Dismissed

The Union Of India and Ors. v. Vijay Kumar Gupta and Ors.

Patna HC5 Mar 2014CWJC/1342/2014

Case brief

AI extract

What is this about?

Railways appealed against the Central Administrative Tribunal quashing a transfer order against a near-retiring employee as punitive. The Patna High Court upheld the Tribunal's order, finding the transfer based on complaints was stigmatic and denied a hearing.

What did the court decide?

Writ petition and interlocutory application dismissed; Tribunal order quashing transfer upheld.

The Union Of India and Ors. Vs Vijay Kumar Gupta and Ors. — Service and Employment | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1342 of 2014

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====================================================== 1. The Union of India through the General Manager, East Central Railway, Hazipur, Distt- Vaishali ( Bihar)

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The Chief Operating Manager, East Central Railway, Hazipur, DisttVaishali ( Bihar)

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The Divisional Railway Manager, East Central Railway, Samastipur (Bihar)

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The Senior Divisional Personnel Officer, East Central Railway, Samastipur, Bihar.

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The Senior Divisional Operating Manager, East Central Railway, Samastipur (Bihar) .... .... Petitioners

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Versus

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Vijay Kumar Gupta, S/o Late K.N. Arya, Station Superintendent, East Central Railway, Samastipur.

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Sri S.C. Srivastava Ex- Station Superintendent, East Central Railway, Samastipur, through the Senior Divisional Operating Manager, East Central Railway, Samastipur, Bihar.

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Sri Arun Malik, the Divisional Railway Manager, East Central Railway, Samastipur, Bihar. .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Bindhyachal Singh, Advocate : Mr. Parijat Saurav, Advocate

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.... .... Respondents

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For the Respondent/s : Mr.

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====================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI and HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER (Per: HONOURABLE MR. JUSTICE I . A. ANSARI)

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2 05-03-2014 The challenge, in this writ application, filed by the Railways, is to the order, dated 07.10.2013, passed by the Central Administrative Tribunal, Patna Bench, Patna (hereinafter referred to as ‘the Tribunal’), in O. A. No.514 of 2013, whereby the learned Tribunal quashed the order of transfer, dated 01.08.2013,

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of the private respondent No.1 holding the same to be punitive in

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nature.

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2. The private respondent No.1, vide order, dated 23.07.2013, was transferred from Angarghat to Samastipur as Station Superintendent. The private respondent No.1 challenged his transfer order, dated 01.08.2013, before the learned Tribunal, whereupon, in modification of the earlier transfer order, dated 23.07.2013, private respondent No.1 herein was sought to be transferred, as Station Superintendent, from Angarghat to Moktapur, though he had already joined at Samastipur, on 24.07.2013, after being relieved from Angarghat.

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3. The contention of respondent No.1 before the learned Tribunal was that on his representation, he was transferred from the post of Station Superintendent, Angarghat Railway Station, to Samastipur Railway Station, because he was to retire, within a year, on 30.06.2014 and one Sri S. C. Srivastav, who was Station Superintendent, at Samastipur, was accordingly transferred to Moktapur in the same capacity on administrative ground.

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4. Before we deal with the ground of challenge put forth by the Railways, it would be necessary to notice the facts of the case, which have given rise to the present writ petition.

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5. Respondent No.1, Vijay Kumar Gupta, initially, filed O.A. No. 514 of 2013 raising therein his grievance against his transfer from Station Superintendent, Nayanagar, to the post of Station Superintendent, Rosera Ghat. The learned Tribunal, on 03.02.2011, disposed of the application (O.A. No.53 of 2011) directing the Railway authorities to take a fresh decision on the said transfer by making a reasoned order. The Senior Divisional Operating Manager, East Central Railway, Samastipur, vide his order, dated 15.03.2011, held that the earlier transfer of Vijay Kumar Gupta (respondent No.1) was proper and valid.

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6. Being aggrieved, respondent No.1, Vijay Kumar Gupta, filed O.A. No. 387 of 2011, which was disposed of, on 03.05.2012, with a direction to the Railway authorities to pass a fresh order. The Railway authorities, taking into consideration the fact that respondent No.1 was on the verge of retirement, transferred him to Angarghat Railway Station, on 26.06.2012, which was one of the places of his choice.

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7. Respondent No.1, Vijay Kumar Gupta, again, submitted a representation, dated 07.07.2013, requesting for his transfer to Samastipur. The transferring authority, vide order, dated 23.07.2013, while transferring respondent No.1 herein to

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Samastipur as Station Superintendent, transferred one Satish Chandra Srivastav, Station Superintendent, Samastipur, i.e. respondent No.2 herein, to Muktapur, taking into consideration the fact that the former was to retire in June, 2014. Respondent No.1 was accordingly relieved from Angarghat, on 24.07.2013, and claims to have joined at Samastipur.

