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2005 DIGILAW 945 (ALL)

RAM CHANDER JAISWAL v. STATE OF UTTAR PRADESH

2005-05-12

N.K.MEHROTRA

body2005
N. K. MEHROTRA, J. ( 1 ) THIS is a petition under Article 226 of the Constitution of India for issuing the writ of certiorari quashing the order dated 29. 3. 2005 passed by the Secretary, Revenue as contained in annexure-1 to this writ petition and the order dated 4. 2. 2005 passed by the Commissioner, consolidation as contained in Annexure 2. ( 2 ) THE petitioner is a Stenographer in the office of the Deputy Director of Consolidation, faizabad. The services of the petitioner are governed by the U. P. Consolidation Department, ministerial and Drawing Staff Services Rules, 1980 (hereinafter referred to as the rules ). Earlier the petitioner was transferred from Faizabad to Ballia on administrative ground on 15. 12. 2000. The petitioner filed writ petition No. 337 (S/s) of 2001. His transfer was stayed by the interim order of this Court in writ petition No. 337 (S/s) of 2001. He has continued on the strength of that interim order at Faizabad. Admittedly, now this writ petition has become infructuous and it has been dismissed as per the statement of the learned Counsel for the petitioner on 5. 5. 2005. ( 3 ) PETITIONER was again transferred on 4. 2. 2005 on the administrative ground by the commissioner, Consolidation. Petitioner again challenged this order in writ petition No. 1052 (S/s) of 2005. This Court disposed of the writ petition finally on 9. 2. 2005. It was directed in the earlier judgment dated 9. 12. 2005 that the petitioner may approach the State of U. P. opposite party No. 1 and make a representation within a period of ten days from that date detailing therein his grievance. It was also provided that in case such a representation is made as aforesaid, the same shall be dealt with and decided by the opposite party No. 1 by speaking and reasoned order, within a period of eight weeks, thereafter. It was also provided that the petitioner shall not be compelled to join at Rae Bareli the new place of his transfer until such representation is decided. ( 4 ) THE State of U. P. through Secretary, Revenue in compliance of the order of this Court, has decided the representation vide order dated 29. 3. 2005 as contained in Annexure 1. The representation has been dismissed by a speaking order. Now the petitioner has challenged again the transfer order dated 4. 2. ( 4 ) THE State of U. P. through Secretary, Revenue in compliance of the order of this Court, has decided the representation vide order dated 29. 3. 2005 as contained in Annexure 1. The representation has been dismissed by a speaking order. Now the petitioner has challenged again the transfer order dated 4. 2. 2005 and the order passed on his representation dated 29. 3. 2005 as contained in Annexure 1. ( 5 ) ACCORDING to the petitioner, his appointing authority is the Deputy Director of Consolidation, faizabad. The post of Stenographer exists in the District where there is a office of the Deputy director of Consolidation. The post of Stenographer in the District is not a transferable post. He has been transferred from Faizabad to Rae Bareli on the basis of some demi-official letter dated 3. 2. 2005 written by Collector/deputy Collector, Consolidation to Commissioner, Consolidation. It is alleged that at present there is no Deputy Director of Consolidation in Rae Bareli and the work of the post of Deputy Director, Consolidation, Rae Bareli is being looked after by Deputy director of Consolidation, Lucknow. There is no administrative exigency or requirement to transfer the petitioner from Faizabad to Rae Bareli. In the earlier writ petition, this Court had directed the State of U. P. to decide the representation. Therefore, the Secretary, in the Revenue department does not have the jurisdiction to decide the representation. It is alleged that the secretary, Revenue committed an error in relying upon such a report of the inquiry committee which was not the basis of the impugned order of transfer dated 4. 2. 2005. It is also alleged that the Collector has failed to bring to the notice of the Secretary that a counter-affidavit was filed in the case of Shri Pankaj Kumar Jaiswal on behalf of the State of U. P. in which it was pleaded by the State that Pankaj Kumar Jaiswal was appointed by the Deputy Director, Consolidation, faizabad on the post, of clerk. Thereafter, another affidavit was filed in writ petition No. 1142 (S/s) of 2004 that the alleged forged letter of appointment dated 30. 1. 1995 appointing Pankaj kumar Jaiswal is non-est. The findings recorded by the Secretary in the impugned order annexure 1 are erroneous. Thereafter, another affidavit was filed in writ petition No. 1142 (S/s) of 2004 that the alleged forged letter of appointment dated 30. 1. 