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Dattatraya Hari Vaidya and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 1267 of 1969 and 141 of 1970
Judge
Reported inAIR1976Bom42
ActsConstitution of India - Articles 226 and 309; Central Civil Services (Temporary Services) Rules, 1949 - Rules 2 and 3
AppellantDattatraya Hari Vaidya and ors.
RespondentUnion of India and ors.
Appellant AdvocateV.A. Masodkar and ;V.R. Manohar, Advs. in Spl. Civil Appln. No. 1267 of 1969
Respondent AdvocateR.V. Patil, Asst. to Addl. Govt. Pleader in Spl. Civil Appln. No. 141 of 1970
Excerpt:
a) the court adjudged that where the question involved was about the seniority in service and the petitioner sought to unsettle the seniority list which had existed and remained in operation for over thirteen years, granting of relief would be prejudicial to a large number of persons who might not be a parties.;b) the court adjudged that the attainment of quasi-permanent status was not condition precedent for the confirmation in service;c) the case debated on the passing of orders for confirmation with retrospective effect - it was ruled that even though on the date of issuing of confirmation orders, the incumbents were not working under the jurisdiction of authority who issued the confirmation orders, such orders could be passed by such authority relating to period during which such.....lalit, j.1. these two petitions concern a cadre of the telephone operators and some of the parties involved in the two petitions are identical. the question involved in these two matters are of a common nature and with the consent of the advocates appearing on behalf of the parties in these two petitions, these two petitions were heard together. the learned advocates also agreed that the pleadings and the documents in these two petitions be read together. in special civil application no. 141 of 1970. the petitioner is one v. k. sule. his allegation is that a competitive examination was held by the post master general, central circle. nagpur , for the recruitment of telephone operators. that examination was held in 1951. he was selected for appointment as a telephone operator and by a.....
Judgment:

Lalit, J.

1. These two petitions concern a cadre of the Telephone Operators and some of the parties involved in the two petitions are identical. The question involved in these two matters are of a common nature and with the consent of the advocates appearing on behalf of the parties in these two petitions, these two petitions were heard together. The learned Advocates also agreed that the pleadings and the documents in these two petitions be read together. In Special Civil Application No. 141 of 1970. the petitioner is one V. K. Sule. His allegation is that a competitive examination was held by the Post Master General, Central Circle. Nagpur , for the recruitment of Telephone Operators. That examination was held in 1951. He was selected for appointment as a Telephone Operator and by a letter dated May 20, 1952, he was informed that on occurrence of a vacancy , how would receive a call from the Divisional Engineer. Telephones, Indore. For some time no vacancy was available and the Divisional Engineer. Telephone (hereinafter described as the D.E.T.) Indore, wrote a letter to the petitioner on July 30. 1952. Whereby he was informed that his employment in the Indore Division was likely to take a very long time, and the petitioner was asked whether he was willing to be transferred to the list of the approved candidates for the unit at Jaipur Division. On August 4 1952, the petitioner sent a letter expressing his willingness to be posted in Jaipur Division and requested that his name be transferred to the list of the approved candidates of Jaipur Division. In October 1953, by an office order No. E-63/521. an order of appointment was issued in favour of nine persons including the petitioner and the petitioner was appointed with effect from October 10. 1953. It is the allegation of the petitioner that when his appointment was made in the Central Circle, there were four divisions, viz., Ajmer, Jaipur, Indore and Nagpur . The recruiting authority under the Central Circle for the post of a Telephone Operator was the Post Master General, Nagpur, whereas the appointing authority for the post of a telephone operator was the Divisional Engineer of each Division. In 19453, for the purposes of administration,. Rajasthan Circle came to be formed and the erstwhile Jaipur Division from the Central Circle was allotted to Rajasthan Circle.

2. The Director Posts and Telegraphs, Jaipur, who was then the head of the Rajasthan Circle, issued a memo dated June 21,1954. Under this memo dated June 21, 1954. Under this memo dated June 21, 1954. Under this memo the employees, who earlier belonged to the Central Circle and were at the material time working at Jaipur were asked to give options as to whether they would opt for the Nagpur Division of the Central Circle, or whether they would like to continue in the newly formed Rajasthan Circle in its Jaipur Division. The petitioner says that he opted for the Nagpur Division of the Central Circle. The further allegation in the petition is that on December 1 , 1955, the D.E.T. Jaipur by his order transferred 10 Telephone Operators working in the Jaipur Division to the Nagpur Division of the Central Circle and in that order was being made ' in the interest of service'. The petitioner's grievance is that except one Shri V.K. Gaware who was at serial No. 1 in this order of December 1, 1955, all the other nine persons were junior to him, in the cadre of the Telephone operators. Respondents 6 to 13 are the employees who were amongst the ten persons transferred under the order of December 1 , 1955. The case of the petitioner in respect of respondents 6 to 13 is that they were juniors to him both in the appointment and in confirmation.

3. The further grievance of the petitioner is that though he had opted for a transfer in the Nagpur Division and though he was senior to respondents 6 to 13. his transfer was made after the transfer in favour of respondents 6 to 13 . The petitioner was actually transferred to the Nagpur Division of the Central Circle on February 6, 1957, and in pursuance of this transfer, he was posted in the Telephone Exchange at Amraoti, which is in the Nagpur Division of the Central Circle.

