Kunwar Bahadur v. State of U. P — 1979 DIGILAW 603 (ALL)

JUDGMENT P.N. Goel, J. - This is a plaintiff's appeal against the judgment and decree dated 11-12-1968 passed by Civil and Sessions Judge, Rampur in Civil Appeal No. 61 of 1968. In the suit giving rise to this appeal Kun-war Bahadur, appellant claimed following reliefs:- (a) declaring the appellant to be a senior cashier, mandatory injunction ordering the respondent to restore him as a senior cashier, Rampur. (b) a decree for Rs. 320.00 as special pay at Rs. 40.00 p. m. from 4-5-1966 to 3-1-1967. (c) pendente lite and future special pay at Rs. 40.00 p. m. till the restoration of the appellant to the post of the senior cashier at Rampur Hydel division, Rampur (d) cost of the suit. (e) any other relief which in the circumstances of the case the court deems fit to award to him. The suit was filed on 4-1-1967. The facts upon which the above reliefs were claimed are these. By order dated 15-1-1957 (Ex. 10), the appellant was appointed as an officiating junior cashier in the Hydel department of the Government of the Uttar Pradesh at Rampur. The appellant joined his duties on 1-2-1957. He continued to perform his duties to the entire satisfaction of the authorities concerned. On the transfer of Sri Shyam Mohan Lal, Senior Cashier, by order dated 23-5-1957, he was promoted as officiating senior cashier. Sri Shyam Mohan Lal returned back to his post on 5-12-1957 and as such the appellant was transferred back to the initial post of Junior Cashier. In the year 1960, U. P. State Electricity Board came into existence and the services of the appellant were obtained by it. On 5-12-1960 Sri Shyam Mohan Lal was again promoted to the post of Head Clerk, but the appellant was not posted in his place as an officiating senior cashier. The appellant made representation, in consequence of which by order dated 1-5-1962, he was promoted to the post of senior cashier. Since then the appellant was working as senior cashier at Rampur. By order dated 7-4-1966, he was transferred to the post of Noter and Drafter at Moradabad. The appellant received this order of transfer on 4-5-1966. During the pendency of the suit the appellant was transferred from Moradabad to Etah. The orders of transfer were illegal and without jurisdiction. The post of Noter and Drafter is in a different cadre and is inferior in position. The appellant received this order of transfer on 4-5-1966. During the pendency of the suit the appellant was transferred from Moradabad to Etah. The orders of transfer were illegal and without jurisdiction. The post of Noter and Drafter is in a different cadre and is inferior in position. The orders of transfer are in utter disregard of the Government standing orders and the provisions of the Constitution as they were passed on personal prejudices without assigning any reason or affording any opportunity to the appellant and without any fault on his part. On receiving the order of transfer on 4-5-1966, the appellant had no alternative but to join the duty which he did under protest. The appellant was, therefore suffering a loss of special pay amounting to Rs. 40.00 p. m. as a senior cashier. The appellant approached the authorities but to no result. The appellant, therefore gave notice under Section 80 C.P.C. The respondents contested the suit. Leaving aside the pleas of want of jurisdiction of Rampur court to try the suit, under-valuation and insufficiency of court fee, the respondents contended that the appellant was appointed on a temporary basis as a junior cashier, that he was appointed as officiating senior cashier as a stop gap arrangement, that the appellant worked as bill-clerk, record-clerk in the routine grade clerk cadre till April 1961, that the appellant made no representation when Sri Shyam Mohan Lal was promoted as Head Clerk in Dec. 1960, that the appellant was, however, allowed to work as officiating senior cashier because other officials did not want to work in that cadre, that the grade of the senior cashier was the same as that of Noter and Drafter, that the appellant was only a temporary employee and had no vested right to claim the job for himself, that the appellant in pursuance of the transfer order did not join at Moradabad, that instead he filed a suit in the court at Rampur for injunction against the order of transfer, that the appellant withdrew the suit, that it was wrong to say that he joined at Moradabad under protest, that the appellant was not at all entitled to any special pay because the special pay was granted much after the transfer of the appellant from Rampur and that the appellant was not working on the post on the date of the order granting special pay and that no rights of the appellant were violated and that the suit was wholly misconceived. 