P. R. Chauhan v. State of U. P — 1982 DIGILAW 939 (ALL)

JUDGMENT T.S. Misra, J. - The facts which are not disputed but are relevant are these: Sri P. R. Chauhan. the petitioner, and Sri G. M. Prakash the opposite party No. 2, were selected as District Inspectors of Schools in U. P. Educational Services, Senior Scale in the year 1949. Thereafter both of them worked on the posts of Deputy Director of Education, Joint Director of Education and Additional Director of Education from time to time. The next higher post than the post of Additional Director of Education is that of Director of Education which is a selection post. Similarly, the post of Deputy Director of Education is also a selection post. The appointments to the post of Director and Deputy Director of Education are made by the Government by selection from amongst the members of the Services solely on the ground of outstanding merit vide R. 5 (3) of the U. P. Educational Services (class 1) Rules, 1945. The selection to the post of Director of Education U. P. was held on 28th Aug. 1978 by a Selection Committee at Government level consisting of Chief Secretary to Government, Secretary to Government Appointment Department and Secretary to Government Education Department. The petitioner was selected to the post of Director of Education by the said Selection Committee and was appointed vide Notification dated 5th Oct. 1978. a copy of which is Annexure 1 to the petition. The opposite party No. 2 challenged the said appointment of the petitioner by filing a reference claim on 23rd Nov. 1978 under S. 4 of the U. P. Public Services (Tribunals) Act, 1976. That petition is still pending. At the time of appointment of the petitioner as Director of Education he was drawing salary in the scale of Rs. 2250-2750. 2. The State Government by Notification dated 11th Sept. 1981 created a temporary post of Director of State Council of Educational Research and Training (for short SCERT) in the grade of Rs. 2250-100-2750, vide Annex. 2 to the writ petition. The opposite-party No. 2 was duly selected for the post of Director, SCERT by a duly constituted Selection Committee consisting of Chief Secretary, Education Secretary and Karmik Secretary and he was appointed to the post of Director, SCERT by the Government vide order dated 12th Oct. 1981 Annex. A-2 to the counter-affidavit in the scale of Rs. 2250-2750. 3. The opposite-party No. 2 was duly selected for the post of Director, SCERT by a duly constituted Selection Committee consisting of Chief Secretary, Education Secretary and Karmik Secretary and he was appointed to the post of Director, SCERT by the Government vide order dated 12th Oct. 1981 Annex. A-2 to the counter-affidavit in the scale of Rs. 2250-2750. 3. The pay scale of Director of Education was revised to Rs. 2700-3000 with effect from 1st July, 1979 or from the date of creation of the post which was later vide G. O. dated 23rd April, 1982. Similarly, the pay scale for the post of Director, SCERT was revised by the G. O. dated 14th May, 1982 to Rs. 2700-3000 with effect from 11th Sept. 1981, the date of creation of the post. 4. By G. O. No. 859/15 (13)-1499/8/81 dated 24th April, 1982 the post of Director SCERT which was an ex-cadre post was added to the cadre of Director U. P. educational Service Class I and it was specified in the said G. O. that orders with regard to the revised pay scale recommended by the Pay Commission would be issued separately, vide Annex. A-5 to the counter-affidavit. So, the post of Director SCERT was initially in the same scale of pay as that of Director of Education, U. P. i.e., Rs. 2250-2750. The Pay Commission had recommended the scale of pay of Rs. 2700-3000 for the post of Director of Education, U. P. The Pay Commission could not revise the pay scale for the post of Director, SCERT because it was created after the appointment of the Pay Commission. The Government revised the pay scale of the Director of Education to Rs. 2700-3000 vide G. O. dated 23rd April, 1982. The post of Director SCERT was added to the cadre of U. P. Educational Service Class I by G. O. dated 24th April, 1982. The pay scale of Director SCERT was also revised to Rs. 2700-3000 with retrospective effect from 11th Sept. 1981. Thus both the posts are not in the same cadre and carry the same scale of pay. 5. The petitioner was elected President of Schools Games Federation of India for a period of four years. The pay scale of Director SCERT was also revised to Rs. 2700-3000 with retrospective effect from 11th Sept. 1981. Thus both the posts are not in the same cadre and carry the same scale of pay. 5. The petitioner was elected President of Schools Games Federation of India for a period of four years. He was selected by the Government to go to West Indies as a Manager of the Indian School Boys Cricket Team for a period of about one month during April-May, 1982. The petitioner applied for one month's leave which was sanctioned as special casual leave to the petitioner for proceeding to West Indies as Manager of the Team for the period April 4, 1982 to May 5, 1982 vide order dated 1st April, 1982 annex. 