1995 appointing Pankaj kumar Jaiswal is non-est. The findings recorded by the Secretary in the impugned order annexure 1 are erroneous. The Commissioner, Consolidation, U. P. , Lucknow had no jurisdiction to transfer the petitioner and the post of Stenographer to the Deputy Director of Consolidation, is not transferable. ( 6 ) IT is well settled law that this Court can interfere with an order of transfer under Article 226 of the Constitution of India only on limited grounds, namely, that the transfer order has been passed contrary to any statutory provision or has been passed by a person who has no authority to do so or is malafide. (See Mrs. Shilpi Bose v. State of Bihar, AIR 1991 SC 532 , 1991 Labic 360, (1991)II LLJ591 SC, 1991 Supp (2)SCC659 and Union of India v. S. L. Abbas, ), AIR1993 SC 2444, JT1993 (3)SC 678, 1993 Lablc1311, (1993)II LLJ626 SC, 1993 (2)SCALE718, (1993)4 SCC357 ). ( 7 ) IN view of the aforesaid legal proposition, the grounds taken by the petitioner are to be considered. The first argument is that the Consolidation Commissioner is not competent to pass the transfer order because the petitioner being Stenographer is a Class III employee and his appointing authority is Deputy Director of Consolidation, Faizabad. It is also alleged that the petitioner being Class III employee, cannot be transferred out of the District. I find no force in both the contentions. Admittedly, the services of the petitioner are controlled by the aforesaid rules. ( 8 ) NO doubt, the Deputy Director, Consolidation is the appointing authority of the post of stenographer in the District. The cadre of the service is defined in Rule 4 of the aforesaid Rules, which is as follows : "cadre of service.-- (1) The strength of the service and each category of posts therein shall be such as may be determined by the Governor from time to time. (2) The strength of the service and of each category of posts therein shall, until orders varying the same are passed under Sub-rule (1) be as given in Appendix I : provided that- (1) The appointing authority may leave unfilled or the Governor may held in abeyance any vacant post, without thereby entitling any person to compensation. (2) The strength of the service and of each category of posts therein shall, until orders varying the same are passed under Sub-rule (1) be as given in Appendix I : provided that- (1) The appointing authority may leave unfilled or the Governor may held in abeyance any vacant post, without thereby entitling any person to compensation. (2) The Governor may create such additional, permanent or temporary posts from time to time, as he may consider proper. Note.--For the posts of Stenographers, there shall be a combined cadre for the Headquarter and other subordinate offices and for any other post in the service, there shall be two separate cadres, one for the Headquarters and the other for other subordinate offices. " ( 9 ) THE aforesaid note makes it clear that for the post of Stenographer, there is a combined cadre for the Headquarters and other Subordinate Offices. ( 10 ) RULE 5 of the aforesaid Rules provide the sources of recruitment of various posts, at the headquarter of the Commissioner, Consolidation and Subordinate Offices. It appears from Rule 5 that there are two pay scales of Stenographers. The Stenographers in both the pay scales are available at the Headquarters while the Stenographer in the subordinate offices are in the lower pay scales. The post of Stenographers in the lower pay scale is filled up by direct recruitment. The post of Stenographer in the higher pay scale is filled up by promotion amongst the permanent Stenographers in the lower pay scale at Headquarters and Subordinate Offices. Further following Note is given in Rule 5 (A) (8), which is as follows : "for the purpose of promotion, a combined seniority list shall be prepared by arranging the names of eligible persons in order of their seniority as determined in accordance with the principles laid down in Rule 21. So, however, that the inter se seniority is not disturbed. " ( 11 ) THE aforesaid two Note in Rule 4 and 5 relate to the Stenographers and these two Note make it clear that there is a combined cadre of the Stenographers at the subordinate offices and the stenographers at the head office. Since it is a combined cadre of the Stenographers of the headquarters and subordinate offices, the Controlling authority cannot be the authority of the subordinate office. Since it is a combined cadre of the Stenographers of the headquarters and subordinate offices, the Controlling authority cannot be the authority of the subordinate office. Since, there is a combined cadre of the Stenographers of the subordinate offices and the headquarters they can be transferred from one subordinate office to another subordinate office of the various districts and the headquarter. ( 12 ) THE aforesaid rules and the Notes appended to the Rules make it clear