2. The Munsif Rampur, who tried the suit framed 5 issues. The first issue was whether the transfer of the appellant to Moradabad as Noter and Drafter was illegal. The trial court decided this issue in favour of the appellant. In doing so the trial court considered F. Rule 15 of the Financial Hand Book, Vol. II, Parts II to IV. The trial court further found that in view of notification No. 33/1 (i)/GG FDAI, dated Apr. 19, 1966 (Ex. 5) the appellant was entitled to special pay (ii) Rs. 15/- p. m. Consequently the trial court decreed the appellant's suit and directed the respondents to restore him to the post of senior cashier. A decree for special pay at Rs. 15/- p. m. from 4-5-1966 to 3-1-1967 was also passed. The appellant was also held entitled to pendente lite and future special pay at Rs. 15/- p. m. 3. The respondents filed appeal and in appeal the Civil and Sessions Judge set aside the decree passed by the trial court and dismissed the appellant's suit in toto. The lower appellate court held that the appellant had no lien on any post as he was a purely temporary employee and that the appellant was not entitled to get mandatory injunction claimed by him. The lower appellate court held that the appellant had no lien on any post as he was a purely temporary employee and that the appellant was not entitled to get mandatory injunction claimed by him. At this stage it may be mentioned that the trial court held that the appellant had a lien. 4. The learned counsel for the appellant contended that the order of transfer of the appellant from Rampur to Moradabad was illegal as it was in violation of F. R. 15, that as such the appellant was entitled to the reliefs claimed or to any other appropriate, relief, that the lower appellate court did not take into consideration F. R. 15, that the lower appellate court mainly proceeded to decide the case on the ground that the appellant had no lien and that he was not entitled to any of the reliefs claimed. He further contended that the appellant was entitled to the reliefs notwithstanding the fact that he had a lien or no lien on any post. 5. The first point for consideration is whether the order transferring the appellant from the post of senior cashier, Rampur, upon which he was officiating to the post of noter/drafter at Moradabad is illegal. The cadres of senior cashier, junior cashier, noters/dr afters are distinct as is evident from two papers on record, Exs. A-7 and A-4. Certain temporary posts were made permanent by G. O. No. 614 EH/XXIII PWD-83 EH/54 dated Aug. 16, 1955. There are 2 statements annexed to this Government order. Statement No. 2 relates to Hydel Ganga Circle, Moradabad. In this statement, one post of senior cashier, one post of junior cashier and 5 posts of noters/drafters have been shown (Ex. A-4). In letter No. 9608/P-F/K, dated 13-12-1963, The Executive Engineer, U. P. State Electricity Board, Hydro /Electric Division, Rampur, made a report to the Superintending Engineer, Moradabad that there were no instructions from 'the Chief Engineer for the change of cadre of junior cashier/senior cashier to the post of routine grade clerk/noter/ drafter or vice versa (Ex. A-7). It is thus evident that the cadre of junior cashier/ senior cashier is distinct from the cadre -of routine grade clerks/noters/drafters. 6. Fundamental rule 15 (a) lays down that a Government servant may be transferred from one post to another. A-7). It is thus evident that the cadre of junior cashier/ senior cashier is distinct from the cadre -of routine grade clerks/noters/drafters. 6. Fundamental rule 15 (a) lays down that a Government servant may be transferred from one post to another. This rule does not say that a Government servant may be transferred from one cadre to another. There is no other rule for transfer of a Government servant from one cadre to another. The Chief Engineer had not issued any instructions for the change of cadres (vide Ex-A7). 7. Learned counsel for the respondents urged that this rule did not prohibit transfer of a Government servant from one cadre to another and that it enabled the authorities to transfer a Government servant from one post in a cadre to another post in the other cadre. This contention does not appear to be correct. If it were correct, either the rule would have said so explicitly or there would have been instructions issued by the Government or the Chief Engineer, Head of the department. The respondents' counsel could not show any such instructions. Furthermore in the cases of Prem Praveen v. Union of India, (1973) 2 Serv LR 659 (Delhi) and S. K. Srivastava v. Union of India, (1971) 2 Serv LR 453 (Delhi), it was clearly held that a Government servant recruited to a particular cadre could not be compelled to serve outside that cadre. 8. The appellant was recruited/appointed initially as Junior Cashier, Rampur. Posts of Junior and senior cashier are only at Rampur and at no other station. Therefore, the appellant could not be legally transferred from the post of cashier, Rampur to the post of Noter/Drafter at Moradabad. 9. The learned counsel for the appellant referred to two cases: Dr. Prem Behari Lal Saksena v. Director of Medical and Health Services, Lucknow, AIR 1959 All 629 and State of West Bengal v. Hirendra Nath Banerjee, AIR 1967 Cal 285 . 