4. The case made out on behalf of the petitioner further is that the Director General. Posts and Telegraphs, issued a circular on January 5, 1962 wherein it was provided that if an official was allowed a transfer under Rule 38 of the P. & T. Manual, Volume IV when he was due for confirmation in the post before the date of his actual transfer and the orders of his confirmation were not issued by that date for administrative reasons, there would be no objection for his confirmation in the unit from which he was transferred. According to the petitioner, on the strength of this circular, the petitioner was entitled to get confirmation in the Jaipur Division wherefrom he was transferred. Pursuant to this circular dated January 5, 1962, representations were sent by a number of employees and in pursuance of these representations and in view of the decisions of the department, the D.E.T. Jaipur after obtaining the due concurrence of the Director General Posts and telegraphs. Issued an order dated February 8 ,1968 whereby the petitioner and some 16 others came to be confirmed respectively. So far as the petitioner is concerned, he was confirmed as from September 1, 1954. The petitioner has also filed a schedule to show the dates of confirmation of all the respondents 6 to 26 in this petition. It is his case that respondent 6 to 13 were confirmed on September 1, 1954, but as he was senior o them in the Jaipur Division, he is entitled to get seniority over them in the Nagpur Division. So far as the other respondents are concerned. It is the case of the petitioner that their confirmations are subsequent to September 1, 1954, and on that ground he is entitled to get seniority over those respondents also.

5 According to the petitioner, he was first affected on account of the Divisional Seniority list of telephone operators (as on July 1, 1968) published by the D.E.T. Nagpur. It is his grievance that in this seniority list, he was placed even below the operators confirmed in the year 1957. His case is that his placement in the seniority list at a place disadvantageous to him was the result of erroneous view of the authorities that the date of the petitioner's transfer in the Nagpur Division was the only relevant date for fixing his seniority. It was taken as if he had entered in the Nagpur Division on February 6, 1957 only. The petitioner's grievance is that respondents 6 to 26 are not entitled to claim seniority over him as the seniority of the petitioner should be counted with reference to September 1. 1954 and not from February 6, 1957 . When this Divisional Seniority List was published, the petitioner made a representation was made on July 6, 1968 and it was addressed to respondent No. 1. It is the allegations of the petitioner that as he did not get redressed he made a further representation to respondent No. 5 on August 1, 1968. Respondent No. 5 and his order dated August 3, 1968 , informed the petitioner that his case had been referred to the P. & T. Directorate and further communication be awaited. According to the petitioner no steps were taken further on his representation. However, without adjudicating the objections raised by the petitioner the P.M.G. Maharashtra, Bombay (respondent No. 2) issued an order on November 25, 1969 selecting amongst others respondents 6 to 26 to the post of Lower Selection Grade Monitors. This is a Promotional post . under this order of November 25 1969 , respondents 6 to 26 were directed to be posted in these promotional posts. According to the petitioners this order of promotion, which is Annexure M to the petition, is illegal and has the effect of superseding the rights of the petitioner on an erroneous construction based on the seniority of the respective respondents. The petitioners addressed a telegram on December 9, 1969 to the Director General. Posts and Telegraphs. New Delhi and contended that the promotions under the order of November 25 1969 were illegal. As the petitioner's grievances were not redressed, the present petition had been filed on February 11,1970 .

6. The Substance of the grievances of the petitioner as made out in the petition is that the petitioner was senior to respondents 6 to 26 as he was confirmed with effect from September 1, 1954. His case is that respondents 6 to 13 were allotted to the Jaipur Division along with him and in this Division he was senior to them. After formation of the Rajasthan Circle. options were called from such of the employees of the Jaipur Division who desired to go to the Nagpur Division and the petitioner had opted for the Nagpur Division. Though he was senior to respondents 6 to 13, first order of transfer was made only in favour of respondents 6 to 13. Whereas the petitioner was transferred on February 6, 1957. The other grievance of the petitioner is that the transfer of respondents 6 to 13 was shown to be one ' in the interest of service:'. Whereas it was shown that the transfer of the petitioner was a transfer 'at his request'. The petitioner's case is that on account of these difference in the treatment which on the other hand, he has lost the benefit of his seniority over respondents 6 to 13 in the Jaipur Division. It is submitted that on account of this difference in the treatment, respondents 6 to 13 continued to enjoy the advantage of their confirmation on September 1 , 1954. whereas the petitioner is being treated as a new entrant on February 6, 1957 in the Nagpur Division and as such, he is shown junior to respondents 6 to 13. It is the case of the petitioner that the order showing the transfer of respondents 6 to 13 is a colorable order and in fact it is not a transfer in the 'interest of Survice'. He therefore, submits that respondents 6 to 13 should be shown in the gradation list as persons junior to him. The second grievance of the petitioner is that though it is (shown) that his transfer was one at his request, in fact he was entitled to get the same treatment as was given to respondents 6 to 13 and his transfer should also have been treated as one ' in the interest of service'. He was , therefore, entitled to be treated as an employee confirmed on September 1, 1954 and was entitled to get seniority consequently. His case is that if he is entitled to the placement in a Division Seniority list above them. On account of the placement which the petitioner was entitled to be considered for the promotional post and promotions made in favour of respondents 6 to 26 are in suppression of the rights of the petitioner. These are the main grounds on the basis of which this petition has been filed before use. A return has been filed on behalf of respondents 1, 2 and 5 alone.

