ORDER
Mukesh Kumar Gupta, Member (J)
1. Shri P.U. Venkatesan, Senior Goods Driver, Southern Railway, Bangalore Division, in the present application has prayed for the following reliefs:
(i) Call for the records reading to the issue of Annexure-A7 Memorandum bearing No. B/P/676/V/LR/IDT-IRT/Vol.V dated 23.10.2000 issued by the 4th respondent, Annexure-AIO bearing No. B/P/612/V/RNG/Vol. III dated 5/8.1.2001 issued by the 4th respondent and Annexure-A17 letter bearing No. P(S)676/VI/Misc./Goods Driver dated 30.7./2.8.2001 issued by the 2nd respondent and quash the same.
(ii) Declare that the applicant is entitled is entitled to have his seniority restored in the cadre of Goods Drivers, to his original position as in Annexure-Al communicated by the fourth respondent under letter No. B/P612/V/RNG/ Drivers dated 9.8.95.
(iii) Declare that the applicant is entitled to be considered for promotion as passenger driver on par with the 5th respondent and to be granted the consequential benefits with effect from the date of promotion of the 5th respondent, as if Annexure-A3 has not been issued at all.
(iv) Declare that the selection conducted by the respondent culminating in Annexure-A10 bearing No. B/P608/V/RNG/Pass.Dr/Vol.III dated 11.9.2001 based on the seniority indicated in Annexure-A7 as regards the applicant is arbitrary and discriminatory.
(v) Direct the respondents 1 to 4 to grant all the consequential benefits including arrears of pay and allowances, in the light of the declaration in Para 8(b), (c) and (d) above within a time limit as may be found just and proper by the Hon’ble Tribunal.
(vi) Award costs of and incidental to this application.
(vii) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances of the case.”
2 & 3. The admitted facts of the case are that the applicant was initially appointed as Diesel Assistant in Bangalore Division in the year 1989. In 1992, he was promoted as Goods Driver on adhoc basis, and regularised in the said post from 24th May, 1994. In the seniority list of the said cadre published on 9th August, 1995 (Annexure-Al), his name appeared at St. No. 32, while the respondents 5-39 figured in between 33 and 72. He was promoted as Senior Goods Driver with effect from 31st March, 1997, which is a non-functional grade. While working as Goods Driver, the applicant was transferred to Madras Division on mutual request vide order dated 28th January, 1999 and relieved from Bangalore Division on 3rd February, 1999 and joined Madras Division On 4th February, 1999. Within a short span of less than 5 months, the applicant was “transferred back” to Bangalore Division vide order dated 23rd June, 1999 (Annexure-4A) on administrative grounds with immediate effect. The said transfer order was unsuccessfully challenged before the Madras Bench of this Tribunal as well as High Court of Madras. Finally, the applicant was relieved vide order dated 5th August, 2000 (Annexure-A5) with a direction to report to Bangalore Division on 6th August, 2000. Vide order dated 7th August, 2000 (Annexure-A6), the Bangalore Division advised the Madras Division to retain the applicant in the said division itself as his services were “not required” in Bangalore Division and accordingly, the applicant was redirected to report “to Madras Division. This request/direction of Bangalore Division was not accepted and Madras Division again directed the applicant to report to Bangalore Division on 14th August, 2000. Accordingly, the applicant reported back to Divisional Personnel Officer, Bangalore Division. The applicant was ultimately allowed to join at Bangalore, from where he was transferred to Madras Division. Vide Memorandum dated 23rd October, 2000 (Annexure-A7) applicant’s seniority in the cadre of Goods Driver was fixed at Sl. No. 22 (a) in the seniority list issued on 7th July, 1999 showing his date of entry into the said grade of Goods Driver as 4th September, 1999. In the provision seniority list of Goods Driver issued on 7.7.1999 as on 1.7.1999, the name of Shri V. Ramakrishna, below whom the applicant’s seniority was fixed was shown at Sl. No. 22 and the said V. Ramakrishna had been shown in the seniority list of Goods Driver dated 9th August, 1995 at Sl. No. 72. As we have noted that in the seniority list of 9th August, 1995, the applicant was shown at Sl. No. 32, meaning thereby the applicant