SHRI CHANDRANSH PANDEY vs. UNION OF INDIA & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 08.12.2009
% Judgment delivered on: 21.12.2009

+ W.P. (C) No. 5341 of 2008

SHRI CHANDRANSH PANDEY .... Petitioner
Through: Ms. Jyoti Singh, Advocate.
versus
UNION OF INDIA & ORS. ….Respondents
Through: Kumar Rajesh Singh, Advocate.
CORAM:
HON’BLE MR. JUSTICE ANIL KUMAR
HON’BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers may
be allowed to see the judgment? No

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported
in the Digest? Yes

J U D G M E N T
VIPIN SANGHI, J.
1. In this writ petition under Article 226 of the Constitution of
India, the petitioner impugns the order dated 2.7.2008 passed by
the Central Administrative Tribunal, Principal Bench, New Delhi in
O.A. No.284/2008. By the impugned order, the aforesaid O.A filed
by the petitioner has been dismissed. The said O.A had been
W.P.(C) 5341/2008 Page 1 of 24


preferred to challenge the order dated 28.1.2008 whereby the
petitioner‟s representation regarding his seniority in, and transfer
to Delhi Division had been rejected.

2. At the relevant time, the petitioner was occupying the
post of JE.II (Signal) since 4.7.1988. The petitioner was serving in
Jhansi Division which fell within the Central Railway Zone. The
operations of the Railways are divided into various zones. Within
the zones there is a further sub-division and these sub-divisions are
called `Divisions‟. Each „Division‟, it appears, has various
„Sections‟.
3. The Railway Ministry vide letter dated 16.9.1996 conveyed
its decision to set up six new railway zones. The details with
regard to the six new zones were contained in the Railway Board‟s
D.O. letter dated 8.10.1996. One of the new divisions created
within the Northern Railways (Railway Zone) was the Delhi Division.
4. To man the different posts in the newly created railway
zones and their Divisions, the respondent Railways issued RBE
No.123/96 dated 6.12.1996 for the purpose of calling options from
staff to serve in the headquarters of the new railway zones, and to
determine the seniority of the staff on transfer to the new zones.
This notification, inter alia, stated:
W.P.(C) 5341/2008 Page 2 of 24


“2. For the purpose of manning of posts
in the New Zones at their headquarters
offices, the Board desire that options may
be called for from the staff as follows:-

(i) From non-gazetted staff working at
the headquarters offices of the existing
Zonal Railways from whose jurisdiction the
new Zones have been carved out, for being
transferred to the headquarters offices of
the respective New Zonal Railways.

(ii) From the non-gazetted staff working
in the affected Divisions of existing Zonal
Railways as follows:-

(a) whether they would like to continue
to work wherever they are working at
present; or

(b) proceed to the headquarters offices
of the respective New Zonal Railways.”

Note: Non-gazetted staff of affected
Divisions in categories/cadres controlled by
headquarters will have the option to remain
in the existing Zonal Railway or join the
New Railway for which they must exercise
option.

(iii) From non-gazetted staff working in
other Divisions of existing zonal railways for
working in the respective new zonal
railways; and

(iv) From non-gazetted staff of all zonal
railways/Production Units for working in the
headquarters office of one of the new zonal
railways against shortfall, if any.

2.1 Preference for transfer on option to
the new zonal railways should be given in
the order as indicated in para 2 above.”

W.P.(C) 5341/2008 Page 3 of 24


5. On 14.11.2002 the respondents issued a communication
with regard to the formation of the new Agra Division. The new
Agra Division fell within the North Central Railway and various
sections, which earlier fell in other Divisions, such as Jhansi (JHS)
Division, Kota Division, Allahabad Division etc. were transferred to
the newly created Agra Division. The new Agra Division became
functional w.e.f. 1.4.2003. The communication dated 14.11.2002
invited options from willing employees of Central Railway for
transfer to new Agra Division. Their options were to be entertained
favourably as per priorities detailed in the said communication.
Paragraphs 2 to 3.3 in this regard are relevant and read as follows:
“2. Options are therefore invited from
willing employees of Central Railway for
transfer to new Agra division & their
options will be entertained favourably as
per priorities detailed below:-

2.1 From Non-gazetted staff working in
territory as well as in territory which are to
be included in Agra Division to opt for
either Agra Division or their parent Division.