7. In the return on behalf of respondents 1,2 and 5. it is stated that after the formation of Rajasthan Circle it was decided that the officials, who had their homes in one Division but were working in another Division, should be repatriated to their home unit against the vacancies reserved for direct recruitment. This was done without detriment to the reservation made for the Scheduled Castes and Scheduled Tribes. This repatriation was agreed to be done under the provisions Rule 38 of the Posts and Telegraphs Manual. Volume IV . Accordingly, the petitioner had given an option for the Nagpur Division and he joined the Nagpur Division on February 6,1957. This transfer was under Rule 38 of the Posts and Telegraphs Directorate and their transfers to the Nagpur Division were treated ' as on administrative grounds in the interest of service'. It is contended that there is a distinction between a transfer made purely at the request and cost of the official under the provisions of Rule 38 of the Posts and Telegraphs Manual, Volume IV . In the former case, the official does not lose his post service or seniority, while in the latter case, the official's seniority in the new Division is fixed under the provisions of Rule 38 of the said Manual. Respondents s6 to 13 were transferred to the Nagpur Division 'In the interest of service,' and therefore, their previous service in the Jaipur Division was correctly taken into account, while fixing their seniority. On the contrary, the petitioner having been transferred under Rule 38, he had to lose his previous service for determining his seniority in the Nagpur Division. The further contention is that in view of Rs. 38, the petitioner had to be placed below all the permanent officials as if he had joined the Nagpur Division on February 6, 1957. On this footing, respondents 6 to 25 were entitled to get seniority over the petitioner. It is also stated in the return that respondent No. 26 though not senior to the petitioner, was selected for promotion, against the quota reserved for the officials belonging to the Scheduled Tribes, In substance the return goes to show that the transfer of respondents 3 to 13 was ' in the interest of service ' and as such. they were entitled to get the advantage of their service in the Jaipur Division. Whereas the transfer of the petitioner was a transfer under Rule 38 and as such , the petitioner could not take advantage of his previous service in the Jaipur Division, and though he was confirmed in the Jaipur Division with effect from September 1, 1954. he would have to be treated as a fresh recruit in the Nagpur Division as from February 6, 1957 which is the date of his transfer.

8. Mr. Manohar, the learned Advocate for the petitioner argued that the order of transfer in favour of respondents 6 to 13 was not really one ' in the interest of service' . He submits that respondents 6 to 13 and the petitioner were similarly placed as the employee in the Jaipur Division as such, the petitioner was entitled to get a treatment similar to the one given to respondents 6 to 13. His grievance is that if respondents 6 to 13 could be transferred ' in the interest of service' and as a matter of fact their transfer is a transfer ' at their request'. It is further the submission of Mr. Manohar that Rule 38 of the Posts and telegraphs Manual would apply to respondents 6 to 13 as well and as the petitioner was senior to respondents 6 to 13 in the Jaipur Division., he was entitled to get similar treatment. He has also attacked the order of transfer on the ground that as the petitioner was senior to respondents 6 to 13, he was entitled to get transferred first. The further submission made by Mr. Manohar is that as the petitioner was confirmed on September 1, 1954. he was entitled to get the seniority over respondents 6 to 26 on the basis of this order of confirmation.

9. In this petition, the real question, therefore, is as to what is the nature of the transfer of the petitioner. The central crux of this petition is as to how the orders of transfer in favour of the petitioners and respondents 6 to 13 should be viewed. The petitioners cannot succeed in this petition unless he successfully challenges the order of transfer of respondent 6 to 13 and also his own order of transfer. So far as respondents 14 to 26 are concerned. It is necessary for the petitioner to establish that when he came to the Nagpur Division on February 6, 1957, he was entitled to get the benefit of his previous service in the Jaipur Division. The petitioner, ever since he came to the Nagpur Division has been shown to be a person who has come on account of a transfer made under Rule 38. he would not be in a position to claim seniority over respondents 14 to 26. It is also not disputed that if the transfer of respondents 6 to 13 is viewed as a transfer' in the interest of service' respondents 6 to 13 would be entitled to claim seniority over the petitioner notwithstanding his seniority over them in the Jaipur Division. It is, therefore, clear no effective relief can be given to the petitioner unless he is in a position to challenge these order of transfer of 1955 and 1957.

10 Now, we feel that the challenge to these orders made in February 1970 is clearly a belated challenge. The grievance in respect of one order seems to be made before us after about 15 years when the order of transfer of respondents 6 to 13 was passed in 1955. So far as the transfer of the petitioner is concerned, the dispute has been made after nearly 13 years. Such a petition prima facie is grossly delayed and in a petition under Article 226 of the Constitution .It will not be possible for us to grant relief to the petitioner at such a late stage. It is true that a petition under Article 226 of the Constitution may not necessarily be thrown out on the ground of delay alone. However, the question involved in this petition is about the seniority of the petitioner over respondents 6 to 26. The petitioner now seeks to unsettle a state of affairs which existed for the last many years. Granting relief to the petitioner would be prejudicial to a large number of persons , who are not parties to the present petition. A dispute about a transfer order has to be raised at an early stage. The petitioner cannot be permitted to unsettle a seniority list which has existed and remained in operation for over 13 years.

11. At one stage Mr. the learned advocate for the petitioner submitted that the cause of action in favour of the present petitioner arose only when respondents 9 to 26 were promoted to the post of Lower Selection Monitors Mr. Manohar contended that the real grievance now is on account of the 1969, and therefore, the petition is well within time. it is not possible for us to accept this submission of mr. Manohar. The order of promotion depends upon the basic fact of the seniority of the petitioner over respondents 6 to 26. If respondents 6 to 28 are senior to the petitioner. It is not possible for the petitioner to make a claim that he was entitled to be considered for the promotion. It is admitted that on the existing seniority the promotion orders are correct. It follows that the dispute about promotions cannot be decided unless the transfer orders of 1955 and 1957 are altered or set aside. The dispute about promotions is therefore a belated dispute.