had lost his seniority from Sl. No. 32 to be placed below Sl. No. 72. It needs to be noted at this stage that Shri V. Ramakrishna was promoted as Goods Driver on 28th January, 1995 while the applicant was promoted and regularised in the said grade with effect from 24.5.1994. Being aggrieved with the said placement in the seniority list dated 7.7.1999, the applicant submitted representation dated 21st November, 2000 addressed to Divisional Railway Manager, Bangalore Division, which came to be rejected by the Divisional Personnel Officer, vide communication dated 5th/8th January, 2001 (Annexure-AIO) on the grounds, inter alia, that since the applicant was relieved on mutual transfer with Shri S. Balachander, Goods Driver, Madras Division, who had been promoted on 4th September, 1997, the applicant had been assigned the seniority of Shri S. Balachander. The applicant’s transfer and reporting to Bangalore Division on 14th August, 2000 was “one way transfer as Goods Driver on administrative grounds from Madras Division” and therefore, his request to restore his original seniority position existing prior to his mutual transfer to Madras Division was not agreeable. Accordingly, he submitted an appeal addressed to Divisional Railway Manager, Bangalore on 12th April, 2001. Since there was no response to the said appeal, despite the fact that in the meantime the respondents notified proposals to conduct selection for promotion to the next higher post of Passenger Driver on 23rd April, 2001, he submitted another representation dated 20th June, 2001 followed by reminder dated 16th August, 2001. Finally, the applicant received communication dated 20th August, 2001 (Annexure-A15) stating inter alia, that the matter was being referred to the Chief Personnel Officer, Southern Railway Headquarters, Chennai. Meanwhile, finding no response, the applicant had got the legal-notice issued on 1st August, 2001. Immediately thereafter, he received communication dated 30th July/2nd August, 2001 from respondent No. 2 stating inter alia, that the seniority list wherein he had been assigned seniority as Goods Driver with effect from 4th September, 1997 was in conformity with the rules and needs no revision. It was stated that the applicant had been assigned seniority with effect from 4th September, 1997 i.e. the date of promotion of Shri S. Balachander with whom the applicant had applied for mutual transfer. The respondents went ahead with the said selection and the applicant participated in it under protest. Ultimately, vide memorandum dated 11th September, 2001 (Annexure-A18), panel was prepared for selection to the post of Passenger Driver on provisional basis, which did not include the applicant’s name.
4. As seen from the relief prayed for, extracted herein above, the applicant has challenged fixation of his seniority vide memorandum dated 23rd October, 2000, rejection of his representation vide communication dated 5th/8th January, 2001, communication dated 30th July/2nd August, 2001 as well as memorandum dated 11th September, 2001, notifying the selection for the post of Passenger Driver. The grounds urged in support of the said reliefs are that the said communication vide Annexures-A 10 and A17 have been passed without application of mind, arbitrary, discriminatory, contrary to law, besides violative of Articles 14 and 16 of the Constitution; once the respondents decided not to absorb the applicant in the Madras Division and rescinded the applicant’s mutual transfer and transfer him back to Bangalore Division, he was entitled to restoration of his original seniority with all consequential benefits; under no circumstances the applicant could be relegated by 40th position in the seniority list and made junior to those who were promoted as Goods Driver subsequent to the applicant’s promotion in the said grade; on transfer to Madras Division, applicant’s lien was retained in Bangalore Division and it was never terminated in as much as the applicant was not absorbed in Madras Division and therefore, he deemed to continue in Bangalore Division as if no transfer order dated 28th January, 1999 was ever issued; one of the conditions of transfer order dated 28th January, 1999 was that the applicant would retain lien in the parent unit till he was permanently absorbed in the new seniority unit to which he had been posted.