5 to the writ petition. While sanctioning the leave to the petitioner, the State Government directed him to hand over charge of the post of Director of Education to opposite party No. 2. The petitioner thereupon pointed out on the same 'day that as he was* proceeding on special casual leave, he, under the rules, would continue to hold the charge and, as such, there was no question of handing over the charge to the opposite-party No. 2 or any one else. The petitioner approached the Education Secretary in this regard and subsequently on 3rd April, 1982 the Government issued a letter to the effect that there was no need for the petitioner to hand over the formal charge and that the opposite-party No. 2 would only look after the petitioner's work in his absence during special casual leave, vide Annex. 6 to the writ petition. The petitioner left Lucknow on 3rd April, 1982 for proceeding to West Indies as Manager of the Team. 6. On 15th April, 1982 the State Government issued a letter stating that the opposite party No. 2, Director, SCERT would also work as Director of Education and Chairman of the Board of High School and Intermediate Education as also of the Basic Shiksha Parishad (Annex. 7). This was followed by another letter dated 26th April, 1982 by which the petitioner was transferred to the post of Director SCERT and the opposite party No. 2 was posted as Director of Education. 7). This was followed by another letter dated 26th April, 1982 by which the petitioner was transferred to the post of Director SCERT and the opposite party No. 2 was posted as Director of Education. Another letter was also issued stating that under Subsidiary Rule 188 Financial Handbook Volumes II to IV the petitioner was deemed to have been relieved as Director of education and to have taken over as Director, SCERT with effect from the date the opposite-party No. 2 signed the charge certificate. The opposite party No. 2 signed the charge certificate on 28th April, 1982 and the Charge certificate was counter-signed by the Education Secretary. 7. The petitioner returned to Delhi with the team on 8th May, 1982 and reached Lucknow on the morning of 9th May, 1982. He then learnt of the aforesaid orders of the Government including the order transferring him from the post of Director of Education to that of Director, SCERT. The petitioner submitted a representation on 10th May, 1982 to the Education Secretary which was replied to by the latter vide his letter dated 15th May, 1982 informing the petitioner that his status was not affected and there was no monetary loss to him while working as Director, SCERT. The petitioner submitted another representation before the Government on 17th May, 1982 contending, inter alia, that the post of Director of Education and Director, SCERT were not equivalent posts and that the latter was a lower post since the grade of the, former was Rs. 2700-3000 while that of the latter on that date was only Rs. 2250-100-2750. That representation was also replied to by the Special Secretary, Education vide letter dated 25th May, 1982. Aggrieved, the petitioner has filed the instant petition under Article 226 of the Constitution seeking a writ in the nature of certiorari to quash the order dated 28th April, 1982 and also seeking a writ in the nature of mandamus directing the Government to cancel the order of transfer dated 28th April, 1982 and to revert the opposite party No. 2 to the post of Director SCERT. He has also prayed that the opposite-parties be prohibited from interfering in the discharge of duties by the petitioner as Director of Education. The petition has been opposed and a counter affidavit has been filed on behalf of the Government. The opposite party No. 2 has also filed his counter-affidavit. He has also prayed that the opposite-parties be prohibited from interfering in the discharge of duties by the petitioner as Director of Education. The petition has been opposed and a counter affidavit has been filed on behalf of the Government. The opposite party No. 2 has also filed his counter-affidavit. Rejoinder-affidavits and supplementary rejoinder-affidavits have been filed by the petitioner. 8. For the petitioner it was contended that the post of Director of Education is a statutory post and a selection post to which the petitioner alone was selected and the opposite-party No. 2 was not selected in the year 1978. The petitioner had been holding that post since then and he could not be transferred to the post of Director, SCERT which was, according to the petitioner, an inferior post. Further, it was submitted that the opposite-party No. 2 was never selected by a duly Constituted Selection Committee for the post of Director, SCERT as also for the post of Director of Education; hence his transfer to the post of Director of Education is illegal. According to the petitioner, what could not be achieved directly be selection, could not have been secured by oblique methods. The submission was that the Government has specially created a temporary post of Director, SCERT in the fix grade of Rs. 2250-2750 in order to accommodate the opposite party No. 2 who was subsequently put into that post. The obvious plan, therefore, was to push in opposite party No. 2 by an alleged process of selection when there was no post at all in existence in the U. P. Educational Service (Class 1). The post of Director, SCERT was added to the cadre not earlier than 24th April. 