12. It appears from the record that the petitioner has been making representations made by the petitioner to the Director General Posts and Telegraphs (Annexure J). That is a representation dated July 6. 1968. The body of that representation itself shows that the petitioner had previously made representations on January 22, 1956 and December 6, 1958. We also have before us a representation made by the petitioner on August 1, 1968 to the Divisional Gradation lists of 1958 and 1963. Those two representations are dated. December 20, 1958 and November 11. 1963. These circumstances clearly show that right since 1958, the petitioner has been shown as a junior respondents 6 to 26 in the Gradation list and he has been making representations right from 1956. As we have already indicated that the main dispute involved in this case is about the seniority . We must conclude that the grievance which the petitioner was making by representations right from 1956, cannot now be entertained in a petition filed in 1970. Considered from this point of view. We feel that it will not be worthwhile to entertain the petition on account of delay.

13. We may, however, observe that the question about the nature of the transfer orders is being considered in the accompanying No. 1267of 1969. There also the finding which we propose to make would be against the case made out by the present petitioner. However, we rest out decision in Special Civil Application No. 141 of 1970 mainly on the ground of delay and dismiss the petition.

14. Now, turning to the facts in Special Civil Application No,. 1267 of 1969, the petitioner and respondents 6 to 14 belong to a cadre known as the cadre of Telephone Operators. At the time of this petition, the petitioners were working under the authority of the Divisional Engineer, Phones, Nagpur, (hereinafter called the D.E.T.) . In 1951 there was an examination for the recruitment in the cadre of the telephone operators. That examination was held by the Post Master General of the then Central Circle. The Central Circle consisted of of four divisions including the divisions of Jaipur and Nagpur. The petitioners claim that they had secured a higher place than respondents Nos. 6 to 14 in the said examination. The petitioners opted for the Nagpur Division and were employed there as telephone operators. Respondents 6 to 14 in the said examination. The petitioners opted for the Nagpur Division and were employed in the Nagpur Division as candidates who had secured place higher than respondents 6 to 14 had opted for the Nagpur and other Divisions. It is the case of the petitioners that their dates of appointment in the Nagpur Division were earlier than the respective daters of respondents 6 to 14 had opted for the Nagpur and other Divisions. It is the case of the petitioners that their dates of the appointment in the Nagpur Division were earlier than the respective dates of respondents 6 to 14.in the Jaipur Division . On that count, it is alleged that all the petitioners were senior to al the respondents in the cadre. It is also further alleged that at the time when respondents 6 to 14 actually received their order of appointment, a new Circle called Rajasthan Circle was formed and the Jaipur and Rajasthan Circle came to be formed on October 1. 1953 . According to the petitioners, when respondents 6 to 14 were absorbed in the Jaipur Division, they joined in that Division on the specific understanding that their allotment to the jaipur Division was final and no application for transfer could be entertained on the ground that their original choice was for some other division. The petition goes on to allege that in spite of this understanding, respondents 6 to 14 started making requests for their transfer to the Nagpur Division and ultimately they were transferred on December 3. 1955 to the Nagpur Division. It is the case of the petitioners that these transfers of respondents 6 to 14 were at their own request'. It is the case of the petitioner that at the time when these transfers were made , the respondents had not even attained that status of 'quassi permanent sevants'. They were temporary servants and after the transfer on December 3. 1955. When they were absorbed in the Nagpur Division , they were shown in the gradation list as persons junior is the petitioners. In the gradation list the serial number of respondents 6 to 14 were from 225 onwards and the petitioners were at higher positions. The petitioners further allege that the transfer of th respondents 6 to 14 was under Rule 38 of Chapter II of the Posts and Telegraphs Manual. Volume IV and the respondents could not get places above these occupied by the petitioners. When respondents could not get places, above these occupied by the petitioners. When respondents 6 to 14 were working in the Nagpur Division, they were confirmed in Nagpur Division, they were confirmed in that Division as from March.1 1958. The petitioners case is that respondents 6 to 14 were confirmed with effect from September 1, 1954 under an order passed by the Divisional Engineer, Telephones, Nagpur on July 31. 1968. respondents 6 to 14 were shown as persons senior to the present petitioners. This revised gradation list is Annexure 11 in this petition. On the basis of this revised gradation list. recruitment to the promotional posts to Lower Selection Grade Monitors was made and the grievance of the petitioners is that in these posts respondents 6 to 14 were wrongly promoted ignoring the claims of the petitioners. The petitioners claim that in fact they are senior to respondents 6 to 14. They are therefore, entitled to be shown at higher places in the seniority and the gradation list and they are also entitled to be considered for the promotional posts in preference to respondents 6 to 14. The petitioner have, therefore, challenged in this petition the three orders. These orders are (i) the order of July 31, 1968 passed by the Nagpur (Annexure VIII). (ii) revised gradation list as on July 1. 1968 showing respondents 6 to 14 as persons senior to the petitioners (Annexure II) and (iii) the promotion order (Annexure XII) dated November 25, 1960.