5. The respondents 1-4 and 40 filed their reply and strenuously contested the relief prayed for. As far as respondents Nos. 5 to 39 are concerned, neither they appeared nor filed reply, despite service. It is stated that the applicant sought mutual transfer with one Shri S. Balachander, Goods Driver, Madras Division, who had been promoted in the said grade with effect from 4.9.97 and in terms of the rule, the applicant was assigned the seniority of Shri S. Balachander; the transfer order dated 23rd June, 1999 had been challenged before the Madras Bench of this Tribunal in O.A. 582/1999, which was disposed of vide order dated 1st July, 1999 issuing direction to the applicant to make representation to the authorities concerned. In terms of the aforesaid order, the applicant submitted representation on 10th July, 1999 which was rejected vide order dated 29th July, 1999. The said order dated 29th July, 1999 was the subject matter before the Madras Bench of this Tribunal in O.A. 731/ 99 which was also dismissed vide order dated 7th February, 2000. The order dated 7th February, 2000 was also unsuccessfully challenged before the High Court of Madras in Writ Petition No. 4935/2000. The applicant was transferred to Bangalore Division on one way transfer from Madras Division on administrative grounds as the power were vested in the General Manager to transfer the applicant from one Division to another Division. Shri Balachander, Goods Driver, who joined Bangalore Division on 12th February, 1999 was promoted as Senior Goods Driver with effect from 16th August, 2000 vide order dated 14th August, 2000. On an application filed by the applicant before this Bench in O.A. 185/98, this Bench directed the respondents vide order dated 27th August, 1999 to consider the applicant for promotion as Senior Goods Driver from date his juniors were promoted. The said order dated 27th August, 1999 had been the subject matter before the High Court of Karnataka in Writ Petition No. 6454/2000 and vide interim order dated 9th March, 2000, the High Court directed the respondents to comply with the directions of the Tribunal passed in the above mentioned case subject to the outcome of the said writ petition, and, therefore, the applicant was promoted as Senior Goods Driver on proforma basis on par with his juniors from 31st March, 1997 to 2nd February, 1999 i.e. till the date he had been relieved to Madras Division on mutual transfer. The respondents also contended that the applicant applied for the selection of Passenger Driver but his name could not be included in the said panel as he did not come out successfully in the selection. The allegations of misrepresentation, suppression of material facts and unlawful action of the applicant have also been raised by the respondents.
6. Rejoinder has been filed by the applicant controverting the contentions raised by the respondents and emphasising that once the applicant was “transferred back”, the earlier order of mutual transfer stood nullified and he was entitled to the position and placement which existed prior to his transfer from Bangalore Division. It is further contended that the assignment of seniority in terms of Annexure-A7 memorandum dated 23rd October, 2000, was not supported by any rules or instructions. Further, it is contended that the respondents are estopped to transfer back the applicant to Bangalore Division.
7. We have heard the learned Counsel for the parties at length and perused the pleadings besides considering the rival contentions raised by them.
8. The short but interesting question which arises in the present case is whether the applicant who was mutually transferred from Bangalore Division to Madras Division could be denied the seniority which he had been holding in Bangalore Division, particularly, when within a short span of less than 5 months “he was transferred back” from Madras Division to Bangalore Division on “administrative grounds”.
9. At the outset, we may note that one of the conditions for applicant’s mutual transfer with Shri S. Balachander had been that “they will retain the lien in the parent unit till they are permanently absorbed in the new seniority unit to which they are posted”. It is contended by Mr. T.C. Govindaswamy, learned Counsel for the applicant that the applicant was not absorbed in the new seniority unit i.e., Madras Division, pursuant to the transfer order and rather vide order dated 23rd June, 1999, in less than 5 months period, he was “transferred back” to Bangalore Division on the alleged administrative grounds. Once he is transferred back to Bangalore Division for the reasons which are not attributable to the applicant, he would be entitled to the restoration of same position as well as placement which he had been holding in the seniority list of the cadre concerned. Madras and Bangalore are two different and distinct Division of Railways though falling under Southern Railways, Head Quarters of the Southern Railway is located at Chennai. It is an admitted fact that there is no provision under either the IREC or IREM which deals with the situation like of