2.2 From Non-gazetted staff of affected
Divisions who would like to opt for working
in Agra division.

2.3 From Non-gazetted staff of all the
Offices/Divisions/ Workshops, etc, for
working in Agra division.

3. The terms & conditions of the transfer
will be as under:-

W.P.(C) 5341/2008 Page 4 of 24


3.1 The staff who had opted earlier are
required to re-submit a fresh option in the
format enclosed as Annexure “A”.

3.2 Running staff area not included in the
same of this calling option for transfer and
will be dealt separately.

3.3 Preference for transfer on option to
the new Agra Division on North Central
Railway will be in the order as indicated
above in para 2.1 to 2.3.”

6. On 15.11.2002, another communication was issued by the
respondent on the subject of, inter alia, transfer of portion of Jhansi
Division to Delhi Division of Northern Railway. In so far as the
transfer of a portion of the Jhansi Division to the Delhi Division is
concerned, the section (area of jurisdiction) which was transferred
to the Delhi Division was “Tughlakabad – Palwal (lncl)”. This
communication further stated that options may be exercised by the
railway employees either for Agra Division, or Jhansi Division, or
Delhi Division. It was stated that the transfer would be considered
as per priority indicated in the letter dated 14.11.2002 above
referred to.

7. The petitioner exercised his option in terms of
communication dated 15.11.2002. He submitted his option form
opting for Delhi Division, and within the Delhi Division gave his
preference to work at Faridabad. We may note that at the relevant
time the petitioner was on deputation with CRIS for a period of five
W.P.(C) 5341/2008 Page 5 of 24


years beginning 25.04.2000. However, he held his lien at that time
in Jhansi Division. The option form of the petitioner was forwarded
by Manager (Admin & Personnel) to the DRM, Central Railway,
Jhansi on 26.11.2002.
8. Vide a communication dated 06.12.2002, addressed to
“All the concerned Jhansi Division, Divisional Secretary,
CRMS/NRMU SC/ST Association, Jhansi Division” DRM (PRS) Jhansi
invited the Railway Officers concerned to submit option forms in
case they desire to opt for Delhi Division by 31.12.2002. As
noticed above, the petitioner had already exercised his option in
this respect.
9. A communication dated 24.07.2003 was sent from Delhi
Division to Jhansi Division requiring the Jhansi Division to send the
service record of, inter alia, the petitioner to Delhi Division. On
22.03.2004 the service record of the petitioner was sent by DRM
(P) North Central Railway, Jhansi to North Division Railway.
Another communication confirming the transmission of the service
record of the petitioner to Delhi Division by Jhansi Division was sent
on 30.04.2004. From the above narration it appears that the issue
of transfer of the petitioner to Delhi Division was administratively
complete and no further issue was raised thereafter for about a
year. This was the lull before the storm, which was quietly
approaching vis-à-vis the petitioner‟s service.
W.P.(C) 5341/2008 Page 6 of 24


10. On completion of the petitioner‟s deputation period of five
years, CRIS sent a communication dated 02.05.2005 to DRM (P),
Northern Railway, New Delhi stating that the petitioner would
report in the office of DRM (P) Northern Railway, New Delhi on
02.05.2005. The petitioner reported in the office of DRM(D)
Northern Railway, New Delhi and joined service.

11. On 18.01.2006 the office of DRM, Northern Railway, New
Delhi circulated the inter se seniority of JE-II/SIG Gr. Rs. 5000-8000.
The said notice read as follows:
“As a result of merging DLI-PWL Section of
JHS Divn. into DLI division as on 1.4.2003
two working posts of JE-II/Sig. Gr. Rs. 5000-
8000 were transferred (on) (sic) as is where
is basis. Consequently the following were
to be assigned seniority in the cadre of JE-
II/Sig. issued vide this office letter No. 347-
E/482, P.6 dt. 9.12.2003.
1. Sh. A.K. Sharma, JE.II/FDB.
2. Sh. Chandransh Pandey, JE.II/FDB (On
deputation with CRIS).
One of them Sh. A.K. Sharma was assigned
seniority at item No. 1 in the said seniority
whereas Sh. Chandransh Pandey could not
(be) (sic) assigned due to over sighting (he)
(sic) being on deputation with CRIS.
Sh. Chandransh Pande, JE.II/Sig. Gr. Rs.
5000-8000 who (was) (sic) on deputation
with CRIS at the time of his lien transferred
to DLI Divisino due to merging of DLI-PWL
Section, was not assigned seniority in the
list issued vide this office letter No. 847-E/
482 P.6 dated 10.12.2003.
W.P.(C) 5341/2008 Page 7 of 24