15. In the reply on behalf of respondents it is not disputed that in 1951 there was an examination in which the petitioners stood higher above respondents 6 to 14. It is also not disputed that the respondents joined their service in the Jaipur Division after the petitioners had joined in the Nagpur Division. However, it is contended that the petitioners were confirmed in 1968. in the Jaipur Division with effect from September 1. 1954. It is claimed that on account of this confirmation, respondents 6 to 14 are entitled to claim seniority over the petitioners as all the petitioners have been confirmed after September 1, 1954. It is also contended that the transfer of respondents 6 to 14 to the Nagpur Division was a transfer in the interest of service' and as such, respondents 6 to 14 were entitled to get advantage of their past service in the Jaipur Division. It is denied that the transfer of respondents 6 to 14 to the Nagpur Division was under Rule 38 of Chapter II of the P.&T.; Manual , Volume IV . It was , therefore, contended that as the seniority is to be permanent appointment , respondents 6 to 14 were rightly shown senior to the petitioners and the act of revising the gradation list for the nagpur Division was perfectly legal. As respondents 6 to 14 in the revised gradation list became senior persons, they were rightly considered for the promotional posts in supersession of the alleged claims made on behalf of the petitioners.

16. In this petition Mr. Masodkar, the learned advocate for the petitioners, has firstly challenged the order of confirmation in favour of respondents 6 to 14. He submits that respondents 6 to 14 could not be given, confirmation with effect from September 1, 1954. They are different grounds on the basis of which this confirmation of the respondents is challenged.

17. The first ground to challenge this confirmation is raised on the allegation that on the alleged date of confirmation i.e., September 1, 1954 , responding 6 to 14 were not even 'quasi permanent Servants' It is the submission of Mr. Masodkar that unless respondents 6 to 14 could claim the status of quasi permanent servants, they are not entitled to get confirmation in the Jaipur Division. Mr. Masodkar has relied on the definition of 'quasi permanent service' In Rule 2(b) of the Central Civil Services (temporary Services) dRules. 1940. The 'quasi -permanent service' is defined as:

'..... temporary service commencing from the date on which a declaration issued under Rule 3 takes effect and consisting of periods of duty and leave other than extraordinary leave) after that date '

Rule 3 says---

'A government servant shall be deemed to be in quasi-permanent service-

(i) If he has been in continuous Government service for more than three vears, and

(ii) If the appointing authority, being satisfied as to his suitability in respect of age, qualifications, work and character for employment in a quasi-permanent capacity, has issued a declaration to that effect xxxxxxx'

Reliving on these provisions, Mr. Masodkar submits that in the Jaipur Divisions respondents 6 to 14 had not completed three years service before September 1 1954. It is therefore, argued that they were not even entitled to get the status of quasi-permanent servants. The further argument of Mr. Masodkar is that if respondents 6 to 14 could not be styled even as quasi-permanent servants, they could hardly be confirmed on September 1 . 1954. It appears that the submission of Mr. Masodkar is that one could not be a permanent servant unless he first attained the status of a quasi permanent servant. It is not possible for us to accept this submission made by Mr. Masodkar Rule 3 of the Central Civil Services (temporary Service ) Rules 1949. no doubt defines what a quasi permanent service is but it does not follow that one cannot be confirmed unless he first qualifies to be a quasi-permanent servant. It is not a matter of legal requirement flowing from the provisions of these rules that respondents 6 to 14 could not be confirmed on September 1, 1954. only on the ground that they had not completed three years of service. Mr. Masodkar has not been able to show us any rule which specifically lays down the qualifications or the requirements for confirmation in permanent service. Unless we get such a rule it is not possible to infer merely from the definition of 'quasi-permanent service' that in all cases a person has to put in three years of service before he could be appointed as confirmed servant. In fact from the list (Annexure 1) attached to this petition. It is apparent that some the petitioners themselves have been confirmed in service before they put in three years of service. We must, therefore. reject this argument made by Mr. Masodkar.

18. The second argument of Mr. Masodkar is that the order of confirmation made by the D.E.T. ., Nagpur on July 31,1968 is not really an independent order. Mr. masodkar has argued that hits was an order passed by the D.E.T., Nagpur, only on the dictates of the D.E.T. Jaipur and for this reason Mr. Masodkar submits that this order is vitiated. We must observe that we must reject this contention. All that the order of July 31, 1968 save is -

'In accordance with D.E.T. Jaipur Dn. Jaipur (Rajasthan Circle) Memo No. E. 263/Seniority of T.Os. /136 date 8-2-1968 XXXXXXXX '.

It does not follow from this that the order which the D.E.T. Nagpur, made is merely at the dictates of the D.E.T. Jaipur. This order has really taken into account the fact that the D.E.T. Jaipur, has made an order on February 8, 1968 granting confirmation to respondents 6 to 14 with effect from September 1, 1954. and the effect of that on confirmation has been only taken into account for revising the individual orders of confirmation of respondents 6 to 14 in the Nagpur Division . The challenge on this ground must also. therefore, fail.

19. The order of confirmation is challenged on the further ground that respondents 6 to 14 were already confirmed in the Nagpur Division as from March 1, 1958. and as they were already confirmed servants in the Nagpur Division as any revision of the date of this confirmation. It has to be stated that respondents 6 to 14 had never accepted March. 1, 1958 as the relevant date of their confirmation. They had made representations and after their representations in the gradation list as corrected upto April 1 1951. It was shown that their seniority was fixed as 'provisional'. The question of fixation of the seniority of respondents 6 to 14 and similar officers was pending . Ultimately a decision was taken on February 8, 1968 by the D.E.T. Jaipur granting confirmation to respondents 6 to 14 with effect from September 1. 1954. under his order dated February 8 1968 and effect was given to it in the Nagpur Division. Since these facts are apparent from the record. we must reject the contention of Mr. Masodkar that this confirmation could not be revised.