1982. Selection of the petitioner to the post of Director of Education was made as early as Aug. 1978 for which the protest of opposite-party No. 2 for not having been selected is still pending before the Services Tribunal. The post of Director, SCERT was added to the cadre not earlier than 24th April. 1982. Selection of the petitioner to the post of Director of Education was made as early as Aug. 1978 for which the protest of opposite-party No. 2 for not having been selected is still pending before the Services Tribunal. It was, therefore, contended on behalf of the petitioner that the order transferring him to a post carrying less pay was illegal and it was also mala fide in the sense that the order of transfer was passed when the petitioner had gone out of India with a Team to West Indies and when there was no necessity of transferring the opposite-party No. 2 to the post of Director of Education because during the absence of the petitioner the opposite-party No. 2 was already looking after the work of the post of Director of Education and the work was thus going on. 9. The learned Advocate General, on the other hand, submitted on behalf of the Government that the post of Director SCERT was in no way inferior to the post of Director of Education. The post of Director. SCERT was added to the cadre of Educational Service Class I and initially both the posts, namely that of Director of Education and the Director, SCERT carried the same scale of pay of Rs. 2250-2750. Subsequently, pursuant to the recommendation of the Pay. Commission the scale of pay of the Director of Education w as revised to Rs. 2700-3000. The scale of pay of the Director, SCERT was also revised by the Government with retrospective effect from the date of its creation to the scale of Rs. 2700-3000. The learned Advocate General submitted that in public interest the Governor may transfer a Government servant to a post in another cadre or lo an ex-cadre post vide Rule 15 of the U. P. Fundamental (Second Amendment) Rules, 1981 contained in the Financial Handbook, Vol. II, Part II as amended by U. P. Fundamental (Second Amendment) Rules, 1981. The Submission was that since the posts of Director of Education and Director, SCERT are in the same cadre and carry the same scale of pay the petitioner could legally be transferred and has in fact been transferred from the post of Director of Education to the post of Director, SCERT. The Submission was that since the posts of Director of Education and Director, SCERT are in the same cadre and carry the same scale of pay the petitioner could legally be transferred and has in fact been transferred from the post of Director of Education to the post of Director, SCERT. It was also submitted that the order of transfer is neither arbitrary nor mala fide. It had become necessary to transfer opposite-party No. 2 to the post of Director of Education in the larger interest of the public as the examinations of Board of High School and Intermediate Education were being conducted and lot of preparations had to be made for holding the examinations etc. The petitioner would be deemed to have been posted as Director, SCERT with effect from 28th April, 1982 the date on which he was deemed to have been relieved consequent upon the opposite-party No. 2 relinquishing the charge of the post of Director, SCERT and taking over charge as Director of Education. The learned Advocate General submitted that the petitioner can be transferred to any post carrying the same scale of pay and he is not entitled to compel the State Government to take work from him as Director of Education and not as Director, SCERT. 10. The learned counsel for the petitioner submitted that the order of transfer is vitiated on the ground of malice in law and should, therefore, not be sustained. 11. From the facts stated hereinabove, it is quite manifest that the petitioner was selected for the post of Director of Education in the year 1978 and the opposite-party No. 2 was not then selected. The petitioner continued to hold post and was then sent abroad to West Indies with a team. During his absence on special casual leave the opposite-party No. 2 who was Director SCERT was asked to look after the work of the post of Director of Education as well. The opposite party No. 2 was selected to the post of Director, SCERT by a duly constituted Selection Committee and was appointed on that post on 12th Oct. 1981 in the scale of Rs. 2250-2750. The opposite party No. 2 was selected to the post of Director, SCERT by a duly constituted Selection Committee and was appointed on that post on 12th Oct. 1981 in the scale of Rs. 2250-2750. The post of Director, SCERT was added to the cadre of Director in the Educational Service Class I by Government Order dated 24th April, 1982 and it was specified in the G. O. that orders with regard to the revised pay scale recommended by the Pay Commission would be issued separately. Significantly, a day before i. e. on 23rd April, 1982 the scale of pay of the Director of Education was revised by G. O. of that date to Rs. 2700-3000 with effect from 1-7-1979. The Government issued a separate G. O. revising the