Consequent upon being repatriation
(repatriated) (sic) from CRIS on 2.5.2005,
Sh. Chandransh Pandey is assigned
interpolated at item No. 1 i.e. above to Sh.
A.K. Sharma provisionally in the seniority
list issued vide letter No. 847-E/482/P.6
dated 10.12.2003 in terms of Rly. Bd. Policy
laid down in the letter No. (NG)
1/06/PR/36/Vol.II dt. 19.7.92. The service
particulars of the employee are as under:-

“
12. Objections were invited to the fixation of the petitioner‟s
seniority above Sh. A.K. Sharma.
13. Without any prior notice to the petitioner, as a bolt from
the blue, the respondent visited the petitioner with a notice/order
dated 24.02.2006 issued from the office of DRM, Northern Railway,
New Delhi thereby cancelling the provisional seniority assigned to
the petitioner above Sh. A.K. Sharma on the ground that a post of
JE-II/SIG Gr. 5000-8000 has not been provided by Jhansi Division
w.e.f. 01.04.2003 where against the petitioner could be adjusted.
From this order, it also appears that the name of the petitioner was
included in the Memorandum of Understanding (MOU) relating to
the carving out of Delhi Division, inter alia, from Jhansi Division.
The provisional seniority assigned to the petitioner was treated as
W.P.(C) 5341/2008 Page 8 of 24


cancelled “unless a post of JE-II/SIG Gr. Rs. 5000-8000 is not
provided by JSH Divn. from 01.04.2003 to adjust Sh. Chandransh
Pandey” . It, therefore, appears that the withdrawal of the
provisional seniority was not on account of Sh. A.K. Sharma being
found senior to the petitioner, or on account of transfer of the
petitioner from Jhansi Division to Delhi Division being unauthorized.
It was on account of an administrative lapse i.e. the failure of Jhansi
Division to transfer one post of JE-II/SIG Gr. Rs. 5000-8000 to Delhi
Division upon creation of Delhi Division w.e.f. 01.04.2003.
14. The petitioner, it appears, represented against the
aforesaid order dated 24.02.2006 and consequently the respondent
passed another order dated 12.02.2007 restoring the seniority
assigned to the petitioner at Serial No. 1 i.e. above Sh. A.K.
Sharma. From this order, it appears, that the crisis which had
arisen on account of one post of JE-II/SIG in the Grade Rs. 5000-
8000 not being transferred from Jhansi Division to Delhi Division
stood resolved, on account of the sudden death of JE-II/SIG/FDB Sh.
K.B. Vijay and, consequently, the petitioner could be fitted against
the slot vacated by late Sh. K.B. Vijay. Since this notice/order
dated 12.02.2007 narrates the background of the case and also
shows the application of mind by the Divisional Personnel Officer in
DRM‟S office, New Delhi, and the ADRM(T), we consider it
appropriate to reproduce the same in its entirety:
W.P.(C) 5341/2008 Page 9 of 24


“ NOTICE
When the re-organization of the
Division was done, the staff was to be
transferred on the basis of as is where is,
Sh. Chandransh Pandey, JE-II/Signal of JHS
Division was on deputation at CRIS and his
name included I the MOU. Hence, on
relieving by CRIS, he reported on DLI
Division on 02-05-05.
On merging TKD-PWL section in DLI
Division from 01-04-03, two posts of JE-
II/Signal were transferred along with
incumbents (i) Sh. A.K. Sharma (ii) Sh. K.B.
Vijay. Thus, it was a situation where 03
persons have been transferred from JHS
Division to DLI Division and only two posts
were transferred.
As Sh. Chandransh Pandey’s name is
included in the MOU, he was assigned
seniority at item No. 1 provisionally as per
length of service in grade Rs. 5000-8000 in
the seniority list of JE-II/Signal issued on 10-
12-03, vide this office notice of even No.
dated 18-1-06. Sh. A.K. Sharma JE-
II/Sig/FDB represented against the
assignment of seniority of Sh. Chandransh
Pandey pleading that Sh. Pandey was not
working on the merger section. At the
point of time, the provisional seniority
treated as cancelled vide this office notice
of even No. dated 24-2-2006.
Sh. Chandransh Pandey represented
against the cancellation of seniority. The
competent authority viewed the changed
situation which arised due to sudden death
of one JE-II/Sig/FDB Sh. K.B. Vijay and it is
decided that the seniority already assigned
to Sh. Chandransh Pandey which was
treated as cancelled be restored as his
name was appearing in the MOU which was
accepted by DLI Division and he was
W.P.(C) 5341/2008 Page 10 of 24


