of the employees and it was in the course of this readjustment that transfers had been effected. The transfers were a part of the scheme itself and they could not have been governed by the general rule contained in Annexure 10 about the transfers on curtailment of a cadre.

Looking from another angle, if the rule laid down in Annexure 10 it made applicable to the present case, it would result in unreasonableness. The open line cadre promises better prospects of promotion. It could not have been the intention of the Railway Board in its letter of guidance (Annexure 10) to give this opportunity to junior most and deny it to the senior people in the cadre. Here, the employees were not to be transferred as such but only after they receive a particular training, and pass in the test, and get selected on the basis of the suitability for the open line cadre, The rule of last come first go could not be meant to apply to such extraordinary situations.

For the reasons given above, we are unable to agree with the view of the learned single Judge that the transfers in the present case could have been made only of the junior most employees in the ministerial staff and the transfer of senior persons was illegal or contrary to general rules governing the transfer of railway servants. As the transfers were not at the request of the employees but in the interest of Railway Administration the transferees would carry their seniority with them is accordance with Rule 311. The appeals are accordingly allowed. The judgment of the learned single Judge is set aside and the writ petition filed by the Respondents is dismissed. Costs on parties.