IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.07.2010 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL Writ Petition No.27113 of 2007 and M.P.No.1 of 2007 Mrs.Alphonsa Theodore ..Petitioner Vs. 1. Union of India, represented by the Financial Adviser and Chief Accounts Officer, Southern Railway, Chennai-600003. 2. Senior Assistant Financial Adviser (Traffic) Southern Railway, Thiruchirappalli Junction. 3. The Divisional Financial Manager, Palghat Division, Southern Railway, Palghat, Kerala. ..Respondents Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus to call for the records relating to the order dated 22.1.2007 passed by the Central Administrative Tribunal, Madras Bench in O.A.No.434 of 2006 and quash the same and consequently direct the respondents to grant the petitioner the relevant grade with pay protection in the revised scale together with all attendant and consequential benefits. For Petitioner : Mr.S.J.Jagadev For Respondents : Mr.Su.Srinivasan https://hcservices.ecourts.gov.in/hcservices/ O R D E R ELIPE DHARMARAO, J. The petitioner was appointed on 31.3.1983 as the Accounts Clerk in Tiruchirappalli Railway Division and thereafter promoted as Junior Accounts Assistant in the year 1986 and as Accounts Assistant in the year 1989. While she was holding the post of Accounts Assistant in Tiruchirappalli Division, she has requested the Administration for inter-divisional transfer to Palghat Division. Accordingly, she was transferred to Palghat Division by order dated 30.11.1998 to the lower post of Accounts Clerk which is two posts below the post she was holding at the time of transfer. 2. According to the petitioner, at the time of her transfer to Palghat Division in 1998, she was regularly holding the post of Accounts Assistant for ten years and was drawing basic pay of Rs.5,750/= in the scale of pay of Rs.5000-150-8000. On her transfer to Palghat as Accounts Clerk, her basic pay was fixed at Rs.4,590/= in the scale of pay of Rs.3050-4590. The petitioner would submit that the transfer to Palghat was highly belated and no longer served her purpose and since the respondents/Administration failed to grant even her pay protection, she sought for retransfer to Trichy Division by request letter dated 1.2.1999. Accordingly, she was re- transferred to Trichy Division by order dated 15.11.1999 and after joining at Trichy Division, she was promoted, on 26.11.2001, as Junior Accounts Assistant in the scale of Rs.4000-6000 and her pay was fixed at Rs.5700+50 as on 26.11.2001. The petitioner would submit that she gave several representations to the first respondent stating that pay protection was not granted to her on her transfer as per rules and even as per the Board Letter No.PCV/96/1/11/23, dated 7.3.2003, as per which her scale of pay should have been revised on notional basis with effect from 1.1.1996 and on actual basis from 19.2.2003, which was not done and by the order dated 15.5.2006, her pay scale was reduced from Rs.5800 as on 1.11.2005 to Rs.5375/=. According to the petitioner, this order of reduction in pay has put her to further loss as the Administration has failed to even protect her pay apart from making her to work two posts below the one, which she was holding in the year 1998 when she was transferred; that in 1998 at the time of her transfer to Palghat Division, she was drawing the pay of Rs.5,750/= as Accounts Assistant in the old scale of pay of Rs.5000-150-8000. Aggrieved by the decision of the Administration to reduce her pay from Rs.5800/= to Rs.5375/=, she preferred O.A.No.434 of 2006 before the Central Administrative Tribunal, Madras Bench praying to quash the said order and consequently to grant her relevant grade with pay protection in the revised scale as per the Railway Establish Rules and orders on the subject and to grant all other attendant and consequential benefits and since the Tribunal has dismissed the said Application, the petitioner has come forward to file this writ petition. https://hcservices.ecourts.gov.in/hcservices/ 3. A detailed counter affidavit has been filed on the part of the respondents / Administration, meting out all the averments/allegations made by the petitioner in her affidavit. 4. On behalf of the petitioner, it has been argued that due to her family circumstances, she has sought for inter-divisional transfer to Palghat Division in March, 1991, but the same was granted by the Administration belatedly in the year 1998 and as a result of this inordinate delay, the transfer has not served her purpose and hence she has again sought for re-transfer to Trichy Division. 5. On a careful analysis of the entire materials available on record, we are unable to appreciate this blame game resorted to on the part of the petitioner. As could be seen from the typed set of materials filed by the respondents/Administration, the petitioner has submitted a requisition for inter-divisional transfer on 14.3.1991, a reminder on 4.2.1992 followed by Form-D on 2.4.1992. Since no transfer orders were passed by the Administration, the petitioner has again sent a reminder on 11.9.1998, which was considered favourably and acted upon by the respondents/Administration. Had it been a fact that the purpose for which the petitioner had sought for inter- divisional transfer to Palghat Division in the year 1991 has already been over, there is no need or necessity for the petitioner to send reminder in the year 1992 with Form-D and another reminder in the year 1998. If she is not interested in pursuing her request, she should have withdrawn/not pressed her application, instead, she has been continuously sending reminders to the Administration, which has been considered favourably by the Administration in the year 1998. Therefore, the petitioner cannot throw blame on the Administration for her transfer in the year 1998. 