allowed to join DLI Division at that time and
working since 2005.
Accordingly the seniority assigned at
item No.1 i.e. above to Sh. A.K. Sharma
vide this office notice of even No. dated 18-
01-06 is restored.
This has the approval of ADRM(T).”

15. The matter, however, did not rest here. The respondents
once again sought to swing the other way. The Sr. Divl. Pers.
Officer in the office of DRM, New Delhi issued a show cause notice
dated 23.07.2007 to the petitioner requiring him to show cause as
to why the seniority assigned to him should not be cancelled, and
he should not be required to report to DRM, Jhansi for further duty.
In this show cause notice it was stated that Sh. A.K. Sharma had
represented against the assignment of seniority to the petitioner
above him. It was also stated that a joint representation signed by
the staff working under JE-II was received through the union
against the petitioner.
16. The petitioner, it appears, submitted his reply. However,
the respondent passed an order dated 28.01.2008 rejecting the
reply of the petitioner and cancelling the restoration of his seniority
vide office notice dated 12.02.2007. It was also stated that
petitioner‟s reporting to Delhi Division on 02.05.2005, on being
relieved from CRIS, was erroneous and that he should have
reported to DRM, Jhansi for further orders at their end.
W.P.(C) 5341/2008 Page 11 of 24


17. The petitioner was aggrieved by the said action of the
respondent and, therefore, filed the aforesaid original application
being O.A. No. 284/2008 before the Central Administrative
Tribunal, Principal Bench, New Delhi which, as aforesaid, has been
dismissed by the Tribunal.

18. The respondents filed their counter affidavit before the
Tribunal wherein the stand taken by the respondents, inter alia,
was as follows:
“It is pertinent to mention here that Jhansi
Division was the effected Division from
whose Division the new Zone, namely North
Central Railway have been carved out. So
the options were invited from remaining
staff wherever they were working or to
proceed to new Zonal Railway of North
Central Railway as per Railway Board‟s
letter dated 6.12.1996…………..”
19. However in another part of the counter affidavit the
respondent had stated that no options were invited from any staff
to opt for Delhi Division.
20. The learned Tribunal while rejecting the petitioner‟s
original application was of the view that no option was to be
exercised for Delhi Division by those falling within Jhansi Division,
except those falling within the affected part of Jhansi Division.
Consequently, the exercise of option by the petitioner was of no
avail. It was held that the transfer of the petitioner to Delhi
W.P.(C) 5341/2008 Page 12 of 24


Division was not covered under the policy of the Railway Board.
The transfer of the petitioner‟s service record to Delhi Division was
also not considered to be of any relevance by the Tribunal. The
Tribunal set out columns 14 and 15 from the option form and
interpreted the same to mean that option could be exercised only
by staff working in that Section of Jhansi Division, which was to
become part of Delhi Division. Columns 14 and 15 from the option
form extracted by the Tribunal read as follows:
14. Whether desired to opt for a) JHS
Present Division b) DELHI
(To be filled by staff working in those
section at the JHS Division which are to
be part of DELHI Divn.)
15. Whether willing to work any where
in DELHI Divn, if so preference, if any.
(To be filled by staff other than
mentioned in item 14 above).

21. The Tribunal concluded that the petitioner was not
working in the section TKD-PWL (Tugklakabad-Palwal ) of Jhansi
Division at the relevant time and, consequently, he could not
exercise the option to get transferred to Delhi Division. The
Tribunal was also impressed by the stand taken by DRM/P Jhansi
Division, North-Central Railway wherein they had stated that it was
a mistake to have transferred the petitioner to Delhi Division.
W.P.(C) 5341/2008 Page 13 of 24


Consequently, the Tribunal dismissed the petitioner‟s original
application.

