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Shri Radhey Shiam Bansal Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberC.W. No. 905 of 1974
Judge
Reported in1983(5)DRJ45; 1983LabIC1086; 1983(1)SLJ610(Delhi)
AppellantShri Radhey Shiam Bansal
RespondentUnion of India (Uoi) and ors.
Appellant Advocate G.D. Gupta, Adv
Respondent Advocate D.D. Singh, Adv.
Excerpt:
.....for re-transfer to education ministry, the petitioner again represented and he was transferred to home ministry. he was assigned his original seniority as ldc and promoted as udc bat later his seniority was downgraded to the date of his transfer oft the ground that it was a case of mutual transfer.; that there was no mutuality in transfer and the petitioner was entitled to his original seniority and to all consequential benefits as promotion, pay and allowances etc. - - he made a representation again on 2-7-1971. in this representation he said this :kindly refer to my request dated 16-3-1971. i have learnt from reliable sources that shri tilak raj gera wants to come back to this directorate from the central translation bureau, ministry of home affairs. so for so good. he recommended..........order was passed. the ministry of home affairs thought that the petitioner's case was one of mutual transfer and, thereforee, his seniority should be considered not from 1967 but from 1-9-1971 when he joined the c.t.b. in the ministry af home affairs. as a result of this decision he was demoted from his position at seriall no. 5 in the tentative seniority list to seriall no. 16 in the new seniority list as a consequence of this down grading in seniority he was reverted from the post of u.d.c. to that of l.d.c. on 15-7-1974.5. these are the facts in outline. the petitioner filed this writ petition in 1374 complaining of his reversion and demotion in seniority. it appears that he continued to make representation even after filing this petition. on his representation, the director of.....
Judgment:

Avadh Behari Rohtagi, J.

1. This is a straightforward case. On 11-9-1963 Radhey Shiam Bansal, petitioner, entered the service of the Ministry of Education, Government of India, as a peon. In 1967 he became a regular lower division clerk. He was posted in the Manual Section of the Central Hindi Directorate in the Ministry of Education. This section was mainly concerned with the translation of manuals etc. from English into Hindi.

2. On 31st December, 1970, the President of India issued a notification transferring this translation work from the Central Hindi Directorate (For short C.H.D.) to the Ministry of Home Affairs. In the Ministry of Home Affairs a separate bureau was constituted on 1-3-1971 called the Central Translation Bureau (For short C.T.B.). By art office order of the same date i.e. 1-3-1971 nearly every member of the staff of C.H.D. was transferred to C.T.B. but the petitioner was not transferred. He was left behind. The names of those who were transferred were set out in the office order dated 1-3-1971. The petitioner's name was not there. Two other men of the Administrative Section of the Ministry of Education--T.R. Gera and Lakhmi Singh,--were also transferred on 1-3-1971 by the office order to C.T.B., though they did not belong to the Manual Section of C.HD. Against this action the petitioner represented. His case was that as the work of translation had been transferred from C.H.D. to C.T.B., he should also have been transferred to C.T.B. in the Ministry of Home Affairs His representation, dated 16th March, 1971, was rejected on 6th April, 1971.

3. But as luck would have it, T.R. Gera, who had been transferred from the Administrative Section on 1-3-1971, expressed a desire to go back to the Administrative Section. He was an administration man. Perhaps the work of translation was not to his liking. He did not want to continue in the Translation Section of C.T.B. His request was accepted. The petitioner came to know of this. He made a representation again on 2-7-1971. In this representation he said this :

'Kindly refer to my request dated 16-3-1971. I have learnt from reliable sources that Shri Tilak Raj Gera wants to come back to this Directorate from the Central Translation Bureau, Ministry of Home Affairs. He has already submitted an application for his reversion to the Directorate.

It is requested that I want to be transferred to the Central Translation Bureau in place of Shri Tilak Raj Gera. I hope that my request will be given a due consideration.'

In September 1971, T.R. Gera came back to the Ministry of Education and the petitioner was transferred to C.T.B. in the Ministry of Home Affairs. On 14-9-1971, the office order said that he had been taken in C.T.B. in the 'same capacity and on the same pay and allowances' with effect from 1-9-1971. On 4-1-1972, he became a U.DC. 'in C.T.B. with effect from 1-1-1972. The C.T.B. issued a provision Seniority List on 24-4-1972. In this list the petitioner's seniority was shown as from 2-12-1967 when he became L.D.C. in the C.H.D. in the Ministry of Education. On 22nd February, 1973, C.H.D. issued its own seniority list where T.R Gera was given the same seniority which was his due. So for so good.