20. Then Mr. Masodkar submits that the D.E.T. Jaipur could not in law make an order of confirmation on February 8, 1968, as on that date respondents 6 to 14 were not working under him. It is the submission of Mr. Masodkar that on the date when the order of confirmation was passed, respondents 6 to 14 were not subject to the jurisdiction of the D.E.T. Jaipur and, as such, the order of confirmation has no legal effect. It is not possible for us to accept this submission. It is true that the order is of February 8, 1958. However, the confirmation which is granted is with effect from September 1, 1954. It is not disputed that on that date respondents 6 to 14 were under the jurisdiction of the D.E.T. Jaipur . The return has been filed in which there are clear averments which go to show that in the Jaipur Circle there were permanent vacancies available on September 1. 1954, in which respondents 6 to 14 were entitled to respondents 6 to 14 were entitled to get their confirmation on September 1. get their confirmation on September 1. 1954 itself. On account of administrative 1954 itself. On account of administrative delay such formal orders remained to be passed. The order which could be passed on September 1, 1954 were passed on September 1, 1954 were passed subsequently on February 8, 1968. As the D.E.T. Jaipur had the initial competence to pass these orders with reference to the material date September 1. 1954. we must reject the submission of Mr. Masodkar. It is not shown that on September 1, 1954, permanent posts were not available in the Jaipur Division.

21. In the petition, there is no specific challenge to the order of February 8, 1968. passed by the D.E.T. Jaipur . Though the D.E.T. Jaipur has been joined as respondent No. 4 to this petition. there was never a specific challenge to this order. After the hearing of the petition proceeded for quite sometime. Mr. Masodkar tendered as application for amending the petition seeking permission to challenge this order. WE reject that application as it was obviously a delayed one.

22. The last ground on which the order of confirmation was challenged is that it has been passed after more than 13 years. We must reject this challenge also because the orders of confirmation can be passed with retrospective effect also. In a number of cases such formal orders are passed after a considerable time. It has also to be noted that this order of conformation has nowhere been challenged by the petitioners. As it is clearly established on the return both on behalf of respondents 6 to 14 and also on behalf of the other respondents that on September 1, 1954. there were sanctioned posts available in the Jaipur Division such an order of confirmation., in our view cannot be challenged.

23. It will therefore have to be taken as a final order and we must proceed in this petition on the footing that on September 1 1954 respondents 6 to 14 were confirmed in the Jaipur Division.

24. Proceeding on that premise. we must make a reference to Rule 32-E of Chapter i in Volume IV of the P & T. Manual. This rule deals with 'Seniority' and the relevant part of the rule provides;

'Subject to any special rules prescribed for any particular service, the seniority of an official in the cadre to which he belongs should be fixed according to the date of his permanent appointment to that cadre'.

If September 1 , 1954, is taken to be the valid date for the confirmation of respondents 6 to 14. It is not disputed that on that ground respondents 6 to 14 could be entitled to claim seniority over the petitioners. However, it is argued that this advantage of seniority was lost to respondents 6 to 14 on account of their transfer from the Jaipur Division to the Nagpur Division. It is not disputed that respondents 6 to 14 were transferred by the order dated December 1, 1955 by the D.E.T., Jaipur. In fact they took charge in the Nagpur Division on December 3. 1955 and their liens on their posts in the main controversy between the parties is about the nature of these transfers. It is the case of the petitioners that this was a transfer ' at the request' of respondents 6 to 14 and, as such. It was governed by Rule 38 of Chapter II of the P. &T.; Manual Vol IV. It is the case of the petitioners that on account of this transfer under Rule 38. respondents 6 to 14 lost their advantage of their confirmation in the Jaipur Division on September 1. 1954 and they should be ranked below the petitioners in the gradation list in the Nagpur Division. The reply on behalf of respondents 6 to 14 is that though they were transferred under the order of December 1, 1955 that was not an order of transfer on their request. It is contended that they were transferred in the interest of service' and , as such were entitled to claim advantage other confirmation on September 1, 1954. It is not disputed at the Bar that if the transfer is one under Rule 38. respondents 6 to 14 will have to placed below the petitioner. Once the order of confirmation on September 1, 1954 is held to be legal. It is equally not disputed that if the transfer is taken to be one as in the interest of service, the petitioners will not be in a position to make a grievance of the fat that respondents 6 to 14 are senior. In view of this controversy, it is necessary to find out what is the nature of this transfer. The relevant order of transfer is produced at Annexure IV in this petition. The introductory part of this order is -

'As per D.E.T. Jaipur Memo No. AE 8-1/CC/CS.II/338 date 18-8-1955 the following transfers are ordered in the interest of service'.