pay scale for the post of Director, SCERT on 14th May, 1982 to Rs. 2700-3000 with effect from 11th Sept. 1981. The contention on behalf of the petitioner was that the Director of Education wields immense power. He has the budgetary control of several crores of rupees and is the Chairman of the U. P. Board of High School and Intermediate Education as also of the Basic Shiksha Parishad. He is provided with a staff car and an official residence. He alone is competent to order for posting and transfer as also to make character roll entries of officers who are under the administrative control of the Director, SCERT. On the other hand, the Director, SCERT has no such authority and except for counter-signing the T. A. Bills of the subordinates, he has no other administrative power regarding appointment, transfers, selection for promotion etc. All such powers are enjoyed by the Director of Education. There is no separate budget for the Director, SCERT. So, the petitioner could not legally be transferred to the post of Director, SCERT. We find no substance in these contentions. No doubt the post of Director, SCERT is a temporary addition to the cadre of U. P. Education Service Class I but that fact does not affect the status for the salary admissible to the petitioner. The Director of Education alone is not competent to order for the postings and transfers for to make character roll entries of the officers who are under the administrative control of the Director, SCERT. The Director of Education alone is not competent to order for the postings and transfers for to make character roll entries of the officers who are under the administrative control of the Director, SCERT. In fact the Director, SCERT has complete administrative control over the officers and officials subordinate to him and brought under his administrative control in his capacity as Head of Department. He has all the powers which are exercisable by the Head of Department which are similar to those which are exercised by the Director of Education in respect of subordinate officers under his administrative control. The Director SCERT has been declared Head of Department for the purpose of Financial Handbook Vol. II, Parts II to IV, Vol. Ill, Vol. V (Part-I) and U. P. Budget Manual. The fact that no official residence as such has been allocated for the Director SCERT would not make it inferior to the post of Director of Education. Both the posts are in the same cadre and carry the same scale of pay. Similarly, the fact that the petitioner was selected for the post of Director of Education in 1978 whereas the opposite-party No. 2 was not selected in that year for that post would hardly be relevant so far as the validity of the impugned order of transfer is concerned. The post of Director, SCERT was created on 11th Sept. 1981 and the opposite-party No. 2 was selected by a duly constituted Selection Committee and was appointed on that post. This post of Director, SCERT was added to the cadre of Director in the Educational Service Class I and so both the posts became equivalent. The Pay Commission recommended that the scale of pay of Director of Education be revised to Rs. 2700-3000. The Government pursuant to that recommendation revised the pay scale of the Director of Education. The Government added the post of Director SCERT to the cadre and specifically mentioned in the relevant G. O. that orders for revising the pay scale of that post would be issued separately. In fact they were later on issued and the scale of pay of Director, SCERT was also made Rs. 2700-3000 with retrospective effect. The Director of Education is no doubt provided with an official residence but this will in no way affect the validity of the order of transfer. In fact they were later on issued and the scale of pay of Director, SCERT was also made Rs. 2700-3000 with retrospective effect. The Director of Education is no doubt provided with an official residence but this will in no way affect the validity of the order of transfer. The Director, SCERT has also administrative control over certain offices of the Education Department and has budgetary control also. It may be that the Director of Education has huge budget at his disposal but that would not make the post of Director, SCERT inferior to the post of Director of Education. 12. When the post of Director, SCERT was created, a Selection Committee was constituted to select an officer for that post. The Selection Committee selected the opposite-party No. 2 for that post and the State Government appointed him on that post. It is incorrect to say that the opposite-party No. 2 was not selected to the post of Director, SCERT. Later on that post was added to the cadre of Director in Educational Service Class I and then both the posts carrying the same scale of pay became equivalent. It is hence possible to transfer the Director of Education to the post of Director, SCERT and vice versa. Transfer in posts which are in the same grade or are considered equivalent can be effected on administrative exigencies and there would be no hostile discrimination in making such transfers. Services of cadre officers, are utilised in different posts in the same cadre or in posts of equal status. It is, therefore, futile to urge that the opposite-party No. 2 could not be transferred to the post of Director of Education or that the petitioner could not be transferred from the post of Director of Education to the post of Director, SCERT, both the posts being in the same cadre and of equal status and carrying the same scale of pay with retrospective effect. 