the present nature, though there are provisions in the said Code and Manual dealing with fixation of seniority on mutual transfer as well as transfer made in the public interest. It was further pointed out that the seniority list in the cadre of Goods Driver was issued by Bangalore Division on 7.7.1999 wherein the applicant had lost as many as 40 placement/It was further contended that Shri V. Ramakrishna was placed at Sl. No. 72 in the seniority list of Goods Driver issued on 9.8.1995 while the applicant was placed at Sl. No. 32 in the said seniority list and while the applicant now had been placed at Sl. No. 22 (a) below V. Ramakrishna in the seniority list dated 7.7.1999 and therefore, he has lost the seniority position very substantially, causing him serious prejudice, which has not only affected his promotional avenues for the next higher grade but also taken away the seniority acquired by him in the said grade. If the applicant had been absorbed and continued in the Madras Division of Southern Railway where he had been transferred on mutual basis, he would, under all circumstance, will take the seniority of Shri S. Balachander who was promoted in the said cadre with effect from 4.9.1997 and could not have claimed a better seniority than the said official. But what will be the situation when the said mutual transfer order is not respected and honoured by the respondents and the applicant is transferred back in a short span of less than 5 months, is the basic and narrow issue. Would he not be entitled for restoration of his seniority in the Bangalore Division or in the given facts and circumstances the official respondents be allowed to fix the applicant’s seniority at Bangalore Division on his transfer back, to his disadvantage, arc the other ancillary questions which need determination in the present case. It is an admitted fact that the applicant was not absorbed in the Madras Division and he continued to hold lien in Bangalore Division. The word “lien” has been defined in Fundamental Rules under Rule 9(13) which reads as under:
“9(13): Lien means the title of a Government servant to hold on regular basis, either immediately or on the termination of a period or periods of absence, a post, including a tenure post, to which he has been appointed on regular basis and on which he is not on probation.
Provided that the title to hold a regular post shall be subject to the condition that the junior most person in the grade will be liable to be reverted to the lower grade if the number of persons so entitled is more than the posts available in the grade.”
The word “lien” also came for determination before the Hon’ble Supreme Court in Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36 wherein it was held that lien is a title to hold permanent post unless his lien is transferred in accordance with rules. A substantive appointment to a permanent post in public service confers normally on the servant so appointed a substantive right to the post and he becomes entitled to hold a ‘lien’ on the post. In the present case as per the terms and conditions of inter divisional mutual transfer order dated 28th January, 1999, applicant as well as Shri S. Balachander were to retain their lien in the parent unit till their absorption in the new seniority unit. As far as the applicant is concerned, he had not been permanently absorbed in the Madras seniority unit till 23rd June, 1999 when he was transferred back to Bangalore Division. It is settled law that lien cannot be suspended either on transfer or on promotion made to higher post on officiating basis. It is further well settled law that no Government servant can have simultaneously 2 liens against two posts in two different cadres. In Stroud’s Dictionary, [5th Edn., Vol. 3, at page 1465], the following passage is found:
“Lien : (1) A lien-Without effecting a transference of the property in a thing- is the right to retain possession of a thing until a claim be satisfied; and it is either particular or general. So, as regards Scotland, ‘lien’ is defined as including ‘the right of retention’, or it ‘shall mean and include right of “retention”.
In Words and Phrases permanent Edition [Vol. 25], the definition of the word ‘Hen’ when used to explain the equivable lien, is given thus:
“A ‘lien’ from a legal stand point, embodies the idea of a deed or bond, and necessarily implies and there is something in existence to which it attaches.”
10. Seniority is a valuable right of an official and it can neither be taken away nor the said position changed without affording an opportunity of hearing to the delinquent official concerned. If we have regard to the language employed in the said transfer order dated 23.6.1999 it would be clear that the applicant was transferred back to Bangalore Division on administrative grounds without narrating or disclosing as to what those administrative grounds were. The said order reads as under:
“Shri P.U. Venkatesan, Goods Driver/TVT in scale of Rs. 5000-8000 is transferred back to SBC Division on his same pay and scale on administrative grounds with immediate effect.”
