SHAILESWAR ROY CHOWDHURY Vs. UNION OF INDIA

JUDGEMENT

(1.) INVOKING extraordinary jurisdiction of this Court under Article226 of the Constitution of India, the petitioner has prayed for issuance of a writ in the nature of Certiorari for the quashment of the order dated September 9, 2002, passed by the Central Administrative Tribunal (hereinafter referred to as the 'Tribunal"), in O.A. No. 1427/97 by which the petitioner's application for protection of pay which the petitioner was drawing in Bombay Division before his transfer to Nagpur Division, was rejected. The brief resume of the facts required to be stated for disposal of the writ petition is that the petitioner was selected for the post of Commercial Clerk in the initial grade of Rs. 975 -1540, in the Bombay Division of Central Railway in year 1997. The petitioner got his name registered for inter -divisional transfer to any station in M.P. or Nagpur Division of Central Railway with the headquarter office, Bombay (Mumbai) on 6 -5 -1978. To mitigate the hardship caused to the railway servants seeking transfer from one Division to other Division, a cell was set up in the head quarter office of Central Railway.

(2.) IT is put forth by the petitioner that the rule for replacement of initial grade commercial clerk from one Unit to another is that the person whose application for inter -divisional transfer is pending is required to be filled in first on availability of initial grade vacancies without any hitch or delay and the rest vacancies to be filled in by fresh recruitment. But, ignoring the beneficial provisions of priority basis inter -divisional transfer intended to protect loss of employees' seniority and promotion to higher grade, the Unit of Bombay Division did not allow and spare the petitioner to carry out such inter -divisional transfer during the period 1978 to 1992 in spite of availability of vacancies. However, in Bombay Division during the period of 1978 to 1992 on the basis of his seniority, the petitioner was allowed substantive promotion to further higher grade of Rs. 1200 -2040 with effect from 1 -4 -1987 and next higher grade of Rs. 1400 -2300 with effect from 13 -6 -1990. The petitioner was relieved on his transfer to Nagpur Division, after a gap of 14 years vide order dated 13 -7 -1992, which he was drawing his basic pay as Rs. 1480/ - in the higher grade of Rs. 1400 -2300, but before his transfer the railway authority at Bombay Division refrained from reverting the petitioner to his initial recruitment grade of Rs. 975 -1540. The petitioner carried out the transfer in good faith and bona fide belief that the transfer of the petitioner will be treated on the administrative ground and would not be treated as transfer on request and would not be put to any reversion or loss of seniority in the grade of Rs. 1400 -2300. According to the petitioner, in the new unit, he was posted as goods clerk in the grade of Rs. 975 -1540, in Chanda station of Maharashtra State instead of any station in M.P. as opted through the application for inter -divisional transfer by downgrading the post in grade of Rs. 1200 -2040, but the higher duties and responsibilities attached to the post was not changed. It is also the case of the petitioner that initially the authority of Nagpur Division allowed him pay at the rate of Rs. 1480/ - per month but from September, 1993 pay was reduced causing both loss of pay and promotional grade.

(3.) THE petitioner filed the Original Application No. 142/97 before the Tribunal praying that his pay of Rs. 1480/ - which he was drawing in Bombay Division in the scale of Rs. 1400 -2300 before his being transferred to new Unit of Nagpur Division be protected and his seniority be counted in the grade of Rs. 1500 -2300 as per rules in the new unit. The aforesaid petition was combated by the respondents. It was put forth by them that the petitioner was transferred from Bombay Division to Nagpur Division at his own request made in the application dated 6 -5 -1978. He could not be relieved till 1992 because during the pendency of his application for transfer there were many posts vacant in Bombay Division and it was not possible to spare him in the interest of railway administration despite availability of vacant post in Nagpur/Jabalpur Division. As per rules, the seniority of applicant was assigned below that of existing confirmed, temporary and officiating railway servants. In the relevant grade in new establishment and as per rules the fixation of the applicant was made in the lower grade on bottom fixation at the stage of Rs. 1390 in the time scale of Rs. 975 -1540. The petitioner was reverted to initial grade on the strength of his declaration made in proforma B. The respondents have also denied that the petitioner was performing the duties/responsibilities of higher grade at Chanda Station. The petitioner was posted against the clear vacancy of Commercial Clerk in pay scale of Rs. 975 -1540. It was also pleaded by respondents that the petitioner had approached the Tribunal after a lapse of four years, therefore, his application was hopelessly barred by limitation as per section 21of the Administrative Tribunals Act, 1985.