Under that the names of the respondents are shown as the persons who are transferred. the concluding portion of this order shows that respondents 6 to 14 were entitled to get 'T.A. advance, if required'. On the face of it the order shown that it was made in the interest of services' Mr. Masodkar, however, submits that the wording of the order is not conclusive and in the present case the reply also does not disclose the true facts which led to the transfers of respondents 6 to 14. It is true that the order by itself may not be conclusive and in the present case the reply also does not disclose the true facts which led to the transfers of respondents 6 to 14. It is true that the order by itself may not be conclusive in all cases and if the parties have filed affidavits or documents before us. we must take that material into account in order to find out what is the true nature of the transfer. The allegation made by the petitioners in this behalf is that though respondents 6 to 14. had gone to the Jaipur Division on the understanding that they would not ask for a transfer, they started making request for their transfer to the Nagpur Division as soon as they went to Jaipur Division and it was on their request that the order of transfer to the Nagpur Division as soon as they went to Jaipur Division and it was on their request that the order of transfer was made on December 1, 1955. The substance of the allegations, therefrom, on behalf of the petitioners is that this was a transfer on account of the request of the respondents' In the return filed on behalf of the petitioners is that this was a transfer on account of the request of the respondents' In the return filed on behalf of respondents 6 to 14 in paragraph 10 it is denied that these respondents made request for their transfer to the Nagpur Division. It is stated that originally when respondents 6 to 14 appeared for the examination there was no Rajasthan Circle. The Jaipur Division was under the Central Circle. Subsequently the Jaipur Division was detached from the Central Circle and was attached to the Rajasthan Circle in October 1953. In view of this redistribution , respondents 6 to 13 were asked whether they would continue in the newly formed Rajasthan Circle or whether they would like to go to their own Circle. As the respondents were asked to give choice. Respondents 6 to 14 expressed their desire to go to their home Circle and on account of these circumstances respondents 6 to 14 came to be transferred to the Nagpur Division. Respondents 6 to 14 had denied that they were transferred merely on account of their request. respondents 1,2 and 5 have also filed a return and in paragraph 8 of that return it is stated that on official were debarred from making requests for transfer. it was however, left to the heads of the Circles concerned to accede to such requests on the basis of availability of vacancies. It is further stated that the request of respondents 6 to 14 was granted on a compassionate ground and transfers to the Nagpur Telephones Division were treated as on administrative grounds 'in the interest of service'. This is the position of pleadings so far as Special Civil Application No. 1267 of 1969 is concerned. In the accompanying petition which we have disposed of. which was heard along with this petition and where the advocate agreed that the documents and the pleading may be taken into account for consideration of the other petition. we find a slightly more elaborate story. In that application , it was alleged by the petitioner Sule, who was himself a transferee from the Jaipur Division to the Nagpur Division like the present respondents 6 to 14 that in the Jaipur Division by a memorandum dated June 21 1954. the Director, Posts and Telegraphs, Jaipur had called for options from persons who belonged to the erstwhile Central Circle as to whether they would like to opt for the Nagpur Division, or would like to continue in the newly formed Rajasthan Circle in its Jaipur Division. In pursuance of this memo, Sule and also respondents 6 to 14. in this petition had given their options. In the return filed in the accompanying Special Civil Application No./141 of 1970 , it is stated that it was decided that the officials who had their homes in one Division and were working in the other Division should be repatriated to their own units against the vacancies reserved for direct recruitment. This was without detriment to the reservation made for the Scheduled castes and the Scheduled Tribes. It is further stated that the request of respondents 6 to 14 in the present case were granted on compassionate grounds and their transfer to the Nagpur Division was treated as on the administrative grounds 'in the interest of service' On the basis of these pleadings, it was argued that the transfer of respondents 6 to 14 was not really in the interest of service. It was argued that the true reasons behind the transfer was the requests of respondents 6 to 14 and therefore, the provisions of Rule 38 would be attracted. Reliance was also placed on Rule 37. which amongst other things save:

'xxxxxxxxxxx Transfers should not, however, be ordered except when advisable in the interest of the public service. xxx' It was argued that unless the transfer is made in the interest of public service. the transferee would not be entitled to get the benefit of his previous service and the circumstances in the present case show that respondents 6 to 14 were transferred on compassionate grounds. This , it was argued, was hardly in the interest of public interests.

25. Though superficially this argument may appear attractive, on a close scrutiny we must reject it. It has to be borne in mind that initially when the examination for recruitment was held in 1951. that examination was held by the P.M.G. of the Central Circle. The Jaipur Division was then attached to the Central Circle. Respondents 6 to 14 were successful in this examination and be cause the other candidates had opted for the other three divisions, they were asked to Join in the Jaipur Division. A considerable time elapsed in correspondence before respondents 6 to 14 were appointed in the Jaipur Division. However, a new circle called the Rajasthan Circle was formed in the meanwhile and the Jaipur Division was attached to the Rajasthan Division. The recruitment was made on the basis of the examination held by the P.M.G. of the erstwhile Central Circle. On account of this development, it was felt that options he given to the interested persons to choose whether they would like to go back to the Central Circle or whether they would opt for the newly formed Rajasthan Circle. This contingency of the formation of the Rajasthan Circle was not earlier foreseen and on account t of this new development, options were called Respondents 6 to 14 gave options in pursuance of such a general office memorandum which called for such options. In these circumstances, it will be difficult to say that the transfer was made on account of request of respondents 6 to 14 as such. It has also to be noted that on account of the formation of the Rajasthan Circle. the former expectance of respondents s6 to 14 that they would get promotion in the erstwhile Central Circle, or that they would get transferred to other divisions of the Central Circle could not have materialised. These facts must have been taken into account while calling for such options. If in these circumstances, the superior authorities call for the options and in reply to that respondents 6 to 14 exercised their option and opted for the Nagpur Division, we feel that it is not possible on these facts to say that the transfer would be a transfer ' at there quest' of respondents 6 to 14.