(Emphasis supplied)
Lateron, while rejecting the applicant’s representation dated 10th July, 1999, on 29th July, 1999, the respondents assigned as many as 4 reasons to justify the applicant’s transfer back to Bangalore Division by stating that the applicant lacked necessary skill in driving in Chennai and he was not able to work effectively in the said Division. Our attention was drawn to the judgment and order passed by the Madras Bench of this Tribunal in O.A. 739/ 1999 wherein the transfer order dated 23rd June, 1999 as well as the rejection of applicant’s representation on 29th July, 1999 had been challenged on the ground of malafides as well as competence and jurisdiction of the authority in passing the said order. We may note at this stage that while dismissing the said O.A., the Madras Bench specifically reserved the liberty to the applicant to challenge any question with regard to the seniority as and when it arises, which was also reiterated by the High Court of Madras in its order dated 27th August, 2001 while dismissing the writ petition filed by the applicant against the Madras Bench judgment and order dated 7th February, 2000. The High Court in specific noted and answered the said contention which reads as under:
“Counsel then submitted that the question of his seniority was required to be gone into. That question, as already observed, was not before the Tribunal and it was outside the scope of the proceedings before it. We also, therefore, refrain from saying anything about the seniority to be assigned to him at the place to which he has been transferred.”
(Emphasis supplied)
A perusal of the aforementioned judgment makes it clear that seniority in the said cadre of Goods Driver was not the subject matter and was left open, and, therefore, we are justified to go into that question at this stage despite dismissal of the applicant’s challenge to said order dated 23rd June, 1999.
11. Our attention was drawn by the learned Counsel for the applicant to Chapter III of IREM, Vol. I which deals with the rules regulating seniority of non-gazetted Railway servants. Admittedly the applicant is a non-gazetted Group ‘C official governed by the said rules. Rule 302 deals with the seniority in initial recruitment grades, to which we are not concerned. Rule 303 deals with the seniority of candidates recruited through the Railway Recruitment Board or by any other recruiting authority. Rule 304 deals with the situation where two or more candidates are declared to be of equal merit at one and the same examination/selection. Rule 305 deals with the situation wherein an official could not join duty within a reasonable time after appointment. Rule 309 deals with seniority and promotion and states that Rule 306 which prescribes that candidates selected for appointment at an earlier selection shall be senior to those selected later irrespective of the dates of posting, will be the guiding factor. Rule 310 deals with the mutual exchange, while Rule 311 deals with transfer in the interest of administration. Rule 312 deals with transfer on request. The said Rules 310 to 312 reads as under:
“310. Mutual Exchange-Railway servants transferred on mutual exchange from one cadre of a division, office or Railway to the corresponding cadre or another division, office of Railway shall take (sic.) their seniority on the basis of the date of promotion to the grade or take the seniority of the Railway servants with whom they have exchanged, whichever of the two may be lower.
311. Transfer in the Interest of Administration-Seniority of Railway servants on transfer from one cadre to another in the interest of the administration is regulated by the date of promotion/date of appointment to the grade as the case may be.
312. Transfer on Request-The seniority of Railway servants transferred at their own request from one Railway to another should be allotted below that of the existing confirmed, temporary and officiating Railway servants in the relevant grade in the promotion group in the new establishment irrespective of the date of confirmation or length of officiating or temporary service of the transferred Railway servants”.
Para-226 of IREC- Vol. I deals with the power of “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 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.
As per Rule 227, A Competent Authority has power of jurisdiction to transfer a Railway servant from one post to another in the circumstances enumerated therein which are: (i) on account of inefficiency or misbehaviour, or (ii) on his written request. Rule 227 reads as under:
“227 A Competent Authority has power of jurisdiction to transfer a Railway servant from one post to another in the circumstances enumerated therein which are:
(i) on account of inefficiency or misbehaviour, or on his written request.
(ii) on his written request, a Railway servant shall not be transferred substantively to or, except in a case of dual charge, appointed to” officiate in a post carrying pay than the pay of the permanent post on which he holds a Hen, or would hold a lien had his lien not been suspended under Rule 241 (FR. 14).
Transfer on request as well as transfer on mutual exchange are dealt with in Rules 229 and 230 respectively. Our attention has not been drawn by both sides to any other rules on the said subject. On the other hand, it was specifically stated by both sides that there is no provision under the aforementioned Code as well as Manual dealing with the issue in hand. Therefore, we have no other assistance in terms of either Code or Manual.