13. 13. In the case of K. Gopaul v. Union of India, AIR 1967 SC 1864 `K' a confirmed Inspector-General of Registration and a head of the Department in Madras State was transferred to the post of "Accommodation Controller" a post carrying the same scale of pay, as the former post was included in the I. A. S. Cadre Post, `K' challenged the legality of the transfer on the ground that the transfer resulted in reduction in rank firstly because the latter post was not the post of a head of department and secondly because the post of I. G. was superior in rank to that of a Deputy Secretary and the latter was not. The Supreme Court repelling the contention of `K' held that the mere fact that the post of Accommodation Controller to which `K' had been transferred was not designated as that of a Head of the Department was of no consequence as rank in Government service did not depend upon the mere circumstance that the Government servant in the discharge of his duties is given certain powers. In Government service there may be senior posts, the holders of which are not declared Heads of the Department while persons holding junior posts may be declared as such. In the instant case both the posts in question being in the same cadre and of equal status, the transfer of an incumbent from one to the other was not illegal. The petitioner would still continue to draw pay in the scale of Rs. 2700-3000 which was the scale in which he was drawing the pay while working as Director of Education. He has thus not been sent to a post carrying a lower scale of pay. We, therefore, find no force in the contention that the petitioner has been transferred to a post of inferior grade and I that the transfer amounts to reduction in rank. True it is that when the order of transfer was passed, the pay scale of the post of Director SCERT was Rs. 2250. 2750 but the subsequent order has clearly rectified the error. The pay scale of the Director, SCERT has been revised to Rs. 2700-3000 with retrospective effect. The petitioner would thus not suffer any monetary loss. 14. We do not find merit in the contention that the order is mala fide. 2250. 2750 but the subsequent order has clearly rectified the error. The pay scale of the Director, SCERT has been revised to Rs. 2700-3000 with retrospective effect. The petitioner would thus not suffer any monetary loss. 14. We do not find merit in the contention that the order is mala fide. Adding the post of Director, SCERT to the cadre of Director in the Educational Service Class I is not mala fide. Similarly, revising its pay scale to Rs. 2700-3000 is also not mala fide. Both these things were not done in colourable exercise of power. The petitioner, in our view, has failed to make out that the same was done as a cloak for displacing him from the post of Director of Education. In fact the Government has power to transfer in administrative exigencies and in public interest an officer from one cadre post to another cadre post of equal status and responsibility. The burden of establishing mala fides are always very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved and the very seriousness of such allegations demands proof of a high order of credibility. The petitioner has failed to do so in the instant case. He has not set out in this petition any specific facts nor has he established it by cogent evidence as to who was actuated by malice against him in making the impugned order of transfer. The post of Director, SCERT was created in 1981. If there was any malice in law or malice in fact, the post would have been created in the year 1978 to accommodate the opposite-party No. 2 but that was not done. It was only in the year 1981 that the post of Director SCERT was created and then too the post was filled by a Selection Committee duly constituted in that behalf. The contention that the order of transfer suffers from vice of malice in law has, therefore, no merits. It was only in the year 1981 that the post of Director SCERT was created and then too the post was filled by a Selection Committee duly constituted in that behalf. The contention that the order of transfer suffers from vice of malice in law has, therefore, no merits. It is well-settled that transfer of a Government servant may be due to exigencies of service or due to administrative reason and the Courts cannot interfere in such matters; See Shanti Kumari v. Regional Deputy Director, Health Services, Patna Division, Patna, AIR 1981 SC 1577 : 1981 Lab IC 1102 It has been stated in the counter-affidavit filed on behalf of the Government that the transfer of the opposite party No. 2 to the post of Director of Education was felt necessary because during the absence of the petitioner difficulties were being experienced in the working of the Board of High School and Intermediate Education and the Public Examinations which were being conducted; consequently