22. Learned counsel for the petitioner submits that the
interpretation given by the learned Tribunal to the scheme for
creation of new zonal railways and for staffing of the new zonal
railways is erroneous and the scheme has been completely
misunderstood by the Tribunal. She submits that under the policy,
the petitioner was entitled to, and had validly exercised the option
to migrate to Delhi Division.
23. She further submits that the issue with regard to the
petitioner‟s placement in Delhi Division of Northern Railway had
already been thrashed out after due application of mind upon the
issuance of the communication dated 12.02.2007, and the
respondents had no authority to once again disturb the same
merely on account of pressure being exerted by the employees
union. She submits that Jhansi Division was an “affected Division”,
inasmuch as, a part of the said division, namely, Tuglakabad-Palwal
section was transferred to the Delhi Division of Northern Railway
upon restructuring and, consequently, in terms of the respondents
policy decision contained in RBE No. 123/96 dated 06.12.1996 read
with respondent‟s communication dated 14.11.2002 and
W.P.(C) 5341/2008 Page 14 of 24


15.11.2002, the petitioner was entitled to exercise the option to
seek transfer to Delhi Division.

24. On the other hand learned counsel for the respondents
has sought to support the reasoning of the Tribunal by submitting
that the petitioner was not deployed in the affected section of
Jhansi Division and, consequently, he was not entitled to give his
option to seek transfer to Delhi Division.
25. In view of the aforesaid submissions of the parties, it is
necessary for us to examine the purport of the respondent‟s policy
decision with regard to the manning of the newly created divisions
in the six new zonal railways, and the fixation of seniority on
transfer of the railway employees to the newly created zones.
26. We have extracted the relevant portion of Clause 2 of RBE
No. 123/96 above which deals with the aspect of manning of posts
in the new zones of the railways. On a reading of the said clauses it
is seen that railway employees working not only in the affected
divisions of the existing zonal railways but even those working in
other divisions of existing zonal railways, who were interested in
working in the new zonal railways, were entitled to give their
options. All that the said notification provided was that such
options were to be considered according to the priority set out in
Clauses (i) to (iv) of Clause 2. Admittedly, the petitioner was
W.P.(C) 5341/2008 Page 15 of 24


working in an “affected Division” of an existing zonal railway,
inasmuch as, he was working in Jhansi Division which was affected
by the process of creation of, inter alia, Delhi Division. The fact
that Jhansi Division was an affected Division is clear from the fact
that at least one section of Jhansi Division, namely, Tughlakabad-
Palwal section was transferred from Jhansi Division to Delhi
Division, as is evident from the communication dated 15.11.2002
above referred to. This notification did not restrict the right to
submit options for transfer to the newly created divisions, to only
those employees who were working in the affected part / section of
the affected division. Such a restriction is clearly not borne out
from a plain reading of RBE no. 123/96. On the contrary, “non-
gazetted staffs working in other divisions of existing zonal
railways” could also opt to work in the respective new zonal
railways (see Clause 2 (iii) of RBE No. 123/96). A perusal of paras 2
to 3.2 of the communication dated 14.11.2002 extracted above
also shows that railway staff working within the territory of Agra
division, “as well as in the territory which are to be included in Agra
Division” could opt for either Agra Division or their parent division.
All such employees were placed in the first priority. (see Clause 2.1
of the communication dated 14.11.2002). The second priority was
in respect of “non-gazetted staff of affected divisions who would
like to opt for work in Agra Division” (see Clause 2.2). Therefore,
W.P.(C) 5341/2008 Page 16 of 24


the staff working in the territory falling within the Agra Division,
and those which were included in the Agra Division by virtue of the
communication dated 14.11.2002 were all entitled to opt either for
Agra Division or their parent division.