4. On 29th March, 1973, the impugned order was passed. The Ministry of Home Affairs thought that the petitioner's case was one of mutual transfer and, thereforee, his seniority should be considered not from 1967 but from 1-9-1971 when he joined the C.T.B. in the Ministry af Home Affairs. As a result of this decision he was demoted from his position at Seriall No. 5 in the tentative seniority list to Seriall No. 16 in the new seniority list As a consequence of this down grading in seniority he was reverted from the post of U.D.C. to that of L.D.C. on 15-7-1974.

5. These are the facts in outline. The petitioner filed this writ petition in 1374 complaining of his reversion and demotion in seniority. It appears that he continued to make representation even after filing this petition. On his representation, the Director of C.T.B. examined his caseafresh. He came to the conclusion that injustice has been done to the petitioner and his case had wrongly been treated as a case of mutual transfer* I summoned the record of the C.T.B. There is a detailed note of four pages, dated 15-12-1979, prepared by the Director of C.T.B. which sets out all the relevant facts and his own view of the matter. He recommended that the petitioner's case should be reviewed his seniority should be restored to him. In his judgment it was not a case of mutual transfer. He examined the entire case 'dispassionately' and arrived at the conclusion that the petitioner did not ask for a mutual transfer at any stage. His opinion was that the case was wrongly viewed as a case of mutual transfer. He pointed out in his careful note that the petitioner was promoted to the post of U.D.C. on the recommendations of a properly constituted Departmental Promotion Committee and had even completed his period of probation successfully. To revert the petitioner from the post of U.D.C. to that of L.D.C., as was done in this case, was unjust. It was done only on the ground that it was a case of mutual transfer but, as the Director correctly pointed out, it was not a case of mutual transfer. In fact it was a case of reversion to his parent office in the case of Gera and a case of independent transfer so far as petitioner was concerned.

6. In a case of mutual transfer what happens is that two employees agree between themselves and say to the master that they are prepared to change places and they will not claim old seniority in their new places. At the place to which they are transferred, their date of seniority will be the date of joining the new assignment. For that consent of both the parties to mutual transfer has to be taken.

7. The parties must, as regards the essential part of the transaction, intend the same thing ; that is each must know what the other is to do : this is called mutuality of assent. This requirement is called mutuality. The essential characteristic of mutuality is a common intention. Mutuality is reciprocation, an interchange. An acting by each of two parties. An acting in return. There is correspondence to the other. There is a relationship in which like duties and obligations are exchanged. One gives and the other receives. It is something common or both parties.

8. The Government's case is that the transfer of the petitioner to C.T.B. was not in public interest and his seniority will be taken into account from the date of his joining the C.T.B. But the test of mutual transfer is that Gera should have been in the like manner given his seniority from the date he returned to C.H.D. But he was given seniority from the date he joined that department, initially as a beginner.

9. There is no consent of the petitioner anywhere on the record to mutual transfer. This was the finding of the Director and I agree with him. The petitioner's case is proved by the fact that T.R. Gera was given his old seniority on his return to the Administrative Section from C.T.B. If Gera's case was not treated as a case of mutual transfer it would be anamolous to hold that the petitioner's case was one of mutual transfer. In a case of mutual transfer both the employees are treated alike. Because both parties agree to mutual transfer. The petitioner pointedly drew attention to this fact. But his representation was rejected on 25-4-1973 with this cryptic reply. 'This Bureau is not at all concerned as to how the seniority of Shri Tilak Raj Gera was determined by C.H.D. while finalising the seniority list of U.D.C. V the Bureau has accepted the advice given by the Department of Personnel'.

10. This is no answer. We are very much concerned with what happened to Gera on his return. Because what is pressed against the petitioner is a mutual transfer. We have thereforee to see : Was it mutual There is not a particle of evidence to suggest mutuality in the transfer. The petitioner said that he had 'learnt from reliable sources' that a post had fallen vacant as a result of Gera going back to his parent office. So he may be transferred to C.T.B. in his vacancy. But between Gera and the petitioner-there was no interchangeabillty, no reciprocity, no agreement. There is no peg on which to hang a theory of mutuality. There is no foundation for a case of mutual transfer. I am, thereforee, of the opinion that there is nothing: to suggest on the record that it was a case of mutual transfer. The authorities were in error in treating the ease as a case of mutual transfer and: in denying the petitioner his due seniority,

11. For these reasons, I hold that the petitioner's seniority must be taken as from 2-12-1967 when he was appointed as a regular L.D.C. I hold that his reversion from the post of U.D.C. to that of L.D.C. is illegal. He will retain his seniority at No. 5 in the Provisional Seniority List dated 24-4-1972. He will also be entitled to all the consequential benefits such as promotion, pay and allowances, etc. There will, however, be no order as to costs.


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