immediate action in public interest was to be taken. The Director of Education admittedly is the President of the Board of High School and Intermediate Education. It was, therefore, considered necessary to give unfledged charge to the opposite-party No. 2 of the President of Board of High School and Intermediate Education which could be done only by transferring the opposite-party No. 2 to the post of Director of Education. The formation of opinion as to the existence of the administrative exigencies is a matter which is primarily to be left to the subjective satisfaction of the Government. The responsibility for good administration is that of the Government and the maintenance of an efficient, honest and experienced administrative service is a must for the due discharge of that responsibility. The Government alone, therefore, is best suited to judge as to the existence of exigencies of such a service requiring appointments by transfer. The Court would not judge the propriety or sufficiency of such opinion by objective standards, save where the subjective process of forming it is vitiated by mala fides, dishonesty, extraneous purpose or transgression of the limits circumscribed by the legislation. The Court would not judge the propriety or sufficiency of such opinion by objective standards, save where the subjective process of forming it is vitiated by mala fides, dishonesty, extraneous purpose or transgression of the limits circumscribed by the legislation. The petitioner has failed to make out that the Government formed its opinion to transfer the petitioner to the post of Director, SCERT and the opposite-party No. 2 to the post of Director of Education in colourable exercise of power, on extraneous considerations and in a mala fide manner. The rank of the petitioner has not at all been reduced in transferring him to the post of Director, SCERT. In the circumstances, the order of transfer challenged in the instant writ petition cannot be held to be void and there is no valid reason to interfere with the same. 15. The learned counsel for the petitioner referred us to a decision of the Madhya Pradesh High Court in Prakash Chandra Saxena v. State of M.P., 1980 (1) Serv LR 788 : 1980 Lab IC 1311 wherein it was held that though a master has inherent right to transfer his employee yet the power of transfer cannot be exercised capriciously and if the transfer of an employee has been made merely to accommodate some particular official then the transfer would be bad in law. In the instant case we do not accept the contention that the transfer of the petitioner to the post of Director, SCERT was made with a view to accommodate the opposite-party no. 2 so as to make him the Director Education. Both the posts, as pointed out earlier, are in the same cadre and carry the same scale of pay. The Government in public interest can transfer and it has not been established that the power has been exercised capriciously or arbitrarily. The learned counsel for the petitioner further referred us to a decision of Madras High Court reported in 1980 (1) Serve LR 309, C. Ramanathan v. Acting Zonal Manager. That authority also does not, in our view, help the petitioner. In that case the Madras High Court had held that the courts are chary to interfere with an order of transfer made for administrative reasons. That authority also does not, in our view, help the petitioner. In that case the Madras High Court had held that the courts are chary to interfere with an order of transfer made for administrative reasons. An innocuous order of transfer, which not only on the face of it appears to be one made in order to further the administrative interest of an organisation, but which even on a deeper scrutiny does not pose any irregular or mala fide exercise of power by the concerned authority, is generally upheld by Civil courts, as courts cannot substitute their own opinion and interfere with ordinary orders of transfer of employees of established organisations. Of course, if the surrounding circumstances lead to a reasonable inference that such an order was made in colourable exercise of power and intended to achieve a sinister purpose and based on irrelevant considerations, then the arm of the court can be extended so as to decipher the intendment of the order and set it aside on the ground that it is one made with a design and motive of circumventing disciplinary action. Nothing of the sort has been established in the instant case. 16. The transfer of the petitioner is not to a post of lower rank and there is no loss of emoluments. The contention of the petitioner that his transfer was ordered with unusual haste while he was abroad and that the same smacks of mala fides has no substance. The fact that the order of transfer was made while the petitioner was abroad would not necessary mean that it was mala fide. From the documents placed on record no such inference of mala fides can be drawn. 17. For the reasons in the foregoing, the petition deserves to be rejected and the interim order passed in this case should be vacated. 18. In the result, the petition is dismissed and the interim order dated 22nd July, 1982 is vacated. In the circumstances of the case we, however, make no order as to costs.