10. It may immediately be stated that on facts both these cases are not applicable to the facts of the present case mainly for two reasons: (1) The incumbent was either a confirmed employee on a special post at a particular place or was posted to an ex-cadre post. And (2), he did not join on the post to which he was transferred. And (2), he did not join on the post to which he was transferred. Therefore, the appellant cannot get any advantage from the principle laid down in these cases. 11. The trial court placed reliance on the first case. The lower appellate court found that it was not applicable. In this case two posts of Anaesthetist attached to the State Hospitals at Kanpur and Allahabad were advertised. In the notification issued by the Public Service Commission inviting applications, it was clearly mentioned that each Anaesthetist would be under the direct control of the Civil Surgeon of the district concerned, that he would not be attached to any particular hospital and that he would serve all the State hospitals in the city. The petitioner, Dr. Prem Behari Lal Saxena was selected by the Public Service Commission for the post at Kanpur. Later on, he was confirmed as an Anaesthetist, Kanpur. Thereafter hie was transferred to S. P. Gupta Hospital, Varanasi. He made representation against his transfer and did not join at Varanasi. The Director of Medical Services suspended him. He filed writ petition. His petition was allowed and the order of suspension was quashed. It will be noticed that Dr. Saxena was specially appointed for the city of Kanpur, that he was not appointed to serve at any other Station and that he was confirmed in his post at Kanpur. Thus he had a lien at the said post from which he could not be transferred against his will. 12. In the other case of State of West Bengal, the respondent was appointed on a specified statutory ex-cadre post, 13. Learned counsel for the respondents pointed out that according to para 2 of the plaint Shyam Mohan Lal was transferred from the post of senior cashier, that according to para 5 of the plaint, he was again transferred to the post of head clerk, that on the record there were certain orders which indicated that the senior cashier had been transferred to other posts, and that even the appellant, after having been appointed as junior cashier in the year 1957, I worked on other posts of bill clerk and I record clerk at Rampur. It appears that Shyam Mohan Lal did not protest against his transfers and the appellant also did not object. It appears that Shyam Mohan Lal did not protest against his transfers and the appellant also did not object. But this fact would not justify the transfer of the appellant from the post of senior cashier, Rampur to the post of noter/drafter at Moradabad under rule 15. 14. In view of the above, it is clear beyond debut that the order transferring the appellant, officiating senior cashier at Rampur to the post of noter/'drafter at Moradabad is illegal and in violation of fundamental rule 15. 15. The question now is whether the appellant is entitled to be restored to the post of senior cashier at Rampur and to the special pay claimed by him i. e. the reliefs claimed by him. In other words whether the appellant can claim the post of senior cashier as of right. The initial letter of appointment dated 15-1 -1957 clearly shows that the appellant was appointed as officiating junior cashier and that his appointment was purely temporary and his services were liable to be terminated at any time without notice. It means that the appellant's services were wholly at the pleasure of the appointing authority. It is undisputed that on the transfer of Sri Shyam Mohan Lal, senior cashier, the appellant was appointed as officiating senior cashier, that on the return of Sri Shyam Mohan Lal to his post of senior cashier, the appellant was reverted to his post of junior cashier, that Sri Shyam. Mohan Lal then left the post of senior cashier on account of his promotion as head clerk on 5-12-1960 and that the appellant was not immediately appointed in his place. However, he was later on appointed as officiating senior cashier by order dated 1-5-1962. It is thus evident that the appellant was simply am officiating senior cashier, the post from which he could be reverted at any time. In these facts and circumstances, the question of lien considered by the lower appellate court assumes importance.. The term "lien" has been defined in; fundamental R. 9 (13) as "title to a Government servant to hold substantively a permanent post, including a tenure post to which he has been appointed substantively". The appellant was never appointed substantively to any post of either junior cashier or senior cashier. Therefore, the appellant did not have' any title i.e. lien to any of these two' posts. The lower appellate court has rightly held so. The appellant was never appointed substantively to any post of either junior cashier or senior cashier. Therefore, the appellant did not have' any title i.e. lien to any of these two' posts. The lower appellate court has rightly held so. It has referred to two cases Ranjit Kumar Chakravarty v. State of West Bengal, AIR 1938 Cal 551 and Dhruva Malviya v. State of of U. P., AIR 1961 All 421 . Both these cases support its view. Therefore, it has rightly held that the appellant was not entitled to be restored to the post of senior cashier, Rampur and to the-Special pay claimed in the plaint. 