that the stenographers of the aforesaid service are transferable from one District to another District and from District to the Headquarter and vice versa. ( 13 ) NO doubt there are general Executive Orders and the transfer policy of the State Government that Class III employees will not be transferred out of the Divisions. But those general orders will not prevail over the specific Rules which control the services of the petitioner. Moreover, the transfer of the petitioner is on the administrative grounds. ( 14 ) IN view of the above, it is clear that the transfer order is neither against any statute nor the rules framed under Article 309 of the Constitution of India. ( 15 ) IT is also established that the Commissioner, Consolidation is the competent authority to transfer Stenographers of the Consolidation Department from one District to another District and from subordinate office to the Headquarters and vice versa. ( 16 ) LEARNED Counsel for the petitioner has vehemently argued that the post of Deputy Director of consolidation in Rae Bareli is lying vacant since December, 2004. But it is immaterial because the petitioner has been transferred on administrative ground and the office of the Deputy director, Consolidation at Rae Bareli is being looked after by Deputy Director, Consolidation, lucknow as Incharge. ( 17 ) LEARNED Counsel for the petitioner has also submitted that the impugned order Annexure-1 has not been passed by the State of U. P. while in the earlier writ petition, there was a direction that the representation shall be decided by the State of U. P. This argument is also misconceived. ( 18 ) IN the earlier writ petition No. 1052 (S/s) of 2005, the State of U. P. was represented through secretary, Department of Revenue and the same Secretary of the Department of Revenue has decided the representation. ( 18 ) IN the earlier writ petition No. 1052 (S/s) of 2005, the State of U. P. was represented through secretary, Department of Revenue and the same Secretary of the Department of Revenue has decided the representation. The orders of the State Government are always authenticated by the secretary to the Department under the business rules. ( 19 ) THE complaint against the petitioner is that he had forged the appointment order dated 30. 1. 1995 in favour of Pankaj Kumar Jaiswal in which the inquiry was pending. This inquiry report was not in existence at the time of impugned transfer order but a complaint was there and inquiry was going on. This can be the sufficient administrative ground that inquiry was pending against the petitioner. Pankaj Kumar Jaiswal is the son-in-law of the petitioner. The complaint against the petitioner is that he had forged the signature of then Deputy Consolidation Officer after his death on the appointment letter of his son-in-law. ( 20 ) NO doubt Pankaj Kumar Jaiswal had also challenged his termination in writ petition No. 1142 (S/s) of 2004 in which the State Government filed counter-affidavit and somehow or the other the State Government had taken the plea in the earlier counter-affidavit that Pankaj Kumar jaiswal was appointed by the Deputy Director, Consolidation, Faizabad. Subsequently, the second counter-affidavit was filed in which the plea was taken that the appointment order of pankaj Kumar Jaiswal is non-est and without jurisdiction and it is against the settled procedure under the Rules. ( 21 ) THE committee which gave its report after inquiry on 10. 2. 2005 has given a finding that the counter-affidavit in the writ petition No. 1142 (S/s) of 2004 filed by Pankaj Kumar Jaiswal son-in-law of the petitioner was got managed by this petitioner himself because he was posted in the office of the Deputy Director of Consolidation as Stenographer. In such circumstances, it was most essential to transfer the petitioner from the office of the Deputy Director of Consolidation at Faizabad. It is immaterial that at the time of passing of the transfer order, this report of the committee was not available but no doubt a complaint was there which was being inquired by a committee. In such circumstances, it was most essential to transfer the petitioner from the office of the Deputy Director of Consolidation at Faizabad. It is immaterial that at the time of passing of the transfer order, this report of the committee was not available but no doubt a complaint was there which was being inquired by a committee. This fact also cannot be overlooked that the petitioner was transferred in the year 2000 from Faizabad to Ballia but he succeeded in getting these orders stayed by this Court in the earlier writ petition and he continued on the basis of the interim orders for a period of five years. ( 22 ) THERE is nothing illegal in the impugned order Annexure-1 by which the representation of the petitioner has been dismissed. ( 23 ) IN view of the above, the writ petition is dismissed. . .