27. The communication dated 15.11.2002 makes it clear that
the same principle had to be applied in relation to the staffing for
the Delhi Division. Consequently, it follows that the non-gazetted
staff working in Jhansi Division (irrespective of the section in which
the staff may be working within the Jhansi Division) were entitled to
give their option to seek transfer to Delhi Division.
28. This position is also clear from a reading of the letter
dated 06.12.2002 issued by the Divisional Railway Manager (Pers.),
Jhansi. This communication was addressed to “All the concerned
Jhansi Division, Divisional Secretary, CRMS/NRMU, SC/ST
Association, Jhansi Division for information” . Had it not been the
intention and understanding of the respondents to invite options
from all the non-gazetted staff working in the Jhansi Division,
which, admittedly was an affected division, but to restrict the
invitation of options only to those working in the affected
area/section of Jhansi Division, there was no purpose in sending the
communication dated 06.12.2002 inviting options to all the staff of
Jhansi Division. The only limitation was that the options of the
W.P.(C) 5341/2008 Page 17 of 24


opting staff were to be considered in accordance with the priority
set out in paras 2.1 to 2.3 of the office letter dated 14.11.2002.
Therefore, it is clear that the contention of the respondent and the
finding of the Tribunal that the petitioner was not even entitled to
submit an option to get transferred to Delhi Division is not borne
out from a plain reading of the respondent‟s policy contained in
RBE No. 123/96 and in their letters dated 14.11.202 and
15.11.2002, as aforesaid.
29. Pertinently, it is not the respondent‟s case that though the
petitioner was entitled to opt for Delhi Division, his case could not
have been considered favorably on account of his falling in a lower
priority, without compared to other optees. As a matter of fact the
option exercised by the petitioner was acted upon by the
respondents who transferred him from Jhansi Division to Delhi
Division. This is evident from the communication dated
26.11.2002, 24.07.2003 and 22.03.2004 above referred to.
30. In our view the Tribunal has introduced the concept of an
“affected part” of a division without any basis and plainly on an
incorrect reading of the policy of the respondents. The
interpretation given on the basis of columns 14 and 15 of the
option form is also misplaced. Under the policy decision contained
in RBE 123/96, read with the communications dated 14.11.2002
W.P.(C) 5341/2008 Page 18 of 24


and 15.11.2002 it was provided that the staff working in the
section of Jhansi Division which became part of Delhi Division
would, by default, get transferred to Delhi Division and the staff
which was working in part of Jhansi Division which continued to
remain under Jhansi Division even after re-organization/creation of
the new zones would, by default, remain in Jhansi Division. If such
staff (which were working in those sections which, consequently,
became part of Delhi Division) desired to continue to remain in
Jhansi Division, they had to exercise an option, else they would
stand transferred to Delhi Division. Similarly, staff working in
Jhansi Division but not in the sections transferred to Delhi Division,
were required to exercise their option if they desired to get
transferred to Delhi Division. It is for this reason that Column 14
had to be filled “by staff working in those section at the Jhansi
Division which are to be part of the Delhi Division”.
31. The Tribunal in our view, clearly erred in interpreting the
scheme on the basis of Column 14 of the option form to mean that
only those employees who were working in the particular section of
Jhansi Division, which was to become part of Delhi Division, could
give an option to opt for the newly created Delhi Division. This is
clearly against the plain language of the policy, as discussed
above. Even if one were to assume that the option form introduced
some ambiguity, the language of the option form could not have
W.P.(C) 5341/2008 Page 19 of 24


diluted or nullified the express language of the policy. The
interpretation given by the Tribunal to the Scheme/Policy, even
otherwise does not appeal to reason. Change of posting within a
division from section to section is a dynamic phenomena. Merely
because a particular employee may or may not be posted in a
particular section at the relevant time i.e. when the option is to be
exercised, it should not either grant him a windfall or lead to a
disadvantage when compared to others working in other sections
within the same division. Therefore, all employees in the “affected
division” and not just the “affected section” were vested with the
right to exercise option to seek transfer. The interpretation given
by the Tribunal to the respondents‟ policy would render it
discriminatory and unreasonable. That is another reason to reject
such an interpretation.
32. We also cannot agree with the Tribunal that the fact that
the service record of the petitioner stood transferred to Delhi
Division was not indicative of the fact that the petitioner already
stood transferred to Delhi Division. The transfer of the service
record of the petitioner to Delhi Division from Jhansi Division was a
conscious decision. The same was taken in accordance with the
scheme and policy evolved by the respondents and in keeping with
the option exercised by the petitioner. It clearly demonstrated the
fact that the petitioner stood transferred to Delhi Division.
W.P.(C) 5341/2008 Page 20 of 24