16. There is another aspect of the matter. It is a well established rule-that the question of granting reliefs in a particular case has to be considered' independently of the fact of any illegality or irregularity committed by the opposite party. In the present case, the reliefs of declaration and mandatory injunction are governed by the provisions-of the Specific Relief Act and are in the discretion of the Court. The discretion-, has to be exercised judicially and not arbitrarily. 17. It is undisputed that on receiving the order of transfer, the appellant ultimately did join at Moradabad. The appellant's counsel pointed out that he did so under protest (vide para 10 of the plaint). This allegation has been denied by the respondents. The respondents clearly stated in para 8 of the written statement that the appellant did not join the post at Moradabad, and, instead, filed a suit at Rampur seeking injunction against the order of transfer and' that later on, the appellant withdraw the suit. There is nothing on the record to indicate that the appellant withdrew the suit with permission to file a fresh suit. The withdrawal of the suit debarred the appellant from bringing a fresh suit challenging the order of transfer as clearly provided in O. 23, R. 1 (3), C. P. C. It appears that after having withdrawn his suit, the appellant joined at Moradabad. It further appears that the appellant felt that if he did not join at Moradabad, he might be sacked in terms of his initial order of appointment or he might be reverted to the post of junior cashier at Rampur and thereby he might lose the higher scale of pay admissible to a senior cashier and noter/drafter. It further appears that the appellant felt that if he did not join at Moradabad, he might be sacked in terms of his initial order of appointment or he might be reverted to the post of junior cashier at Rampur and thereby he might lose the higher scale of pay admissible to a senior cashier and noter/drafter. It is undisputed that the posts of senior cashier and noter/drafter carry the same scale of pay which is sufficiently higher than that of a junior cashier. In these circumstances, it cannot be said that the appellant joined at Moradabad under protest. In fact he joined at Moradabad to remain in the higher scale of pay. Therefore, on these facts, the appellant can easily be refused the discretionary reliefs of declaration and mandatory injunction. This refusal does not prejudice the appellant. 18. The appellant's counsel pointed out that there was no issue in the case about the applicability of R. 1 (3) of O. 23, C. P. C. This is true. But the respondents had brought facts relevant for the applicability of the rule to the notice of the Court. The point involved is a purely legal one. As the appellant is seeking relief from this Court, it can take into consideration the statutory provision involved. 19. For what has been discussed above, the following four cases do not give any assistance to the appellant. Each case has to be decided on its own facts: Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735 . Abdul Sami v. Mohd. Noor, 1965 All LJ 339. Kishori Jena v. Rupa Jena, AIR 1953 Orissa 285. Shingounda Shidgounda v. Ganesh Yeshwant, AIR 1956 Bom 243 . 20. The appellant's counsel then urged that the appellant was entitled to the protection guaranteed under Art. 311 of the Constitution and referred to the following cases:- Sukhbansh Singh v. State of Punjab, AIR 1962 SC 1711 . Briefly stated in this case the appellant was recruited as Tehsildar in 1936. He was then appointed as an Extra Assistant Commissioner on probation in the year 1945. Then by order dated 20-5-1952 he was reverted to his post of Tehsildar. The appellant challenged his reversion. It was held in the circumstances of the case that the reversion was by way of punishment for misconduct and as such attracted the provisions of Art. 311. Then by order dated 20-5-1952 he was reverted to his post of Tehsildar. The appellant challenged his reversion. It was held in the circumstances of the case that the reversion was by way of punishment for misconduct and as such attracted the provisions of Art. 311. There is nothing in this case to show that the appellant had joined as Tehsildar after the order of reversion. State of U. P. v. Virendra Nath Srivastava, 1969 All LJ 1039. In this case Virendra Nath Srivastava respondent was reverted with immediate effect from the post of an officiating Superintending Engineer to his substantive post of Executive Engineer and Chowdhary Anis Ahmad was reverted from the post of officiating Executive Engineer to his substantive post of an Assistant Engineer with immediate effect. Both these officers filed separate writ petitions challenging their reversion. It was held that the order of reversion was in defiance of the protection guaranteed to Government servants by Art. 311. There is nothing to show that the two officers had joined on the posts to which they were reverted. P. C. Wadhwa v. Union of India, AIR 1964 SC 423 . In this case the appellant was reverted to his substantive rank of Assistant Superintendent