Sudhir Agarwal, J. - (1.) 1. Heard Sri V.K. Goel for the petitioners at length.
(2.) THE writ petition is directed against the order of the Central Administrative Tribunal, Allahabad (hereinafter referred to as "Tribunal") disposing of the Original Applications No. 562 and 772 of 2004 of the petitioner-respondent no. 1 (hereinafter referred to as "respondent no. 1". It appears from the record that the respondent no. 1 was working as PWI Selection Grade-III in Northern Railway in the pay scale of 6500-10,500 in the year 1997 and was posted at Sadalpur, Rajasthan under Bikaner Division of Northern Railway. He submitted an application seeking his transfer from Northern Railway to North Eastern Railway, which was accepted by the competent authority and was communicated to the respondent no. 1 by letter dated 4.2.2000 issued by the General Manager (Karmik), Northern Railway, Baroda House, New Delhi. The aforesaid transfer was on bottom seniority since was allowed on the request of the respondent no. 1 himself. It directed him to submit his joining in the office of General Manager (P) North Eastern Railway, Gorakhpur for further posting. The respondent no. 1 was relieved on 28.11.2000. He submitted joining on 4.12.2000. It is said that vide Circular dated 8.2.2000, the Railway Board in the meantime amended the Indian Railway Establishment Manual (in short "IREM") by inserting Para 102-A in Chapter-1 Section 'B' sub section -1 which provides as under : "102-A : Notwithstanding the provisions constrained in this Chapter, transfer on request on bottom seniority in the grades having an element of direct recruitment will be permissible against the quota prescribed for direct recruitment, provided that the employee seeking transfer possess the qualification prescribed for direct recruitment to the post to which transfer is sought for." The General Manager (Personnel), however, refused to allow joining to the respondent no. 1. The General Manager (Personnel) U.P. Northern Railway, Baroda House, New Delhi, thereafter, sent a letter on 1st January/February 2001 referring the matter for approval of the Railway Board and in the meantime, requested the concerned authorities at Gorakhpur to issue a first class duty pass in favour of the respondent no. 1 so as to enable him travel from Gorakhpur to Bikaner. There is nothing on record to show that such Duty Pass was issued. It appears that no decision was taken immediately but on the other hand, the Railway Board advised that the respondent no. 1 since did not possess the requisite qualification for his appointment as Junior Engineer/PWI pay scale 6500-10,500/- as per Para 102-A of IREM and, therefore, if he agrees, he may be allowed to remain on transfer in the scale of 5000-8000/- failing which he may be sent back. The respondent no. 1 did not exercise any option, though he was informed by letter dated 5.7.2000 and 18.7.2000. Ultimately the North Eastern Railway vide its letter dated 26.4.2002 accepted respondent no. 1's transfer and posted him in a single cadre post under TMC Organization under Executive Engineer, Gorakhpur as Section Engineer/TMC in the pay scale 6500- 10,500/-. Request was then sent by the General Manager (P), North Eastern Railway to the Railway Board by letter dated 6.7.2002 seeking its approval for respondent no. 1's posting as Section Engineer/PWI in the pay scale of 6500-10,500/-. The petitioners, however, did not treat the respondent no. 1 on duty from 1.12.2000 to 26/30.4.2002 when he was allowed to join at North Eastern Railway and communicating the same vide letter dated 29.4.2002, aggrieved whereagainst, the respondent no. 1 approached the Tribunal vide O.A. No. 560 of 2004 for treating him on duty during the period from 4.12.2000 to 26.4.2004 and to pay salary and other consequential benefits for the said period. While the aforesaid Original Application was pending before the Tribunal, it appears that the General Manager North Eastern Railway, Gorakhpur passed another order transferring respondent no. 1 from North Eastern Railway, Gorakhpur to North Railway, New Delhi on 17.6.2004 whereagainst he filed another Original Application No. 772 of 2004. Both the aforesaid matters have been heard together and disposed of by the Tribunal directing that the respondent no. 1 cannot be treated to be unauthorizedly absent from 4.12.2000 to 25.4.2002 and he is entitled for salary besides treating him on duty for the said period.
(3.) LEARNED counsel for the petitioners vehemently contended that the Tribunal has erred in law in observing that the respondent no. 1 was transferred on 24.2.2000 though in fact the order of transfer was issued on 25.4.2000, which was subsequent to the Railway Board Circular dated 8.2.2000. He submitted that the Tribunal having failed to consider this aspect of the matter has erred in law and the impugned judgment is liable to be set aside. Heard learned counsel for the petitioners.;