33. To us it appears that the reversion of the petitioner to
Jhansi Division could well have been done on account of pressure
exerted by the staff union. The same is suggested by the show
cause notice issued to the petitioner. One also gets the impression
that the staff union was only advancing the interest of Sh. A.K.
Sharma, as he was the only one affected by the fact that the
petitioner was assigned seniority at Serial No. 1 which resulted in
Sh. A.K. Sharma being dislodged from that slot and being pushed
down to seniority position no. 2. Pertinently, the issue with regard
to the petitioner‟s so called incorrect transfer to Delhi Division was
not raised between 26.03.2004, when the petitioner‟s service
record was transferred from Jhansi, and 24.03.2006, when the
provisional seniority assigned to the petitioner was cancelled
without any prior notice. Pertinently, even this cancellation of the
petitioner‟s seniority was not on account of the so called
unauthorized transfer of the petitioner to Delhi Division from Jhansi
Division. This cancellation was only on account of an
administrative lapse for which the petitioner was not responsible,
inasmuch as, one post of JE II/SIG Gr. Rs. 5000-8000 had not been
provided by Jhansi Division from 01.04.2003 onwards, where
against the petitioner could be adjusted. It was only when the
show cause notice dated 23.07.2007 was issued, that for the first
time it was claimed that the transfer of the petitioner to Delhi
W.P.(C) 5341/2008 Page 21 of 24


Division was unauthorized and not in accordance with the policy or
the scheme.

34. In our view, the objections raised by the respondents at
the behest of the union were an afterthought and without any
basis. One gets the impression that the entire exercise has been
resorted to, merely to somehow remove the petitioner from being
positioned above Sh. A.K. Sharma in seniority.
35. The Tribunal has also failed to notice the categorical stand
taken by the respondents in their counter affidavit as extracted by
us hereinabove wherein they state that Jhansi Division was the
affected Division from which the new zone has been carved out
and that options were invited from the “ remaining staff wherever
they were working” to proceed to the new zonal railway.
36. We, therefore, hold that the petitioner was validly
transferred to Delhi Division, and upon being repatriated on his
deputation with CSIR coming to an end, he rightly reported to Delhi
Division. Since the denial of seniority to the petitioner in Delhi
Division is only on account of his illegal repatriation to Jhansi
Division, we restore his seniority in Delhi Division.

37. As a result we set aside the impugned order passed by the
Tribunal and quash the order dated 28.01.2008 passed by the
W.P.(C) 5341/2008 Page 22 of 24


respondents whereby the petitioner‟s representation was rejected.
We restore the respondents‟ notice/order dated 12.02.2007
whereby the petitioner was assigned seniority above Sh. A.K.
Sharma in Delhi Division.

38. We must express our disapproval at the manner in which
the respondents have conducted themselves. The petitioner, it
appears, has been put to sheer harassment by the Railways only
on account of pressure being exerted by the staff union to get rid
of the petitioner and to pack him off to Jhansi Division. It appears
that the fact that petitioner was on deputation at the time of his
transfer to Delhi Division made him appear as an alien when he
joined Delhi Division upon his repatriation from deputation. By
then his other contemporary Sh. A.K. Sharma appears to have
entrenched himself in Delhi Division and that may have led to
protests, inter alia, by the staff union against the petitioner when
he suddenly emerged upon his deputation with CSIR coming to an
end. In our view, the railway administration should have taken a
principled stand and should not have allowed itself to get drawn in
this dispute and to become an instrument in the hands of the staff
union to advance their unjust demand. If, either Sh. A.K. Sharma or
the staff union were aggrieved by the absorption of the petitioner
in Delhi Division, they should have taken up the cause by
approaching either the Tribunal, or by resort to any other
W.P.(C) 5341/2008 Page 23 of 24


appropriate judicial/quasi judicial proceeding. The respondent could
not have recalled its order/conscious decision dated 12.02.2007.
The railway association cannot appear to be taking sides and to
swing from one end to another because pressure may have been
exerted by the staff union. Consequently, we allow this petition
with costs quantified at Rs.20,000/-.

(VIPIN SANGHI)
JUDGE



(ANIL KUMAR)
JUDGE
DECEMBER 21, 2009
as/dp

W.P.(C) 5341/2008 Page 24 of 24