6. The other ground urged by the petitioner is that her case should have been considered in terms of Rule 229 r/w.Rule 226 of the Indian Railway Establishment Code, Vol.I, which provides transfer of the employees to the relevant grade, but, the Administration has transferred her to Palghat Division to the post of Accounts Clerk (CG-II), which is two ranks below the post of Accounts Assistant, which she was holding at the time of her transfer from Trichy Division to Palghat Division. 7. To assess this, we shall now look at Rules 226 and 229 of the Indian Railway Establishment Code, Volume I, which read as under: "226. Transfers – Ordinarily, a 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 another establishment. In the exigencies of service, however, it shall be open to the President to transfer the railway servant to any other department or https://hcservices.ecourts.gov.in/hcservices/ railway or railway establishment including a project in or out of India. In regard to Group C and Group D railway servants, the power of the President under this rule in respect of transfer, within India may be exercised by the General Manager or by a lower authority to whom the power may be re-delegated. Railway Ministry's decision – Requests from railway servants in Groups C & D for transfer from one railway to another on grounds of special cases of hardships may be considered favourably by the railway administration. Such staff transferred at their request from one railway to another shall be placed below all existing confirmed and officiating staff in the relevant grade in the promotion group in the new establishment, irrespective of date of confirmation or length or officiating service of the transferred employees." "229. Transfer on request – Transfers ordered in the interest of employees shall be within the same seniority group, or different group or a mutual exchange. If such transfers are within the same seniority group under the same railway, the seniority is not affected but if the transfers are inter divisional or outside the seniority group, the railway Ministry's decision below rule 226 for inter railway transfers shall apply." 8. As per these rules, no doubt, the staff who are transferred at their request from one railway to another are to be placed below all existing confirmed and officiating staff in the 'relevant grade'. But, to give effect to the benefits of these Rules, it must be seen as to what the employee (petitioner in this case) while seeking inter-divisional transfer to Palghat has opted for. 9. As could be seen from the requisition letter dated 14.3.1991 submitted by the petitioner with Form-D, available at Page No.1 of the typed set filed by the respondents/Administration, as against the clause 2(f) 'post for which applied for', the petitioner has specifically mentioned that 'Accounts Clerk (CG-II)', for the reasons best known to her, knowing fully well that the same is two ranks lower in cadre than that of the post of Accounts Assistant, which she was holding at the time of seeking inter-divisional transfer. While so, the Administration cannot be found fault with, in any manner whatsoever, in acceding to the request of the petitioner. Therefore, this ground raised on the part of the petitioner is also rejected. 10. With regard to the fixation of pay, the relevant Rule is Para 1313(1)(a)(iii) of the Indian Railway Establishment Code, Volume II, which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "When appointment to the new post is made on transfer at his written request under Rule 227(2) (FR 15A) and maximum pay in the time scale of the post is less than the substantive pay in respect of the old post, he will draw that maximum as initial pay." 11. It is seen from the materials placed on record that when the petitioner was transferred from Tiruchirapalli Division to Palghat Division on her own request as the Accounts Clerk, she was drawing a basic pay of Rs.5,750/= in the scale of pay of Rs.5000-150-8000 as the Accounts Assistant and since the scale of pay of the Accounts Clerk was Rs.3050-4590, giving effect to Para 1313(1)(a)(iii), her pay was protected and her basic pay was fixed at Rs.4590/=, wherein no illegality could be found. Thereafter, when the petitioner was transferred back from Palghat division to Tiruchirapalli Division by the order dated 24.11.1999 and thereafter when she was promoted as Junior Accounts Assistant, her pay was once again protected and fixed at Rs.5700+50 in the scale of Rs.4000-6000, wherein also there is no illegality. From the materials available on record, a legal presumption would arise that the petitioner who was in the cadre of Accounts Assistant at Tiruchirapalli Division and drawing a higher scale, has lost such higher pay because of her request transfers between various divisions and even though she is pretty aware of various provisions governing her pay fixation, the petitioner seems to have been irked at the fact that her erstwhile batchmates are in higher ranks and drawing more and hence preferred to fight this losing battle. The so called 'loss' being felt on the part of the petitioner is nothing but a self-inflicted wound and her claim lacks merit. Therefore, the recovery ordered by the Administration from out of the pay of the petitioner is unavoidable. 12. All the facts and circumstances of the case have been properly assessed by the Tribunal below and therefore, the interference sought to be made by us into the same, is quite unwarranted. In the result, this writ petition fails and the same is dismissed. No costs. Consequently, M.P.No.1 of 2007 is also dismissed. sd/- Asst.Registrar /True copy/ Sub.Asst.Registrar Rao https://hcservices.ecourts.gov.in/hcservices/ To 1. The Financial Adviser and Chief Accounts Officer, Union of India, Southern Railway, Chennai-600003. 2. The Senior Assistant Financial Adviser (Traffic) Southern Railway, Thiruchirappalli Junction. 3. The Divisional Financial Manager, Palghat Division, Southern Railway, Palghat, Kerala. + 1 c.c. to Mr. SU. Srinivasan, Advocate. S.R.No.48037. + 1 c.c. to Mr. S.J. Jagadev, Advocate. S.R.No.47792. W.P.No.27113/2007 & M.P.No.1/2007 KA (CO) GSK 20.07.2010. https://hcservices.ecourts.gov.in/hcservices/