12. The word “Cadre” has been defined under Para 103(7) of IREC, Vol. I as “Cadre means the strength of service or a part of a service sanctioned as a separate unit.” There is no definition of the word “Cadre” available under IREM, Vol.I. If we have regard to Rule 311 of IREM, Vol. I which deals with transfer in the interest of administration and provided that when a Railway servant is transferred from one cadre to another in the interest of administration, his seniority is regulated by the date of promotion/date of appointment. If we minutely examine the provision of Rule 310 as well as 311 it would be clear that while under Rule 310 a transfer can be made from one cadre of a division, office or Railway to the corresponding cadre in another division, office or Railway, under Rule 311 the transfer can be from one cadre to another only, no doubt in the interest of administration. The word “administrative grounds” are not dealt with under either in the IREM or IREC. If the authorities are allowed to play mischief, they can use different words in different circumstances only in order to cause prejudice to an employee like in the present case without affording an opportunity of hearing. As we have already noticed, neither the applicant was absorbed in the Madras Division nor the question of determination of his seniority had arisen in the said Madras Division prior to his “transferred back” to Bangalore Division order dated 23.6.1999. On the other hand, immediately he was transferred to Bangalore Division, the seniority of Goods Driver was determined immediately thereafter i.e., 7th July, 1999, prescribing the same as on 1st July, 1999.
The Hon’ble Supreme Court as early as in the year 1967 in the case of State of Orissa v. Dr. (Miss) Bina Pani Dei, 1967 SLR 465 (SC) has observed that the administrative order involving civil consequences must be consistent with the principles of natural justice. The respondents action in the present case, which is caused by an administrative order, undoubtedly involve civil consequences, i.e., loss of seniority to the applicant for ho fault of him. It would be relevant at this stage to extract the observations of the Hon’ble Supreme Court in the aforementioned case.
“The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial Tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our Constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore, arise from the very nature of the function intended to be performed; it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.”
It is further well settled law that the State functionaries must act fairly and reasonably. Fairness is a rule to ensure that the vast power in the modern State is not abused but properly exercised. The State power is used for proper and not for improper purposes. The authority is not misguided by extraneous or irrelevant considerations. Justice should not only be done but seen to be done, is the essence of fairness equally applicable to administrative authorities. Thus fairness is a prime test for proper and good administration. [See (1990) 2 SCC 48, Management of M.S. Nally Bharat Engineering Co. Ltd. v. State of Bihar and Ors.]. The law laid down in the aforementioned judgments squarely applies in the facts of the present case.
13. As we have already noticed, the applicant has suffered as many as 40 places in the seniority list of Goods Driver in the Bangalore Division in a short span of less than 5 months. What is the effect when the applicant is “transferred back” to an unit, division, or department from where he was transferred on mutual inter divisional transfer?
If the applicant was absorbed and continued in the Madras Division to which he had been transferred on mutual transfer in terms of Para-230 of IREC, Vol. I and 310 IREM, Vol. I, his seniority would have been governed in accordance with the said rules, which provided that senior of the two employees will be given a place of seniority effected by the other person, i.e. the junior will be allowed to retain his formal seniority and shall be listed in the seniority below the person having the same seniority. In the present case, the applicant was promoted as Goods Driver on 24th May, 1994 but he exchanged his position with that of Shri S. Balachander, Goods Driver of Madras Division, who was promoted in the said grade on 4.9.1997. Therefore, the applicant in the Madras Division could not have been placed over and above the position which was held by Shri S. Balachander. But such is not the situation and as such that is not the end of the problem, particularly, in the facts and circumstances of the present case as the applicant was “transferred back” to his original and parent division, where he was retaining his lien too. The word “transferred back” employed in the transfer order dated 23.6.1999 would basically mean that the applicant would be entitled to restoration of his position which existed prior to passing of mutual transfer order. The word “transferred back” has been substituted by the respondent Nos. 3 and 4 unilaterally by stating that the same was “one way transfer”. We do not find such an expression is employed either in IREC or IREM Vol. I. If the contention of the respondents that the applicant would be entitled to seniority of Shri S. Balachander, i.e., 4.9.1997 irrespective of the fact that whether he continues to remain in Madras Division or transferred back to Bangalore Division is accepted, it will lead to absurd situation which is neither supported by any rules or flow from logic. A cunning employer in such a situation can resort in a very dubious manner, which could be explained by the following example:
‘A’ who was promoted in the given post on 1.1.1990 and had been holding lien in Division-I is transferred on mutual exchange basis to Division-II, on 1.1.1998, with reference to an official ‘B’ who was promoted in the said grade on 1.1.1995 and was not absorbed in the transferred division for say about 5 years for any reason, is again transferred to Division-IH on 1.1.2003 on administrative grounds or by using any such terminology. In such an eventuality the official ‘A’ would stand to loose around 5 years available service for the purpose of determination of seniority in Division-B in the first instance and for about 13 years in Division-Ill as he would be entitled to count his service in Division-III only from the date of his transfer.