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8. It appears that the transfer of Sri Satish Chandra Srivastav from Samastipur led to some unrest amongst the staff of the Samastipur Railway Station and a representation was made against respondent No.1, Vijay Kumar Gupta. In view of the representations made by staff of Samastipur, Vijay Kumar Gupta (respondent no.1) was transferred, vide order, dated 01.08.2013, as Station Superintendent, from Angarghat to Muktapur and Satish Chandra Srivastav was transferred back to Samastipur. The order was purported to have been passed in partial modification of the earlier order, dated 23.07.2013, aforementioned.

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9. Respondent No.1 challenged the said order in learned Tribunal successfully in O.A. No. 514 of 2013, which has been allowed by the impugned order, dated 07.10.2013.

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10 . The order, dated 07.10.2013, aforementioned, has been challenged by the Railways in this writ application. An

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Interlocutory Application bearing I.A. No. 667 of 2014 has also been filed seeking stay of the operation of order, dated 07.10.2013, passed by the learned Tribunal pending hearing of the writ application.

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11 . The Railways have assailed the impugned order on the ground that Clause 4.6 of the Master Circular No.24 confers power on the competent authority to cancel/review a transfer order on the basis of complaint of Non-gazetted Railway Servant.

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12 . The Railways contend that the occupants of sensitive posts are transferable every four years and post of Deputy Station Superintendent is a sensitive post under Clause 4.3 of Master Circular 24. Learned counsel for the Railways next contends that Satish Chandra Srivastav was posted, as Station Superintendent, for a period of two years and four months, without any complaint and, hence, his transfer was unwarranted till he completed four years in the said post and there was grave unrest amongst the staff of the Railway Station, Samastipur, because of transfer of Satish Chandra Srivastav. Learned counsel for the writ petitioner submits that Muktapur Railway Station is hardly at a distance of 3.52 KM. from Samastipur and as such, respondent No.1 should not have had any grievance, particularly, when the

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said Station was amongst one of the choices that the respondent No.1 had earlier indicated in the year 2012.

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13 . We find that the learned Tribunal allowed the O.A. application filed by Vijay Kumar Gupta (respondent No.1) on the following grounds:

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(i) Vijay Kumar Gupta, vide order, dated 23.07.2013, was transferred on administrative ground and ,as such, his transfer, vide order, dated 01.08.2013, on the basis of complaint, was punitive and before effecting such an order, he ought to have been given an opportunity of hearing.

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(ii) Vijay Kumar Gupta was to retire, within a year, on June, 2014, and was transferred to Samastipur on his representation, because he was to retire within a year.

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(iii) The transfer order of Satish Chandra Srivastav, in whose place, Vijay Kumar Gupta was posted, had, in fact, been on administrative ground and, furthermore, he had remained, at Samastipur, in one capacity or the other for more than four years.

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(iv) The Railways have passed the order of transfer of Vijay Kumar Gupta under pressure exerted by its employees and to accommodate Satish Chandra Srivastav.

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14 . We find that the reasons, assigned by the learned

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Tribunal, for setting aside the impugned transfer order of respondent No.1 herein by the present writ petitioners, are well reasoned and valid. Hence, challenge to the impugned order of the learned Tribunal is bereft of merit. The impugned order of transfer, dated 01.08.2013, of respondent No.1, was made in view of general unrest on account of transfer of Satish Chandra Srivastav from Samastipur and also because of complaint/ representation received against the respondent No.1. The impugned order, dated 01.08.2013, was, therefore, stigmatic in nature and could not have passed without affording an opportunity of hearing to respondent No.1. Reliance can be placed, in this regard, on the decision in Registrar General, High Court of Judicature of Madras Vs. R. Perachi & Ors ., reported in (2011) 12 SCC 137 .

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15 . Coupled with the above, we may also point out that it is not in dispute that respondent No.1 was transferred to Samastipur, on his representation, inasmuch as he was to retire within a year. This was in tune with the Railways’ circular to accommodate a retiring person, as far as possible, at the place of his choice. The learned Tribunal was correct in observing that the impugned transfer order of Vijay Kumar Gupta (respondent No.1

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in writ application) dated 01.08.2013, which modified his earlier transfer order, dated 23.07.2013, was made with a view to accommodate Satish Chandra Srivastav, though he had remained, at Samastipur, for more than four years in one capacity or other.

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16 . In the result, we do not find any merit in this writ petition and this writ petition is accordingly dismissed. Consequently, the interlocutory application, too, fails and shall stand dismissed.

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17. No order as to costs.

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(I. A. Ansari, J.)

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Uday/-

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(Samarendra Pratap Singh, J.)

The Union Of India and Ors. v. Vijay Kumar Gupta and Ors.

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The Union Of India and Ors. v. Vijay Kumar Gupta and Ors.

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