of Police. The facts given in this decision do not indicate that the appellant had joined the post to which he was reverted. The learned counsel for the appellant pointed out that in this case the decision of Purshottam Lal Dhingra, AIR 1958 SC 36 was relied upon. Following observation of the case of Purshottam Lal Dhingra was reproduced :- "A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from the rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank." There is no dispute to this observation. But the question is whether the order of transfer of the appellant operates as a penalty. It was pointed out by the appellant's counsel that the appellant was losing his special pay. This contention is not justified for two reasons - (1) The appellant does not have a right to the post of senior cashier. But the question is whether the order of transfer of the appellant operates as a penalty. It was pointed out by the appellant's counsel that the appellant was losing his special pay. This contention is not justified for two reasons - (1) The appellant does not have a right to the post of senior cashier. There is no allegation in the plaint that as a junior cashier or as a senior cashier the appellant was getting any special pay. On this point the appellant's counsel referred to the Government order dated 19-4-1966, Ex. 5. The trial Court has also referred to this Government Order. This Government Order was issued on the basis of the recommendations of the pay Committee. Under this Order cashiers were allowed special pay depending upon the amount of security required to be furnished. If a cashier gave security exceeding Rs. 1000.00 but not exceeding Rs. 2000/- he was to get special pay of Rs. 15/- p.m. This special pay is subject to the conditions contained in para 3 of the Order. The record does not indicate if the appellant complied with these conditions. The record simply shows that when the appellant was appointed as junior cashier initially he had to give a security of Rs. 1000/- Ex. 10. The lower appellate Court accessed the statement of the appellant that he had given security of Rs. 2000/- therefore, the trial Court allowed special pay of Rs. 15/-p.m. to the appellant. The trial Court did not say whether the appellant complied with the conditions contained in para 3 of the Order. The appellant did not file any appeal or cross-objection against the decree of the trial Court granting special pay of Rs. 15/- p.m. It means that the appellant wrongly alleged in the plaint that he was entitled to special pay of Rs. 40/- p.m. In this connection it has further to be pointed out that there is absolutely no allegation in the plaint that the appellant was transferred from Rampur as a measure of punishment. (2) Furthermore, the appellant would be entitled to special pay only if he worked on the post of senior cashier or junior cashier. The appellant undisputedly joined at Moradabad after having withdrawn his suit. As soon as the appellant joined at Moradabad, he lost his right to get special pay. (2) Furthermore, the appellant would be entitled to special pay only if he worked on the post of senior cashier or junior cashier. The appellant undisputedly joined at Moradabad after having withdrawn his suit. As soon as the appellant joined at Moradabad, he lost his right to get special pay. In the above circumstances, the case of Sri P. C. Wadhwa does not afford any help to the appellant. Ishwar Chandra Mohanty v. State of Orissa, AIR 1966 Orissa 173. It is a case of reduction in rank. It was held that the reduction was mala fide. Therefore, the provisions of Art. 311 were applicable. This article does not help the present appellant. Thus the above cases do not help the appellant. 21. In this connection the appellant's counsel contended that Art. 311 of the Constitution made no difference between a permanent and a temporary Government servant. This is true. Article 311 is applicable only in 3 cases, of dismissal, removal and reduction in rank provided any of these penalties is awarded by way of punishment. In the present case there is absolutely no evidence to show that the appellant was transferred from Rampur to Moradabad by way of, punishment. The scale of pay of noter drafter is the same as that of senior cashier and higher than that of junior cashier. The appellant has thus not suffered any financial loss. 22. The above discussion leads to the conclusion that in the present case the appellant is not entitled to get any of the reliefs claimed in the plaint. 23. The appellant's counsel lastly urged that the appellant should have been posted as junior cashier at Rampur. This contention has no legs to stand on. The appellant did not allege in the plaint that he was not given the post of junior cashier at Rampur, despite his request. He did not claim such a relief in the plaint and as such did not give any opportunity to the respondents to bring facts in this respect to the notice of the Court. If advised, the appellant may move the respondents to transfer him to the post of junior cashier, Rampur. 24. For all what has been found above, there is no merit in this appeal which is dismissed with costs.