14. Such cannot be the object or purport of any rule. Our illustration is only one such example where a person could be made to suffer in terms of seniority by transferring him either on request or otherwise from one division to another and further another Division. We are unable to subscribe to such a proposition raised by the respondents. Once the person is “transferred back” to a division from where he was originally transferred on mutual request, an official would be entitled to retain his seniority, particularly, when in a short period of less than 5 months, he is transferred back on account of administrative grounds. The alleged administrative grounds were not disclosed in specific in the said order and if the administrative grounds were determinatory factor for transferring back the applicant to Bangalore Division he cannot be made to suffer in terms of seniority by as many as 40 places in a short span of less than 5 months. Moreover, the seniority list of the grade concerned in Bangalore Division was issued immediately after passing the transfer order, on 7.7.1999 showing the placement as on 1.7.1999. If we extend the same principles and logic as provided under Rule 311 of IREM, Vol. I to the facts and circumstances of the present case, the applicant cannot be made to lose his placement in the concerned seniority list as sought to be done by the respondents. The words “administrative grounds” employed in transfer order dated 23.6.1999 as well as “interest of administration” as provided under Rule 311 of IREM, Vol. I have close and proximate relation, and cannot be read in a narrow and pedantic manner.
15. There is one more aspect which needs to be commented upon. Learned Counsel for the respondents pointed out that on an earlier occasion, the applicant had filed O.A. No. 185/ 98 wherein he sought promotion to the post of Senior Goods Driver, which O.A. was allowed vide order dated 27.8.1999 and the High Court of Madras in Writ Petition No. 6454/ 2000 challenging the aforesaid order, reversed its finding. It was clarified by the learned Counsel for the applicant that in the said case the applicant had sought promotion to the post of Senior Goods Driver, which is a non-functional grade and the issue raised in the said case were totally different and distinct than the one in the present case in as much as the determination of the seniority in the cadre of Goods Driver was not the subject matter in the said O.A. On consideration of the facts, we find substance in the said contention raised by the applicant that the issue raised in the O.A. No. 185/98 were different and distinct from the one raised in the present case. Moreover, no plea of res judicata or constructive res-judicata either has been raised by the respondents or would have been tenable.
16. In view of the above discussion, we find no justification and substance in the respondents communication dated 5th/8th of January, 2001 that the applicant would be entitled to seniority of Shri S. Balachander in Madras Division irrespective of the fact that whether he is retained and allowed to continue in Madras Division or transferred back as Goods Driver to Bangalore Division on administrative grounds. Similarly the communication dated 30th July/2nd August, 2001 (Annexure-A17) which only reiterated the earlier stand taken vide memorandum dated 23rd October, 2000 as well as 5th/8th January, 2001, also, cannot be sustained. We are of the considered view that the applicant on his transfer back to Bangalore Division would be entitled to restoration of his seniority, particularly, in the facts and circumstances of the case. Accordingly O.A. is allowed and the memorandum dated 23rd October, 2000, 5th/8th January, 2001, as well as 30th July/2nd August, 2001 are held to be illegal, arbitrary and not supported by any provision of rules/instructions on the said subject and therefore, set aside and quash with all consequential benefits. As far as the selection to the post of Passenger Driver, as notified vide memorandum dated 11th September, 2001 is concerned, the applicant would be entitled to review of the same on restoration of his seniority in the cadre of Goods Driver. The aforesaid exercise shall be completed within a period of 3 months. There shall be no order as to costs.