YADRAM Vs. UOI

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner -Yadram challenging the order dated 21.12.2006 passed by the Central Administrative Tribunal, which has while partly allowing the Original Application filed by the petitioner directed the respondent -railways to regularise the period of his absence from duty from 6.9.2004 till he joined pursuant to the impugned judgement by grant of leave, which may be admissible to him as per Rules.

(2.) FACTS of the case are that petitioner was appointed as a Diesel Assistant (Driver) on 3.3.2001 and his first place of posting was at Nandurbar, Bombay Division of Western Railways. Since, he was declared medically unfit on account of heart disease, he was given alternative appointment vide order dated 23.5.2002 as Sr. T.N.C. at Bombay Central in the scale of Rs.4000 -6000 (RPS) with effect from 19.5.2002. Thereafter, he was selected and promoted as T.N.C. in the pay scale of Rs.5000 -8000 (RPS). As a result of re -organization of Railway Zones, petitioner submitted his option for transfer from Western Railway, Mumbai Division to New Railway Zone -North Western Railway, Jaipur, which was considered and approved by the competent authorities of the two Railway Zones and he was relieved by CTNL -Bombay Central to report to Divisional Railway Manager (E), Bombay Central as HNTC in the scale of Rs.5000 -8000 (RPC) from Mumbai Division, Western Railway to North Western Railway, Jaipur vide order dated 3.9.2004 and petitioner was relieved by the Sr. D.O.M., Bombay Central on 3.9.2004 to carry out the transfer as HNTC from Western Railway to North Western Railway, Jaipur vide order dated 3.9.2004. He joined to the Dy. Chief Personnel Officer, North Western Railway, Jaipur on 6.9.2004, but no order was given to him regarding his place of posting and he was informed that he was kept in waiting and necessary posting order will be given shortly. But neither he was given posting order, nor salary was paid to him from the month of September to November, 2004. Petitioner was advised that he can join North Western Railway on the basis of his own request of transfer in recruitment grade and bottom seniority as per existing rules. He refused to accept the bottom seniority, hence he was returned back to his parent Division. Petitioner thereafter filed Original Application before the Central Administrative Tribunal. The learned Tribunal has come to the view that the respondent no.2 has acted not only contrary to the order issued by the Railway Board from time to time, but also contrary to the Memorandum of Understanding (MOU) signed by the two divisions of railways and has imposed a cost of Rs.10,000, however, has left the matter to be decided by the respondents. Hence this writ petition.

(3.) SHRI Sharat Sethi, learned counsel for the petitioner has argued that once the Tribunal has come to the conclusion that injustice has been caused to the petitioner, it should have directed to remove the injustice, instead of leaving the matter to the discretion of the railway board. This amounts to failure to exercise the jurisdiction vested in it. It is admitted position that the petitioner had exercised his option for his transfer to new Zonal Railway and his name was also approved by the competent authority of the new railway zone. Petitioner cannot be penalised for any lacuna in the procedure adopted by the respondents and any change in that from time to time. The action of the respondents in treating the petitioner differently amounts to hostile discrimination and arbitrariness, thus violative of Article 14 and 16 of the Constitution of India. It is argued that petitioner was relieved by his parent railway i.e. Western Railway after the alleged cut off date and thereafter he reported for duty in the North Western Railway immediately thereafter as per Rules. The action of the respondents in refusing him to allow duties only because he reported after the cut off date, cannot be justified. This cut off date was illusory in the present case and cannot be binding, particularly when petitioner exercised the option within the prescribed time and his option was approved by the competent authority.