26. Further the order on the face of it shows that it was ' in the interest of service' In fact before us the original memo of the Jaipur Division dated August 15, 1955 was also produced since there was a reference to it in the order of transfer. That order of transfer shows that respondents 6 to 14 and one Gaware were transferred from the Jaipur Division to the Nagpur Division. All these nine persons were transferred because they belonged to the Scheduled Castes. The itself could be one more considerations on the basis of which it can be said that if the basis of which it can be said that it was a transfer ' in the interest of service'. In fact, we have made enquiries from the advocate appearing on behalf of respondents 1,2 and 5, and it was stated before us that the order of transfer of these nine persons was made because in the Nagpur Division nine posts for the Scheduled Castes were available. It also appears that only one other post for an ordinary candidate was available and in that post one Gwalbansi, who did not belong to the scheduled caste. was transferred. These facts clearly show that when permanent posts were available in the Nagpur Division . that fact was taken into account while deciding whether the transfer would be in the interest of service. All these be in the interest of service as is stated in the order of Annexure XIV. If that be the position then the result that would follow is that respondents 6 to 14 would be entitled to get advantage of their confirmation on September 1. 1954 In view of the facts which have been disclosed before us, we cannot hold that the transfers of respondents 6 to 14 would be governed under Rule 38 of Chapter II of the P. & T. Manual. Vol IV. Rule 38 reads as under :--

'38 Transfer on one's own request.

(1) Transfers of officials when desired for their own convenience should not be discouraged if they can be made without injury to the rights of others. However, as a general rule, an official should not be transferred from one unit to another either within the same Circle, or to another Circle unless he is permanent. As it is not possible to accommodate an official borne on one gradation list into another members in that gradation list such transfer should not ordinarily be allowed except by way of mutual exchange. Transfers by way of mutual exchange. if in themselves inherently unobjectionable. should be allowed but in order to safe guard the rights of men borne in the gradation lists of both the offices, the official brought in should take the place in the new gradation list according to the date of his entry into the grade or the place vacated by the official with whom he exchanges appointment. whichever is the lower.

(2) When the official is transferred at his own request but without arranging for mutual exchange he will rank junior in the gradation list of the new unit to all the official of that unit who, on the date on which the transfer is ordered, are either permanent or quasi-permanent irrespective of length of service, and also to those temporary officials borne on that date on the approved list for appointment in the new unit who have been appointed against regular vacancies.

(3) If the old and the new unit form parts of a wider unit for the purpose of promotion to a higher cadre, the transferee (whether by mutual exchange or otherwise) will retain his original seniority in the gradation list of the wider unit.

(4) A permanent official transferred from one unit to another will retain his lien in the old unit until he can be accommodated in the new unit according to his position in the new unit. He will not however have any claim to go back to his old unit even though he holds his lien there. A declaration to the effect that he accepts the seniority on transfer in accordance with this rule, and that he will not have any claim to go back to the old unit, should be obtained before an official is transferred under this rule. Any special privilege to which an official may be entitled by virtue of his position in the gradation list of the ;unit from which he is transferred will, ordinarily, be forfeited on his transfer to a new gradation list.

(5) The transfer of an official from one arm of service to another within or outside the Circle can be allowed only with the personal approval of the Head of the Circle or Heads of Circles concerned and subject to the following conditions:--

(a) the mode of recruitment to the post to which the official seeks transfer is the same for the post he is holding and

(b) whenever additional qualifications are prescribed for appointment to a certain post i.e., minimum height, freedom from colour blindness, etc., for the post of Telephone Operators, the applicant should satisfy those conditions in all respects; whenever any training is required or prescribed for the post the applicant must undergo that training satisfactory and the period of such training must be covered by the official by taking leave due and permissible for the period.'

Mr. Masodkar also contended that when respondents 6 to 14 were appointed in the Jaipur Division, those appointments were made on the express understanding that once allotted to a unit, no application for a change of a unit or for transfer from that could be entertained on the ground that the original choice of respondents 6 to 14 was for some other unit. Mr. Masodkar in this behalf has drawn our attention to paragraph 4 of Annexure III in his petition. That refers to the subject of recruitment examination held on 16-12-1951. It is true that paragraph 4 of that Annexure provides that an application for transfer would not be entertained on this ground. However, we have held already that the transfer have held already that the transfer of respondents 6 to 14 was not on account of application on their part as such. In view of our finding that the transfer of respondents 6 to 14 was made by the Department In the interest of service' we fail to see how paragraph 4 of Annexure III can possibly apply in this case.

27. The result of the finding made by us is that when respondents 6 to 14 were transferred to the Nagpur Division it will have o be taken that their date of confirmation in that Division is September 1, 1954. On that footing obviously they would be senior to the present petitioners. If they are senior to the present petitioners. It is not disputed that in promotional post , they would be entitled to claim preference over the present petitioners. On this footing, the challenge to the order of promotion dated November 25 1969 must necessarily fail.

28. After hearing of the proceedings for a considerable time. Mr. Masodkar on behalf of the petitioners, filed two applications. One applications was for the amendment of the original petition. By the other application the petitioners sought permission to file additional affidavit with documents. At the time of the hearing we had indicated to Mr. Masodkar that we were not disposed to entertain those applications. However, we had not formally passed order on those e applications at that time. We hereby reject those two applications.

29 Consequently, the result is that we find no merit in both the Special Civil Applications Nos. 1267 of 1969 and 141 of 1970 and the challenge made on behalf of the petitioners in the respective petitions must fail.

30 . The rule in both the above petitions is , therefore, discharged. The petitioners in both the petitions to pay the costs of the respective respondents .

31. Rule discharged.


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